A v. B

HCMC 2/2023

[2025] HKCFI 978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO 2 OF 2023

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DECISION

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A.  INTRODUCTION

1.By summons dated 4 February 2025 (“the Expert Summons”), the respondent (“H”) seeks leave to adduce expert opinion in the forthcoming ancillary relief trial (“the AR Trial”) prepared by his own expert Mr Martin John Tupila (“Tupila”) on certain issues, which he contends to be necessary despite the fact that Mr Jerome McDonagh – the single joint expert appointed by the parties (“the SJE”) – had already produced 2 reports.

2.The AR Trial has been scheduled to commence on 9 April 2025.

B.  BACKGROUND

3.I should first of all set out the relevant background of this application.

4.This is a big money case.

5.H started an asset management company in                        in        (“AB Limited”). Subsequently, he set up an offshore fund management company in        (“CD Limited”). His career has proved to be very successful. It is undisputed that CD Limited together with its subsidiaries (including AB Limited) (“the Business”) must be the most important asset of the family.

6.While this case was still pending in the Family Court, parties had already appointed their own experts to value the Business. H’s expert was Tupila, and the petitioner (“W”)’s expert was Mr Ferry Choy (“Choy”). As a result, the following expert reports had been prepared:

(1)  Tupila’s report dated 3 January 2020 (“Tupila’s 2020 Report”);

(2)  Choy’s report dated 3 January 2020;

(3)  Choy’s report dated 7 October 2022;

(4)  Tupila’s report dated 10 October 2022 (“Tupila’s 2022 Report”);

(5)  A joint statement prepared by Tupila and Choy dated 28 October 2022.

7.By an order dated 28 April 2023, this case was transferred to the Court of First Instance.

8.The First Direction Hearing was then fixed to be held on 9 August 2023 before this Court.

9.For the purpose of the First Direction Hearing, H’s senior counsel had lodged written submissions, in which she summarised the opinion of the aforesaid experts as follow:

“18. Following the decision of HH Melloy J dated 28 January 2019 the parties were given leave to instruct their own experts to value [the Business]. […] W’s expert (Ferry Choy of Sirius) updated this to a […] value of USD9.8 million. H’s expert, Martin Tupila of EY put the value at between USD6.35 million and USD6.88 million (with a forced sale discount) or USD9.076 million (no forced sale discount).” (emphasis added)

10.She then continued in her submission:

“19. It has been agreed that for the purposes of the AR trial a SJE now be appointed to value the business and directions have been proposed in this regard […].”

11.Therefore, on 5 September 2023, this Court gave, inter alia, the following expert directions by consent:

“A single joint expert shall be appointed to prepare a valuation report of the Business, [CD Limited] and its subsidiary companies (“the Business”), with a cut-off date as at 31 March 2024.[1]

Parties shall agree on the identity of the said single joint expert on or before 13 September 2023.

Parties shall send a joint instruction letter to the single joint expert appointed within 14 days after the identity of the single joint expert has been confirmed. In the event parties cannot agree on the content of the joint instruction letter, they shall write to the Court jointly within 7 days thereafter for directions.

Parties agree that the single joint expert should be instructed to provide advice as to if, and how, the Business can provide cash to satisfy settlement or, if and how, the Business can be structured to provide cash to satisfy settlement.”

12.Pursuant to the said expert directions, parties agreed that Mr Jerome McDonagh be appointed as the single joint expert.

13.By letter dated 10 July 2024, parties wrote a joint letter to the Court as they could not completely agree on the content of the joint letter of instruction to be sent to the SJE. Part of the disagreement concerned whether parties should be permitted to invite the SJE to give consideration to some specific issues which they considered relevant. At the end of the day, this Court agreed with H that they should be allowed to do so, and that H’s draft joint instruction letter should be adopted. The finalised letter (“the Joint Instruction Letter”) was then sent to the SJE accordingly.

14.On 17 October 2024, the SJE completed his 1^st Report (“the 1^st SJE Report”).

15.On 13 November 2024, H’s solicitors raised 8 questions with the SJE as follows:

“1. Given that the proceedings before the Court are divorce proceedings the Joint Letter of Instruction asks that the SJE ‘provide advice as to if, and how, the Business can provide cash to satisfy settlement or, if and how, the Business can be structured to provide cash to satisfy settlement’ (paragraph 16 on page 5 of the Joint Instruction). This is missing from the SJE’s report and the SJE is asked to advise on the same.

