CHOK YICK INTERIOR DESIGN & ENGINEERING CO LTD v, LAU CHI LUN t/a CHI HUNG CONSTRUCTION ENG. CO

HCA 1480/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1480 OF 2008

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D E C I S I O N

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1.  This is the decision of this court on two late applications for admission of expert evidence: one by the Plaintiff and one by the Defendant.  The history regarding the preparation of expert evidence in this case regrettably shows that notwithstanding the implementation of the Civil Justice Reform [“the CJR”] for one year there are practitioners who have not yet attuned to the effective case management practice mandated by the new rules.  Solicitors for the Plaintiff and the Defendant apparently regarded that so long as they could get their expert reports filed and served before the trial the court should not have any problems.  As I shall explain, such attitude has to be changed after CJR.

2.  Though the action was commenced in 2008, it was set down in 2009 after the implementation of the CJR.  Listing questionnaires were filed in April 2009.  Leave to set down was granted on 26 June 2009.  The Plaintiff set down the case for trial on 22 October 2009.  Trial dates were fixed on 13 November 2009 and the notice of trial was given to the parties on 16 November 2009.  The trial is to start on 14 May 2010 with four days reserved.

3.  The present applications for leave to call new expert evidence came long after the trial has been set down.  On 24 March 2010 the Defendant issued a summons for leave to call an expert.  Then on 28 April 2010 the Plaintiff issued another summons for leave to call an additional expert.  Given that the four days estimate for the trial were fixed by reference to the state of the evidence at the time of setting down, it is likely that four days would not be sufficient if this court were to accede to these applications.  Further, though the proposed experts have met, up to the time when the applications are considered no joint report has been prepared.  Based on what I have been told by counsel, the proposed experts have yet to address their minds to the preparation of a proper joint report in accordance with the guidance in Chinachem Charitable Foundation v Chan Chun Chuen HCAP 8 of 2007, 2 February 2010 at paras.483-493.

4.  The history as to the preparation of expert evidence by the parties in this case leaves much to be desired.  The claim of the Plaintiff is in respect of defective performance of works by the Defendant under a building contract.  The Plaintiff said the Defendant failed to carry out water proofing works at the lavatories in a hotel leading to damages caused by water leakage.  The Defendant denied that he had guaranteed water-proofing works under his contract with the Plaintiff.  He said he only agreed to build the walls and put a layer of water proof material at the lavatories with material provided by the Plaintiff and he did not guarantee that it was effective.  He also said the building material (but not the water proof material) provided by the Plaintiff was not up to standard and he had pointed out that to the Plaintiff.  The Defendant counterclaimed for outstanding payments.

5.  At an early stage of the proceedings, the Plaintiff was aware of the need to have expert evidence to support its case.  It had got a report from a loss adjuster on 26 October 2007 to set out the extent of damages and another report in July 2008 from an expert carrying out tests to identify the source of water seepage.  These reports were disclosed in the List of Documents and Supplemental List of Documents filed by the Plaintiff in 2008.  Hearsay notices were issued by the Plaintiff in respect of these reports.  The Defendant did not make any application to the court requiring the attendance of these experts at the trial.

6.  However, since the reports contained expert opinions, the Plaintiff had to seek expert directions before they can be admitted as evidence.  The Plaintiff did not make any application for expert direction until the filing of Listing Questionnaires.  On 28 April 2009, Master Lung gave expert directions.  In those directions, the Plaintiff was given leave to call the 2 experts.  The Defendant was given 42 days to serve expert reports in response.

7.  I wish to stress that application for expert directions is not a mere formality.  It is an integral part of the case management process.  As a trial judge, I have seen far too many cases where the lack of proper preparation of expert evidence resulted in unnecessary costs and time spent on evidence which is of no help to the resolution of the dispute.  And such wasteful exercise cost the parties a great deal of money, not only in terms of the fees paid to the experts, but also legal costs spent on paying for the lawyers’ reading, understanding of the reports, discussing the matter with the experts and then the time (and costs) of the lawyers explaining and exploring the expert evidence with the judge by way of submissions and the examination and cross-examination of the experts during trial.  Very often, it is not only the party responsible for the mismanagement of expert evidence who has to pay such costs, similar costs have to be incurred (at least on an upfront basis) by his opponent.

