The view from the hot tub

Although the courts have had the power to order expert witnesses to give their evidence concurrently since April 2013, there have been very few reported instances of the procedure (colloquially known as ‘hot tubbing’, or, more formally, witness conferencing) being used other than as part of the initial pilot project that was undertaken in Manchester.

However, Milsted Langdon’s Roger Isaacs was recently instructed as one of three expert accountancy witnesses in the case of Swain and others v Swain Plc and others [2015] EWHC 660 (Ch).

The case involved four sisters who were shareholders in a company that had been founded by their late father and his business partner. At the date of the trial, the directors of the company were the business partner and one of the four sisters. The claimants were the remaining three sisters who had no active involvement in the management of the company. They alleged that they had been deprived of the value of their shares by virtue of the actions of their family solicitor and their family accountant. It was these two advisers and their respective professional indemnity insurers who were the defendants, albeit that the family solicitor had died prior to the trial.

The claimants were represented by one expert accountant and each of the defendants’ professional indemnity insurers had instructed their own experts. The issues that the experts were asked to address concerned the valuation of the family company and the shares therein.

“any alternative short of self-mutilation would be appealing”

One can easily sympathise with any judge who, faced with the prospect of three solid days of expert accountancy evidence, concluded that any alternative short of self-mutilation would be appealing. It is therefore perhaps not entirely surprising that the suggestion of using hot tubbing in this case had its genesis in a surfeit of accountants. The fact that the defendants’ experts and their respective counsel were all in favour of adoption of the procedure was perhaps also influential, although it is interesting to note that the view was not unanimous and the claimant’s expert was vociferously opposed to it.

Nevertheless, directions were given by the judge at the outset of the trial that the experts were to give evidence concurrently.

Experience suggests that determination of this issue early on in proceedings is vitally important, not least because the judge needs time to prepare for a process in which he is required to undertake a proactive role as chair and inquisitor.

For anyone used to the English adversarial approach to justice, it is a wholly alien experience to see a judge engaging in what is a positively Napoleonic and inquisitorial style of interrogation of witnesses.

The procedure for expert conferencing is set out in Practice Direction 35.11 and in Roger’s recent experience, it was faithfully followed to good effect. Firstly, before the start of the trial, the experts had met and agreed a joint statement that set out the issues on which they agreed and those on which they disagreed. That statement formed the basis of an agenda, focussing on the issues of disagreement, that was adopted by the judge and formed the basis of the structured discussion that comprised the hot tubbing itself.

Before the experts could be sworn in, a practical issue arose as to where in court they should physically sit. It was recognised that it would be impractical to squeeze all three accountants into the witness box. Indeed to have done so would have meant there would have been a danger of creating a hot tub that was more than a mere metaphor. The agreed solution was to have the experts sitting facing the judge at the front of the court in the positions usually occupied by counsel. Counsel moved back a row and sat behind the experts, demonstrating starkly and visibly their subordination to the judge in the hot tubbing process.

Once everyone had been suitably arranged in their designated places, the questioning could begin. Of course, if the judge is to take on the role of inquisitor, he can no longer rely on counsel to take him to the relevant evidence as happens in traditional cross-examination. Instead the judge must, and in this case certainly had, become familiar with the details of the experts’ respective reports and joint statements.

Prior to the trial the experts had already had a number of meetings in an attempt to identify the matters on which they agreed and those on which they disagreed. The resulting joint statement formed the basis of an agenda for the hot tubbing.

“vaguely reminiscent of Blind Date”

Taking the issues listed on the agenda, one by one, the judge addressed his questions to each expert in turn, often repeating questions put to the first expert to the second and third in a manner vaguely reminiscent of the Blind Date TV show in which contestants famously put “the same question to number two please”. Having sought the opinion of each expert, each was given an opportunity to comment on or respond to the comments of the others and finally each Counsel was asked if he had any further questions before the debate moved on to the next topic.

It soon became apparent that any interrogation by Counsel was somewhat redundant on the basis that if the judge had considered a question relevant or significant he would have already asked it. There was therefore almost a presumption (albeit unstated) that further questioning by Counsel should not be necessary. That said, there was no doubt that Counsel was afforded every opportunity to ask questions if they wanted to do so.

“far more challenging”

Giving evidence in the hot tub can be far more challenging for the expert than facing traditional cross-examination. It is often said that one of the advantages of being an expert witness is that one inevitably knows more about one’s field of expertise than the barrister who is posing the questions. In some cases experts can therefore obfuscate in a manner that can sometimes be difficult to challenge efficiently. By contrast, in the hot tub there are other experts from the same discipline who can immediately challenge anything that is said with which they do not agree. This creates an immediacy that is conspicuously absent in traditional cross examination in which, if an opposing view is to be expressed by another expert, it may not be heard until several hours or days later.

“three days of traditional cross-examination were condensed to just three hours”

One of the aspects of traditional cross-examination that is highlighted by hot tubbing is the fact that Counsel has to anticipate which issues are likely to be relevant to the judge and inevitably time will be spent dealing with matters on which the judge has either already been persuaded or which he considers irrelevant. By contrast, allowing the judge to be the primary inquisitor means that he can “cut to the chase”. The effect is dramatic in terms of timing and in the recent trial, three planned days of traditional cross-examination were condensed to just three hours of hot tubbing.

This exceptional speed puts further pressure on experts who have far less thinking time in the hot tub than they would have if they were to face traditional cross-examination. Specifically in traditional cross-examination, an expert will be taken to the relevant sections of his or her report as a precursor of being asked a question. One of the reasons for this is that it is a means by which the judge can be directed towards the relevant evidence. This becomes unnecessary in the hot tub and questions are asked with no preamble on the assumption that all concerned, inquisitorial judge, expert and counsel will all be familiar with the issues and the underlying evidence from the outset.

Happily, by the time of the trial there had been a narrowing of the number of accountancy issues that were in contention. Key amongst these was the value of the company in relation to which opinions differed widely. Although it had a turnover of only £7 million, the three accountancy experts had arrived at starkly different valuations ranging from £2.2 million to £5.1 million. Roger had concluded that a valuation in between these two extremes of £3 million was appropriate and was therefore pleased that ultimately the judge concluded that the company was worth £2.96 million.

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