Tao, Soh Ngun v. Hsbc International Trustee Ltd

HCA 3246/2016 & HCA 355/2018

[2018] HKCFI 2543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3246 OF 2016 & 355 OF 2018

________________________

________________________

________________________

D E C I S I O N

________________________

A. INTRODUCTION

1.By summonses dated 18 October 2018(“P’s Summonses”), the plaintiff applies for leave to adduce expert evidence on the corporate finance issues set out in Annex 1 thereto (the “P’s Expert Issues”).

2.The plaintiff’s Summonses were issued in accordance with the directions given by this court by orders dated 10 October 2018, and consequent upon the parties’ failure to agree upon the question of expert evidence. 

3.Having considered counsel’s submissions, I would dismiss P’s Summonses for the following outline reasons: –

(1)   First, there has been very serious and unjustified delay on the part of the plaintiff in applying to adduce expert evidence.  The plaintiff could and should have sought to adduce expert evidence on the proposed issues which she has now put forward well in advance of the commencement of the trial on 29 May 2018;

(2)   Second, the proposed introduction of expert evidence will cause significant disruption to the milestone trial timetable and serious prejudice to the defendant; and

(3)   Third, some of the plaintiff’s proposed expert issues are in any event not properly the subject of expert evidence or are unclear as to their scope and extent and/or are not connected with the pleaded issues in this case.

4.Full reasons for my decision are set out hereinbelow.

B.   THE RELEVANT LEGAL PRINCIPLES

B1.   Principles on Late Applications

5.It is obviously relevant in considering the plaintiff’s applications to bear in mind the following general principles regarding late applications:

(1)   Since the Civil Justice Reform, late applications are frowned upon and have a high threshold to pass.  They can be dismissed on the basis of lateness alone: Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corporation (HCAL 12 & 13/2009, A Cheung J (as he then was), 21.09.09), paragraph 2; Practice Direction 5.2, paragraph 34.

(2)   A late application should be accompanied by a full and frank account for its lateness, as the court would not grant any indulgence (even on terms as to costs) without a satisfactory explanation from the applicant: Allan Chan v Susana Ho (CACV 393/2004, Ma CJHC (as he then was), 10.01.05), paragraph 9(4); Chok Yick Interior Design & Engineering Co Ltd v Lau Chi Lun (HCA 1480/2008, Lam J (as he then was), 5.05.10), paragraph 28; Wise Union, supra, paragraphs 4 & 5; DBS Bank v Sit Pan Jit (HCA 382/2009, DHCJ Marlene Ng, 6.02.14), paragraph 19.

(3)   A trial date is a milestone date which, pursuant to Order 25, rule 1B of the Rules of the High Court, cannot be varied unless there are exceptional circumstances to justify the variation.  If an application raised shortly before trial will jeopardise the scheduled trial dates, it is most unlikely that it will be allowed: DBS v Sit, supra, paragraph 26.

(4)   The court in assessing late applications should take into account the fact that such applications disrupt the innocent party’s trial preparation by diverting away attention and requiring expenditure of time and costs on the applications and the new matters arising therefrom, which is in itself a form of prejudice: Star Industrial Co Ltd v Japan Home Centre (HK) Ltd (HCA 2294/2008, DHCJ Carlson, 21.12.10), paragraph 2; Li Xiao Yun v China Gas Holdings Ltd (CACV 38/2013, Lam JA (as he then was), 11.03.13), paragraph 18; Chun Wo Building Construction Ltd v Metta Resources Ltd (HCCT 29/2013, Anthony Chan J, 22.03.16), paragraphs 2, 49.

B2.   Principles on Applications for Leave to Adduce Expert Evidence

6.Regarding applications for leave to adduce expert evidence: –

(1)   The basic criteria are that the proposed evidence has to be admissible and relevant in the sense of being (a) in a recognised discipline, (b) reasonably required to enable the court to resolve the issues in dispute and (c) proportionate:Kam Hing Trading (HK) Ltd v The People’s Insurance Company of China (HK) Ltd (HCA 1062/2008, Madam Registrar Au-Yeung (as she then was), 27.07.09), paragraph 2; Fung Chun Man v Hospital Authority (HCPI 1113/2006, Bharwaney J, 24.06.11), paragraph 15.

