The use of concurrent expert evidence (CEE) – known colloquially as ‘hot tubbing’ – should increase as the benefits become more widely accepted, Lord Justice Jackson has predicted.
He said the results of an informal survey carried out among practitioners and judges, mainly in the Technology and Construction Court, showed that the majority of those who were hostile to CEE were those who had never used it.
In a speech this week to the London conference of the Commercial Bar Association of Victoria – CEE having been invented in Australia – Jackson LJ said the survey, carried out by his judicial assistant, threw up a diverse range of responses, but some judges expressed themselves enthusiastic about the process.
He noted that Mr Justice Roth recently made use of CEE in Streetmap.EU Ltd v. Google Inc  EWHC 253 (Ch), the first time it had been applied to a competition law matter. “Its use in this field may well expand in the future.”
Jackson LJ acknowledged that CEE meant more work for judges. “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.”
He continued: “Will concurrent expert evidence ever catch on more widely in England and Wales? Yes, it probably will. It is striking that the majority of those who are hostile to the procedure are judges or practitioners who have never used it. Most – but certainly not all – judges and practitioners who have used the procedure are supportive.
“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.”
A Civil Justice Council working group, chaired by Professor Rachael Mulheron, is currently reviewing the use of CEE in the light of experience to date, and Jackson LJ said it was “quite likely that following that review the CJC will propose improvements to the procedure”.