Wong Cheuk v. Falcon Insurance Co (Hong Kong) Ltd

DCEC688/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 688 OF 2008

------------------------

BETWEEN

----------------------

Coram: H H District Judge Marlene Ng in Chambers (open to the public)

Date of Hearing: 20^th March, 2009

Date of Directions: 20^th March, 2009

Date of Handing Down Reasons for Directions: 20^th May, 2009

-----------------------------------------------

REASONS FOR DIRECTIONS

---------------------------------------------

I.  Introduction

1.This case was brought before me to deal with the following two issues and consequent directions that flow from determination of such issues :

(a)  whether matters of opinion should be redacted from a treatment medical report;

(b)  whether leave for the Applicant to adduce solo orthopaedic expert report should be granted on condition that the parties do adduce a joint supplemental orthopaedic expert report with wasted costs borne by the Applicant.

2.I should start by saying that this case exposes with startling clarity the ills of deeply entrenched legal culture that underpins the adversarial system and of litigants/lawyers clinging to the familiar and resisting change. If there has been any doubter in respect of the Civil Justice Reform, this case vindicates such reform by underscoring an urgent need for major change in how we resolve disputes and for transformation in our way of thinking.

3.In modern litigation, justice may not necessarily be best served by adhering to the traditional belief that the best way to resolve a dispute is to let litigants (or their lawyers) control the process in a contest between opposing adversaries that ultimately results in trial and judgment. Full-blown adversarialism may result in zealous lawyers going to great lengths to adopt defensive or even perverse practices, such as delay tactics and other tactical moves, in the belief or hope that such practices will advance the case of their clients, but which in fact obscure the evidence, cause delay, waste costs and ultimately adversely affect the administration of justice. As will be amply illustrated by this case, litigants/lawyers may become so preoccupied or seduced by the process that the process itself becomes an obstacle to justice.

4.Litigants/lawyers should remember that although the common law prides itself on certainty and consistency by refinement of the law through the precedent system, its key strength derives from the fact that it permits change. But if judicial persuasion is insufficient to shift litigants/lawyers away from the adversarial culture to better focus on problem-solving, then dramatic and visionary reform in the shape of the Civil Justice Reform is not only necessary but timely to bring essential change to the underlying litigation culture.

5.Litigants/lawyers should bear in mind the lessons from this case and cease to resist meaningful change. Otherwise the courts will proactively lead them through the change curve under the Civil Justice Reform with costs and/or other sanctions if so required.

II.  Background

6.In light of the aforesaid two issues before me, and to enable practitioners to more comprehensively appreciate the fundamental need for reduced adversarialism, it is necessary to recount the background developments in the present proceedings in some detail.

7.The Applicant claimed that on/about 20^th November 2006 whilst she was employed by Giant Wise Limited trading as Booze Seafood Hotpot Restaurant (“Employer”) as a restaurant manageress she slipped and fell backwards to land on her buttocks at a passageway of the restaurant after leaving the dishwashing section of the kitchen (“Accident”).

8.The Employer was dissolved by deregistration under section 291AA of the Companies Ordinance Cap.32. On 11^th June 2008, the Applicant commenced the present proceedings pursuant to section 44 of the Employees’ Compensation Ordinance Cap.282 to recover employees’ compensation against the Respondent being the employees’ compensation insurer of the Employer.

9.The Certificate of Assessment was issued on 3^rd March 2008 (“Form 7”). The Form 7 described the Applicant’s injury as “wedge fracture of the 11^th thoracic vertebra resulting in back pain and stiffness”, and assessed her period of absence from duty necessary as a result of injury to be from 20^th November 2006 to 18^th February 2008 and loss of earning capacity permanently caused by injury to be 2%.

10.On 11^th March 2008, the Applicant lodged objection against the Form 7. She also appealed against the Form 7 in her Application in the present proceedings. The Applicant further pleaded that she suffered psychiatric illness including adjustment disorder as a result of the Accident.

11.On 17^th July 2008, H H Judge H C Wong gave directions by consent (“17/7/08 Order”) for filing/service of the Answer and Lists of Documents, and for both parties to jointly write to the court after 60 days and before 70 days from the date thereof to apply to set the case down for trial upon provision of inter alia the following information and documents :

(a)  state whether the above deadline and all previous directions had been complied with;

(b)  state the number of witnesses as to fact for each party;

(c)  state the estimated length of trial;

(d)  if the parties intended to adduce expert medical evidence at trial, propose expert directions that specify the category(ies) and number of medical expert(s) for each party;

(e)  if the parties intended to adduce expert medical evidence at trial, lodge expert reports with the joint paper application and state whether the expert doctors would be required to give evidence at trial or whether their expert reports could be adduced as evidence at trial without calling the makers;

(f)  state whether the trial could be set down in the running list, and if so, the date when the case could be warned for trial.

12.The Respondent filed its Answer and List of Documents on 7^th and 21^st August 2008 respectively. The Answer did not make any admissions in respect of the Accident.

13.On 20^th August 2008, the Applicant filed his List of Documents, which revealed a medical report dated 6^th June 2008 (“Dr Lau’s Report”) by Dr Lau Sing Ki Kenric (“Dr Lau”). According to Dr Lau’s Report, the Applicant received treatment fromDr Lau who was then still granting sick leave to her.

14.Unbeknownst to the court and to the Respondent’s solicitors, the Applicant engaged Dr Johnson Lam as (“Dr Lam”) as his orthopaedic expert. On 3^rd September 2008, Dr Lam conducted solo medical examination of the Applicant for the purpose of preparing a solo orthopaedic expert report. On 9^th September 2008, Dr Lam completed his solo orthopaedic expert report (“Dr Lam’s Report”), but such fact was not disclosed to the Respondent until 19^th November 2008 (see paragraph 22 below).

15.On 19^th September 2008, the Respondent’s solicitors wrote to the Applicant’s solicitors raising inter alia the following enquiries :

(a)  whether the Applicant regarded Dr Lau’s Report as an orthopaedic expert report inclusive of matters of opinion or a treatment medical report so that Dr Lau’s opinion on (i) the causation of the Applicant’s injuries, (ii) percentages as to impairment and loss of earning capacity, and (iii) the type of work the Applicant could undertake would be redacted;

(b)  if Dr Lau’s Report were regarded as a treatment medical report with redaction of matters of opinion, whether the Applicant would appoint an independent orthopaedic expert.

