Hot tubbing with Lord Justice Jackson
This
is not the first time we've had the opportunity to discuss hot
tubbing in Advisory Bites – so it's unlikely many readers will have
visions of champagne and rooftop vistas now we mention it again. But
some may be surprised to hear that the subject is of particular
interest to Lord Justice Jackson, who asked BDO to host a meeting to
provide feedback for him.
For many months now Lord Justice Jackson's name has been a permanent fixture on legal news pages. His forthcoming report into litigation funding and costs will have profound effects across the industry, and the recommendations it will contain are being anticipated with considerable interest.
Hot tubbing is a logical area for Lord Justice Jackson to consider. Allowing a judge to directly question expert witnesses from both sides together offers obvious advantages over the traditional barrister-led system in terms of time and therefore cost.
Brent Wilkinson, a Forensic Partner at BDO, explains further: "When both experts discuss the same point at the same time it's much easier to understand their respective views, and thus deal with the issues. Barristers may deal with experts weeks apart, and there's no guarantee that they'll ask the questions the judge needs to hear.
"With hot tubbing, the judge can ask exactly what he wants, and take subjects in turn – for example in financial cases he may deal with gross profit margins, then lost turnover and so on, until he feels he has all the information he needs." The experts can also be given the opportunity to ask each other questions during the process, so there's no danger that any aspects are overlooked.
The idea is still in its infancy in this country’s courts, but BDO has been closely involved with a key pilot project being carried out in Manchester, representing both chartered accountants and expert witnesses on the Mercantile Court user committee. This is why Lord Jackson turned to the firm when he wanted to find out more.
"We have very close links with the Northern Commercial Bar Association, with whom we had presented a role play mock trial demonstrating hot tubbing. When approached by Lord Justice Jackson, we used our combined contacts to invite around 45 professionals – half of them expert witnesses – to meet with Lord Jackson so he could canvass their views and explore their experiences of the new system," Wilkinson continues.
"The general view of hot tubbing is very positive – almost all of the attendees said they would be prepared to give evidence using it; the enthusiasm was clear. Its benefits in terms of focussing on key issues and streamlining procedures are obvious.
"We wondered whether barristers might potentially have some reservations, since as they only come in once the judge has finished to cover issues that haven't already been raised, they could feel sidelined from the process; but those who participated in the session didn't raise this objection.
"Overall the meeting itself was deemed a great success, and Lord Justice Jackson took away some very useful feedback."
In closing, Wilkinson speaks warmly of Lord Justice Jackson's obvious commitment to the mammoth project he is undertaking. "He's a positive, energetic and interested man, who genuinely wants to understand the effects and implications of the different ideas and proposals he's working with. He actively seeks and takes on board the feedback and involvement of people from across the professions. This has to be a good thing for all concerned."
