AD (also known as AT) v. RT

HCMC 1/2022

[2024] HKCFI 2173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO 1 OF 2022

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DECISION

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A.   INTRODUCTION

1.  This is an application made by the respondent husband (“H”) to cross-examine Mr Ferry Choy (“the Expert”), the single joint valuation expert of a number of companies, whose valuations have been agreed by the parties.

B.   BACKGROUND

2.  The following background is relevant for the purpose of this application.

3.  Pursuant to expert directions given by the Family Court, the Expert prepared an Expert Report dated 30 August 2022 (“the Expert Report”), in which the Expert gave his expert opinion on valuation in respect of a number of companies including:

(1)  Harbour and Hills Financial Services Limited (“H&H”) and a number of its subsidiary companies (collectively, “the H&H Group”);

(2)  Wirease Limited and its subsidiary companies (collectively, “the Wirease Group”);

(3)  Distinct Infotech Solutions (“Distinct”);

(4)  Birchford Technologies Hong Kong Limited (“Birchford Technologies”);

(5)  Swype Technologies Holding Limited; and

(6)  Swype Prepaid Cards Management Service LLC.

4.  The case was subsequently transferred to the Court of First Instance.  On 12 May 2023, this Court, apart from fixing the trial date (commencing on 9 September 2024), gave a number of directions at the first direction hearing, including but not limited to the followings:

“3. The Petitioner and the Respondent do file and exchange their respective updated Form Es 6 months before the Pre-Trial Review Hearing […]

[…]

6. Valuation for […] companies […] shall be agreed within 14 days after exchanging of Form Es.  Failing agreement, the parties shall try to agree on a single joint expert(s) within 14 days thereafter.”

5.  Pursuant to the aforesaid directions, H filed his Form E on 21 December 2023, in which he estimated the value of the H&H Group, Distinct and Birchford Technologies as per the valuation assessed in the Expert Report.

6.  Solicitors acting for the petitioner wife (“W”) then wrote to H’s solicitors on 4 January 2024 as follows[2]:

“Pursuant to Paragraph 6 of the Order made by Deputy High Court Judge H. Au-Yeung dated 12 May 2023, the parties shall agree the valuation for landed properties, companies and personal valuable items within 14 days after exchange of Form Es, namely on or before 4 January 2024.

We set out below a list of the landed properties, companies (including companies which are in dispute as to beneficial interest), and personal valuable items, together with our client’s comments on your client’s proposed values:

[…]

(b) Companies (including companies which are disputed)

		Petitioner’s comments
6	Harbour and Hills Financial Services Limited and its subsidiaries: […]	Your client has adopted the SJE’s valuation in his updated Form E, i.e. HK$89,600,000. This is agreeable to our client.
8	Birchford Technologies Hong Kong Limited (‘Birchford Technologies HK’)	Your client has adopted the SJE’s valuation of 50% interest in Birchford Technologies HK in his updated Form E, i.e. HK$2,400,000. Our client agrees to adopt the SJE’s valuation. […].
12	Distinct Infotech Solutions (UAE) (‘DIS’)	Your client has adopted the SJE’s valuation of his 75% interest in DIS in his updated Form E, i.e. HK$7,200,000.  This is agreeable to our client.
14	Wirease Limited (Hong Kong) and its subsidiaries: […]	Our client proposes to adopt the valuation by the SJE, i.e. HK$32,100,000. Please let us know whether this is agreeable to your client.

[…]”

7.  H’s solicitors replied by letter dated 25 January 2024[3] and agreed to the proposal of W’s solicitors.

8.  The parties then filed an Agreed List of Issues on 13 June 2024 (“the Agreed List of Issues”). 

9.  On the same day, parties also filed an agreed timetable setting out the date on which the respective witnesses would give evidence at the trial (“the Agreed Timetable (June)”).  

