LEUNG WAI KEE v. TAM YUET SHEUNG

DCCJ 5716/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5716 OF 2007

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BETWEEN

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R U L I N G

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1.  In this action, the Plaintiff complains of leakage of water from the Defendant’s premises into the Plaintiff’s premises, and claims from the Defendant damages in the total sum of $176,837, as well as an injunction requiring the Defendant to rectify and stop the leakage of water into his premises. 

2.  An expert report was filed on behalf of the Plaintiff on 15 August 2008 in which the Plaintiff’s expert, Mr Stewart Wong of Proficient Surveyors & Company, identified areas of water leakage in the Plaintiff’s premises, the extent of the damage to the Plaintiff’s property, and his opinion on the cause of the leakage and its source.  The Plaintiff’s expert report has 10 pages and another 30 pages of exhibits. 

3.  On 15 August 2008, an expert report was filed on behalf of the Defendant, setting out the opinion of Mr David Chan of Wellgo Archdecor Consultancy Limited on the cause and source of the leakage in the Plaintiff’s premises, the condition of the Defendant’s premises and the alleged cost of repairs claimed by the Plaintiff.  The Defendant’s expert report has 30 pages and another 104 pages of appendices.

4.  The trial was set down for 3 days commencing today, on 11 May 2009. 

5.  On 4 May 2009, I set a pre-trial review and made various directions and orders in preparation for trial.  Amongst the orders made, I directed that the parties’ experts are to prepare, file and exchange by 1 pm on Friday, 8 May 2009, a joint statement indicating those parts of their evidence on which they are, and those on which they are not, in agreement.  This was pursuant to Order 38 rule 38 of the Rules of the District Court.  In the course of the hearing, I reminded the parties that the experts owe a duty to the Court and directed the parties to comply with Order 38 rules 37A, 37B and 37C of the Rules of the District Court.  The Plaintiff’s solicitor was further directed to supply a copy of the Code of Conduct for Expert Witnesses (Appendix E to the Rules) to the experts. 

6.  On 8 May 2009, Mr Wong and Mr Chan were only able to supply to the Court a joint statement which sets out a total of 10 bullet points of their respective conclusion on the source and cause of the water leakage into the Plaintiff’s premises, namely that Mr Wong considered that the water leakage originated from the Defendant’s premises, and that Mr Chan considered that the water leakage originated from either the potable water pipe serving the Plaintiff’s premises, or a common pipe, or the external wall.  These conclusions were already readily apparent from their respective expert reports filed on 15 August 2008. 

7.  As the Court explained to the parties and their experts, the joint statement filed on 8 May served no assistance whatsoever to the Court and was not in compliance with the Order made on 4 May 2009.  They should indicate those parts of their evidence, namely their reports, on which they are in agreement, and those parts of their reports on which they are not in agreement.  Just by way of example and with reference to the experts’ reports, I would expect at least Mr Chan to confirm whether he agrees that Mr Wong’s references to water marks on the wall below the bathtub evidences seepage of water through the rim of the bathtub along the wall to the floor beneath (i.e. “Evidence 5” on page 7 of Mr Wong’s report).  Similarly, I would expect Mr Wong to confirm whether or not he agrees with Mr Chan’s statement (in paragraph 5.2.9 of his report) that there is a possibility that the rainwater under the pressure of the stormy wind in August 2007 could cause the seepage of water into the Plaintiff’s bathroom ceiling.  These are only illustrations.

8.  On 4 May 2009, I had drawn the attention of the experts to paragraph 12(c) of the Code of Conduct for Expert Witnesses, whereby the experts, when specifying matters agreed and matters not agreed, should state the reasons for any non-agreement.  To simply repeat their different conclusions without stating the reasons for their disagreement by reference at least to their reports is not only unhelpful, but also not in compliance with the Order of the Court made on 4 May 2009.  Further, it is a dereliction of the experts’ paramount and overriding duty to help the Court impartially and independently on matters relevant to the experts’ area of purported expertise - a duty which is highlighted in paragraph 2 of the Code.

9.  If experts are not prepared to assume such a general duty to the Court, or if they regard such duty to be too onerous, then they should not accept instructions to act. 

10.  The underlying objectives of the Rules of the District Court are, as stated in Order 1A:

“(a) To increase the cost effectiveness of any practice and procedure to be followed in proceedings before the court;

 ……

 (c)  To promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;

 ……

 (e)  To facilitate the settlement of disputes; and

 (f)   To ensure that the resources of the court are distributed fairly.” 

The Court furthers the underlying objectives of these rules by actively managing cases, and the parties to the proceedings and their legal representatives must assist the Court to further these underlying objectives.  It was in an attempt to achieve these underlying objectives and to efficiently manage the trial that the pre-trial review was conducted and the directions made.

