ECHELLES RIFFIAUD S.A. v. THE SECRETARY FOR JUSTICE

HCA 1841/2011

[2022] HKCFI 3486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1841 OF 2011

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BETWEEN

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R E A S O N S    F O R    D E C I S I O N

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1.  This was an application on the part of the Plaintiff on the first day of trial to file the 3^rd supplemental witness statement of their only witness as to facts, Mr Courtot (“Courtot-3SWS”), and to file a 2^nd supplemental list of documents. This was strongly opposed by the Defendants on the ground of inordinate and inexcusable delay and prejudice to the Defendant.

2.  I have dismissed the application after hearing the parties. Here are my reasons.

Background

3.  This is a claim for damages arising out of the sale and purchase of fire fighting equipment by the Plaintiff to the Defendant. At the PTR, with the consent of the Defendant, the Plaintiff obtained leave to amend pleadings and adduce a 2^nd supplemental witness statement of Mr Courtot (“Courtot-2SWS”) and a further expert report. There were consequential directions for the Defendant to, amongst others, file supplemental witness statements and expert reports in response. The timetable for doing those was very tight but the Defendant did comply by, amongst others, filing a supplemental expert reports of Professor Wu and Mr Fuhrmann and a witness statement of Mr Gary Yang in August 2022 after the PTR.

4.  On 1 November 2022, the Plaintiff provided Courtot-3SWS in draft to the Defendant, “hoping” that there would be consent from the Defendant to file it. On 8 November, the Defendant indicated objection in his opening submission. The Defendant was caught in the difficult position of having to decide whether and how to respond to the Plaintiff’s attempt to file Courtot-3SWS and thus sought directions from the Court.

5.  On 9 November 2022 this Court responded that the default position was “no leave, no new evidence”.

6.  It was only then, on 9 November 2022, that the Plaintiff took out the present summons to adduce Courtot-3SWS with the draft attached. There was not even a supporting affirmation. Courtot-3SWS purported to deal with 3 aspects:

(1) To rebut the “serious and wrongful” and “highly unfortunate” accusation of Professor Wu in his supplemental report that Mr Siedl (Plaintiff’s expert) has edited the Operating Envelop Diagram (for the boom) and “changed” the original diagram in the O&M Manual “as if it were the original provided by GIMAEX” and that Mr Siedl has engaged in “misleading” behaviour by presenting the operation envelop “on the basis of some re-edited diagram and falsely claiming that it is the original”.

(2) To address matters canvassed in Mr Fuhrmann’s supplemental report concerning the critical defect of risk of overturning.

(3) To deny the allegation in Mr Gary Yang’s 2^nd supplemental witness statement and assert that Mr Courtot did have exchanges with Mr Gary Yang in early 2009.

7.  At the end of the argument, it was quite clear that this application is about adducing further factual evidence.

8.  The Defendant fairly suggested that a one sentence denial by Mr Courtot in the witness box was all that was necessary in respect of Mr Gary Yang’s supplemental witness statement. There was no need to file Courtot-3SWS. As for other aspects of Courtot-3SWS, the Defendant objected to the filing on the ground of delay and prejudice.

Inordinate and inexcusable delay

9.  This Court had time and again refused to grant leave in various cases to file evidence at a PTR or at a trial because ample time had usually been given to the parties to do so before a case was set down for trial. There should be no ambush on the opponent. A late application could be dismissed on the ground of lateness alone.

10.  The Court had already stated its stance aforesaid in §13 of a decision in this case handed down on 31 August 2022 (“Decision”) after the PTR.

11.  The Defendant had, at the PTR, amicably consented to the filing of the bulk of a Courtot-2SWS, disputing certain parts on grounds which were upheld by this Court. In dealing with that application, this Court has pointed out in §17 of the Decision the delay:

(1) The witness statements were exchanged in May 2015, over 7 years ago;

(2) The supplemental witness statements were exchanged in December 2019 and January 2020, over 19 months ago;

(3) The expert reports were exchanged in December 2018, over 4 years and 8 months ago; and

(4) The joint expert report was prepared on 11 June 2019, over 3 years ago.

