XCHRX TERESA ANNE HOLLADAY v. FRED KAN & CO. (A FIRM) and Another

1996, No. A12723

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. In this action, the Plaintiff brings claims against two firms of solicitors for negligence and for breach of duty and contract. In her summons for directions, the Plaintiff sought a direction that:

"the parties do have leave to produce expert evidence from a solicitor at the trial of this action and the report of the expert to be exchanged within 30 days."

2. Master Woolley declined to give such a direction. Against that decision the Plaintiff now appeals.

3. As I observed at the hearing of the appeal, that direction is couched in somewhat vague terms. I accept that in some cases there will be no doubt as to the issues which the experts will be expected to address. For example, in a personal injuries case an orthopaedic surgeon will have little difficulty in coming to grips with the extent of any injury and any question of permanent disability. In other cases, however, and this case seems to me to be a classical example, the issues to be addressed by the experts should be defined. Otherwise, there is a danger that when the experts' reports are exchanged, it will be found that the respective experts have taken different directions so that the real matter or matters upon which their expert assistance is required have only been met in part or on one side.

4. Mr. Coleman for the Plaintiff had in fact come prepared to define the matters on which the evidence of a solicitor could help the court. He said that these were matters of practice upon which the solicitor would give his opinion in the light of his understanding of the law. There are, he said, two matters. First, the appropriate practice where a conflict of interest situation arises. Second, the appropriate response by a solicitor where there are overlapping aspects of family, testamentary and contractual law and, in the case of the 2nd Defendant, an additional consideration of whether another solicitor has already been negligent.

5. In dealing with an application under Ord. 38 for leave to adduce expert evidence, the court has a limited function. Because it is generally a matter for the parties to an action to decide which witnesses they wish to call, the court's principle function is as to disclosure and exchange of the experts' evidence. Those reports having been exchanged, it may later be necessary for the trial judge, either at trial or in a pre-trial hearing, to decide upon questions of admissibility of such reports either in whole or in part. In my view, however, the judge or master hearing the initial application under Ord. 38 does have a filtering role. He must be satisfied that there is a matter upon which it is proper to call expert evidence. That is for there to be an expression of opinion upon some aspect of science, art or professional practice that is otherwise outside of the competence of the court.

6. For the 1st Defendant, Mr. Scott whose submission was endorsed by Ms. Newall for the 2nd Defendant said that the particulars upon which the Plaintiff relies to establish the Defendants' negligence and breach of duty and contract are simply matters of fact and/or law which will be peculiarly within the competence of the judge at trial to decide. In effect, all that the Plaintiff is seeking to do is to obtain the opinion of a solicitor upon these matters but not an expert opinion.

7. In Midland Bank Trust Co. Ltd. and Another v. Hett, Stubbs and Kemp (A Firm) (1979) Ch 384 Oliver J. was dealing with a claim in negligence and breach of duty in relation to a firm of solicitors. At p. 402 he said:

"The extent of the legal duty in any given situation must, I think, be a question of law for the court. Clearly, if there is some practice in a particular profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received. But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks that he would have done had he been place, hypothetically and without the benefit of hindsight, in the position of the defendants, is of little assistance to the court; whilst evidence of the witnesses'' view of what, as a matter of law, the solicitor's duty was in the particular circumstances of the case is, I should have thought, inadmissible, for that is the very question which it is the court's function to decide."

