GM SA aka DG, M S v. DDPJ

FCMC 9657/2016

[2021] HKFC 244

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 9657 OF 2016

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D E C I S I O N

(Expert Evidence)

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This Application

1.  This is the Respondent’s (Husband’s)  application by way of Summons dated 16/6/2021 (somehow it was filed on 2/7/2021)  seeking leave to adduce expert evidence on French Law in respect of a Pre-Nuptial Agreement (“PNA”)  entered into by the parties in France back towards end of August 1999.

Background

2.  For the sake of convenience, I will refer to the Respondent (Husband)  as “H” and the Petitioner Wife as “W” in this Decision.

3.  Both parties are French nationals.  They married to each other in France in September 1999 which is about a week after the PNA was signed.  There are 2 children of the family aged 15 and 12.

4.  On 1/8/2016, W filed a Petition for divorce (which was dated 29/7/2016).  Both parties were legally represented by reputable law firms with substantive experience in matrimonial practice.  Prior to the filing of the Petition, there were negotiation between the parties’ lawyers over children matter and finances which ended up with 2 Consent Summonses drawn up and signed in July 2016.  The 2 Consent Summonses were filed with the Court at the same time when the Divorce Petition was issued.

5.  Her Honour Judge Melloy, as the docket judge of the case who granted the Decree Nisi on the uncontested divorce, approved the 2 Consent Summonses and granted the respective orders on 20/9/2016.  I will refer to the orders as “Children’s Consent Order” and “AR Consent Order” in this Decision.

6.  Shortly thereafter, H took out a Summons on 14/10/2016 seeking leave to appeal the Decree Nisi, the Children’s Consent Order and the AR Consent Order.  H alleged that there was misrepresentation and non-disclosure of material facts on the part of W as to her relationship with a man (whom I will refer to him as “T” in this Decision)  and also W’s intention to relocate to Europe with the 2 children. H’s application for leave to appeal was first dismissed by this Court and later by the Court of Appeal.

7.  Decree Absolute was granted on 15/11/2017.

8.  Suffice here is to say that, apart from the said leave to appeal application, there were other protracted litigation instigated by H on almost every decision of this Court, such as on ruling on costs in respect of relocation of the children; on ruling over jurisdiction to enforce the AR Consent Order; leave to appeal this Court’s ruling on jurisdiction; leave to appeal on a substantive ruling on chattels, property and jurisdiction; and also decision made at a hearing on taxation[1].

9.  For H’s leave to appeal the AR Consent Order, the Appellate Court in their decision[2] ruled that the proper application should be by way of writ of summons to seek for setting aside the AR Consent Order as opposed to seeking leave to appeal. 

10.  In October 2017, H issued a Writ of Summons in the Court of First Instance under HCA No.2431/2017 (“HCA”)  for his setting aside application.  

W filed a Summons seeking transfer of H’s application to the Family Court on the basis that Her Honour Judge Melloy is more familiar with the case than any other judge.  W’s application was opposed by H on the ground that the factual and legal issues pleaded in his statement of claim are of such complexity that the Court of First Instance is the natural forum for determination. 

11.  On 8/1/2021, Hon Au-Yeung J handed down her written Decision in the HCA and ruled that there is no complexity that justifies H’s case to be dealt with by the Court of First Instance.  The HCA was ordered to be transferred to the Family Court.

Chronology after transfer to the Family Court

12.  There was a directions hearing scheduled for 31/5/2021 before Her Honour Judge Melloy. 

13.  On 27/5/2021, parties filed a Consent Summons to vacate the hearing on 31/5/2021 which also contained a number of agreed directions in preparation for the trial of the HCA which had been transferred from the Court of First Instance.  Parties agreed that the HCA be set down for trial with 5 days reserved in consultation with Counsel’s diaries.  They also agreed that there will be a Pre-Trial Review 60 days before commencement of the trial (“Agreed Directions”).  Suffice it is to say that no directions on expert evidence were sought by the parties in the said Consent Summons.

14.  On 28/5/2021 Her Honour Judge Melloy granted an order in terms of the said Consent Summons.  The hearing on 31/5/2021 was therefore vacated.

15.  The Pre-Trial Review has now been scheduled for 14/12/2021.  The 5-day trial was scheduled for 6^th, 7^th, 12^th, 13^th and 14^th April 2022.