8.  Such wastage is not consistent with the underlying objectives set out in Order 1A Rule 1.  Thus, the court, in the performance of its case management duty under Order 1A Rule 4, should give expert directions to avoid the mismanagement of expert evidence.  And the parties and their legal representatives have a duty to assist the court in formulating the appropriate directions (Order 1A Rule 3).  Further, the parties and their legal representatives have a duty to ensure that, once given, expert directions are strictly adhered to.  The experts, in accordance with their overriding duty to the court, must try their best to comply with the directions.

9.  When parties come to the court to seek expert directions, the court shall first consider whether expert evidence is required for the just resolution of the issues before the court.  If the court is satisfied that expert evidence is required, it would then consider what directions should be given in order to further the underlying objectives in the circumstances of the case.  Gone are the days when the court only directed exchange of expert reports before trial as condition for admission of expert evidence.  Nowadays, whilst there should be flexibility in the light of the circumstances of each case, in order to narrow down the expert issues, the court will usually consider giving directions for expert meeting and joint report.  Further, the court has the option of ordering the appointment of a single joint expert under Order 38 Rule 4A.

10.  In general, expert directions should be fully complied with before the case is set down for trial.  The purpose of directing expert meeting and joint report is to narrow down expert issues.  If the experts acted conscientiously with due regard to their duties towards the court in the manner explained in Chinachem Charitable Foundation v Chan Chun Chuen HCAP 8 of 2007, 2 February 2010 at paras.483-493, 498 and 500, they should be able to identify the real expert issues that have to be decided and state clearly in the joint report each side’s reason for disagreeing with the other expert.  The length of trial can be fixed with reference to what really needed to be tried in terms of expert evidence.

11.  The utility of joint meeting and joint report in narrowing down expert issues should not be underestimated.  I have explained the proper attitude of an expert in those regards at paras.488 to 493 of Chan Chun Chuen.  The court expects the experts to act responsibly and professionally in attending joint meeting and preparing joint report.  An expert who cannot afford an appointment within a reasonable time to have joint meeting should not take up the role to act as an expert in legal proceedings.  If an expert fails to meet or fails to confer with the other side’s expert in good faith to come up with a proper joint report, it would be a breach of para.12 of the Code of Conduct for Expert Witness on the part the defaulting expert.  Further, failure to comply with expert directions may attract the consequence of barring expert evidence to be led from the defaulting party.  When this happens, the case can still be set down but it will be set down on the basis that the defaulting party will not be calling any expert evidence unless he obtains relief under Order 2 Rule 5.  Thus, it behoves a party, in choosing his expert, to make the necessary arrangement with the expert to ensure his availability and willingness to attend joint meeting and work conscientiously with his counterpart in the preparation of joint report.  In a case where there are substantial disputes on compliance with direction to file joint report, the master can refer the matter to a judge (who can be assigned as the trial judge).

12.  Whilst the trial judge may take up these matters at the time of the pre-trial review, sometimes it may be too late to remedy the situation.  There may not be enough time between the pre-trial review and the commencement of the trial to arrange for another joint meeting and the production of a proper joint report.  Moreover, another purpose of the joint meeting and joint report is to facilitate settlement.  With the identification of the real expert issues through these procedures, the parties should be better informed as regards the position they should adopt in settlement negotiations or mediation.  Hence, the earlier they take place the better.

13.  Under the CJR regime, parties and their legal representatives must address the question of expert evidence after the close of pleadings when they prepare their Timetabling Questionnaire in accordance with Practice Direction 5.2.  Para.8 of PD 5.2 requires the parties to consult each other and para.9 requires them to give as much information as is required in the Timetabling Questionnaire to enable the court to give case management directions.  Section E of the Questionnaire deals with expert evidence.  Para.20 sets out the general approach of the court regarding expert evidence.

14.  If a party envisages the calling of expert evidence, he or she should obtain expert directions under the Case Management Summons.  Attempts should be made to agree upon the directions sought.  In cases where different experts are engaged by the parties, such directions should generally, in the light of what has been said above, include directions for expert meetings and joint expert report.  Whilst there could be cases with exceptional circumstances where expert directions are sought at a later stage, it has to be borne in mind that the purpose of a Case Management Conference [“CMC”] is to review the due compliance with directions already given instead of affording a second opportunity for seeking directions which could have been sought upon the filing of Timetabling Questionnaire (see Paras.28 and 32 of PD 5.2).  In the context of expert evidence, if there are previous directions for joint report, the court expects it filed before the CMC to enable the same to be reviewed by the court before granting leave to set down.

