CHOW LILY v. CHOW WAI WAI VIOLET AND ANOTHER

HCAP 22/2019

[2024] HKCFI 423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

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BETWEEN

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DECISION

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INTRODUCTION

1.  Two summonses filed by the plaintiff and the defendants respectively (“the Summonses”) have been fixed to be heard at the Initial Case Management Conference today, for the purpose of seeking further expert directions.

2.  This is the Decision for the Summonses.

BACKGROUND

3.  The background of the present case has been set out by Deputy High Court Judge Leung in [1] – [21] of his Decision dated 30 July 2020 ([2020] HKCFI 1792), and I do not propose to repeat the same here.

4.  On 16 February 2022, a Master gave, among other things, the following expert directions (“the February 2022 Order”):

(1) Leave be granted to the defendants to appoint Mr Leung Sze Chung (“Mr Leung”) as their handwriting expert;

(2) Leave be granted to the defendants to adduce an expert report to be prepared by Mr Leung within 12 weeks on the authenticity of a number of signatures and handwritings;

(3) Leave be granted to the plaintiff to file and serve a Rebuttal Expert Report within 90 days thereafter;

(4) Leave be granted to the defendants to file a Supplemental Expert Report in reply to the plaintiff’s Rebuttal Expert Report within 60 days thereafter.

5.  On 1 April 2022, Master Hui enquired with the parties as to, among other things, whether it would be more helpful to the trial judge to have a joint report from the experts.

6.  By a joint letter dated 14 April 2022, parties expressed their agreement that a joint report identifying issues on which the parties have reached a common consensus and those on which they have not reached such consensus would be more useful to the trial judge. The relevant part of the said joint letter reads:

“[…] The parties agree that it would be more useful to the trial judge to have a joint report from the parties’ respective experts identifying the issues on which the parties have reached a common consensus on and the issues on which the experts have failed to reach a common consensus on.

In view of the above, please find enclosed a copy of the parties’ agreed proposed directions for the Court’s consideration”

7.  The proposed directions read:

“1. It is no longer necessary for the 1^st and 2^nd Defendants to file and serve an expert report in reply to the Plaintiff’s Rebuttal Expert Report;

2. The Parties shall within 42 days after the service of the Plaintiff’s Rebuttal Expert Report make arrangements for their experts to meet either physically or virtually by way of video conference on a without prejudice basis and with a view to agreeing or narrowing down the expert issue(s) to be decided by the Court. The joint meeting of the experts shall be held within 42 days thereafter;

3. Within 42 days after the joint meeting, the experts are to prepare a signed joint report which succinctly identifies:

(a) the issue(s) on which the experts have reached a common opinion and in respect of each issue what that common opinion is; and

(b) the issue(s) on which the experts have failed to reach a common opinion and their competing views on each such issue. The experts shall state the reasons for their disagreement with the opposing views.” (emphasis added)

8.  On 28 April 2022, Master Hui made, among other things, order in terms of the above proposed directions (“Master Hui’s Order”).

9.  Pursuant to Master Hui’s Order, the defendants filed and served their handwriting expert report on 31 August 2022 (“Ds’ Expert Report”), whereas the plaintiff filed a Rebuttal Expert Report (prepared by her expert Ms Ellen Radley (“Ms Radley”)) on 28 July 2023 (“P’s Rebuttal Expert Report”).

10.  A without prejudice meeting had been held between the experts on 5 September 2023. There were also further communications between them thereafter.

11.  However, the experts could only reach consensus on the “Areas of Agreement” but were unable to reach any consensus on the “Areas of Disagreement” in the Joint Report.

12.  Ms Radley initially prepared a draft Joint Report with a short “Areas of Disagreement”, in which she stated that:

“28. There are no further areas of agreement between the experts. Mr Leung and Ms Radley disagree with each other’s findings and opinions.

