ECHELLES RIFFIAUD S.A. v. THE SECRETARY FOR JUSTICE (ON BEHALF OF THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION)

HCA 1841/2011

[2022] HKCFI 2675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1841 OF 2011

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BETWEEN

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R E A S O N S    F O R    D E C I S I O N

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Introduction

1.  This was the pre-trial review for a trial which will commence on 14 November, ie in less than 3 months’ time. There were 2 belated applications by the Plaintiff for leave:

(1) To amend its statement of claim (“Amendment Summons”); and

(2) To adduce the supplemental witness statement (“Courtot-SWS") of its only witness Mr Courtot and a supplemental expert report (“Evidence Summons”).

2.  It could not be denied that these were very late applications and they involved substantial matters. Mr Lui, counsel for the Government, pointed out that the Government’s representatives had not been able to meaningfully digest and comprehend the highly technical and complicated evidence attached to the Evidence Summons. And yet the Government had, very generously, agreed not to contest the 2 Summonses subject to deletion of paragraphs 35-37 of the Courtot-SWS and Tables A and B thereof (collectively “Disputed Parts”); and subject to the inconvenience and disruption to the trial preparation being contained by proper directions (which had been given at this hearing).

3.  The Government’s objections to the Disputed Parts were that:

(i) Mr Courtot, as a factual witness, purported to give opinion evidence on a subject for experts, and

(ii) there was delay in this application.

The Plaintiff disagreed and claimed that the Courtot-SWS was about facts, stated in response to the expert evidence and that Mr Courtot himself has had experience with the Plaintiff for 27 years to speak about those facts.

4.  After hearing the parties, I held that the Disputed Parts should be excluded. I gave 49 days for the Government to respond to the Courtot-SWS, 49 days for the Government’s expert to prepare his supplemental report in response and for a supplemental joint report to be prepared by 31 October 2022. Here are my reasons.

Background

5.  The present action concerns the provision of firefighting equipment to the Fire Services Department via the Government’s tenders awarded to the Plaintiff through Contracts A, B (both for hydraulic platforms) and C (for turnable ladders). The Plaintiff’s goods in relation to Contracts A and B were tested and were put into service by the Government. The Plaintiff says that although it provided relevant testing parameters under Contract C, that contract was improperly terminated by the Defendant. The Plaintiff thus claims damages representing outstanding payments under the Contracts.

6.  The Government, on the other hand, says, amongst others, that there were 6 types of “critical defects” and nearly 60 types of “non-critical defects” in relation to Contracts A and B. The Government thus terminated the 2 Contracts. In relation to Contract C, the Government says that the testing parameters were not provided. These allegations are denied by the Plaintiff.

7.  The Court will be looking into dealings between the parties over the course of about 4 years following the issuance of tender in 2017. As expected, this case rests heavily on expert evidence on technical and specialist mechanical engineering issues. Reports and Joint Statements have been filed by experts on both sides.

8.  The Plaintiff explained that after it came under new management, it has persisted in a commercial approach that focused on amicable settlement over the past 3 years, bearing in mind the substantial legal costs involved. And yet the Government adopted an “unconstructive attitude”. It was only after open correspondence in May 2022 that settlement negotiation became more meaningful.

9.  Whilst attempts to settle have continued, the Plaintiff reviewed its position in order to ensure that all the necessary and relevant information was put before the Court for the trial. The Plaintiff decided to call only one factual witness – Mr Courtot. Two other witnesses (Mr Camus and Mr Moreau) have prepared witness statements but they would not be called as they had left the Plaintiff’s employment.

10.  It is the Plaintiff’s case that the “substance” of Courtot-SWS was already in the witness statements of Mr Camus and Mr Moreau. Mr Courtot just gave more “details” and clarifications now. As the Government only sought to contest the authenticity of particular emails after filing supplemental witness statements, Mr Courtot should be given an opportunity to respond.

11.  Relevance of the Disputed Parts was not in issue.

Guiding Principle

12.  I bore in mind that the primary aim of the Court was to secure the just resolution of disputes in accordance with the substantive rights of the parties.

