CHINACHEM CHARITABLE FOUNDATION LTD v. CHAN CHUN CHUEN AND OTHERS

HCAP 8/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 8 OF 2007

----------------------

----------------------

----------------------

----------------------------------------

REASONS FOR DECISION

----------------------------------------

1.  On 8 May 2009, I granted leave to the 1st Defendant to adduce evidence from a handwriting expert Mr Paul Westwood at the trial.  I emphasized at the time when I made the decision that in so doing the court should not be regarded as condoning the practice of expert shopping and leave was granted in the exceptional circumstances of the present case.

2.  I now give my full reasons for such decision.

Background to the application

3.  A very detail chronology regarding events relevant to the application was prepared by the Plaintiff and included in the hearing bundle placed before me on 30 April 2009.  There is also a procedural chronology prepared by Mr Mill attached to his written submission of 26 April 2009.  I do not intend to go through all the events set out in these chronologies.  Suffice to say I have regard to them when I came to my decision.

4.  I will highlight some events to facilitate a better understanding of this judgment.

5.  On 6 May 2008, Cheung J gave leave to the parties to file and serve expert reports on or before 17 October 2008.  By a consent order the date was extended to 28 November 2008.  Later on, by an order of 14 November 2008, it was further extended to 30 January 2009.  The court also gave directions for meeting of experts and the filing of joint statements and reply reports.

6.  Still, there were difficulties on the part of the Plaintiff in meeting the deadline, partly attributable to funding problems and the change of their legal team.  The deadline was finally extended to 3 April 2009.

7.  By September 2008, the 1^st Defendant decided to retain the service of a forensic document examiner and two experts were approached: Dr Audrey Giles and Mr Paul Westwood.  In the end, the 1^st Defendant decided to use Dr Giles in view of the fact that she was based in the same country as Dr Radley and the 1^st Defendant’s leading counsel.

8.  The hiccup caused by the change in the Plaintiff’s legal representation had disrupted the preparation of the expert evidence.  Due to funding problem, Dr Radley the forensic expert engaged by the Plaintiff stopped his work on the case and some documents examined by him (referred to as the 4^th batch of documents in Mr Mill’s chronology) were not sent to the 1^st Defendant’s expert until sometime in March 2009.

9.  On 23 March 2009, Dr Radley signed a report setting out his opinion that the purported signatures of Mrs Wang (the testatrix) and Mr Wong (one of the attesting witness) on the 2006 Will were not genuine.  This prompted the Plaintiff to make an application for amending the pleadings to advance a positive case of forgery.  The summons was taken out on 27 March 2009 and at that stage the report of the Dr Radley had not been filed nor exchanged.

10.  The summons was supported by an affirmation of the Plaintiff’s solicitor who had exhibited a copy of Dr Radley’s report in a sealed envelope.  The Plaintiff asked the court to read the report without disclosing it to the 1^st Defendant.

11.  At the hearing of the summons on 30 March 2009, the application was opposed and this court indicated that it had not read the report as I did not regard it as the right course to adopt.  I saw no reason why the court should refer to the report without giving the 1^st Defendant a chance to consider it.  The application was stood down to a date after the intended exchange of expert reports.  Mr Mill made an application for sequential filing of reports but that was refused.

12.  As it happened, there was no exchange of expert reports.  On 2 April 2009, solicitors for the 1^st Defendant wrote to solicitors acting for the Plaintiff indicating that the 1^st Defendant would not be filing any forensic expert evidence and requested for a copy of Dr Radley’s report as soon as possible.  The Plaintiff served a copy of that report on the 1^st Defendant’s solicitors accordingly.

13.  As it is revealed subsequently, Dr Giles came to certain views unfavourable to the 1^st Defendant regarding the signatures of Mrs Wang and Mr Wong on the 2006 Will and set out such views in a draft report.  The draft report was sent to solicitors for the 1^st Defendant on 29 March 2009.  There was a meeting between Dr Giles and the lawyers acting for the 1^st Defendant.  After the meeting, the 1^st Defendant decided not to ask Dr Giles to finalize her report.

14.  After that, the 1^st Defendant’s solicitors contacted Mr Westwood and asked him to prepare a preliminary report.  That was not made known to the Plaintiff or the court until much later.  In a skeleton submission filed on 2 April 2009, counsel for the 1^st Defendant indicated that the 1^st Defendant would not be calling any handwriting expert.