(2)   The court’s discretion in deciding whether to grant leave to a party to adduce expert evidence is to be exercised within the ambit of its case management powers.  Therefore, even if a prima facie case is made out for the admission of expert evidence, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a late application is made for expert evidence to be adduced: Fung Chun Man, supra, paragraphs 9, 16.

(3)   Expert directions should be sought as early as possible.  The applying party should (a) identify the proposed expert by name and field, (b) identify the issues to which the expert evidence will relate, and (c) consider the appropriateness of appointing a single joint expert: Kam Hing Trading, supra, paragraphs 4-9;Practice Direction 5.2, paragraph 20.

(4)   Expert directions should be fully complied with before a case is set down for trial.  That is to enable the length of the trial to be fixed with reference to what really needs to be tried in terms of the expert evidence as distilled and identified in the experts’ joint report setting out their areas of agreements and disagreements and the reasons therefor: Chok Yick Interior Design, supra, paragraph 10; Belinda Wong v Smart Team International Investment Ltd [2011] 3 HKC 322, paragraphs 50-52.

(5)   If new expert evidence sought to be adduced at a late stage could derail the trial dates or prolong the trial beyond the time allocated for the case, the court may refuse leave, even if that means that the applicant would have great difficulties in establishing his case: Chok Yick Interior Design, supra, paragraph 32; Fung Chun Man, supra, paragraphs 42-43, 45; Wong Sui Yeung v Chiu Kwong Wing [2005] 3 HKLRD 495, paragraph 26.

(6)   Where a party deliberately withholds an application to adduce expert evidence for strategic reasons or otherwise, the Court may regard such party as having chosen to take the risk that it would be too late by the time it eventually decides to make the application: Chok Yick Interior Design, supra, paragraphs 31, 48.

C.   SERIOUS AND UNJUSTIFIED DELAY

C1.   Relevant Procedural History

7.The following procedural background of these proceedings is relevant to P’s Summonses: –

(1)   On 9 December 2016, the plaintiff commenced HCA 3246/2016 and filed her initial Statement of Claim on 20 December 2016.  The defendant filed its Defence on 5 April 2017.

(2)   On 18 July 2017, the plaintiff filed her Amended Statement of Claim and Reply. 

(3)   On 8 November 2017, the plaintiff’s solicitors wrote to the defendant’s solicitors to indicate that the plaintiff intended to adduce expert evidence on quantum, ie for the purpose of assessing damages and/or equitable compensation in respect of the defendant’s alleged breaches of trust – there was no suggestion that expert evidence would be required on the question of liability.  This court ordered a split trial on liability and quantum on 8 February 2018.

(4)   On 9 February 2018, the plaintiff commenced HCA 355/2018 to raise additional claims against the defendant, and the two actions were ordered to be tried together.  The original deadline for interlocutory applications in HCA 3246/2016 was 18 September 2017.  It was subsequently extended to 2 February 2018, and then again to 14 February 2018.

(5)   Apart from the aforesaid occasion in late 2017 when the plaintiff indicated that she intended to adduce expert evidence on quantum, the plaintiff did not at any point in time prior to the making of the present applications (in October 2018) suggest that expert evidence was necessary.  In particular, at the two Pre-trial Reviews held on 26 February 2018 and 3 April 2018, there was no mention of the topic of expert evidence.

(6)   On 29 May 2018, the trial commenced.

(7)   On 1 June 2018, this court allowed the plaintiff to further amend her pleadings on the basis that the proposed amendments involved matters which were already pleaded and in issue between the parties (“Amendment Orders”), with oral reasons (the “Oral Reasons”).