10.  Pursuant to the directions given at the Pre-Trial Review held on 14 June 2024, H and W filed an Agreed Scott Schedule of Assets and Liabilities on 28 June 2024 (“the Agreed Scott Schedule”), and the following parts thereof should be highlighted[4]:

Properties	W’s case	H’s case	Agreed/ Disagreed	H’s Remarks
The H&H Group	$89.6m	$89.6m	Agreed	H is taking advice on the valuation
The Wirease Group	$32.1m		Value agreed	H is not the beneficial owner
Distinct	$7.2m	$7.2m	Agreed	As per the SJE Valuation Report
Birchford Technologies	$2.4m	$2.4m	Agreed	H is holding 50% of the shares […].  As per the valuation report, 50% equity value is HK$2.4m

11.  It appears that solicitors representing H and W respectively had had a telephone conversation on 10 July 2024 in which H’s solicitors indicated that H’s counsel would like to cross-examine the Expert at the trial.

12.  On the next day, W’s solicitors wrote to H’s solicitors and stated that she would not agree that the Expert be cross-examined at the trial “when the parties both agree to the valuations of the companies by Mr. Choy”.

13.  On 12 July 2024, H’s solicitors wrote to W’s solicitors and stated, inter alia, that:

“[…]

In the Agreed Scott Schedule of Assets and Liabilities dated 28 June 2024, our client indicated that he is taking advice on the value of Harbour and Hills Financial Services Limited (‘HH’). After having taken advice, our client clarifies that the scope of his challenge of Mr Choy’s valuations is limited to HH and Wirease Limited.

It is perfectly acceptable and relevant to call the SJE as a witness and our client does not see a basis for your client to obstruct his request. The SJE is an independent witness and has an overriding duty to help the Court.

Contrary to your client’s assertion that this is the first time the cross-examination of Mr Choy has been raised, this is not true. Your client had previously agreed to the same. In the Agreed Estimate of the Length of Trial dated 2 November 2022 in Part B of the agreed First Directions Hearing Bundle filed pursuant to the direction of HMJ B.Chu in the Note from Court dated 27 October 2022, there is listed ‘Examination of [Choy] Sai Fuk (Ferry)’.

Our client insists upon Mr Choy attending the trial for cross-examination. […]” (emphasis added)

14.  On 15 July 2024, W’s solicitors replied that:

“We refer to your letter dated 12 July 2024.

It is plainly a waste of time and costs for your client to cross-examine Mr Choy, particularly when the valuations of all the companies (including HH and Wirease) have been agreed. Further, the Agreed Scott Schedule of Assets and Liabilities was signed by all parties and filed with Court on 28 June 2024.

[…]

As the valuations have already been agreed, our client will not agree to add time for cross-examination of Mr Choy as this will unnecessarily increase costs and impact the Agreed Timetable.”

15.  H’s solicitors then wrote to this Court on 29 July 2024 (“the Application Letter”) and stated, inter alia, that H wishes to challenge the Expert’s valuation of the H&H Group and the Wirease Group.  It was also pointed out by H that, in the Agreed Timetable dated 15 July 2024 (“the Agreed Timetable (July)”), he had proposed that the Expert be cross-examined on the 18^th day of the trial on 4 October 2024.  The Application ended with the following request:

“In the premises, the Respondent requests that this Honourable Court do make a direction that Mr. Ferry Choy do attend the Trial on 4 October 2024 to give evidence and for cross examination.”

16.  As the trial will commence in less than a month, this Court proposed that H’s application to cross-examine the Expert be disposed of on paper with a tight timetable for lodging written submissions, which both parties agreed.

C.   GROUNDS OF APPLICATION

17.  In the written submissions lodged by counsel for H, it was suggested that “there are apparent issues in [the Expert’s] approach to valuing certain companies that the Court should be apprised of and have critical regard to”, specifically in relation to:

(1)  The H&H Group;

(2)  The Wirease Group;

(3)  Distinct; and

(4)  Birchford Technologies.

(collectively, “the Subject Companies”)

18.  It should be immediately noted that, apart from the H&H Group and the Wirease Group which H stated in solicitors’ correspondence that he would challenge, he is now seeking to dispute the valuation of two more companies – Distinct and Birchford Technologies.