29. Mr Leung has fully detailed his reasoning for the opinions he proffers within his report. Ms Radley has fully detailed her reasoning for the opinions she proffers within her report. Consequently, these reasons are not repeated in this Joint Report.”

13.  On 11 September 2023, Mr Leung proposed to Ms Radley that he would prepare his reasons for disagreeing to P’s Rebuttal Expert Report, and that it was up to Ms Radley to decide if she would do the same.

14.  On 10 October 2023, Mr Leung informed Ms Radley that he had completed his contributions to the “Areas of Disagreement” section of the draft Joint Report and invited her to opine how their respective contributions could be exchanged and inserted into the draft Joint Report. However, Ms Radley did not reply to Mr Leung on this.

15.  On 12 October 2023, Ms Radley called Ms Lily Fenn, the plaintiff’s solicitor, and explained her difficulty in reaching a consensus with Mr Leung. The difficulty stemmed from Ms Radley’s understanding that there should be no reply to her Rebuttal Expert Report. This tallied with Ms Fenn’s understanding. In Ms Fenn’s own words:

“10(5) […] Pursuant to [Master Hui’s] Order, they should engage in discussions and consolidate their competing views, agreeing on the issues/areas where they have agreed and issues/areas where they failed to reach a consensus, in order to assist the trial judge in narrowing down the expert issues.

(6) To allow Mr Leung to open new fronts of debate in the disguise of ‘Areas of Disagreement’ would have defeated the whole purpose of [Master Hui’s] Order, and contradicted parties’ common (as well as Master Hui’s) understanding in the Joint Letter as evidenced by the said Order.

(7) After Ms Radley informed me of the above, I confirmed her understanding that Mr Leung appeared to be going beyond what was permissible to be included in the Joint Report as directed in [Master Hui’s] Order.

(8) I provided her with a copy of the Joint Letter and [Master Hui’s] Order, and drew her attention to their contents, and asked her to provide the same to Mr Leung for his consideration.

(9) While Ms Radley did not immediately reply to Mr Leung, this, by itself, does not allow Mr Leung to disregard [Master Hui’s] Order.

(10) On 12 October 2023, Ms Radley called me twice to further explain her difficulty in reaching a consensus with Mr Leung regarding the drafting of the section on ‘Areas of Disagreement’.

(11) It was agreed between Ms Radley and myself that in the interest of time, she would send Mr Leung a signed version of the Joint Report that excluded the section on ‘Areas of Disagreement’ as the final version of the signed joint expert report on handwriting (‘Radley’s Version without Areas of Disagreement’).

(12) As a result, Ms Radley sent her Version without Areas of Disagreement dated 12 October 2023 to Mr Leung.

(13) I was informed by Mr Radley that she emailed her Version without Areas of Disagreement to Mr Leung at 12:47 on 12 October 2023 (UK time) for Mr Leung’s signature.

(14) I was also informed by Ms Radley that she did not intentionally leave the entire ‘Areas of Disagreement’ section blank for Mr Leung’s insertion of his reasons for ‘Areas of Disagreement’ as alleged by Mr Leung.”

16.  On 13 October 2023 (Friday) at 5:31pm, the plaintiff’s solicitors sent a letter to the defendants’ solicitors, enclosing a draft Joint Report prepared by Ms Radley for Mr Leung’s consideration (It should be noted that Ms Radley did not sign on this version of the draft). Mr Leung was asked to provide his comments on this draft Joint Report before 5pm on the following Monday (16 October 2023). In the “Areas of Disagreement” section of the draft Joint Report, there were only 2 paragraphs – see [12] above.