16.  On 16/6/2021 which is just over 2 weeks after the Agreed Directions were granted, H issued the present Summons for leave to adduce expert evidence on French Law at the forthcoming trial in April 2022.

17.  On 30/8/2021 this Court directed that H’s application for leave to adduce expert evidence be disposed of on paper and granted directions for parties to exchange written submissions.

The Parties’ positions

Husband (H)

18.  H’s case, as per his Counsel’s written submissions[3] and reply submissions[4], can be summarised as follows :-

-  At the time of the AR Consent Order, there was non-disclosure of material facts by W as to her relationship with T and her intended relocation with the children to Zurich;

-  H did not rely on the French PNA because he was unaware of W’s non-disclosure;

-  W’s non-disclosure could either be deliberate or fraudulent[5]; or either by mistake or inadvertent[6];

-  In whatever case of non-disclosure, expert evidence on French Law is clearly relevant to the necessary consideration of the application or impact of the PNA in that, had proper disclosure been made, there would have been a different order on parties’ finances;

-  Expert evidence is intrinsically necessary to assist the Court in its evaluation of the impact of any pre-nuptial agreement and to enable the Court to fairly determine the matter before it;

-  Parties have extensively pleaded the PNA in the HCA.  W was the first party to adduce expert evidence explicitly in recognition of the issue concerning French law and the PNA as a crucial issue requiring determination by the Court[7];

-  Parties have produced their respective expert evidence in their own Lists of Documents under the HCA[8];

-  Parties have referred to the PNA in their own witness statements which would stand as evidence for the forthcoming trial in April 2022[9];

-  There was no delay of H to challenge the AR Consent Order since he lodged his application for leave to appeal only 35 days after the AR Consent Order was granted[10];

-  There was no opportunity for H to apply for leave to adduce expert evidence whilst his case was with the Court of First Instance[11] [see Note 1];

-  The absence of expert evidence directions within the Order dated 28/5/2021 granted by Her Honour Judge Melloy was clearly an administrative error.  However, the reference in the Order to all witnesses who have filed evidence would cure such error[12];

-  It is contradictory for W who did not object to inclusion of expert evidence since 2018 but now for her to object to the inclusion whilst having admitted the relevancy of expert evidence in her Reply filed in the HCA; adducing her own expert evidence on French Law and the PNA, even before H filed his expert evidence; and her own witness statement showing the import of the PNA[13] [see Note 2];

-  Expert evidence have been filed and the only outstanding matter is for arranging joint expert report[14].

19.  Further, H submitted that he would not have agreed to the terms of the AR Consent Order had he known W’s relationship with T.  H would then have relied on the PNA.  It was said that the basis upon which the AR Consent Order was agreed to by H was undermined by W’s deliberate non-disclosure.  The expert evidence sought to be adduced would assist the Court’s analysis as to the validity, impact and application of the PNA in considering whether a different financial order would have been made[15].

[Note 1 : W’s lawyers in their letter dated 19/10/2021 opposed to H’s submission being inaccurately made]

[Note 2 : W’s lawyers in their letter dated 22/10/2021 further opposed to H’s submission being erroneously made]

Wife (W)

20.  For W’s case, it was submitted that H’s application was

(i)  inexcusably late; and

(ii)  without merits as he is seeking leave to introduce irrelevant materials[16].

21.  On the first limb of inexcusably late, the divorce proceedings were commenced in August 2016 (which is more than 5 years ago).  Decree Absolute was granted in November 2017 (which is almost 4 years ago).  The AR Consent Order was granted in September 2016 (which is more than 5 years ago). 

22.  On the second limb of without merits, there are no live issues for trial which requires expert evidence on French Law for proving it.  Currently the Court was not dealing with financial ancillary relief.  At ancillary relief trial, it might be relevant to consider French Law.  However, at present, it was at the stage of setting aside the AR Consent Order in 2016.  If it was not set aside, the AR Consent Order holds good and there can be no revisiting of ancillary relief.  It is only when the AR Consent Order was set aside, then it might become relevant during the course of “re-opened” financial ancillary relief to then consider French Law by way of expert evidence.

23.  The impact of the foreign PNA might be relevant to financial ancillary relief.  However, this does not make it relevant to the trial of a setting aside application which is premised upon misrepresentation as to material facts.  In the present case, French Law was not a relevant representation nor was it material[17].

24.  Further, W submitted that H’s own formulation of the issues was in effect saying that Hong Kong law should be guided by French Law.  This “back-door” evidence of Hong Kong law is plainly inadmissible.