15.  Coming back to the present case, even though CJR has not yet been implemented at the earlier part of the proceedings (thus the new PD 5.2 was not applicable and no timetabling questionnaires were filed), the summons for directions was taken out by the Plaintiff on 6 October 2008.  By then the Plaintiff had obtained the two expert reports.  There was no reason why the Plaintiff could not have sought expert directions in the summons for directions.  Even under the pre-CJR regime, Order 25 Rule 2 requires all case management matters that could be dealt with be dealt with at the summons for direction.

16.  Though the Plaintiff did not do so, the two reports were disclosed in the Plaintiff’s lists of documents.  Thus, as far as the two reports are concerned, it is not a case of ambush by the Plaintiff.  By the time when the parties filed their Checklists, the Plaintiff confirmed in the Checklist of 7 April 2009 that all the expert reports had been served.  In other words, the Plaintiff’s position was that these would be the only experts called by the Plaintiff.

17.  The Defendant filed a Checklist on 7 April 2009.  By then, the Plaintiff had already disclosed the two expert reports for more than 3 months.  The Defendant had ample time to consider the reports and to engage an expert to prepare expert report in response if he saw fit to do so.  The solicitor for the Defendant who signed the checklist adopted a rather nebulous stance.  On the one hand, he said under para.A11 in Part A of the checklist that the Defendant had served all his expert report (which was nil), thereby indicating that the Defendant did not intend to call any expert.  On the other hand, he stated under part B that it was counsel’s advice that it might be necessary to call expert evidence to challenge one of the Plaintiff’s expert reports.

18.  Part B of the checklist requires a solicitor to give explanation for matters that he could not confirm under Part A.  With respect, the statement given by the solicitor for the Defendant in that checklist was not an adequate explanation.  He could not even state that the Defendant would obtain expert evidence to challenge the Plaintiff’s expert.  He only said counsel advised that it might be necessary.  Such information is of no assistance to the court.  He did not say what had been done by the Defendant to prepare for the evidence in response between the disclosure of the Plaintiff’s expert reports and date of the checklist.  If the Defendant had been idle throughout this time, why should further indulgence be given?

19.  Notwithstanding that, the master gave the Defendant a second chance in his directions of 28 April 2009.  42 days were given to the Defendant to put in his expert evidence.

20.  The Defendant did not take up the chance given to him.  He did not file any expert report within 42 days as directed.  After the expiration of that time limit, the court granted leave to set down and as far as the court was concerned, the case was set down for trial on the basis that there would not be any expert evidence from the Defendant and the Plaintiff’s expert evidence was confined to the two reports already served.  Trial dates were fixed accordingly.

21.  In the meantime, there was correspondence between the solicitors on the topic.  In a letter dated 25 June 2009 which was actually sent on 8 October 2009, the Defendant’s solicitors invited the Plaintiff’s solicitor to deal with the admission of further evidence (including expert evidence) by consent.  A draft supplemental witness statement of the Defendant was attached.  The statement referred to a report by an expert called Mr Wong Man Hong but that report was not made available.  We now know that the report had not yet been finalized at that stage.

22.  Understandably the Plaintiff’s solicitor asked for a copy of the expert report by a letter of 8 October 2009.  The Defendant’s solicitor did not respond to this request.

23.  It transpires even before having sight of the draft supplemental witness statement of the Defendant on 8 October 2009 (and before having any idea as to what the Defendant’s expert would say to challenge the existing reports of the Plaintiff’s two experts), the Plaintiff’s solicitor deemed it necessary to engage another expert to deal with the causation of water seepage.  A Mr Erik Cheung was engaged to conduct inspection and test at the subject premises on 23 September 2009.

24.  The engagement of another expert by the Plaintiff was neither made known to the Defendant nor the court until 21 April 2010.  The Plaintiff had not obtained leave from the court to call a third expert.  Taking into account of the context of the matter, the leave granted by the master in April 2009 was confined to the two experts whose reports had already been disclosed.

25.  However, the Plaintiff’s solicitor, in his Affirmation of 28 April 2010, tried to account for the engagement of Mr Erik Cheung by reference to the change of stance on the part of the Defendant as intimated by his draft supplemental witness statement served on 8 October 2009.  Given the date when Mr Erik Cheung first performed test at the subject premises, this explanation cannot be correct.  On 23 September 2009, the draft supplemental witness had not yet been served.  At paragraph 2 of the Affirmation, the solicitor said before 8 October 2009 he was under the impression “that the Defendant concerned only with his contractual duties and he had little if not no dispute on the causation bit.”  He further said up to that stage nothing comprehensive on the causation of water seepage had been prepared by the Plaintiff “owing to the fact that the main battlefront of the dispute would appear to be on contractual interpretation”.

