Hello. My name is Alice, hard drink. And I welcome you to this data Long webinar on hot tubbing of expert witnesses. During the course of the next 30 minutes or so, I'm gonna be giving you a guide, Teoh what has become known as hot tubbing? That is where experts in a particular civil case will actually give their evidence. Concurrently, both experts will be in the witness box at the same time. What I'm gonna do is obviously talk a little bit about the concept and then give you a bit of a history lesson as to how it has developed over recent years. Because it is a relatively new concept. I'm then going to talk about the old procedure that usedto exist in England and Wales. And then the changes that came into force in November of 2017 to the existing procedure which is contained within CPR part 35 the accompanying practice direction. I'm then gonna look to the future and give you my own view on what I consider to be the advantages and disadvantages off Hot tubby. Well, what is it? Well, it's not the experts getting into a Jacuzzi or a spar on having a lovely time together. What a. So I've already said. What it essentially is is where both experts in case one for the claimant one for the defendant may have diametrically opposed views on certain issues. And what hot tubbing allows for is both of those experts to give their evidence At the same time, as far as England and Wales is concerned, the concept was introduced in April 2000 and 13 on a pilot scheme was run. And I'll tell you a bit more about that in a moment on the advantage off it or the principal advantage the judge hears from both experts. At the same time, Onda as was the case back in April 2013 the judge could have a discussion with the experts. He could test the various bits of evidence upon which they were disagreed on. Then the parties themselves would get involved in the discussion. But the origin of the practice actually didn't develop here. It actually developed in Australia, originally in the Competition tribunal in Australia, on following a trial run, their it subsequently spread to the Supreme Court off New South Wales on in essence, What happened under the Australian system was that the experts would meet pretrial to determine those areas upon which they were agreed on those areas upon which they disagreed. Now, Lord Justice Jackson in his report on costumes, which many of which many of you will be aware, paragraph 38 of that report in particular stated that concurrent expert evidence or hot tubbing would be piloted in the U. K. But only where the parties to the litigation, the experts, the lawyers and the judges all consented to it being used. So in other words, when it was first introduced as a concept, it was very much by agreement only it was not mandatory. It was not obligatory on. It was only where everyone agreed. The pilot ski was actually run between 2010 and 2013 in the Manchester Specialist Courts. The whole process of hot tubbing and the use of it was overseen by his honor. Judge David Waxman QC, on all the findings and use of it was monitored by Dame Hazel Glenn from University College, London. It is not an understatement to say that the results off the use of hot tubbing were very much a success on this ultimately led to paragraph 11 being added to practice direction at 35 and from the first of April of 2000 and 13 it was quite clear that at any stage in the proceedings, the court may direct that some or all of the ever ever experts of light disciplines shall give their expert give their evidence concurrently on where concurrent evidence wants to be given. The following procedure would apply. Firstly, the court would direct the parties to a degree and agenda for the taking off concurrent evidence. This would be based upon the areas of disagreement between the experts that would have been put forward in their joint statements. The old procedure then was that the X both experts would take the oath or a firm on. Then the experts would address the areas of disagreement between the discussion with the experts was initiated by the judge on. But it was the judge that took the initiative to start the discussion between the Parsons on asked them for their views on the L on the particular matter in dispute. Once one expert had given their view, the judge was permitted to ask questions about it. And indeed, the judge had. According to the old version, the judge could then invite the other expert to comment on what they had just heard after the judge had done all the areas of disagreement with the experts and had questioned both the parties. Representatives were then invited to ask any questions they had. But under the old system, it was very much the case that the Advocate should not cover ground, which had already been covered by the judge except where such things needed to be clarified. For example, if a neck spurt have given an answer to a judge that wasn't clear to the advocate friendly advocate, they could ask supplementary questions. So is to get the expert to clarify that particular issue. But what the practice direction used to say was that a full cross examination or re examination will rarely be necessary. It was very much envisaged that this process would be judge land, with the advocates playing aim or minimal role in the actual taking off the expert evidence. So once the judge had asked his or her questions of the both experts on if the advocate wanted to, then conduct a full cross examination, it was highly likely that he would be he or she would be prevented from doing so once any clarification had been sort or other questions asked by the lawyers. The judge would then summarize the part. The experts, different positions. I would summarize that orally on asked both the experts while they were still in the witness box to confirm or correct the judge's summary that has been given. What the judge would then do is move onto the next set of expert witnesses if that was applicable or indeed onto other evidence. So what lessons were learned from the process of hot tubbing post the first of April 2000 and 13? Well, in May of 2016 a survey was carried out by Lord