25.  It is also W’s case that H’s beliefs at the time of the AR Consent Order are questions of fact which could not be proved or disproven by French Law[18].

The applicable legal principles

26.  I will start with some cases and authorities which are of relevance to the present application.

27.  The principles applicable to setting aside consent orders are trite and without much dispute between parties.  Both parties referred me to the case of Sharland v Sharland[2015] 3 WLR 1070 and a couple of other cases, of which I will only refer to them whenever it is necessary.

28.  Sharland is a case where the parties reached settlement and consent order was made.  Whilst pending the consent order to be sealed, wife discovered there was material non-disclosure by the husband and she applied for the consent order not to be sealed and for resumption of financial provision.  The Court of Appeal, having found the husband had been dishonest and seriously misleading in his evidence, refused the wife’s application because the consent order was not substantially different from the order that it would have made if there had been full disclosure at the outset.  On further appeal, the Supreme Court found for the wife, ruled that since she was the victim of the husband’s misrepresentation, was deprived of a full and fair hearing of her claims and allowed her appeal to reopen her case. 

29.  Apart from the Sharland case, the following cases are of relevance to this application.

30.  In the Court of Appeal decision in Man Lan Ying v. Leung Tsan Chung, unreported, CACV No.150/2006, where Hon Tang VP (as he then was)  said :-

“2. The law on the setting aside of consent orders on the ground of non- disclosure is clear. Each party owed a duty to make full and frank disclosure of all material facts to the other party and to the court, and that the principle of full and frank disclosure applied not only to the contested proceedings, but also to exchanges of information between parties and their solicitors leading to consent orders without further inquiry by the court. See Jenkins v. Livesey [1985] 1 AC 424. These principles are of equal application in Hong Kong.

3. However, in Jenkins, Lord Brandon of Oakbrook added: “……an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possible be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter of matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund.

4. So here, what we have to consider is, whether in fact there has been any material non-disclosure on the part of the petitioner. If so, whether such non-disclosure would have made any substantial difference to the order     which the court would have made or approved.” 

31.  In the case of Smart Trike Mnf. Pte. Ltd & others v. Chiu Sui Chun & others [2018] HKCFI 562 where Deputy Judge Marlene Ng (as she then was)  said :-

“40. Generally speaking, consent orders may be divided into 2 types, ie (a) those that embody or evidence a contract between the parties, and (b)  those that were made by the parties without objection.

41. In relation to a consent order in paragraph 40 (a)  above, since the order embodies or evidenced a contract made by the parties to settle/compromise their dispute in the case or on a particular point, it can only be disturbed (whether on appeal or otherwise)  if there exists one or more of the recognised vitiating factors that would allow a party to disturb a contract, such as fraud, illegality, mistake or misrepresentation.

………….

43. In Chevalier Property Management Limited, the parties signed a consent summons that upon the 1^st defendant’s undertaking that it would abide by the Extended Management Agreement, the plaintiff’s action would be discontinued and the injunction the plaintiffs obtained against the defendants would be dismissed with costs to be paid by the 2^nd defendant. DHCJ Burrell made a consent order in terms of such consent summons. The 2^nd defendant wished to set aside the consent order on the basis that the injunction should not have been made in the first place. DHCJ Burrell refused leave to appeal, and the CA dismissed the renewed application for leave to appeal. Cheung JA giving the decision of the court stated as follows :

“3. Grounds for setting aside a consent order are well known an are restrictive, such as the consent order was obtained by fraud, mutual mistake etc. None of these is relied upon in this case. The transcript of the hearing before the Judge clearly shows that the 2^nd defendant knew that he was agreeing to the terms of the consent summons before he appended his signature to it. Whether the injunction was property obtained in the first place or now was irrelevant and was not a ground for setting aside the consent order.”

(my emphasis).

55.   For the sake of completeness, I shall briefly mention the effect of a consent order under paragraph 40 (b)  above.  Even though such consent order may be described as “by consent”, it is merely an order of the court, which can be disturbed (whether on appeal or otherwise)  according to normal principles…….”

32.  In the case of Falcon Private Bank Ltd v. Borry Bernard Edouard Charles Limited & others , unreported, HCA No.1934/2011, where Hon To J said :-

“52. Material facts are those facts which are material for the judge to know in dealing with the application. Materiality is to be decided by the court and not by the assessment of the applicant or his legal advisors: see: Rex v. Kensington Income Tax Commissioners, Ex parte Princess Edmond de Polignac at 504 per Lord Cozens-Hardy MR, Thermax Limited v. Schott Industrial Glass Limited [1981] FSR 289 at 295 per Brown-Wilkinson J.

