Hot-tubbing report sparks rule committee decision to take wider look at expert evidence

Briggs: sub-committee convened

Briggs: sub-committee convened

The Civil Procedure Rule Committee (CRPC) is to look into the provision of expert evidence in court as it considers the recommendations of a recent report into concurrent evidence, known as hot-tubbing.

The report of a Civil Justice Council working group in August found that hot-tubbing was improving quality, saving trial time and helping judges determine disputed issues.

It recommended revising the relevant practice direction, 35, to reflect that hot-tubbing was but one form of concurrent expert evidence and that the court could give directions for any of the processes to be used at trial.

Another change would be to set out the circumstances in which further questioning should be allowed by the court after the judge-led examination concludes, it said.

The recently published minutes of October’s CPRC meeting – where the report was discussed – said Mr Justice Birss “felt that although the report was impressive, it did not fully consider the impact on resources and the significant work and time required to conduct concurrent evidence discussions. His experience is that in patent cases in Australia, hot-tubbing is not universally favoured. Whilst it clearly has utility in the proper place, the heavy use of resources should be acknowledged”.

Defendant solicitor Andrew Underwood told the meeting that he had never seen hot-tubbing used in the personal injury area, and given that “getting and using joint experts reports could be a waste of time, it might be profitable to have a fresh look at that aspect”.

Claimant solicitor Brett Dixon, the minutes recorded, said he thought there should be consideration of the wider issues of the use of expert evidence, as under the current process expert discussions take place too late in the proceedings.

Barrister member Jonathan Klein was said to have expressed concern about the process and the extent to which the court becomes inquisitorial, and the extent of the parties’ participation.

Lord Justice Briggs, who chaired the meeting, decided that while the working party’s recommendation should be reviewed, the wider issues highlighted by the committee, particularly that of resources, “merited consideration”.

He decided to convene a sub-committee to consider the report but also to look at other provisions on experts if appropriate.

Separately, Diane Astin and Ian Karet have been named as new members of the Civil Justice Council. Ms Astin, one-time director of the Public Law Project, is currently a consultant solicitor with Scott-Moncrieff & Associates in the public law unit.

Mr Karet is a solicitor-advocate and heads the intellectual property practice at City giant Linklaters.

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