Hot tubbing, where experts give evidence concurrently, is all the rage in Australia. Now it could be heading to these shores – except that it’s been here for 18 years already
Of a straw poll of 15 construction barristers about hot tubbing, seven spoke favourably, three were hostile, four talked generally, and one said he had forgotten all about it. The idea is simple: the experts, instead of giving evidence one at a time, give it concurrently, and the dispute decider does the questioning. Read all about it on the web in “Concurrent Expert Evidence and ‘Hot-Tubbing’ in English Litigation, since the Jackson Reforms”. Seemingly the Australians have been hot tubbing for a while. Lord Justice Jackson came across it when examining litigation costs and ideas in 2010.
We are copying it hereabouts. You might see that if the judge (arbitrator or adjudicator) is in the tub with the two experts, one or two barristers might feel they have had their noses put out of joint. That’s not the way it works. Actually we are miles ahead of our antipodean mates. True, they gave it a fruity name but I vividly recall an arbitration 20 years ago when the arbitrator coaxed us counsel to sit the two pipe-jacking experts around his table while he and they had a chat (counsel could chip in). In half a day the job was done. Oh, one other thing; throughout the 18 years of adjudication, no end of “hearings” have been hot tubbed. Mind you, that began in the days when lots of folk held their nose at the very idea of adjudication.
Back to the report: it explains that we are at least putting a toe in the water. We can’t quite make up our mind how the “judge-led” inquiry should proceed. Should we produce a pre-set agenda of specific issues, then have that “chat” on one issue at a time, then invite the parties’ representatives to ask questions? Shall we ban full cross-examination or re-examination? Or, instead go for “back-to-back” expert evidence? Issue by issue? Another idea is a “teach-in conference”, meaning call on the existing experts to take the judge (arbitrator or adjudicator) through the complexities of this particular dispute. Representatives come too, though some suggest it can be a private session: hmmm!
This inquiry was to hot tub facts. Getting those facts was dynamic and it worked. Now enter the tub two top-quality planning experts. The facts were hot tubbed. It worked
The report considers when hot tubbing is, or is not, appropriate as well as the types of dispute that are appropriate. Considers too how to deal with objections. Bear in mind that some representatives are nervous about this whole idea. They are brought up on machinery that is comfy for them. Some representatives say they are concerned about the “loss of control”; fair comment. Once under way, the key theme is procedural fairness or rather how fairness is perceived. There is a warning: be sure to put equivalent questions to and give equivalent time for comment from each witness. Be sure as well to re-assure the representatives that they too can put questions, make observations and have their say.
Now let me give you first-hand experience of hot tubbing in construction disputes. First, bear in mind that hot tubbing requires the tribunal to take the lead role in questioning the witnesses. The system is more suited to a person who is naturally interventionist, says the report. Crucially the written submissions, arguments and testimony of the witnesses must be fully known by the inquisitor. Then the issues must be put to the parties in advance because those topics become the agenda for the oral inquiry. The tribunal has to know the dispute inside out and is likely to be very experienced in the field of this dispute. This is the technical insight needed for hot tubbing: ideal for constructors.
Now let me take you to the actual task. In real-life the experience has shown that hot tubbing of the experts is all well and good, but, in the construction case I have in mind, the hot tubbing didn’t stop at the experts (Australians please listen up). It was a typical dispute about the contract running late and whether an extension of time was due. The vital players were those who could give factual evidence of delay, and describe where and when and why. The hot tubbing took a structured and disciplined inquiry all at once of the four persons involved in the project, then (later) two subcontractors. This inquiry was to hot tub facts. Getting those facts was dynamic and it worked. Now enter the tub two top-quality planning experts.
The facts, some of them new, were hot tubbed for consequences. It worked. Now came the legal input. Counsel for each side made very valuable submissions on the extension of time entitlements at law. Moreover, the dynamic was to make the lawyer contributions a joint discussion too. Different? Oh yes. Efficient? Yes.
Be careful though. The arbitrator (or adjudicator) is the driving force in all this. It must not be unwittingly driven in the inquiry to a pre-conceived result. True, I defy anyone pre-hot tub not to have impressions at least of the position. Bring all that to the front of your mind and do not let those thoughts crowd out what the hot tubbing brings, nor crowd out the representatives’ view. It works, believe me. And it’s hard work for the arbitrator (or adjudicator). It’s 18 years of experience … way ahead of the Australians. Another Gold.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple