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  Promoting the hot tub

Can the use of concurrent evidence be made more popular?

The advantages of the concurrent examination of expert witnesses (‘hot-tubbing’) include:

  • allowing judge-led ‘discussion’ of the expert issues
  • letting experts ask questions of each other and take questions from advocates
  • encouraging experts to give a direct view on the opposing evidence, and
  • enabling experts to comment on points as they arise.

The intended outcome is that the agreed issues are established quickly, needless cross-examination is avoided and the evidence of all experts can often be heard in the time it would otherwise take to hear that from just one. It all sounds like a wonderful solution. So why is it that the system is still so sparsely used?

Mr Justice Kerr recently made reference to a clinical negligence case involving oral evidence from four cancer experts. He described the case as ‘a paradigm case for hot-tubbing’. At the outset, Kerr J had raised the issue with the parties and made the suggestion that the witnesses be hot-tubbed. This proposal, it seems, was met with a marked lack of enthusiasm. One barrister, he said, looked quite blank, as if unsure what hot-tubbing was, and the other was openly hostile. Consequently, the trial proceeded with examination and cross-examination in the conventional way. This led, said the judge, to a ‘wasteful duplication of effort and cost’.

Kerr J made these comments in his role as chairman of a sub-committee of the Civil Procedure Rules Committee (CPRC), set up to consider a report last summer from the Civil Justice Council (CJC). The report found that, where it was used, hot-tubbing improved quality, saved trial time and helped judges determine disputed issues. It identified, however, that the practice was being significantly underused. Consequently, the CJC has been looking for a way to buck this trend.

Kerr J’s sub-committee delivered its recommendations in February, but they have been released only recently.

Reflecting on Kerr J’s report, the CPRC has decided that imposing hot-tubbing on parties is ‘a step too far but that certain types of cases could be identified where it should be the default position’. It has in fact suggested that hot-tubbing should be the default position in the Mercantile Court and the Technology and Construction Court. The sub-committee has now been asked to identify the types of case/issue where hot-tubbing might be appropriate, to consider how it should be raised with the parties and to determine whether it should form part of the case management process or be dealt with separately.

The use of hot-tubbing in the courts of England and Wales has had a lengthy gestation period. The day when it can be imposed on the parties might still be some distance away, but this suggestion by the CPRC may have brought that day a little closer.

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September 2017

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