The Respondent’s solicitors added that if the Applicant intended to engage Dr Lau as her orthopaedic expert, they would nominate Dr Chun Siu Yeung (“Dr Chun”) as the Respondent’s orthopaedic expert, but if the Applicant intended to engage an independent orthopaedic expert, they asked for his name so the Respondent could consider whether to appoint such expert as single joint expert or arrange a joint medical examination by the parties’ respective experts.

16.On 22^nd September 2008, the Applicant’s solicitors forwarded a draft joint paper application to the court for consideration by the Respondent’s solicitors. The draft joint paper application stated that pending re-assessment by the Medical Assessment Board (“MAB”) “the parties are not in the position to seek directions as to expert evidence ……”, and requested extension of time until 27^th October 2008 for compliance with the 17/7/08 Order so that the parties could “consider whether to appeal against the result of Form 9 [ie the Certificate of Review of Assessment, “Form 9”] and …… obtain further directions for obtaining expert evidence, if necessary”.

17.On the following day, the Respondent’s solicitors indicated they had no objection in principle to the draft joint paper application, but pointed out it should not be any reason for the Applicant to delay responding to their query over Dr Lau’s Report or to their “request for an orthopaedic examination, which the Respondent will wish to proceed with in any event in view of [the Applicant]’s threatened claim for common law damages ……”.

18.On 28^th October 2008, the Applicant’s solicitors confirmed that the Applicant would not rely on Dr Lau’s Report as orthopaedic expert evidence or retain Dr Lau as orthopaedic expert, and went on to say as follows :

“…… As per the draft joint letter to Court enclosed in [the Applicant’s solicitors’] letter dated 22^nd September 2008, the Applicant is awaiting the date for re-assessment by the [MAB], [the Applicant’s solicitors] are afraid that the parties are not in the position to seek directions as to expert evidence at the present stage. Should [the Applicant’s solicitors] receive the result of the said re-assessment by the [MAB], [the Applicant’s solicitors] shall take instructions from the Applicant as to whether she would attend an examination by [Dr Chun] appointed by [the Respondent].”

19.The parties’ joint paper application was not sent to the court until 28^th October 2008. Its contents were in line with the draft except that the parties asked for extension of time until 6^th February 2009instead of 27^th October 2008 to comply with the 17/7/08 Order.

20.On 3^rd November 2008, H H Judge Lok directed the parties to jointly write to the court within 21 days of receipt of the Form 9 or 90 days from the date thereof, whichever was earlier, on inter alia the status of the re-assessment by the MAB, the issue of the Form 9 and any appeal therefrom, and on the following matter (“3/11/08 Order”) :

“if so required, where appropriate, …… the category of medical expert and whether the parties will appoint joint expert. If not, state whether the parties’ respective medical experts will carry out joint medical examination and prepare joint report. If not, justify why not and state whether invitation has been made for joint examination/report or not, whether such invitation has been declined or not and the reasons therefor”.

H H Judge Lok went on to direct that notwithstanding the above, where any party wished to adduce expert medical evidence at trial and the parties were unable to agree on directions for arranging medical examination by the experts and/or compiling expert reports, they should forthwith jointly write to the court to seek relevant case management directions.

21.On 17th November 2008, the Respondent’s solicitors “proposed to arrange a joint examination with [the Applicant’s] expert Dr. Wong See Hoi [“Dr Wong”] in December 2008. …… Now that [the Applicant has] also commenced common law proceedings, [the Respondent] wishes to proceed as quickly as possible with the joint medical examination and report. Given the manner in which the common law claim has been pleaded and particularly the contents of the Statement of Damages a report on behalf of [the Respondent] will definitely be needed”. The Respondent’s solicitors understood Dr Chun and Dr Wong would have a joint appointment for medical examination on 16^th December 2008 for another case, so they suggested having the joint medical examination for the present proceedings on the same day.

22.On 19^th November 2008, the Applicant’s solicitors wrote to insist that Dr Lau’s Report “would be disclosed and adduced in the usual course as if it were the government report since it recorded the injuries sustained by [the Applicant]”, but they denied having instructed Dr Wong. The Applicant’s solicitors then disclosed for the first time that they had already engaged Dr Lam as the Applicant’s orthopaedic expert, and enclosed a copy of Dr Lam’s Report. They also asked the Respondent’s solicitors for “the date of medical examination by [the Respondent’s] appointed orthopaedist so that [they] shall take [the Applicant]’s instructions thereon”.

23.On 25^th November 2008, the Respondent’s solicitors acknowledged they might have been mistaken about Dr Wong, but expressed dismay and disappointment over the Applicant having commissioned Dr Lam’s Report without reference to them, “which is inconsistent with and contrary to the Practice Directions and particularly [their] invitation for a joint appointment or a joint examination, set out in [their] letter 19.9.08”. The Respondent’s solicitors consequently proposed a solo medical examination of the Applicant by Dr Chun. They further complained that the Applicant’s intention of adducing both Dr Lau’s Report and Dr Lam’s Report (which made references to Dr Lau’s opinion) was tantamount to relying on two orthopaedic expert reports, which should not be allowed.

24.On 1^st December 2008, the Applicant’s solicitors confirmed that the Applicant had no objection to the proposed medical examination by Dr Chun, but expressed surprise over the mix-up in relation to Dr Wong. They reiterated they had made clear in their “letter of reply dated 28^th October 2008 that the Applicant was not in a position to decide whether she would attend an examination by [Dr Chun] appointed by [the Respondent]”, and “[as] regards [the Respondent’s] proposed joint medical examination, [the Applicant’s solicitors], of course, take note of the Practice Directions. However, [the Respondent’s solicitors] would agree that communications between [the Applicant] and medical expert are privileged in nature. It is trite law which overrides any practice directions unless it is legislated.” As regards Dr Lau’s Report, the Applicant’s solicitors insisted on adducing it as a treatment medical report that recorded the Applicant’s injuries. “With due respect, [the Applicant’s solicitors] do not understand the stance of [the Respondent] regarding [Dr Lau’s Report]. [The Applicant’s solicitors] were in the usual course of obtaining it and it was entirely in the hands of Dr. Lau to compile a medical report on [the Applicant].”

25.On 4^th December 2008, the Respondent’s solicitors wrote to the Applicant’s solicitors confirming the appointment for medical examination by Dr Chun on 22^nd December 2008.

26.Form 9 was issued on 10^th December 2008. Form 9 described the Applicant’s injury as “wedge fracture of the 11^th thoracic vertebra resulting in residual back pain (DRE (at III)) and mental disorder”, and assessed his (a) periods of absence from duty necessary as a result of injury to be 20^th November 2006 to 4^th August 2008 and 18^th August to 20^th November 2008, and (b) loss of earning capacity permanently caused by injury to be 13%.

