WIDE FORTUNE (HK) LTD v. CHAN KWOK CHUNG

DCCJ 2578/2018

[2020] HKDC 636

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2578 OF 2018

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DECISION

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A. Introduction

1.  Before me are two applications:-

(a)  By a summons filed on 22 November 2019, the plaintiff sought leave from the court to file and serve a Rebuttal Expert Report prepared by its expert; and

(b)  By a summons filed on 25 November 2019, the defendant sought to expunge the joint expert statement filed on 28 October 2019.

2.  The main dispute in these applications is whether a document (which I shall call the “Handwritten Memo” to avoid any impression of pre-judgment) is a mere record of discussion between the experts during a without prejudice meeting, or it constitutes a joint statement of experts which the parties were directed to make in pursuance of a court order.  If I find the former to be the case, the Handwritten Memo would be subject to privilege and is inadmissible.  If, on the other hand, I find the latter to be the case, the Handwritten Memo is not privileged and is admissible.  Furthermore, as will be seen below, the present applications touch upon the important issue of the independence of expert witnesses.

3.  The two summonses were originally fixed to be heard on 30 January 2020.  However, due to the general adjourned period starting from 29 January 2020, the hearing was adjourned and re-fixed to 29 July 2020.  At the hearing, the plaintiff was represented by Mr Howard Wong of the plaintiff’s solicitors, and the defendant by Ms Jacqueline Lam of counsel.

4.  At the conclusion of the hearing, I said that I would hand down a written decision in a later day. This I do now.

B. Background

B1. Parties’ respective cases

5.  The plaintiff is the registered owner of a staircase in a building^[1], and the defendant is the owner of a shop adjacent to the staircase^[2]. The staircase and the shop were separated by a partition wall^[3].  On or about 3 March 2018, the defendant caused to make an opening on the wall between the staircase and the shop^[4]. The plaintiff averred that the making of the opening constituted a trespass of the plaintiff’s property^[5]. The plaintiff also said that there were security and safety concerns in respect of the opening^[6]. In about August 2018, the defendant undertook a reinstatement work by sealing the opening with concrete on the part of façade facing the shop^[7].  However, the plaintiff was of the view that the reinstatement work was sub-standard and unacceptable^[8]. The plaintiff claimed against the defendant for an order that they were allowed to enter the shop to undertake the reinstatement works by its representatives, as well as for sums representing various fees associated with the reinstatement works.

6.  In his defence, the defendant did not deny that he had caused to make an opening on the partition wall^[9], but he claimed that the workers immediately stopped the works after they received complaints from the plaintiff’s staff^[10]. He denied that the opening on the wall constituted trespass^[11] or would have any safety and security concerns^[12]. He also averred that the sealing of the opening was structurally safe and complied with the regulations of the Building Department^[13]. 

7.  In the reply, the plaintiff maintained its position that the opening on the wall would cause safety and security concerns^[14]. The plaintiff did not admit that the sealing of the opening was structurally safe and put the defendant to strict proof thereof^[15].

B.2 Directions by Master B Mak

8.  On 17 May 2019, by consent of the parties, Master B Mak made the following orders^[16]:-

“1. The parties do have leave to adduce expert evidence on liability and quantum limited to the agreed list of issues as set forth in Annex A annexed to the Summons filed herein on 7 May 2019, by two registered structure engineers, namely Mr Dennis Wong Wing Cheung and Mr Paul Kong for the Plaintiff and the Defendant respectively;

2. The parties do exchange the expert reports of Mr Dennis Wong Wing Cheung dated 6 March 2018 and 31 August 2018 and the supplemental report (if any) and the expert report of Mr Paul Kong on or before 28 June 2019;

3. There be a without prejudice meeting of the experts on or before 26 July 2019 for the purpose of discussing a joint statement of experts indicating those parts of their opinion of which they are, and those on which they are not, in agreement;