(8)   On 6 June 2018, the defendant filed its Re-Re-Amended Defence in HCA 3246/2016 and Amended Defence in HCA 355/2018 with consequential amendments in response to the plaintiff’s amendments allowed by the Amendment Orders.

(9)   On 15 June 2018 (ie the last day of the first tranche of the trial dates after which the trial was adjourned part-heard), the plaintiff produced her proposed Re-Re-Re-Amended Reply in HCA 3246/2016 and Re-Amended Reply in HCA 355/2018.  This court also gave directions inter alia that if any party wished to adduce expert evidence consequential upon the recent amendments to the parties’ pleadings, an application shall be made on or before 10 August 2018.

(10)   On 27 July 2018, the defendant issued applications to strike out various amendments in the plaintiff’s Re-Re-Re-Amended Reply and Re-Amended Reply on the basis that they were not properly consequential and constituted a departure from the plaintiff’s original claims.  On 7 September 2018, this Court granted the defendant’s applications (“Strike Out Orders”).

(11)   Also on 7 September 2018, this court gave further directions inter alia that any application to adduce expert evidence shall be made on or before 5 October 2018.

(12)   On 28 September 2018, the plaintiff issued applications for extension of time to apply to adduce expert evidence on the purported basis that such extension was required in view of the then pending Court of Appeal proceedings issued by the parties.

(13)   On 8 October 2018, the Court of Appeal heard and determined CAMP 135, 136, 139 & 140/2018 which involved the plaintiff and the defendant’s respective applications for leave to appeal against the Amendment Orders and the Strike Out Orders.  Neither party was successful in substantially overturning this court’s rulings.

(14)   On 10 October 2018, this court gave further directions inter alia that the parties shall exchange any list of proposed expert issues on 16 October 2018, and if no agreement can be reached thereon, an application shall be made to the court for directions on 18 October 2018.

(15)   On 16 October 2018, the plaintiff provided the defendant with her proposed list of expert issues.  The defendant indicated that it is not agreeable to the plaintiff’s proposal to adduce such expert evidence at this late stage of the proceedings.

(16)   On 18 October 2018, the plaintiff issued the present summonses for leave to adduce expert evidence and for expert directions.

(17)   The trial has resumed on 8 November 2018.  The trial dates fixed in this month are 8, 14-16, 26-27 and 30 November 2018.  The defendant, whose first witness had completed her evidence before the trial was adjourned part-heard, has written to the plaintiff to indicate that it would call Ms Paulina Lau as its next witness.

C2.   The Plaintiff Should Have Sought to Adduce Expert Evidence Well Before the Commencement of the Trial

8.I agree with the defendant that the present applications for leave to adduce expert evidence are far too late and wholly unjustified.  As discussed in Section B2 above, applications for leave to adduce expert evidence should be made as soon as possible, and in the normal course of things they are made well in advance of the setting down of a case for trial so that the court could review the parties’ compliance with the expert directions given before fixing the trial date and period.  The present case is obviously a far cry from that normal standard.  Whilst one may legitimately expect procedural steps to be relatively more compressed in proceedings such as the present where an expedited trial had been ordered, the plaintiff’s present applications are still extraordinarily and unjustifiably late.  That is because it is clear from the procedural history of the case that the plaintiff could and should have sought to adduce expert evidence on the proposed issues which she has now put forward at a much earlier stage and well in advance of the commencement of the trial. 

9.P’s Expert Issuesare as follows:

“1. On the various dates which are material to these proceedings, did the shares held directly or indirectly by the Lo Family Trust (the “Trust”) in Great Eagle Holdings Limited (the “Company”) constitute either (i) a controlling shareholding and/or (ii) the single largest shareholding in the Company. If so, was such position under threat by reason of the increased shareholding (both direct and indirect) of Lo Ka Shui (“KS Lo”) in the Company on the said dates and/or by reason of the fact that the Defendant did not acquire more shares in the Company pursuant to the instructions/requests of the Plaintiff. [“Issue 1”]