2. If the SJE is of the opinion that neither of the above can be achieved or it is questionable whether either can be achieved, then is the SJE of the opinion that the Business may need to be sold or liquidated to satisfy a settlement award?

3. The SJE is accordingly asked to provide an opinion as to the liquidation value of the Business so that the Court is able to fully consider this option.

4. Do you require the relevant board minutes of [CD Limited] and any other documents, especially regarding the Board discussions around the viability of [CD Limited] and the Business if more assets under management cannot be raised in the near future?

5. In paragraphs 2.11 and 2.13 of the Report, you pointed out that the total revenue has declined each year starting in 2019 until 31 March 2024. You also pointed out in Section 2.12 that ‘[t]he results for [CD Limited] are relatively volatile with it incurring losses in the financial years 2019, 2020 and 2023, as well as for the 3 months ended 31 March 2024, though it was profitable in the financial years 2021 and 2022.’ You also highlighted in the Report that there had been a continuous shortage in total revenue since 2019, and the business could soon run out of capital if there are no new investments. The lack of new fund also rendered the future [Assets under Management] uncertain. Please confirm whether the above will have an impact on point 1 above.

6. In paragraph 5.18 of the Report, you assessed that [CD Limited] had surplus cash in the sum of USD4,049,512. Please confirm whether (i) the release of the cash assets would compromise the viability of the business and increase the volatility of profitability and (ii) the projection of loss in the sum of approximately USD3 million would have an adverse impact on the valuation as the so-called ‘surplus assets’ would need to be tapped into in order to support the Business.

7. In paragraph 5.23c), you stated that [CD Limited] ‘will continue to operate and seek new clients and [Assets under Management].’ [CD Limited] has prepared an ‘Exit Plan’ in compliance of the SFC’s requirements. It is projected that it would cost at least approximately US$4-5 million to wind down the business. Please confirm whether the impact of [H]’s retirement has been factored in the fair market value.

8. Please confirm whether you have reviewed the documents listed in the Joint Instruction Letter, especially the Board Minutes (item no.13 of the Joint Instruction) Budget and Business Forecast (item no.14 of the Joint Instruction).”

(“H’s Follow-Up Questions”)

16.W considered that only questions No.1 and No.8 raised by H should be dealt with by the SJE right away, and that the remaining questions could be raised during the trial, unless the SJE considered that it is absolutely necessary to address them there and then.

17.Having considered W’s reply, the SJE responded that:

(1)  only question No.1 was required to be answered, and upon answering this question, he would have completed what he had been asked to opine on pursuant to the Joint Instruction Letter;

(2)  be that as it may, he would also answer question No.8 “as a gesture of good faith”;

(3)  questions Nos.2 to 7 went beyond the scope of instruction.

18.The SJE then prepared his 2^nd Report dated 28 November 2024 (“the 2^nd SJE Report”).

19.The 1^st SJE Report and the 2^nd SJE Report were then filed on 9 December 2024.

20.By the Experts Summons which was taken out on 4 February 2025, H asks for leave to adduce an expert opinion prepared by Tupila on the following issues arising from and/or in relation to the 1^st SJE Report and the 2^nd SJE Report:

(1)  In what way or ways can H use his interest in the realisable value of the Business and H’s interest in the funds which CD Limited manages or advises (“CD Funds”) to raise cash in the event he is required to make an immediate lump sum payment? (“Expert Issue (1)”)

(2)  Does the response (or responses) given in respect of (1):

(a)  Give rise to a material risk that the Business might be unable to continue operating as a going concern in the foreseeable future?

(b)  Lead to a situation where the Business may be unable to comply with capital surplus requirements imposed by the Securities and Futures Commission on the Business and/or its entities in the near future?

(c)  Affect the ability of the Business to return to profitability or remain viable?

