New hot-tubbing and ‘costs of costs management’ rules come into force

Percentage caps: Rules explain how to calculate costs

Variations that judges can adopt in orders for concurrent expert evidence – known as ‘hot-tubbing’ – came into force last week, along with a new provision that clarifies how the costs of costs management should be calculated.

The hot-tubbing amendments are not as radical as the Civil Justice Council (CJC) has recommended in a report last year.

The amendments to PD 35 provide that to extent expert evidence is not to be given concurrently, the court may direct that the evidence is given “in any appropriate manner”.

They continue: “This may include a direction for the experts from like disciplines to give their evidence and be cross-examined on an issue-by-issue basis, so that each party calls its expert or experts to give evidence in relation to a particular issue, followed by the other parties calling their expert or experts to give evidence in relation to that issue (and so on for each of the expert issues which are to be addressed in this manner.”

Further, whereas previously the rules allowed the judge to direct the parties to agree an agenda for the taking of concurrent evidence, they now allow the court to set the agenda.

As we reported in June, a sub-committee redrafting PD 35 had asked the CPRC whether it wanted to limit the concept of concurrent expert evidence to “classic” hot-tubbing, or approve an alternative approach that treated it as “embracing the full range of methods, including back-to-back, issue-by-issue expert evidence, and ‘hybrid’ procedures”.

The CPRC chose the former. As well as the additions to the practice direction, there are new questions for the directions and listing questionnaires.

Mr Justice Kerr, chair of the subcommittee, said the changes were not as radical as the CJC may have hoped, but would “give court users a useful steer”.

The CJC report – which found that hot-tubbing was improving quality, saving trial time and helping judges determine disputed issues – recommended that the practice direction should be revised to reflect that hot-tubbing was “but one form of concurrent expert evidence; that sequential, back-to-back, evidence is another important format of concurrent evidence; that the ‘teach-in approach’ has great benefits for the right type of case; and that, above all, the court may give directions for any of these processes to be used at trial”.

Meanwhile, on the costs of costs management, the revised PD3E 7.2 now reads:

“7.2 Save in exceptional circumstances—

(a) the recoverable costs of initially completing Precedent H shall not exceed the higher of £1,000 or 1% of the total of the incurred costs (as agreed or allowed on assessment) and the budgeted costs (agreed or approved); and

(b) all other recoverable costs of the budgeting and costs management process shall not exceed 2% of the total of the incurred costs (as agreed or allowed on assessment) and the budgeted (agreed or approved) costs.”

Though this has clarified the situation, observers have predicted that linking the cap to incurred costs on assessment is likely to lead to more argument.

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