4. The parties do file a joint statement of experts on or before 23 August 2019; …”

9.  The agreed list of issues referred to by Master B Mak in paragraph 1 of his order included issues regarding the impact on the partition wall with the opening (Issues 1 & 2), the methods of reinstatement of the wall (Issues 3 – 5), and the quantum of remedial works (Issues 6 & 7).^[17]

10.  On 28 August 2018, the plaintiff took out a summons^[18] for filing and serving a Rebuttal Report and sought extension of time for complying with the said order made by Master B Mak.  At the hearing of the summons, Master B Mak dismissed the application for leave to file a Rebuttal Report, and granted an extension of time for complying with his order dated 17 May 2019^[19].  The learned Master took the view that, as the experts had yet to meet and discuss their respective opinions, there was no need for the plaintiff’s expert to prepare an extra report for the purpose of persuading or arguing with the expert for the defendant^[20].

11.  In the present action, the plaintiff prepared three reports (dated 6 March 2018^[21], 31 August 2018^[22], and 25 June 2019^[23]) and the defendant prepared one dated 9 August 2019^[24].

B3. The Handwritten Memo

12.  In pursuance of the said order made by Master B Mak (together with the relevant extensions of time), a without prejudice meeting took place in the office of the plaintiff’s expert, Mr Dennis Wong (“Mr Wong”), on 11 September 2019^[25].  There were discussions between the experts during the meeting.  At the conclusion of the discussions, Mr Wong made a memo (ie the Handwritten Memo) ^[26] recording the agreed and disagreed items between him and Mr Paul Kong (“Mr Kong”), the defendant’s expert^[27].  The nature of this memo is the center of dispute in the present applications.

13.  According to the Handwritten Memo, Mr Kong agreed that the opening in the partition wall would endanger the users of the staircase, and it should be reinstated or casted in accordance with the approved plan (Issues 1 and 2).  Mr Kong also agreed with the estimated costs for remedial works as suggested by Mr Wong in his 3^rd expert report (Issues 6 and 7).  There was no agreement between the experts in respect of other issues.  It is observed that Mr Kong’s agreement of issues was not consistent with his opinion set out in his report dated 9 August 2019.

14.  Shortly after the meeting, on 18 September 2019, Mr Wong sent an email to Mr Kong attaching a document (which Mr Wong referred to as the “draft joint statement of expert”) and indicating his intention to append to the statement a rebuttal opinion for the disagreed items^[28]. He also stated that Mr Kong might append the defendant’s rebuttal opinion to it as well.  There was no response from Mr Kong, and two chasing emails were sent by Mr Wong’s secretary to him on 26 and 30 September 2019.  According to Mr Kong, he was awaiting the instructions from the defendant’s solicitors for the verification of certain documents he perused during the without prejudice meeting^[29].

15.  According to Mr Kong, upon his receipt of the confirmation by the defendant’s solicitors that he should not have considered the documents, he made a telephone call to Mr Wong indicating that his opinion set out in the defendant’s expert report remained unchanged^[30]. He asked Mr Wong to revise the draft joint expert statement and to send a copy to him for approval^[31]. However, according to Mr Wong, Mr Kong told him during the said telephone conversation that the defendant’s solicitors did not agree to the finalized version of the joint statement of experts^[32].

16.  Without any prior notice to the defendant’s solicitors, the plaintiff’s solicitors filed the Handwritten Memo as the joint expert statement on 28 October 2019.

C. Parties’ submissions

17.  Ms Lam submitted on behalf of the defendant that the discussion between experts was privileged and could not be referred to at trial without the consent of the parties.  She stated in her written submissions that “[t]he purpose of the Without Prejudice Meeting between Mr Wong and Mr Kong is to resolve the differences in their opinions stated in their respective expert reports”^[33].  She argued that the Handwritten Memo was a record of discussion between the experts during the without prejudice meeting^[34]. The Handwritten Memo was never intended to be a “concluded compromise agreement”^[35] and a “Final Joint Statement of Expert”^[36].  Accordingly, the memo should be subject to privilege and should not be admissible.

