XCHRX CHAN MUN KUI v. LAU YUK LAI

HEADNOTE

Expert Reports - disclosure of all reports and material considered antecedent and subsequent to report or statement disclosed.

Professional Legal Privilege -Waiver (in anticipation of application of Order 38 rules 36 and 37) extends to all antecedent material on which disclosed report is based and subsequent reports from same source.

Expert Evidence - criteria for validation of opinion and expertise.

Preparation of Expert Reports or Statements disclosed for purpose of adducing evidence at trial - product of independent opinion of expert concerned - Court deprecation of special pleading. Intervention of lawyers in preparation potentially destructive of status of expert and validity of expert opinion.

Duties and Responsibilities of Expert Witnesses.

HCPI 301/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 301 OF 1998

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J U D G M E N T

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1. This is a claim for damages arising out of alleged medical negligence. The action was commenced in March 1998, the matters complained of having occurred in or about May 1996. The action is very close to being set down for trial.

2. In anticipation of the application of Order 38 rule 37, the Defendant's Solicitors disclosed a written report by Dr. York Chow, a medical expert upon whom they seek to rely at trial in respect of the allegations against the Defendant, and, no doubt the issue of causation. The Defendant's Solicitors were obliged to take this course in order to be able to adduce such expert evidence at trial. The order and rule referred to require the substance of the evidence to be given to be disclosed. Substance means the evidence that the expert would give at trial and not all the evidence that he could give. Giving the word its ordinary natural meaning, it is the essence or material content which must be disclosed.

3. Although the English Court of Appeal in Derby & Co. Ltd. and Others v. Weldon and Others (No. 9) 1991 I.W.L.R. p. 652, [The Times Law Report November 9th 1990] was concerned with a case, the nature of which did not remotely compare with this action, it stated a number of matters by way of clarification of the ambit and effect of Order 38 Part IV (Rules 35 to 44). There was a discrete issue in that case on which the Defendant did not intend to adduce evidence at trial and would not be serving a further expert's report on that issue. It was held that the Court had not power to call for such a report to be brought into existence and disclosed where the party concerned did not intend to adduce such evidence, even though (and this was the germ of the Applicant Plaintiff's case), the expert in his disclosed report had said that he had not seen the text of the alternative claim or issue raised by the Plaintiffs, but would deal with the matters raised in a supplementary report.

4. That decision and its reasoning is in my respectful view, not susceptible of counter-argument. The Court did not have power to override legal professional privilege though in an appropriate context it had the power to order disclosure. The Court was not empowered to compel disclosure of a report, which might or might not be in existence, where the party did not seek to adduce evidence on that issue.

5. It went on in its consideration of what was required to be disclosed in an expert report on which the party adducing it sought to rely, to state that the report did not need to deal with all possible lines of cross-examination. There was no power to order this and I cannot envisage such a power being introduced. It would make the whole situation in relation to expert reports unwieldy as well as unrealistic.

6. Staughton L.J. referred in his concurring judgment to the decision in Kenning v. Eve Construction Ltd. 1989 I.W.L.R. p. 1189 stating that it was wrongly decided to the extent that it was contrary to the Court of Appeal's construction of rule 37(1). It is not difficult to see why he took that view. A letter attached to the expert's report had been, by mistake, sent to the other side. It had decided to use it to found an application to amend the Statement of Claim, for which in fact leave was given. The letter contained the expert's views on what the Defendant's position would be if the Plaintiff did amend its case. That was clearly a privileged document and privilege had not been waived by its accidental disclosure. The learned judge at first instance had decided that privilege had been waived and the Defendants could not call the expert without also putting in evidence the letter. The rule did not permit the Court to impose a choice upon the Defendants in the context of that case.

7. It Is essential in the case before me that there be a clear picture of what the Defendant's Solicitors have done and what the Plaintiff seeks by reason of the Defendant's disclosure of an expert report. The report is in fact in the form of a Statement or proof of evidence dated 26th May 1999 and signed by Dr. York Chow. There is a readily apparent contrast between its form and the other antecedent documents emanating from Dr. York Chow, which I have had to consider and the later document from Dr. Chow which has also been disclosed, described as a "Supplementary report ...... Comments on Dr. Edmund Woo's Report dated 9th June 1999." All these are in the form of letters or reports on Dr. York Chow's own headed paper. At this stage, I need not consider the possible implications of and inferences to be drawn from a report or statement presented in this fashion. How did it come to be compiled? Is it the sum of numerous reports, contributions, suggestions, and drafts? It may well become a matter for cross-examination of Dr. York Chow in due course. At present I view its format with a degree of scepticism.

