MG CHARTER LTD v. BEIJING CAISSA INTERNATIONAL TRAVEL SERVICE CO LTD

HCA 1635/2012 and
HCCL 7/2014
(Consolidated)

[2019] HKCFI 2800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1635 OF 2012 AND

COMMERCIAL ACTION NO 7 OF 2014

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BETWEEN

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(Consolidated by Order of Hon Mimmie Chan J dated 2 March 2015)

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REASONS FOR DECISION

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1.  By summons dated 11 September 2019, the Defendant applied under Order 38, rule 2A(8) and the inherent jurisdiction for an order that:

“ The following paragraphs of the Plaintiff’s witness statements be struck out on the grounds that the same are opinion and/or otherwise inadmissible:

(a) Paragraphs 9, 24, 28, 30 – 35 of Mohammed Ali’s statement dated 19.12.2018; and

(b) Paragraphs 16, 17, 24(d) and (f) of George Weinmann’s statement dated 19.12.2018.”

2.  The Defendant’s ground for striking out the relevant paragraphs is that the same contain opinion or expert evidence and are therefore inadmissible.

Applicable legal principles

3.  A witness statement should cover only those issues on which the party serving it wishes that witness to give evidence-in-chief. It is not the function of a witness statement to provide a commentary on the documents in the trial bundle, to set out quotations from such documents, to engage in matters of argument or to deal with other matters merely because they arise in the course of the trial.

4.  However, a factual witness who possesses professional expertise may proffer opinion evidence provided that such opinion evidence (1) reasonably relates to facts within his or her personal knowledge; and (2) is based on his own experience and expertise.

5.  Opinion evidence proffered by a factual witness with professional expertise should be distinguished from opinion evidence from an objectively independent expert. The weight to be given to it is a matter to be assessed by the trial judge.

6.  The rules as to witness statements and their contents are not rigid statutes and it is conceivable that in particular circumstances they may properly be relaxed in order to achieve the overriding objective of the CJR of dealing with cases justly.  (See JD Wetherspoon plc v Harris & others [2013] 1 WLR 3296 at §41 per Sir Terence Etherton C.)

7.  The leading case in this area of the law is Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No 6) [2008] EWHC 2220 (TCC) (29 September 2008) where Jackson J (as he then was) at §§665 – 672 said:

“ 665. In relation to admissibility, the first point to note is that Mr Taylor is called a factual witness. He has no experience of giving expert evidence and no knowledge of the requirements for giving expert evidence. He is not independent of [Cleveland Bridge], having been employed by a company in the Cleveland Group for the last eleven years. … Permission has not been obtained or sought under CPR rule 35.4 to call expert evidence in relation to the ‘roof’ issues which Mr Taylor addresses. …

666. The second point to note is that Mr Taylor, like several other witnesses in this case, is a highly qualified and experienced engineer, who was involved for many months in the Wembley project. … I shall therefore treat Mr Taylor as a factual witness who (a) is possessed of considerable engineering expertise and (b) has personal knowledge of the roof design and erection engineering decisions which were made in the period February 2004 to October 2005.

667. The question then arises as to whether Mr Taylor is confined to giving evidence of fact, without including his expert opinion on matters. Alternatively, can he include statements of professional opinion bearing upon facts within his personal knowledge?

668. This question arises in many fields of litigation, for example professional negligence actions where the defendant is a witness of fact but also wishes to justify his actions by drawing upon his professional experience. This question arises with particular frequency in litigation in the Technology and Construction Court. Most factual witnesses called are possessed of technical knowledge and expertise. In relation to major engineering projects (such as Wembley Stadium or the M6 Toll Road) those factual witnesses are likely to have very considerable expertise. Otherwise they would not have been engaged upon such projects in positions of responsibility.

669. Despite the diligent researches of counsel, there is relatively little authority on the extent to which witnesses, who are possessed of special expertise, can gloss their factual evidence with expert comments.