18.  The plaintiff argued that the Handwritten Memo was intended to be a formal and final document^[37], and it was never intended to be a without prejudice memo.  The plaintiff’s solicitors had in the skeleton submissions undertaken some handwriting analyses and submitted that Mr Kong had indeed made contribution in setting out the format of, as well as drafting, the Handwritten Memo. It was also argued that Mr Wong’s proposal to attach his rebuttal opinion would not alter the conclusive nature of the statement.  Nor was it relevant that Mr Wong had conducted an on-site inspection and included the results in the Rebuttal Report. 

D. Legal principles

19.  While I have no quarrel about the proposition that the discussions between experts during a without prejudice meeting are privileged, I believe that, although in this kind of privilege may also conveniently be categorized under the umbrella of “without prejudice privilege”, there are some subtle differences between the privilege covering the experts’ discussion during a without prejudice meeting and the traditional without prejudice privilege.  I propose to explore the differences here.  I first turn to consider the without prejudice privilege in traditional sense. 

D1. Without prejudice privilege

20.  The legal principles governing the without prejudice privilege have been recently reviewed by Mr Justice Wilson Chan J in Poon Loi Tak v Poon Loi Cheung Desmond^[38]. For the present purpose, I summarize the salient points as follows:-

(1) The without prejudice rule is a rule governing the admissibility of evidence, which applies to exclude all negotiation genuinely aimed at settlement, whether oral or in writing, from being given in evidence^[39]. The court has the power to expunge/exclude evidence which is inadmissible by reason of without prejudice privilege.

(2) The rationale of the without prejudice rule, which is founded on public policy, is to encourage parties to negotiate and settle their disputes out of court^[40].

(3) The purpose of the without prejudice rule is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement^[41]. The underlying public policy is that the parties should be encouraged to settle their dispute by putting their cards on the table as fully and as frankly as possible^[42].

(4) Given that the encouragement of settlement is enshrined in the overriding objectives of the Rules of the High Court (see Order 1A, rule 1(e)), the rule is of fundamental importance in the administration of justice^[43].

(5) In determining as to what constitutes without prejudice negotiations for settlement, the Court will have regards (i) the time when there was an existing dispute between the parties, (ii) whether legal proceedings in relation to the dispute had been commenced or were contemplated, (iii) whether the communication was made in a genuine attempt to further negotiations to settle the dispute, and (iv) whether the communications were made with the intention that, if negotiations failed, it could not be disclosed without the consent of the parties.  It was also held that it was not necessary to explicitly apply the “without prejudice” stamp if it was clear from the surrounding circumstances that the parties were genuinely seeking to compromise the dispute^[44].

(6) In exceptional circumstances, evidence that would otherwise be protected by without prejudice privilege would be rendered admissible if the exclusion of the evidence would act as a cloak for perjury or other unambiguous impropriety.  This exception would be applied only to the clearest of cases so as not to impair the value of the without prejudice rule^[45].

D2. The privilege covering the meeting of experts

21.  I now turn to consider the privilege covering specially the without prejudice meeting of experts.  I think it is necessary to start with the relevant provisions.  O 38 of the Rules of District Court provides:-

“Rule 36 – (1) Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing of any cause or matter unless the party seeking to adduce the evidence – (a) has applied to the Court to determine whether a direction should be given under rule 37 or 41 (whichever is appropriate) and has complied with any direction given on the application, or (repealed) …

Rule 37 – (1) … where in any cause or matter an application is made under rule 36(1) in respect of oral expert evidence, then, unless the Court considers that there are special reasons for not doing so, it shall direct that the substance of the evidence be disclosed in the form of a written report or reports to such other parties and within such period as the Court may specify…

Rule 37A -- An expert report disclosed under these Rules must be verified by a statement of truth in accordance with Order 41A.

Rule 37B(1) -- A party who instructs an expert witness shall as soon as practicable provide the expert witness with a copy of the code of conduct set out in Appendix E.

