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316 PROFESSION 126 I New law Journal
Jackson &IIhot tubbingll
Graham Hain explains the
implications of Lord Jackson's
proposal for "concurrent evidence"
A
fter 12 months, several thousand
pages ofwritten submissions and
many meetings and surveys, Lord
Justice Jacksoll produced his final repan
on dvillitigation costs.
As is to be expected ofa 584-page
document, there is much to digest-not
least the 109 recommendations. Of
panicular interest to the expert wimess
community is the recommendation (80 of
109) to pilot the procedure of"concurrent
evidence", colloquially known as "hot
tubbing". Concurrenc evidence provides
for multiple experts in a case to be sworn
in together to allow the court to hear their
(potentially differing) opinions at the same
time. 'Ibis procedure isn't new-it has
been in operation in Australia for a decade
and there are proposals for its use in the
Canadian Federal Coun,
Quality of evidence
,(fhereas Jackson LJ highlighted
concurrent evidence as one proposal to
control litigation costs, the main reason for
using the procedure in Australia appears
to be to increase the quality ofevidence
available to the court, New Somh '('ales
Supreme COllrt Judge Peter McClellan, a
well known proponent of the procedure,
is quoted as saying: "'" ,a lot ofhighly
qualified professional people were not
prepared to become involved in gh·ing
evidence in che adversary process. The)'
didn't see it as fair...The}' saw it rather as a
contest with winners and losers."
In m}' own field ofaccountancy, I see
no shortage ofpeople prepared co take
experr instructions and gh-:e evidence. The
vast majority ofexpert evidence is ofa high
quality and there are genuine reasons for
experts not agreeing on some issues, By
hearing evidence concurrently, che courr
hears the full range ofopinion at the same
time. McClellan Jhas also referred to this
particular benefit ofconcurrent evidence:
"...it's much easier for the judge then to work
out who they are going to accept ifthere's a
real disagreement bern'een the expens."
"Hot tubbing" procedure
But how will "hot tubbing" work in
practice? The process will be directed
by the judge and will involve him or
her, as well as the barristers, questioning
the experts. Experts may make opening
statements and even challenge each other's
evidence. It will therefore be vital that a
chosel.l expert is not only able to defend
his or her own position, but also able to
challenge and ctiticise another expert's
opinion. while remaining independent and
impartial.
Man}' experts will no doubt have shared
my experience ofsitting in a courtroom
listening to another expert give evidence who
makes a statement with which you disagree
and wish to comment on. 111i$ normally
means scribbling notes frantically which are
passed fonvard through the solicitor.
Concurrent evidence would allow the
expert to respond immediately. which
perhaps explains why there is opposition
to the procedure. With the present system.
counsel retains a significant level ofcontrol
oyer the examination ofexperts. Some
ofthat control would be lost, making it
e"en more important to choose an expert
witness experienced in giving evidence.
"Hot tubbing" would certainly represent an
important departure from the adyersatial
system. In some fields, there may be few
experts prepared to accept instructions,
lhile the Australian experience, at least
in the view ofMcClellanJ, is that more
experts are prepared to engage in concurrent
evidence than adversarial cross-examination,
my personal view is that cross-examination
by afellow technical expert-as well as
a barrister-may further dissuade those
would-be experts who arc not full-time
forensic practitioners.
Should the Supreme Court decide
to remove the blanket immunity from
suit in relation to evidence given in civil
proceedings (seeJones 11 Kaney [2010] All
ER (D) 131 Uan», I envisage that many
"occasional" experts may be discouraged
from engaging in the process altogether.
Expert witness selection
Even ifsuch experts are willing to accept
expert witness instnIctions, solicitors may
prefer to appoint those practitioners with
courtroom experience, thus making it
harder for first-time experts to get that
experience-the proverbial "chicken
and egg" problem. When selecting an
expert, solicitors mar look to experts
who give their evidence in a confident,
straightforward manner, who aren't afraid
to openl)' challenge the position of others;
preferring them over experts who are
competent technically, but who are more
reserved.
So does concurrent evidence achieve
its objectives of reducing cost and
increasing the qualil}' of evidence? 111e
answer depends on who you speak to. A
2009 study b}' Gat}' Edmond, associate
professor oflaw at the University of New
South Wales concluded that on the whole
lawyers dislike the procedures: "...
especially the idiosyncratic ways in which
the}' are implemented by the...individual
judges.". In contrast, experts were:
"...generally favourably disposed toward
concurrent evidence".
Associate Professor Edmond concludes
his study by saying: ''Even when experts and
lawyers cooperate and the procedures reduce
the length ofthe proceedings, concurrent
evidence can leave the fact finder with a
messy transcript and conflicting reports,
and it can require more pretrial acth'ity and
impose higher costs on the parties."
In my experience, courtroom expenses
represent a small proportion ofthe overall
costS incurred with experts, the majority
oftime being spent on drafting the expert
report, answering written questions,
meeting the other expert and producing the
joint statement. Any reduction in time in
the box will only have a minimal effect on
the overall COSts ofexpertS.
Whatever the rationale for introducing
concurrent evidence, ifthe recommended
pilots go ahead, there will be significant
change for lawyers, judges and experts
invoh'ed. mID
Graham Hain h an a.'i~(]cb[e director in the
forensic sen'ices group al Smilh &
X'iIIiamson, rhe accoumancy and
professional snvices group. E-m'lil:GmhtUlI.
/laiIl0I,iJ/Jitb. wi//;(IIIlJM), (11, fIk
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