CHANG PUI YIN AND OTHERS v. BANK OF SINGAPORE LTD

HCCL 12/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 12 OF 2013

(transferred from High Court Action No 76 of 2011)

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D E C I S I O N

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1.  On 8 August 2016, Bharwaney J gave judgment on liability against the Defendant, in this action which was commenced by the Plaintiffs against their bank for negligent advice, misrepresentation and breach of contract. The trial for assessment of the quantum of damages suffered by the Plaintiffs as a result of the Defendant’s breach has now been fixed for 6 to 9 February 2018.

2.  In July 2011, the court first gave leave to the parties to adduce expert evidence on 2 issues to be determined at the trial on liability and quantum, namely, (1) the nature and the risks involved in the investments made on behalf of the Plaintiffs, and (2) the quantum of the loss suffered by the Plaintiffs if liability is established.  Since then, the expert report of the Defendant’s expert, Dr Vinaimont, was filed in September 2012, and the amended report of the Plaintiffs’ expert, Mr Green, was filed in October 2012.  Their joint report was filed in November 2012.

3.  The trial on liability took place in February and July 2014.  A Further Joint Statement of the experts was filed in April 2014, pursuant to the court’s direction to the Defendant’s expert to comment on the risk of the portfolios as a whole.  On 8 August 2016, the Judgment on liability was delivered.  Although the Defendant issued a Notice to Appeal against the liability judgment on 27 September 2016, which appeal is scheduled to be held in June 2017, the parties agreed that the trial on quantum should be fixed without delay and directions were given by this Court on 9 January 2017 for the further conduct of the trial on quantum.

4.  On 11 January 2017, as a result of indications made on behalf of the Defendant prior to the hearing on 9 January 2017, a summons was issued by which the Defendant sought leave to adduce fresh expert evidence from Mr Malik, and in place of Dr Vinaimont, on the issue of the quantum of loss suffered by the Plaintiffs.  In the affirmation filed in support of such application, the Defendant states that this was in view of the comments made by the trial judge in the liability judgment, to the effect that Dr Vinaimont’s evidence was unhelpful, that his experience was wholly academic and his opinions “of little relevance in the real world”, as a result of which the Defendant has lost confidence in Dr Vinaimont. The Defendant has procured Mr Malik to give his assessment on the Plaintiffs’ loss, on the basis that Mr Malik’s practical experience is more relevant to the issues before the court.

5.  The Plaintiffs object to the Defendant’s proposal to change expert, since they say that the Defendant has no good reason to do so (on the authority of Guntrip v Cheney Coaches Ltd [2012] CP Rep 26), and the court should not allow expert shopping, when the only reason for the Defendant to replace Dr Vinaimont is so as to obtain a better opinion or an opinion which is more favorable to the Defendant.

6.  The Defendant has argued that any prejudice to the Plaintiffs as a result of the Defendant’s change in expert is minimal, given that the trial on quantum is only to take place in February 2018, and that it would be unjust to the Defendant if it should be forced to adhere to calling an expect in whom the Defendant has lost confidence.

7.  It should be recognized that any application for leave to adduce expert evidence is a matter involving the court’s case management powers, and for an application which involves a change of expert, particularly at a late stage, it is an application which seeks the indulgence of the court.  No party may adduce expert evidence without the court’s leave first having been obtained under Order 38.  The powers and discretion of the court have to be exercised with the underlying objectives of the CJR in mind.  Cost effectiveness, dealing with cases expeditiously, ensurance of fairness and the promotion of reasonable proportion are all relevant considerations.

8.  It must also be accepted that expert shopping is not encouraged by the court.  It is not conducive to costs effectiveness of the proceedings nor the expeditious disposal of a case.  As observed in Chinachem Charitable Foundation Limited v Chan Chun Chuen [2009] 5 HKC 190, expert shopping can lead to potential abuse and unfairness, as well as compromising the impartiality of expert evidence which is of great importance in the fair resolution of disputes by the court.  To say the least, permitting a party to instruct a new expert inevitably requires the parties to restart the whole process of expert instruction which effectively means wasting all the time and costs already incurred in compiling and preparing for the existing expert reports.  The court should not permit the change of experts without very good reasons being adduced.

9.  I do not accept in this case that Mr Malik will be called upon to address any new issue which Dr Vinaimont had not been instructed to address in his original reports.

10.  The Defendant claims that no prejudice can be sustained by the Plaintiffs when the trial is still months away.  That is not a sufficient ground to justify leave being granted to the Defendant, but I do not agree that the Plaintiffs are not prejudiced.  They have been prejudiced and will be prejudiced if they are now required to disrupt their preparations of their case and are called upon to adduce evidence in response to the new expert evidence, notwithstanding the fact that directions for expert evidence had been given, and expert issues had been framed, as early as 2011, and all evidence have since been prepared and put in place.  The fact that they may be compensated by costs is not, in my view, just or fair when the CJR aims at early preparations for trial, and litigants and their legal advisors have the duty to assist the court in furthering the underlying objectives.

11.  The Defendant has emphasized that the duty of an expert is to assist the court.  That is fully accepted.  If, at the trial on quantum, this court should find the evidence of Dr Vinaimont to be as unhelpful on the issue of quantum as Bharwaney J found him to be on the issue of the assessment of risks, I see no reason why this court should doubt the ability of the Plaintiffs’ expert to give the necessary objective and impartial assistance required on the issue of the quantum of the Plaintiffs’ loss.  Experts are to be impartial and are independent of the party engaging them to give expert evidence.  The Defendant’s counsel will be in a position to put questions to Mr Green on the question of the quantum of loss, if the Defendant considers that Doctor Vinaimont has not adequately addressed the issue.  It is indeed the trend of the courts now to have a single joint expert to be appointed by both parties to the action, and to rely on such expert evidence with the confidence that the single joint expert would be able to give all the necessary assistance required in order to address the concerns of both parties.

12.  In all the circumstances of this case, bearing in mind in particular the advanced ages of the Plaintiffs, the time-lapse between the commencement of proceedings in 2011 and the assessment of the quantum of damages, and balancing the justice to both sides of the case, I consider that it is in the interests of both parties and consistent with the just resolution of the dispute that further time and costs should be saved.  Rather than having a new expert brought in at this stage, which would necessitate a new report to be prepared by Mr Green in response to Mr Malik’s report, a further meeting of the experts and a joint statement to be prepared, the trial on quantum can fairly proceed with the existing reports of Dr Vinaimont and Mr Green, and for them to be questioned at trial on their evidence.  If the Defendant has indeed lost confidence in Dr Vinaimont, it is open to the parties to call Mr Green as the single joint expert.

13.  For these reasons, I dismiss the Defendant’s application, with costs to the Plaintiffs.