WONG WAH TUNG v. CHAN WAH DESIGN DECORATION LTD

DCCJ 637/2021

[2023] HKDC 392

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 637 OF 2021

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DECISION

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Introduction

1.  This is the defendant’s appeal against the order of the learned Master dated 12 August 2022 granting leave to the plaintiff to adduce expert evidence.

Legal principles on appeal against Master’s decision

2.  An appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time: 58/1/2 Hong Kong Civil Procedure 2023 Vol 1

The claim

3.  The plaintiff is claiming against the defendant for damages for non-performance of certain renovation works under a main contract and 3 supplemental contracts; that certain works were carried out not “in accordance with the relevant laws and regulations of Hong Kong”; and that certain works were carried out “with materials of poor quality and/or with poor workmanship”.

The defence and counterclaim

4.  The defendant denies the allegation of the plaintiff and says that they have performed the ‘contract’ and all collateral contracts required of before the plaintiff moved into the house and that all works were of a standard and quality accepted by the plaintiff.

5.  The defendant also counterclaims outstanding contractual price under the initial ‘contract’; the price for the additional works contracted by the plaintiff and performed by the defendant and specific works performed by the defendant as a matter of goodwill between January and June 2017.

The Scott Schedule

6.  By the order of Registrar Lui dated 16 March 2021, the parties were directed to jointly file a Scott Schedule identifying all the items in dispute together with sufficient particulars. The time for the filing of the Scott Schedule was extended by the order of Registrar Lui dated 8 September 2021 to 18 November 2021.

7.  Subsequently, the Scott Schedule was filed on 18 November 2021.

The plaintiff’s application

8.  By a summons filed on 26 April 2022, the plaintiff sought leave of court to adduce expert evidence on liability and quantum of the issues set out in the Scott Schedule (“the plaintiff’s summons”).

9.  After hearing the argument on 12 August 2022, the learned Master granted leave, inter alia, in the following terms:

“Leave be granted to the Plaintiff to adduce expert evidence at the trial to be given by Mr. Wong Koon Kau, a project management surveyor and a quantity surveyor in relation to liability and quantum of the issues set out in the Scott Schedule jointly filed by the parties on 18 November 2021”

The defendant’s argument

10.  Mr Stony Chan, counsel for the defendant, submitted that by the wording of the summons, namely, “in relation to liability and quantum of issues set out in the Scott Schedule”, is in breach of para 20 of PD 5.2, which provides that:

“20. Regarding expert evidence:

…

(b) identified the issue to which the expert evidence will relate (a mere reference to adducing expert evidence “limited to the issue of liability” or “limited to the issue of quantum” is not sufficient) …”

11.  Mr Chan submitted that the scope of expert evidence is not clearly defined and the issues of which expert evidence are required are not identified and is therefore defective.

12.  Mr Chan pointed out that the plaintiff’s Scott Schedule listed the columns by items instead of issues in dispute. This would lead to problematic and multiple formulation of issues.

13.  Mr Chan argued that the Scott Schedule does not form part of the pleadings. Expert evidence must be confined to the live issues of dispute between the parties, which must be sought from the pleadings. That being the case, the phrases “material and workmanship of the building works in question” and “value of building works in question” without particulars in the pleadings do not lend support to the plaintiff’s application.

The plaintiff’s argument

14.  Mr Adrian Lo, counsel for the plaintiff, submitted that expert opinion is necessary to tackle the issues on liability set out in the Scott Schedule, namely,

(a)  the contract requirements as to quantity and specification (materials, workmanship, etc);

(b)  whether particular works are required under the contract and whether the defendant had completed such works;

(c)  whether there are any defects (substandard workmanship and/or materials) or latent defects; and

(d)  whether certain works were done or duplicated.

15.  In respect of the issues on quantum, most of the issues particularized in the Scott Schedule go beyond mere calculation and require expert assistance on the reasonable values, for example, of omitted or defective works, costs for the plaintiff to complete the works by other contractors.

16.  Mr Lo agreed that the following items might be established by factual witness and expert input is not strictly necessary:

On liability

(a)  Plaintiff’s Scott Schedule 1 Ref Nos 3, 4, 6, 8, 9, 11, 12, 16, 17 and 18; and

(b)  Plaintiff’s Scott Schedule 2 Ref No1.

On quantum

(a)  Plaintiff’s Scott Schedule 1 Ref Nos 3-6, 8, 11-18;

(b)  Plaintiff’s Scot Schedule 2 Ref No 1;

(c)  Plaintiff’s Scott Schedule 3 Ref Nos 1,2; and

(d)  Plaintiff’s Scott Schedule 4 Ref Nos 1,2.

