What is Hot Tubbing? What is Hot Tubbing? A look at the New High Court Rules effective 1 October 2016 from an Expert Witness perspective

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1 A look at the New High Court Rules effective 1 October 2016 from an Expert Witness perspective

2 The Rules of the Superior Courts in respect of Conduct of Trials and Pre-Trial Procedures (Rules of the Superior Courts (Conduct of Trials)) S.I. No. 254 of 2016 and Rules of the Superior Courts (Chancery and Non-Jury Actions and Other Designated Proceedings: Pre-Trial Procedures) S.I. No. 255 of 2016, effective from 1 October 2016 ( the New Rules ) bring about significant changes for Expert Witnesses. The New Rules apply to the Chancery and Non-Jury Lists of the High Court, but do not include Personal Injury cases. Prior to the introduction of the New Rules, Experts may have been appointed by parties at various different points in the timeline of the proceedings, including prior to the Statement of Claim being served, prior to or after Discovery had been exchanged between the parties, or once a case had been set down for hearing with a confirmed trial date. Amongst the New Rules are provisions that require the notification of a party s intention to put forward Expert evidence at the pleadings stage of the litigation. The New Rules also set out a requirement for an Expert to declare their duty to the Court as well as allowing for the appointment of a Single Joint Expert. A number of the main provisions of the New Rules which relate to Expert evidence are outlined below, including the introduction of the Debate Among Experts, now also being referred to as Hot Tubbing. Use of Expert Evidence to be set out in the Statement of Claim Under the New Rules, Order 20 has been amended to provide for where a plaintiff intends or proposes to offer Expert evidence at trial. The Statement of Claim must now disclose that intention and state succinctly the field of expertise concerned and the matters on which Expert evidence is intended or proposed to be offered. This also applies to a defendant s intention to offer or propose Expert evidence at the trial in respect of the defence or in connection with any counterclaim. This is a significant development in the identification for the need for Expert evidence at an early stage in the proceedings, and will bring about a change in when an Expert is appointed in the timeline of the proceedings. The duty of the Expert to the Court The New Rules at Order 39, Rule 57 state that it is the duty of an Expert to assist the Court as to matters within his or her field of expertise and that this duty overrides any obligation to any party paying the fee of the Expert. The Expert s Report must contain a statement acknowledging their duty to the Court. The Expert must also disclose any financial or economic interest they have, together with any financial or economic interest any person connected to the Expert has, in any business or economic activity of the party retaining that Expert. This includes any sponsorship of, or contribution to, any research of the Expert or of any university, institution or other body with which the Expert was, is or will be connected, excluding any fee agreed for the preparation of the Expert Report and any fee and expense due in connection with the participation of the Expert in the proceedings. It has been common practice in Ireland for Experts to acknowledge their duty to the Court in their Expert Report and present their Expert evidence on that basis. The requirement for a formal acknowledgement in writing of this overriding duty by way of an Expert s Declaration within the Expert Report, as prescribed in the New Court Rules will bring about a consistency of approach. Presentation of Expert Evidence The New Rules at Order 39, Rule 58 provide that Expert evidence will be restricted to matters which are reasonably required to enable the Court to determine the proceedings. The New Rules are designed to ensure that Expert evidence is 02

3 presented in an efficient manner. To this end, the Court can make orders or give directions for the parties to: Identify the field of expertise in which Expert evidence is required, and provide the name of the Expert where practicably possible; Determine the fields of expertise in which, or the proposed Experts by whom, evidence may be given at trial; Fix the time or times for the delivery of Expert Reports; Appoint a Single Joint Expert on a particular issue; The Court, with the exception of special reasons which may exist, will require each party to offer evidence from only one Expert in a particular field of expertise on a particular issue. Appointment of a Single Joint Expert The use of Single Joint Experts, now introduced in the New Rules in Ireland in Chancery and Non- Jury Cases, is widely used in other jurisdictions including England & Wales. A Single Joint Expert can be instructed to prepare a report for the Court on behalf of two or more of the parties to the legal proceedings. In order to look ahead at how the use of a Single Joint Expert would operate in Ireland, it is useful to consider the Academy of Experts guidance in relation to Single Joint Experts. Similar to an Expert appointed on behalf of a single party, the Single Joint Expert s duty is to the Court, to assist on matters within their expertise. This overrides any obligation to the party or parties from whom the Expert has received instructions or by whom the Single Joint Expert is being paid. Where a Single Joint Expert has been appointed, just as in the case of a party appointed Expert, the Single Joint Expert does not determine the facts of the case. In practice, the Single Joint Expert may be required to make different assumptions of facts and the Single Joint Expert s report may need to have more than one set of opinions on any issue. The Single Joint Expert s report is required to be served simultaneously on all instructing parties. In England & Wales, the instructing parties are jointly and severally liable to pay the Single Joint Expert s fees and their invoices should be sent simultaneously to all instructing parties. Written questions concerning the content of an Expert s Report The New Rules provide for the opportunity for parties to pose written questions of the opposing Expert, as long as these are not disproportionate, unnecessary for the determination of any matter at issue in the proceedings or outside of the field of expertise of the Expert. The questions may only be put once and within 28 days of service of the Expert s Report. 03

4 Meetings of Experts The New Rules, under Rule 60, provide for meetings of Experts to occur privately, without the parties or their legal representatives. Afterwards they must draw up a written statement or joint report setting out what evidence is agreed and what is not. This is then lodged with the Court and provided to the parties in advance of the trial. Under the New Rules, once the joint report has been considered, the trial Judge may direct the opposing Experts be examined and cross-examined, either in part or in whole, one after the other, or a newly introduced procedure termed the Debate Among Experts may be applied. The Debate Among Experts procedure or Hot Tubbing In what may be seen as an innovation to the appointment of Experts in cases in Ireland under the New Rules, a Court may decide to order a Debate Amongst Experts, also known as Hot Tubbing to allow opposing Experts to debate the points which are not agreed between them. Following this, the Court may allow general cross-examination or reexamination. In arbitration this process is known as concurrent evidence. To consider how Hot Tubbing may be used in practice, it is useful to look at how it has operated successfully in arbitrations under a number of different guises. For example, at one end of the spectrum it has been used in construction disputes in arbitration akin to a traditional examination-inchief and cross-examination. At the other end of the spectrum it has been used by arbitrators to conduct a panel discussion without input from the advocates. Writing in Construction Law International, Sean Brannigan QC (Construction Law International, Vol. 5, Issue 4 (December 2010), pp Brannigan, Sean) suggested some issues for consideration on the use of Hot Tubbing in arbitration including: Who will be allowed to ask questions? and Will the Experts or Witnesses be allowed to ask questions of each other during the session? The manner in which judges use the Debate Among Experts procedure will be watched with interest to see how these issues are addressed. Summary In summary, the New Court Rules, effective from 1 October 2016 insofar as they relate to Expert evidence, will significantly alter the landscape for the appointment of Experts in the Chancery and Non-Jury Lists of the High Court (excluding personal injury cases) and will bring about the appointment of Experts much earlier in proceedings. For more information please contact: David Carson Partner dcarson@deloitte.ie Barry Robinson Director barobinson@deloitte.ie

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