CHINESE ARTS & CRAFTS (H.K.) LTD. v. RYODEN LIFT AND ESCALATOR CO. LTD. AND OTHERS

HCA 2053/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2053 OF 2000

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D E C I S I O N

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1. The defendants now seek to vary the order for directions given on 4 January 2002. On that day I fixed the trial on the question of liability in respect of all the Garley related actions to commence on 16 September 2002. This is long and complex litigation involving multiple parties. I gave certain directions including the calling of expert evidence. This was limited to one fire expert, one welding expert and one forensic scientist by each party. At that hearing counsel for the defendants applied for but was refused leave to call a firefighting expert. At that time I indicated that one fire expert should deal with all aspects of the fire including firefighting.

2. The application to call a firefighting expert is now renewed and the defendants seek a variation of the order for directions. They propose to call Mr. Holmes who has prepared a draft report. The issue on which this is said to be relevant is that raised in para. 23(A)(i) of the defence and counterclaim, namely that the loss and damage was caused and/or contributed by the breach of duty or negligence of the plaintiff by enclosing a staircase, Staircase A, originally at the northeast corner of Garley Building and converting it into a storeroom thereby rendering the same inaccessible. As the staircase was the private property of the plaintiff it is difficult at this stage to see why there was a breach of duty as alleged. Nevertheless, this remains an issue. The defendants wish to call a firefighting expert on this issue. I am told that the fire expert already engaged by the defendants is unable to deal with firefighting operations. This, however, must have been apparent to the defendants long ago. Yet they did not see fit to engage a fire expert who could deal with all aspects of the fire including firefighting. Be that as it may, it seems to me that the issue raised is still a live issue on the pleadings. I am not persuaded at this stage that expert evidence on that issue is wholly irrelevant.

3. As I indicated on 4 January 2002 the fire expert should deal with all aspects of the fire including firefighting. However, I consider the fact that the defendants did not engage one fire expert to do so at that time but seeks now to call a firefighting expert as well to deal solely with the issue of the enclosing of staircase A rendering the same inaccessible is a factor to be taken into account. I consider that the application should only be allowed provided there is no serious prejudice to the plaintiff. The other parties to the Garley related actions have already been informed by the defendants that the defendants will abandon their allegation against them to the effect that they breached their duty of care by allowing the plaintiff to block up staircase A. If the defendants' fire expert had been able to, and if he had dealt with, the firefighting aspect in relation to the enclosing of staircase A rendering the same inaccessible, then in my view there could be no prejudice to the plaintiff. The plaintiff would have had to deal with it although it would have done so much earlier. The fact that the defendants belatedly seek to put this evidence in albeit by another expert witness means that the plaintiff will have to deal with that evidence. I consider that there is sufficient time for them to adequately prepare the case without jeopardizing the trial dates. I do, however, consider that the report of Mr. Holmes should be confined solely to the issue of the enclosing of staircase A rendering the same inaccessible and he should not deal with any of the other matters contained in his draft report. Those other matters should properly be dealt with by their fire expert. I am satisfied that I ought to vary the order for directions and will hear the parties on the directions to be given.