33.  In the case of Standard Chartered Bank (Hong Kong)  Limited v. Lau Lai Wendy & others , unreported, HCA No.1478/2017, where Deputy Judge R Pang S.C. said :-

“28. The test of materiality is objective. “The duty extends to placing before the court all matters which are relevant to the court’s assessment of the application, and it is no answer to a complaint of non-disclosure that if the relevant matters had been placed before the court, the decision would have been the same. The test as to materiality is an objective one, and it is not for the applicant or his advisers to decide the question; hence it is no excuse of the applicant subsequently to say that he was genuinely unaware, or did not believe, that the facts were relevant or important. All matters which are relevant to the ‘weighing operation’ that the court has to make in deciding whether or not to grant the order must be disclosed.” (Gee on Commercial Injunction, 5^th ed at para 9.002)”

34.  Having referred to the above cases on the materiality of facts that need to be disclosed, it is interesting though to also look at the legal principles for admissibility of expert evidence.  In the unreported case of Yeung Ga Wai v. Lau Ming Shum in HCA No.798 of 2004 where Mr. Registrar K.W. Lung said :

“7. The relevant legal principles for admissibility of expert evidence can be seen from the judgment of the Hon. Madam Justice Chu in Wong Hoi Fung v. American International Assurance Company (Mermuda)  Limited & Shrila Chan HCA 4576/2001 at :

“ The legal principles

11. Modern judicial authorities recognize that the court has inherent power to rule on the admissibility of expert evidence at a pre-trial stage: Woodford and Ackroyd v. Burgress [2000] 2 CP report 79, Ko Chi Keung v. Lee Ping Yan Andrew [2001] 2 HKC 63 and Annabell Kin Yee Lee & Others v. Lee Wing Kim (May Lee)  & Anor (unreported), HCA 9522/1997. Where the proposed expert evidence is plainly inadmissible or irrelevant, the court ought to exercise its discretion to refuse the admission of such evidence. But where the court cannot form a clear view on the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at the trial: Ko Chi Keung v. Lee Ping Yan Andrew (supra), at p.67 and Annabell Kin Yee Lee & Others v. Lee Wing Kim (May Lee) & Anor (supra), at p.15.

12. In deciding whether certain proposed expert evidence should be received, the relevant test has been stated to be a two-stage one.  Firstly, the evidence has to be admissible as “expert evidence” for the purpose of section 58 of the Evidence Ordinance, Cap.8.  Secondly, the evidence must be relevant, in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved: Barings plc (in Liquidation)  & Anor v. Coopers and Lybrant & Ors, Lexis Transcript, 9 February 2001, Evans-Lombe J at paras 44-45.”

8.  Section 58 of the Evidence Ordinance provides :

(1)   Subject to any rules, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.

(2)   Where a person is called as a witness in any civil proceedings a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

(3)   In this section, “relevant matter” ( )includes an issue in the proceedings in question.

9.  Therefore it can be seen that the expert is only entitled to give his opinion on any relevant matter. He is not entitled to give evidence on the fact of the matter.

10.  Whether the expert evidence as proposed is relevant to the issue in the proceedings in question determines this application.”

35.  In the personal injury case of Fung Chun Man v. Hospital Authority & Anor, HCPI No.1113/2006, Hon Bharwaney J sets out the relevant legal principles of adducing expert evidence which I find them particularly useful.  Although this is a personal injuries case, I see no reason why the legal principles do not apply generally over all other civil proceedings, including family court cases.

“The relevant legal principles

4. Even prior to the enactment of the Civil Justice Reform (“CJR”), the right of the parties to adduce expert evidence at trial was subject to the leave of the court. However, it is fair to say that leave was usually granted, provided that the person seeking to call such evidence established the expertise of the individual concerned and disclosed the substance of his or her opinion evidence in written form prior to trial. The prevailing judicial view was to allow the parties to call the experts of their choice, just as they could call factual witnesses of their choice……..