12.  Those observations were still valid as of the date of the present summons. The Court noted the Defendant’s then cooperative stance that he had not been able to meaningfully digest and comprehend the highly technical and complicated evidence attached to the Plaintiff’s then Evidence Summons (§2 of the Decision) but decided not to stand in the way. The Plaintiff’s present summons is another attempt to exploit the cooperative attitude of the Defendant.

13.  In respect of the first aspect of Courtot-3SWS, there was no dispute that Professor Wu was correct when he pointed out that the Operating Envelop Diagram for the boom had been edited. He thought it was Mr Seidl but the Plaintiff claimed it was Mr Courtot. If this were only a one sentence correction, it could, with leave of the Court, have been covered in the examination in chief of Mr Courtot. But it was not so.

(1) It took the Plaintiff 3 weeks since Professor Wu’s supplemental report to indicate to the Defendant that it was Mr Courtot who edited the Diagram, accompanied by further documents disclosed for the first time.

(2) It was misleading to suggest that Courtot-3SWS merely sought to address a new allegation against Mr Siedl as if the issue only surfaced in Professor Wu’s recent supplemental report. The relevant issue was the “buckling issue”, a topic addressed by Professor Wu 5 years ago in his 1^st report dated 8 December 2017. Professor Wu did his buckling analysis based on the working profile of the boom between 55° and 75° by reference to a diagram taken directly from the O&M Manual provided by the Plaintiff to the Fire Services Department (“FSD”). Mr Siedl already addressed this issue in his 1^st Report by stating that “the used worst-case scenario with an operation angle of 55° and extended booms by Professor Wu is wrong. This scenario does not exist. The correspondence results for strength and buckling analyses are therefore wrong as well” (“Mr Seidl’s Observation”).

(3) As pointed out by Mr Lui, counsel for the Defendant, both in his 1^st Report and the Joint Report Mr Siedl had not given meaningful elaboration, had not mentioned factual instructions from the Plaintiff and had not referred to primary documentation in making Mr Seidl’s Observation. Courtot-3SWS purported to state that Mr Courtot had produced some documents to the FSD which FSD denied ever seeing.

(4) At the PTR, the Plaintiff obtained leave to file Mr Siedl’s supplemental report. The Defendant amicably did not oppose it. It was then already 3 years after the Joint Report. In his supplemental report dated 18 August 2022 filed after the PTR, Mr Siedl for the first time produced a working profile of the boom to explain Mr Siedl’s Observation. The Court gave leave to the Defendant to file expert evidence in reply. It was under that scenario that Professor Wu came to know the basis of Mr Siedl’s Observation and made the comment that the working profile of the boom was never included in the original or revised versions of the O&M Manual provided by the Plaintiff to the FSD in 2009 and 2010 respectively and that the Diagram had been edited.

14.  Mr Houghton SC (and Mr Yang-Wahn Hew), counsel for the Plaintiff, submitted that this was a factual matter which it was not open to Professor Wu to deal with. I am unable to agree with Mr Houghton. That the Diagram had been edited was not in dispute. Whether it was Mr Siedl or Mr Courtot who had edited it, what Professor Wu did was to point out the purportedly new and “misleading” basis of Mr Siedl’s Observation. The Plaintiff only has itself to blame if they and/or their expert had not made clear the factual bases of an expert opinion years ago when they had the opportunity to do so.

15.  From the reasons given, it could be seen that the Plaintiff’s present application as regards Professor Wu’s alleged accusation was made on exaggerated bases. They made use of this summons to yet make another attempt to adduce further documents at the eleventh hour.

16.  In respect of the 2^nd aspect of Courtot-3SWS, the relevant issue was the risk of overturning. That was an issue for experts which Mr Fuhrmann had first addressed 5 years ago when his 1^st Report was provided to the Plaintiff in December 2017. He stated, amongst others, that “no risk assessment could be obtained from the manufacturer to evaluate the necessary measurements against this risk. No appropriate device indicating the loading weight to the operator.” The Plaintiff was the manufacturer. Mr Courtot has been handling this action on behalf of the Plaintiff for 11 years by now. And yet it was only in Courtot-3SWS that Mr Courtot sought to explain factual matters relating to Mr Fuhrmann’s report.

