FORMOSA TAFFETA CO LTD v. BANQUE INDOSUEZ

HCA5165/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.5165 OF 1997

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D E C I S I O N

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1. This is an appeal against a decision of Master Yuen who on 10 January 2003 granted the plaintiff's application to call a banking expert to give evidence at trial.

2. Having heard Mr Erik Shum, for the defendant and Mr Clifford Smith, SC for the plaintiff I have concluded that the court's jurisdiction to determine the admissibility of expert evidence at this interlocutory stage should not be invoked in this case. The issues in this case are not sufficiently clear and obvious for the court to exercise its discretion to determine the matter now. The purpose of the evidence sought by the plaintiff is not to determine the issues at trial but to provide expert opinion on those issues. The trial judge may rule the evidence inadmissible, the trial judge may admit the evidence but not rely it or the trial judge may accept the evidence and be assisted by it. In a case of this nature, to deprive the trial judge of those choices would, in my judgment, be wrong. However, I do sympathise with the defendant's position to one limited extent. Without sight of the plaintiff's expert report it will be difficult for the defence to know how to instruct its expert to give his or her opinion. Accordingly I propose by the directions which follow to make one alternation to the Master's order but otherwise this appeal will be dismissed. The directions are as follows :

(1) Leave to the plaintiff to call one banking expert. His report shall be filed and served on the defence within 28 days hereof. The report shall be limited to the expert's opinion on whether the advice given by the defendant to the plaintiff prior to the sale of One Holding bills of exchange dated 8 and 28 January 1997 ("the Bills") to the defendant was given negligently as alleged in paragraph 19 of the Amended Statement of Claim and whether the defendant had a conflict of interest in advising the plaintiff to purchase the bills as alleged in paragraph 21 of the Amended Statement of Claim.

(2) Leave to the defendant to file and serve, if so advised, an expert report in reply within 28 days of the plaintiff's expert report and leave to call that one expert as a witness at trial.

(3) Leave to the plaintiff to file and serve a supplementary report in reply to the defendant's expert report, if so advised, within 21 days thereafter.

[Discussions on Costs]

3. Having now heard the parties on the question of costs, my order is :

(1) Paragraph 2 of the learned Master's order dated 10 January 2003 shall remain.

(2) Paragraph 3 of the said order shall be deleted and costs of this appeal shall be to the plaintiff, with a Certificate for one counsel.