Topping up the Hot Tub
The architect of the 'hot tub' predicts its use will grow
The man who introduced the use of concurrent expert evidence (CEE, also known as ‘hot tubbing’) to the courts of England and Wales has predicted that its application will grow. In a speech to the London Conference of the Commercial Bar Association of Victoria on 29 June 2016, Lord Justice Jackson said that most of those who expressed opposition to ‘hot tubbing’ in a recent small-scale survey had no direct experience of it - ‘It is striking that the majority of those who are hostile to the procedure are judges or practitioners who have never used it’.
In Jackson’s view, hot tubbing creates more work for the judge. This is because the judge ‘needs to read the expert evidence thoroughly and get on top of the issues before the CEE process starts. On the other hand, that is not a bad thing. The judge will have to master the expert evidence sooner or later anyway. If he/she does so before the experts enter the witness box and then adopts the CEE procedure, the process of judgment writing will be much easier.’
The main purposes of hot tubbing are:
- to improve the use of expert evidence at trial, and
- to save time, and therefore money.
Jackson LJ is circumspect on the cost saving issue. He says: ‘Although views differ on the question of costs saving, most English judges and practitioners agree that CEE leads to a saving of time at trial. Since trial time is the most expensive component of litigation, this is a valuable saving. Solicitors who are striving to bring the actual costs of litigation closer to the approved budget should give serious consideration to proposing the use of CEE.’
Until now, it has been the Technology and Construction Court that has made the widest use of hot tubbing. However, Jackson LJ notes with approval that it was employed recently in a competition law matter. In Streetmap.EU Ltd -v- Google Inc. , Mr Justice Roth found it not only saved on time but helped highlight the differences between the experts:
“Each side called one economic expert and the court used a so-called ‘hot-tub’ for the joint presentation and scrutiny of those experts’ oral evidence. I believe that is the first time this has been done in a competition case in the UK, and it led to a constructive exchange which considerably shortened the time taken by the economic evidence at trial. However, I should mention that this process involves considerable preparation by the court and effectively requires (as in the present case) a transcript since the judge is unable to keep a proper note while leading the questioning.” [para 47]
There is currently a Civil Justice Council working group (chaired by Professor Rachael Mulheron) reviewing the use of the hot tub in the light of experience to date. If the review concludes that there are ways to improve the hot tub procedure, we will let you know.