ELIJAH SAATORI v. RAFFLES MEDICAL GROUP (HONG KONG) LTD

HCPI 1114/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1114 OF 2006

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REASONS FOR DECISION

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INTRODUCTION

1.  I have before me an application by the plaintiff by summons filed on 23 August 2016 seeking leave to rely on the evidence of Mr Steven Reece, a “board game” expert, in this action, the trial of which has been fixed to commence on 2 September 2016.  The application is supported by the 4^th affidavit of Mr Patrick Burke, the plaintiff’s solicitor, also filed on 23 August 2016.  A draft report of Mr Reece appears as Exhibit “PMB-11” to the 4^th affidavit of Mr Burke.

2.  At the conclusion of the hearing, I dismissed the plaintiff’s summons, with reasons for my decision to be given later.   This I now do.

Relevant background

3.  The plaintiff’s claim herein against the defendant is for damages for medical negligence.  According to the plaintiff, he attended the defendant’s clinic on or about 5 August 2003 for the purpose of wax removal in the right ear.  I pause to mention that previously, the plaintiff said that he attended the defendant’s clinic on or about 10 July 2003.  That date was changed to 5 August 2003 in his Re-Re-Amended Statement of Claim recently filed on 26 July 2016.  The plaintiff’s reasons for amending the date can be seen in my previous decision in this case given on 28 June 2016.

4.  In any event, it is the plaintiff’s case that, shortly after the treatment which he received at the defendant’s clinic, he experienced acute, chronic tinnitus which developed into serious physical and psychological injuries and disabilities.

5.  In his Amended Revised Statement of Damages dated 7 July 2016, it is stated that at the time of the incident in question, the plaintiff’s main business was the invention, production and marketing and sale of board games and unique new products, including in particular two board games known as (i) Galaxion (a board game similar to chess) and (ii) Psilink (a memory game), as well as 15 other products under development.  Apparently, the plaintiff’s business was carried on though a company called Zebra Industries (Orgensis Nova) Limited (“ZION”), of which the plaintiff was a 72% shareholder at the material time. At paragraph 3.4.1 of the Amended Revised Statement of Damages, it is said that but for the plaintiff’s injuries and disabilities, ZION would have made a profit of not less than HK$44,639,000 (equivalent to US$5,723,000), which the plaintiff claims against the defendant as part of his “loss of earnings”.

6.  The present action was commenced on 9 May 2006.  His action had twice been struck out by Saunders J and DHCJ Carlson on 11 April 2008 and 7 August 2009 respectively on the ground that he had failed to comply with the court’s directions for filing and serving certain expert report, but the action was subsequently restored by the Court of Appeal in January 2010.

7.  Thereafter the action proceeded rather slowly, with filing and service of amended pleadings, lists of documents, witness statements and expert reports.  The pre-trial review came before this court on 15 September 2015.  At that hearing, the plaintiff was granted leave to set the action down for trial.  The estimated length of the trial was 10 days.  Leave was also given to the parties to call medical and non-medical experts as witnesses at the trial of the action, including ENT specialists, clinical psychologists and forensic accountants.  Mr Hingorani (the plaintiff’s former counsel) also informed the court that the plaintiff was then actively seeking expert evidence on the marketability and likely sales of the plaintiff’s two main board games, ie Galaxion and Psilink.

8.  The action was eventually set down for trial on 7 October 2015.  As earlier mentioned, the trial is currently scheduled to commence on 2 September 2016 (ie next Friday) with 10 days reserved.

9.  On 28 June 2016, this action came before this court for further directions.  The court gave various directions in preparation for the trial of the action, including filing and service of trial bundles, opening submissions, agreed list of issues and agreed statement of facts.  At that hearing, Mr Hingorani informed the court that the plaintiff was still considering the question of adducing evidence from a board game expert.

10.  It is stated in the 4^th affidavit of Mr Burke that, as a matter of fact:-

(1)  in early 2016, Mr Burke identified Mr Reece as the potential expert;

(2)  on 4 February 2016, a letter of enquiry was sent to Mr Reece;

(3)  on 5 February 2016, a reply was received from Mr Reece;

(4)  on 8 March 2016, funding approval in relation to the proposed expert evidence was given by the Legal Aid Department; and

(5)  on 16 March 2016, a letter of instructions was sent to Mr Reece.

11.  All these occurred prior to the directions hearing that took place on 28 June 2016.

12.  On 19 July 2016, the plaintiff’s solicitors received a draft report from Mr Reece. On or about 15 August 2016, a copy of the draft report was sent to the defendant’s solicitors.  As earlier mentioned, the present summons was taken out on 23 August 2016, less than 10 days before the commencement of trial.

Applicable principles

13.  In my previous decision in this case given on 31 March 2015 concerning the plaintiff’s application for leave to file and serve a supplemental report from the plaintiff’s forensic accounting expert, I referred to the judgment of Bharwaney J in Fung Chun Man v Hospital Authority, HCPI 1113 of 2006 (24 June 2011), which sets out the relevant principles for leave to adduce expert evidence.  In summary, expert evidence would only be admitted if it is in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate.  Further, even if a prima facie case is made out for the admission of expert evidence, 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.  As mentioned by the learned judge at paragraph 16 of his judgment, 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.

14.  In this regard, it may be noted that the “level playing field” referred to by Bharwaney J relates to the need to ensure fair access to proper experts for all parties.  I mention this because the phase “level playing field” has been picked up by Mr Clough in his submissions but used in a somewhat different sense (see paragraph 16 below).

