NEW PROVISIONS FOR CONCURRENT EXPERT EVIDENCE OR “HOT-TUBBING” ~ Herbert Smith Freehills – Litigation notes 12 July 2017.
The Civil Procedure Rule Committee has approved amendments to Practice Direction 35.11, which governs the procedure for concurrent expert evidence, or “hot-tubbing”, which was formally introduced into English civil procedure by the Jackson reforms. The amendments implement a number of recommendations made by the Civil Justice Council report on Concurrent Expert Evidence & ‘Hot-Tubbing’ in English Litigation since the ‘Jackson Reforms’ which was published on 1 August 2016.
The new PD reserves the term “concurrent expert evidence” solely for hot-tubbing, in contrast to the CJC report which had used it as an umbrella term to encompass a number of other methods of giving oral expert evidence, including evidence on an issue-by-issue basis (where all parties’ experts give their evidence in relation to a particular issue, before moving on to the next issue). The PD does however expressly recognise these other methods; it provides that, to the extent evidence is not given concurrently, the court may direct it to be given in any appropriate manner, including on an issue-by-issue basis.
Maura McIntosh has published a post on Practical Law’s Dispute Resolution blog which outlines the new provisions. Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).
Almost a year ago, on 1 August 2016, the Civil Justice Council (CJC) published its report on concurrent expert evidence, also known as “hot-tubbing“. The report was prompted in part by a perception that, despite the potential benefits of hot-tubbing, the procedure had not been widely used since it was formally introduced into English civil procedure as part of the Jackson reforms. The report made a number of recommendations aimed at enhancing familiarity with hot-tubbing amongst the judiciary and practitioners, and encouraging its use in appropriate cases.
Following publication of the CJC report, a subcommittee of the Civil Procedure Rule Committee (CPRC) was formed to consider the report and make any recommendations it considered appropriate. The subcommittee was chaired by Kerr J and included two co-opted members, Professor Rachael Mulheron of Queen Mary University of London and myself, in light of our roles as chair and deputy chair of the CJC working group.
The subcommittee proposed amendments to PD 35.11, which sets out the procedure for concurrent expert evidence, as well as related changes to the standard form case management conference (CMC) directions and to questions in directions questionnairesand listing questionnaires. These were approved by the CPRC in its meeting on 9 June 2017 (the minutes for which were published earlier this week) so will presumably be introduced as part of the October CPRC update.
The minutes of the June meeting note that the changes “are not as radical as the CJC may have hoped, given their report”, but are expected to give court users a useful steer. And indeed in many respects the changes implement the spirit of the CJC recommendations, if not their precise letter.
A variety of techniques
As described in the current version of PD 35.11, concurrent evidence involves the experts giving their evidence together, with the judge initiating the questioning and discussion.
An important point that came out of the CJC report was that, in practice, the court does not simply have a choice between, on the one hand, “classic” hot-tubbing of this sort and, on the other, the traditional approach to expert evidence in which each expert gives evidence and is cross-examined on all issues before the process is repeated with the opposing expert. There are, in fact, a number of variations, including:
- A distinct process, which the working group termed “sequential ‘back to back’ evidence”, where the experts are sworn in together but then give evidence separately issue-by-issue (that is, both give evidence on the first issue before the process moves on to the second issue, and so forth).
- Various hybrid versions, in which judge-led questioning and more traditional cross-examination may be combined, either generally or by reference to particular topics.
One difficulty the CJC working group faced was how to describe these techniques, and in particular whether they should all be grouped together under the banner of “concurrent evidence”. The dilemma was particularly acute for “sequential ‘back to back’ evidence”, which is a form of concurrent evidence in one sense, in that the experts are sworn in together, but not in other senses, as they give their evidence and are cross-examined sequentially rather than concurrently.
The CJC report came down in favour of using “concurrent evidence” as an umbrella term encompassing all of these techniques. That meant it needed to coin a new term for “classic” hot-tubbing (as the term “hot-tubbing” itself is generally seen as too colloquial to fit the bill). The working group suggested “judge-led joint examination of experts” (JJEE) as an alternative label, and that terminology was adopted in the CJC’s proposed re-draft of PD 35.11. However, the CJC report noted that the working group did not intend its terminology to be definitive, recognising that this would ultimately be a matter for the CPRC.
The CPRC has opted for a different approach to terminology in the new version of PD 35.11, which it has now approved. This limits the term “concurrent expert evidence” to “classic” hot-tubbing, where the experts are not only sworn in at the same time but also give their evidence at the same time, rather than using it as an umbrella term to encompass the full range of methods identified in the CJC report.
It must be emphasised, however, that those other methods are not ignored in the new PD 35.11, though they are not referred to as “concurrent expert evidence”. The new PD 35.11 still indicates the variety of techniques that may be used. In particular:
- It recognises that “some or all” of the evidence of experts in a particular discipline may be given concurrently; in other words, the court is free to adopt a hybrid procedure where hot-tubbing and traditional cross-examination may be combined.
- It states that, to the extent the evidence is not given concurrently, the court may direct the evidence to be given in any appropriate manner, including:
“… 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)”.
This is precisely the technique referred to as “sequential ‘back to back’ evidence” in the CJC report, though that terminology is not used in the revised PD 35.11.
Accordingly, although the new PD 35.11 may look quite different from the re-draft proposed by the CJC working group, most differences are in fact matters of form rather than substance.