670. In Lusty v Finsbury Securities Ltd (1991) 58 BLR 66 the Court of Appeal held that an architect suing for fees could give opinion evidence as to the value of his work. In DN v LB Greenwich [2004] EWCA Civ 1659 the Court of Appeal dismissed an appeal against the trial judge’s finding that an educational psychologist had been negligent. One of the issues in the appeal concerned the admissibility of opinion evidence given by a psychologist. Brooke LJ said this:

‘25. It very often happens in professional negligence cases that a defendant will give evidence to a judge which constitutes the reason why he considers that his conduct did not fall below the standard of care reasonably to be expected of him. He may do this by reference to the professional literature that was reasonably available to him as a busy practitioner or be reference to reasonable limits of his professional experience; or he may seek to rebut, as one professional man against another, the criticisms made of him by the claimant’s expert(s). Such evidence is common, and it is certainly admissible. Mr Philips, who appeared for the claimant at the trial, did not believe he had told the judge that Mr Moreland’s evidence on matters of this kind was inadmissible, and neither of the very experienced leading counsel who appeared in this court was willing to support the judge’s view of the matter.

‘26. Of course a defendant’s evidence on matters of this kind may lack the objectivity to be accorded to the evidence of an independent expert, but this consideration goes to the cogency of the evidence, not to its admissibility. That such evidence was in principle admissible should have been reasonably apparent from the judgments in this court in ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284 at [24], [31] – [32] and [41], [2004] Lloyd’s Rep Med 90.’

671. As a matter of practice in the TCC, technical and expert opinions are frequently expressed by factual witnesses in the course of their narrative evidence without objection being taken. Such opinion evidence does not have the same standing as the evidence of independent experts who are called pursuant to CPR rule 35. However, such evidence is usually valuable and it often leads to considerable saving of costs.

672. Having regard to the guidance of the Court of Appeal and the established practice in TCC cases, I conclude that in construction litigation an engineer who is giving factual evidence may also proffer (a) statements of opinion which are reasonably related to the facts within his knowledge and (b) relevant comments based upon his own experience.  For example, an engineer after describing the foundation system which he designed may (and in practice frequently does) go on to explain why he believes that this was appropriate to the known ground conditions. Or an engineer brought in by a claimant to design remedial works (which are subsequently challenged as excessive) may refer to his experience of rectifying comparable building failures in the past. For example, such evidence may be given in cases about concrete failure through ASR (a worldwide problem.).”(emphasis added)

8.  The above principle is widely known as the Multiplex Principle. Mr Amos for the Defendant submitted that the Multiplex Principle is only limited to professional negligence cases and is only applicable to witnesses who are qualified professionals. By qualified professionals, he meant individuals who have gone through years of academic training and obtained recognised professional qualification. Mr Chain for the Plaintiff submitted that the application of the Multiplex Principle is not so restricted. I am of the view that Mr Chain must be right. First, in the present case, the Defendant is seeking to adduce expert evidence in the area of flight scheduling which according to the Defendant’s own case does not fall within one of the recognised professions which required years of academic training. Secondly, there can be cases where witnesses’ expertise and experience were acquired or accumulated through years of work in a specialised field and they could well be the recognised experts in their respective fields.

9.  In Rogers & another v Hoyle (Secretary of State for Transport & another intervening) [2015] QB 265 at 306, 310, Christopher Clarke LJ at §§43 and 64 said:

“ 43. I do not regard this objection as well founded. The identity of the principal investigators is known and their expertise must be a matter of public record or at least readily discoverable. The bar to be surmounted in order to count as an expert is not particularly high, the degree of expertise going largely to the weight to be given to the evidence rather than its admissibility. …”
(emphasis added)

“ 64. The courts have in practice received expert evidence outside the confines of CPR Pt 35. Thus in DN v Greenwich London Borough Council [2005] LGR 597 this court held that the trial judge was wrong to decline to allow the defendants to a professional negligence claim to rely on the opinion evidence contained in the witness statement of a school educational psychologist who was said to have been negligent. That decision was applied by Jackson J in Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd [2008] EWHC 2220 (TCC) where he ruled that an engineer giving factual evidence could also proffer statements of opinion reasonably related to facts within his knowledge and relevant comments based on his own experience. If CPR Pt 35 is to be treated as an exclusive code it would appear to render inadmissible as evidence, expert literature exhibited to the report of an expert called under CPR Pt 35—as Arnold J observed in Interflora Inc v Marks and Spencer plc [2013] EWHC 936 (Ch).”