15.  By consent, leave was granted on 9 April 2009 to the Plaintiff for amendment of the pleadings to plead forgery.

16.  At a hearing on 14 April 2009, Mr Edward Chan SC appearing for the 1^st Defendant on that occasion indicated to the court the 1^st Defendant would have an expert in court to assist in cross-examining Dr Radley.  This court raised the concern of having the opinion of a shadow expert being proffered in the guise of cross-examination without being subject to the discipline of exchange of expert report and expert meeting.

17.  After the service of Dr Radley’s report on 2 April 2009, further sample signatures were made available to the experts for examination.  Dr Radley made a supplemental report and it was served on 20 April 2009.

18.  On 22 April 2009, in the outline submissions filed for the pre-trial review on 23 April 2009, the 1^st Defendant indicated the wish to adduce evidence from Mr Westwood at the trial.  A summons for that purpose was filed on 24 April 2009.  A preliminary report of Mr Westwood was made on 24 April 2009.  The opinion in the preliminary report was favourable to the 1^st Defendant.

The court’s control over expert evidence

19.  Mr Yu SC characterized this application as a blatant attempt in expert shopping.  He submitted that the court should not countenance such a practice and the application should be refused.

20.  I wholly agree that expert shopping is undesirable and the court should discourage such practice.  When the court detects any abuse in this regard, it has the power to prevent it.  In this connection, I only need to quote from para.29 of the judgment of Dyson LJ in Vasiliou v Hajigeorgiou [2005] 1 WLR 2195 at p.2205,

“The principle established in Beck v Ministry of Defence (Note) [2005] 1 WLR 2206 is important.  It is an example of the way in which the court will control the conduct of litigation in general, and the giving of expert evidence in particular.  Expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it.  It needs to be emphasized that, if a party needs the permission of the court to rely on expert witness B in place of expert witness A, the court has the power to give permission on condition that A’s report is disclosed to the other party or parties, and that such a condition will usually be imposed.  In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court’s permission to rely on a substitute expert, it will be required to waive privilege in the first expert’s report as a condition of being permitted to do so.”

21.  Mr Yu further submitted that though the English authorities referred to the disclosure of the original expert’s report as a condition for granting permission to call a substitute expert, it is only a necessary but not a sufficient condition.  I was referred to a decision by Judge Ng in Chung Tin Kau v Fong Shun Tak DCPI 1055 of 2006, 16 March 2009, where Her Honour refused permission to a plaintiff to call another doctor notwithstanding the medical report of the original expert was produced.

22.  I agree that the disclosure of the original report per se may not be sufficient.  The court may refuse to grant leave if the only reason for having a substitute expert is that his opinion is more favourable to the party calling him.

23.  Ultimately, it is a matter of case management and one must have regard to the underlying objectives set out in Order 1A Rule 1, see Order 1A Rule 2(1).  Expert shopping, if unchecked, will not be conducive to cost-effectiveness of the proceedings nor the expeditious disposal of a case.  It can also lead to potential unfairness between those who can afford to shop around for the opinions of more than one expert and those who cannot.  If the practice prevails, it would compromise the impartiality of expert evidence which is of great importance in the fair resolution of dispute by the court.

24.  Further, the court must recognize that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties, Order 1A Rule 2(2).

25.  Hence, if the court is satisfied that the just resolution of a dispute requires leave to be granted for a substitute expert to be called, it should not refuse leave simply because the opinion of the substitute expert is more favourable than that of the original expert engaged by the same party.  But I must emphasize the following: the just resolution of a dispute does not mean that whenever a party is able to obtain a more favourable opinion he should be permitted to adduce it as evidence.  Such an approach flies in the face of the court’s disapproval of expert shopping.

26.  In my view, the court should examine the grounds put forward by the substitute expert and make a preliminary assessment of the cogency of those grounds as compared with those set out in the report of the original expert and the report of the expert engaged by the other side.  If the court is satisfied, after reading all these materials, that there are relevant matters canvassed by the substitute expert which may be important to the just resolution of the dispute that had apparently been omitted from the reports of the other experts, that would present a prima facie case for the admission of the substitute expert report in the interest of just resolution of dispute.  Even so, the court must also have regard to other relevant circumstances like the potential disruption to the trial, the prejudice to the other parties, the explanation offered by the applicant for change of expert etc.