8. The disclosure of this report/statement, necessary if the Defendant is to adduce such evidence at trial, means that legal professional privilege has been waived in respect of it. Any material identified by the expert as having been considered by him in the formulation of his opinion must also be disclosed by him. It cannot be protected by a claim of legal professional privilege since the vehicle in which such an opinion has been expressed, has itself ceased to have that protection. It would of course constitute a nonsense if, a party seeking to adduce an expert's opinion, were to argue along the lines "you have to admit and evaluate that opinion without being entitled to see all the material on which it is based." The implications of such an approach will be self-evident when I come to examine the purpose, status and value of expert witnesses in due course.

9. In the report/statement in question are identified 21 documents being "The basis of the facts and information contained in them." They are all thereby disclosed and not protected by privilege. Not itemised amongst them, but referred to in paragraph 4 (Case History Summary) is "Assessment of the patient by me" against the date 5th July 1997. This is so obviously part of the material obtained by Dr. York Chow and considered for the purposes of the report/statement of 26th May 1999 that perhaps it did not need itemising in the group of 21 documents.

10. Turning to it at page 127 of Section C of the bundle prepared for the pre-trial Review, I find that it is entitled "Supplementary Report: Mr. Chan Mun-Kui." That reveals the existence of an earlier report to which this is supplemental. I will deal with each of these documents in turn.

11. The report of 5th July 1997 followed an examination of the Plaintiff on the same day. The Defendant does not claim privilege as I understand the position, in respect of this report as such - I do not see how he could do so in any event, but his Solicitors have excluded or blocked out on the grounds of such privilege what appears to be the last third of the last page, immediately above Dr. York Chow's signature. I have called for the complete document so that I may consider this omitted section and the claim made.

12. It is headed "Other comments." What then follows are the doctor's answers to three questions all raised in a letter of 23rd June 1997. The three questions are not set out but the replies are all concerned with either the medical knowledge or expertise or assessment of the treatment in the case. They are in my view self-evidently not protected by such claimed privilege. They go directly to the fundamental issues in respect of which Dr. York Chow is put forward as the Defendants expert. The same applies to the letter, or rather the material part of the letter, from the Defendant's Solicitors, containing the three questions.

13. I anticipate that the three questions raised for Dr. York Chow to deal with arose following a consideration of his antecedent report of 14th April 1997 (the one to which that of 5th July 1997 was described as supplementary). Apart from the "Case History Summary" which appears in the disclosed report/statement of 26th May 1999 the Defendant's Solicitors claim privilege for what is in effect, the whole of that report. Accordingly, I have read a copy of it in its unexpurgated form. The introduction to the report sets out succinctly what Dr. York Chow was required to do - "critically examine and analyse the management [of the Plaintiff] by Dr. Lam Yuk-Lai ... with regard to a number of questions." He then goes on to identify the 16 questions and then the documents (only 12 on this first occasion, or so it appears) of which he took account. I do not need to set out in detail the content of that report. It is sufficient to state that it is an expert professional opinion on matters which are either the issues themselves, or directly relevant to the issues between the parties, expressed upon the basis of material then available, in the context of specific questions. Whilst of course, had the Defendants wanted to keep Dr. York Chow's expert report subject to legal professional privilege, they could have done so, once they waived that in order to be able to adduce his evidence they have waived all documents emanating from him in the form of antecedent (and subsequent) letters and reports in which he considered material and gave his expert opinion. In my view to hold otherwise would be illogical and would run counter to the Court's necessary approach to and expectations of expert witnesses, as I will set out shortly.

14. The final document to be considered is in the form of a letter from Dr. York Chow dated 17th April being a reply to the Defendant's Solicitor's letter of 9th April. He summarises his opinion on "The three major areas of dispute," and then comments on Dr. Hsieh's report (prepared for the Plaintiff's Solicitors and disclosed) dated 26th February 1998. The Defendant has excluded all the summary and first three comments on Dr. Hsieh's report, together with his final sentence. I do not follow the logic of the exclusion of the first two aspects. The material is wholly concerned with the issues in the case and therefore with the substance of the evidence he is to give, and his assessment of evidence to be given on behalf of the Plaintiff which is part of his expert opinion as well. They are inseparable.

