NG YEUNE LAI LIN AND ANOTHER v. FUNG SHUI KWAN AND ANOTHER

1987, No. P1

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PROBATE JURISDICTION

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R U L I N G

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1. The disagreement between the plaintiffs and the defendants arose in this way. By a summons for directions under 0.25 dated the 28th June 1988, leave to call two expert witnesses on each side, unless a report could otherwise be agreed, was sought. Leave was accordingly granted by the master on the 13th July 1988. The matter was left in abeyance for a considerable time until about the 25th July 1989 when a further summons was filed purportedly under 0.38, r.4, Cap. 7 (sic). I use the word "purportedly" advisedly because the limit as to the number of expert witnesses had earlier been decided. 0.38, r.4 empowers, the Court to limit the number of expert witnesses to be called, but obviously a further application would be superfluous.

2. In reality, what was prayed for in the summons of the 25th July was a mutual disclosure of Chinese experts' reports. The proper citation for the summons should have been 0.38, rr. 36 & 37. Without leave of the court or the consent of the parties an application for a direction under these rules is a procedural pre-requisite to the leading of expert evidence at the trial. The relevant part of 0.38, r.37 provides that :

"..... unless the Court considers that there are special reasons for not doing so, it shall direct that the substance of the evidence be disclosed in the form of a written report or reports to such other parties ......" (Emphasis added).

3. The master's Order made some three days after on the plaintiff's summons of the 25th July was by consent and in these terms :

"The (parties) do ..... mutually disclose the reports of the experts" and "unless such reports are agreed, the parties be at liberty to call expert witnesses limited to those witnesses whose report have bee so disclosed ......"

4. The primary contention of Mr Lai, counsel for the defendants, is that since the parties have merely agreed to a disclosure of reports, once any report is disclosed (as it has been in this case), the defendants may adduce expert evidence at large. That contended narrow ambit of their consensus is said to have been reflected in the lack of reference in the Consent Order to any disclosure of "the substance of the (expert's) evidence".

5. It is to be noted that in Citty & Jacob's Queen's Bench Forms 21st ed. p.516, Form 690, the suggested orderis:

"Unless such reports are agreed the parties be at liberty to call expert witnesses, limited to those witnesses the substance of whose evidence has been so disclosed and limited to ......"

6. The language of this Precedent Form was not strictly followed.

7. We have a revised set of Civil Code today and the new version, except for 0.75, came into operation on the 1st May 1988. Therefore, to all intents and purposes, the provisions of the revised Code apply.

8. The effect of the Consent Order made on the 28th July is apparent. It would have the effect of further reducing the number of expert witnesses. The maximum number of two would be permissible only upon a prior disclosure of expert reports.

9. Thus, a direction under, inter alia, 0.38, r.37, must be sought before evidence from an expert could be led at the hearing, and "unless the Court otherwise considers that there are special reasons for not doing so, it shall direct that the substance of (experts') evidence be disclosed". The Consent Order of the 28th July enjoined the parties to mutually disclose their respective expert reports. No special reasons were advanced for the consideration of the master. The Consent Order is silent on any dispensation with a disclosure of the substance of the evidence for any special reasons. In the absence of special reasons, the master "shall direct" the closure of the substance of the experts' evidence in the form of written reports. Consequently, the master's Order of the 28th July required both parties to disclose, in effect, substance of experts' evidence. The purpose of divulging experts' evidence is to narrow the issues and avoid surprises. Towards this end, the parties agreed to suffer an imposition of a procedural requirement for briefing the other of them the essential facts and reasoning in support of the conclusions reached by their respective experts in the case. The Consent Order laid down two limit : one as to the extent of expert evidence as "limited to those witnesses whose reports (meaning the substance of whose evidence in the form of written reports) have been so disclosed" and the other as to the maximum number of experts, "limited to 2 witnesses , on each side". The reference in the Consent Order merely to "reports" rather than to "substance of evidence ..... in the form of written 'reports" can have no real significance. 0.38, r.37 speaks of "substance of the evidence" in the form of a written report. Conversely, a report for disclosure under 0.38, r.39 must necessarily be one containing the substance of the expert's evidence. As envisaged by 0.38, r.37 and commonsense, the material evidence of an expert is to be embodied in his report, otherwise a prior disclosure of his report would be utterly meaningless.

10. On behalf of the defendants, Mr Lai invites this Court to rule that Dr. Hu, the proposed Chinese expert for the defendants, may give evidence outside his disclosed report. However, the defendants have voluntarily confined their expert evidence within the four corners of what has been described as "Outline of Evidence", handed in to-day. It is a document as difficult to fathom as Dr. Hu's report. Mr Lai further submits that his expert would enjoy the implicit right to respond to and deal with the evidence of Dr. Baker, the Chinese expert, who has been called by the plaintiffs.

11. It has been a known practice followed for more years than I could remember that the function of an expert is primarily to confirm his written report and thereafter hold himself out for any cross-examination that may be conducted at the discretion of counsel for the opponent. As Sheen, J. observed in The Capitaine Le Goff, [1981] L1. L.R. 322 at p.325, an expert report should "encompass all the evidence which the witness intends to give in chief". He may and usually does clarify or emphasize some aspects in his report. The case of Herman Iskandar v. Bonardy Leo & Others, C.A. 117 of 1987, judgment of which was given on 5th February 1988 affirms the need for a well reasoned and supported expert report. See p.p. 18 & 42. In my opinion, an expert witness called by any of the parties to the proceedings would have no implicit or inherent right to answer or deal with the expert evidence that has already been adduced. Leave may be applied for to file a supplementary report with a view to answering points raised by another expert. Some neutral views are expressed in paragraph 27-23, p.567 Phipson on Evidence, 13th ed. But in my judgment, if the procedure be otherwise, the spirit and letter of these rules requiring prior disclosure of substance of expert evidence would be wholly defeated. It goes without saying that I hold that Dr. Hu, the proposed expert for the defendants, has no implicit right to respond to or deal generally with the evidence of Dr. Baker.

12. I assume that the written report of Dr. Hu is not an empty shell but has disclosed sufficient facts and reasoning to enable expert evidence to be led. I am not now being called upon to make any observation on the contents of Dr. Hu's report.

13. For all the reasons I have given, it is also my view that Dr. Hu should not be permitted, if called, to go beyond his disclosed written report. Consequently, insofar as the "Outline of Evidence" supplied by the defendants departs from Dr. Hu's disclosed report, no expert evidence may be led on it.

14. Counsel for the defendant now seeks leave to adduce expert evidence generally without applying for leave to file any supplementary report. I need not state the, obvious more strongly that without a full disclosure of expert evidence, permission to lead evidence generally would cause grave injustice and prejudice to the plaintiffs. The court is told that Dr. Baker has found it very trying to respond to the existing report of Dr. Hu. Without further: information, it is impossible for genuine efforts to be made in countervailing all likely damage to the plaintiffs case by any widely-ranged evidence from Dr. Hu.

15. The "Outline of Evidence" does not form part of the disclosed report of Dr. Hu, and I need not comment further on it.

16. It remains for me to rule :

(1) Dr. Hu's evidence be confined to his disclosed expert report;

(2) in particular, so far as the "Outline of Evidence" departs from Dr. Hu's disclosed report, no expert evidence may be led on it;

(3) leave to adduce expert evidence generally be refused; and

(4) costs of the application be, subject to what Counsel have to say, costs to the plaintiffs in any event.