19.  In summary, it is now argued on behalf of H that:

(1)  It is for the Judge but not the Expert to determine the value of the companies in question.  The Court is to assess and test the reality of the Expert’s valuation in accordance with its inquisitorial duty in the context of the ancillary relief proceedings.  This is particularly so when the valuations of private companies are involved because such valuations can be fragile and uncertain, which should be treated with caution;

(2)  There are a host of factors that may impact upon the Court’s assessment of the company valuations, and its determination cannot rest solely on the Expert Report, particularly when the approach used therein raises questions as to the appropriateness of the valuation;

(3)  The value and liquidity of the Subject Companies are issues that must be explored at the trial;

(4)  The appointment of a single joint expert, whether by agreement between the parties or imposed by the Court, does not bar a party from seeking leave to instruct its own expert to challenge the single joint expert’s evidence, or aspects of it.

20.  It is also important to highlight the following conclusion of H’s counsel:

“It is correct that the parties previously agreed the valuation of the target companies. However, having had the opportunity to consider the SJE Report in light of the matters raised above, it seems clear that there are serious questions regarding the valuations which need to be dealt and H must withdraw his agreement to put forward the above matters to the SJE. Accordingly, he requests that the SJE attend Court for oral evidence to assist the Court. H’s basis for requesting that the SJE attend are clearly not fanciful, and highly relevant to the forthcoming AR Trial.” (emphasis added)

D.   DISCUSSION

21.  I have no hesitation in refusing H’s application.

22.  First of all, the clear expressions of H’s agreement to the Expert’s valuation of the Subject Companies in the letter dated 25 January 2024 sent by H’s solicitors and in the Agreed Scott Schedule amount to admissions of H on the valuations of the Subject Companies (“the Admissions”) which bind H. 

23.  It is undisputed that leave is required from this Court for the Admissions to be withdrawn. 

24.  However, no application has been made for such a purpose.  Although it has been made very clear by W’s solicitors that their objection was based on the fact that the relevant values have been agreed (see [12] and [14] above), it was not stated in the Application Letter at all that H asks for leave to withdraw the Admissions.

25.  The Court, as a matter of fairness, should not take it as if an application to withdraw an admission has been made in such circumstances.

26.  This is so even though H said that he “must withdraw his agreement” to the Expert’s valuations in the conclusion section of his counsel’s 1^st round written submissions (see [20] above).  This indication came too late.

27.  It goes without saying that H is not assisted by his counsel stating in the very last paragraph of her Reply Submissions dated 13 August 2024 that:

“52. Lastly, although W’s own arguments as to H&H and Wirease as outlined above would suggest otherwise, if the agreement on valuations of H&H, Wirease, Distinct, and Birchford Technologies is deemed to be an admission, by this application, H respectfully seeks leave to withdraw the same.”

28.  One simply cannot be allowed to slip in an application in his reply submissions.

29.  In the circumstances where the parties have agreed on the valuation of the Subject Companies, there is no need (and it would be a waste of time and costs) to have the Expert called as a witness at the trial to be cross-examined. 

30.  I should also add that H’s remarks on the Agreed Scott Schedule that “H is taking advice on the valuation” cannot assist him because:

(1)  Despite such remarks, it was clearly stated by H in the Agreed Scott Schedule that he “agreed” to the valuation of the H&H Group;

(2)  In any event, H’s agreement has already been clearly expressed in the letter of H’s solicitors dated 25 January 2024.

31.  Coming back to Ms Booth’s argument, it was further argued that the Court is not bound by the Expert’s valuation of the Subject Companies.  However, with respect, this point is misconceived, because the point here is not whether the Court is bound by the Expert’s valuations, but whether H is bound by his agreement as to such valuations.  Indeed, a party is bound by his/her acceptance of the value of a property no matter whether expert evidence as to its value has been obtained.

32.  For the same reason, H’s reliance on the authority of Ho Yat Wah v Chung Hang Him [2019] 1 HKC 471 in support of his argument that he should be allowed to challenge the opinion of a single joint expert is totally beside the point.  The issue in Ho Yat Wah was whether the plaintiff therein was bound by the opinion of the single joint expert and whether he could adduce evidence of another expert in addition to that of the single joint expert.  In that case, the plaintiff therein had never indicated his agreement to the opinion of the single joint expert.  The situation in the present case is totally different.