2.   Whether the block of shares in the Company held directly and indirectly by the Trust has a premium value over and above the aggregate of the price per share quoted at a given time on the Hong Kong Stock Exchange by reason of its being either the single largest block or (if it is the case) the controlling shareholding in the Company.  If so, was the premium value put at risk or reduced by reason of KS Lo’s increased shareholding (both direct and indirect) in the Company, on the said dates and/or by reason of the fact that the Defendant did not acquire more shares in the Company pursuant to the instructions/requests of the Plaintiff. [“Issue 2”]

3.   What is the applicability and effect of the provisions of the Takeovers Code and Listing Rules 14.41 and 14.45 on (i) the issue in paragraph 1 above, and (ii) the ability of the Trust and KS Lo to purchase further shares in the Company in 2016 to 2018. [“Issue 3”]

4. If the answer to paragraph 3(ii) above is in the affirmative and in the event that the Trust or KS Lo (as the case may be) is required to make a general offer to the shareholders of the Company to purchase their shares, whether it would be possible for the Trust or KS Lo (as the case may be) to raise finance to make such an offer. [“Issue 4”]”

10.Broadly speaking, P’s Expert Issues touch upon various aspects of the plaintiff’s allegations that (i) the Trust had a “controlling shareholding” in the Company, (ii) with a “premium value”, and that (iii) such position and value were under threat or at risk of being reduced as a result of KS Lo’s increased shareholding and the defendant’s refusal to acquire more shares at the plaintiff’s request (the “Disputed Issues”).

11.I agree that the plaintiff plainly could and should have sought to adduce expert evidence in respect of such allegations well before the commencement of the trial rather than at this late stage of the proceedings: –

(1)   As recounted above, the plaintiff filed her Amended Statement of Claim and Reply in HCA 3246/2016 on 18 July 2017.  These pleadings contained the various passages on which the plaintiff consistently relied – for example, in her submissions in support of the proposed amendments which were eventually allowed by the Amendment Orders, and to oppose KS Lo’s application to be joined as a party to these proceedings on the ground of lateness – to suggest that she had long raised the case that the Trust had a “controlling shareholding” in the Company with a “premium value”, and that such position and value were under threat or at risk of being reduced as a result of KS Lo’s increased shareholding and the defendant’s refusal to acquire more shares at the plaintiff’s request. 

(2)   This court accepted the plaintiff’s submissions on both of the aforesaid occasions: the Amendment Orders were made on the basis that the amendments involved matters which were already pleaded and in issue between the parties, and KS Lo’s joinder application was rejected on the basis that he failed to provide any satisfactory explanation for the delay in making the application because the Amendment Orders did not raise any new issue as between the parties to the actions. 

(3)   At paragraph 8 of the Oral Reasons, I specifically held that the “material facts in question have already been pleaded by the plaintiff, and dealt with by the parties in their respective evidence if thought fit.  There is and can be no element of surprise or prejudice”.  In other words, the plaintiff must be taken to have already put in whatever evidence, factual or otherwise, she felt adequate to establish her case.

(4)   In view of the above, there is no doubt that since the date of the plaintiff’s formulation of her case in the Amended Statement of Claim and Reply filed in HCA 3246/2016 on 18 July 2017, the plaintiff must have known that she had raised and was obliged to prove at trial (as long as there was no admission or deemed admission thereto and there was none) her allegations that the Trust had a “controlling shareholding” in the Company with a “premium value”, and that such position and value were under threat or at risk of being reduced as a result of KS Lo’s increased shareholding and the defendant’s refusal to acquire more shares at the plaintiff’s request. 

(5)   Indeed, in his oral opening submissions, counsel for the plaintiff has always recognised that he needed to establish the plaintiff’s case on the Disputed Issues, and not that they stood admitted in the defendant’s Defence.

(6)   Despite that, the plaintiff never suggested prior to the commencement of the trial that she would require expert evidence to support her claims.  In fact, it was expressly argued in the plaintiff’s opening submissions that the Trust’s “controlling shareholding” and its “premium value” are matters provable with reference to “common sense” and “common knowledge”.  I agree this clearly demonstrates that the plaintiff had consciously taken the position that she did not need to rely on any expert opinion to prove her case.