17.  In respect of the 3^rd aspect of Courtot-3SWS, I agree with Mr Lui. Mr Courtot’s denial of an allegation would not have warranted leave to file further supplemental witness statement or evidence from the Plaintiff.

18.  In my view, the delay in application was simply inordinate and inexcusable. On this ground alone, the summons should be dismissed.

Prejudice to the Defendant

19.  Despite the pressure on time, the Defendant promptly filed Professor Wu and Mr Fuhrmann’s supplemental reports on the due date on 10 October 2022.

20.  It took the Plaintiff 17 days thereafter, up to 28 October 2022, to give voluminous documents to the Defendant without explanation as to their relevance.

21.  It took a total of 21 days, up to 1 November 2022, for the Plaintiff to first send the draft Mr Courtot-3SWS to the Defendant. While the Plaintiff took 3 weeks to prepare Courtot-3SWS, they gave the Defendant only one working day to respond!

22.  The Defendant wrote to the Court to put the Court on notice of the Plaintiff’s conduct. The Court, in a reply letter, stated “no leave, no new evidence”. It was then, on 9 November, 2 clear days before this trial was to start, that the Plaintiff took out the present summons for leave to file and serve Courtot-3SWS and to file a 2^nd supplementary list of documents.

23.  The affirmation of Mr Courtot in support of the summons was filed a day later, on 10 November, giving one working day for the Defendant’s consideration before the trial was to start.

24.  Worse still, the Court was not given a copy of the affirmation of Mr Courtot until Mr Houghton tried to take the Court through that affirmation on the first day of trial.

25.  This Court had commented in §13 of the Decision that the parties’ attention should be focussed on preparation of the trial. The Plaintiff breached the PTR directions in being late in the service of the Plaintiff’s opening submission and late provision of the draft list of issues, chronology and agreed facts which were supposed to be agreed before service of the Plaintiff’s opening submission. On top of pressure of time created by the Plaintiff’s own failings, the Defendant had also to face the present summons. The prejudice caused to the Defendant arising from this Summon was just too apparent.

26.  Further, it was also apparent that if the Court were to give leave to adduce Courtot-3SWS, the Defendant had to respond to the factual allegations. It was no answer for the Plaintiff to say that it had the last word when they raised new evidence. The Defendant had, indeed, made preliminary enquiries and was of the view that 4-5 more witnesses might be required and there might be a need for further discovery or expert evidence. Even Mr Courtot, in the last paragraph of his affirmation, anticipated that the Defendant might have to do a further inspection of the fire fighting equipment.

27.  Mr Houghton suggested that there were different ways to tackle the problem, eg by adjourning for a few days, or adjourning part of Mr Courtot’s evidence to wait for the Defendant’s further evidence. In his submission in reply, he even suggested excising 2 aspects of Courtot-3SWS (§§6 (2) and (3) above).

28.  As Mr Lui anticipated in his written submission, the Defendant would not exclude the possibility that it was only another tactic to disrupt the trial and the Plaintiff might simply abandon Courtot-3SWS later and proceed with trial. That anticipation turned out to be true in part in view of the preceding paragraph.

29.  To suggest that a long trial should be adjourned for a few days was, without disrespect, ridiculous. It is wholly unfair on litigants who have legitimate cause to demand for trial dates, if not early trial dates. The Court should not waste its trial dates on litigants like the Plaintiff who did not prepare themselves in good time.

30.  Further, without knowing the evidence of the further witnesses to be called on behalf of the Defendant, defence counsel would be put in a difficult position when cross-examining Mr Courtot or the Plaintiff’s expert. It may also put the Defendant at risk of being challenged for change of case, inconsistency in evidence etc, when in fact the Defendant simply did not have sufficient time to gather evidence from the further witnesses. Therefore, to suggest adjourning part of Mr Courtot’s evidence was out of the question.

31.  The prejudice to the Defendant due to late admission of Courtot-3SWS and the new discovery was gross and inexcusable.

Conclusion

32.  For all the reasons given I therefore dismissed the Plaintiff’s summons. I will hear the parties on costs.