The 60th Update to CPR, in force from 1st April 2013, amended the Practice Direction (PD) accompanying Part 35 of the CPR. PD35 gives the court the power to order concurrent evidence/hot-tubbing by allowing it to direct that expert witnesses from like disciplines can give their evidence concurrently. It also sets out the procedure to be followed once such a direction has been given.
The Practice Direction 35.11 states:
Concurrent expert evidence
11.1 At any stage in the proceedings the court may direct that some or all of the experts from like disciplines shall give their evidence concurrently. The following procedure shall then apply.
11.2 The court may direct that the parties agree an agenda for the taking of concurrent evidence, based upon the areas of disagreement identified in the experts’ joint statements made pursuant to rule 35.12.
11.3 At the appropriate time the relevant experts will each take the oath or affirm. Unless the court orders otherwise, the experts will then address the items on the agenda in the manner set out in paragraph 11.4.
11.4 In relation to each issue on the agenda, and subject to the judge’s discretion to modify the procedure:
(a) The judge may initiate the discussion by asking the experts, in turn, for their views. Once an expert has expressed a view the judge may ask questions about it. At one or more appropriate stages when questioning a particular expert, the judge may invite the other expert to comment or to ask his own questions of the first expert.
(b) After the process set out in (a) has been completed for all the experts, the parties’ representatives may ask questions of them. While such questioning may be designed to test the correctness of an expert’s view, or seek clarification of it, it should not cover ground which has been fully explored already. In general a full cross-examination or re-examination is neither necessary nor appropriate.
(c) After the process set out in (b) has been completed, the judge may summarise the experts’ different positions on the issue and ask them to confirm or correct that summary.