10.  In Globe Motors Inc & others v TRW Lucas Varity Electric Steering Ltd & another [2017] 1 All ER (Comm) 601, the principal issue was whether the judge erred in deciding that the agreement covered not only the products identified in the relevant agreement and the detailed specifications agreed, but also the motors bought from Emerson to the extent that they ‘could and would have been produced by Globe making “Engineering Changes” to Products’ within the exclusive purchase agreement. Beatson LJ at §92 said:

“ The submission that the judge was not entitled to rely on the evidence of Mr Arwine in order to reject Professor Ackva’s evidence because Mr Arwine was a witness of fact and not an expert glosses over the fact that questions of construction are a matter for the court and that, particularly absent a specific industry meaning, the judge was entitled to reach the conclusion that he did. Mr Downes did not submit that the evidence was inadmissible simply because CPR 35 had not been complied with. The judge was entitled to regard Mr Arwine’s evidence, properly characterised, as essentially factual, because what he was doing was explaining how Globe would have gone about manufacturing a Gen 2 motor to meet the functional specifications of the Emerson Gen 2. After hearing his evidence as to the simulations, the judge concluded (judgment, [275]) that Globe would have been able to deliver the Globe Gen 2 motor. The subject matter of the evidence on the ‘could and would’ issue is highly technical. In the light of the decision of Jackson J in Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No 6) [2008] EWHC 2220 (TCC), [2008] All ER (D) 04 Oct) (at [672]), the judge did not err in regarding Mr Arwine’s evidence as admissible. I consider that approach cannot be confined to TCC cases, and must apply by analogy to cases such as the present.” (emphasis added)

11.  Mr Amos for the Defendant put emphasis on the phrase “cases such as the present” in the last sentence and submitted that the application must be restricted to very technical issue of “could and would” in motor manufacturing in that case. I am not persuaded that that is correct. As I said, the Defendant itself is seeking to adduce expert evidence on flight scheduling which itself can be a very technical area which the court might require technical and expert assistance.

12.  As for how to properly distinguish between factual evidence and opinion evidence, Deputy High Court Judge Ronny Tong SC in Koninklijke Philips Electronics NV v Wealth Full Technology Ltd HCA 3307/2000, unreported, 2 May 2002 at §16 said:

“ The mere fact that factual evidence is given by someone with expertise in a particular discipline does not transform that evidence into expert or opinion evidence although sometimes the line between factual and opinion evidence may not be immediately apparent. For example, an explanation as to how a computer works may be purely descriptive and factual although it may require some expert training on the part of the person giving that explanation. On the other hand, evidence as to the quality of the work of a computer may be a matter of expert opinion.”

13.  Mr Chain for the Plaintiff also referred this Court to section 58(2) of the Evidence Ordinance, Cap 8 which provides that:

“ Where a person is called as a witness in any civil proceedings a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.”

14.  Mr Amos for the Defendant submitted that section 58(2) of the Evidence Ordinance, Cap 8 has a very restricted application. It only codified a common law rule which allows a lay witness to give opinion where such evidence is “adherent or closely associated” with his evidence of fact.  (See Leung Pik Wa alias Leong Pik Wa, the Administratrix of the estate of Kok Teng Nam, deceased v Poh Po Lian & another HCA 681/2011, unreported, 26 January 2015.)

Analysis

15.  Both Mr Chain for the Plaintiff and Mr Amos for the Defendant agreed that two of the main issues to be determined in the trial of the action are:

(1) whether MEGA did not have the necessary aircraft capacity to fly a third rotation and fourth rotation given that its aircrafts were too old; and

(2) whether MEGA did not have the necessary flight time slot permission and operation permits.

16.  Applying the Mulitplex Principle to the facts of the present case, I am of the view that the relevant paragraphs should not be struck out and should be properly considered by the trial judge.

17.  Mr Ali has 16 years of professional experience in coordinating aircraft schedules and has obtained various specialist certificates and licenses relating to flights operations and dispatch. I am satisfied that he has the relevant professional expertise in flight scheduling.

18.  He was the flight scheduler and flight dispatcher of MEGA airlines from 2010 to 2018 (ie, inclusive of the years of the third and the fourth rotation).  His responsibilities included coordinating and scheduling all of MEGA’s flights, applying his professional expertise.

