In the Hot Tub on a Monday evening

11 June 2018 – the First Business and Property Court Forum Event

You will perhaps recall my extended invitation, originated from HH Judge Kramer, to a forum organised by the Business and Property Court in Newcastle, on Monday 11 June 2018, on the subject of Expert Hot Tubbing, at Northumbria Law School.

I attended with three of my colleagues from Watson Burton, Anne-Marie Knight, Lauren Whiting and Adam Dymock, seduced, I suspect, by the promise of an entertaining evening. I am grateful for their company.

It was a pleasure to meet there some of my new collaborators, which were present because of my invitation, but also people whom I had known for years and with whom I have worked. As always, a delight to meet HH Judge Kramer, the gracious host.

The speakers were all very high calibre and their talks were informative and most importantly, based on real life experience. We had the privilege of hearing :

–      His Honour Judge Freedman, Designated Civil Judge for Newcastle,

–      Bart Kavanagh of Probyn Miers, Chartered Architect and Barrister (non-practising)

–      Professor Tony Ward and Ann Plenderleith Ferguson, of Northumbria University.

The speakers were an ideal mix, offering three different angles of the same subject, which is of course the Concurrent Expert Evidence.

His Honour Judge Freedman offered the perspective from behind the bench, from the Judge who directs the Hot Tubbing and who is placed in the position of being inquisitorial, and driven by the aim of narrowing down the issues, the areas of disagreement between the experts, and , I suspect, the aim of really understanding what he has to decide upon. I can see how the presence in court of the opposing experts is helpful for the Judge. It does offer a splendid opportunity to ask all the questions, to understand what it is all about, and to obtain answers straight away, not within any number of days or weeks. I can see this practice furthering the overriding objective. It is, however, at the expense of the Judge’s time. It implies more preparation time for the Judge before the hearing, and a very careful examination of the expert reports, maybe more than once. You see, lawyers are not experts. Judges are lawyers, in most cases. It must be kept in mind that many elements of the Expert Reports, especially highly technical or scientific ones, will find an unspoiled mind in the Judge, Counsel, Solicitors. The opportunity of having all the grey areas turned into bright colours of understanding is priceless. His Honour Judge Freedman had the opportunity to experience the Hot Tubbing in his court on three occasions, and although he was yet to be fully convinced this practice will develop more, he found it useful. Not least because, as it happens in this cases, the Judge is the one in charge of the hot water tap that fills the bath.

Bart Kavanagh offered the Expert’s perspective. That is, view from the hot tub, in which he had the pleasure of being placed twice so far. The most interesting point I took from his talk was that concessions are more likely to be made by the Experts during hot tubbing, than in the traditional way of dealing with expert evidence.  Also, that, for the Experts, is a very stressful experience and at times draining due to the pressure, length of time the questioning takes in court, sometimes hostility. There is nowhere to hide. One can’t just sit back, relax and answer questions on paper. It’s face to face. There is no thinking time. Answers are requested immediately. Answers are sometimes not the desired ones. For the scientist, accountant, architect, medical professional, actuary etc. it can be daunting, overwhelming, somehow scary, no matter how good the Expert is in his/her particular field.

This worries me, in light of the discovery that concessions are more likely to me made in the hot tub. What if a damaging concession is made under pressure? It’s not like one can take it back. We all know that at times being scrupulous is not considered a virtue by some. I asked this question at the QA time at the end of the forum, and I heard that there is a belief that the presence of advocates in court is sufficient to safeguard the Experts. Tony Ward, however, agreed with me that there is a danger here.

Professor Tony Ward and Ann Plenderleith Ferguson provided the helicopter view of the academics. Their talk was centred on the research they have done on this matter and on the unbiased findings that resulted. They published, together with Gary Edmond, an article under the title “Assessing Concurrent Expert Evidence” in C.J.Q, just a couple of days ago. Ann was kind enough to hand me an uncorrected proof of the article, which I have since read fully and I wholeheartedly recommend. The article, and their talk on the night, took a critical and sceptical look at the evidence available, in particular the report of the Civil Justice Council working party and the 31 published judgments (up to 31 October 2017) in which Judges in any of the UK jurisdictions discuss concurrent evidence. It turned out that the available evidence as to whether this practice saves time and money is limited and equivocal. Further, there is no guidance as to which cases are more suited for concurrent expert evidence.

For me it was refreshing to see this critical analysis of the evidence. I welcomed it and I feel it’s needed, to keep us all anchored. Some cases are suited for hot tubbing, some are not. Some judges will welcome this change in practice, some will resent it. Time will tell, but I do agree that more evidence is needed.

What it is yet to be assessed and understood is the impact of hot tubbing on costs budgeting. Does it go in the Expert phase? Do we put it down as a contingency, as at the time of  budgeting we don’t know whether it will happen or not? I am looking forward to that and I am hoping there will be some guidance.

The three perspectives (Judge, Expert and Researcher) struck the right balance, by offering information while leaving room for us to draw our own conclusions.

I admit I left the forum more knowledgeable. So hot tubbing really means what it says on the label. Very clearly, two people sitting in a hot tub in court, at the mercy of a hot water tap that they cannot control. It is bound to boil down any outstanding issues.

Just so you know, the next Business and Property Court forum will be held in October, on a date to be confirmed.

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