27.On 20^th December 2008, the Applicant filed Notice of Appeal against the assessment of loss of earning capacity in the Form 9.

28.On 22^nd December 2008, Dr Chun carried out his medical examination of the Applicant as arranged.

29.On 20^th January 2009, the Respondent’s solicitors informed the Applicant’s solicitors that Dr Chun wished to see the following documents before finalising his orthopaedic expert report : (a) x-rays taken by Tuen Mun Hospital (“TMH”) and (b) hospital notes and records from TMH relating to the Applicant’s early admission at the accident and emergency department (if any) and from the orthopaedic and traumatology department (“TMH Records”).

30.On 30^th January 2009, Dr Chun completed his preliminary report (“Dr Chun’s Report”) without sight of the TMH Records. On 3^rd February 2009, the Applicant’s solicitors confirmed they were in the course of obtaining the TMH Records.

31.Between 8^th January and 4^th February 2009, the parties liaised over the draft joint paper application to the court that set out their agreements and disagreements as well as proposed case management directions.

32.On 4^th February 2009, the solicitors for both parties jointly wrote to the court to seek case management directions (“4/2/09 Joint Letter”). The 4/2/09 Joint Letter recounted the above developments and advised that Dr Chun would finalise his opinion after sight of the TMH Records by way of a supplemental report. In respect of the lack of any joint orthopaedic expert medical examination/report, “[the] Applicant’s solicitors position is that they were instructed that the Applicant would not like to have a joint examination with the Respondent’s orthopaedic expert as the communication between the Applicant and the Respondent’s expert should be privileged. In the premises, no joint examination/report by the parties’ orthopaedic experts was arranged”. However, the parties were then arranging a joint appointment for medical examination by single joint psychiatric expert Dr Benjamin Lai (“Dr Lai”).

33.Pursuant to the 4/2/09 Joint Letter, H H Judge Lok on 11^th February 2009 gave the following directions by consent (“11/2/09 Order”) :

(a)  parties to file/exchange witness statements as to fact within 28 days from the date thereof;

(b)  expert medical evidence be limited to 1 orthopaedic expert for each party, namely Dr Lam and Dr Chun, and 1 single joint psychiatric expert, namely Dr Lai;

(c)  parties to file/exchange orthopaedic expert reports of Dr Lam and Dr Chun (if to be relied upon) within 35 days from the date thereof.

H H Judge Lok further directed the parties to attend a call-over hearing on 20^th March 2009 before me (“20/3/09 Hearing”) for further directions on expert medical evidence.

34.On 13^th February 2009, the Respondents’ solicitors lodged Dr Chun’s Report (with copy to the Applicant’s solicitors). Since Dr Chun had not seen Dr Lau’s Report and/or Dr Lam’s Report, so depending on whether the matters of opinion in Dr Lau’s Report and mention of the same in Dr Lam’s Report would be expunged, the Respondent’s solicitors took the view that once Dr Lam and Dr Chun had seen each other’s report further joint supplemental orthopaedic expert report would be required for them to identify their agreements and disagreements (“Joint Report”).

III.  Respondent’s summons

35.On 13^th March 2009, the Respondent issued a Summons (“Summons”) seeking the following reliefs :

(a)  the parties to have leave to adduce Dr Lau’s Report at trial but with paragraphs 9-12 thereof relating to matters of opinion deleted;

(b)  the Applicant to have leave to adduce Dr Lam’s Report at trial but with paragraphs 11 (p.5), 16 (p.6) and 11 (p.17) relating to Dr Lau’s opinion deleted;

(c)  the Respondent to have leave to adduce Dr Chun’s Report at trial;

(d)  the parties to have leave to adduce the Joint Report from Dr Lam and Dr Chun commenting upon each other’s orthopaedic expert report and identifying items of agreement and disagreement, and in the case of disagreement, setting out the reasons therefor with any supporting data/authority/ medical literature;

(e)  costs of and occasioned by the application in (a)-(b) above be paid by the Applicant to the Respondent in any event to be taxed if not agreed;

(f)  costs in relation to the application in (c) above be costs in the cause;

(g)  wasted costs of and occasioned by the correspondence between both parties’ solicitors on the subject of appointment of joint orthopaedic experts and commission of a joint orthopaedic expert report (but excluding the letter dated 17^th November 2008 in paragraph 21 above) be paid by the Applicant’s solicitors to the Respondent in any event and taxed if not agreed;

(h)  the Respondent’s costs of and occasioned by instructing and arranging the Joint Report to be obtained and considering the same including Dr Chun’s fees incurred in respect thereof be paid by the Applicant to the Respondent in any event, such costs to be taxed if not agreed.

36.The Summons was supported by an affidavit of Mr Claypole, solicitor for the Respondent, dated 13^th March 2009 which exhibited Dr Lau’s, Dr Lam’s and Dr Chun’s Reports and the correspondence between the parties’ respective solicitors.

37.On 13^th March 2009, the Respondent filed Notice of Appeal against the Form 9.

38.Pursuant to the 11/2/09 Order, the parties filed their respective witness statements as to fact on 20^th and 23^rd March 2009, and Dr Lam’s and Dr Chun’s Reports on 13^th and 23^rd March 2009 respectively.

IV.  Dr Lau’s Report

39.At the 20/3/09 Hearing, Mr Ng, solicitor for the Applicant, conceded that the Respondent was entitled to the reliefs sought in the Summons as set out in paragraphs 35(a)-(b) above, and I made an order in terms accordingly.

40.In my view, Mr Ng’s concession is clearly correct because there is no sufficient basis for the Applicant to insist on adducing Dr Lau’s Report in its entirety as a treatment medical report. Regrettably, such concession was late in coming and led to unnecessary costs.

41.It is evident on the face of Dr Lau’s Report that the Applicant consulted him as treating doctor between 6^th August 2007 and 26^th May 2008. The Applicant elected to rely on Dr Lau’s Report as a treatment medical report. Further, the 11/2/09 Order limited orthopaedic expert evidence to 1 orthopaedic expert from each party, and the Applicant nominated Dr Lam as her orthopaedic expert.