Justice Jackson's judicial assistant, on it's fair to say that that survey of judges gave rise to a diverse range of responses. Firstly, some judges had never used it and in fact, going one stage further. Some judges have never heard of it. Secondly, some judges said that they were using it, and we're getting to grips with it. But it was still in the very early stages of the process. Aunt. Thirdly, and perhaps surprisingly, some judges said that they were using it all the time on found it to quote one per one. Judge in survey. Amazing. So the results were exceedingly encouraging. What about reported cases that might be available to assist you with the taking of concurrent expert evidence? Well, I draw to your attention the very useful decision of Mr Justice Roth in the street map on Google case because in that particular case where expert evidence was required, Mr Justice Roth decided that concurrent expert evidence or hot tubbing waas the way to go on. Indeed, Mr Justice Roth, in the judgment, observes that it saved a great deal of court time by having both of the experts giving their evidence at the same time. And he went on to say, But from a judicial point of view, it also helped highlight the differences between the experts. Why, because they're there in the witness box at the same time, it wasn't the case that on day two of the trial, Mr Justice Roth was hearing from the claimants expert on Sunday 24 of the trial he was hearing from the defendant's expert, therefore putting a lot of Mao a long period of time between the diametrically opposed views of the experts by having them there at once. It was a great benefit to the judge. If you want to see and read some of his more particular comments, do have a look at paragraph 47 of the judgment on then more generally, a paragraph 132 on ones as a result of the survey that was carried out by Lord Justice Jackson's judicial system there waas in November of 2017 and in particular the 22nd of November of 2017. Implementations of a number of the recommendations from the survey on day Civil Justice Council report on I now turn to a consideration off those changes changes that now dictates modern practice off hot tub. Firstly and primarily, CPR 35 paragraph 11 is all about flexibility. There is no intention on the part of the procedural lawmakers to thrust hot tubbing on judges and parties in every single case on, there's no intention on the part of the procedural lawmakers to make hot tubbing the default option for expert evidence. They say the technique and I think this is right will not be suitable in every case. What they do say is encouraged judges to use it in appropriate cases on encourage its increased acceptance among practitioners on judges. So what off the changes that came into force on the 22nd of November 2017? Well, I think primarily it's this. It's the flexibility. It's the recognition off the variety of approaches that a judge in taking a case to the giving off expert evidence the practice direction now says that some or all off the expert evidence in a particular discipline may be given concurrently. So it may well be the case in a particular matter that the judge takes the view. If there are six areas of disagreement between the expert experts that that he or she will hear concurrent evidence on issues 123 and then reverts to the traditional manner off examination in chief, cross examination reexamination in respect off the other three issues on if the judge isn't going to take the expert evidence concurrently, the judge may direct that the evidence may be given in any appropriate manner, so it gives a great deal of discretion to the judge as to how that evidence is gonna come about on. Indeed, various hybrid techniques may be developed and take a judge's taking different approaches to different aspects of the case, which again goes back to the issue off flexibility. One of the other changes that came in in November of 2017 is the emphasis on dealing with matters on an issue by issue basis. This is now expressly permitted by the amendments that came in in November 2017 on I've already given You an example of that. Essentially, what will happen is that if a judge identifies six areas of disagreement between two experts, he or she may deal with some of them concurrently, or some of them in the old fashioned way on that is looking at it in terms off individual issues, not the experts report or evidence as, ah, hole, the other thing Teoh mention that came in with the changes. The agenda. You'll remember that I mentioned earlier that parties used to agree on agenda as to how the concurrent evidence would be taken. That was the previous version. The evidence the experts would seek to agree the agenda for the taking of concurrent evidence based on the areas of agreement. But the Civil Justice Council report noted that some judges like to set their own agenda, and I think that's absolutely right, because if the judge is the person who is actually leading the discussion to begin with on the evidence and is questioning the experts, judges would not want to be saddled by an agenda set by the parties or their legal advisers. Therefore, new Practice Direction 35 implements this recommendation. It makes it clear that the court may set the agenda. In other words, the judge can take the bull by the horns on deal with matters themselves. Or indeed, the parties can be directed to agree the agenda subject to the approval of the court. So whilst the pipe well, judges still have the power to direct the parties to agree the agenda, that agenda must be approved by the court in order for it to have any effect whatsoever on their four judges now have a greater degree of control over the areas in which hot tubbing will be performed, whether on an issue by issue basis on the running order for the various issues and how that evidence is best going to come about for the benefit of the judge when it comes to writing his or her judgment. Another change that came in in November 2017 is a small point, but an important point in relation to the testing off the evidence. Now this assumes that evidence is being given