CJC reports on concurrent expert evidence since implementation of Jackson reforms

CJC reports on concurrent expert evidence since implementation of Jackson reforms
rcjThe Civil Justice Council (CJC) has published its ‘legal and empirical study’ on concurrent expert evidence and ‘hot-tubbing’ in English litigation since the ‘Jackson reforms’. This follows the setting up of a CJC working group to review discrete civil litigation topics including funding and experts.

Update: For a more detailed report on this development by Maura McIntosh, a professional support consultant in the dispute resolution team at Herbert Smith Freehills and deputy chair of the Civil Litigation Review working group’, see: Hot-tubbing in the spotlight—Civil Justice Council report on concurrent expert evidence

In considering how concurrent expert evidence has been operating since April 2013, the CJC considered the extent to which the objectives identified by Sir Rupert Jackson are perceived as having been achieved and made a number of suggestions, including proposed amendments to CPR PD 35.11, a proposed guidance note for judges and practitioners, a proposed information note for expert witnesses, uniformity in the court guides and further training of the judiciary by means of a DVD.

This report is of particular interest to practitioners not only in relation to the future of concurrent expert evidence (including but not limited to hot-tubbing) in England and Wales but also for the practical tips it offers those considering the use of and/or engaged in giving expert evidence concurrently.

Read the report: Concurrent Expert Evidence and Hot-Tubbing in English Litigation since the Jackson Reforms—A Legal and Empirical Study

Practical implications

Practical implications arising from this report include:

  • consider whether concurrent evidence (whether by way of hot-tubbing or some other method as identified on pages 13–17) may be appropriate as early as possible. One of the suggestions made by the CJC working group in this report is that the possibility ought to be highlighted in, among other places, the directions questionnaire (pg 64). Note, however, it is not always possible to decide whether concurrent expert evidence may be appropriate at an early stage, it being recognised that the court will not have seen the expert evidence at the first CMC and so may not be in a position at that stage to determine which is the best method for expert testimony
  • when considering whether or not concurrent evidence may be appropriate to your case, take into account the criteria set out in the CJC working group's proposed guidance notes for judges and practitioners, including the experts' personalities, the need for (and associated cost of) any transcript, the number of proposed experts, etc (see pgs 37–45)
  • do not discount the use of concurrent evidence on the basis of hot-tubbing and/or the process currently set out in CPR 35.11. This report makes clear that hot-tubbing is only one form of concurrent expert evidence (albeit the only one currently represented in the CPR) and sets out a number of other forms that concurrent evidence may take. In the light of this explanation of the different types of concurrent evidence, the report sets out its proposed amendments to CPR PD 35.11 together with proposed guidance for judges and practitioners on how those different forms operate, the circumstances in which they might be appropriate and draft directions for such forms of concurrent evidence (see pgs 13–17, 22–34 and 37–38)
  • any order or direction for concurrent evidence should be communicated to the experts at the earliest opportunity by way of that order being served on them 'forthwith' (see para 13 of the proposed guidance note, pg 48). Note there is also a recommendation that the expert be served, at the same time, with a copy of the proposed information note for expert witnesses (see pg 55)
  • ensure your trial time estimate allows for the additional judicial preparation time it is recognised is required in cases involving concurrent evidence (see pgs 40–41)
  • consider ways in which the courtroom could best be laid out where evidence is to be given concurrently
  • be live to issues of procedural fairness where evidence is to be given concurrently and, in particular, ensure that you are satisfied that the experts will be properly tested on their evidence (pgs 48–53)

For the full findings in the review and report, which contains a detailed consideration of each of the aspects mentioned above together with a full evaluation of the objectives of hot-tubbing, see the PDF copy of the report (which can be accessed here).

For detail on the terms of reference of the CJC working group's review, see News Analysis: CJC working group to review discrete civil litigation topics including funding and experts.

For a more detailed report on this development by Maura McIntosh, a professional support consultant in the dispute resolution team at Herbert Smith Freehills and deputy chair of the Civil Litigation Review working group’, see: Hot-tubbing in the spotlight—Civil Justice Council report on concurrent expert evidence

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About the author:

Virginia specialises in general domestic and international commercial litigation, arbitration and alternative dispute resolution.

Virginia trained, qualified and practiced with Pinsent Masons before moving to Marriott Harrison where she continued in practice for a further seven years.

In practice, Virginia acted in a variety of general commercial disputes covering areas including  intellectual property, fraud, defamation, misrepresentation, breach of contract, debt recovery, breach of restrictive covenants and company and shareholders’ disputes.

Virginia is Head of Dispute Resolution at Lexis®PSL and, when not focused on the strategic development and operational requirements of the Dispute Resolution module, her content work focuses on case management and evidence in civil litigation. She also regularly contributes to the LexisNexis Dispute Resolution Blog.