42.Since no leave was granted for the Applicant to adduce matters of expert opinion from Dr Lau (in contra-distinction to his factual record of relevant medical findings/treatment), Mr Claypole understandably objected to the following statements (which I accept are statements of opinion rather than matters of fact) in Dr Lau’s Report :

(a)  “[it] is believed that the alleged [Accident] would be the cause” (paragraph 9);

(b)  “[according] to the Guides to the Evaluation of Permanent Impairment, Fifth Edition, by American Medical Association, the rational rating would be Impairment Classification Due to Pain Disorders and ROM of Lumbar Spine Disorder. The pain would be 3% and the loss of motion would be 5%. The combined rating would be 8%” (paragraph 10);

(c)  “[in] view of her condition, her Permanent Disability (PD) would be 8%. According to her working experience, her Loss of Earning Capacity will be 10%” (paragraph 11);

(d)  “[the Applicant] cannot resume original duty. She could attempt sedentary work like toll collector or cashier. She needs regular home exercise and intermittent rest at work to prevent further deterioration” (paragraph 12).

43.Nevertheless, the Applicant’s solicitors by their letters dated 19^th November and 1^st December 2008 (see paragraphs 22 and 24 above) insisted that Dr Lau’s Report (inclusive of the aforesaid matters of opinion) be adduced as non-expert medical treatment report, and even went so far as to say they had no control over how Dr Lau compiled his report.

44.In my view, such arguments are plainly fallacious, and reflect a fundamental misunderstanding as to the difference between a professional factual witness and an expert witness.

45.A treating doctor renders his medical report and/or testify in court as a professional witness on observed facts (eg what the patient told him, what symptoms were reported, what investigation/examination was undertaken, what medical advice/treatment was given, etc) rather than offer expert medical opinion (eg opinion on the causation, aetiology, diagnosis and/or prognosis etc of the injuries). Thus, information from the treating doctor is normally non-controversial, and his medical reports/records are usually admitted without calling him to testify in court.

46.On the other hand, an expert doctor is qualified by his experience and expertise in a medical specialty, and usually has no prior therapeutic involvement with the injured party. He is expected to give impartial opinion on particular medical issue(s) to assist the court on the basis of assumptions of fact provided to him in written or other form and/or his own examination of the injured party. His opinion/report is for the benefit of the court and independent of such party. Permission of the court is generally required for adducing such expert opinion evidence at trial.

47.In the present case, Dr Lau’s Report fell into the grey area between expert and treatment medical reports. It spoke to both matters of fact (eg the symptoms reported by the Applicant and the treatment given) and opinion (eg the causation of the injuries and the impairment resulting therefrom). However, the fact that Dr Lau has been the Applicant’s treating doctor does not excuse the Applicant from having to seek leave of the court before adducing matters of expert opinion from Dr Lau.

48.In my view, since each party has only 1 orthopaedic expert (and there is no suggestion there should be more than 1 orthopaedic expert) and further since the Applicant has nominated Dr Lam as her own orthopaedic expert, matters of opinion expressed in Dr Lau’s Report must be redacted. To allow such opinion to be adduced at trial is give unfair advantage to the Applicant who may then seek to persuade the trial judge to accept the expert medical opinion of either or both Dr Lau and Dr Lam whilst the Respondent on the other hand will be constrained to oppose the Applicant’s claim by relying on expert medical opinion from only Dr Chun. Such approach will undoubtedly cause the Respondent to feel a sense of unfairness or grievance. In the parlance of the underlying objectives under the Civil Justice Reform, it does not serve the purpose of ensuring justice between the parties or even of promoting a sense of reasonable proportion.

49.Practitioners who instruct medical doctors to prepare medical reports should take special care to make clear the purpose for which the reports are required. If the intention is to obtain a treatment medical report, the solicitors giving instructions should not attempt to probe into matters that may lead the doctor unwittingly into expert territory. Likewise, the doctor on receipt of instructions should be precisely clear to as what question is being asked and/or what information is being requested, and if there is any ambiguity or doubt arising from the letter of instructions, he should seek clarification.

50.Even for the purpose of preparing an expert medical report, the medical expert must bear in mind the distinction between fact and opinion, and make clear which parts of his expert report are based on fact and which are opinion. Mixing of fact and opinion in an expert report can lead to confusion not only for those instructing him, but also and more importantly for the court.

51.Since Mr Ng conceded that the Applicant would no longer rely on matters of opinion in Dr Lau’s Report, it is plain that such opinion cannot be slipped into evidence via the backdoor through references to such opinion in Dr Lam’s Report. Mr Ng therefore further conceded that the whole of paragraphs 11, 16 and 11 on pages 5, 6 and 17 respectively of Dr Lam’s Report should be redacted.

52.For the sake of completeness, I agree with Mr Claypole that the court has power to rule on the admissibility of expert opinion evidence before trial (see Ko Chi Keung v Lee Ping Yan [2001] 1 HKLRD 829). The relevant principle is succinctly summarised by Chu J in the subsequent case of Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd & Another [2002] 3 HKLRD 507, 511-512 as follows :

“11.  Modern judicial authorities recognise that the court has inherent power to rule on the admissibility of expert evidence at a pre-trial stage : Woodford and Ackroyd v Burgess [2000] CP Rep 79, Ko Chi Keung v Lee Ping Yan Andrew [2001] 1 HKLRD 829 and Lee Kin Yee Lee &Others v Lee Wing Kim & Another (unrep., HCA No.9522 of 1997, [2001] HKEC 1546). Where the proposed expert evidence is plainly inadmissible or irrelevant, the court ought to exercise its discretion to refuse the admission of such evidence. But where the court cannot form a clear view on the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at the trial : Ko Chi Keung v Lee Ping Yan at p.833 and LeeKin Yee & Others v Lee Wing Kim  & Another at p.15.

12.  In deciding whether certain proposed expert evidence should be received, the relevant test has been stated to be a two-stage one. Firstly, the evidence has to be admissible as “expert evidence” for the purpose of s.58 of the Evidence Ordinance (Cap.8). Secondly, the evidence must be relevant, in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved : Barings plc (in Liquidation) & Another v Coopers and Lybrand & Others (unrep., 9 February 2001), Evans-Lombe J at paras.44-45.”

V.  Solo orthopaedic expert report

53.There is no doubt that by early September 2008 the Applicant has obtained Dr Lam’s Report as a solo orthopaedic expert report without any prior or even subsequent intimation to the Respondent (at least until 19^th November 2008) or to the court (at least until 4^th February 2009). The significance of such reticence on the part of the Applicant must be viewed in light of the case management developments in this case.

54.I note that as early as in mid-March 2008 the Applicant lodged objection against the Form 7, and in mid-June 2008 appealed against the Form 7 in the present proceedings (see paragraph 10 above). Plainly, the Applicant was dissatisfied with the assessment by the MAB right from the outset of the present proceedings. So even at that early stage, the Applicant must have anticipated a real probability that expert medical evidence would be required for the present proceedings.

