Rule committee takes ‘softly, softly’ approach to expanding approach to hot-tubbing

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The Civil Procedure Rule Committee (CPRC) agreed minor variations that judges can adopt in orders for concurrent expert evidence – known as ‘hot-tubbing’ – but acknowledged the changes it has approved to the CPR are “not as radical” as had been recommended by the Civil Justice Council (CJC).

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”.

But 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 currently the rules allow the judge to direct the parties to agree an agenda for the taking of concurrent evidence, they will be amended to allow the court to set the agenda.

As reported last month, 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 and agreed the amendments made as a result at its meeting last month, the minutes of which have just been published. As well as the additions to the practice direction, there are new questions for the directions and listing questionnaires.

The minutes recorded that Mr Justice Kerr, chair of the subcommittee, said that the changes were not as radical as the CJC may have hoped, given its report on hot-tubbing last year, “the changes 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”.

It has not yet been announced when the changes will come into force.

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