A teach-in conference
The CJC report referred to another technique which, while not strictly within the working group’s remit of studying concurrent expert evidence, illustrated the breadth of options available to a court to deal with expert issues. That was the potential for the court to appoint a neutral advisor to provide a tutorial, or “teach-in”, on the technical issues arising in a case (as Birss J had done in Electromagnetic Geoservices ASA v Petroleum Geo-Services) – or for such a session to be provided by the experts instructed in the case.
The CJC report stated that, given the potential value of the teach-in process across multiple areas of litigation, the working group considered that there would be merit in providing for the technique in PD 35.11. That was reflected in its proposed re-draft.
That suggestion did not however find favour with the CPRC subcommittee as a whole. Kerr J’s note for the CPRC’s April 2017 meeting referred to a marked lack of enthusiasm for “teach-ins” among, in particular, the practitioners and judicial member of the subcommittee, at least in the absence of consent from all parties. The revisions to PD 35.11 put forward by the subcommittee did not therefore include reference to the possibility of a teach-in.
Other amendments to PD 35.11
The agenda: The current version of PD 35.11 states that the court may direct the parties to agree an agenda for the taking of concurrent expert evidence. The CJC report suggested that a revised PD should flag up the possibility that the agenda might be set by the court – or that, if the parties did agree an agenda, the court should be provided with an opportunity to suggest revisions.
This suggestion is reflected in the revisions approved by the CPRC, which state:
“The court may set an agenda for the taking of expert evidence concurrently or on an issue-by-issue basis, or may direct that the parties agree such an agenda subject to the approval of the court.”
Timing of party questioning: The current version of PD 35.11 states that, once the judge has completed his or her questioning of all the experts, the parties’ representatives may ask questions of them. In other words, there is no express provision for the parties’ representatives to be invited to ask questions at an earlier stage in the process (though the current PD does recognise that the court may modify the procedure).
The CJC report recognised that, as an aspect of procedural fairness, it is important to ensure that each party has a sufficient opportunity to test the experts’ views. The report suggested that, to reduce the risk of the parties feeling they had not been given such an opportunity, it might be useful for the court to consider inviting the party’s representatives to ask questions at the conclusion of the judge-led questioning on each topic, rather than at the overall conclusion of the hot-tubbing session.
That issue was addressed in the CJC’s proposed new guidance note for judges and practitioners, which is not being taken forward by the CPRC (see below). However, it was also reflected in the CJC’s proposed re-draft of PD 35.11, which stated that once the judge-led questioning had been completed for “any issue (or all issues)”, the judge may invite parties’ representatives to ask questions of the experts. That amendment has been incorporated in the version approved by the CPRC.
Nature of party questioning: The CJC report also suggested revisions to PD 35.11 aimed at clarifying the nature of the questions to be asked by the parties’ representatives after the judge-led questioning.
The current version of the PD states that such questioning may be designed to test the correctness of an expert’s view or seek clarification of it. The CJC proposed wording to recognise a further legitimate aim for such questioning, namely to elicit evidence on any issue (or on any aspect of an issue) which has been omitted from consideration during the judge-led questioning. This has been adopted in the version approved by the CPRC.
It is also worth noting that the approved version omits the further wording contained in the current PD, which remained unchanged in the CJC redraft, namely that the parties’ questioning “should not cover ground which has been fully explored already” and that “in general a full cross-examination or re-examination is neither necessary nor appropriate”.
Guidance and information notes
In addition to the proposed revisions to PD 35.11, the CJC report proposed supplementing the PD with the following further documents (suggested drafts of which were put forward in the CJC report):
- A new guidance note for judges and practitioners which would address various issues, including identifying factors which might indicate that concurrent evidence was (or was not) appropriate in a particular case.
- A new information note for expert witnesses explaining the hot-tubbing process and how it differs from the traditional manner of giving expert evidence at trial.
The CPRC has made clear its view that such matters are not within its purview. The minutes of its May meeting noted its conclusion that it would not be appropriate within the rules to include signposts to guidance and so on.
Accordingly, if the proposed guidance note for judges and practitioners and the proposed information note for expert witnesses are to be taken forward, it will be a matter for other bodies such as the CJC or the Expert Witness Institute and the Academy of Experts.
Standard directions and questionnaires
The CJC also recommended flagging up the possibility of expert evidence being given concurrently by inserting a further question in the directions questionnaire (or case management information sheet in the Commercial Court and Technology and Construction Court (TCC)) and the listing questionnaire. The proposed wording was: “Do you consider that any part of the oral expert evidence should be given concurrently (see PD 35, para 11)?”
The CPRC has adopted this recommendation, though the questions to be included are somewhat more detailed than those proposed in the CJC report. It is worth noting, in particular, that the question to be added to the directions questionnaire will request an explanation of why a party does not consider the case suitable for concurrent expert evidence (where that is the case). The questions to be added to the listing questionnaire do not include such a request, but instead note that the court may require a party to justify its view that evidence should not be given concurrently.
The CPRC has also made changes to the standard form CMC directions, to include a standard direction for concurrent evidence. Like all standard form directions, this is of course optional.
As noted above, it will be for the CJC and the relevant expert witness bodies to consider whether they wish to take forward the proposed guidance note for judges and practitioners and the proposed information note for expert witnesses, now that the revisions to the PD have been determined.
In the meantime, it will be interesting to see what impact the amendments to PD 35.11, and the associated changes to standard directions and questionnaires, will have – in particular, whether they will lead to a marked increase in the use of hot-tubbing and other alternative techniques for adducing oral expert evidence in English civil litigation. Only time will tell.
Note: The views expressed in this blog post are those of the author and do not necessarily reflect the views of either the CJC working group or the CPRC subcommittee on concurrent evidence.