Concurrent expert evidence – known as hot-tubbing – should only be carried out in the “classic” manner where experts are sworn and give evidence at the same time, the Civil Procedure Rule Committee (CPRC) has decided.
Asked to give a steer to the sub-committee redrafting PD 35.11, the committee decided against an alternative approached that treated concurrent expert evidence as “embracing the full range of methods, including back-to-back, issue-by-issue expert evidence, and ‘hybrid’ procedures”.
The sub-committee is redrafting the PD so as to promote the use of hot-tubbing, and also putting forward changes to standard-form case management conference directions, directions questionnaires and listing questionnaires.
The more limited approach, it told the May meeting of the CPRC, has “the virtue of greater linguistic clarity, simplicity, brevity and avoidance of confusion”.
By including procedures where the evidence is not given concurrently at all, but rather sequentially, the wider approach “would lead to more substantial expansion of PD 35.11”, the sub-committee said.
The minutes of the May meeting, released last week, showed that the CPRC “favoured the limited approach”, and also decided that it would not be appropriate within the rules to include signposts to guidance to hot-tubbing.
Earlier this year, the sub-committee – chaired by Mr Justice Kerr – recommended to the CPRC that hot-tubbing should not be made the ‘default’ position, but said it would be beneficial for it to “become, increasingly, a normal feature of expert evidence in all courts”.
In a paper to the April meeting, it said: “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.”
The moves follow a report by the Civil Justice Council last year that found hot-tubbing improved quality, saved trial time and helped judges determine disputed issues.
It suggested the practice should be used more widely, with a revised PD and a question on it added to the standard form directions and listing questionnaires for cases involving expert evidence.