Redland Precast Concrete Products (China) Ltd v. Aes Steel Mould (Hong Kong) Ltd

HCCT 20/2018

[2021] HKCFI 1757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 20 OF 2018

(TRANSFERRED FROM HCA 2730 OF 2015)

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BETWEEN

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Before: Hon Mimmie Chan J in Chambers

Dates of Written Submissions: 31 May 2021, 4 June 2021 and 9 June 2021

Date of Decision: 21 June 2021

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D E C I S I O N

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1.On 11 May 2021, I dismissed the application made by the Plaintiff for leave to adduce new expert evidence (“Decision”). On 24 May 2021, the Plaintiff applied by Summons to seek leave to appeal against the Decision, and for a stay of the trial of the proceedings scheduled to take place on 27 September 2021.

2.The intended appeal is against a case management decision of the Court. Leave to appeal is not to be lightly granted for such appeals. In Xiamen Xinjingdi v Eaton Properties HCMP 13 of 2012, 14 February 2012, the Chief Judge explained:

“No leave to appeal should be granted unless the threshold test of reasonable prospect of success is satisfied, or (which is not relevant to the present case) there is some other reason in the interests of justice why the appeal should be heard: section 14AA(4), the High Court Ordinance (Cap 4). But the court still retains a discretion whether to grant leave even if the threshold test is satisfied. This is particularly so in relation to an intended appeal against a case management decision. In relation to such an intended appeal, this court rarely intervenes save in exceptional circumstances. As Kwan JA reiterated in the recent case of Mimi Kar Kee Wong Hung v Severn Villa Limited, HCMP 2192/2011, 12 January 2012, para 31, it need hardly be emphasized that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible. In relation to case management decisions, the intended appellant must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”. It is of great importance that this court does not descend to micro-managing cases pending before the court below.”

3.In the Decision, the factors considered and the reasons for my refusal to grant leave to the Plaintiff to appoint its expert to give evidence have been set out in detail. Delay and the impact on the milestone dates for trial are highlighted in paragraphs 14 and 15 of the Decision. Prejudice to the Defendant is referred to at paragraph 15. The proper procedure and options open to the Plaintiff, but which had not been taken in order to deal with the single joint expert report, filed in January 2020, were explained in paragraph 11. It is still open to the Plaintiff to adopt the measures and procedure (outlined in Chan Yuet Keung v Harmony (International Knitting Factory Ltd [2010] 5 HKLRD 599) for cross-examining and seeking clarification by the single joint expert. The proposed expert’s failure to disclose his participation in the mediation of the dispute, and the reasonable perception of a real possibility of lack of independence or bias on the part of the Plaintiff’s proposed expert, was considered in paragraphs 18 to 20.

4.The Plaintiff simply seeks to reargue the matters, claiming that the Court had erred in law in finding that the Plaintiff had failed to demonstrate grounds to adduce its proposed expert report, and had failed to secure a just resolution of the dispute by denying the Plaintiff of its right to rely on its report -  proposed 15 months after expert directions were first given, 13 months after the single joint expert had produced his report, 12 months after the initial trial dates were adjourned in February 2020, and with less than 4 months from the time of the hearing of the application to trial.

5.There is no merit in the suggestion that the Defendant is not prejudiced by a postponement of the trial of its defence and counterclaim.  The Court of Appeal also rejected the argument that because costs could adequately compensate the Defendant, any late and unjustified application can be made (Tsang Wai Fun v Hui Siu Kwong HCMP 409/2016, 12 April 2006). The Defendant would clearly be prejudiced if it was required to deal with the proposed new expert report sought to be produced by the Plaintiff, in the remaining time before commencement of the trial in September.  It has already been prejudiced, by this distraction from its proper preparations for trial.  The Plaintiff’s expert took 6 months to prepare his report, and it is unfair that the Defendant should be expected to deal with the new report in the limited time available before trial.

6.In Li Xiao Yun v China Gas Holdings Limited CACV 38/2013, 11 March 2012, Lam VP (as he then was) had this to say on late appeals against case management decisions:

“18. Unmeritorious appeals against case management decisions, at least last minute urgent appeals, are to be deplored since not only are they satellite litigation increasing the costs of the judicial process, they also tend to disrupt the preparation for trial on the part of those representing the opposing party. It is wholly inconsistent with the spirit of the underlying objectives in Order 1A Rule 1 and the duties of the parties and their lawyers under Order 1A Rule 3. Last minute pre-trial applications also disrupt the preparation for the trial on the part of a trial judge in terms of reading into the case. Instead of getting himself or herself familiar with the issues that have to be tackled at the trial, the judge would have to divert attention and spend time and efforts on such applications. Thus, such practice has to be discouraged and, unless there are good justifications, the unsuccessful appellant should normally be expected to face an order for indemnity costs.

19. To justify an interference with the Judge’s case management discretion, it is not enough that members of the appellate court may make a different decision had they been the primary judge who exercised the discretion. This is particularly so when the Judge was the trial judge presiding over the trial and she had been handling the case since the Pre-trial review. The Plaintiffs have to show that the Judge has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task, or alternatively the Judge erred in principle or the order was irrational having regard to the issues that had to be resolved.”

7.I am not satisfied that the Plaintiff’s intended appeal has any reasonable prospect of success.  Nor is there any other reason for the appeal to be heard.  The application for leave is refused. There is no good reason for a stay of the action pending the Plaintiff’s application to the Court of Appeal, and that application is likewise refused.

8.The Plaintiff is to pay to the Defendant the costs of the application for leave to appeal, which costs are to be summarily assessed.  The Defendant should file its statement of costs within 7 days and the Plaintiff may file its objections within 7 days thereafter.

Ms Queenie WS Ng, instructed by KH Lam & Co, for the plaintiff

Mr Vincent Li, instructed by Lui & Law, for the defendant