26.  If the real reason for the Plaintiff’s engagement of Mr Erik Cheung was in response to the Defendant’s engagement of an expert to challenge causation, it is difficult to understand why the Plaintiff needed to persist with its own application for leave to admit the evidence of Mr Cheung even if the court disallowed the Defendant’s application.  Yet, at the hearing on 27 April 2010, Counsel for the Plaintiff informed this court that the Plaintiff would wish to seek leave to admit Mr Cheung’s evidence irrespective of the outcome of the Defendant’s application.  In other words, the Plaintiff is making a free-standing application for admission of new expert evidence.  This court therefore directed the Plaintiff to file the requisite summons and affirmation to support such application.  The summons and affirmation of the Plaintiff’s solicitors were filed accordingly on 28 April 2010.

27.  I regrettably come to the conclusion that the Plaintiff’s solicitor did not set out the full picture behind the engagement of Mr Erik Cheung by the Plaintiff.  I do not accept Mr Cheung was engaged as a result of the service of the Defendant’s draft supplemental witness statement on the Plaintiff on 8 October 2009.  Mr Cheung was engaged well before that.

28.  The court expects a party seeking indulgence for new evidence to be admitted at so late a stage to be full and frank in the explanation as to why the relevant evidence was not filed in a timely manner.  The Plaintiff (as stated in the Checklist filed on 7 April 2009 and reiterated at para.4 of the Affirmation of the solicitor) had taken the stance that the two expert reports that had already been admitted were sufficient to meet the defence’s case without any expert evidence from the Defendant.  As far as the court was concerned, that remained to be the position when it acceded to the Plaintiff’s application to set down the case for trial.

29.  However, as revealed under paragraph 6 of the Affirmation of the solicitor, by early October the Plaintiff had already obtained counsel’s advice that a more comprehensive expert report on causation should be commissioned.  Despite that, the solicitor did not inform the court of the Plaintiff’s intention to obtain a further expert report when he set down the case for trial.

30.  As mentioned, Mr Chong told me that the Plaintiff intended to put in the new expert evidence irrespective of the outcome of the Defendant’s application to admit his expert evidence.  That being the case, in my judgment, proper case management requires the Plaintiff to make a prompt application for leave.  It is quite apparent to me that in September 2009 the Plaintiff had second thoughts about the sufficiency of its own expert evidence in the form of the two reports already disclosed in 2008 and wished to supplement the same with a report by Mr Erik Cheung.  Instead of proceeding to set down the case for trial, the Plaintiff should have obtained the report and made the application for leave to admit such evidence in October 2009.

31.  At paragraph 6 of the Affirmation of the solicitor, it was suggested that despite counsel’s advice on the need for a more comprehensive expert report, the Plaintiff had not decided to adopt such a course and little action had been taken in that regard.  But Mr Cheung had been engaged and test had been performed in September 2009.  If it was a deliberate decision on the part of the Plaintiff to withhold the application pending the development as regards the Defendant’s expert evidence, the Plaintiff chose to take the risk that if the court refused leave to admit the Defendant’s evidence it might be too late for the Plaintiff to seek leave for admission of Mr Cheung’s report.

32.  Since the CJR, it is wrong for litigants and their legal representatives to assume that they can put in additional evidence by agreement between themselves after a case has been set down for trial, particularly if the new evidence could proliferate issues, disrupt the readiness of the case for trial or otherwise prolong the trial.  In respect of expert evidence, the parties should keep the court informed in order to facilitate the court in the performance of its case management duty.  If the new evidence could disrupt the readiness for trial or prolong the trial beyond the time allocated for the case, the court may refuse leave.  Further, the court could insist on having a proper joint report at a reasonable time before the trial commences.  The trial judge and counsel need time to digest the joint report in order to conduct the trial efficiently.

33.  The Plaintiff’s solicitor said between 8 October 2009 and 24 February 2010 he had repeatedly urged the Defendant’s solicitor to proceed with the latter’s application for leave to file new evidence.  He said he also made known to the Defendant that the Plaintiff would file further expert report in reply.  He was hoping to deal with the matter by consent.  As explained above, this is not the proper approach.  In any event, it could only excuse the Plaintiff in terms of not taking step with regard to expert evidence in reply.  If the court were to dismiss the Defendant’s application, there was nothing to reply to.  Thus, with the dismissal of the Defendant’s application there was no justification for the Plaintiff to put in its expert evidence as evidence in reply.