concurrently on you'll recall from my a little history lesson a short time ago that what you what used to happen is that the judge would lead the discussion he would he or she would ask questions of parties. Experts on then the party's legal representatives will be asked, will be allowed to ask any questions that they may have. The new version actually encompasses what I've been talking about in terms of an issue by issue basis, because what can now happen is that let's say a judge invites both experts to give their views and question them about issue one in a case rather than waiting until the judge has finished all his or her questions on all the issues, the judge now has the opportunity to invite the party's representatives to ask any questions they have of the expert as an issue by issue basis. So the conclusion of the judges questioning on issue one the party's representatives will be invited to ask any questions, whether by clarification in chief or cross examination on that particular point. In the same vein, the new practice direction does clarify that the representatives questioning may be directed towards a listing evidence on any issue or indeed any aspect of any issue that thus far has been omitted from the evidence. So in other words, if the representatives think that the judge has missed something in their questioning of the experts, the opportunity exists for the advocate to bring that into evidence on. Of course, the advocates are still able to test the correctness or seek clarification off, the experts view further the removal of the original wording that questioning should not cover ground already covered has been removed. Also, the wording, as we saw in the history lesson that there should not be full cross examination or re examination that has also been removed from the practice direction. Of course it won't be necessary in every single case because matters will have been covered by the advocates after the judge's questioning on each issue on the judge, may have dealt with it. But of course, as I said at the start, when looking at the changes to practice Direction 35 CPR 35 the key issue is flexibility. This is an area of the giving of evidence where flexibility is everything. There is no set way of doing it. It's up to the judge in the party's in each individual case as to how to best illicit that evidence from the experts on. Of course, I make this point clear. There must be fairness to each party. It's not as though the judge can take us with a biased view of the expert and not permit questioning by an advocate. As long as both parties, in respect of each advocate, each expert, are on unequal footing, then this will lead to efficient expert evidence being given looking now to the future. What do I see? Are the key advantages off this hot tubbing exercise, placing these experts in the witness box at the same time? Well, firstly, and for those of you who've read any judgement of the high court, you will know that very often judges will set out painstakingly and in some detail the expert evidence that they have heard in a particular case on by allowing the experts toe hopped up and deal with it on issue by issue basis. In my opinion, that is of great assistance to a judge when working through the issues that are in dispute Now, when I mean issues in dispute. I mean both those that have been identified by the parties through the particulars of claim and the defense, but also the areas of disagreement between the experts on particular points, because the judge's note of the evidence is not gonna have claimants view on Page 22 of his note on defendants view on page, 137 of the note. What the judge could do is draw a line down the page, set out the issue and have each experts explanation of their position on that issue clearly set out at the same time, that without doubt will certainly cut down the amount of time that it will take for a judge to put together a judgment when expert evidence has been given. Secondly, on another, um, or practical level because the experts are in the witness box at the same time. This will assist the judge in evaluating the experts opinion and reasoning there and then the two of them together, the judge can see how they react to one another. The judge can see how they give their evidence at the same time on sometimes that can be crucial because very often judges will be faced with diametrically opposed views from experts on. In some cases, the only way to differentiate between the two is who was the more credible under questioning by a judge or cross examination by one of the advocates by having them both there at the same time, the judge can see the way that they react. He or she can see the way that they perform in evidence on will no doubt speed up the process to the judge, taking a view on which expert is in fact, the more credible. The third advantage to hot tubbing, of course, is the judge taking control on, in my opinion, having dealt with expert evidence for a number of years very often in cross examination of an expert, an expert can become defensive off course, one would learn through experience, and one would teach in what, when one is teaching the cross examination of experts that in fact, you want to start structuring with stuff with which the opposing expert is going to agree the UN controversial stuff and then lead in to the areas of disagreement, putting your own case as you go In cross examination, though, experts tend to become defensive, they perceive the opposing advocate as the enemy on. They really want to engage too much with the Advocate, and they will go on the defensive by removing the formal skill or art of cross examination. From the first stage of the process, the judge may well establish farm or with an expert than they would otherwise have done. Why? Because the expert in hot tubbing is going to be more open. They're going to be less defensive on. They're going to take the view that it is far easier. It's far more comfortable for them to give their views on a particular issue in a particular case flowing on from that. It may be the case, and I'm not saying it's