17.  On 16 October 2023, the defendants’ solicitors wrote to the plaintiff’s solicitors and stated that:

(1) They were informed by Mr Leung that he had received from Ms Radley another version of the draft Joint Report on 12 October 2023, which:

(a) bore Ms Radley’s signature on the Declaration page; and

(b) had intentionally left the “Areas of Disagreement” section blank for Mr Leung’s insertion of his reasons for “Areas of Disagreement”;

(2) On 13 October 2023, Mr Leung acknowledged receipt of the signed draft Joint Report by Ms Radley, and further confirmed that he would incorporate his reasons for the “Areas of Disagreement” between the “Areas of Agreement” section and the “Declaration” section in the Joint Report;

(3) On 16 October 2023, Mr Leung further sent a completed scanned Joint Report which was duly signed by him[1].

18.  Pausing here, it should be noted that the signed draft Joint Report (which was subsequently attached to the letter dated 27 October 2023 issued by the defendants’ solicitors to the plaintiff’s solicitors) indeed shows that Ms Radley had signed thereon, and that there was no “Areas of Disagreement” section contained.

19.  On the same day (16 October 2023), the plaintiff’s solicitors sent a letter to the defendants’ solicitors, and complained that Mr Leung has “essentially attached a signature page from a different document to his purported report dated 14 October 2023 without Ms Radley’s knowledge and consent”. It was further asserted that the said report dated 14 October 2023 is a forged document.

20.  On 27 October 2023, the defendants’ solicitors sent another letter to the plaintiff’s solicitors. Apart from denying that the Joint Report (dated 14 October 2023) sent on 16 October 2023 was a forged document as alleged, the defendants’ solicitors proposed that Ms Radley might provide her reasons for disagreement by 30 October 2023, so that the experts could come to a further agreed version of final draft Joint Report.

21.  On 30 October 2023, the plaintiff’s solicitors replied to the defendants’ solicitors and made, among others, the following points:

(1) As Ms Radley was at the time away from office, only a preliminary reply could be given;

(2) While Ms Radley did send her version of the Joint Report dated 12 October 2023 without the section on “Areas of Disagreement” with her signature appended thereto on the Declaration page to Mr Leung by email, she did not intentionally leave the entire “Areas of Disagreement” section blank for Mr Leung’s insertion of his reasons for “Areas of Disagreement”, as alleged by the defendants’ solicitors;

(3) Ms Radley very strongly objected to Mr Leung’s version of the Joint Report, to which she had never agreed to be filed in Court;

(4) The section on “Areas of Disagreement” was not agreed by Ms Radley;

(5) The format of the 14 October 2023 Report was never agreed by Ms Radley and Ms Radley did not agree that Mr Leung could incorporate or insert his reasons for the “Areas of Disagreement” which was not discussed or agreed;

(6) Mr Leung’s attempt to insert his unilateral version of the section on “Areas of Disagreement” contradicts the agreement reached by the parties, as explicitly stated in Paragraph 1 of Master Hui’s Order;

(7) The defendants’ proposal to introduce the “Areas of Disagreement” section is in violation of the agreed terms outlined in the parties’ joint letter to Master Hui and Master Hui’s Order.

22.  As a result, the joint expert report could not be finalised.

23.  This led to the filing of the Summonses.

THE SUMMONSES

24.  On 1 December 2023, the defendants filed a summons (“Ds’ Summons”) and asked for the following order:

“Leave be granted to the 1^st and 2^nd Defendants to file and serve a statement prepared by Mr Leung Sze Chung stating the reasons for disagreement in compliance with the Order made by Master Hui dated 28 April 2022.”

25.  On 11 January 2024, the plaintiff filed a summons (“P’s Summons”) and asked for the following orders:

“Paragraphs 3(a), (b), and 4 of the Order of Master Hui dated the 28^th day of April 2022 be superseded and replaced by the following order:-

(1) Within 28 days from the date of this Order, the handwriting expert of the 1^st and 2^nd Defendants, Mr Leung Sze Chung, and the handwriting expert of the Plaintiff, Ms Ellen Radley, are to prepare a signed joint report which succinctly identifies: -

(a) the issue(s) on which they have reached a common opinion and in respect of each issue what that common opinion is; and

(b) the issue(s) on which they have failed to reach a common opinion and their competing views on each such issue. They shall state the reasons for their disagreement with the opposing views.