9. The enactment of the CJR did not result in a change to O.38 r.36 of the Rules of the High Court (“RHC”). However, after the enactment of the CJR, it is clear that the court’s discretion, whether or not to grant leave to a party to adduce expert evidence is to be exercised within the ambit of the court’s management powers. Those powers must be exercised in the light of the underlying objectives of the CJR, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the important of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

10. The court recognise that the primary aim of its case management powers is to secure the just resolution of the dispute in accordance with the substantive rights of the parties. However, the substantive rights of the parties to a personal injury action do not include a legal right to call experts of their choice.

11. The expert evidence can only be adduced with leave of the court and, in deciding whether or not to grant leave, the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR.

12. In this regard, I now echo the observations of Evans-Lombe J in Barings PLC v. Coopers & Lybrand (No.2) [2001] Lloys Report Bank 85:

“45. Expert evidence is admissible…..on any case where the court accepts there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues where it has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.”

13.  The Court of Appeal in Mann v. Messrs. Chetty & Patel (a firm) [2000] EWCA CIV 267 proposed 3 questions that ought to be asked before deciding to allow expert evidence :

“(a)  how cogent the proposed expert evidence will be;

(b)  how helpful it will be in resolving any of the issues in the case;

and

(c)  how much it will cost and the relationship of that cost to the sums at stake.”

14.  Chu J, as she then was, referred to Barings PLC v. Coopers & Lybrand and concluded, in Wong Hoi Fung v. American Assurance Co. (Bermuda)  Ltd. [2002] 3 HKLRD 507, that the expert evidence must be reasonably required to resolve the issues before the court before leave would be granted to adduce it.

15.  In summary, the expert evidence must be in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate.

16.  However, even if a prima facie case is made out for the admission of expert evidence, in every case, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a late application is made for expert evidence to be adduced.  These matters have to be considered and weighted in the light of and against  the underlying objectives of the CJR: to ensure costs effectiveness and economy, expedition, proportionality, and fairness between the parties. Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.”

36.  Finally, the importance of timely application needs no elaboration. In the case of Li Xiao Yun & Anor v. China Gas Holdings Limited HCCL No.18/2011, where Hon Mimmie Chan J said :

“13. Since the CJR, the courts have endeavoured to make it clear that parties are expected to carefully and thoroughly consider from an early stage all steps leading up to trial, and not to wait until the eve of trial before making last minute interlocutory applications. A late application in the absence of a good explanation may be dismissed on the basis of delay alone (see eg paragraph 34 of PD 5.2), without evidence of prejudice to the opponent. The prejudice to timely and efficient disposal of trials, the waste of court resources and time, and prejudice to other more deserving litigants are sufficient. To allow the plaintiffs here to sit on their case and then to make last minute interlocutory applications, literally when they are at the door of the Court, for amendment, for joinder of parties, for leave to adduce expert evidence, and now to appeal, would be defeating all the objectives of and changes aimed to be made since the CJR, and should not be tolerated.”

Discussion

37.  I have reminded myself that this is H’s Summons seeking leave to adduce expert evidence.  This is part and parcel of the rules of procedure under Order 38 rule 36 of the Rules of the District Court, Cap.336H.  This is not H’s application for setting aside the AR Consent Order which has been scheduled for trial in April 2022.

38.  In H’s statement of claim filed in the HCA, he is alleging that during the course of negotiation subsequent to W’s announcement of her wish to divorce with him around February 2016, leading up to the 2 Consent Summonses upon which the Children’s Consent Order and AR Consent Order were granted, W had misrepresented and/or failed to make full and frank disclosure on 2 material facts, namely, that W having formed a relationship with T and her relocation plan with the 2 children to Europe after the divorce.

39.  In reliance upon W’s misrepresentation and/or induced by W’s failure of full and frank disclosure, H did not file for divorce in France and did not seek to rely upon the PNA (whether in France or in Hong Kong).  Based upon the entitlement of the parties under the AR Consent Order and against the entitlement of the parties under the PNA, W has received assets under the AR Consent Order to a value of approximately US$12 million to which W was not entitled.  Setting aside the AR Consent Order was thereby sought by H.

40.  Besides, H also sought other reliefs including stay of the terms of the AR Consent Order; the ancillary reliefs be remitted to the Family Court for determination; injunctive reliefs and restitutionary remedies; damages including equitable damages or equitable restitution and costs.

41.  Guided by the cases and authorities which I have cited above, I will approach H’s application for leave to adduce expert evidence on French Law by asking the following 4 questions :-

(a)  From reading H’s case as pleaded in the HCA, what are the issues before this Court that need to be resolved at the substantive trial in April 2022, where H is now seeking leave to adduce expert evidence ?