Rule 37C(1) -- An expert report disclosed under these Rules is not admissible in evidence unless the report contains a declaration by the expert witness that – (a) he has read the code of conduct set out in Appendix E and agrees to be bound by it; (b) he understands his duty to the Court; and (c) he has complied with and will continue to comply with that duty.

Rule 38 – In any cause or matter the Court may, if it thinks fit, direct that there be a meeting “without prejudice” of such experts within such periods before or after the disclosure of their reports as the Court may specify, for the purpose of identifying those parts of their evidence which are in issue. Where such a meeting takes place the experts may prepare a joint statement indicating those parts of their evidence on which they are, and those on which they are not, in agreement.

Rule 42 – A party to any cause or matter may put in evidence any expert report disclosed to him by any other party in accordance with this Part of this Order.”

22.  Part 35 of the English Civil Procedure Rules (“CPR”) adopts and refines the procedure for discussion between experts which had featured in the previous O 38, r 38 of the former Rules of the Supreme Court (equivalent to the same rule under the Rules of the District Court).  The CPR provides that:-

“35.3 – (1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

35.12 – (1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to – (a) identify and discuss the expert issues in the proceedings; and (b) where possible, reach an agreed opinion on those issues.

(2) The court may specify the issues which the experts must discuss.

(3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which – (a) they agree; and (b) they disagree, with a summary of their reasons for disagreeing.

(4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.

(5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.”

23.  Although Hong Kong does not adopt the provisions of the CPR, the provisions remain applicable in Hong Kong because they represent the common law position^[46]. 

24.  The English Court of Appeal explained the structure of the CPR in Aird v Prime Meridian^[47] as follows:-

“[3] In my view, the structure of this rule is clear. It provides a balance between the need for the parties' experts to be able to have a free discussion about issues amenable to their expert opinion which are relevant in the case without the details of those discussions becoming material which can be used in the proceedings, with the court's need to have some proportionate and useful product of those discussions. The statement for the court for which CPR 35.12(3) provides is a statement which, if it is directed, the experts must produce. It is a statement which, from the very wording of the rule, is available for use in the proceedings. It is not protected by privilege. One of its purposes is to define and narrow the contentious issues. An agreement of this kind is likely to influence any decision the court may reach and the court is likely to make findings consonant with what the experts have stated to be their agreement. But the court is not bound to do so and CPR 35.12(5) expressly says that the experts' agreement shall not bind the parties unless they expressly agree so to be bound.

[4] A stated agreement by the experts is not therefore, strictly speaking, an admission. It is certainly not an admission by the parties, because it is not their statement and they are not bound by it. It is not perhaps apt to characterise it as an admission by one or both of the experts, but rather as an expression of agreement or, as the case may be, disagreement by them in response to an order of the court and in performance of their overriding duty to the court. As I have said, by instructing experts in civil proceedings the parties authorise their experts to do this. It would no doubt be possible for a party instructing an expert in civil proceedings to instruct that expert not to proceed in accordance with an order under CPR 35.12(3). But I think that, if this happened, the expert would have to decline to continue to act as an expert in the proceedings, or at least to seek the court's direction in that respect. For, in truth, the instruction would be an instruction not to perform the expert's duty to the court. It would be so because the postulated instruction would be an instruction to disobey an order of the court for which the rules provide, and an instruction to the expert not to perform his overriding duty to the court, for which again the rules provide.”

25.  In contrast with the without prejudice privilege (in the traditional sense) as summarized above, there are certain special features concerning the privilege protecting the experts’ discussion during a without prejudice meeting, as well as concerning the making of joint statement of experts.  For the purpose of these application, the followings are the salient ones:-

(1) The public policy behind the meetings of experts are of more limited public interests, namely that, if the parties in a litigation are not able to settle, they should be prepared for trial and fought at trial upon issues which have been carefully limited and refined by appropriate agreements^[48].

(2) The focus of the meetings of experts and having a joint expert statement is to increase the cost-effectiveness of the procedure and to enable the Court to deal with a case as expeditiously as practicable.  These objectives are enshrined in the overriding objectives of the Rules of the District Court (O 1A, rr 1(a) and 1(b)).  As such, they are of fundamental importance in the administration of justice.

