COMPETITION COMMISSION v. W. HING CONSTRUCTION CO LTD AND OTHERS

CTEA 2/2017

[2018] HKCT 2

IN THE COMPETITION TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COMPETITION TRIBUNAL ENFORCEMENT ACTION NO 2 OF 2017

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D E C I S I O N

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1.  As I see it, this is, as the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 10^th   respondents themselves admit, a wholly unsatisfactory situation.  The respondents have been given ample opportunity to seek expert evidence directions and to adduce expert evidence if they so desire.  The Commission had made clear at an early stage that they had no objection in principle to expert evidence being adduced in this case in connection with the economic efficiency defence relied on by some of the respondents.

2.  The original deadline for taking out an application for expert evidence directions is eight weeks after the filing and service of the list of documents, which meant 26 January 2018.  A summons was put in by some of the respondents on that date for leave to adduce expert evidence but that was in unsatisfactory form and an application was taken out to amend the summons, which amendment was granted on the directions hearing on 9 February, although even then the questions proposed for the experts were still not wholly satisfactory or appropriate, and the directions were, on that basis, opposed by the Commission as a result of which directions were given for the filing of evidence and argument for the purpose of determining that amended summons.

3.  What happened next was that in early March, the relevant respondents, without any explanation, sought to withdraw their application to put in expert evidence in the form of that amended summons and the withdrawal was granted by consent on 6 March.

4.  Without any prior notice, just slightly more than a week before the second CMC to be held on 4 June, the respondents took out another summons for leave to adduce expert evidence asking in particular for leave to adduce evidence from Mr Graham McNeill and Professor Fong Yuk-fai as the two experts for the respondents.

5.  The questions proposed for the experts were at that time still not properly formulated, but, for the reasons I explained at the last hearing, this Tribunal eventually decided to give the respondents the opportunity to adduce expert evidence on the questions as revised, subject to what was necessarily a stringent timetable because of the lateness of the application.

6.  The Tribunal is now told by a solicitor’s affirmation, which itself is somewhat defective in failing to specify the source of information, that the respondents could not afford the fees of those two proposed experts.  There is, accordingly, an application by the relevant respondents to substitute Dr Sharon Pang in place of Mr McNeill and Professor Fong as their expert on the same issues.  The summons was taken out on 5 July and as a matter of urgency I have convened this hearing to deal with the application.

7.  As I have mentioned at the outset, this is an entirely unsatisfactory position.  But, having said that, I am satisfied that there is no attempt to “shop” for an expert on account of the substance of the opinion in question, and that, without trying to pinpoint the responsibility for it, there appears genuinely to be a problem with the fees.  There is no dispute about the economic expertise of the proposed new expert, at least for present purposes, and I think for these reasons I ought to allow the respondents to substitute Dr Pang for the original experts.

8.  The Commission has taken issue with the expertise of Dr Pang in relation to the construction industry.  This is a question that I have no intention of entering into at this stage; suffice it to mention that it is a matter about which every expert should be alert, that is to say, the limitations on their expertise.  If an expert strays beyond his or her legitimate expertise, the expert thereby exposes himself or herself to criticism and the admissibility of the relevant opinion may be called into question.

9.  This leaves the question of the timetable.  I appreciate that it was an unless order that was made on the last occasion and Mr Chiu very properly drew my attention to the principles concerning the extension of time under an unless order.  This is, however, different from a situation where the consequence or the sanction of the unless order has already kicked in and a party is seeking relief from such sanction.  Instead, this is a case where the time has not yet expired and in the very special circumstances that I am told have happened, the respondents are effectively seeking an indulgence to allow time for the new expert to come up with a proper expert report.

10.  I take into account the novelty of this kind of case in Hong Kong, the potential consequences for the respondents if they are found liable and also the disruption caused by the change of expert and solicitors and counsel on the part of the relevant respondents without enquiring into the cause for that change or whether anyone is to blame. As a matter of indulgence, I would extend the original time for the relevant respondents to file and serve their expert report by two weeks.

11.  On the summons, I will therefore make an order in terms of paragraph 1, and I will make an order in terms of paragraph 2 with the amendment of the date from 13 August to 30 July.

12.  The Commission’s report will be due on 24 September.  The expert meeting will have to be by 8 October.  I propose to shorten the time for the joint expert report to 14 days thereafter, that is, 22 October.

(Discussion re PTR as scheduled on 2 October; trial date and length of trial)

13.  On the summons of the relevant respondents, I will give liberty to apply as per paragraph 3.

14.  I propose also to order costs be to the applicant in any event as per paragraph 4.