18 May 2017Print This Post

Hot-tubbing of experts should not be “forced on unwilling parties”

Courts: push for greater use of hot-tubbing

The giving of concurrent evidence by expert witnesses or ‘hot-tubbing’ should not be “forced on unwilling parties,” a sub-committee of the Civil Procedure Rule Committee (CPRC) has advised.

The rule committee agreed with this and has asked it to draft rule changes that would nonetheless promote the practice.

The sub-committee said hot-tubbing should not be made the ‘default’ position, but it would be beneficial for it to “become, increasingly, a normal feature of expert evidence in all courts”.

In a paper to last month’s CPRC meeting, the sub-committee said it was “unanimous” in the view that it was not “feasible or desirable to identify classes of case that are suitable for hot-tubbing”.

It went on: “It is probably safe to say that hot-tubbing is unsuitable in cases where there is a serious challenge to the expertise or credibility of an expert, at least until that challenge has been determined; beyond that, adoption of criteria or guidelines for determining whether hot-tubbing is suitable, is a preferable approach.”

Earlier this year the CPRC suggested ‘hot-tubbing’ should be the default position in the Mercantile Court and Technology and Construction Court.

The hot-tubbing sub-committee, set up last summer following a Civil Justice Council (CJC) report that suggested the practice should be used more widely, said some form of question should be added to the standard form directions and listing questionnaires for cases involving expert evidence.

“There is little enthusiasm (apart from perhaps in personal injury cases) for early bespoke preliminary hearings to resolve expert evidence issues. These are already possible under existing procedural rules, but little used because the expert issues tend to develop out of the facts, rather than vice versa.”

The sub-committee described the absence of generalised early docketing of cases as “inimical” to the growth of hot-tubbing.

“There is a ‘chicken and egg’ issue, in that increased experience of hot-tubbing would diminish suspicion, hostility and resistance to it from parties; but absence of docketing limits opportunities to bring hot-tubbing into mainstream litigation culture.”

The sub-committee said the CJC study last summer showed there was “no consensus among judges” about which issues lent themselves to hot-tubbing, which was “evolving through judicial experience” that was “relatively limited and ad hoc”.

“There are no discernible patterns emerging to indicate when it is likely to be used, other than that it is more likely in complex cases involving large sums of money; nor when, if used, it is productive and successful, although judges with experience of it were mostly positive about its effectiveness.”

The sub-committee disagreed with the CJC’s enthusiastic support for ‘teach-ins’ with specially appointed experts.

“There was a marked lack of enthusiasm for ‘teach-ins’ among, in particular, the practitioners and judicial member of the sub-committee, at least in the absence of consent from all parties.

“There is a danger of violating the principle that cases should be decided on the evidence given (unless for compelling reasons) in public at a hearing.”

According to minutes of the meeting, the CPRC agreed with the sub-committee’s main conclusion that hot-tubbing “could not be imposed top down” because of the absence of docketing.

Instead the committee agreed in principle that it should, “where possible and appropriate”, be promoted.

“Offering a streamlined process similar to the shorter trial scheme or an earlier hearing date where parties use hot tubbing may be used as incentive to promote its use, particularly if it saves costs.”

The sub-committee, chaired by Mr Justice Kerr, will now consider rule amendments.

By Nick Hilborne

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