55.Such anticipated need and real likelihood of requiring expert medical evidence for the present proceedings is underlined by the fact that in mid-July 2008 the parties applied by consent for directions to jointly write to the court within 70 days to propose expert directions (if required) specifying the number and category of medical experts and to lodge expert medical reports together with the joint letter.

56.The fact that the court granted an order in terms by way of the 17/7/08 Order is certainly not a carte blanche for any party to obtain solo expert medical report without inviting the other party for single joint or joint medical examination/report or without seeking appropriate case management directions from the court. More importantly, there is no escaping the fact that the Applicant’s solicitors were perfectly aware about this.

57.In fact, more than a year before the 17/7/08 Order, I have in Ansar Mohammad v Global Legend Transportation Limited DCEC1090/2006 (unreported, 8^th May 2007) discussed in some detail the function of expert medical evidence and the interplay between the adversarial model and case management. I explained in Ansar Mohammad that even prior to the Civil Justice Reform the full adversarial model that gave freedom to a litigant to choose his own lay/ expert witnesses and to present such lay/expert evidence in the manner as he saw fit must be tempered by the court’s inherent case management powers to ameliorate the ills that flow from giving the adversarial model free rein. It is useful to reiterate some of the fundamental principles :

“ 42.  In respect of expert medical evidence, the primary goal of case management is to encourage useful, proportionate and cost-effective expert medical evidence/reports, to reduce delay and cost, to narrow the issues and reduce the scope of the evidence, and to enable just and efficient resolution of the real issues. Close scrutiny of the preparation of expert medical reports and early adoption of effective procedural measures can help ensure that expert medical evidence in each case will be in the most appropriate form, will not stray from the identified issues and will be made available in a timely fashion for doing justice between the parties.

43.  Given such objectives, an exercise of these case management powers may involve approaches that seem to depart from party-driven litigation under the adversarial model where the parties carry the primary duty of identifying the issues, adducing relevant evidence and generally advancing their own case.

44.  In the area of personal injuries litigation, the shift towards tighter control by judges and masters on the progress and carriage of such litigation was spearheaded by Seagroatt J whose trenchant remarks on case management serve as useful reminders to litigants and their legal representatives to take all necessary steps to minimise delay/costs, facilitate early settlement of cases and improve decision-making in the course of the proceedings. Practice Direction 18.1 gives further guidance on effective, expeditious and cost-minimising case management. Whilst there is no specific practice direction for employees’ compensation cases, judges have all along “borrowed” good sense case management directions that are not infrequently made in personal injuries cases.”

58.In Ansar Mohammad, I went on to explain why the courts encouraged the adoption of a joint approach to obtaining expert medical evidence by joint medical examination of the injured party by the parties’ respective medical experts and by joint expert medical report that set out the matters on which they agreed and/or disagreed and the reasons for non-agreement. The advantages of the joint approach are manifold :

“(a)  to prevent confusion and time-wasting when it is discovered at an advanced stage of the legal proceedings that the parties’ respective medical experts are proceeding on different medical background of the party to be examined, different complaints by such party, and/or different findings from the physical examination/other investigation;

(b)  to identify at an early stage the medical issues, the relative merits of the claim and the areas in which the parties may reach agreement;

(c)  to facilitate settlement or (if settlement cannot be achieved) facilitate preparation for trial that will be focused on the issues in dispute.” (see paragraph 46)

59.I also drew on the approach adopted in the context of personal injuries litigation where it was not unusual to find that the objective of fair and expeditious determination of claims and the need to avoid proliferation of expert evidence leant towards joint medical examination as reflected in the Guidance Note to the pre-CJR Practice Direction 18.1 :

“Paragraph 2

Many practitioners obtain reports in every conceivable medical or quasi-medical discipline before they establish sensible contact with the insurance company concerned or their solicitors e.g. orthopaedic, neurological, urological and psychiatric reports, and reports from an occupational therapist, physiotherapist, rehabilitation consultant, surveyor etc. What they should be doing instead of this “front-loading” exercise on costs is to invite the Defendants to take part in a joint examination by respective experts, or in a joint instruction to an agreed expert. Failure to do so is likely to result in the Plaintiff's' practitioners not recovering such costs from Defendants in the event of a settlement or a judgment against the Plaintiff.

The Court will be alert to prevent, when it can, practitioners from recovering such costs from the Plaintiff or out of the Plaintiff's damages.”

60.Whilst I have no doubt the Applicant’s solicitors must have been generally aware of the above judicial guidance in the context of employees’ compensation cases, it is abundantly clear that this has been specifically brought home to Mr Ng (who is the handling solicitor having prime responsibility of the present case on behalf of the Applicant) by my decision in Lau Lai Shan v Hospital Authority DCEC784/2007 (unreported, 29^th February 2008) because Mr Ng also acted for the applicant in that case.

61.In Lau Lai Shan, I adopted my observations in Ansar Mohammad and went on to say as follows :

“31.  I have in paragraphs 46-47 of my decision in Ansar Mohammad set out the case management objectives and advantages in requiring parties in employees’ compensation cases to produce joint expert medical reports pursuant to a joint medical examination by their respective medical experts in order to identify the agreed matters and to identify/reduce the areas of dispute thereby minimising time and costs of litigation. Early focus on the real medical issues to be resolved is plainly a laudable case management objective in any personal injuries litigation.

32.  A joint medical examination also alleviates the risk of dispute on history taking and on observations (which may include objective or subjective signs, eg in the orthopaedic context, muscle wasting, muscle guarding/spasm, Waddell’s signs) during physical examination by competing medical experts. This is of some moment because disputes on such matters go to the underlying assumptions that form the basis of expert opinion and such disputes compound the court’s difficulty in assessing competing medical opinion and in answering the ultimate medical issues. By capturing such information and observations in a single medical examination, areas of dispute over expert opinion will obviously be reduced.

33.  A joint expert report requires the medical experts to confer, which has the advantage of minimising extreme views. When a medical expert has to justify his opinion to a fellow professional, partisan opinion tends to become more balanced and/or moderated. The discussion between experts may also reveal relevant facts or information that are not appreciated by one of them and may help in identifying and putting aside peripheral issues. The joint discussion and the exercise of drafting the joint report can lead to greater focus on narrowing the medical issues and expert opinion, and on defining significant areas of disagreement, which coincide with the fundamental purpose of case management. Contrary to what Mr Ng suggested, such approach should facilitate reasonable and honest settlement, and even if it does not result in settlement, it will ensure efficiency of the trial by bringing the essential issues into sharper relief. All this translates into savings in time and costs. To harness the advantages discussed above, it is essential for the medical experts to confer at the earliest stage to ensure they consider the same primary information, address the same issues and give opinion on the same medical questions.”