34.  During that period, the Defendant did not make any progress in seeking leave for the admission of his expert evidence.  Actually, the Defendant’s expert report was first shown to the Plaintiff’s solicitor on 5 March 2010 in draft form bearing a date of 9 July 2009.  The final form of the report was dated 22 March 2010.  Before that, at a hearing on 19 March 2010 the Defendant intended to make an application for leave to admit his expert report without any summons or supporting affirmation.  The draft report was not shown to the court.  Counsel for the Plaintiff indicated that the Plaintiff had no objection provided that the Plaintiff had leave to file expert evidence in reply.  Counsel did not indicate that the evidence in reply would come from an expert other than the two experts who had already filed their reports.  Parties apparently did not give any thoughts to directions for expert meeting and joint expert report.

35.  The court was not minded to deal with the application in such a manner.  I raised the potential disruption that could be caused by the need for expert joint meeting and joint report.  Counsel for the Plaintiff indicated that the Plaintiff could co-operate to work out a timetable to facilitate the proper preparation of the new expert evidence.  A timetable was proposed and agreed between the parties.  I must emphasize that the court did not given any directions in accordance with that timetable[1] because the court had not yet decided whether leave should be granted to the Defendant to use his expert report.  The court only took note of the parties’ position.  Instead the court directed the Defendant to file a proper application by summons and supporting affirmation by 24 March 2010.  That led to the issue of the summons of 24 March by the Defendant.

36.  The affirmation of the Defendant’s solicitor of 24 March 2010 was filed to support an application seeking the court’s indulgence for the late admission of an expert report which should have been obtained soon after the Plaintiff served its two expert reports in late 2008.  At the risk of being repetitious, I stress again the importance of a party and his legal representative to be full and frank in any evidence filed in support of such application.  Having read the affirmation, I must say that the information provided by the Defendant’s solicitor is woefully inadequate.  There is no real attempt to explain why the preparation of expert evidence was not undertaken by the Defendant in accordance with the direction of the master given on 28 April 2009.

37.  The Defendant’s solicitor simply said counsel advised on evidence and it was decided that the Defendant needed to adduce expert evidence.  As a result the expert was engaged.  There were several revisions to the draft report leading to more time than expected being spent on its production.

38.  In the affirmation, there was no information as to the date on which the Defendant obtained counsel’s advice as to the need for his own expert evidence.  As mentioned earlier, such need was alluded to in the Checklist of 7 April 2009.  I was not told when was a decision made by the Defendant to engage expert.  Nor was I told when was the expert actually engaged.  Judging from the date shown on the draft report sent to the Plaintiff’s solicitor on 5 March 2010, the expert was probably engaged before 9 July 2009.  Yet the report was only finalized on 22 March 2010.  I have read the report and I simply cannot see how it could have taken the expert such a long time to complete the report.  I do not believe the delay was due to the dilatoriness on the part of the expert.

39.  Considering these against the background that the master had already granted an indulgence to the Defendant by giving him 42 days from 28 April 2009 to file his expert report, and the case had been set down for trial, the Defendant and his legal representatives should appreciate the need to proceed promptly and diligently if they wish to seek leave to file his expert report.  As it happened, the Defendant did not put forward a formal application for leave supported by evidence until 24 March 2010.  Such procrastination is a serious dereliction of the Order 1A Rule 3 duty on the part of the Defendant and his legal representative.

40.  The Defendant solicitor also referred to the fact that there was no objection on the part of the Plaintiff and there would not be prejudice to the Plaintiff.  He said the trial date would not be affected as no adjournment is needed.

41.  As far as the stance of the Plaintiff is concerned, I have already explained why the approach of the parties had been misconceived.  Since the implementation of CJR, parties cannot expect that in respect of case management matters the court will simply adopt the agreement of the parties, particularly in respect of late admission of evidence which might disrupt or prolong the trial.  Further, the parties failed to address to the need to have expert meeting and joint report and the time for the same.  Thirdly, the Defendant had not envisaged that the Plaintiff would be seeking to adduce expert evidence in reply from another expert and the Defendant had problems with that.  As I said, up to the present moment, the parties have not been able to procure a joint report from the two new experts.

