Amendments to Practice Direction 35.11, which governs the procedure for concurrent expert evidence, or “hot-tubbing”, have now come into force after receiving ministerial sign-off on Tuesday this week. The amendments implement a number of recommendations made by the Civil Justice Council report on Concurrent Expert Evidence & ‘Hot-Tubbing’ in English Litigation since the ‘Jackson Reforms’ which was published on 1 August 2016. Key changes are as follows:
- The new PD 35.11 expressly recognises the possibility of expert evidence being given on an issue-by-issue basis, so that all parties’ experts give their evidence and are cross-examined in relation to a particular issue before moving on to the next issue. The CJC report identified this as a technique that was used in practice, but which had not (until now) been given formal recognition in the CPR.
- The new provision makes it clear that more than one technique may be used for different parts of the expert evidence in a particular discipline, potentially using a hybrid of concurrent evidence, evidence on an issue-by issue basis, and traditional cross-examination.
- Where evidence is to be given concurrently or on an issue-by-issue basis, the new PD makes it clear that (i) the court may set the agenda for taking the evidence, as an alternative to directing the parties to agree the agenda, and (ii) where the parties agree the agenda, it is subject to the court’s approval.
- The new PD 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.
- The new version states that the questioning by party representatives may be directed toward eliciting evidence on any aspect that has been omitted from consideration up to that point – as well as testing the correctness and/or seeking clarification of the expert’s view. It omits the wording which 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.
The possibility of expert evidence being given concurrently is also to be flagged with a new question in the directions and listing questionnaires, as well as a new standard direction, but these changes do not yet appear to have been put through to the online versions of the forms.