17.  However, Mr Lo submitted that it is artificial and contrary to the underlying objectives to carve out those items from the expert directions because input from an expert will assist the court to tackle the issues and help the court to understand the technical information and materials.

18.  Relying on Jacob QC and Goldrein, Pleadings: Principles and Practice (Sweet & Maxell 1990) at p16:

“It is common practice for pleadings or particulars of pleadings to be ordered to be served in the form of a “Scott Schedule”, a document divided into separate columns setting out the full description of each item in dispute between the parties, the contention of each party against each item as to liability or amount or both, with a final column for the use of the court. In this way the parties are required in the Scott Schedule to give full particulars of their respective cases in respect of each item in issue, even though a party may thereby have to state not only that he denies that the charge for any particular claim is reasonable but also what he contends to be a reasonable and proper charge for such item.”

Mr Lo submitted that the Scott Schedule is a form of particulars of pleadings which define the issues.

Discussion

19.  The Scott Schedule was ordered to be jointly filed by the order of Registrar Lui. In between the order of Registrar Lui dated 16 March 2021 and its filing on 18 November 2021, the statement of claim and the defence and counterclaim were respectively amended. In the preparation of the Scott Schedule, both parties must have contributed to its contents.

20.  With these in mind, I have no doubt that the Scott Schedule was intended to be and did form part of the pleadings. I accept Mr Lo’s submission that the Scott Schedule is a form of particulars of the pleadings.

21.  Having said that, however, I am concerned with whether the Scott Schedule is a suitable device for the expert to express his opinion on the issues in dispute.

23.  By its design, Scott Schedule is a tool to assist the court in the adjudicating process particularly in cases where a large number of disputed items are involved. Therefore, each and every item in dispute and the parties’ respective contention, regardless of whether expert opinion is required of in the adjudicating process, is to be put in it.

24.  Viewed in that light, the use of the Scott Schedule as the platform on which the expert is asked to express his opinion is, to my mind, a recipe for confusion.

25.  Looking at the Scott Schedule filed by the parties, it can be seen that a substantial number of items are about whether certain works were done by the defendant whereas the other items are alleged by the plaintiff to have been done sub-standardly or using sub-standard material. As is readily accepted by Mr Lo, the former are factual issues whereas the latter are issues of which expert opinion is necessitated.

26.  Trained lawyers have the ability to discern the question of fact and the question of opinion. But that may not be the case for people without legal training.

27.  Therefore, if the expert is asked to give his opinion on the issues as set out in the Scott Schedule, he might venture to express his personal subjective view on those factual issue only items of which his expertise is not called for. This would not only cause confusion to the mind of the expert but also to the readers of his expert report. With respect to Mr Lo, I disagree that allowing the expert to express his opinion on all disputed items (including those expert opinion is not strictly necessary) would assist the court in tackling the issues.

28.  It is trite that an expert witness has a duty to assist the court on matters within his expertise. In order words, the expert is obliged to give his opinion to the court independently and in doing so, he should not act as an advocate of the party who engaged him.

29.  For this reason, the mind of the expert should be directed to the very issues he is required to give his opinion. In this regard, the questions to be answered by the expert should be framed as accurately and as neutrally as possible.

30.  If the Scott Schedule is used as the platform for the expert to give his opinion, the expert’s mind would unavoidably be confused, muddled or even tainted by the parties’ adversarial contention stated therein.

31.  In any event, as demonstrated by the Scott Schedule filed by the parties, there is not a single accurately framed question for the expert, let alone a neutral one.

Conclusion and order

32.  For the foregoing reasons, I have come to the conclusion that the Scott Schedule, which contains items on which expert evidence is not required, and contains no accurately and neutrally framed questions to be answered by the expert, is not the suitable device for the purpose of obtaining expert evidence.

33.  For the avoidance of doubt, however, I am not saying that expert evidence is not required in this case.

34.  In the result, I would allow the defendant’s appeal, set aside the order of the learned Master dated 12 August 2022 in its entirety, and dismiss the plaintiff’s summons.

Costs

35.  I make a costs order nisi that the plaintiff shall pay the defendant the costs of the plaintiff’s summons and this appeal with certificate for counsel, to be taxed if not agreed.

36.  In the absence of any application for variation by letter within 14 days from the date of this decision, the costs order nisi shall become absolute.