gonna happen in every single matter, but of course, If an expert is less defensive, they may be more likely to concede particular points in hot topic now that can either work to your advantage or your disadvantage, depending on which party you're representing. But at least the lack of the defensive nature of the expert may make them more amenable to making concessions where appropriate again, where concessions are made. That narrows the evidence between the parties and narrows the issues that the judge is going to have to determine on that can only be in terms of speed. Penis, Onda, swiftness of the litigation. A very good thing. The fifth advantage, in my view, is that there? I mean no disrespect to my fellow advocates. There is a greater focus on the issues in dispute. It's very easy when cross examining an expert in the usual way to go off tangents on. I think we've all seen it. The judge develops if he or she is right handed the left elbow routine. The head goes down on their wondering Why all these questions being asked? Certainly, with hot tubbing, there is a greater focus on each of the individual issues upon which the experts are disagreed on again. That is a good thing to assist the judge. Finally, another practical issue really is in terms of the party's costs at trial. Certainly the concept of hot tubbing and certainly the pilot that was run by Judge Waxman up in Manchester revealed that in fact, there was a greater reduction in time for expert evidence during trials. The actual process of giving expert evidence was far swifter that it otherwise would have been had been done in the traditional way. So for all those reasons, I think hot tubbing is a very good thing and is something that judges and practitioners should embrace moving forward into the future. However, I'm now gonna argue against myself. What do I perceive to be the disadvantages? Firstly, and I mean no disrespect to members of the judiciary on this, all of whom have had glittering careers at the bar or a solicitor's. But in my opinion, expert, Queen's counsel and leading juniors and indeed, Jr are better place to cross examine expert. If one thinks of a trial on one thinks of the preparation that an advocate does for a trial, he or she will know that case inside out. He or she will have analyzed this that case mawr than a judge will have done. Who has received the papers two weeks in advance on has had a read of them. The judge in every case still remains an outsider. He or she does not know as much as the advocates do when that trial gets underway on, therefore depending on the judge and some judges may not be as good at this as others. There may be an argument to say the council are better place to carry out that cross examination. But of course, the new version of CPR 35 does permit and removes that requirement that cross examination will be really be necessary. At least the advocate can pick up on the issues that the judge has not identified as part of the discussion. The other disadvantage of hot tubbing is that the advocate, all the expert, may be deprived off, making certain points that they wish to make. However, as I've said, the amendments, CPR 35 do go some way to address that. The advocate is always gonna have or should have the opportunity in each case to do a mopping up exercise to make sure that all the evidence that needs to be covered in a lot the issues with a particular expert have been covered, whether in chief or in cross examination for the judge. Ah, third disadvantage relates to which cases may or may not be suitable for hot tubbing. This is largely a matter for the judge to determine. But of course, some cases and some issues in the case may be more amenable to cross examination in the old fashioned way, rather than the hot tubbing exercise on what we don't have from the C. J C report or from Lord Justice Jackson are those cases in which hot tubbing will be suitable? I can understand why, because the emphasis is I've sent before is on flexibility. Just how that flexibility will be operated by the judge in the party's in a case. It is very difficult to say. Fifth, Li L. Fourthly, is there really a cost saving part of the survey that was carried out leading up to 2016 revealed that in some cases there wasn't cost saving, but in reality, all parties were still expending large amounts of money in terms of costs in actually preparing the experts for the hot tubbing exercise. So in terms of the actual financial saving to a client, I'm not too sure whether it's actually going to make too much of a difference. Finally, and again, this is a a personal observation on experts. It is, without doubt the case that some experts will be mawr experience than others, simply through experience or simply through the number of times that they have given live evidence in court. One of my concerns is that if you do carry out hot tubbing exercise on, you have a stronger expert versus a week our expert in the box. At the same time, it may well be the case that dominating personalities will take over on. It may be that a judge will be swayed by that dominating personality they may. They may know. I don't know what I don't want to see. Where Hot tubbing is used is simply one expert railroading the other. Because if that particular expert at the taking of expert evidence had been done in the old fashioned way of putting the report cross examine etcetera at different times in a trial, it may well be the weaker expert will come across as more incredible. Well, there we are. That's all I really have to say about hot coming. I hope that's been useful. I hope in some of the cases that you do, you will have the opportunity to see hot tubbing inaction. The only thing I would add in that I haven't mentioned is that certainly with the experts that I've dealt with when we've done a hot tubbing exercise, it can be a lot of fun on it. Certainly, in my opinion, is the way forward for the future. Notwithstanding the disadvantages that I have sought to highlight. I think he was always for your attention on Wish you well in the future.
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