Concurrent evidence is universally approved, so why aren’t more judges ordering it to take place?

When I am out and about at legal events I quite often meet people who act as expert witnesses.

One of the things I like to ask them about is whether they have ever been involved in ‘hot-tubbing’ – or concurrent evidence, as the courts prefer to call it – whereby both sides’ experts give evidence in a joint session chaired by the judge.

I have yet to meet an expert who has actually given concurrent evidence, but occasionally someone has a colleague who has done it – and the feedback filtering through is always positive.

Allowing the experts to actually discuss their views with one another makes perfect sense to me. The judge can quickly cut to the chase and hone in on the real areas of disagreement. Experts themselves can challenge one another’s reasoning in a far more forensic way than counsel can, because they know the technical issues so much better.

And surely it has to be an improvement on the traditional system, whereby opposing experts’ views are sometimes presented to court weeks apart?

It is easy to see why concurrent evidence works so well, and indeed a Manchester-based pilot of the scheme (admittedly based on a small number of cases) gave it a thumbs up back in 2012, noting that it delivered ‘time and quality benefits’. 

So the question that has been bothering me for a while is, why does hot-tubbing hardly ever actually happen in our courts? Last week, it became apparent that I am not the only one pondering this mystery. Sir Rupert Jackson, delivering a talk to the Law Society’s commercial litigation conference, noted that, outside Manchester where it was piloted, concurrent evidence does not seem to be being used as widely as intended.

In his Final Report in 2010, Jackson had pointed to the success of the technique in the Australian courts and recommended that it should be explored here. 

The topic also came up at the Expert Witness Institute’s annual conference in September, which I attended. Delegates pondered whether the low takeup of hot-tubbing was because barristers didn’t much like the technique, because they might ‘lose control’ of the evidence. But it was pointed out that whether or not concurrent evidence takes place is not actually up to the lawyers on the case; it is down to the judge. And judges just don’t seem to be ordering hot-tubbing in anywhere near as many cases as they could be.

Given the obvious benefits, what could be preventing judges from ordering concurrent evidence? Perhaps it is a natural reluctance to try something new, or perhaps they do not feel adequately trained or prepared for the task. Until someone gives them a sharp nudge in the ribs, it is no doubt tempting for judges to stick to what they know – particularly when they are already grappling with other new concepts such as costs budgeting.

The concurrent evidence technique does require judges to step out of their comfort zone. Chairing the evidence session is more of an inquisitorial role than they are used to – the kind of thing you would expect a French judge to be doing, not a British one. And of course it does require a far more detailed reading of the experts’ submissions than they can get away with under the normal system.

But judges really do need to step up to the plate here. We have a major problem with access to justice in this country, as the courts have become increasingly unaffordable for many. Surely one of the best ways to make litigation more affordable is to cut down on the length of trials. Concurrent evidence is one small way of helping to achieve that, in a way that does not compromise on the fairness of proceedings – in fact, quite the reverse, because the expert evidence can potentially be examined more forensically.

No doubt the judiciary feel they are already facing a lot of change. But by failing to embrace a technique that has the potential to deliver real cost savings to litigants, they are letting down those who seek justice through our courts.

It is time to step out of the judicial comfort zone, and dip a toe in that hot tub.

Rachel Rothwell is editor of Litigation Funding magazine and a former Gazette news editor