42.  In the light of the developments since the summons of 24 March 2010, there is a real likelihood that if I were to accede to the Defendant’s application a proper joint expert report would not be ready and the trial would be prolonged.

43.  Further, I do not find the Defendant’s expert report of be of much assistance for the resolution of the issues which I have to decide at the trial.  The expert referred to two different categories of water proof materials at para.2 of his report and then stated at para.3.1(b) that the material “cementitious mixture with additives of liquid/power” was not suitable for the job in question involving Y-tong block.  There was no reference in the pleadings or evidence filed so far to identify the water proof materials that were actually used on this project.  The unfitness of the water proof material is not a matter pleaded in the Amended Defence and given the imminence of the trial the court is unlikely to grant leave for this new allegation to be put forward.

44.  The Defendant’s expert had not carried out any inspection at the subject premises.  Yet he was able to suggest at para.3.1(a) of his report that water seepage could be caused by the spalling concrete not being made good before the application of waterproof material.  The main dispute between the parties is the term of the contract.  The Plaintiff averred that the Defendant had the contractual obligation to carry out effective water proof painting work at the lavatories in question.  On the other hand, the Defendant said he only provided labour for putting on a layer of water proof material provided by the Plaintiff and did not guarantee its effect.  Thus, if the Defendant were correct as to the term of the contract, he would not be liable for the water seepage.  If he were not correct, he must be taken to have guaranteed the water proofing effect.  In that case he would be responsible for the improper application of waterproof material before making good the spalling concrete.

45.  Paras.3.1(d) and 4.3 contained other speculations by the expert as to possible causes of water seepage.  I do not find such speculations helpful when the expert had not even inspected the site in question and conducted tests thereat.

46.  As regards the other statements in the Defendant’s expert report, it contains general assertions rather than evidence on matters that the court requires assistance from an expert.

47.  On the whole, the probative value of the Defendant’s expert report is very low.  Bearing in mind the potential disruption its admission could cause to the trial and the complete lack of explanation as to why the Defendant did not prepare his expert evidence in a timely manner, and the failure of the Defendant to comply with the direction of the master despite indulgence having been granted, I am firmly of the view that it would not be right to grant leave to the Defendant to adduce the expert evidence attached to the summons of 24 March 2010.  That application is dismissed.  It follows that no weight would be attached to the paragraph in the supplemental witness statement referring to the expert report.

48.  Turning now to the Plaintiff’s application, once I have rejected the Defendant’s application, the Plaintiff cannot justify a further expert report as evidence in reply.  Further, as I have mentioned, since the Plaintiff chose to withhold the application pending the development as regards the Defendant’s expert evidence, it deliberately took the risk that if the court refused leave to admit the Defendant’s evidence it could be too late for the Plaintiff to seek leave for admission of a further expert report to supplement its own expert evidence.

49.  The Plaintiff had not been as frank and candid about the preparation of the report of Mr Cheung as it should have.  At the hearing on 19 March 2010, there was no indication from the Plaintiff that a third expert had been engaged and tests had been performed at the subject premises.  I must say the conduct of the Plaintiff in relation to this matter smacks of an attempt to take advantage of the dilatoriness of the Defendant in the preparation of his expert report to put in Plaintiff’s supplemental expert evidence by way of ambush.  Such forensic manoeuvre is not in line with the duty of a party and his legal representative under Order 1A Rule 3.  As the Defendant pointed out, if I were to allow the Plaintiff to put in the report of Mr Cheung at this late stage, fairness requires that a chance be given to the Defendant to respond to the same.  And there is simply not enough time between now and the commencement of the trial for that to be done.

50.  I do not see any good reasons why the Plaintiff could not have pursued with its own application for further expert evidence before it set down the case for trial if it intended to use such evidence irrespective of the outcome of the Defendant’s application.  Had the Plaintiff done so, it might have expedited the preparation of expert evidence by the Defendant.

51.  In the circumstances, I do not think it is in the interest of the fair and expeditious resolution of the dispute to grant leave to the Plaintiff to use the expert report of Mr Cheung.  I dismiss the Plaintiff’s summons.

52.  I shall hear parties on costs of the summons at the trial.

[1] In this regard, the Defendant’s solicitor had been mistaken when he said otherwise at para.8 of his Second Affirmation of 30 April 2010. Likewise, he was mistaken at para.15(1) about the Defendant’s application having been refused on 27 April 2010. The application was reserved to be decided together with the Plaintiff’s application. This Decision disposes of both applications.