(7)   It is therefore clear that the plaintiff could have sought to adduce expert evidence in respect of the Disputed Issues well before the commencement of the trial, but she had chosen not to do so.  In such circumstances, it is not open to the plaintiff to change her stance now and seek to adduce expert evidence, particularly at this extremely late stage of the trial when the plaintiff has already closed her case and the defendant has started leading evidence from its witnesses.

12.Insofar as the plaintiff argues that the need to adduce expert evidence only arose as a result of the defendant’s consequential amendments made in the Re-Re-Amended Defence in HCA 3246/2016 and Amended Defence in HCA 355/2018 (both filed on 6 June 2018), I agree with the defendant that this is plainly wrong: –

(1)   As mentioned above, the plaintiff has at all times been obliged to prove at trial her own allegations as to the Trust’s “controlling shareholding” in the Company and its “premium value”, and how they were purportedly put at risk by KS Lo’s increased shareholding and the defendant’s refusal to purchase more shares at the plaintiff’s request.  The defendant never pleaded any admission to such allegations, and it was up to the plaintiff to decide what evidence she would put forward to make out her case at trial.

(2)   Further, I agree that the amendments introduced by the defendant in the Re-Re-Amended Defence and Amended Defence (see paragraph 102(2)(d)) consisted of simple denials of the Trust having a “controlling shareholding” in the Company and of the alleged jeopardy to such shareholding and its value.  They clearly do not raise any new issue beyond matters which the plaintiff was already obliged to prove for the purpose of establishing her case in the first place.

(3)   It is therefore not correct for the plaintiff to seek to cast the blame on the defendant for the lateness of her present applications with reference to the amendments in the Re-Re-Amended Defence and the Amended Defence. 

13.Similarly, I agree it is plainly wrong for the plaintiff to rely on the defendant’s Opening Submissions and/or cross-examination of Mr YS Lo to suggest that expert evidence is now required to deal with issues in connection with the Takeovers Code: –

(1)   Mere reference to provisions of the Takeovers Code in a party’s submissions cannot in itself justify the need to introduce expert evidence.  In fact, it was the plaintiff who had first referred to the Takeovers Code in her Opening Submissions (for example, paragraphs 2, 204(5)-(6)), and if the plaintiff had thought that the application of the Takeovers Code ought to be addressed by expert evidence, she ought to have applied to adduce such evidence before trial. 

(2)   As for Mr YS Lo’s testimony, it is not correct to suggest that a matter explored with a factual witness in cross-examination and re-examination gives rise to justification for a party to make belated applications for leave to adduce expert evidence in the middle of the trial.  Again, if the plaintiff had thought that the application of the Takeovers Code in this case warrants expert evidence, it is a matter which she could and should have dealt with well before the commencement of the trial.  

14.Insofar as the plaintiff seeks to justify the lateness of her present applications with reference to the defendant’s filing of KS Lo’s Supplemental Witness Statement which was allowed by the court on 10 October 2018, this is also wholly unwarranted: –

(1)   In granting leave to the defendant to file KS Lo’s Supplemental Witness Statement, the court expressly ruled that the witness statement only contained factual evidence and does not pertain to any opinion or matters constituting expert evidence. 

(2)   Further, as correctly pointed out by the defendant, the matters raised in KS Lo’s Supplemental Witness Statement relied on by the plaintiff in her Skeleton Submissions are not new, they have been foreshadowed in his first Witness Statement filed on 12 January 2018.  Moreover, they go to KS Lo’s views and approach which are factual matters which do not warrant a response in the form of the plaintiff’s proposed expert evidence.

15.In view of all the above, I agree with the defendant that the plaintiff has not provided any good reason for the extreme lateness of her present applications to adduce expert evidence.  Bearing in mind the principles set out in the authorities discussed in Section B above, P’s Summonses should be dismissed on the basis of lateness alone.