62.With (a) such clear guidance on the benefits of the joint approach for obtaining expert medical evidence especially in the orthopaedic category, (b) the plain and obvious expectations of the court as to the how parties should approach the matter of obtaining expert medical evidence, and (c) the anticipated need for expert medical evidence for the present proceedings, it is an understatement to say that the court is perturbed by the Applicant’s wholesale disregard, presumably under advice by Mr Ng, of the guiding principles in the authorities in her furtive attempt to obtain solo orthopaedic expert report without intimation to the Respondent or to the court. The Respondent’s “dismay and disappointment” are palpable and fully understandable, and have been acknowledged in the eventual order (especially the costs order) I made at the 20/3/09 Hearing.

63.Interestingly, the Applicant did not expose the reasons for adopting the solo approach until December 2008 and February 2009 although she disclosed Dr Lam’s Report in mid-November 2008. In the 4/2/09 Joint Letter, the Applicant’s solicitors claimed they were instructed that “the Applicant would not like to have a joint examination with the Respondent’s orthopaedic expert as the communication between the Applicant and the Respondent’s expert should be privileged”. In the letter from the Applicant’s solicitors dated 1^st December 2008, the Applicant referred to her right to maintain privilege over her communications with her own orthopaedic expert “which overrides any practice direction unless it is legislated”.

64.I am not with the Applicant in her arguments. Given the background of the 17/7/08 Order, the Applicant clearly intended to adduce or anticipated a probable need to adduce Dr Lam’s Report in the present proceedings. Indeed, as Mr Claypole submitted, upon receipt of Dr Lam’ Report the Applicant could not have been still considering privilege because realistically she could not have hoped for any much higher assessment of loss of earning capacity in the Form 9 (which eventually was 11%) than Dr Lam’s assessment of 22.5% as opposed to 2% in the Form 7. That being so and, as pointed out in Lau Lai Shan (see paragraph 17 therein) and as the Applicant’s solicitors must have been aware, there being no entitlement to adduce opinion evidence from experts in legal proceedings without permission by the court, the court is clearly empowered to determine how expert medical evidence is to be obtained and presented so the court can be assured that the ensuing expert report/evidence will be useful to the court in its ultimate adjudication by bringing clarity to the schools of thought on the disputed issues (see also Mok King Sun v Turn Around Company Limited & ors HCPI865/2007, Fung J (unreported, 25^th March 2009)).

65.In my view, it is plain as pikestaff that the Applicant and/or her solicitors consciously decided to obtain Dr Lam’s Report on a solo basis without notice to either the Respondent and/or the court and purportedly under the shield of legal professional privilege with a view to present such fait accompli to the court when in due course they seek expert directions in the present proceedings.

66.In Lau Lai Shan, Mr Ng acting for the applicant in that case was not shy in giving precisely such reason for obtaining a solo orthopaedic expert report also from Dr Lam. In paragraph 41 of Lau Lai Shan, I roundly rejected any such attempt by the applicant to force the court’s hands (by brushing aside judicial encouragement for a cooperative approach to obtaining expert medical evidence and thereby self-creating such fait accompli) as being an unwarranted attempt to usurp effective case management by the court.

67.In Lau Lai Shan, the very arguments relied on by the Applicant in the present case were rejected as follows :

“37.  However, the Applicant insists on legal professional privilege and declines joint medical examination and/or joint report for the purpose of both the present employees’ compensation proceedings and also in the context of the HCPI Action despite the good practice guidance in the Guidance Note to Practice Direction 18.1 as follows : ……

38.  Mr Ng submitted that the guidance in Practice Direction 18.1 was not mandatory and the Applicant could ignore the same so long as she was willing to bear the costs consequence of non-compliance. In my view, the focus of the guidance in Practice Direction 18.1 is not on the cost penalties on non-compliance of the recommended approach, but on the fact that such approach reflects the case management goals of achieving justice and encouraging fair, expeditious and cost-saving determination of claims. In personal injuries and employees’ compensation litigation, where medical expert evidence is often used, the significant advantages of joint medical examination and joint expert report discussed above are such that the court should be satisfied there are cogent and compelling reasons to decline following such approach. It is not enough for a party to insist on separate medical examination and separate expert report provided he or she is willing to bear the costs consequences.

39.  Bearing in mind that it is the Applicant who puts the medical questions in issue and who wishes to adduce expert medical evidence to support its applications, and further noting that (a) expert orthopaedic evidence in employees’ compensation cases arises from substantially established if not well-trodden area of knowledge and (b) there is no suggestion here of any need to sample a range of controversial medical opinion, I am of the view that, given the advantages of adopting a cooperative approach to expert medical evidence from an early stage as discussed above (see also paragraphs 56-57 of my decision in Ansar Mohammad), the appointment of separate orthopaedic experts in the present case do not preclude joint medical examination and joint expert report. In fact, upon consideration of the above matters, I find it axiomatic that such approach should be adopted in the present case.

40.  Further, such approach is not an abrogation of legal professional privilege. It merely reflects that where a party seeks the permission of the court to rely on expert medical evidence, the court, upon considering the principles of justice and the case management objectives discussed above, can require a cooperative approach on such expert evidence as a condition of being permitted to adduce the same. I also note that the overriding duty of the orthopaedic experts of both parties herein is to give impartial and unbiased opinion to assist the court, and that in adopting a cooperative approach both parties are subject to the same even-handed treatment.” (my emphasis)

68.Bearing in mind Lau Lai Shan, it is surprising indeed that the Applicant and/or her solicitors should consciously ignore judicial guidance to invite the Respondent for joint orthopaedic medical examination/report on exactly the same grounds as those that have been rejected by the court. There is nothing in the materials before this court that give rise to any countervailing consideration that may mandate a solo instead of joint approach to obtaining orthopaedic expert evidence. The fact that the parties came to terms easily enough for appointing a single joint psychiatric expert belies the Applicant’s claimed rationale for insisting on solo orthopaedic expert report. In all the circumstances (including the matters discussed below), it is specious for the Applicant to raise the banner of legal professional privilege in a crafty attempt to avoid the joint approach for orthopaedic expert evidence.

69.The court further notes with further consternation the disingenuous stance adopted in the correspondence by the Applicant’s solicitors.

70.The Applicant and her solicitors, having thus obtained Dr Lam’s Report, knew by early September 2008 that the Applicant was fit for expert orthopaedic examination/assessment. Indeed, Dr Lam’s Report stated that the Applicant’s back and left wrist injuries had reached maximum medical improvement, and Dr Lam was comfortable in proceeding with his own medical examination of the Applicant.