33.  Heavy reliance has also been placed by H on the quasi-inquisitorial role of the Court in ancillary relief litigation.  This Court has been referred by H’s counsel to what Ribeiro PJ said in LKW v DD (2010) 13 HKCFAR 537 at [69] as follows:

“The essence of this fourth principle is reflected in Thorpe LJ’s illuminating comment in Parra v Parra:

‘... the outcome of ancillary relief cases depends upon the exercise of a singularly broad judgment that obviates the need for the investigation of minute detail and equally the need to make findings on minor issues in dispute. The judicial task is very different from the task of the judge in the civil justice system whose obligation is to make findings on all issues in dispute relevant to outcome. The quasi-inquisitorial role of the judge in ancillary relief litigation obliges him to investigate issues which he considers relevant to outcome even if not advanced by either party. Equally he is not bound to adopt a conclusion upon which the parties have agreed. But this independence must be matched by an obligation to eschew over-elaboration and to endeavour to paint the canvas of his judgment with a broad brush rather than with a fine sable. Judgments in this field need to be simple in structure and simply explained.’ ” (emphasis added)

34.  As I emphasised in the above quotation, it cannot be the case that the Court is obliged to investigate into all issues. The Court has to consider whether such investigation is necessary in the circumstances of the case.  In my view, that is the meaning of “which he considers relevant”.    Otherwise, the Court would have to look into all matters even if the same have been agreed between the parties (for example, the Court would have to require expert evidence on valuation to be placed before the Court even though parties have agreed on the value of a property).  That cannot be right. 

35.  The meaning of “which he considers relevant” appears to me to be common sense.  However, if authority is really required, one only needs to refer to another Judgment of Ribeiro PJ in Raymond Kin Sang Hung v Mimi Kar Kee Wong Hung (2015) 18 HKCFAR 210, in which his Lordship had the following to say:

“42. In his judgment, Cheung JA was of the view that where the parties had not raised an issue, this did not prevent the court from doing so of its own motion. Reliance was placed[5] on the decision of the English Court of Appeal in Parra v Parra where Thorpe LJ mentioned the quasi-inquisitorial role of the court in ancillary relief litigation.

43. As H pointed out in his written Case, there are limits as to how far this point can be stretched, particularly in the present case. What it does not mean is that matrimonial litigation is some form of ‘free for all’ where procedural rules and practice, coupled with their rationale,[6] have no application. In matrimonial litigation, I daresay that the court would exercise its quasi-inquisitorial role most acutely where children are concerned, or if one or the other party or both parties suffered from some disadvantage. Where, however, both parties are properly represented (as in the present case where at every stage, H and W have been represented by leading counsel), the court can in almost every case, unless some exceptional circumstances exist, rely on the parties to look after their own interests. It would be quite wrong in such circumstances for the court to second-guess, much less override, the parties’ approach to the litigation, much of it being driven by tactical considerations.” (emphasis added)

36.  H has been legally represented all along.  His interest must be regarded to have been adequately taken care of at all times. I cannot see that there are any exceptional circumstances either.  There is thus no merits for H to submit that the Court is obliged to consider the correctness of the Expert’s valuations and make a finding thereon despite parties’ agreement on the same.

37.  H’s counsel attempted to distinguish the Raymond Kin Sang Hung case on the facts.  Without disrespect to counsel, I do not intend to refer to those allegedly distinguishable facts one by one.  It suffices for me to say that I do not think those matters affect the applicability of what Ribeiro PJ said as quoted above.

38.  H’s reliance on the case of Chui v Cheng [2024] HKFC 128 is, with respect, unhelpful, because that is only an example of the application of the principles explained in Re Ng Wai Jing [2016] 2 HKLRD 1460 (see further below).

39.  Ms Booth also submitted that the Court should consider the nature of the assets including the liquidity, risk and the viability of such assets being realised or transferred.

