Is it all bubbles and froth or a much-needed improvement?
1 April 2013 saw the much-heralded addition of a new paragraph 11 to Practice Direction 35 to the Civil Procedure Rules. It enables the court to order, at any stage in the proceedings, that some or all of the experts should give their evidence concurrently. This process is known as ‘hot-tubbing’ and is already used in some foreign jurisdictions.
Hot-tubbing is designed to save costs, although it should also allow for:
- a better examination of the expert evidence
- questions to be put to multiple experts in the same discipline, and
- more effective cross-examination of the evidence between experts of differing views.
There are advantages for the court in being able to hear this evidence simultaneously and to make an immediate comparison. However, experts will find the experience novel, and some care will need to be taken that the debate does not become dominated by one expert through sheer force of personality or other factors extraneous to the evidence.
It remains to be seen how successful hot-tubbing will be as it is rolled out across the country. Indeed, following the 2010 pilot scheme in the Manchester Technology and Construction Court there were mixed reactions to the ‘experiment’. But 28 of the 340 respondents to our 2013 Expert Witness Survey reported having been in the hot tub already, and 23 of those felt that the process had helped the court to better understand their evidence. Not a bad start, then!