8. The question of a solicitor's duty arose again in Carradine Properties Ltd. v. D. J. Freeman & Co. (A Firm) in which the Court of Appeal gave its decision on 18^th February 1982. In the course of his judgment, Lord Denning

M. R. said that the parties:

"wanted to call expert evidence as to what would be the duty of solicitors in such a case as this. It seems to me that in an appropriate case an expert can give evidence in a solicitors' negligence case, just as a medical man can give evidence in a medical negligence case or an engineer in a motor accident case. But that is only expert evidence as to the best and accepted practice in a profession or trade. A man with expertise in a profession or trade can give evidence of the practice, but he cannot give evidence as to whether in this particular case there was negligence or not. In some cases he blurts out quite naturally, "If I had been in that position I would have done this or that". It is a very usual question to be asked and no objection is taken to it. But the present case is different. Carradine wished to call a lawyer of the city of London who was very experienced in insurance matters. He was to give his own view as to what he thought these solicitors should have done. He was not going to speak as to the established or recommended practice of solicitors in general. The judge in his discretion did not allow him to be called. It was a matter for the judge in his discretion. I think the judge was right."

9. It is apparent that neither the judge nor the Court of Appeal had any difficulty in discerning the duties imposed upon solicitors and whether or not the solicitors had discharged those duties.

10. More recently, the Court of Appeal applied the dictum of Oliver J. in Bown v. Gould and Swayne (1996) P.N.L.R. 130. There the defendants were a firm of solicitors against whom, once again, proceedings had been brought in negligence and breach of contract. The plaintiff sought leave to adduce evidence of a conveyancing expert. Leave was refused by the judge at a pre-trial review. At p. 135, Simon Brown L.J. said that counsel for the plaintiff:

"submitted that what the solicitors should have done is a matter of practice such as falls into the category of evidence that is properly the subject of admissible expert evidence within Oliver J.'s formulation in Midland Bank. That, however, in my judgment, is a fundamental misconception and it underlay all his submissions on the point. What solicitors should properly do in the very particular and highly individualistic circumstances of this case is by no means a matter of practice. It is a matter of law to be resolved by the judge.

Each of the seven respects in which the appellant's solicitor's first affidavit sought to contend that expert evidence would assist the court, proves, on analysis, to involve either a question of law or a question of fact. None of those matters can sensibly be regarded as inviting a view as to "some practice in [the solicitors'] profession, some accepted standard of conduct... laid down... or sanctioned by common usage".

I entirely share the view of the judge below that, on the contrary, the evidence here sought to be adduced falls foul of Oliver J.'s dictum. It would mount to no more than an expression of opinion by the expert, either as to what he himself would have done, which could not assist, or as to what he thinks should have been done, which would have been the very issue for the judge to determine."

11. Millett and Leggatt L.J.J. agreed.

12. In reply to the Defendants' submission, Mr. Coleman said that the 1st Defendant denied owing duties to the Plaintiff while the 2nd Defendant puts in issue the duties said to be owed. He submitted that the court potentially would be assisted by evidence from an expert in the relevant field as to the duties owed by the Defendants.

13. In my judgment, that reply puts in perspective the difficulties faced by the Plaintiff in applying for leave to adduce expert evidence. With respect, Mr. Coleman has really been unable to identify or define the areas or matters in relation to which expert evidence could properly be given. Whether any and, if so, what duty or duties were owed by the Defendants to the Plaintiff is a matter of law to be determined by the judge with the assistance if necessary of counsel. The particulars of breach upon which the Plaintiff seeks to rely are matters of fact and/or law which will be for the judge to determine, again with the assistance of counsel where necessary. As far as I can see, no questions of practice or particular standards of conduct arise on which it would be appropriate for a solicitor to help the court. I cannot see that a solicitor, if allowed to give evidence, could do more than say that "in the circumstances I would have done so and so". That, of course, is not expert evidence.

14. Accordingly, this part of the appeal must be dismissed, with costs to the Defendants in any event.

15. I say "this part of the appeal" because the Plaintiff's Notice of Appeal also asked for the master's order for costs on the summons for directions, which was to the Defendants in any event, should be set aside. Unfortunately, this aspect of the notice was overlooked all round. From the file, it is clear that there was a number of adjourned hearings of the summons. Quite why this was so and what course they took is far from clear.

16. If the Plaintiff wishes, she may apply within 14 days to restore this aspect of the appeal before me.