Business colleagues holding question mark signs in front of thei

Definitely not, if the more obvious interpretation springs to mind.

However, in the context of litigation, ‘hot-tubbing’ is the colloquial term used to describe the giving of concurrent expert evidence: a concept which was introduced into the Civil Procedure Rules following the Jackson reforms.

So could this type of hot tub belong in the court room?  Read on below and let us know what you think…

First things first: what exactly is ‘hot-tubbing’?

In appropriate cases, parties are permitted to instruct expert witnesses to give evidence at trial.  During the course of the proceedings, the experts will prepare their reports, commenting on matters within their expertise, and this will be relied upon as evidence.  At trial, the traditional approach is for each expert to give evidence in the witness box one after the other and then to face cross-examination by opposing Counsel.

The difference with the giving of concurrent evidence (or ‘hot tubbing’), however, is that both expert witnesses will be in the witness box at the same time and the judge will chair a discussion between the experts, using their joint statement to guide the debate.

What are the advantages of using ‘hot-tubbing’?  

The reasons behind the introduction of hot-tubbing were based on effectiveness, efficiency and fairness:

  1. The main advantage of hot-tubbing is its discursive, rather than adversarial, nature which (it is hoped) encourages the experts to focus on issues where they disagree. Experts are therefore required to more thoroughly justify their evidence and this focus on the areas of disagreement may be more constructive than the traditional (limited) interaction between experts.
  2. The increased involvement of experts which arises through the use of hot-tubbing enables the experts to discuss their evidence making use of their own expertise. In many cases the nature of the evidence is such that experts are in a better position to ask each other questions and spot inaccuracies than Counsel are.
  3. From an efficiency perspective, focussing on the areas of disagreement may reduce the length of trial with a consequent reduction in costs. Furthermore, Counsel may need to incur less time ensuring that they understand the technical details of the expert evidence and to prepare their cross-examination, again saving further time and cost.

Why is there not more use of hot-tubbing?

Whilst hot-tubbing is common in Australia, it is a relatively new concept here and many members of the legal profession have some reservations about it. The central concern relates to the loss of control by Counsel when a judge chairs the giving of evidence (rather than Counsel having an opportunity to cross-examine). Counsel cannot choose which areas of the evidence to focus on; the judge may ask the experts questions on areas which weaken a particular side’s case; and the experts may not make all of the points that Counsel would like them to make.

However, judges have a discretionary power as to whether or not they order the use of hot-tubbing, so the low take up so far may be explained by judges having reservations about this relatively new method.  The inquisitorial nature of the role the judges have to employ is unusual in the courts of England and Wales, and may take some time to catch on. Furthermore, judges may feel that they lack sufficient expertise to effectively question the experts on technical aspects of the evidence.

Conclusion

Hot-tubbing is a relatively new concept in the courts of England and Wales so direct experience is rather low at present.  However it seems clear from the above that it could have real advantages in appropriate cases and is therefore an interesting development.

The Civil Justice Council’s Civil Litigation Review Working Group has recently conducted a survey into practitioners’ experience of hot-tubbing in practice and how it may be improved.  It will be interesting to see the results when they are published over the summer.

In the meantime, what are your views?  Can a hot tub belong in a court room? 

For more information, email blogs@gateleyplc.com.


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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.