Are you up to date with ‘concurrent evidence lite’ or ‘luke warm tubbing’?

Everyone involved with the giving of expert evidence in civil claims is of course familiar with paragraph 11 of the Practice Direction to Part 35 of the Civil Procedure Rules.  That will be so even if they have not seen or taken part in the giving of concurrent evidence, or ‘hot tubbing’ as it is commonly called.  In fact, in injury litigation it is rarely experienced in this country.  The idea of concurrent evidence is to put opposing experts in the witness box together; then the judge, as inquisitor, asks questions based on an agenda setting out points of disagreement between the experts, invites the experts to ask questions of each other, and then hands over to the lawyers for further questioning, before summarising the experts’ evidence (and obtaining the experts’ approval of that summary).

If you have read (and ingested) paragraph 11, then it is time to re-read it.  It has changed!

In July 2016 the Civil Justice Council produced a report ‘Concurrent expert evidence and ‘hot tubbing’ in English litigation since the ‘Jackson Reforms’ – a legal and empirical study’.  This recognised that ‘hot-tubbing’ could take a number of forms, as a number of experts have by now found out, with some judges applying their wide case management powers to hear expert evidence in a way that suited them best but did not necessarily involve them in having to ask the questions.

This has been codified in the new (replacement) paragraph 11.2 of PD35 and other consequential amendments in para 11, and while it still appears under the heading ‘Concurrent expert evidence’ it is expressly not concurrent expert evidence (hence my describing it as ‘concurrent evidence lite’ or ‘luke warm tubbing’:

11.2 To the extent that the expert evidence is not to be given concurrently, the court may direct the evidence to be given in any appropriate manner. This may include a direction for the experts from like disciplines to give their evidence and be cross-examined on an issue-by-issue basis, so that each party calls its expert or experts to give evidence in relation to a particular issue, followed by the other parties calling their expert or experts to give evidence in relation to that issue (and so on for each of the expert issues which are to be addressed in this manner). [My emphasis]

For example in the case of care experts there may be a number of areas of disagreement in their assessments of care needs.  Both experts may be sworn in, and then each be asked to give evidence and to be cross-examined by the parties’ advocates in turn on each of the issues in dispute, one by one.  In that way, all of the expert evidence on a particular issue will be given in one go, before moving on to the next issue.  The judge however maintains her normal role, clarifying issues from time to time, but leaving the questioning principally to the advocates.

It is important to emphasise to the expert that there may be flexibility required as to how the expert issues in any particular case are dealt with, and that by this amendment to PD35 judges are encouraged to consider the route most likely to be beneficial to them and most expeditious on the facts of the case.

PD35 is also amended in relation to the preparation of an agenda for the giving of such evidence, which it recognises may even be prepared by the judge:

 11.3 The court may set an agenda for the taking of expert evidence concurrently or on an issue-by-issue basis, or may direct that the parties agree such an agenda subject to the approval of the court. In either case, the agenda should be based upon the areas of disagreement identified in the experts’ joint statements made pursuant to rule 35.12.

But in either event whoever prepares the agenda we come back to the importance of the joint discussion and the experts’ joint statement recording the areas of agreement, disagreement and reasons for disagreement.  To facilitate the giving of evidence, particularly if it is concurrent or issue-by-issue, the joint statement needs to provide a clear list, defining the areas of disagreement together with a summary of the brief reasons for the disagreement.

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Damages for the additional cost of bringing up autistic child recoverable against doctor who failed to warn mother of haemophilia risk

A negligent doctor is liable for the foreseeable consequences of the breach of duty which would not have occurred ‘but for’ the negligence.  In Meadows v Khan [2017] EWHC 2990 a mother sought to establish whether she carried the haemophilia gene prior to becoming pregnant.  Her doctor arranged a test and based on the results she was given reassurance.  In fact the test only confirmed she did not have haemophilia, not that she wasn’t a carrier.  She was a carrier and when she subsequently became pregnant and gave birth, her child had haemophilia.  Had she not been negligently advised, and had she therefore known that she was a carrier, the judge accepted that she would have undergone foetal testing and had a termination.  She was therefore entitled to the additional costs of bringing up a haemophiliac child.  So far this case followed the settled pattern for a ‘wrongful birth’ case.

However in addition the child suffered from autism, unrelated to the haemophilia.  The risk of autism exists with every birth and therefore autism was a natural and foreseeable consequence of birth.  The mother would have terminated the pregnancy but for the doctor’s negligence, and in the absence of that negligence, and on the balance of probabilities, any child she subsequently had would not have had autism (each birth carrying the same small risk of autism).  As a consequence the mother could recover in addition to the additional costs of bringing up a haemophiliac child, the additional costs of bringing up an autistic child (following Chester v Afshar [2004] UKHL 41).

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