27.  There can be other instances where justice demands leave to be given to a party to call a substitute expert.  But I do not think it is necessary to be exhaustive for the purpose of this judgment.

Application of the approach to the present case

28.  Mr Mill QC contended that but for the need to have the court’s leave for the original documents to be released for examination, the 1^st Defendant did not require leave to substitute Dr Giles by Mr Westwood because the order granting leave to expert witness did not specify the identity of the expert.

29.  The position is not as simple as that.  Order 38 Rule 36(1) prohibits a party from adducing expert evidence unless he has complied with the expert directions given by the court or otherwise obtained the leave of the court.  Expert directions were given and the extended deadline for exchange of reports has lapsed.  Hence, unless the 1^st Defendant obtained leave of the court, he cannot call handwriting expert evidence.

30.  As long as the leave of the court is required, the court will exercise its power in accordance with the approach (derived as it is from Order 1A Rule2) set out above.

31.  In support of his application, the 1^st Defendant gave voluntary disclosure of the draft report of Dr Giles and the notes recording the communications between her and the lawyers acting for the 1^st Defendant.  It is conceded by Mr Mill that the Plaintiff can use those materials at the trial pursuant to Order 38 Rule 42.

32.  The 1^st Defendant also produced a copy of the report of Mr Westwood to the court.  This court has considered that report in the light of the draft report of Dr Giles and the reports of Dr Radley.  For obvious reasons, it is not appropriate for this court to delve at length on a discussion regarding the contents of these documents.  I do not want to pre-empt the course of the evidence to be led at the trial by what is said in this judgment

33.  What I can say is this.  After studying the reports of the respective experts, and bearing in mind the proper approach to handwriting expert evidence set out in the judgment of the Court of Final Appeal in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, I am of the view that the report of Mr Westwood does refer to matters that are pertinent to the court’s consideration in resolving the dispute on signatures that were omitted from the reports of Dr Giles and Dr Radley.  In particular, I refer to his evidence on the similarities between the questioned signatures and sample signatures.  It may be that Dr Radley and Dr Giles may have good reasons for not covering those grounds in their respective reports.  But on the materials presently available, the 1^st Defendant has satisfied me that this is a case where the just resolution of the dispute requires leave to be granted for admission of evidence from Mr Westwood.

34.  In coming to this conclusion, I have taken into account of Mr Yu’s submissions that the 1^st Defendant was conducting expert shopping and that the 1^st Defendant should lead the evidence on similarities from Dr Giles instead of switching to Mr Westwood.  Regarding the first point, I have already explained above as to the proper approach to be adopted.  This is not a case where the 1^st Defendant seek leave to substitute expert simply because the conclusions of Mr Westwood is more favourable.  If Mr Westwood simply covered the same grounds that have been addressed in the reports of Dr Radley and Dr Giles, I would not be inclined to grant leave. 

35.  Regarding the second point, the short answer can be found in the 20^th Affidavit of Mr Midgley.  It is unlikely that Dr Giles would have further involvement with the defence case.

36.  As mentioned above, the court must also have regard to other relevant circumstances before deciding whether leave should be granted.  Although there will have to be adjustment in the timetable for the calling of the handwriting expert witnesses, I do not think permitting the 1^st Defendant to call Mr Westwood would delay the commencement or the end of the trial.

37.  I agree with Mr Mill that the Plaintiff had not identified any prejudice that cannot be compensated by a costs order other than the disadvantage in terms of having disclosed the report of Dr Radley before Mr Westwood prepared his report.  I have borne this prejudice in mind but I do not think this factor should carry too much weight in the present circumstances.  The experts act independently in offering their opinions to the court.  There is nothing before me to suggest that either expert would have given a different opinion in their reports if they were to be exchanged as opposed to what actually happened.

