Giorgio Armani Spa and Others v. Elan Clothes Co Ltd F/K/A Dalian Les Copious Clothes Co Ltd

HCCT 71/2018

[2019] HKCFI 1723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 71 OF 2018

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Before: Hon Mimmie Chan J in Chambers (Open to Public)

Date of Hearing: 9 July 2019

Date of Decision: 9 July 2019

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D E C I S I O N

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1.On 9 May 2019, this Court ordered that a joint expert report be filed by the parties’ experts by 23 May 2019, to identify the areas of their agreement and disagreement, and the reasons why each expert’s view should be preferred.

2.After an extension of time for compliance up to 20 June 2019, the Defendant now applies for leave to procure another expert to prepare the joint expert report, and alternatively for the joint report to be dispensed with.

3.In the absence of any confirmed and clear evidence as to the location and condition of Dr Liu (the Defendant’s expert), and why he cannot be located to prepare the joint report, and in the absence of any medical report to support the Defendant’s suspicion and guess as to Dr Liu’s alleged poor health, I am not satisfied that the Defendant has given any satisfactory reason for its non-compliance with the Court Order of 9 May 2019, and why it should be given the indulgence of further time which will only cause further unnecessary delay.

4.This Court was not satisfied at the last hearing as to the relevance and materiality of the expert evidence filed by the Defendant.  That was the main reason for the Order requiring the joint experts to identify the areas of their agreement and disagreement, which might at least help to save or reduce unnecessary time and costs of the substantive hearing and its preparation.  The issues for the grant of an anti-suit injunction to restrain a party’s breach of an arbitration agreement are governed by Hong Kong law, and the principles are clear and established.  The absence of the joint report required by the Court, and the proposal of the Defendant to rely on the expert reports of Dr Liu and to dispense with the joint report would only waste valuable court time, and the parties’ costs. 

5.No good cause has been shown by the Defendant on the evidence as to why it should be permitted to engage another expert to identify the areas of agreement and disagreement in the reports already filed by Dr Liu and the Plaintiff’s expert.  Even if there was such good cause, the Plaintiffs would be prejudiced by the further delay and costs to be incurred to perfect such process. 

6.By reason of the Defendant’s non-compliance with the Court’s Order and the lack of good reason being shown for engaging another expert, I refuse leave on the Defendant’s application for time and to engage another expert, and the Defendant is further barred from adducing any expert evidence for the substantive hearing.  The costs of and occasioned by this application by Summons are to be paid by the Defendant to the Plaintiffs, with certificate for Counsel, on indemnity basis. 

7.Parties must be aware of the aims and objectives of the Arbitration Court in dealing with cases affecting arbitration agreements and awards, and that they take courses which defeat or hinder the expeditious and proportionate disposal of such cases entirely at their own risks, of costs being ordered on indemnity basis.

Ms Eva Leung, instructed by de Bedin & Lee LLP, for the plaintiffs

Mr James Man, instructed by Reed Smith Richards Butler, for the defendant