XCHRX CHU SIU KUK YUEN JESSIE t/a JESSIE CHU & CO., SOLICITORS v. APPLE DAILY LTD. AND ANOTHER

HCA 17103/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 17103 OF 1998

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R U L I N G

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1. I have before me two inter partes summonses.

2. As far as the summons filed on 2 June 2000 by the Plaintiff is concerned, that is for an order that the Plaintiff has leave to file and serve the supplemental witness statement of Mr Lee Yuet Man and new witness statements of Lo Mei Fung, To Chung Sing, Man Kwok Cheung and Tang Kam Cheung. In relation to these witness statements, some of them are to complement or supplement previous witness statements. Even as far as the new witness statements are concerned, they are short and I see very little prejudice that can be said to be incurred by the Defendants should these witness statements be allowed. Given the brevity of the witness statement, it is unlikely that the oral evidence to be given by these witnesses will be long. Therefore, in relation to para 1 of this summons, I will give an order in terms.

3. There will also be an order in terms of para 2 which gives the Defendants leave to file and serve additional or supplemental witness statements in response to those witness statements within 7 days.

4. As far as para 3 of that summons is concerned, the Plaintiff asks for leave to file and serve the supplemental medical report of Dr Chan Chung-mau, her attending psychiatrist, within the next 2 days and the Defendants have no objection to that. Therefore, I will give an order in terms of para 3 of that summons as well. I shall deal with costs at the end of this hearing.

5. The second summons is more problematical. This was a summons filed on 12 June 2000 by the Plaintiff for leave to file and serve the medical report of Dr Chen Char-nie within the next 2 days and for the Defendants to have leave to file and serve one additional or supplemental medical expert report in response to the Plaintiff's additional medical expert report within the next 10 days, and the number of medical experts to be increased to no more than 5 for each party.

6. As far as the history of expert evidence is concerned, Suffiad J had in July 1ast year, made an order in the usual form that each party do exchange medical reports upon which they will rely at the trial, with the medical experts to be limited to 2 for each party. About 2 months later in September last year, Yeung J had varied that order by ordering that the number of medical experts be limited to no more than 4 for each party and the number of experts for conveyancing business be limited to no more than 2 for each party.

7. Up until the issue of the present summons, the medical experts that were called for the Plaintiff were the attending gynaecologist and obstetrician, the attending psychiatrist, Dr Chan Chung Mau, an independent expert on the Plaintiff's pregnancy, Dr Terence Lao and a Dr Lau Wai Hung, the paediatrician who has been attending the Plaintiff's infant son.

8. It is now sought to adduce a further expert report, namely one of Dr Chen Char-nie who appears from his curriculum vitae to be a psychiatrist of some considerable standing and experience. It would appear that he was first approached towards the end of May after the Plaintiff sought further legal advice and it would appear that he had his first interview with the Plaintiff on 31st May, with a further examination on 5 June. The report was produced on 10 June 2000. This is a lengthy report. The substantive part of the report is about 11 pages with enclosed appendices of substantially more substance.

9. Mr Wong for the Defendants has said that he does not challenge the expertise of Dr Chen Char-nie and he does not challenge the fact that this expert report may well be helpful to the Court in its assessment of the damages that may have been suffered by the Plaintiff in the present case. However, the difficulty arises from the fact that the Defendants have to be given the same opportunity to consult someone of equal standing to Dr Chen Char-nie who would be able to speak to a report of similar substance. Mr Wong says that his instructions are that it may well be difficult to find another similar expert in Hong Kong, in which event, the Defendants will have to go outside Hong Kong.

10. All this leads to the problem of time, which is because the trial is due to be heard in 2 weeks' time. Today being 16 June, the trial is due to start on 3rd July and it is due to take 6 days. Clearly, therefore, if the Defendants are to be given the same amount of time that the Plaintiff has taken from the searching for an expert, such as Dr Chen Char-nie, to the examinations required, to the production of the report, the time would not be adequate, or it would be obvious that time would be extremely tight. There would appear to be really no good reason for the Defendants to be placed as it were "under the gun" because of this late instruction of Dr Chen Char-nie on the part of the Plaintiff.

11. Given all the above circumstances (and I do take into account the fact that other than the reference to the delay of the trial, no prejudice would be suffered by the Defendants in the calling of Dr Chen Char-nie), I would allow the Plaintiff leave to file and serve the medical report of Dr Chen Chan-nie within the next 2 days. However, I do not think it would be right for the Defendants to have leave to file and serve an additional or supplemental medical expert report in response to Dr Chen Char-nie's report only within 10 days.

12. Accordingly, whilst I would grant para 1 of the Plaintiff's summons of 12 June 2000, the time set out in para 2 of that summons should be extended to 21 days after service of the medical report of Dr Chen Char-nie on the Defendants. I would grant an order in terms of para 3, the number of medical experts to be increased to no more than 5 for each party, and I would record here that given the time that I have allowed the Defendants to file and serve an additional or supplemental medical expert report in response to Dr Chen Char-nie's report, it may well be that the trial would have to be put back. That is most unsatisfactory from anybody's point of view but the Court has to be fair to the Defendants who have been faced with a new medical report from what would appear to be an extremely experienced medical expert so close to the trial date. I will now hear the parties as to costs.