(b)  Whether the 2 facts which H is now complaining W had misrepresented him and/or failed to fully and frankly disclose to him during the course of negotiation passes the “materiality” test ?

(c)  Whether this Court could form a clear and definitive view as to the relevance of the expert evidence which H is now seeking to adduce to the issues that need to be resolved and that such expert evidence was reasonably required of and would be helpful to the Court in arriving at its decision on those issues ?

(d)  Whether there are any other relevant circumstances, such as prejudice or delay, which may undermine the objectives aimed by the spirit of the CJR if the court is to grant leave for adducing the expert evidence when a prima facie case for admission was made out.

42.  On question (a), the issue to be resolved is just that whether W had misrepresented and/or failed in her disclosure of the 2 facts that H is now complaining about.  Clearly, this is a question of fact which could only be decided by the Court after trial when parties’ evidence and credentials have been fully tested.  The Court requires no expert evidence or opinion in the fact-finding exercise.  I decided that expert evidence on French Law is not required for determining the issue of the alleged misrepresentation and/or failure in full and frank disclosure pleaded by H in the HCA to be tried in April 2022.

43.  Putting H’s case to the highest, it is only when H had successfully set aside the AR Consent Order and then French Law may probably be needed. Even in such a case, the expert evidence will only be needed insofar as the French PNA is concerned, for assisting the court in determining ancillary

relief; that is to say, whether the parties would be bound by the French PNA or otherwise. 

44.  On question (b), this calls for objective consideration.  It is just not possible for a party to know what the other party has had in his/her mind as to what matter to be considered as “material” which must be disclosed and that; failing which, any settlement or arrangement reached would be liable to be set aside or overturned.  

45.  In my decision, whether W had or would have developed a relationship with T at the time of the 2 Consent Summonses, objectively considered (emphasis added), does not pass the “materiality” test.   It is not for H or his legal advisers to decide on materiality.  That said, W could not be criticised for not disclosing her relationship or “would-be” relationship with T even if that relationship did exist at the time.

46.  As to the fact of relocation complained by H, this relates to the Children’s Consent Order which falls outside the ambit of H’s setting aside application as per his pleaded case in the Statement of Claim under the HCA.  Having said, the disclosure or non-disclosure of the 2 facts by W which H is now complaining is neither here nor there as to whether expert evidence directions should be given.

47.  It is my decision that H had failed the “materiality” test on the alleged non-disclosure of W’s relationship with T and W’s planned relocation with the 2 children. 

48.  With H’s failure in passing the “materiality” test on the facts complained against W, any contention of the lack of full and frank disclosure leading to the Court making an order which is substantially different from the order which it would have made if such disclosure had taken place simply do not stand.  Citing the words of Lord Brandon of Oakbrook in Jenkins v. Livesey (supra)  :

“…….Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter of matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund.”

49.  In any event, such consideration would only be of relevance at the trial of the setting aside application and not at the present stage of seeking leave to adduce expert evidence.

50.  On question (c), it is this Court’s clear and definitive view that the expert evidence on French Law was not required or helpful to the Court in determining the issue of the alleged misrepresentation and/or non-disclosure of material facts in the HCA.   Since there is no dispute that the expert evidence on French Law presently sought under H’s Summons came from a relevant discipline, this Court would only confine its decision on the relevance of such expert evidence to the issue that needed to be resolved by this Court.

51.  On question (d), I am minded to set out the aims and underlying objectives of the CJR under Order 1A rule 1 of the Hong Kong Civil Procedure 2021 :-

(a)   To increase the cost-effectiveness of any practice and procedure to be followed in relation to the proceedings before the Court;

(b)   To ensure that a case is dealt with as expeditiously as is reasonably practicable;

(c)   To promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;

(d)   To ensure fairness between the parties;

(e)   To facilitate the settlement of disputes; and

(f)   To ensure that the resources of the Court are distributed fairly.

52.  Apart from the challenge on the merits of H’s application, W also challenged H for having waited until after directions were granted on 28/5/2021 for the Pre-Trial Review and then to file the present expert evidence directions summons.  Reference was made to H’s Timetabling Questionnaires at paragraph G1 filed in HCA 2431/2017 where H said he would apply for expert

evidence directions on or before 3/10/2018[19]. However, H had not done so until lately.