(3) It is not correct to say that the agreed statement by the experts is an admission, and it is certainly not admission by the parties[49]. The agreed statement by the experts does not bind the parties.^[50]  Experts are not the parties’ agents.  It is not the purpose of the meetings of experts to engage in a negotiation, or to achieve a settlement of the proceedings, or to produce an agreement that binds the parties of the proceedings^[51].  The main purpose of the meeting of experts is to refine and limit the issues over which the parties are to fight at trial. 

(4) The joint statement of experts is an “open” document and is not protected by privileged.  As HH Judge Peter Bowsher QC said in Robin Ellis, “The joint statement which the experts were ordered to produce is a document produced for the court to assist the court in case management of the litigation and also in management of the conduct of the trial.  It is not a document which one party (or both parties) can withhold from the court by a claim of privilege.”^[52]

(5) Those instructing the expert cannot give instructions for him not to meet or not to reach an agreement, because giving instruction to the experts to meet and to make a joint statement is a condition of their evidence to be admitted at trial.  Nor can those instructing the expert tell the expert what opinions he is allowed to hold^[53].

26.  As indicated above, there are subtle conceptual differences between the without prejudice privilege in the traditional sense and the privilege protecting the discussions during the meeting of experts.  They have different purposes and rationales; and they engage different underlying objectives.  In my opinion, one must appreciate such differences before one can understand the nature of a joint statement of experts.

27.  Finally, the point stated in [25(5)] above is worthy of further elaboration, because it touches upon the important issue regarding the overriding duty of an expert witness to the court.

D3. Expert’s overriding duty to the court

28.  As I have mentioned before, pursuant to O 38, r 37C(1), an expert report is inadmissible unless the report contains a declaration by the expert that he understands his duty to the court.  The common law duties of an expert witness were well established and elaborated in the case law^[54]. For the present purpose, it suffices to stress the importance of expert’s independence.  Mr Justice Lam J (as the Vice President then was) said this in Chinachem Charitable Foundation case^[55]:-

“[485] … [An expert’s] evidence is admitted to assist the court on a subject which requires expertise he has acquired (but not the court). Therefore, what the court wishes to hear is the expert’s own independent professional opinion on the topic instead of a biased view constructed and put forward for the purpose of advancing a party’s position. Given the court’s lack of expertise on the subject which an expert gives his evidence, the strict adherence by expert to the duty of independence is important for the proper administration of justice.”

29.  In relation of a joint meeting of experts, his Lordship has this to say^[56]:-

“[490] The joint meeting is an opportunity for the experts to narrow their differences. It takes two to tango. It requires both experts to focus on the objective of the meeting and act responsibly and frankly with each other. At such meeting, an expert should bear in mind his overriding duty to the court to act independently without any fear of compromising his client’s position. Thus if his professional judgment dictates that a concession should be made in the light of arguments advanced by the other side, he should not feel inhibited from doing so due to conflicting opinion previously expressed by him in favour of his client. On matters within his expertise, an expert needs not seek instructions from his client before reaching an agreement with the other side’s expert. A self-respecting expert should not accept instructions that placed limitations on his professional judgment in the performance of his duty as an expert witness. And it is not proper for lawyers to give such instructions on behalf of his clients. In line with his duty to act independently, an expert should not be dictated by his client in respect of the substance of his expert evidence and the agreement to be reached in joint meeting.”

30.  In the same vein, HH Judge Peter Bowsher QC also said the followings in Robin Ellis:-

“[38] … Any interference with the experts in their compliance with the order of the court is likely to result in non-compliance with the condition laid down by the court with the result that there is no leave for the evidence of the expert to be adduced at the trial.

[39] It has been suggested in this case that the party through his solicitor is entitled to require the expert to take instructions from the client before signing any joint statement and to make no agreement unless specifically authorised to do so. It was submitted that the parties do not put their case in the hands of an expert to settle the case. That latter submission is a correct statement of the usual position, but that submission is not relevant to the meetings of experts ordered by the court. The purpose of those meetings is not to achieve a settlement of the proceedings or to produce agreements binding on the parties….

