MG CHARTER LIMITED v BEIJING CAISSA INTERNATIONAL TRAVEL SERVICE CO. LTD

HCA 1635/2012 and
HCCL 7/2014
(Consolidated)

[2020] HKCFI 67

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1635 OF 2012 AND

COMMERCIAL ACTION NO 7 OF 2014

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Before: Deputy High Court Judge William Wong SC in Chambers

Date of Hearing: 27 December 2019

Date of Decision: 27 December 2019

Date of Reasons for Decision: 6 January 2020

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REASONS FOR DECISION

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1.  This is the substantive hearing of the Plaintiff’s summons dated 22 March 2019 (“the Summons”) for leave to adduce expert evidence on aviation industry related matters as per the questions set out in the Summons and subsequently revised in the Plaintiff’s Skeleton Submissions.

2.  After the hearing, I made an order in terms of the Summons and for the questions as amended at the hearing to be addressed by expert evidence.  I now give my reasons.

Applicable legal principles

3.  In Shenzhen Futaihong Precision Industry Co v BYD Co Ltd [2018] HKCA 408 (unreported, CACV 63 and 76/2017, 18 July 2018), the Court of Appeal set out the following principles:

 (1) The Court will allow expert evidence only if it is relevant and necessary; it is a case management duty of the Court to avoid proliferation of unnecessary expert evidence (§§9, 12).

 (2) The Court will not only examine pleadings, but also the documents and witness statements to determine the true evidential issues in dispute (§§10, 18).

 (3) There must be an evidential basis upon which expert evidence is to be adduced (§§51, 56).

 (4) Expert evidence should not be allowed where “the question can be determined on factual evidence and inferences to be drawn therefrom and expert evidence would not be helpful”(§25).

 (5) Where a party seeks to ask an expert a broadly framed question,a draft expert report should be produced by that party to assist the Court in assessing relevance and necessity (§§19 – 20).

4.  On the question of necessity, the Court should bear in mind that a complex factual issue does not mean that expert evidence is required. The Court is fully capable of “resolv[ing] complicated factual issues on a daily basis” without expert evidence (see So Kai Hau v YSK2 Engineering Co Ltd HCPI 1077/2006, unreported, 6 May 2013 at §46 per Master Li).

5.  The framing of expert questions should generally avoid answering the ultimate question to be determined by the Court (unless necessary and appropriate in the particular circumstances) (see Peace Mark(Holdings) Ltd v Chau Cham Wong Patrick HCA 2371/2009, unreported,2 November 2017 at §§17 – 18 per A Chan J.  In Formosa Taffeta Co Ltd v Banque Indosuez [2009] 1 HKLRD 568 at 577, Stone J at §82 said:

“ [A]n expert’s function is to educate and not to advocate, far less to purport to determine the ultimate question at issue in the case,which must be a matter for the court and the court alone.”

 (original emphasis)

Material facts

6.  From the pleadings and the witness statements filed and served, the Defendant’s main defence is that MEGA, a Maldivian airline (the Plaintiff being its exclusive agent) did not have the approval of the Civil Aviation Authority of China (“CAAC”) or the ability or capacity to fly the Third Rotation flights (as defined in the pleadings) and as such it is entitled not to make any payment under the contract which it entered into with the Plaintiff in April 2012 (“the Contract”).

7.  Under the Contract the Plaintiff sold to the Defendant block seats on the “Third and Fourth Rotations” of MEGA flights on the Beijing–Maldives route.  A Rotation is a pattern of flights.

8.  July 2012 is the date which the Third Rotation of flights was to commence, pursuant to the Contract.

9.  However, the Defendant failed to make any payment under the Contract, whether for the seats on the Third Rotation of flights or at all.

10.  As of July 2012, MEGA had two aircrafts, 8Q‑MEG and 8Q‑MEH.

11.  On 24 August 2012, MEGA’s third aircraft 8Q‑MEI entered into service.

12.  It is fair to say and I agree with Mr Chain for the Plaintiff that prior to the re-re-amendment to the Defence, the Defendant’s attack on MEGA’s approval and ability/capacity to fly was a bare and unparticularised allegation.  The Defendant puts forward no positive evidence.  Mr Chain submitted that the lack of any pleaded particulars and positive evidence amounted to the Defendant putting the Plaintiff to strict proof.  It is trite that in civil cases, whoever alleges must make good his or her allegations.

13.  Upon the re-re-amendment to the Defence, the Defendant’s case is now that:

 (1) For “approvals”, the Defendant’s case is that the 8 March 2012 SITATEX message only evidences discussions between MEGA and CAAC, and does not evidence a slot approval by CAAC to fly the Third Rotation in July 2012 (see Re-Re-Amended Defence §23(f)(i)(3)).