53.  H in response[20] submitted that given W’s application for transfer of the HCA, which had caused the substantive argument hearing of H’s application for Further and Better particulars of W’s Defence and Counterclaim adjourned and was not restored.  The Court of First Instance eventually decided on 8/1/2021 that the HCA be transferred to the Family Court.  H was left with no time to apply for expert evidence directions before the transfer and could only do so here in the Family Court.

54.  Whilst there may exist various reasons for H not to seek expert evidence directions by way of summons earlier in time, it is not the appropriate time now for this Court to find out why this was so.  What this Court should now be focusing upon is the exercise its discretion, either for granting or refusing expert evidence directions, with fairness to the parties and with caution for upholding the underlying objectives of the CJR[21].

55.  Counsel for both parties fairly conceded that there was time constraint in this case given that the Pre-Trial Review has already been fixed for 14/12/2021 with the 5-day trial coming up in early April 2022.  Hence, both parties’ Counsel sensibly invited this Court to deal with the present application by paper disposal hoping that a Decision could be handed down by 30/11/2021 so that the aforesaid milestone dates would not be disturbed.

56.  Whilst delay of these proceedings could now possibly be avoided with this Decision being handed down today, other equally important factors such as prejudice (if any)  that might have caused to W (who has the benefit of the AR Consent Order for more than 5 years by now but not receiving her share thereunder); the need for procedural economy and proportionality; the need for expediency to deal with parties’ finances; especially in the matrimonial context, all built in which require careful consideration by the Court.

57.  Given full and careful consideration to all the circumstances, I decided that granting expert evidence directions to H at this stage would be against the objectives of reasonable proportionality and procedural economy under the CJR.

58.  I noted that it is H’s case that the difference in monetary sum under the AR Consent Order compared with the monetary sum under the PNA is in the region of around US$12 million which, allegedly, W should not be entitled and that this is a substantial sum of money.  However, I am not convinced that difference in monetary sum should take precedence over the objectives under the CJR when considering when or not to grant expert evidence directions.

59.  Broadly speaking, which should not be taken as any indication of this Court, difference in monetary sum has no place to fit in even at the substantive trial of a setting aside application, let alone that the present application is just an application for expert evidence directions.  For otherwise, litigants who have settled their claims even with the benefit of full legal advice but somehow, with hindsight or second thought, considered the settlement was a “bad bargain” would find it too easy to overturn or set aside the settlement by claiming that there would be a big difference in monetary sum had the matter not been settled.

60.  In the absence of one or more of the commonly accepted vitiating factors such as fraud, duress, illegality or misrepresentation being proved, parties should pay heed to the sanctity of contract and be held to their terms of settlement.  Once the terms of settlement had been approved by the Court and embodied in the form of a court order, the contractual effect of the settlement would be superadded the command of the Court with coercion for compliance the more so obligatory.

Pleadings and Discovery in the HCA

61.  H’s Counsel submitted that both parties had referred to and extensively pleaded the PNA in the HCA.  W was the first party to adduce expert evidence thus explicitly in recognition of the issue concerning French Law and the PNA.  Further, expert evidence was produced under the parties’ respective Lists of Documents. Parties’ own witness statements also referred to the PNA.

62.  Pleadings are needed to set out the factual matter or matrix upon which a party’s case was founded.  List of Documents exchanged at the stage of discovery is to inform the other party the documents which a party has, or has had, in control or possession and which are or may be of relevance to an issue in dispute.

63.  In family court cases, save and except where there are third parties’ claims or interests over family assets which need to be adjudicated whereupon the TL v. ML procedure[22] would be invoked with pleadings filed and exchanged, parties to the marriage are only required to set out their respective cases by way of affidavit evidence or to set out their finances by way of prescribed statutory form, such as the Form E.  The family court rules and procedure do not provide a regime for exchange of pleadings or discovery of documents same as in other civil jurisdictions.  Thus, proper and timeous application for all necessary directions is of utmost importance to the parties for better preparation for trial and to the Court for better case management.  There is no exception for seeking expert evidence directions.

64.  In my view, the reference to and/or disclosure of expert evidence by both parties in the HCA, which is separate proceedings in the Court of First Instance started by Writ of Summons with different set of governing rules and procedures, could not be said to have taken the necessary step for seeking expert evidence directions. 