11.  The trial of this action is set down for 3 days.  The underlying dispute involves the Court’s analyses of the experts’ method of examination of the state and condition of the Plaintiff’s premises and the damaged property, and of their analyses of the source and cause of leakage.  Unless, prior to any witnesses being called at trial, it is clear to the Court and to the parties what the matters and issues are on which the experts disagree and agree, unnecessary time will be spent in the examination and cross-examination of factual and expert witnesses.  The experts will have to spend days in Court hearing the evidence of the key factual witnesses as well as the evidence of the expert called by the opponent, on top of their time spent in giving evidence. 

12.  Irrespective of how the parties themselves conduct their examination and cross-examination, ultimately, the Court has to understand the experts’ disagreement and to rule on the issues involved in this action.  These costs and the costs of the parties’ legal representatives can be avoided if the experts can spend time to identify the precise issues and subjects to be addressed, confine the areas of their disagreement, and exclude issues and subjects on which they agree.  The Court’s time can thus be saved, and its resources can be put to other better use.

13.  At the current state of the expert evidence, without the joint statement which I asked for, I envisage, with the greatest of optimism, that each expert will have to spend at the very least 2 days in court to give evidence and to be cross-examined on their reports and their findings, and to assist the Court in understanding their disagreement on the issues.  It is highly undesirable for the trial to commence and then to have to be adjourned, part-heard, only to resume 2 or 3 months down the road.  It is not an efficient use of court time and resources, and only increases the parties’ costs.  Nor do I see such prolongation of the trial to be reasonably proportionate to the amount of the claim involved.

14.  It is also possible that after the experts have spent time to consider and define the areas on which they agree and disagree, and their reasons therefor, the parties will, hopefully, be in a better position to settle their dispute, in part if not in full. 

15.  For the above reasons, I consider that the underlying objectives of the Rules which I have highlighted can only be achieved by adjourning the trial, and by ordering that the parties’ experts hold a further meeting and file a joint statement within a strict timetable from today, in accordance with Order 38 rule 38 of the Rules of the District Court. 

16.  Since the experts appointed in this case do not appear to understand their role as experts or the meaning and objective of a joint statement of their agreement and disagreement, I have referred them to paragraph 64 of Practice Direction 18.2, which sets out the matters normally addressed in a joint report and generally applicable to a joint statement of the type I ordered.  The joint statement will therefore have to contain the matters specified in paragraph 64 of Practice Direction 18.2.  As I have already explained to the parties, although Practice Direction 18.2 refers to the form of expert reports used in employees’ compensation cases, the form is not restricted to medical reports and should be applicable to most, if not all types of expert reports.

17.  If either expert fails to comply with my Order today, the parties on whose behalf the expert’s earlier report was filed shall be barred from adducing the expert report, and no further expert report shall be adduced by that party without the leave of the court.

18.  It is clear from the joint statement filed on 8 May 2009 that both experts are to be blamed for failing to comply with the Order which I made on 4 May 2009.  I will make an order nisi that:  

1.  The Plaintiff and the Defendant each bears its own costs of the adjournment of the trial which is occasioned by the failure of the experts to file the joint statement; and

2.  The experts’ costs of preparing the joint statement dated 7 May 2009 shall not be recoverable from the party to bear the costs of the action ultimately at the end of the day. 

There will be liberty to the parties to apply to vary this order within 28 days if it can be established that the non-compliance with paragraph 1 of my Order of 4 May 2009 was due to the fault of any one particular party.

19. I will hear the parties now on a timetable for the filing of the experts’ joint statement.

(Discussion re timetable and clarification of order nisi made)

20. So the orders and further directions that I make are that:

1.  The parties do file by 4 pm on 25 May 2009 the experts’ joint statement of the parts of their reports on which they agree, and those parts on which they disagree, and the reasons for their disagreement;

2.  The parties do jointly file by 4 pm on 29 May 2009 the schedule referred to in paragraph 2 of my Order of 4 May 2009; and

3.  A further pre-trial review will be fixed for 3 hours on 6 August 2009 at 9.30 am, when trial dates can be fixed and the length of the trial can be determined in the light of the joint statement and the schedule.

21. Today, the parties have submitted to me that they were not able to comply with paragraph 2 of my Order of 4 May 2009 in relation to the schedule to be prepared, by reason of the experts’ failure to produce the joint statement. 

22. If either party should fail to comply with the Order which I have just made for the filing of the schedule in accordance with my Order of 4 May 2009, which is by 4 pm on 29 May 2009, then that party will be ordered to pay into court a sum of money as security in accordance with Order 2 rule 3, to make sure that no one is using this as an attempt to delay the trial. 

23. I warn the parties in advance, that any further non-compliance with my Order will result in the party having to bear the consequences of non-compliance and breach of order, including the payment into court of money as security.  Orders of the Court are made for compliance.  I do not see any reason why the Court should waste time reviewing the file, preparing directions, preparing for a pre-trial review, only to have the Orders made totally ignored and disregarded by the parties.