D.   PROPOSED EXPERT ISSUES PROBLEMATIC & INVOLVING FURTHER FACTUAL INQUIRY

16.Another valid objection to the plaintiff’s applications is that P’s Expert Issues are problematic in several respects and will undoubtedly involve further factual inquiries needing to be made.

17.First, Issue 1 involves aspects which are clearly factual in nature.  The question asks whether the Trust’s shareholding in the Company constitutes a controlling shareholding “and/or (ii) the single largest shareholding in the Company”.  Whether the Trust’s shareholding is the single largest shareholding in the Company at any particular point in time is clearly a matter of fact which does not require expert evidence.  Putting that on one side, the apparent central thrust of Issue 1 is problematic because it goes on to ask whether the Trust’s position as single largest shareholder of the Company was under threat by reason of KS Lo’s increased shareholding and the defendant’s refusal to acquire more shares at the plaintiff’s request.  This appears to involve intermingled questions of pure fact with questions which, depending on those facts, might properly be the subject of expert opinion.  But whether or not the Trust’s position as single largest shareholder of the Company has been affected is not a question purely or properly for expert evidence.  If the expert evidence is to be allowed it is clear that further factual inquiries will be required.  Some factual matters raised by the plaintiff’s expert report will be for expert(s) to be engaged by the defendant in response, but other raise issues for witnesses of fact, as set out in section E of the “Summary of D’s Submissions in Answer”.

18.Secondly, I agree that Issue 4 is on its face extremely wide and open-ended.  It puts into question the possibility or likelihood of the Trust and KS Lo being able to raise finance to make a general offer to the shareholders of the Company to purchase their shares.  In order for an expert – who probably has to be someone specifically experienced in loan financing rather than simply “in the field of corporate finance” – to properly opine of such issue, there would have to be extensive investigation and analysis of an array of factual matters, including, for example, the Trust, KS Lo and the Company’s financial positions, the state of the funding market and comparable transactions at the material times, and so on.  This will be a massive exercise.

19.Further, I agree with the point made by counsel for the defendant in his oral submissions (and summarised in section D of the “Summary of D’s Submissions in Answer”) that some of P’s Expert Issues are not connected with the pleaded issues in this case, and thus would not assist the court in resolving the issues in dispute between the parties.

E.   SERIOUS DISRUPTION TO TRIAL AND PREJUDICE

E1.   Late Applications Already Caused Distraction and Prejudice

20.As submitted by the defendant, the plaintiff’s belated applications to adduce expert evidence have already caused substantial prejudice to the defendant by distracting it from its preparations for the resumption of the trial on 8 November 2018.

21.As explained in the 2^nd Affirmation of Leung Sze Ning, the defendant has not definitively identified or instructed any expert for the purpose of these proceedings.  The defendant has in the context of HCA 404/2018 commenced by Mr Lu Lo made preliminary contact with some potential experts in preparation for the possibility of having to consider certain expert issues in that case (but the defendant has not definitively identified or instructed any expert in that case either, and in fact, the progress of that case, including the consideration of possible expert issues, is still at a very preliminary stage). 

22.As a result of the plaintiff’s applications to adduce expert evidence in these proceedings, the defendant has provided P’s Expert Issues to its potential experts for initial consideration with a view to ascertaining whether they are competent to deal with the proposed issues, what materials they would require for the purpose of dealing with them, and an estimate of the time which will be required for investigation as to such materials and for preparation of the expert report(s) in relation to the issues.  However, the defendant has not to date been able to obtain any clear answer from the potential experts. 

E2.   Disruption to Milestone Trial Timetable

23.If the plaintiff is granted leave to adduce expert evidence, the defendant must be given sufficient time and opportunity to properly consider and prepare its expert evidence in response: –

(1)   The extremely tight timetable proposed in the plaintiff’s summonsesis plainly unrealistic, given that the defendant has not even definitively identified or instructed any expert (and bearing in mind that more than one expert might be required for the purpose of dealing with P’s Expert Issues).