65.  Subsequent to the production of written submissions directed by this Court on the present application for paper disposal, both parties’ lawyers further filed letters (with submissions)  attached with the respective Timetabling Questionnaires filed by the parties in the HCA.

66.  In H’s Timetabling Questionnaires dated back to 30/5/2018 where H said at :-

“G1 : “Yes, I will apply for leave to adduce expert evidence on liability at the trial on or before 3^rd October 2018.”

67.  H did not provide any time estimate for the trial in his Timetabling Questionnaires.

68.  In W’s Timetabling Questionnaires dated 14/12/2018 (which was 2 months after H’s intended date of application for expert evidence directions on 3/10/2018)  where she said at :-

“G2 : The Defendant does not intend to call any experts. The Defendant does not think that a French law expert is necessary however, if the Plaintiff intends to call a French law expert the Defendant will call a French law expert in reply.

……

M1 : The Defendant estimates that if no experts are called the trial will last for 5 days.  If experts are called the trial will last for 7 days.”   

69.  It is clear from the above extract of answers that when W filed her Timetabling Questionnaires in December, she was no way certain whether H would be calling expert evidence as H had not taken out any summons for expert evidence in the HCA as he had so indicated in his Timetabling Questionnaires.  W’s answer at G2 clearly supports this.

70.  The question of expert evidence directions, insofar as the court records show, was left unattended by H.  Although the case file of the HCA was not in the Family Court for checking, I noticed that H’s Counsel Miss Booth in her written submissions had not mentioned that any summons seeking expert evidence directions had ever been taken out by H in the HCA.  The reason provided simply was that the substantive argument of H’s application for Further and Better particulars of W’s Defence and Counterclaim was adjourned and not restored for the fact of W’s application for transfer of the HCA waiting to be decided.    

71.  There appeared to be no stay of proceedings in the HCA whilst W’s application for transfer was being considered.  There was no reason why H could not issue the summons for expert evidence directions if such evidence was required by H in any event (emphasis added)  irrespective of W’s application for transfer succeed or fail.  Given that H was represented by reputable law firm with extensive experience in matrimonial practice, it would be surprising if H have not been fully advised of such avenue whilst he was actively pursuing his other application(s)  to challenge those other decisions of the Court[23].  

72.  I noticed that it was H’s lawyers who drafted and produced the Consent Summons dated 27/5/2021 seeking W’s consent on various directions; including setting down the substantive trial of his setting aside the AR Consent Order with 5 days (emphasis added)  reserved.  There was no reference to any expert evidence directions in the Consent Summons.  W’s solicitors endorsed the Consent Summons.  The scheduled hearing on 29/5/2021 before Her Honour Judge Melloy was then vacated and the agreed directions granted.

73.  H’s Counsel Miss Booth in her written submissions explained that the absence of expert evidence directions within the Order of Her Honour Judge Melloy was a clear administrative error[24]. With respect, I do not accept.

74.  As early as December 2018, W had indicated the time estimate for trial would either be 5 days (without expert)  or 7 days (with expert), it is thus reasonable and fair for W’s lawyers, when being presented with the Consent Summons by H’s lawyers for endorsement, not to expect H was going to call expert evidence since (a)  no such directions was sought in the Consent Summons; and (b)  the estimated length of trial put down was 5 days.  W’s lawyers also produced the draft of the proposed orders for the summons for directions in the HCA which also stated “No leave be given for the parties to adduce expert evidence”[25].  Hence, I do not accept there is any kind of administrative error; if not underhanded litigation conduct.

75.  Unless and until a proper summons was issued and served as a formal application, it is unfair for W to assume or predict that H would be seeking expert evidence directions for the upcoming substantive trial proper when they endorsed the said Consent Summons on 27/5/2021. 

76.  I accept W’s submission that H’s application for expert evidence directions as per the Summons dated 16/6/2021, although not at the eleventh hour before trial, was inexcusably late taken into account of the historic background that such Summons should have been issued on or before 3/10/2018 (which is around 2½ years ago)  as stated in H’s Timetabling Questionnaires.

Conclusion

77.  For all the above reasons, I decided that H’s application for seeking leave to adduce the expert evidence as per his Summons dated 16/6/2021 fails.  The Summons must be dismissed.

Costs

78.  On the question of costs, I see no reason why the normal rule should not apply.

79.  I decided that H should pay W the costs of the application; including all costs reserved (if any), to be taxed if not agreed.

80.  I also grant Certificate for two Counsel.

81.  This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Decision.