Without an admission of liability on the part of the defendant, a professional negligence claim requires the opinion of expert witnesses who can determine whether the standard of service met the standard of reasonable competency.
Over the years, the courts have done this by interviewing expert witnesses individually and hearing their testimony one-at-a-time. Although this has frequently been found a very effective method of gathering expert evidence to determine whether the defendant meets the reasonable person test, there have been problems.
For example, over the years it has been found by judges that both defendant and claimant professional negligence lawyers have a tendency to “lead” the witness in a particular direction and that, as a result, it can be difficult for courts to gain a clear and broad view of the expert opinion.
However, there is something called Concurrent evidence (also known as hot-tubbing) which was recommended by Lord Justice Jackson as part of his proposed reforms and has now become an option in the civil courts of England and Wales.
Concurrent evidence is an established practiced in Australian courts for civil cases where it has popularly become known as “hot-tubbing”.
The practice is well-described by the Australian Justice Peter Heerer:
“The procedure involves the parties’ experts giving evidence in the presence of each other after all the lay evidence on both sides has been given. The experts are sworn in and sit in the witness box or a suitably large table which is treated notionally as the witness box. A day or so previously, each expert will have filed a brief summary of his or her position in the light of all the evidence so far. In the box the plaintiff’s expert will give a brief oral exposition, typically for ten minutes or so. Then the defendant’s expert will ask the plaintiff’s expert questions, that is to say directly, without the intervention of counsel. Then the process is reversed. In effect a brief colloquium takes place. Finally each expert gives a brief summary. When all this is completed, counsel cross-examine and re-examine in the conventional way.”
This method of gathering expert testimony in a professional negligence claim can be very good at providing a clear picture of where there is consensus. It also allows judges to direct the process, rather than relying on the interested and partisan approach conducted by lawyers.
It still remains to be seen whether the process will gain popularity and widespread acceptance in the English and Welsh courts.
Healys LLP professional negligence claims in London and the South
Here at Healys we always seek to encourage early and advantageous settlement of a professional negligence claim, without the need for unnecessary costs of disruption. However, in cases where satisfactory early settlement cannot be reached, we always act robustly to ensure the best interests of the client.
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