40.  However:

(1)  It is noted that it has never been intention of the parties (nor was it the order of the Court) for the Expert to give opinion on such an aspect.  I am of the view that it can be safely inferred that H has never considered it necessary to seek expert directions for such a matter, otherwise he would have made an appropriate application to the Court long time ago, bearing in mind that he has had the same legal team for no less than 4 years (see HHJ Melloy’s Judgment on litigation funding dated 11 September 2020);

(2)  Indeed, in Ms Booth’s Note dated 13 June 2024 which was lodged for the purpose of the PTR to be heard on the following day, she commented on Issue 32 of the Agreed List of Issues[7] as follows:

“Issue 32: It is open to H to make submissions and argument on the liquidity of H&H.”

It is crystal clear that even H’s counsel considered back then that she would be in a position to make such submissions at the trial even without the oral evidence of the Expert.

41.  Looking at the matter from another angle, H in effect is proposing to adduce further expert evidence on liquidity shortly before the trial.  Even if it is proposed that the Expert shall proceed to produce a supplemental expert report as soon as possible and have it completed before the trial, I have very great doubt as to whether I would agree to it, given its lateness, not to mention that H is now proposing to have the Expert giving such expert evidence at the trial orally without any prior notice to parties as to what his evidence would be so that parties (especially W being the receiving end) would have a proper chance to prepare beforehand.

42.  H’s application to cross-examine the Expert at the trial should therefore be dismissed for the above reasons alone.

43.  For the sake of completeness, I should note that H’s counsel has referred this Court to, among other documents, W’s narrative affirmations, and submitted that even after the valuations of the Subject Companies have been purportedly agreed, W was still putting the valuation of the H&H Group in issue.  It was said that W does not fully accept the Expert Report.  I reject such an argument:

(1)  This is not the occasion to consider whether W is attempting to challenge the Expert’s valuations which have been agreed by the parties.  It suffices to say that in the light of the indisputable stance of W that the valuations are agreed, it is up to H to put forward submissions at the trial in the event W takes any step at the trial in disputing such valuations;

(2)  Even if W has been in breach of any procedural rules (in relation to which I make no finding herein), that does not entitle H to breach such rules himself.

44.  Even if this may be treated as an application to withdraw the Admissions, such an application must also be dismissed.

45.  The proper approach which should be adopted by the Court when deciding whether or not to allow withdrawal of an admission has been explained by the Court of Appeal in Re Ng Wai Jing [2016] 2 HKLRD 1460, in which Kwan JA (as her Ladyship then was) had the following to say:

“16. Mr Chan placed particular reliance on these parts of the majority judgments in Gale v Superdrug Stores Plc [1996] 1 WLR 1089 and he emphasised these words as italicised:

‘In my judgment leave should normally be granted if the application is made in good faith, raises a triable issue with a reasonable prospect of success, and will not prejudice the plaintiff in a manner which cannot be adequately compensated … It is not normally necessary for a party to justify his decision to amend his pleadings or withdraw an admission. It is enough that he wishes to do so.’ (1100A to C, per Millett LJ)

‘A party withdrawing an admission is to be regarded in a more favourable light. Excuse (or lack of it) is not entitled, in my judgment, to any particular emphasis: it is just part of the overall picture and will carry no more weight than the particular circumstances require.’ (1097G to H, per Waite LJ)

17. Gale v Superdrug Stores Plc was applied by the Court of Appeal in Re Chung Wong Kit (a bankrupt) [1999] 1 HKLRD 410.  Mr Chan quoted this passage in the judgment of Rogers JA at 413J to 414C with particular emphasis on these words as italicised:

‘[it was] argued that the respondents should not have been allowed to rely upon this affirmation as it constituted a withdrawal of an admission which was being made without proper explanation. This however is not a rule of law in itself but just an example of the proposition that a party should not be permitted to resile from an admission unless it was just to allow it to do so having regard to the interests of both sides. … in determining whether it is fair to allow a party to resile from an admission, it is not sufficient for the Court to presume prejudice to the opposing party but it is necessary to balance the prejudice suffered by the admitting party if deprived of his right to resile against any prejudice which the relying party has specifically established he will suffer if the admission is withdrawn.’