71.The Respondent’s solicitors wrote to the Applicant’s solicitors on 19^th September and 28^th October 2008 (see paragraphs 15 and 18 above) to invite single joint or joint orthopaedic medical examination for the purpose of the present proceedings in line with the above judicial guidance. By that time, there was also a threatened claim by the Applicant for common law damages. The Respondent’s solicitors were very much alive to the provisions in the pre-CJR Practice Direction 18.1 for obtaining single joint or joint expert medical report under the pre-action protocol, and in fact so informed the Applicant’s solicitors by their letter of 23^rd September 2008 (see paragraph 17 above).

72.Nevertheless, despite having gained a perceived tactical upper hand of having obtained Dr Lam’s Report which could readily be used for both the employees’ compensation proceedings and the common law damages claim whilst the Respondent still did not have any available expert medical evidence, and well knowing that the Applicant was by then already fit for medical assessment by orthopaedic expert, the Applicant’s solicitors insisted that expert directions be deferred until the issue of the Form 9 and only then would they “take instructions from the Applicant as to whether she would attend an examination by [Dr Chun] ……” (see paragraph 18 above).

73.But in reality the Applicant already had their orthopaedic expert evidence in place. Even up to the 20/3/09 Hearing before me, there was no suggestion that Dr Lam required sight of the Form 9 to finalise his expert medical opinion. I am unable to say how it can be fair and just or how it can facilitate settlement for the Applicant and/or her solicitors to threaten commencement of common law damages claim aided by expert medical evidence up their sleeve but at the same time stall the Respondent’s request for orthopaedic expert examination. On any count, it affronts any sense of justice and fair play between litigants.

74.Indeed, even when H H Judge Lok granted the 3/11/08 Order for parties to jointly write to the court within 21 days of the issue of the Form 9 or within 90 days from the date thereof to (a) seek expert directions, (b) give justification if a joint approach was not adopted and (b) forthwith seek directions from the court if there was no agreement on expert medical examination/report, the Applicant and/or her solicitors made no attempt to disabuse the plainly mistaken conception of the Respondent and the court that expert medical evidence was still pending by frankly informing them she would refuse the Respondent’s overtures for any joint orthopaedic medical examination/report.

75.Even more disquieting is the fact that ultimately on 19^th November 2008 the Applicant disclosed Dr Lam’s Report to the Respondent’s solicitors and indicted willingness to undergo solo medical examination by Dr Chun before the issue of Form 9 on 10^th December 2008. This clearly shows that the alleged need to sight the Form 9 before considering expert directions or expert medical examination by Dr Chun as previously insisted was in fact of no moment to the Applicant.

76.The practical reality is that by that time the Applicant has issued common law proceedings and the pre-action protocol providing for single joint or joint approach to expert medical reports has been effectively circumvented. Having thus achieved such perceived tactical advantage, the Applicant or her solicitors were thus comfortable in disclosing Dr Lam’s Report without sight of the Form 9 when the Respondent’s solicitors renewed their request for joint expert medical examination/report. Indeed, the Applicant’s solicitors even offered to take instructions from the Applicant for medical examination by Dr Chun without waiting for the Form 9 to be issued. All these developments reflect the hollowness of the Applicant’s reasons for deferring directions for expert medical report/evidence, which consequently raises doubt as to whether the Applicant’s and/or her solicitors’ efforts in holding off the Respondent’s reasonable overtures for single joint or joint expert medical examination are as irreproachable as suggested.

77.A similar tactic was adopted in Lau Lai Shan and was rejected :

“41.  Mr Ng next proposed that directions on the disclosure of expert medical reports be deferred until the Applicant obtained her expert orthopaedic report. He did not deny that such approach was offered so as to enable the Applicant to obtain her own separate expert orthopaedic report and then present the court with such fait accompli when directions are sought in future for disclosure of expert medical reports. This of course is an attempt to usurp effective case management by the court, and is necessarily rejected.”

78.In the circumstances, I am unable to discern any compelling reason for the Applicant to deny a joint approach to obtaining orthopaedic expert evidence. Indeed, I find it appropriate and of assistance to the court in its ultimate adjudication in the present proceedings to require the parties to arrange joint medical examination and joint expert report by their respective orthopaedic experts. Had the parties come before me for directions before the Applicant commissioned Dr Lam’s Report, this is what I would have ordered.

79.I agree with Mr Claypole that since Dr Chun did not yet have sight of Dr Lam’s Report (with references to Dr Lau’s opinion redacted) and of the TMH Records, a supplemental expert report is in any event required. More importantly, in light of the disagreements on various issues between Dr Lam and Dr Chun, a joint supplemental orthopaedic expert report is needed for Dr Lam and Dr Chun to comply with paragraph 64 of the Practice Direction 18.2 which codifies what is usually expected of medical experts preparing a joint expert report (see paragraph 33 of Lau Lai Shan at paragraph 61 above) and which provides as follows :

“64.  Without prejudice to the generality of paragraph 8 of Appendix E, RDC, and in addition to the provisions in paragraph 63 hereof, the parties' respective experts when preparing joint expert report should be asked to adopt and specify in such report the common parameters upon which their opinions are based, and they should be asked to specify in the joint expert report:

(1)  if different parameters have been used, the parameters upon which each expert's opinion is based and the reasons for adopting different parameters;

(2)  the issues on which the experts have reached a common opinion and in respect of each such issue what that common opinion is;

(3)  the issues on which the experts have failed to reach a common opinion and their competing views on each such issue; and

(4)  the reasons for a given expert’s disagreement with any opposing expert's views on each such issue.”

80.The Applicant and/or her solicitors should have taken the initiative to invite joint orthopaedic medical examination/report. Even if they failed to do so, they should have promptly responded to the overtures from the Respondent’s solicitors for single joint or joint orthopaedic medical examination by disclosing the fact they had retained Dr Lam as orthopaedic expert and received Dr Lam’s Report, so that either or both parties can apply to the court for case management directions on expert medical report/evidence instead of wasting further time and costs in correspondence on the subject. Since the Applicant and/or her solicitors brushed off judicial guidance on procedural cooperation in obtaining expert medical reports with such disdain, the court’s disapproval of their obstructive attitude must necessarily be reflected in the eventual order including the relevant costs order.

