Concurrent evidence from expert witnesses – or ‘hot-tubbing’ – is worth doing if it even if it just saves court time rather than costs, the senior presiding judge said last week.
Lord Justice Goldring also warned experts over rumours of padding their hours since legal aid rates were cut.
Addressing the Bond Solon expert witness conference in London, the judge acknowledged that it was too early to quantify the benefits of hot-tubbing in England and Wales – although there were positive signs in the initial evaluation of the Manchester pilot earlier this year by Professor Dame Hazel Genn. “Moreover, the Australian experience suggests clear financial and practical advantages to this scheme.”
Noting indications that the pilot saved more court time – as much as 50% – than the parties’ costs, he said: “The knock-on effect enabling other cases to be listed sooner is highly beneficial. There is too the possibility that at least some of the 15 plus cases that settled [in the pilot] did so as a result of this process; that minds were applied sooner to the real issues and the respective strengths and weaknesses on each side.
“It seems to me clear that a substantial saving in court time would alone justify hot tubbing.”
Professor Genn recommended a further evaluation and suggested too that the scheme needed to expand and cover different kinds of cases. On that basis the pilot has been extended to include Chancery cases in Manchester. It is to continue until next April on a voluntary basis.
From April 2013, agreed amendments to practice direction 35 will come into effect, making hot-tubbing an option in all civil proceedings.
Goldring LJ said: “Hot tubbing changes how experts engage with the parties, each other and with the court. If it serves to limit and focus the issues in the case, reduce the extent or opportunity for long-winded or repetitive cross-examination and saves court time, hot tubbing must clearly be a step in the right direction.
“It will be interesting to see in how many cases parties will choose hot tubbing next year. I hope many will.”
On legal aid, he described how the Legal Services Commission’s (LSC) reforms aimed to reduce the expert fee bill of £160m by about 10%. “Their introduction has not been without problems, particularly in London. I understand too that the LSC is currently looking at the extent to which savings have been made, if they have.
“I have heard a very concerning rumour. The number of hours worked, or said to have been worked, per case have increased significantly. If the rumour is right, one is bound to infer that it reflects some people padding out hours. That would plainly be wholly unacceptable. It would call into question the integrity of the expert.
“It would too inevitably lead to a more draconian approach by the LSC, and, as it seems to me, fixed fees.”