(“Expert Issue (2)(a)”, “Expert Issue (2)(b) and “Expert Issue (2)(c)” respectively)

(3)  If H’s interest in the Business is to be sold in order to satisfy an immediate lump sum payment, what discount (if any) would be needed relative to the value of the Business? (“Expert Issue (3)”)

(4)  In what way would the value of the Business be affected if H were to redeem his interest in the CD Funds (taking into account any risk of potential loss of confidence and reduced ‘Assets Under Management’)? (“Expert Issue (4)”)

(5)  Is it necessary to wind the Business up in order to achieve an immediate settlement? If so, what is its liquidation value? (“Expert Issue (5)”)

C.  LEGAL PRINCIPLES

21.Both parties have referred this Court to Daimler AG (formerly known as Mercedes-Benz AG) v Helge Herbert Leiduck and another [2014] 3 HKLRD 56, in which Madam Recorder Lisa Wong SC (as her Ladyship then was) set out the legal principles governing the admission of additional expert evidence following appointment of single joint expert:

“32. The appointment of a single joint expert (‘SJE’), whether by agreement between the parties or imposed by the Court, does not per se bar a party from seeking leave to instruct its own expert to challenge the SJE’s evidence or aspects thereof.

33. Leave should and would be granted if, upon balancing all relevant considerations, it is just and accords with the underlying objectives of the Civil Justice Reform (as set out in the Rules of the High Court Order 1A, rule 1) to do so. See Daniels v Walker [2000] 1 WLR 1382 (CA), per Lord Woolf MR at 1386H and L v L, HCMC 1/2003, unreported, 20 April 2005, per Lam J (as he then was) at §§22 and 25. See also Hodgkinson, Expert Evidence: Law and Practice (3^rd Edition) at §5-005 p 158.

34. In Cosgrove v Pattison [2001] CP Rep 68, Neuberger J identified 9 factors for consideration in deciding whether to allow the evidence of a second expert, in addition to the evidence of an expert instructed jointly, under Civil Procedure Rules Part 35:

(1) the nature of the dispute;

(2) the number of disputes on which the expert evidence is relevant;

(3) the reason for requiring the second report;

(4) the amount at stake or the nature of the issues at stake;

(5) the effect of permitting a second expert report on the conduct of the trial;

(6) the delay in making the application;

(7) the delay that might be caused in the conduct of the proceedings;

(8) any other special features;

(9) the overall justice to the parties.

35. With regard to the reason for requiring own-party expert evidence, in Daniels v Walker, supra, Lord Woolf MR held (at 1387E) that additional expert evidence may be permitted where the dissatisfied party’s reasons for wishing to adduce such evidence are ‘not fanciful’. The same judge then seemed to suggest, obiter, a more stringent test in Peet v Mid-Kent Healthcare Trust [2002] 1 WLR 210 (CA) at §28, in that ‘good reasons’, as opposed to ‘reasons which are not fanciful’, must be shown.

36. In L v L, supra, Lam J was referred to both cases and the language of §17 of his Lordship’s judgment[2] appears more consistent with a preference for the ‘not fanciful reasons’ test in Daniels v Walker. Further, it is observed in Hodgkinson, Expert Evidence: Law and Practice, supra, p 158 at footnote 34 that the later dicta was probably per incuriam. The distinction seems to me to be a fine one. […] I am inclined to think that, for what is essentially a case management decision to be made to achieve justice and upon balancing all material factors of which the reasons for challenging the SJE’s opinion is but one, it should be sufficient if those reasons are not fanciful, particularly if the other considerations also point to own-party expert evidence being appropriate.

37. While on the reasons for own-party expert evidence, Mr Wong SC refers to and highlights precedents of such evidence being allowed where the SJE was found to have been instructed by a party’s solicitors many times before (Smolen v Solon Co-operative Housing Services Limited [2003] EWCA Civ 1240) or where a party’s solicitors had secret communications with the SJE (Oldham Metropolitan Borough Council v GW & Ors [2007] EWHC 136 (Fam)). However, the situations in which own-party expert evidence is allowed are not confined to these rather unusual circumstances. Certainly, a case can be made with reference to the materiality, significance and quality of the additional expert evidence in respect of which leave is sought.

38. Neuberger J’s list is acknowledged to be non-exhaustive. The learned authors of Hodgkinson, Expert Evidence: Law and Practice, supra, mention at §5-005 p 159 other examples, two of which are to my mind relevant to the present application: (1) whether the SJE’s report can be challenged by cross-examination without the need for a further report; and (2) whether the parties have already engaged own-party experts.”

22.H’s counsel has also drawn this Court’s attention to the following passage in Daniels v Walker (Practice Note) [2000] 1 WLR 1382, at 1387D – G:

“In a substantial case such as this, the correct approach is to regard, the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.