38.  In the course of his submissions, Mr Yu quite properly accepted that even if the 1^st Defendant were not permitted to call Mr Westwood to give evidence, the court could permit him to attend the trial to assist Mr Mill in the cross-examination of Dr Radley.  Further, Mr Yu had no objection to the court granting Mr Westwood leave to inspect the original documents to facilitate such course being adopted.  Hence, it is likely that the points raised by Mr Westwood in his report would be taken in any event and the question is whether he should be permitted to give evidence (so that the Plaintiff could cross-examine him) as opposed to merely assisting Mr Mill to elicit the points from Dr Radley by way of cross-examination.

39.  Having regard to the nature of the points being made by Mr Westwood and their relevance in the overall assessment in the expert evidence in question and having been satisfied that this is a case where relevant matters are canvassed by the substitute expert which may be important to the just resolution of the dispute that are apparently omitted from the reports of the other experts, I am of the firm view that it would be much more cost effective and fair to all the parties involved (including the experts) in the present circumstances to grant leave to the 1^st Defendant to adduce evidence from Mr Westwood.  That would entail directions for meeting between Dr Radley and Mr Westwood and joint expert statement to be produced.  Through these procedures, the issues can be narrowed down and the experts, the lawyers and the court can be more focused when handwriting expert evidence is heard.  This would be much better than having Mr Westwood acting as a shadow expert in assisting Mr Mill in the cross-examination of Dr Radley.

40.  Mr Yu also criticized the 1^st Defendant in respect of the timing of the application, the explanation offered for the change of expert and the extent of disclosure of the materials setting out the opinion of Dr Giles.  In the light of what I said with regard to the proper approach to applications of this nature, I do not think the 1^st Defendant can be criticized for not launching the application until they have obtained preliminary opinions from Mr Westwood.  If they cannot demonstrate to this court that the opinions of Mr Westwood are likely to be of assistance to the fair resolution of the dispute, they do not have any basis to seek leave.

41.  As regards the explanation for the change of expert and the disclosure of materials, though initially there were gaps in the evidence of the 1^st Defendant, they have been adequately covered by the 19^th and 20^th Affidavit of Mr Midgley.

42.  I am therefore satisfied that in this instance the court should exercise its discretion to grant the indulgence sought by the 1^st Defendant.

Election and estoppel

43.  Mr Yu also opposed the application by reason of the intimation of the 1^st Defendant in the letter of 2 April 2009 that he would not be calling any handwriting and forensic expert.  The same position was stated in the skeleton submissions of the same date.  He submitted that there is no basis for allowing the 1^st Defendant to resile from that position.

44.  Counsel relied on the dicta of Sir Nicholas Browne-Wilkinson V-C in Express Newspapers v News (UK) Ltd [1990] 1 WLR 1320 at p.1329F to G,

“There is a principle of law of general application that it is not possible to approbate and reprobate.  That means you are not allowed to blow hot and cold in the attitude you adopt.  A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.”

45.  However, the decision of the Vice Chancellor in that case had been said to be a decision on the unusual, and fairly extreme facts of the case (see Union Music v Watson Blacknight Ltd [2002] EWCA Civ 680, per Robert Walker LJ at para.28) and it should properly be understood as a special analogous application of the doctrine of equitable election depending on the principle of benefit and burden, see Nexus Communication Group v Michael Lambert [2005] EWHC 345 (Ch) per G Moss QC sitting as a Deputy Judge of the Chancery Division.  In the latter case, after conducting a survey of all the relevant authorities on the topic, including the House of Lords decision in Lissenden v Bosch Ltd [1940] AC 412 (which was not cited in Express Newspapers), the learned judge summarized the relevant principles as follows at paras.44 to 46,

“44.   Election at common law occurs where a person has two inconsistent rights, only one of which can be exercised.  Once he exercises that right he cannot exercise the inconsistent right.  Likewise, in the case of remedies, the boundary between the two being often difficult to distinguish.

45.    Election in equity means that a party cannot both accept an instrument or judgment and reject it.  He cannot take a benefit under the instrument or judgment without taking the accompanying burden.  By analogy, this principle also extends to litigation where a party succeeds in obtaining judgment on the basis of a particular contention and cannot then resist judgment based on that same contention, where that would be inequitable.  The inequity here is once again based on the benefit/burden principle: having taken the benefit of the judgment on a particular basis the party must accept the burden of the judgment for the other relevant party on the same basis.