[40] The purpose of the experts' meetings and the joint statement of experts is stated in the orders. Before the court will allow the evidence to be adduced, it is to be refined by the experts so far as possible. It is not for the parties to tell the experts what opinions they are allowed to hold. The duty owed by the experts to the court is to express in their joint statement and in their reports to the court the views which they themselves honestly hold. It is well understood that after giving his initial privileged advice to the party to the litigation an expert may honestly change his opinion either as a result of further research and thought or as a result of discussions with other experts. If he does so change his mind, he should record that change of mind either in the joint statement or in his report or, if necessary, in a supplemental report, bearing in mind that those documents will eventually become the basis of his sworn testimony….

[41] The freedom and duty of the expert to record freely such changes of opinion is most clear when the expert is to give evidence on opinion as to scientific or engineering theory and practice. The party to the litigation cannot properly tell the expert what evidence he is to give under oath in court, nor can he tell the expert what opinion to express in documents produced by him as a condition of the party being allowed to adduce that evidence….

[42] Some confusion of thought may arise when, as in the present case, the expert is a quantity surveyor given the task of expressing opinions about the amount of the sums claimed. However, just as with other experts, when they meet at an experts' meeting ordered by the court, unless they receive express instructions giving them special additional authority, they are not aiming at reaching agreements binding on the parties. Their objective is to express opinions, agreed if possible, as to the value of work done or not done, or of defective work, or the value of a freehold or whatever is in issue. Any agreements will be admissible in evidence but not as agreements binding the parties. Sometimes, the parties agree, either before or after the experts' meetings, that any agreements made by the experts will be binding on the parties, but that is a matter separate from the fact that the joint statement of the experts made after the experts' meeting is open but not binding.”

31.  With these principles in mind, I now turn to the merits of the parties’ submissions.

E.  Discussion

E1. The Handwritten Memo is the product of discussion

32.  Essentially, Ms Lam argued that the Handwritten Memo was inadmissible and should be expunged because it was a record of the discussions between Mr Wong and Mr Kong during without prejudice meeting.  Ms Lam submitted that the Handwritten Memo was not intended to be “a concluded compromise agreement”^[57].  With respect, Ms Lam has misconstrued the nature of a joint expert statement.  As I have explained above, the joint expert statement is never intended to be an admission and does not have any binding effect on the party.  Experts are not the parties’ agents.  They neither engage in a negotiation with each other nor try to reach compromise at the without prejudice meeting.  What they do during the meeting is mainly to use their best endeavor based on their expertise to refine and limit the issues over which the parties will fight at trial. 

33.  Ms Lam also has the misconception that everything generated from the discussions of a without prejudice meeting is privileged.  This is not true.  A joint statement of experts is clearly a document generated from the discussions, but it is not privileged.  I think the key is the distinction between the contents of the discussions and the product of the discussions.  While the former is privileged, the latter is not.

34.  Having considered the facts of the case, especially the Handwritten Memo itself, I do not find that the memo can be properly described as the “records of discussions”.  In my mind, it is clearly a product of the discussions.  Accordingly, I find that the Handwritten Memo is not subject to privilege and is admissible.

E2. Mr Kong was intended to be bounded by the Handwritten Memo

35.  At the hearing, Ms Lam submitted that, according to Mr Kong’s affirmation, he was never intended to be bounded by the Handwritten Memo even though he put his signature on the document.  With respect, I am not able to accept this submission.  Mr Kong being a professional must have the intention to be bound by a document on which he willingly appended his signature.  This remains to be true notwithstanding he stated otherwise in his affirmation subsequently.

E3. A joint statement of experts need not to be final

36.  Another line of attack on admissibility of the Handwritten Memo is that it was only a ‘rough draft”, because it was only handwritten with no headings, reasons, or declaration of truth^[58]. Ms Lam also pointed out that Mr Wong had not treated it as a final version because he tried to append his rebuttal opinion to the draft. 