In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases it would be wrong to make a decision until one is in a position to consider the situation in the round…” (Counsel’s emphasis)

23.It was further submitted that the real test may be summed up as follows (as per the learned authors of Hodgkinson, Expert Evidence: Law and Practice (5^th Ed., 2020) at §5-005 (page 149)):

“Ultimately, the test is whether it is just and accords with the overriding objective to permit a party to put in its own expert evidence.”

24.I agree with the above submission. In this regard, I should also bear in mind the guidance given by G Lam JA in Redland Precast Concrete Products (China) Limited v AES Steel Mould (Hong Kong) Limited [2021] HKCA 1229 at [13] which is binding on this Court:

“[…] it was submitted that the test is whether there are ‘not fanciful’ reasons for the plaintiff to call another expert notwithstanding an SJE has been appointed, and that the fact that there is a materially different opinion from an expert of the same level of expertise as the SJE is such a ‘not fanciful’ reason. We are unable to accept this submission. The reason for the party concerned to want to put forward a second expert report (and it is unnecessary to decide whether it has to be a non‑fanciful reason or a good reason) is simply one of many factors to be considered in the exercise of the court’s discretion, which is ultimately guided by the interests of justice and the underlying objectives of the procedural rules as set out in Order 1A rule 1 of the Rules of the High Court (Cap 4A): Daimler AG v Leiduck (re: expert evidence) [2014] 3 HKLRD 56, §§33‑34; Dennis Kwok Hon Ming v Poon Sui Cheong Albert & others (HCMP 1526/2013, 29 December 2017), §§15‑20. The presence of such reason is not conclusive. The ‘test’ suggested by the plaintiff would mean that a litigant could always adduce its own expert evidence, despite the appointment of an SJE, so long as he could find an expert who took a materially different view. That does not seem to us to be correct.”

D.  DISCUSSION

D1.  Delay

25.As I mentioned at the beginning of this Decision, the AR Trial has been scheduled to commence on 9 April 2025, which is only around 1 month away.

26.H admitted that “the Expert Summons has come somewhat closer to the trial than is ideal”[3]. In my view, that must be a correct concession, or even an understatement of the actual situation.

27.H has emphasised that the “best” case that he is now trying to run by virtue of the proposed expert evidence to be given by Tupila is actually not a new point but involves essentially the same questions which the parties have been litigating for at least half a decade[4]. That being the case, upon H’s receipt of the 2^nd SJE Report on 28 November 2024, he should have been able to take out the present application pretty quickly, instead of waiting until 4 February 2025.

28.H stated that since the 1^st SJE Report and the 2^nd SJE Report were not filed until 9 December 2024, it made no sense for him to take out this application before that date. I have some doubt about this assertion, because it should be apparent to him by the time when the 2^nd SJE Report was released on 28 November 2024 that the SJE would not answer any other questions which his solicitors had raised. The filing of the 1^st SJE Report and the 2^nd SJE Report into court is therefore just a formality.

29.Even if procedurally speaking H could not take out the Expert Summons before the filing of the said reports, he could have started preparing for it earlier and then made the present application right away upon the said reports were filed. Indeed, H’s counsel accepted that “the earliest date H could have pursued the Expert Summons was on 9 December 2024”.

30.Even if he could only start preparing for the making of the application on 9 December 2024 (which I do not agree), given H all along knew what he was looking for in terms of expert evidence, and in the light of all the circumstances, I do not think it was reasonable for H to take more than 2 months after he has received the 2^nd SJE Report to make the present application.

31.H explained that by the time the 1^st SJE Report and the 2^nd SJE Report were filed on 9 December 2024, preparation of the Narrative Affidavits and agreed documents was well underway. That may be so. However, I still consider that the present application should have been filed much earlier.

32.In any event, the Court would have to consider the prejudice which the orders sought under the Expert Summons would cause to W, no matter whether H should be blamed for the late application.

33.H argued that there is no basis for W to assert prejudice because parties have spent years arguing over the questions behind the expert issues raised in the Expert Summons, and he has given advance notice to W of his intention to seek the appointment of a second expert and his arguments in support. With respect, I do not agree. The so-called “advance notice” was in fact only H’s “reservation of right” for bringing this application. There was no reason why W would have to start preparing for it before H served the Expert Summons on her.