46.    On the other hand, except where this would be contrary to established equitable principles, any party to a legal dispute, before or during litigation, can put forward inconsistent arguments prior to judgment.  One inconsistent argument does not prevent reliance on any other inconsistent arguments except where the common law or equitable doctrines of election or some other doctrine applies.  This inconsistency is not of itself a reason for invoking either the common law or the equitable doctrines of election.”

46.  Obviously we are not dealing with common law election.  We are also not dealing with a situation where the 1^st Defendant has obtained a judgment or instrument on a particular basis.  It is solely a matter of choices on procedure.  Handley on Estoppel by conduct and election put it succinctly at para.14-001,

“Election in procedure involves choices made during proceedings before final judgment or award.  Such choices are not binding in the absence of an estoppel because of the power to allow amendments, and the control that the Court or tribunal exercises over its own procedures.”

Further at para.15-020,

“A litigant may be faced with a choice between inconsistent steps in the litigation.  If he represents to his opponent that he has adopted one and the latter changes his position and would be prejudiced if the election was reversed the representor may be estopped from doing so.  However representations about the conduct of litigation are often provisional or only statements of intention and, until the trial finishes, the litigant may change his election or seek the leave of the Court to do so if this is necessary.”

47.  As regards estoppel in the context of procedural matters in the course of litigation, I was referred to the judgment of the House of Lords in Roebuck v Mungovin [1994] 2 AC 224.  That was a case dealing with an application for striking out for want of prosecution and the plaintiff tried to rely upon an intimation by the defendant that it would admit defence to estop the latter from striking out the claim.  Lord Browne-Wilkinson delivered the leading judgment.  His Lordship held that if there was any representation, it could only be a representation as to future conduct and such representation could only support an equitable estoppel, if any.  He then said, at p.235F to 236A,

“Assuming, for present purposes, that the defendant’s conduct does raise such an equitable estoppel (which I think doubtful), such equitable estoppel would not impose an automatic legal bar to obtaining a striking-out order.  The effect of such an estoppel is to give the court power to do what is equitable in all the circumstances. … If an equitable estoppel is raised the court’s function is to determine what, if anything, is necessary to satisfy that equity in all the circumstances of the case.  That is a far cry from saying that, where a defendant has led the plaintiff to incur some additional expense, he is therefore in all circumstances prevented from relying on inexcusable delay by the plaintiff which has seriously prejudiced him.  If on the assumption made the defendant is equitably estopped, then the effect of that estoppel would be to give the court a discretion whether or not to strike out the action (possibly upon terms) depending upon the balance between the harm done to the defendant by the plaintiff’s delay and the expense or other detriment incurred by the plaintiff by reason of the defendant’s representation.  Such a discretion is not materially different from that which the court would be exercising if it had an unfettered discretion whether or not to strike out a claim.  Therefore the introduction into the law of striking out of concept of waiver, acquiescence or estoppel is merely confusing.” 

48.  With respect, the facts and surrounding circumstances of the present application are materially different from those in Express Newspapers.  That was a case where the doctrine of equitable election was held to be applicable by reason of a judgment obtained pursuant to a line of argument and the party was therefore not permitted to contest the same argument in a subsequent action.  We are not dealing with such a situation.  For present purposes, I find the judgment in Roebuck v Mungovin [1994] 2 AC 224 to be more on the point.  At its highest, the representation by the 1^st Defendant in the letter and submissions of 2 April 2009 is a representation as regards future conduct and it, again at its highest, can only support a case for equitable estoppel.  In my judgment, the analysis of Lord Brown Wilkinson is equally applicable in the context of case management decision regarding the admission of a substitute expert opinion.  The discretion exercised by the court in the context of equitable estoppel would not be materially different from the discretion on case management generally as discussed above.

49.  Granted that the Plaintiff suffered detriment in terms of having disclosed the report of Dr Radley in advance of the preparation of the report of Mr Westwood.  But I do not see how such detriment could equitably lead to a result that the 1^st Defendant is absolutely barred from calling handwriting expert evidence even when justice demands.  Once it is accepted that it is a matter of discretion, the result must be dictated by the considerations I have discussed above.

50.  For all these reasons, I grant leave to the 1^st Defendant to adduce the evidence of Mr Westwood.