37.  On the other hand, the plaintiff argued that the Handwritten Memo was a formal and final document because Mr Kong had not only signed the document and also set out the format and wrote down some remarks thereon.  Mr Howard Wong elaborated this point by undertaking certain handwriting analyses on the Handwritten Memo.

38.  In my view, the issue as to whether the Handwritten Memo is the final version is neither here nor there.  Even if I find that the Handwritten Memo was not a “formal and final” document, it is still possible to have it admitted as an interim joint statement of experts. In Robin Ellis, the experts there had met on 17 occasions and had several telephone conversations together with exchange of without prejudice correspondence.  Yet they could not complete their discussion within the expiry of the time for making the joint statement.  They then signed an interim statement.  HH Judge Bowsher QC held that such an interim statement was not privileged and could be used in cross-examination of witnesses. 

39.  At the hearing, Ms Lam tried to distinguish the present case from Robin Ellis by pointing out that, in that case, there was a title in the interim joint statement of experts and the experts were directed to come up with a statement on the same date of the without prejudice meeting.  Ms Lam also criticized the Handwritten Memo in the present case on the ground that it did not contain a declaration of truth.  While all these are true, I do not think they will alter the true nature of the Handwritten Memo, namely, that the document is the product of the discussion.  I hold that the Handwritten Memo should be treated as an interim joint statement of experts and it is not privileged.

E4. There is no reason to withhold the Handwritten Memo

40.  In my view, the gist of the issue is whether or not the Handwritten Memo should be withheld from the court.  Apparently, the defendant’s answer is that it should.  The only reason given was that, during the without prejudice meeting, Mr Wong showed him certain documents which Mr Kong had never seen before.  He said that he would only sign the Handwritten Memo on without prejudice basis because he intended to verify the said documents with the defendant’s solicitors.  It was also Mr Kong’s case that he did not comment on the draft joint expert statement pending his verification with the defendant’s solicitors in respect of the documents. Eventually, Mr Kong said that the defendant’s solicitors confirmed that he should not have commented on the documents because they were not in the parties’ list of documents^[59]. That was the only reason stated in his affirmation as to why he changed his opinion in the Handwritten Memo and adhered to his opinion in his expert report.

41.  Mr Kong’s explanation for the change of his opinion causes me grave concerns.  It cannot be emphasized enough that an expert owes an overriding duty to the court.  It was in pursuance of the court’s direction that the meeting between the experts was held and the joint statement of expert was made.  The defendant’s solicitors are in no position to instruct him as to whether, or on what items, he should agree.   It is not readily understandable as to why Mr Kong cannot form his opinion based on documents that were not contained in the parties’ lists.  In my view, Mr Kong’s consideration of certain documents not contained in the parties’ lists per se cannot be the legitimate basis for the change of his opinion. 

42.  In the present case, I am not told as to what kind of documents that Mr Kong had considered during the meeting, and I am not in a position to surmise the impact of the consideration of such documents and how they had affected Mr Kong’s opinion.  At the hearing, Ms Lam submitted that the defendant would be prejudiced because of Mr Kong’s agreement on the quantum of the remedial works (Issues 6 & 7).  With respect, this submission arises from the misconception that expert’s agreement binds his client.  As I pointed out above, it does not.  Indeed, a complete rebuttal to Ms Lam’s submission can be found in paragraph 42 of Robin Ellis (quoted in [30] above).

43.  Furthermore, save and except the bare assertion in his affirmation, there is no written record showing that Mr Kong had waited for the confirmation of the defendant’s solicitors as regards the documents he considered.  Mr Wong in his affirmation categorically denied that Mr Kong had told him during the without prejudice meeting that he had to verify the documents with the defendant’s solicitors. In any event, I hold that the Handwritten Memo had recorded the true opinion of Mr Kong immediately after the discussion at the without prejudice meeting.  I do not see any reason why, nor is it right that, such contemporaneous opinion made by Mr Kong (even though he had subsequently changed it) should be hidden behind a claim of privilege.