34.Further, as I mentioned above, the trial is only around 1 month away. If H’s application is acceded to, it would greatly disrupt W’s preparation of the trial, since attention, time and effort would have to be diverted to the consideration of the further expert report produced by Tupila dated 4 March 2025 (“Tupila’s 2025 Draft Report”) (which was only served on the Court and W by H together with his Written Reply Submissions on 4 March 2025), and also to the preparation of W’s own expert evidence (there is no reason why W should not be given leave to call her own expert if H is allowed to do so). This in itself is a form of prejudice.

35.In this regard, H argued that given W previously had her own expert, Choy, to comment on the earlier reports of Tupila, it should not be difficult for W to respond to Tupila’s 2025 Draft Report should she wish to do so as there is still over a month before the start of the trial. With respect, I do not agree. W simply should not be put into such a position in the first place. It is unfair to impose upon W an obligation to consider the Tupila’s 2025 Draft Report and to cause her own expert to produce a report within such a short time. Moreover, it is extremely unlikely that there will be enough time for the parties’ respective experts to meet and prepare a joint statement before the commencement of the trial (not to mention well before it).

36.Furthermore, if 2 more experts are to be called to give oral evidence at the trial, it is very likely that the original estimated length of trial of 8 days would not be enough. The high likelihood is that further trial dates would have to be fixed. However, given the fact that both sides have engaged senior counsel, and given the very busy schedule of this Court, it is very likely that it would be difficult to find new hearing dates which are relatively close to 17 April 2025 (the last scheduled day for the adducing of evidence). That means it is highly probable that the trial would have to be truncated with a large gap between the 2 trial periods. This is very undesirable.

D2.  The Proposed Expert Issues

37.H contends that a further expert report from his own expert is necessary because the SJE has failed to:

(1)  properly address all the matters that he was asked to opine by virtue of the Joint Instruction Letter;

(2)  give cogent reasons to justify his proposals on generating liquidity from the Business to achieve a settlement; or

(3)  deal with obvious questions / adverse implications and risks that arise from those opinions and proposals of the SJE and/or W,

and as a result, he is unable to run a sizeable part of his case (namely, an immediate cash-out approach would have a great impact on the realisable value of the Business) at full force.

38.He therefore, by virtue of the Expert Summons, raises 5 expert issues for his own expert to opine on (see [20] above).

39.The question is: are these expert issues proper in the circumstances of the present case, especially in the light of how H had conducted his case in these proceedings?

40.To answer this question in relation to Expert Issue (1) and Expert Issue (2), one should firstly make reference to the Joint Instruction Letter which provides, inter alia, that:

“[…]

In addition to this [W] invites you to give consideration to the following issues:

[…]

[H] invites you to give consideration to the following issues:

xii) In considering the appropriate valuation methodology pursuant to i), the liquidation value is to be included;

xiii) Whether the withdrawal of any capital from the Business and/or from its funds by [H] will affect the viability and valuation of the Business and if so, how would the viability and valuation be affected;

xiv) What is the impact on any valuation of the Business of retirement, permanent incapacitation or death of [H]; and

xv) Whether ‘key man’ succession plans are a factor in valuing the Business and if so, what are these and how do they affect the valuation;

Whilst the parties have some differences in what considerations are to be given as set out above, they will defer to your professional judgment on whether those considerations are relevant and need to be taken into account.

[…]”

(emphasis added)

41.Then one should refer to the 1^st SJE Report and the 2^nd SJE Report.

42.From the aforesaid documents, it is clear that:

(1)  The SJE has already given his opinion on how H can use his interest in the Business to raise cash for the purpose of immediate lump sum payment;

(2)  While H has raised the issue of liquidation value and viability of the Business in the event of withdrawal of capital and/or funds in the Joint Instruction Letter, he has expressly left it to the SJE to decide whether he should take such matters into account.

43.At the end of the day, the reality is that H is not satisfied with the opinion of the SJE, apparently because the SJE’s opinion is not favourable to him (allegedly because the SJE has not dealt with certain scenarios). This may be seen from H’s skeleton which concluded that:

“The drastically different approaches and outcomes between the Business SJE and Tupila’s 2020 and 2022 Expert Reports on the Issues show that there is a legitimate dispute amongst experts that ought to be properly resolved at trial.”[5]

44.However, that does not necessarily mean that it would be open to H to call his own expert so as to feed him with supporting evidence for running his “best” case, especially when the trial is imminent.