15. The last aspect is obviously a reply to a specific question on tactics or the resolution of the claim. It is extremely unwise to inquire thus of an expert whose opinion may be adduced as part of the Defendant's case. It runs the risk of compromising his position as an expert. True to his professional calling Dr. York Chow declined to comment on it. Had he done so, and depending upon his answer, I may have considered that it should be excluded but that situation has not arisen. The letter of inquiry itself falls to be disclosed - subject to scrutiny of its content because it is inextricably linked with Dr. York Chow's reply. However because Dr. York Chow helpfully replies unequivocally on all matters and those replies reflect the matters raised, I do not consider that letter of instruction is of any consequence. I think too that although Dr. Chow says he would not like to comment on the final matter raised, there is a possibility that the form or content of the matter on which he was invited to comment could be highly embarrassing or prejudicial. Accordingly, I do not order disclosure in the exercise of my discretion. It should serve as a salutary reminder.

16. In his careful argument Mr. Graham on behalf of the Defendant relied on a number of authorities and first principles, the latter being expressed in Cross and Tapper's eighth edition of Evidence, the successor to Professor Rupert Cross' classic text. There is no doubt that Dr. York Chow's communications, whatever form they took, were protected by legal professional privilege, and so the only question at issue in this hearing has been whether the antecedent communications were subject to the same waiver of privilege as his report/statement demonstrated when it was disclosed for the purposes of evidence in this action.

17. At page 475 under "Confidentiality and Waiver" is stated:

"Waiver does not necessarily extend to all otherwise privileged documents dealing with any matter merely mentioned in such a document."

18. As far as that is concerned it does not apply to the position we are considering. Here we have a chain of documents from the same source dealing with the fundamental purpose of all such documents - the expression of professional expert opinion on the issues between the parties. Each is a discrete document dealing with the material considered for the purpose of the opinion expressed. Nor do they fall within the ambit of the next sentence in the text:

"Simple reference to a privileged document in an affidavit will thus not necessarily amount to waiver, but more extensive reliance may well do so."

19. Affidavits fulfil purposes different from expert reports although one is now naturally concerned at the extent to which they are being misused, becoming vehicles for opinion and argument as their main purpose. "Simple reference" does not arise in the case of Dr. York Chow's report/statement when he refers to his assessment of the Plaintiff on 5th July 1997 although I did raise an eyebrow that the "Supplementary Report" (The proper title of that document of 5th July 1997) had become innocuously referred to as an 'assessment'. The explanation for that may lie in the mechanics of the preparation of that report/statement. Clearly the "Supplementary Report" of 5th July 1997 formed a significant element in the substance of the expert opinion - how could it not, one could justifiably ask rhetorically? Inexorably it led back by its very title to the antecedent Report of 14th April 1997.

20. Finally, with reference to the remainder of that paragraph in the text, the reports prior to the report/statement disclosed are not earlier drafts so as to retain privilege.

21. In the next paragraph is a statement illustrated by a reference to an Australian case (R. v. Meninga [1992] 66 ACR 199):

"[Privilege] may be waived by the supply of otherwise privileged material to an expert who testifies upon its basis."

22. All the erstwhile documents being considered are earlier reports from the self-same export. His prepared report/statement makes reference to an "assessment" which as we know is a supplementary report. There is no reference to the initial report of 14th April 1997 nor to that of 17th April 1998. It is inconceivable that Dr. York Chow has not prepared, or had prepared for him, this disclosed report/statement on the basis of those reports. They constitute material fundamental to his opinion. There is possibly in paragraph 1 of that last document a reference to the existence of the "report" of 5th July 1997 though it is by no means unambiguous. If there is a mistake or confusion in that reference, it illustrates one of the dangers of such "special pleading".

23. The decision of the House of Lords in Waugh v. British Railways Board [1980] A.C. p. 521 was not concerned with the disclosure of expert evidence for the purposes of admissibility and the consequent necessary waiver of privilege, but with an internal report as to the cause of an accident which had a dual purpose, the public interest in railway operation and safety having at least equal weight with the party's interest in obtaining legal advice in anticipation of litigation.

24. The passage in the speech of Lord Wilberforce at p. 531 (C-D) which Mr. Graham cites, refers to the "exigencies of the adversary system of litigation", as they then existed (my words and emphasis). Much change has taken place in litigation since Lord Wilberforce's words in 1979, now twenty years ago.

