CHEUNG YEE MONG, EDMOND v. SO KWOK YAN, BERNARD AND ANOTHER

IN THE COURT OF APPEAL

1995, No. 243
(Civil)

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J U D G M E N T

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Godfrey, J.A.:

1. This is an interlocutory appeal, against an order made by Cheung, J. on 14 November 1995 on a pre-trial review, giving directions for the future conduct of the action. The giving of such directions is a matter of case management peculiarly within the province of the judge of first instance. This court will not review decisions of a judge of first instance on matters of case management unless it is satisfied that the judge's decision was plainly wrong. Only then it is the duty of this court to interfere with it, and only then is this court entitled to substitute its own view as to what is reasonable for that of the judge. The judge's decision must fall outside the ambit of possible reasonable decisions before this court will interfere with it. What we have to consider in the instant case is whether, in the respect in which it is challenged, this order did fall outside the ambit of possible reasonable decisions.

2. The action is an action for damages for personal injuries. The plaintiff is a young boy who suffered an injury at school as long ago as 16 April 1991. He is now living in Canada.

3. On 23 June 1994 (by which time the action should have been long since tried), a re-amended statement of claim was filed on behalf of the plaintiff, claiming, for the first time, that as a result of the physical injuries which the plaintiff had suffered, he had developed a delusional paranoid disorder of a persecutory type. Some months later, particulars of this allegation were sought and given and in April 1995, the defendants asked for a psychiatric examination of the plaintiff. In May 1995, it was suggested that the psychiatrist might examine the plaintiff in Canada.

4. On 11 September 1995, a defence, dealing with the allegation of psychological injury, was put in on behalf of the defence. This was one day before the date of the first pre-trial review, which came before Cheung, J. on 12 September 1995.

5. At this first pre-trial review, the judge gave 45 days for the psychiatrist's report to be produced.

6. On 14 November 1995, at a second pre-trial review, a preliminary report by the psychiatrist, Dr. William Green, had been produced, but Dr. Green had not yet examined the plaintiff in Canada. It transpired that he was available to go to Canada only in the latter part of December. The judge, however, was not prepared to accommodate Dr. Green, and ordered the report to be produced within 30 days. This is the order to which objection is made.

7. The consequence of the judge's order was that the defence would have to go to another psychiatrist who was prepared to go to Canada, and make his report, within the 30 days given for the purpose by the trial judge.

8. The order of the judge dealt with other matters as well. It provided that the case should be set down within 42 days, with an estimated length of trial of 8 days; and for the trial to commence on 13 March 1996. Leave was given to the plaintiff to file and serve actuarial and economists' reports, if any, on or before 30 December 1995, and for the defence to file similar reports on or before 17 February 1996. Leave was given to the plaintiff to file and serve psychiatric reports within 30 days of receipt of the defence's reports. A further pre-trial review was set for 1 March 1996.

9. The judge's reasons for his decision are before this court. He related the background, to which I have referred, and he said this:

"The accident occurred in April 1991. The need to examine the infant was apparent a long time ago. Time was already granted to the 1st Defendant to adduce the psychiatric report. Dr Green was not the only psychiatrist available and I was not prepared to accommodate Dr Green. I ordered the report to be produced in 30 days."

10. I am bound to say that, as it seems to me, those reasons do not justify the decision to which the judge came. What appears to have prompted the judge's decision was really this, that he was exasperated by the delays in the case; he was clearly aware of the need to control the litigation; and he clearly felt that unless he did something to accelerate the process of producing the psychiatric evidence, there would be yet a further delay in the hearing of the plaintiff's case. A judge's exasperation may be quite understandable. It does not, in my judgment, amount to a good reason for making what would otherwise be an unjust decision. This was, I have no doubt, an unjust decision.

