Chinachem Charitable Foundation Ltd v. Chan Chun Chuen and Others

HCMP 901/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 901 OF 2009

(ON AN INTENDED APPEAL FROM HCAP NO. 8 OF 2007)

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Application considered by Hon Rogers VP without a hearing

Date of Decision: 18 May 2009

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D E C I S I O N

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1.This is an application for leave to appeal under the provisions of Order 59 rule 2B(3) of the Rules of the High Court.  The matter in question is a decision of Lam J given on 8 May 2009 with reasons handed down on 15 May 2009.

2.By his decision the judge gave leave to the first defendant to produce the report of Mr Paul Westwood dated 7 May 2009 in evidence and to call Mr Paul Westward to give handwriting expert evidence at a trial which commenced last week on 11 May.  Application was made to the judge for leave to appeal and that was refused on 12 May 2009.  The trial of the action which concerns the validity of wills, is estimated to take some 9-10 weeks up to the conclusion of the evidence.

3.The history of the matter as regards the expert evidence has been set out in the reasons for decision given by the judge below.  What is clear is that the first defendant was not satisfied with the evidence that would be given by the first expert who had been engaged on his behalf.  It is unnecessary to go into the full history as it suffices to say that the first defendant now wishes to rely upon evidence which could be given by another expert.

4.The plaintiff strongly objects to the first defendant having leave to call and rely upon evidence from the new expert primarily because it says that this is a most egregious example of “expert shopping”.  The judge considered that argument but, for reasons which he set out in his reasons for decision, he considered that, given the likely course of the action and the inevitable cross-examination which would result from use of information passed to the first defendant's legal team, it would be of advantage that the new expert could be allowed to give evidence.  The judge had well in mind the objection of expert shopping and he was clearly not blind to the fact that the first defendant's legal team that changed the expert primarily because it was not satisfied that the evidence that the first expert would give would help their case.  Nevertheless, the judge recognised that the new expert dealt with matters which do not appear to have been covered by the previous expert or the plaintiff's expert.

5.In my view, this matter is primarily a matter of case management.  It is not a case where the judge is likely to be blinded as to the true picture.  He was not ignorant of the fact that the first expert would not give favourable evidence.  The judge was fully conscious of the history of the matter and considered that it was more likely to lead to a just resolution of the dispute.  I would consider that resolution is likely to be as much in one party's favour as in the other's.  I do not, therefore, consider that it would be appropriate for this court to interfere with what is primarily a case management decision.  Furthermore, given that a very lengthy trial is in process, I consider it would be wrong to risk jeopardising the due conduct of that trial by giving leave to appeal.  I, therefore, decline to do so.