(2) In preparing the signed joint report, the respective experts shall be confined only to reasons, arguments, references, materials, and/or citations already included in the Handwriting Expert Report prepared by Mr Leung Sze Chung filed on 31 August 2022, and the Rebuttal Handwriting Expert Report prepared by Ms Ellen Radley filed on 28 July 2023, and shall not go beyond the ambit of those said Reports.

(3) The Plaintiff shall file the signed joint report within 14 days thereafter.

DISCUSSION

26.  I regret to say that the whole saga was caused by the misunderstanding on the part of the plaintiff’s expert and the plaintiff’s solicitor of the expert directions and the requirement of joint statement (referred to as Joint Report herein) to be prepared by the experts:

(1) The plaintiff’s solicitor alleged in her Affirmation that the Joint Report was intended to be akin to a Scott Schedule, which would assist in identifying and narrowing the issues, and locating experts’ competing views which they should have already set out in their previous expert reports in a table format. With greatest respect, the function of the Joint Expert Report is more than that. It does not only serve to summarise the two expert reports in a table format. In fact, while a Scott Schedule may be useful in some cases in comparing the views of the experts, it does not necessarily mean that a Scott Schedule should always be used. It depends on the circumstances;

(2) The plaintiff’s solicitor said she believed that Master Hui also had the intention that the Joint Report should be akin to a Scott Schedule which would assist in identifying and narrowing the issues, and in locating the competing views in the previous expert reports. Such intention, in my view, was not borne out from Master Hui’s Order at all, and I do not think Master Hui had the alleged intention. In my view, what Master Hui did by his order was to improve the February 2022 Order previously given by another Master, under which the defendants’ expert was asked to prepare a Supplemental Expert Report in reply to the plaintiff’s Rebuttal Expert Report. That set of expert directions was in fact quite otiose, in that it did not provide for the without prejudice meeting of the experts and the preparation of a joint statement;

(3) Ms Radley’s draft “Areas of Disagreement” (see [12] above), with greatest respect, is totally unhelpful, apart from confirming that the experts could not agree on any other matters (save those contained in the “Areas of Agreement”). That is not the only purpose of the Joint Report. It is not enough for the experts to ask the Court to refer to the individual expert reports;

(4) The sequence of the filing of the individual expert reports also highlights the (un)fairness of the proposed approach of the plaintiff, namely, that Mr Leung should, in the “Areas of Disagreement” section of the Joint Report, be limited to the “reasons, arguments, references, materials and/or citations already included” in his own expert report. This is because while Ms Radley had the chance to deal with Mr Leung’s expert opinion in P’s Rebuttal Expert Report, Mr Leung apparently could not have done so in Ds’ Expert Report which was filed before P’s Rebuttal Expert Report. As pointed out by Ms Wu for the defendants, by the time when Mr Leung prepared his own report, it was not possible for him to speculate the points to be made by Ms Radley.

27.  The plaintiff complained that if one reads through Mr Leung’s draft “Areas of Disagreement”, one can see that it is more skin to him producing a new report rebutting Ms Radley’s Rebuttal Report, instead of stating succinctly his competing views alongside Ms Radley’s, and as such, Mr Leung’s comments deviated from the agreed purpose of the Joint Report. In support of this argument, Mr Lam for the plaintiff cited the remarks made by Lam J (as Lam PJ then was) in Chinachem Charitable Foundation Ltd v Chan Chun Chuen (HCAP 8/2007, unreported, 2 February 2010) at [492] as follows:

“Worse still, there are occasions where expert uses the joint meeting and reply reports as platforms for putting forward new arguments and open new fronts for debate. Confronted with such a report, the other side would retaliate by putting in further materials in the name of rebuttal. More issues are raised. A vicious cycle is perpetuated. Instead of narrowing down the differences, expert issues are proliferated. The presentation of too many (including some unnecessary) expert issues not only adds to the costs and time of a trial, it also creates a risk of diverting the court’s attention away from the central issues in a case. It is not conducive to the effective resolution of the dispute. In many instances, the proliferation of issues is the hallmark of an expert struggling to defend an indefensible position by generating new issues as smokescreen.”