25. Mr. Graham is in my view correct in his desire to draw a distinction between discovery of documents and disclosure of reports although the changes introduced as a result of the Woolf report in the United Kingdom have done away with discovery and adopted the comprehensive term of 'disclosure'. My order of 22nd July 1999 in so far as it related to material emanating from Dr. York Chow certainly made reference to "records, medical reports/opinions ... relating to his examination of the Plaintiff on 5th July 1997 leading up to the filing of the expert report dated 26th May 1999." I did not then know of the extent of Dr. York Chow's reports but I certainly had in mind that any of his reports which preceded his report/statement would have to be disclosed. It is to be noted that the "assessment" of 5th July 1997 was the only "report" identified in that document of 26th May 1999, and, when seen, the report of the 5th July 1997 led back to that of 14th April 1997.

26. The Defendant's Solicitors have indicated that they are in possession of two further documents from Dr. York Chow - viz. one dated 19th May 1997 in the form of a letter, and one of 16th September 1997, described as a supplementary report. I have not seen these even in edited or expurgated form. I cannot see any basis for the Defendant withholding them from disclosure. If either was to contain any matter which could be regarded as prejudicial to the Defendant, falling within the nature of that subject on which Dr. York Chow declined, very properly, to comment (see earlier), then it may fall for excision. But subject to that possibility, which the Court will have to consider, I order their disclosure unedited.

27. In taking the course I have, I have not in my view, offended any known and extant principle or indeed any interpretation of privilege enunciated by any decided cases. Hoffmann, J. (as he then was) in Comfort Hotels v. Wembley Stadium 1988. I.W.L.R. 872 considered Order 38 rule 2A which applies to witness statements as opposed to expert evidence, which is covered by Order 38 rule 36.In re Saxton, dec'd 1962 I.W.L.R. 859 and 968 was concerned with Wilberforce, J.'s decision to require production of an alleged forged document for examination by an expert subject to a condition that the expert's report be disclosed. The Court of Appeal reversed his decision. The expert's report was to remain privileged no doubt until such time as the party obtaining it sought to adduce such expert evidence. However in the particular circumstances of that case, if the subject of dispute today, I doubt the Court of Appeal would take the same view. In any event the protocol which would be established for such expert evaluation would disclose the identity of the expert concerned and the interested party would have little difficulty in adducing the expert opinion by subpoenaing him to appear and produce his report or at least invite clear inference to be drawn if a claim of privilege were to be persisted in.

28. Hoffmann, J. went on to draw the distinction between the basis of the rule dealing with expert evidence and that relating to the general procedure for adducing evidence at trial encompassed by rule 2A - the former was made under an enabling section. There was no primary legislation enacted for the purpose of Order 38 rule 2A to be made. Lord Denning in Re Grosvenor Hotel London (No. 2) 1965 Ch. 1210 (at 1243) stated that the Rule Committee "can make rules for regulating and prescribing the procedure and practice of the Court, but cannot alter the rules of evidence ......" It is also to be noted that Order 38 r. 2A(8) specifically preserves the privilege. There is no such provision attached to Order 38 rule 36 or 37. That I regard as unsurprising given that disclosure within these provisions unarguably includes reports from the same source on the same issue.

29. Quite apart from the Orders and rules relating to such disclosure, the very status of the expert evidence which it is sought to adduce calls for complete disclosure of all that the expert has provided by way of antecedent opinion and evaluation including the documentary material which he has considered in reaching that opinion.

30. The position was considered in principle by Cresswell, J. in "The Ikarian Reefer" 1993 2 L.L.R. at page 81-82.

1. "Expert evidence presented to the Court should be, and should be seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (See Whitehouse v. Jordan 1981 I.W.L.R. 246 at p. 256)

2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.

3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

6. If after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert report or for any reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court."

31. Point 7 which I have not repeated here is essentially concerned with the situation obtaining in the Commercial Court though it is easily adapted to meet the requirements of Personal Injury litigation which I have already set out earlier.

32. These principles cover the two aspects of expert evidence; the opinion itself incorporating the material considered and the validity of the opinion expressed, and the expertise and professional approach which has given rise to the status as expert.