 (2) For “ability/capacity to fly”, the Defendant’s specific attack is in relation to July and August 2012, when MEGA for most of that time only had the two aircraft 8Q‑MEG and 8Q‑MEH which were then about 20 years old.  The Defendant’s allegation is essentially that MEGA’s two aircrafts could not have each flown a schedule of 377.7 flight hours per month for the two months of July and August 2012 which it asserts is required for operation of the Third Rotation alongside MEGA’s other flight commitments for that period, whilst keeping up maintenance.(See Re-Re-Amended Defence §§23(f)(ii)(1) to 23(f)(ii)(3).)

14.  At the last hearing in relation to the Defendant’s striking out application, I had already mentioned that it appears to this Court that there is no evidential basis to support the Defendant’s allegations which might well just be its bona fide suspicions.  For the purposes of the present application,there is no positive allegation or evidence that MEGA’s aircrafts are not maintained according to the relevant standards which might have an impact on the number of flight hours that the two aircrafts could have flown.

Analysis

15.  The first proposed expert question is:

“ Please describe the system of maintenance checks under EASA standards for Boeing 767 and Boeing 757 aircraft.”

16.  Mr Amos for the Defendant objected to this question on the basis that it is too generic and the experts should be asked to specifically comment on the actual status of maintenance checks of MEGA’s 8Q‑MEG and 8Q‑MEH aircraft.  I am of the view that this is incorrect as there is no issue about the standard of maintenance of the two specific aircrafts. Rather the real issue is that the EASA maintenance system affects the availability of MEGA’s aircraft and MEGA’s flight scheduling is based on this maintenance system.

17.  Accordingly, proposed question 1 is allowed with the amendment that the following words be included at the end of question 1, namely, “including MEGA’s 8Q‑MEG and 8Q‑MEH aircraft between 2012 and 2013”.

18.  Mr Amos for the Defendant did not object to proposed question 2 and as this question verifies the source and accuracy of aircraft age information which is relevant to the issues to be determined, the same is allowed.

19.  Proposed question 3 is agreeable to both parties after it is clarified that the CAAC approval refers to slot approval.

20.  Mr Amos for the Defendant opposed proposed questions 4 and 5 again on the basis that they are to generic and not specific to the actual status of maintenance of the two aircrafts.  For the reasons set out in paragraph 16 above, proposed questions 4 and 5 are both allowed.

21.  For proposed question 6, Mr Amos agreed to Mr Chain’s formulation after adding the words “on the assumption that they were” in the first line before the words “maintained in accordance with their regulator’s standards for airworthiness”.  Accordingly, proposed question 6 as amended is allowed.

22.  Mr Amos for the Defendant, at the hearing, proposed a new question, namely, “Was MEGA’s third aircraft authorized by CAAC for the Third Rotation” on the basis that there might be further amendments to the pleadings which would make this a relevant issue for the trial.  Mr Chain objected to the same on the ground that this question was only raised for the first time during the hearing.  I agree with Mr Chain.  In any event, if the Defendant sees fit to have supplemental questions to be addressed by the experts after all the pleadings and witness statements have been finalized,the Defendant could have taken out a proper application at that stage.

Disposition

23.  For all the reasons stated above, I made an order in terms of the Summons with the questions (as revised above) set out in Annex 1 and Annex 2 of the Plaintiff’s Skeleton Submissions.

24.  As far as costs is concerned, for the costs of the present application, I made an order that the Plaintiff is to have its costs of and incidental to the Summons to be paid by the Defendant forthwith and to be taxed, on a party to party basis, if not agreed with a certificate for one counsel.  

25.  I also dealt with the costs of the last hearing of the Defendant’s application for striking out.  Similarly, I made an order that the Plaintiff is to have its costs of and incidental to the application to be paid by the Defendant forthwith and to be taxed, on a party to party basis, if not agreed with a certificate for one counsel.

26.  Mr Chain on behalf of the Plaintiff requested this Court to make a gross sum assessment of the above costs.  Mr Amos did not object to the same.  Accordingly, I make the following directions:

 (1) The Plaintiff is to file and serve its Statements of Costs within 7 days hereof;

 (2) The Defendant is to file and serve its objections to the Statements of Costs within 14 days thereafter.

 (3) The Plaintiff is to file and serve its responses to the Defendant’s Objections to its Statements of Costs within 7 days thereafter.  

27.  Finally, it remains for this Court to thank Mr Chain for his very able and helpful submissions and Mr Amos for his sensible approach to the handling of the present application.

Mr Christopher Chain and Ms Tiffany Chan, instructed by Holman Fenwick Willan, for the plaintiff  

Mr William Patrick Amos, of Mayer Brown, for the defendant