19.  Mr Ali’s witness statement covers factual evidence as to MEGA’s flight operations and scheduling practices based on his own direct knowledge. For example, how many aircrafts were available, the flight patterns implemented by MEGA, the different flight routes which needed to be flown at any given time and how many hours were allocated to each flight route including maintenance time.

20.  Mr Chain for the Plaintiff submitted that Mr Ali’s evidence is substantially similar to Globe Motors Inc (supra), where an engineer’s evidence explaining how his company could and would have manufactured a motor to meet certain technical specifications was held to be fully admissible. I agree.  

21.  Paragraph 9 of Mr Ali’s witness statement gives his personal understanding and knowledge that “there is no set of rules or standards that limits or restrict the frequency of flights or number of hours flown by an aircraft.”  This is something within his personal knowledge which he gained through years of working experience in the field. I do not find it objectionable that he then cites Air New Zealand’s practice (with reference to publicly available information) to corroborate his personal understanding and knowledge.

22.  Paragraph 24 of Mr Ali’s witness statement simply seeks to give evidence which he has firsthand knowledge and involvement. I do not find it to be inadmissible.

23.  In paragraph 28, he gives evidence that according to his knowledge “the capacity and capability of MEGA to fly the Third Rotation and the Fourth Rotation can in fact be broadly assessed using 2 simple metrics—firstly, by the total flight hours per aircraft; and secondly, by the number of days taken up per aircraft.”  Mr Amos for the Defendant complained that this is giving expert opinion. However, I am of the view that Mr Ali is entitled to give his firsthand knowledge on how he could and would have scheduled the flights given his vast experience in doing so.

24.  Paragraphs 30 – 35 are just further explanations of how he could and would have scheduled the flights of MEGA. It includes the times which were allocated by MEGA for each flight route in its scheduling practices. These are matters of fact within Mr Ali’s knowledge.

25.  In relation to the witness statement of Mr George Gustaf Weinmann, Mr Weinmann has 20 years of professional experience in the aviation industry, with experience in both technical and operational aspects of airline management. He graduated from the University of Virginia in 1997 with a Bachelor of Science degree in Aerospace Engineering. He has experience and professional expertise as an aerospace engineer and an airline executive.

26.  Paragraph 16 of his witness statement merely sets out the fact that “each aircraft operated by MEGA, subject to industry standard maintenance checks, was well capable of meeting a target of 270 – 350 flight hours per month (and over 450 hours per month if necessary)”. I do not find this to be inadmissible. This is a matter of fact within Mr Weinmann’s personal knowledge.

27.  Paragraph 17 of his witness statement sets of his personal knowledge of the age of the two Boeing 767-300 aircraft in MEGA’s core fleet as at 2012 and the fact that, according to his knowledge, is well within the service lifespan of commercial aircraft. He also compares the age of MEGA’s aircraft to what he knows about the age of aircraft of other airlines. These are matters of fact within Mr Weinmann’s knowledge and are thus admissible evidence.

28.  Paragraph 24(d) concerns a particular grant of Slot Approval and the reasons for its particular timing. This is an issue of fact and within the personal knowledge of Mr Weinmann. This is admissible.

29.  Paragraph 24(f) concerns Mr Weinmann’s knowledge on how to read SITATEX messages. I agree it is a purely descriptive explanation within the personal knowledge of Mr Weinmann’s knowledge and expertise. This is a matter of fact. The trial judge might well ask Mr Weinmann for explanation in any event.

30.  Finally, I am of the view that the evidence as set out in the relevant paragraphs should be considered by the trial judge who is perfectly entitled to ignore or disregard evidence which carries little or no probative value. Mr Chain rightly reminded this court that witness statements (or parts thereof) should not be struck out unless in plain and obvious cases. (See Yu Man Fung Alice v Chiau Sing Chi Stephen [2019] HKCFI 1549 (HCA 1584/2012, unreported, 18 June 2019) at §§34 – 36 per Deputy High Court Judge Keith Yeung SC (as he then was).)

Disposition

31.  For all the reasons stated above, the Defendant’s Summons dated 11 September 2019 is dismissed.

32.  I reserve the issue of costs to be determined together with the application to adduce expert evidence on 27 December 2019.

33.  Finally, it remains for me to thank Mr Chain for the Plaintiff and Mr Amos for the Defendant for their very able and helpful assistance to this Court.