33. It is impossible to assess the validity of the opinion without knowing the progression of that opinion by reference to the sequence of reports, the material considered and the evolution of the conclusions. It is equally impossible in my view, to determine the status of the expert, without knowing what he has said in the course of his recorded consideration of the issues and with what he has been supplied as the basis for formulating his opinion. Any withholding of such material must call into question the very criteria by which an expert seeks to have his expertise, and the validity of his opinion accepted.

34. As attractively and temperately, as Mr. Graham has argued the Defendant's case, I suspect that he could not resist two specific conclusions which effectively dispose of the question. To accede to an argument that the antecedent reports of, and any other material considered by Dr. York Chow remain privileged, wholly or in part, once his expert opinion is disclosed, in the form of a report or a statement for use in evidence on behalf of the disclosing party, would be to negate the purpose and effect of Order 38 rules 36, 37. It would set back the cause of achieving a fair and open arena for the proper testing of expert opinion, almost to first base. Secondly, it would strike at the whole ethos of expert opinion and render suspect, and thereby of negligible value, expert opinion adduced in accordance with the rules. A judge would never feel confident that an expert's essential probity and independence had been demonstrated.

35. I am compelled to return to a point I raised earlier when noting the form of the report/statement submitted or disclosed under Dr. York Chow's name. In the "Ikarian Reefer", as his first point, Cresswell, J., cited verbatim part of Lord Wilberforce's speech in Whitehouse v. Jordan which is of prime importance yet I fear too often ignored. To put it in its proper context we must go back to Lord Denning's judgment in the Court of Appeal's decision in that same case [1980 1 All E.R. at page 655]. He was considering (at a-c) the joint report of the two distinguished though retired obstetricians, which was instrumental in the case continuing to trial at first instance.

"... Their joint report has been subjected to severe criticism and has been shown to be mistaken on some very important points.

In the first place, their joint report suffers to my mind from the way it was prepared. It was the result of long conferences between two professors and counsel in London and it was actually "settled" by Counsel. In short it wears the colour of special pleading rather than an impartial report. Whenever counsel "settle" a document, we know how it goes. "We had better put this in", "We had better leave this out" and so forth. A striking instance is the way in which Professor Tizard's report was "doctored". The lawyers blocked out a couple of lines in which he agreed with Professor Strang that there was no negligence."

Lord Denning for all his long years on the bench and away from the "Exigencies of litigation" had not failed to detect a practice which the Court was forthright in deprecating. If my recollection serves me right the judgment, temperate as it was, concealed a rather uncomfortable time in the Court of Appeal for the advocates concerned. The Master of the Rolls was castigating in measured terms a tendency, if it was not a practice, to deprive an expert witness of his independent presentation of evidence.

36. That was in part the factual basis for Lord Wilberforce's strictures in the House of Lords:

"I have to say I feel some concern as to the manner in which part of the expert evidence called for the Plaintiff came to be organised. While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the Court should be, and should be seen to be the independent product of the expert, uninfluenced as to the form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self-defeating" [My underlining].

Although I cannot be sure as to how Dr. York Chow's report/statement came into being I have my suspicions that the lawyers have had a significant hand in it and that it is culled from or is a composite version of earlier reports. Time will reveal the position. There are clear markers, but I have not the time or the immediate need to conduct the necessary exercise. I have good reason to believe that this "special pleading" in relation to such expert evidence is being practised here in Hong Kong. It is strongly to be deprecated, and its likely consequences have been identified in moderate terms by Lord Wilberforce.

37. I make the order that the Defendant discloses to the Plaintiff's Solicitors all reports and communications from Dr. York Chow, within 14 days. That period is longer than is actually necessary, in order to give Mr. Graham, sufficient time to consider any further step he may wish to take in respect of my finding, as I promised. The Plaintiff is to have his costs of all applications and hearings in relation to this matter.

38. At an early stage I indicated to Mr. Graham in response to a degree of anxiety on the Defendant's Solicitors part that I would not be the judge trying this action. On reflection I gave that assurance prematurely. A consideration of all the material now available (subject to whatever the other two documents reveal) indicates that there is no good reason why I should not try this action. Having given the assurance however I will abide by it. The mere fact that I have put into sharp relief the report/statement of Dr. York Chow and commented upon it in the context of the principles underlining expert evidence, would not require me to exclude myself. That is a situation which will be readily apparent to any judge.

Finally I commend for careful consideration Chapter 13 [Section III - pages 137-146 in particular] of the Final Report of Lord Woolf entitled "Access to Justice".