28.  With respect, I do not think Lam PJ’s remarks are applicable herein because I do not see that, generally speaking, Mr Leung was raising more issues. He was only trying to explain why he did not agree with Ms Radley. Although he had relied on reasonings which did not appear in Ds’ Expert Report, there is nothing wrong with it. Having said that, I should mention that Mr Lam had drawn this Court’s attention to a comment made by Mr Leung in his draft Joint Report which suggested that “Ms Radley’s assignment under instruction is biased”. I agree that this sort of comment is inappropriate. All the experts should do is to give their opinion on the expert issues according to their expertise. They should therefore only comment on the expert opinion of the other expert according to their expert knowledge in the handwriting area.

29.  I should also say that I disagree with the plaintiff that Master Hui’s decision to vary the expert directions as contained in the February 2022 Order should be construed as the Court’s disapproval of Mr Leung rebutting Ms Radley’s opinion. In my view, Mr Leung must be allowed to do so. The effect of Master Hui’s Order is only that such opinion of Mr Leung should not be contained in another Rebuttal Report prepared by himself, but in a joint report to be prepared after a joint meeting with Ms Radley.

30.  Ms Wu for the defendants has referred this Court to the case of Leung Wai Kee v Tam Yuet Sheung (DCCJ 5716/2007, unreported, 11 May 2009), in which HH Judge Mimmie Chan (as her Ladyship then was) had made the following observations:

“6. […] [The experts] 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 […]. 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. […]

8. […] 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.”

31.  I respectfully agree with the learned Judge.

32.  For joint statement (or Joint Expert Report) to be useful to the Court, it must contain the reasons as to why the experts do not agree with each other.

33.  For the above reasons, I do not accept that it is appropriate to make the orders as proposed under paragraph 2 of P’s Summons, which sought to limit the materials which Mr Leung may rely on in the Joint Report.

34.  Neither do I accept that the order as proposed in D’s Summons is appropriate. This would amount to switching back to the February 2022 Order. I do not think it is right for the Court to “give up” so easily. Despite the previous disputes between the experts, I am still hopeful that Ms Radley and Mr Leung can put behind what had happened in the past and assist the Court independently and professionally. As I pointed out to the parties at the hearing, the expert directions given under the February 2022 Order are not as helpful to the Court as those contained in Master Hui’s Order (provided the experts can always bear in mind their overriding duty to the Court).

35.  So what should be the way forward?

36.  In my view, now that:

(1) this Court has made it clear what the experts are expected to do;

(2) both of them have a much better idea as to the rebuttal opinion held by the other side,

they should meet in further without prejudice meeting(s) with a view to agreeing or narrowing down the expert issues to be decided by the Court.

37.  After the meeting(s), they shall prepare a Joint Report as directed under Master Hui’s Order.

38.  In this regard, what Lam J said in Chinachem Charitable Foundation Ltd (supra) is instructive and the experts should bear the following in mind:

“484. An expert should not advance an argument or use a piece of information or data to support his opinion unless he is professionally convinced of the validity of the argument or the appropriateness of the use of that supporting material. The inclusion of something the validity of which the expert himself considered doubtful in his report inevitably undermines his credibility in the court’s assessment [150]. An independent and impartial professional expert should not resort to a tactic of putting forward some plausible arguments in favour of his client which he personally has difficulty in vouchsafing and leaving it to his counterpart to convince the court that the arguments should be rejected. In my view, such an expert has not discharged his overriding duty to the court, which is to use his own professional expertise to assist the court without regard to the exigencies of litigation.