45.In the present case, a special feature which one also has to bear in mind is that the questions raised under Expert Issues 2(a) and 2(c) are not something new to H. If such questions are so important in the running of his “best” case, he should have insisted to include such issues in the Joint Instruction Letter as “must-answer” items, rather than leaving the matter to be decided by the SJE. While I can appreciate H’s good gesture in not taking that stance so as to facilitate an amicable agreement with W on the content of the Joint Instruction Letter, he must still face the obstacle in persuading the Court that he should be allowed to regret and adopt a different stance, especially when we are now so close to the trial dates. It should also be borne in mind that the Joint Instruction Letter was drafted by H (see [13] above).

46.What is not covered in the SJE’s 1^st Report and the SJE’s 2^nd Report is Expert Issue 2(b), which deals with the question of whether the Business may be unable to comply with capital surplus requirements imposed by the Securities and Futures Commission on the Business and/or its entities if cash is to be raised for the purpose of immediate lump sum payment. It seems that this matter has indeed been raised in the Joint Instruction Letter too, when the SJE was asked to refer to “relevant Securities and Futures (Financial Resources) Rules including Cap 571N regarding financial resources requirements and any other capital requirements imposed by any external regulator or government”. However, for unknown reason, this issue was not dealt with by the SJE, nor was it included as one of the H’s Follow-Up Questions.

47.But no matter what, it now appears from Tupila’s 2025 Draft Report that there is no indication that the Business would be unable to comply with its immediately regulatory capital requirements even if H were to raise cash through realisation of some or all surplus assets in CD Limited[6]. That being the case, this issue is no longer relevant for our purpose.

48.Expert Issue (3) is related to forced sale discount. Although this matter was already raised in Tupila’s 2020 Report and Tupila’s 2022 Report, it was not included as one of the issues which must be dealt with by the SJE pursuant to the Joint Instruction Letter. As explained above, it is not right for H to be allowed to make a U-turn at this stage. I therefore hold that this is not a proper expert issue.

49.In H’s Reply Submissions[7], H seems to accept that the SJE has already answered this issue by contending that there should be no discount given. If that is so, then it seems to me that the timing of this application and the prejudice which a new expert report from H would cause to W would be the more important factors in the balancing exercise (see Section D1 above).

50.Expert Issue (4) concerns the relationship between the withdrawal of capital from the CD Funds and the valuation of the Business. This was covered by sub-paragraph (xiii) in the Joint Instruction Letter (see [40] above). H should not be allowed to raise it again now by virtue of his own expert’s report. He should be bound by how he conducted his case previously.

51.Expert Issue (5) asks whether it is necessary to wind the Business up in order to achieve an immediate settlement, and if so, what the liquidation value is.

52.I wonder how H’s expert would be able to answer the first part of the question, given that would depend on the value of H’s other assets.

53.I have dealt with liquidation value above – by sub-paragraph (xii) in the Joint Instruction Letter (see [40] above), he has left it to the SJE to decide whether he should take this matter into account. Hence, I do not think this is an expert issue which is proper at this stage to be answered by H’s own expert.

D3.  Exercise of discretion

54.H has argued that he should be allowed to put forward evidence from his own expert on what may transpire to be the most important dispute between the parties at the trial.

55.It was further reiterated that dismissing the Expert Summons would prejudice H’s ability to put his best case forward, and that it would be very unfair to H for barring him from calling his own expert on an important part of his case.

56.However, it must be borne in mind that when the Court conducts a balancing exercise, the Court has to consider the interest of both parties.

57.Having taken all the matters under Sections D1 and D2 into consideration, I am of the view that the Court should exercise its discretion against H.

E.  DISPOSITION

58.I therefore dismiss the Expert Summons.

F.  COSTS

59.I make a costs order nisi that H shall bear W’s costs of the Expert Summons, with certificate for 2 counsel.

60.The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.

61.Unless any application for variation of the aforesaid costs order nisi is made within time, W shall lodge and serve her statement of costs on or before 16 April 2025. H shall lodge and serve his statement of objection by 25 April 2025. Summary assessment of the costs of the application will be conducted on paper (no matter whether any statement of objection is lodged within time) thereafter. The costs assessed shall be paid within 14 days after assessment.

Mr Nigel Kat SC leading Ms Madeleine Booth, instructed by Withers, for the petitioner

Ms Mairead Rattigan SC leading Mr Adrian Kwan, instructed by Haldanes, for the respondent