On 22 November 2017, amendments to CPR Practice Direction 35.11 (CPR PD 35.11) came into force, implementing a number of recommendations made by the Civil Justice Council (CJC) report on concurrent expert evidence and ‘hot-tubbing’ in English litigation since the ‘Jackson Reforms’. The changes are considered below by Maura McIntosh, a professional support consultant in the dispute resolution team at Herbert Smith Freehills, deputy chair of the working group behind the CJC report, and co-opted member of the Civil Procedure Rule Committee’s hot-tubbing sub-committee.
The new CPR PD 35.11 is all about flexibility. It does not aim to make hot-tubbing the default option for expert evidence, reflecting the view of both the CJC working group and the hot-tubbing sub-committee that the technique will not be suitable in every case. The hope is, rather, that it will facilitate the use of hot-tubbing in appropriate cases and encourage its increased acceptance among judges and practitioners.
Not ‘one-size-fits all’
The CJC report identified that, in considering how expert evidence should be given, courts do not have a binary choice between ‘pure’ hot-tubbing, where the experts are sworn in and give their evidence together in the form of a discussion chaired by the judge, and traditional cross-examination. There is in fact a much more varied picture. For more information on the CJC report, see: Hot-tubbing in the spotlight—Civil Justice Council report on concurrent expert evidence—Civil Justice Council report on concurrent expert evidence.
The new CPR PD 35.11 recognises that variety. It provides that ‘some or all’ of the expert evidence in a particular discipline may be given concurrently, and to the extent it is not given concurrently the court may direct the evidence to be given ‘in any appropriate manner’. This makes it clear that different approaches may be taken to different aspects of the expert evidence, allowing for various ‘hybrid’ techniques.
One technique given express mention is the possibility of expert evidence being given on an ‘issue-by-issue’ basis, so that all the parties’ experts give evidence and are cross-examined in relation to a particular issue before moving on to the next issue. As the CJC report noted, this was a technique that was already used in practice, but which was not formally recognised in the CPR. The amendments to CPR PD 35.11 rectify that omission.
A key difference between the new CPR PD 35.11 and the draft put forward in the CJC report is in the use of terminology. In the CJC report, ‘issue-by-issue’ evidence and the various hybrid techniques were included within the umbrella of ‘concurrent expert evidence’, which meant a new term had to be coined for ‘pure’ hot-tubbing (namely ‘judge-led joint examination of experts’ or ‘JJEE’). The new CPR PD 35.11, in contrast, reverts to the previous terminology, using ‘concurrent expert evidence’ as synonymous with hot-tubbing. But it still recognises the variety of techniques available.
Setting the agenda
The previous version of CPR PD 35.11 provided that the court could direct the parties to agree an agenda for the taking of concurrent evidence, based on the areas of disagreement identified in the experts’ joint statements.
The CJC report noted, however, that some judges prefer to set the agenda themselves, for various reasons including a tendency on behalf of some parties to expand the agenda unnecessarily. It therefore recommended that a revised practice direction should flag that the agenda could be set by the court, and that if prepared by the parties it would be subject to court approval.
The new CPR PD 35.11 implements this recommendation, making it clear that the court may set the agenda, or may direct that the parties agree the agenda subject to the approval of the court.
Testing the evidence
The new CPR PD 35.11 clarifies that, where evidence is given concurrently, the court may invite the parties’ representatives to ask questions of the experts once the judge’s questioning has been completed for any issue, rather than waiting until the conclusion of the judge’s questioning overall.
This reflects a concern noted in the CJC report that, where a hot-tub is used, the parties must still have (and feel that they have) a sufficient opportunity to test the opposing experts’ views. Without that opportunity, there is a potential risk to procedural fairness, if, for example, more nuanced points fail to emerge when they would have been brought out on cross-examination. That risk may be heightened where parties’ legal representatives are not able to ask questions until the conclusion of the process; the discussion moves on, and the opportunity to draw out the point may be lost. Express recognition of the potential for party questioning at an earlier stage is therefore welcome.
To the same end, the new CPR PD 35.11 clarifies that the questioning by party representatives may be directed toward eliciting evidence on any issue, or any aspect of an issue, that has been omitted from consideration during the presentation of the evidence up to that point – as well as testing the correctness and/or seeking clarification of the expert’s view, as per the previous version of the Practice Direction.
In addition, the new CPR PD 35.11 omits the wording that appeared previously, that such 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’. That is not to say that a full cross-examination or re-examination will be appropriate; the watchword, again, is flexibility. As a matter of case management, it will be up to the court to strike the right balance, adopting an efficient process while ensuring all parties have a fair chance to put their case.
A number of other changes are being made to increase awareness of hot-tubbing and encourage its use. In particular, new questions are to be added to the directions and listing questionnaires to explore whether the parties consider the case suitable for concurrent expert evidence, and if not why not. A new (optional) standard direction dealing with concurrent expert evidence is also to be introduced. At the time of writing, however, these changes had not yet been put through to the online versions of the documents.
The CJC report also recommended a new guidance note for judges and practitioners and an information note for experts. However, the CPRC took the view that these matters were outside its remit. Accordingly, if they are to be taken forward, it will be a matter for other bodies such as the CJC or the Expert Witness Institute and Academy of Experts.
The views expressed in this article are those of the author and do not necessarily reflect the views of either the CJC working group or the CPRC hot-tubbing sub-committee.