18. Mr C Y Li, SC, who appeared with Mr Adrian But for the defendant, submitted that the need for the applicant to put forward a convincing credible explanation of the circumstances in which the admission was in fact made is nonetheless a powerful factor (although not conclusive) in considering whether to give leave to withdraw an admission, see Tse Yuk Tin v Chee Cheung Hing & Co Ltd [1984] HKLR 391 at 395E to G; Ho Wai Yin & Ors v Cheng Suet Yee, HCAP 18/2003, 29 June 2005, §§3 and 8.  The question whether there is a proper explanation why the admission was made goes to the issue of good faith on the part of the applicant (Singh Balwinder v Sino Phil Engineering Services Ltd [2007] 1 HKLRD 560 at §10).  We do not understand Mr Chan to have disputed these propositions.

19. Gale v Superdrug Stores Plc was decided before the Civil Procedure Rules came into effect on 26 April 1999.  As stated by the English Court of Appeal in Sowerby v Charlton [2006] 1 WLR 568 at §34, the judgments of the majority in Gale v Superdrug Stores Plc should now be approached with caution because they were concerned with the effect of a regulatory regime which has been abolished and in particular there were features of the pre-CPR practice, as described in the judgment of Millett LJ, which would no longer be acceptable practice post CPR.  In §35, the court went on to cite the unreported decision of Sumner J in Braybrook v Basildon and Thurrock University NHS Trust [2004] EWHC 3436 (QB) at [45], which offered this valuable guidance on the way in which a court should exercise its discretion when determining whether or not to permit the withdrawal of an admission that was made after the action was commenced:

‘(1) In exercising its discretion the court will consider all the circumstances of the case and seek to give effect to the overriding objective.

(2)  Amongst the matters to be considered will be:

(a)  the reasons and justification for the application which must be made in good faith;

(b)  the balance of prejudice to the parties;

(c)  whether any party has been the author of any prejudice they may suffer;

(d)  the prospects of success of any issue arising from the withdrawal of an admission;

(e)  the public interest, in avoiding where possible satellite litigation, disproportionate use of court resources and the impact of any strategic manoeuvring.

(3)  The nearer any application is to a final hearing the less chance of success it will have even if the party making the application can establish clear prejudice. This may be decisive if the application is shortly before the hearing.”

20. The court in Sowerby v Charlton ended with these words in §36:

‘Above all, the exercise of any discretion will always depend on the facts of the particular case before the court. The words “will consider all the circumstances of the case” have particular resonance in this context.’

21. We think the above guidance should apply equally to Hong Kong in view of the underlying objectives in Order 1A rule 1(a) to (d) and (f) of the Rules of the High Court introduced as a result of the Civil Justice Reform.

[…]

30. Although the law does not prohibit a party from making a fundamental change after a conscious decision was made, it would expect that party to put forward a convincing, credible explanation in considering whether discretion should be exercised to allow that party to resile from his admission. […]” (emphasis added)

46.  In my view, the overall circumstances of the present case clearly point to the direction that H’s attempt to withdraw his admission on the valuation of the Subject Companies must be rejected.

47.  First, H has given no valid reason at all for his change of mind.   As aforesaid, the only explanation given by H was “having had the opportunity to consider the SJE Report” (see [20] above). 

48.  With greatest respect, it is unclear what that actually meant. 

49.  Insofar as it is suggested that H (or his legal representatives) has never had any opportunity to consider the Expert Report, such suggestion must be rejected outright.  As mentioned, H has been represented by the same legal team since at least 2020.  Therefore, it is inconceivable that his legal team did not have the opportunity to consider the Expert Report upon its completion in August 2022.  Indeed, in H’s Updated Form E dated 21 December 2023 which was prepared by H’s solicitors and the letter dated 25 January 2024 sent by H’s solicitors, the Expert Report has been expressly referred to.

50.  Hence, there is little doubt that H has not put forward any convincing nor credible explanation in support of his withdrawal of admission at all.

51.  Ms Booth referred to the case of Chow Ching Yee v Wong Hung Kee [2020] HKCFI 2555 and emphasised that G Lam J (as his Lordship then was) held that it is not incredible for a litigant to say that he has not received sound or adequate advice from his legal representatives.  The problem with this argument is that there is no assertion, let alone evidence[8], that H has been inadequately advised.