15.  There is a further passage in the judgment of Bharwaney J in Fung Chun Man, at paragraph 26, concerning the time of the application which is relevant for the present purpose, as follows:-

“If the request is made late in the day, or close to the commencement of trial, it is likely to be refused even if justified. As Brooke LJ explained in Baron v. Lovell [2000] PIQR P20, each party is afforded an opportunity by the rules to make a well informed valuation of the claim and a well informed Part 36 offer (or, in Hong Kong, a sanctioned offer). The regime simply will not work if the former latitude in serving late evidence is allowed to persist. It is quite wrong for a trial to be delayed, and for the possibility of making an effective Part 36 offer (or, in Hong Kong, a sanctioned offer) to be rendered nugatory, because of the late service of an expert’s report.”

Discussion

16.  According to Mr Neal Clough, who appears for the plaintiff in this application, the evidence of Mr Reece is relevant to the “marketability” and “possible sales” of the plaintiff’s two board games, Galaxion and Psilink.  Mr Clough submits that leave should be granted to the plaintiff to rely on the evidence of Mr Reece in this action notwithstanding the lateness of the application because the proposed evidence is relevant and necessary, without which the plaintiff will be prevented from presenting his case as to his future loss except to the extent that he can give evidence himself.  Mr Clough further says that if the leave sought is denied, the presentation of the plaintiff’s case will be impaired and, in his words, “it will not be a ‘level playing field’”.

17.  On behalf of the defendant, Mr Raymond Leung SC objects to the plaintiff’s application, on the following grounds:-

(1)  the proposed evidence is of no real assistance to the determination of the issues at the trial; and

(2)  the plaintiff has substantially delayed in making the application.

18.  In my view, the plaintiff’s application can be disposed of on the ground of delay alone.  It is apparent that, if the application is acceded to, the forthcoming trial (of liability and quantum) cannot take place on 2 September 2016 because the defendant must be afforded a proper opportunity to consider the plaintiff’s new expert evidence and, if so advised, look for its own board game expert to give evidence at the trial.  A date which the court has fixed for the trial is a “milestone date” and cannot be varied unless there are exceptional circumstances justifying the variation under Order 25, rule 1B(3) of the Rules of the High Court.

19.  No good explanation has been proffered by the plaintiff for the delay in making the application.  According to the 4^th affidavit of Mr Burke (as clarified by Mr Clough at the hearing), in about June 2014, he decided that it would assist the court to have “more precise expert opinion on the marketability and likely sales of the Plaintiff’s 2 main games”, and set out to look for an appropriate expert to give evidence.  Significantly, it is clear from Mr Burke’s 4^th affidavit that Mr Reece was identified in early 2016, and legal aid funding was received for the preparation of the expert report on 8 March 2016.  By that time, it must have been obvious to the plaintiff that there would likely be an application to the court for leave to adduce Mr Reece’s evidence at the trial.  There seems to me no good justification for not making the relevant application, or at least forewarning the defendant of the likely application, at that time when there were still some 6 months to go before the scheduled commencement of the trial in September 2016.  As it was, the plaintiff did not even mention the fact that legal aid funding had been obtained for instructing a board game expert and an expert report was under preparation at the directions hearing on 28 June 2016.  He left it to the eleventh hour to disclose the draft report and make the application.

20.  Taking into account the fact that the medical procedure which allegedly caused the plaintiff’s injuries and disabilities was carried out more than 13 years ago and this action was commenced more than 10 years ago, it would in my view plainly be unfair to the defendant for the trial of this action to be delayed any further.

21.  Mr Clough has raised the possibility of a split trial of liability and quantum in the event that the court is minded to grant leave to the plaintiff to rely on the evidence of Mr Reece so that the trial on liability can proceed in September 2016.  The general rule is that all the issues in the case are to be tried at the same time, and that departure from the general rule is ordered only if it is “just and convenient” to do so: see Hong Kong Civil Procedure 2016, paragraph 33/4/9. In this regard, “just and convenient” must mean just and convenient to, at least, both the plaintiff and defendant.  A split trial should not, in my view, be ordered just to facilitate the plaintiff to adduce expert evidence at a late stage.  Also, as mentioned by Mr Leung, the defendant has fully prepared for a combined trial of liability and quantum which is scheduled to commence in a week’s time from now.  It cannot be just to the defendant to order a split trial solely for the sake of accommodating the plaintiff’s delay in making the application for admission of new expert evidence.

22.  For the above reasons, I would dismiss the plaintiff’s summons on the ground of delay alone.

23.  I should add that I have read and considered the draft report of Mr Reece. As submitted by Mr Leung in paragraphs 11 to 15 of his skeleton argument, it seems to me to be clear that the proposed evidence is to a large extent based on Mr Reece’s optimistic guesswork or speculation or what he refers to as “conversations”, “commercial reality” or “hearsay”, rather than on objective evidence or data.  In many instances, Mr Reece bases his opinions on what he describes as “confidential sales data”, “confidentiality agreements”, “findings … which are subject to confidentiality”, or information which is “confidential/proprietary [in] nature”, the details of which Mr Reece is either not prepared, or not at liberty, to disclose.  Such opinions cannot be given any real weight because the court will not be in any position to assess the reasonableness or soundness of the opinions.  Mr Reece admits in his draft report that his forecast of board game sales could be incorrect due to its inherent uncertainty.  He also admits that he has not tested, or extensively tested, the plaintiff’s two board games with a range of game players or consumers, thereby further undermining the reliability of his opinions.

24.  In all, I am not satisfied that the proposed evidence of Mr Reece is of sufficient probative value such that it would likely be of real assistance to the determination of the issues in this action.  Hence, I would not be minded to grant the plaintiff’s application, regardless of the plaintiff’s delay in taking out the summons.

Disposition

25.  For the above reasons, the plaintiff’s summons filed on 23 August 2016 is dismissed with costs to the defendant (to be taxed if not agreed).