13.  Against that, the Court had to give proper respect to case management. Numerous opportunities have been given for the parties to file witness statements and expert reports. For a case as substantial as the present, the parties’ attention should now be focused on preparation of the trial. To ask for leave to adduce substantial new evidence in less than 3 months before trial was an ambush on the opponent and leave should not be granted save for cogent reasons.

Courtot-SWS giving expert opinion evidence

14.  Mr Lui was not disputing Mr Courtot’s move to give evidence that was covered by Mr Camus and Mr Moreau, but he submitted that the Disputed Parts purported to give expert opinion evidence rather than state facts. Mr Lui has drawn my attention to a few items, eg items 4, 6, 26, 40 in Table A. There were items in Table B of similar nature, eg items 3, 6, 13, 17. I agree with him that Mr Courtot was purporting to express views as an expert and that was not permissible.

15.  I have briefly gone through Tables A and B. Truly, Mr Courtot made assertions like, “The Defendant did not illustrate or explain …”, “the Defendant made no allegation that …”. These might be factual in nature. However, there were also expert opinions mixed with those factual statements. The Defendant should not be left with the unenviable task of sifting out expert evidence from a witness statement especially at this late stage before trial.

16.  Further, if the Plaintiff was correct that the Courtot-SWS only added “details”, one wondered why those details have not appeared in any of the witness statements of Mr Camus and Mr Moreau.

Delay in application

17.  Even if the Courtot-SWS contained only factual evidence, the delay in making this application was substantial:

(1) The witness statements were exchanged in May 2015, over 7 years ago;

(2) The supplemental witness statements were exchanged in December 2019 and January 2020, over 19 months ago;

(3) The expert reports were exchanged in December 2018, over 4 years and 8 months ago; and

(4) The joint expert report was prepared on 11 June 2019, over 3 years ago.

18.  There had been ample time before this PTR for the Plaintiff to adduce the “details” and make clarifications, if it had so wished, but they failed to do so.

19.  The only excuse for the present late application was that the parties focused on exploring the possibilities of settlement and the present application was made after a recent thorough review of the case.

20.  With respect, settlement could not be used as an excuse to justify a late application to adduce evidence. Otherwise, a party could always attempt settlement to justify its own delay in properly preparing evidence.

21.  In the present case, the Masters have given 4 orders for stay for the parties to explore settlement. The last order for stay was up to 31 May 2014. There had been 8 years after that for the Plaintiff to make the application to adduce further witness statements.

22.  Further, on the evidence of Mr Dennis Ho, the Plaintiff’s own solicitor, the alleged settlement efforts restarted in the last quarter of 2020 after the witness statements and expert evidence have been fully filed. Once settlement failed, the Plaintiff ought to have made the present applications to the Court. The Plaintiff has been represented by lawyers for the last 10 years. It was absurd to suggest that the Plaintiff was only recently advised by lawyers on how better to present its evidence.

23.  Mr Dennis Ho deposed to the “unconstructive attitude” of the Government in the settlement negotiation. With respect, it was wholly inappropriate for the Plaintiff to make such an allegation now (as opposed to, eg the time when costs have to be argued after trial). Negotiation for settlement was confidential. What did the Plaintiff expect the Government to do to respond to the allegation of unconstructive attitude – to give evidence that the Government has made reasonable offers on such and such a date on such terms? The Government has tried to justify her failure to settle on the basis of the Plaintiff’s poor expert evidence (including the failure to include key documents relied on by its own expert). The Court simply was not in a position to and should not at this stage resolve a dispute as to who was responsible for the failure to enter into settlement.

24.  The allegation of unconstructive attitude was simply tactical in creating a negative impression of the Government on the trial judge. I shall disregard the allegation in the present application and at the trial.

Conclusion

25.  Taking all circumstances into account, I was of the view that no cogent reasons had been given for seeking to adduce the Courtot-SWS at this late stage, especially since it purported to give expert opinion. Accordingly, I ordered that the Disputed Parts be excluded.

26.  I have ordered that all costs arising out of the Evidence Summons be borne by the Plaintiff, regardless of the outcome of the trial, and that would include the costs arising out of the Disputed Parts.

27.  I thank counsel for their assistance.