52.  Second, I agree with Mr Marwah for W that H’s application to withdraw the Admissions is not made in good faith:

(1)  Time and again H has indicated that he accepts the valuations of the Expert.  The acceptance can be seen not only from H’s updated Form E, the Agreed Scott Schedule, and the said letter dated 25 January 2024, but also in the Agreed List of Issues(in which the value of the Subject Companies was not listed as one of the issues) and the Agreed Timetable (June) (in which the Expert has not been listed as one of the witnesses to be called at the trial)[9];

(2)  While H has wisely not sought to adduce another expert report to challenge the Expert’s opinion, he is now alleging that the Expert’s valuations are questionable and that there are many aspects which require clarifications and explanations.   In my view, even if clarifications and explanations are required, any request for clarifications/explanations should firstly be put to the Expert in writing in the form of joint instructions, so that the Expert may produce a supplemental report accordingly.  However, given H’s queries are only raised shortly before the trial commences on 9 September 2024, it is unrealistic (to say the least) to expect that parties would be able to agree on the joint instructions and obtain the Expert’s supplemental report well before the trial so that W would be able to prepare her case properly.  In other words, W would be deprived of the opportunity to know well in advance the Expert’s answers to H’s queries, and if H’s request is acceded to, W has no choice but to wait for the Expert’s answers in cross-examination.  In my view, in the circumstances of the present case, it amounts to an ambush on the part of H;

(3)  Worse still, despite H’s initial indication that he would only challenge the valuation of the H&H Group and the Wirease Group[10], he is now seeking to expand his challenge to cover Distinct and Birchford Technologies.  With greatest respect, this is simply not an acceptable way to conduct litigation;

(4)  In my view, H’s latest move is just a tactical manoeuvring on his part.

53.  In relation to sub-paragraph (1) above, both H’s solicitors and H’s counsel were bold and desperate enough to refer[11] to an Agreed List of Witnesses to be Called by the Parties dated 2 November 2022 in which the Expert’s name was included, in support of their argument that the need for the Expert’s attendance at the trial had been raised previously.  With greatest respect, such an argument was made in total disregard of the actual circumstances of the present case: by the time the said List was prepared, the parties were yet to agree on the valuations of the Subject Companies made by the Expert.

54.  Third, if H is allowed to reopen the valuation issue, W will be greatly prejudiced which cannot be compensated by any costs order. 

55.  As aforesaid, the 19-day trial will commence soon. I accept Mr Marwah’s submissions that W has all along been preparing for the trial on the basis of the Admissions.  In my view, in such circumstances, she will be greatly prejudiced if part of her effort (and her legal team’s effort) would now have to be diverted to deal with the valuations of the Subject Companies.  This is totally unexpected and extremely unfair to W.

56.  Fourth, I also agree with Mr Marwah that if H is going to be prejudiced by the Court’s dismissal of his application to withdraw the Admissions and cross-examine the Expert, he is the author of such prejudice, given he has been legally represented all along in these proceedings (and also in the proceedings in the Family Court).  For the same reason, I disagree with H that his case will not be fairly determined if he is precluded from exploring with the Expert the issues which he has newly raised: There is nothing unfair about it because it can be safely assumed that H had accepted the Expert’s valuations with full legal advice.

57.  Fifth, I have great doubt on whether H can successfully challenge the Expert’s valuation in the absence of contrary expert evidence. 

58.  Further, while Ms Booth has now put forward a very long list of challenges, given how hard H has fought in these ancillary relief proceedings, I am of the view it is highly likely that H would have raised those challenges long time ago if they were of merits.  However, the fact is that he has elected to accept the Expert’s valuations nearly 18 months after the date of the Expert Report (in other words, H did not accept the valuations hastily and has had plenty of time to raise his challenges, if any).

E.   DISPOSITION

59.  For reasons of the aforesaid, I dismiss H’s application.

F.   COSTS

60.  I make a costs order nisi that H shall bear W’s costs of the application

61.  The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.

62.  Unless any application for variation of the aforesaid costs order nisi is made within time, H shall lodge and serve his statement of objection within 21 days from today[12].  Summary assessment of the costs of the application will be conducted on paper (no matter whether any statement of objection is lodged within time) thereafter.  The costs assessed shall be payable within 14 days after assessment.