(2)   After the defendant has identified its expert(s), the expert(s) would have to seek factual input from the defendant as well as conduct their own investigations to collate relevant information and materials before turning to prepare expert report(s) to express their opinion on the issues in question.

(3)   In the context of HCA 404/2018, Mr Lu Lo has recently indicated in a Timetabling Questionnaire dated 19 October 2018 that he intends to apply for leave to adduce expert evidence on or before 31 January 2019, and estimated that 56 days from the exchange of factual witness statements would be required to complete the expert evidence in those proceedings.  A period of at least three months (allowing within it for service of any further factual evidence and production of documentary material which may be relevant to the expert issues – see below) would need to be allowed in this case.

(4)   It also remains unclear what other procedural steps the defendant would have to take if the plaintiff is allowed to adduce expert evidence.  The defendant would potentially have to seek and/or provide further discovery, adduce additional factual evidence (from existing witnesses and/or persons who are not currently intended witnesses), as well as recall the plaintiff’s factual witnesses for cross-examination. 

(5)   As correctly pointed out by the defendant, in her application for a split trial, the plaintiff suggested (in January 2018) that the then available time until the commencement of the trial (ie 4½ months) was “very tight” to deal with the directions for the expert evidence for issues of quantum (including the exchange of expert reports, joint meeting of experts and exchange of joint report/supplemental reports). The time between now and the last scheduled date of the trial (29 March 2019) is also around 4½ months and it is utterly unrealistic for the plaintiff to suggest that the exercise regarding expert evidence can be entirely completed within 24 days of the making of the court’s directions on expert evidence.

24.In the premises, I agree the plaintiff’s applications if allowed would have the following significant ramifications on the progress of the trial of these actions: –

(1)   The defendant should not be required to continue calling its factual witnesses prior to the filing of expert evidence in accordance with the expert directions given.  As the state of the expert evidence remains unclear, there is significant uncertainty as to the additional factual evidence which the defendant would wish to elicit from its factual witnesses in support of its case.  The defendant’s next witness who is scheduled to testify is Ms Paulina Lau, who is a major witness in the case and has been involved in the administration of the Trust for a substantial period of time.  It would be highly unsatisfactory if the defendant is forced to call Ms Paulina Lau whilst it is still in the process of considering and preparing its intended expert evidence in consultation with its experts and legal team.

(2)   The appropriate way forward if the plaintiff’s applications were to be allowed would be for the trial to be adjourned to enable the defendant to consider its position and comply with such expert directions as are given.  Any additional relevant factual witness statements should be put in before the expert(s) to be engaged by the defendant finalises his report, and the experts meet to endeavour to narrow the issues and produce a joint statement.  Further, since the introduction of expert evidence involves the re-opening of the plaintiff’s case, insofar as it may be necessary for the defendant to seek the re-calling of the plaintiff’s witnesses to put any additional factual matters to such witnesses, that should be done first, before the defendant resumes calling its own factual witnesses.

(3)   The upshot of the above is that, if the application were acceded to, the trial dates scheduled in November 2018 are almost certainly going to be wasted, and a significant number of additional dates would have to be fixed both to make up for the lost time and to accommodate the need for additional live factual testimony and the testimony of the parties’ experts.  This will significantly prolong and delay the trial and resolution of the actions, which constitute milestone dates that should not be altered except in exceptional circumstances.  Such a delay is also the antithesis of the court’s Order for a speedy trial made on 11 September 2017.

25.For the reasons set out above, the plaintiff’s applications to adduce expert evidence are dismissed.

Mr Benjamin Yu, SC, Ms Sara Tong, Ms Andrea Yu and Mr James Man, instructed by Messrs Li & Partners, for the plaintiff

Mr Paul Girolami, QC, Mr Eugene Fung, SC, Ms Janet Ho and Ms Sheena Wong, instructed by Messrs Clifford Chance, for the defendant