44.  Based on the materials placed before me, the change of Mr Kong’s opinion is inexplicable other than that he was “instructed” by the defendant’s solicitors to do so.  If this is the case, this is totally inappropriate and unacceptable.  The solicitors should have no business in inference with the formation of the expert’s opinion, nor should the expert allow his opinion to be limited by the “instructions” (or “verification” or “confirmation”) by those instructing him.  In my view, even if a document is protected by without prejudice privilege, it is reasonably arguable that such circumstance may warrant the court to uplift the privilege on the ground of unambiguous impropriety (as discussed in [20(6)] above). 

45.  Notwithstanding what I have said in the preceding paragraph, I cannot rule out in the present case the possibility that Mr Kong changed his opinion based on legitimate and bona fide reasons.  In such circumstances, I think it would be fair (even more so to the defendant’s solicitors) if the parties are able to use the Handwritten Memo to cross-examine Mr Kong at trial, where he can explain in open court the reasons for the change of his opinion.

E5. Conclusion

46.  For these reasons, I refuse to accede to the defendant’s application for expunging the Handwritten Memo.  Due to the informal format of the memo, I order that the Handwritten Memo be treated as an interim joint statement of experts.

47.  I also grant leave to the parties to file a final joint statement of experts within 28 days from the date hereof.  The said final joint statement of experts should indicate those parts of the experts’ opinions on which they are, and those on which they are not, in agreement. 

F. The plaintiff’s summons

48.  The defendant’s main opposition to the plaintiff’s summons is that any reasons for disagreement should be set out in the joint statement of experts, instead of in another expert report.  I agree.  In my opinion, appending a rebuttal report to the joint statement of experts is not helpful.  I believe that it would be more useful if the experts are to give succinct reasons in the said final joint statement explaining those items which they are in difference.  I order accordingly.  I would therefore dismiss the plaintiff’s summons for leave to adduce the Rebuttal Report.

G. Costs

49.  In the present case, neither party can be said to be the winner of their respective applications.  I appreciate the fact that a substantial part of the court’s time has been spent on the defendant’s summons; and I have considered whether the costs order should reflect the fact that the defendant failed to obtain the order he sought.  Upon reflection, I came to the conclusion that I should not.  With all due respect to Mr Howard Wong, I do not find that his submission is very useful to the court in the present matters.  Particularly, I did not accept his submission that the Handwritten Memo was a formal and final joint expert statement.  I also rejected his submission in relation to the handwriting analyses of the Handwritten Memo.  I do not find it fair to award the plaintiff’s costs in respect of the defendant’s summons.

50.  For these reasons, I think it is just and fair that each party should bear the costs of its own summons.  I would make a costs order nisi accordingly.

H. Disposition

51.  In the circumstances, I make the following orders:-

(1) Both the plaintiff’s and the defendant’s summonses filed herein on 22 November 2019 and 25 November 2019 be dismissed;

(2) The Joint Expert Statements of Wong Wing Cheung Dennis and Kong Ming Paul filed herein on 28 October 2019 do stand and be treated as an interim joint statement of experts;

(3) The parties do file a final joint statement of experts within 28 days from the date hereof.  In the final joint statement of experts, the parties’ experts shall (i) indicate those items on which they are, and those on which they are not, in agreement, and (ii) give succinct reasons explaining their disagreements;

(4) No further expert evidence shall be filed without leave of the court; and

(5) There be liberty to apply.

52.  As I said, I would also make a costs order nisi that each party should bear the costs of its own summons.  This order nisi will become absolute after 14 days from the date of handing down of this decision, unless any party applies to the court for variation within that period.

53.  To facilitate the variation application:-

(1) The applicant shall apply by filing and serving a written statement (not exceeding 3 pages);

(2) The respondent may reply within 7 days thereafter by filing and serving a written statement in response (not exceeding 3 pages); and

(3) The variation application will be determined by the court on the papers.