485. Here lies the crucial distinction between an advocate and an expert witness. Even though counsel and solicitor also owes an overriding duty to the court in certain respects, the court understands that as advocates they are not impartial as they also have a duty to present the case of their respective clients. But the position of an expert witness is different. His evidence is admitted to assist the court on a subject which requires expertise he has acquired (but not the court). Therefore, what the court wishes to hear is the expert’s own independent professional opinion on the topic instead of a biased view constructed and put forward for the purpose of advancing a party’s position. Given the court’s lack of expertise on the subject which an expert gives his evidence, the strict adherence by expert to the duty of independence is important for the proper administration of justice. Whilst there might still be bona fide reasonable disagreements between two experts, the disagreements should only be based on independent professional judgments instead of being client interest driven.

486. Sometimes, the line between professional divergence in opinion and biased partisan debate may not be easy to draw. But the court is vigilant in ensuring that the integrity of the legal process would not be tainted by evidence of an expert who put a party’s interest above his professional duty to the court. If it can be shown that an expert persistently adopted a stance which he himself had obvious difficulty in sustaining, most of the time this is the hallmark of the expert’s failure to adhere to the duty of independence.

487. Further, a judge is assisted by counsel (who in turn are assisted by their own expert) at the trial. Counsel’s cross-examination of an expert witness will assist the court in forming a view as to the reliability of his evidence. Very often, the most telling indicia of the professionalism and impartiality of an expert witness is how he deals with his weakest point under cross-examination. In Best Origin,I have set out what this court expects from an expert witness when he is faced with his own mistake after he produced his report. Instead of keeping silent and hoping that the point would not be discovered, he should correct it on his own volition as soon as practicable.

488. Another acid test on the reliability of an expert witness is the way in which he deals with the arguments of his counterpart. Nowadays, the court expects expert witnesses to act responsibly and professionally in meeting the points raised by the experts on the other side. The whole point of requiring expert reports to be served or exchanged and directing meetings of experts and the preparation of joint statements/reports is to facilitate independent and frank communications between the experts in order to narrow down their differences through a dialogue on a professional level. The objective is to focus on the real issues that need to be adjudicated by the court. Unnecessary and unhelpful arguments should be trimmed down through these pre-trial procedures.

489. No matter how experienced and well qualified an expert may be, it is always possible that he misses some salient points in the preparation of his first report despite the exercise of due care and diligence. Further, with the accelerated growth and development of human knowledge, new techniques or learning may emerge. Also, especially in areas where an opinion depends a lot on subjectivity, whilst there is always scope for reasonable disagreement, every expert would appreciate that amongst the arguments he relied upon, some is of greater force than others. An impartial and responsible expert, after studying the report of his counterpart, should re-assess his own views and if there are valid points against his opinion, he should acknowledge them instead of finding other new material to salvage an exposed weakness.

490. The joint meeting is an opportunity for the experts to narrow their differences. It takes two to tango. It requires both experts to focus on the objective of the meeting and act responsibly and frankly with each other. At such meeting, an expert should bear in mind his overriding duty to the court to act independently without any fear of compromising his client’s position. Thus if his professional judgment dictates that a concession should be made in the light of arguments advanced by the other side, he should not feel inhibited from doing so due to conflicting opinion previously expressed by him in favour of his client. On matters within his expertise, an expert needs not seek instructions from his client before reaching an agreement with the other side’s expert. A self-respecting expert should not accept instructions that placed limitations on his professional judgment in the performance of his duty as an expert witness. And it is not proper for lawyers to give such instructions on behalf of his clients. In line with his duty to act independently, an expert should not be dictated by his client in respect of the substance of his expert evidence and the agreement to be reached in joint meeting.

491. Thus, instead of spending time on indiscriminant defence of one’s position, expert witnesses should give due weight to the arguments set out in their counterpart’s opinion and try to reach agreement on points which are not worthy of argument. Unfortunately, there are occasions (here I am speaking generally rather than with specific reference to what happened in this trial) where some experts jumped straight to a defensive mode instead of adopting a “step-back and look” approach in considering the other side’s arguments. In so doing, I am afraid that such expert is abandoning his impartiality and neglecting his overriding duty to the court.

