蔣偉明 v. 左潔冰及另一人

DCCJ 4679/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4679 OF 2009

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J U D G M E N T

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1.  This is an appeal by the plaintiff against the decision of Master B Mak dated 4 August 2010 whereby it was ordered, inter alia, that (1) the plaintiff’s Summons dated 8 February 2010 seeking to set aside the order of Master H N Lee given on 19 January 2010 for the appointment of a single joint expert witness be dismissed; and (2) the plaintiff’s Summons dated 21 April 2010 seeking to strike out paragraphs 33 and 34 of the Defence and Counterclaim and to debar the 1st and 2nd defendants from relying on the report made by Mr John Yip following his survey on 3 February 2010 be dismissed.

2.  At this hearing the plaintiff seeks to have the order of Master B Mak set aside and for the following relief: (1) an order under Order 38, rule 4A(7) of the Rules of the District Court setting aside paragraph 2 of Master H N Lee’s order dated 19 January 2010 ordering the parties to appoint a single joint expert witness to give evidence; and (2) an order  striking out paragraphs 33 and 34 of the defendants’ Defence and Counterclaim on the ground that the allegations are generated by an abuse of the process of the court, namely, a flagrant  breach of a court order.

3.  As put by the plaintiff’s counsel, this is a relatively straightforward case.  The plaintiff contractor has carried out renovation works for the defendants.  The plaintiff’s claim herein is for the alleged outstanding amount for work done. The defendants raised a Defence and Counterclaim for the alleged defective works done by the plaintiff.  The plaintiff’s claim is for the sum of $40,000 odd and the defendants’ counterclaim is for the sum of $170,000 odd.

4.  Obviously, a relevant issue in this case is the quality of the renovation works carried out by the plaintiff, an issue on which both sides will rely on expert evidence.  On 19 January 2010 Master H N Lee exercised the discretion conferred on the court by Order 38, rule 4A(1), Rules of the District  Court, and ordered that a single joint expert witness be appointed.  Mr Gary Lam, the plaintiff’s counsel, appearing at today’s hearing, does not seek to argue that this order was not properly made at the time when it was made. 

5.  Bearing in mind the amount at stake in these proceedings and the nature of the dispute between the plaintiff and the defendants, I would agree with that position.  Instead, what Mr Gary Lam argued was that this is an application under Order 38, rule 4A(7) to set aside the single joint expert order.  It is not an appeal against the single joint expert order made by Master Lee, thus the plaintiff is not seeking the court to reconsider whether the single joint expert order should have been made, instead the plaintiff is asking the court in the light of the development since the granting of the single joint expert order to set it aside.

6.  Order 38, rule 4A(7) provides as follows:

“Where the court is satisfied that an order made under paragraph (1) is inappropriate, it may set aside the order and allow the parties concerned to appoint their own expert witnesses to give evidence.”

7.  In deciding whether to permit the parties to adduce their own expert witness to give evidence after an order for a single joint expert witness had been made, guidance has been given by Lord Woolf MR in Daniels v Walker [2000] 1 WLR 1382, at 1387 D to G:

“In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.

In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert.  In many cases, it would be wrong to make a decision until one is in a position to consider the situation in the round. You cannot make generalisations but in a case where there is a modest sum involved a court may take a more rigorous approach.  It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances.  At most, what should be allowed is merely to put a question to the expert who has already prepared a report.”

(emphasis supplied)

8.  But for the plaintiff’s allegations of bias or apparent bias against the single joint expert appointed, Mr John Yip, in this case, I would have thought that Lord Woolf’s dicta will apply so as to disbar the plaintiff from obtaining a second report from a different expert.  The sums involved in this action are modest and it would be disproportionate to obtain a second report. 

9.  Having considered the submissions from plaintiff’s counsel and the affidavit evidence filed in this case, I am not satisfied that the plaintiff’s allegation of bias or apparent bias against Mr Yip has been made out. 

(1) The fact that, before the single joint expert order, the defendants had appointed Mr Yip to prepare an expert report on the same issue in June       2009 was disclosed to the plaintiff, and the earlier report was disclosed in the proceedings before the Small Claims Tribunal.

(2) At the inspection on 3 February 2010 leading to the report in question, Madam Chiang Mei-lan, the plaintiff’s sister, was present. 

(3) The plaintiff has not made out a case that Mr John Yip had “refused to take instructions from the plaintiff but the defendants only.” The requests made by the plaintiff and his solicitors dated 8 February 2010, 26 February 2010, and 17 March 2010 respectively were for details, records and minutes of prior meetings between Mr Yip and the defendants. Mr Yip has subsequently by a letter dated 29 April 2010 asked the plaintiff’s solicitors to direct their enquiry with the defendants’ solicitors.

 (4) Further, I accept the defendants’ evidence that the report compiled    by Mr John Yip was completed on 16 February 2010, before the order         of Master Lai dated 19 February 2010.

10.  In the circumstances, I dismiss the application for the setting aside of the order of Master H N Lee dated 19 January 2010.  I am, however, more sympathetic to the alternative relief sought by the plaintiff, namely, there be leave to the plaintiff to cross-examine the single joint expert at trial.  I see little reason not to permit the plaintiff to cross-examine the single joint expert witness if the plaintiff does not agree with his report.  As to whether the plaintiff will engage another expert to prepare for the cross-examination, that is a matter entirely for the plaintiff. 

11.  As to the striking out application, in view of my finding that the order appointing a single joint expert should remain and that the report of Mr John Yip was finished by 16 February 2010, the basis for the striking out application is gone.  

12.  Accordingly, I make the following order: (1) the plaintiff’s appeal by Notice of Appeal dated 18 August 2010 be dismissed, the order of Master B Mak dated 4 August 2010 is affirmed; and (2) there be leave to the plaintiff to cross-examine the single joint expert witness at trial.

(Discussion on costs)

13.  Bearing in mind that the application for the alternative remedy was not properly constituted until today, I do not think that the defendants should be deprived of any part of the costs which should follow the event of the appeal.  I therefore order that costs of the appeal be to the defendants, with certificate for counsel.