11. What the judge decided to do will waste time, and not save it. It may indeed lead to a delay of the hearing. The claim was a very substantial claim; for many millions of dollars, because the injuries to the plaintiff were very serious. What the defence was asking the judge to do was to give it 11 further days for the preparation and filing of the psychiatric evidence, not for any reason attributable to the plaintiff, or his legal advisers, but simply because Dr. Green was unable to produce the report in the time available. Dr. Green was the defence's choice; he is a distinguished and well-known psychiatrist. The defence does not wish to be deprived of his services and to be made to go to somebody else.

12. The trial is set for 13 March 1996. The result of the judge's decision will be to cause serious prejudice to the defence and possibly a denial of justice. If the trial takes place on the date fixed it will not be a fair trial, because the defence will have been deprived of the benefit of the evidence of the expert of its choice though no fault of its own.

13. Taking all these matters together, I am satisfied that the judge's decision did fall outside the ambit of possible reasonable decisions. Given all the circumstances to which I have referred, the only reasonable decision would have been, to have allowed the short extension of time for which the defence had asked to put in its psychiatric evidence.

14. There is no suggestion that it will prejudice the plaintiff if this court were to allow this appeal. Certainly, there will be no prejudice if the judge's order is amended in relation to the leave given to the plaintiff to file and serve his psychiatric evidence in reply to the defence's evidence. It will be recalled that the plaintiff had been given leave to file and serve psychiatric reports in reply within 30 days in receipt of the defendant's reports. It has been suggested in this court that, instead, leave should be given to the plaintiff to file and serve his psychiatric evidence before commencement of the trial, and to use his best endeavours to do so before, say, 8 March 1996. That would give the defence all the time it is justified in asking for, in the circumstances, before the trial, to consider the plaintiff's evidence.

15. Accordingly, I would, for my part, allow this appeal. I would provide in substitution for the judge's order that the defence file and serve its psychiatric evidence not later than 26 February 1996 (which is the date for which it has asked). This will enable Dr. Green to visit Canada, and to produce his report, by the date stated. I would also modify, in the way I have suggested, the directions given in relation to the plaintiff's psychiatric evidence in reply. In my judgment, this will do justice and will enable the trial to take place on the date already fixed without prejudice to either side. There is to be a further pre-trial review on 1 March 1996. No doubt the judge will review the progress of the case in the light of this judgment. It is sincerely to be hoped that both parties will now see the importance of getting on with the case and complying with the directions of the judge given on the pre-trial review, as modified by this court, and will ensure that the trial comes before the court on 13 March 1996, with the case being then fought on a level playing field.

Liu, J.A.:

16. I, too, would allow this appeal and agree that the order as proposed by my Lord Mr Justice Godfrey be made. Before the judge, there was no suggestion that the 11 extra days applied for would have delayed the trial fixed for 13 March 1996. There is now every likelihood that the indulgence sought would not abort the scheduled trial.

Bokhary, J.A.:

17. In this instance, we reverse an order made by a judge in the course of case management. That is a very rare thing, and for good reason. Case management is pre-eminently within the province of the trial judge. And it is only in wholly exceptional circumstances that we will interfere.

18. For the reasons given by my brothers Godfrey and Liu, there clearly are wholly exceptional circumstances here.

19. If it had been necessary, the judge would have been fully justified in making an order which had the effect of requiring the defendants to find another psychiatrist. But it was not necessary in this case to do that. Indeed, even at this stage, we have managed to achieve an order which keeps the trial dates and at the same time ensures that the trial will be a balanced one in terms of psychiatric evidence on each side.

20. I add all of that simply because it cannot be too strongly emphasised to the legal profession that it is in wholly exceptional circumstances only - and therefore in rare cases only - that orders made by a judge in the course of case management will be interfered with on appeal.

21. The result is that the appeal is allowed; and the order of this Court is as indicated by my brother Godfrey in the course of his judgment. It remains only to hear counsel on the question of costs.

[Argument on costs]

Bokhary, J.A.:

22. The costs of the appeal will be costs in the cause.