Good early signs for ‘hot tubbing’

EWI survey finds Experts giving evidence concurrently – known as ‘hot tubbing’ – is assisting the courts and reducing costs, according to a survey carried out by the Expert Witness Institute (EWI).

The poll of 154 experts also found that half had seen the number of instructions received go up over the past year – while a third had seen their fees rise. But late payment by solicitors was a significant problem.

Though only 15% of the experts surveyed had actually been involved in some way with hot-tubbing – a key innovation introduced by the Jackson reforms but still in its early stages – those who had gone through the process reported that it assisted the court to determine disputed issues of expert evidence, reduced the length of the trial and saved costs.

Some said hot-tubbing was also being used in mediations and early neutral evaluations, while just one respondent felt that the practice achieved nothing. The positive findings echo those of a Civil Justice Council report in August.

A fifth of respondents also reported a growing number of court orders for single joint experts, a shift that on balance found support – while 37% approved of this, 23% said such orders should only be made in very limited circumstances.

The experts were generally happy with the quality of instructions from solicitors (68% agreed that ‘Most are good – they know what they’re doing’), while the rest found them slipshod, increasingly so in some cases due to the strain the solicitors were under.

Less happily, 54% reported having been pressured to change a report, while just 10% said they were paid on time – 42% said they were paid “very late and only after a lot of chasing”. Only 19% said the solicitors always or usually let them know the outcome of the case – which is often linked to when they will eventually be paid.

Perhaps unsurprisingly, there was little love for the Legal Aid Agency among those experts who did legal aid work – some 59% considered the fee rates unsustainable, while 21% thought the agency’s rules too restrictive.

The Rt. Hon Sir Anthony Hooper is chair of EWI and says: “The survey, together with our recent 20th anniversary conference, paint a picture of a dedicated group of people who are open to changes in the way expert evidence is delivered for the benefit of the justice system. Hot-tubbing is a significant reform for expert, judge and lawyer alike and the early signs are encouraging.

“Experts and solicitors must work together. The survey shows that there is room for improvement in the manner in which solicitors treat their expert witnesses”.