UNIBO TRADING LTD v. COOL TECH LAUNDRY LTD

                 HCA16/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 16 OF 2006

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JUDGMENT

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1. This is an appeal from an order of Mr Registrar Chan given on 4 April 2007.  As I understand it, the defendant wishes to call three expert witnesses and the Registrar has limited the parties to the calling of one expert witness each.  By his order made on a checklist review the Registrar gave leave to the plaintiff and the defendant to file and exchange textile expert reports within 63 days from the date of the checklist hearing.  He limited the calling of the expert to one expert witness at the trial. 

2. The defendant wishes to call two more experts.  The first, as I understand it, the defendant wishes to call an expert to give evidence on statistics on the examination of textile products and the defendant also wishes to call an expert to give evidence on trade custom. 

3. As to the expert on statistics on the examination of textile products, I bear in mind that the test as to whether or not expert evidence should be given is one of necessity, relevance and probative value (Lam Lai Ying v. Choi Min and Min Xin Insurance Co. Ltd. [2006] 3 HKLRD 572).

4. Nothing that Mr Hung, on behalf of the defendant, has said persuades me that such an expert to give evidence on statistics on the examination of textile products is either necessary, relevant or of probative value for the trial.  It seems to me that it would be a matter for the trial judge to determine whether the goods that were washed and dyed by the defendant were defective as alleged by the plaintiff.  That is a matter for the expert to give evidence on goods that had been tested including samples, and the goods that were eventually delivered after washing and dyeing by the defendant.  I do not see how an expert on statistics on how textile products are examined can assist. 

5. As regards an expert on trade custom, as I understand it, the amended defence and counterclaim pleads under the particulars of paragraph 4(b)(iii) that there was a trade custom that the submission of samples should be divided into 2 stages.  Firstly, colour samples or “shade bands” should be submitted for Next’s approval and secondly, that there should be the “1^st bath” of the samples to make sure that the garments when dyed in bulk should correspond not only with the colour requirement but satisfy other quality requirements as colour fastness, tensile strength and slim slippage.  It is pleaded that until the plaintiff approved the samples there would be no contract between the plaintiff and the defendant. 

6. It is the plaintiff’s case that the samples were submitted to Next for approval and that they were approved.  It was only after approval of the samples that the washing and dyeing occurred.  I do not see how it can be said that any evidence on the trade custom that I have mentioned is of any probative value at the trial.     The defendant’s case is that samples were submitted for approval before it embarked upon washing and dyeing.  The plaintiff’s case is that samples were approved.  I really cannot see how a trade custom which is pleaded that there should be no contract until approval is of any relevance when it is accepted by both parties that there was a contract between them. 

7. It seems to me that the Registrar was right to refuse the order sought by the defendant to call two additional experts and I would dismiss the appeal.