NGA INVESTMENT LTD v. LAU JENNIFER P. T

DCCJ 4140/2014

[2018] HKDC 1094

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4140 OF 2014

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DECISION

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Introduction

1.  At today’s pre-trial review, the plaintiff applies for leave to call Mr SC Leung, who has been appointed as the single joint expert by the parties, to be cross-examined at trial.

2.  Mr Leung is a handwriting expert.  He has compiled a report dated 29 July 2016, concluding that the two signatures on a loan agreement stated to be the defendant’s “were highly probably not written by” her.

3.  In this action, the plaintiff claims against the defendant for the repayment of principal and interest outstanding under the above loan agreement.  The defendant denies having ever signed that document.  Hence the dispute over the authenticity of her signatures on it.

4.  Needless to say, the expert’s opinion is against the plaintiff.

Legal principles

5.  Where a single joint expert has been appointed and one of the parties is unhappy with the view of the joint expert and seeks leave of the court to challenge that view, whether by way of calling an expert of his own, calling the joint expert to give oral evidence at trial so that questions can be put to him in cross-examination or otherwise, how should the court exercise its discretion?  That is the question addressed in Cosgrove v Pattison [2001] CP Rep 68, Daimler AG v Leiduck (re: expert evidence) [2014] 3 HKLRD 56 and King Smart Investments Ltd v Commissioner for Transport HCA 2108/2012, 27 October 2015.

6.  In Cosgrove and Daimler, the “unhappy” party sought leave to adduce evidence of a second expert, in addition to the evidence of the joint expert.  The court should take into account the following nine factors, which one should bear in mind, however, is not an exhaustive list:-

(1)  the nature of the dispute;

(2)  the number of disputes on which the expert evidence is relevant;

(3)  the reason for requiring the second report;

(4)  the amount at stake or the nature of the issues at stake;

(5)  the effect of permitting a second expert report on the conduct of the trial;

(6)  the delay in making the application;

(7)  the delay that might be caused in the conduct of the proceedings;

(8)  any other special features; and

(9)  the overall justice to the parties.

7.  The factors were set out by Neuberger J in Cosgrove and cited in Daimler by Recorder Lisa Wong SC at para 34.

8.  Overall speaking, leave should be granted if, upon balancing all relevant considerations, it is just and accords with the underlying objectives of the CJR: Daimler at para 33.

9.  The same considerations and principle should apply to a situation where the “unhappy” party asks for leave to put questions to the joint expert in writing for clarification, but with suitable modification: King Smart at para 19 per Registrar Lung.

10.  I consider that this approach should also apply to the present case, notwithstanding the means by which the plaintiff wishes to challenge the joint handwriting expert is different from the above three cases.

Discussion

11.  Applying the above approach, I refuse the plaintiff’s application to call the joint expert to give oral evidence.  The following matters are relevant and material to the overall balancing exercise.

12.  First, whether the signatures on the loan agreement are authentic or not forms the crux of the dispute.  The opinion of Mr Leung, the handwriting expert, is directly relevant to this issue.  He has given a “highly probably not written by the defendant” opinion.  There is therefore prima facie much to be said to allow the expert to be cross-examined on this key issue.

13.  Second, on the other hand, the court will be hearing at trial “live” evidence from a Mr Tsui, a witness for the plaintiff, who has stated that the defendant had signed the loan agreement in his presence.  The court will also be hearing contrary evidence from the defendant herself.  Her position is that she has never signed it.

14.  In other words, the court will have direct factual evidence coming from witnesses who were privy to the alleged signing (or non-signing) before it makes primary factual findings on this issue.  It may therefore be said that the expert evidence of Mr Leung may not after all feature as prominently as it would seem at first blush.  Mr Leung’s opinion is going to be just one part of the evidence which the court will evaluate.

15.  Third, in an application of this nature, it is for the applicant to spell out the areas or topics of cross-examination and the primary purpose of the questioning.  Is it merely for clarification?  Or is counsel going to point to the expert any patent error or inconsistency in the report?  With the specific areas indicated by the applicant, the court can then assess whether there are indeed matters in the report which cry out for explanation, elaboration or clarification which would render further assistance to the court in resolving the issue at hand.  Or it may be the case that the queries or doubt raised by the applicant on the report can be dealt with by submissions.

16.  It can always be expected, I would think, that when an expert is in the witness box, he is almost always going to be able to say a little more about the findings made and opinions reached in his report.  But one needs to keep a pragmatic perspective about it.

17.  I think one should consider whether there is going to be any real “added value” from that additional oral testimony, when it comes to resolving the issue in dispute.  And that “added value” would need to be balanced against the time and costs needed to be spent to acquire it.

18.  In the present case, counsel for the plaintiff has not put forward a list of areas for cross-examination in his written submissions, but merely said that it would serve the interest of justice for Mr Leung’s evidence to be tested at trial.  That is clearly not enough.  In his oral submissions, counsel makes the point that he would like to put to the expert other possibilities for how the signatures had been written.  For instance, the lighter pen stroke identified by the expert could have been accounted for by insufficient ink rather than forgery, as suggested by the expert.

19.  In my view, these possibilities can be raised in submissions, if considered appropriate.  And the trial judge will reflect on the submissions when evaluating the soundness of the expert opinion and the weight to be given to such opinion.  I am not satisfied in this case, realistically speaking, that the court will get much further assistance from the oral evidence of the expert.  The report is written in a clear and detailed manner.  While in theory there is always room for clarification and elucidation, however in this case I do not readily see any real “added value” in hearing oral evidence from the expert, along the lines suggested by the plaintiff’s counsel this morning.

20.  Fourth, one also needs to consider whether it is proportionate to call the expert to testify.  In this regard, one needs to consider the usefulness of the proposed oral testimony of the expert in the context of the quantum of the claims.  Here, the claim is for about $600,000 and the counterclaim about $200,000.  They are not huge claims.

21.  Fifth, the application ought to have been taken out at an earlier stage, such as at the last hearing before the master in December 2017, when he set down the case for trial.  I have been told that no such application was made then as counsel’s advice was not obtained at that stage.  In fact, counsel was only instructed a few days before the PTR today and that was why the present summons was only taken out two days ago.  The lateness is a factor against the plaintiff but I have to say that in the present circumstances, it is not a significant factor.

22.  Sixth, parties should be able to confine the cross-examination to about two to three hours in total.  As such, the overall trial timetable will not be affected.  It is therefore a neutral factor.

Conclusion

23.  Having weighed the above competing considerations, I conclude that, with no disrespect to the expert, oral testimony from him would be only of very limited value (in the form of further assistance) and when that is balanced against the associated time and costs and the size of the parties’ claims, I would not exercise my discretion to allow the plaintiff to call him to testify at trial.  The plaintiff’s application is dismissed.

(Discussion re costs)

24.  The defendant do have costs of the summons, summarily assessed in the sum of $3,680, payable within 14 days from today.