Hot-tubbing: new rules and regulations


12 December 2017

“Although our medico-legal expert witness panel appreciate that giving live evidence in person in court is a rare exception now, they understand the importance of keeping up-to-date with significant legal procedural developments like this."

On 21st November 2017 the Practice Directions (PD) to the 93rd Update of the Civil Procedure Rules were made by the Master of the Rolls and approved by the Lord Chancellor. These included the amendments to PD 35 regarding Experts, particularly as Litigation Futures recently reported, various amendments have been made to the procedure of concurrent expert evidence given in court, more informally known as ‘hot-tubbing’.

The amendments to PD 35 include the court’s newly-established freedom to allow experts ‘to be cross-examined on an issue-by-issue basis’ subsequently permitting each party to call their expert(s) ‘to give evidence in relation to a particular issue’ in a concurrent fashion, as opposed to the standard sequential format.

The updated PD 35 does adopt some, but not all of the general principles of the Civil Justice Council (CJC) report on this subject but should still have a positive impact on the way hot-tubbing is conducted as well as its results.

The courts’ ability to set an agenda, initiate discussion with and between the expert witnesses and to allow expert evidence to be given ‘in any appropriate manner’ gives them freedom to adopt the most appropriate method to take expert witness evidence and could further improve the judge’s ability to come to a more informed and well-rounded decision.

As previously commented on, the use, abuse and boundaries of expert advice plays an instrumental part in assisting judges when making decisions concerning disputed issues that require expert opinions. Despite the Civil Procedure Rule Committee (CPRC) choosing the ‘classic’ hot-tubbing approach rather than adopting a wider range of methods, these amendments will seek to facilitate the meaningful exploration of evidence given by an expert witness.

The CJC report states that each approach has different benefits and that it should be determined which is to be used by its suitability for each case. Ultimately, the court may give directions for any of these processes to be used at a trial of the action.

David Stothard, managing director of MAPS Medical Reporting said: “The CJC say that hot-tubbing is improving the quality of evidence which in turn is minimising trial time and helping judges determine disputed issues.

“Although our medico-legal expert witness panel appreciate that giving live evidence in person in court is a rare exception now, they understand the importance of keeping up-to-date with significant legal procedural developments like this.

“The rarity of attending court means that medico-legal expert witnesses must be well briefed by those instructing them. Understanding changes to the way their evidence can be dealt with allows them to fully prepare to address the issues in dispute as the court requires. This is fundamental to them being able to discharge their overriding obligation to the court when giving their evidence.”