492. Worse still, there are occasions where expert uses the joint meeting and reply reports as platforms for putting forward new arguments and open new fronts for debate. Confronted with such a report, the other side would retaliate by putting in further materials in the name of rebuttal. More issues are raised. A vicious cycle is perpetuated. Instead of narrowing down the differences, expert issues are proliferated. The presentation of too many (including some unnecessary) expert issues not only adds to the costs and time of a trial, it also creates a risk of diverting the court’s attention away from the central issues in a case. It is not conducive to the effective resolution of the dispute. In many instances, the proliferation of issues is the hallmark of an expert struggling to defend an indefensible position by generating new issues as smokescreen.

493. Obviously, such an approach is inconsistent with the underlying objectives under Order 1A. Even though there is no reference to the expert witness in Order 1A Rule 3, after the commencement of the rules introduced by the Civil Justice Reform, an expert giving evidence in court has to observe the Code of Conduct in Appendix D, see Order 38 Rules 37B and 37C. Paragraph 13 of the Code of Conduct highlights the importance of an expert witness exercising his independent professional judgment in relation to expert meeting and joint report.”

39.  It cannot be emphasised enough that both Ms Radley and Mr Leung should always bear in mind their overriding duty to the Court. In the joint meeting, they are expected to act independently and be truthful to their expertise. They should discuss their differences professionally according to their expert knowledge, irrespective of whether their opinion would be conducive to the purpose of their respective clients. As Lam PJ pointed out, self-respecting experts should act independently without any fear of compromising his/her client’s position.

40.  As far as the Joint Report is concerned, the experts should use their expertise and consider what way of presentation is the best way for the purpose of explaining to the Court what their differences are and the reasons in support. The “Areas of Disagreement” should be divided into different sub-sections, so that the experts’ different opinions on a topic can be put together at one place. If possible, for the sake of the readers’ convenience, the Joint Report should be self-contained, rather than referring to P’s Expert Report and Ds’ Expert Report all the time. Indeed, it is not uncommon that after the joint meeting, the experts having considered the opinion of the other expert would change their original opinion. It is therefore more helpful to the Court if the experts can make themselves clear as to what their concluded opinions would be after such a professional exchange with the other expert.

41.  To conclude, I am of the view that the experts should be given more time to comply with Master Hui’s Order, and that in doing so they shall bear in mind what have been set out above. They are also warned that, in the event any expert is found to be uncooperative, this Court will not hesitate to issue unless order with the consequence that the party in default be debarred from adducing expert evidence.

ORDER

42.  By reasons of the aforesaid, I order that:

(1) The experts shall meet further on a without prejudice basis and with a view to agreeing or narrowing down the expert issue(s) to be decided by the Court. The joint meeting shall be held by 14 March 2024 (42 days from today);

(2) The time for the parties to comply with paragraph 3 of Master Hui’s Order be extended to 25 April 2024 (42 days after 14 March 2024);

(3) The plaintiff shall file the signed joint report by 9 May 2024 (14 days after 25 April 2024).

COSTS

43.  As far as the costs of the Summonses are concerned, I would take into account the following matters:

(1) The whole saga was caused by the misunderstanding on the part of the plaintiff’s solicitor and the plaintiff’s expert;

(2) On the other hand:

(a) I allowed part of the application made by the plaintiff;

(b) I disallowed the main purpose of P’s Summons, namely, to limit what Mr Leung may rely on in the Joint Report;

(c) I did not accept the terms as proposed under Ds’ Summons;

(3) Mr Leung had included some inappropriate comments in the draft Joint Report (see [28] above).

44.  Considering the above matters in the round, I am of the view that it would be fair if the costs of the Summonses are ordered to be the defendants’ costs in the cause.