81.At the 20/3/09 Hearing before me, Mr Ng did not seek to justify the Applicant’s stance, and conceded that the Joint Report be obtained on the basis that the Applicant shall not be entitled to Dr Lam’s costs in respect of any joint medical examination of the Applicant and his preparation and finalisation of the Joint Report. In light of the aforesaid considerations and Mr Ng’s concession, which Mr Claypole had no objection, I granted the following directions at the 20/3/09 Hearing :

(a)  parties to jointly write to the court within 7 days from the date hereof on the following :

(i)  state whether Dr Lam and Dr Chun required a joint medical examination of the Applicant to prepare the Joint Report;

(ii)  if so, state when the date of such joint medical examination would be held;

(iii)  state the date when the Joint Report would be ready and available for filing;

(iv)  state the proposed date when the Joint Report could be filed;

(v)  state the proposed date when the case could be restored for further Direction Hearing;

(vi)  seek all necessary and appropriate case management directions;

(b)  the Applicant to file the single joint psychiatric expert report of Dr Lai on or before 25^th July 2009 pursuant to his medical examination of the Applicant scheduled on 1^st June 2009;

(c)  the aforesaid medical examination date and filing deadline were committed date/deadline, and the parties should forthwith inform Dr Lai and the Applicant of the same;

(d)  the Applicant should forthwith (any in any event no later than 5 days) write to the court with copy to the Respondent upon any non-compliance or anticipated non-compliance of the aforesaid committed date/deadline giving detailed reasons therefor;

(e)  parties to file witness statements as to fact within 5 days from the date hereof;

(f)  costs of the Summons and of the 20/3/09 Hearing be costs in the cause;

(g)  the Applicant shall not be entitled to Dr Lam’s costs in respect of any joint medical examination of the Applicant and his preparation and finalisation of the Joint Report;

(h)  the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

82.With the implementation of the Civil Justice Reform, practitioners should take note of Part G of Practice Direction 18.2 which sets out the protocol for commissioning expert reports. Those who obtain solo expert medical evidence before obtaining leave does so at their own risk as to costs and/or eventual refusal of leave to adduce such expert evidence (see paragraph 47). The practice direction also requires the relevant party(ies) to forthwith apply to the court for directions (a) when there exists a need or an anticipated need for adducing expert evidence at trial, (b) if the parties fail to reach agreement on arranging joint examination and/or compiling joint expert report by the parties’ respective experts, or (c) if no agreement can be reached as to directions on obtaining expert evidence and/or for permission to adduce expert evidence.

83.The court will also exercise proactive case management with increased vigour. Litigants/lawyers should bear in mind the underlying objectives in Order 1A of the Rules of the District Court (“RDC”) of (a) increasing the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the court, (b) promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings, (c) ensuring fairness between the parties, and (d) facilitating the settlement of disputes. The court also has a duty under Order 1A rule 4(1) and (2)(a) of the RDC to actively manage cases that includes “encouraging the parties to co-operate with each other in the conduct of proceedings”.

84.Further, in addition to the discussions in these Reasons, practitioners should take heed of the benefits of the joint approach to expert medical evidence succinctly summarised by Fung J in Mok King Sun as follows :

“25.  I wish to point out that the purpose of taking medical expert evidence in personal injuries cases is not therapeutic but forensic.  The Court retains the control on how expert evidence should be presented in order to attain the saving of costs and fair disposal of the cause or matter.

26.  Whilst I am not deciding on whether to order a joint examination and report (especially in psychiatry), I think some general observations on the benefits of joint examination and reporting is helpful:

(1)  avoidance of different observations on different occasions, or disputes on observations under single examination;

(2)  discussions amongst the experts to narrow down the issues;

(3)  specifying matters agreed and matters not agreed and the reasons for any non-agreement;

(4)  avoidance of numerous supplemental reports commenting on the reports of the other side;

(5)  minimizing the need to call the experts to deal with matters which could have been dealt with under (1) to (4) above.

27.  The Final Report on Civil Justice Reform pinpointed that partisanship and lack of independence on the part of the experts will undermine their roles in the judicial process. 

28.  In the Code of Conduct for Expert Witness in Annex D to Rules of the High Court (Amendment) Rules 2008 (commencing on 2 April 2009), para. 12 provides that:

“12.  An expert witness shall abide by any direction of the Court to –

(b)  confer with any other expert witness;

(c)  endeavour to reach agreement on material matters for expert opinion; and

(d)  provide the Court with a joint report specifying matters agreed and maters not agreed and the reasons for any non-agreement.”

29.  During a joint examination, if there are ambiguities and/or doubts at any stage,  the experts should discuss and seek clarification there and then.  Experts should discuss on crucial observations swaying their opinions and put forward their reasons to the opposite experts, as they are expected to be open in their reasoning, and to cooperate in narrowing down the issues.  Gentlemanly professionals can always agree to disagree.”

85.In my view, it is through the generosity of the Respondent that the Applicant and/or her solicitors escaped liability for costs sought in the Summons as set out in paragraph 35(e), (g) and (h) above. Had the Respondent pursued the matter, I cannot say it will not succeed. Practitioners are cautioned to take note of this.

VI.  Director of Legal Aid

86.In this case, given that the above directions were granted prior to the Civil Justice Reform and before the firm reminder given in these Reasons, I have exercised my discretion to grant legal aid taxation of the Applicant’s own costs.

87.However, the practical result of the Applicant’s stance, presumably adopted under advice by the Applicant’s solicitors assigned by the Director of Legal Aid, is that the Applicant (and consequently the Director of Legal Aid) will have to bear the costs and expenses of engaging Dr Lam to prepare and finalise the Joint Report, which costs and expenses are not recoverable from the Respondent even if the Applicant ultimately succeeds in her claim.

88.As I have explained, the Applicant is fortunate that the Respondent adopted a reasonable stance on costs. In future, given the provisions in Practice Direction 18.2 and the reminder in these Reasons, there is a real risk that not only will the relevant party not be able to recover the costs of preparing and finalising any joint supplemental expert medical report which the court considers necessary, he and/or his solicitors may even be responsible for wasted costs awarded in favour of the other party.

89.Underlying such risks as to costs is the more fundamental concern of distortion of fairness and justice as a result of zealous adversarialism. The assumption as trite law by the Applicant in the present case that a rights based approach can override with impunity any practice direction (on the basis that such practice direction is not “legislated”) or judicial guidance on procedural cooperation so long as she is willing to bear the costs consequences do not appear to sit well with the underlying objectives in Order 1A of the RDC and/or reasonable and prudent use of public funds.

90.Since the applicant in Lau Lai Shan and in the present case are legally aided and public funds were/are involved, I direct my clerk to forward a copy of these Reasons to the Director of Legal Aid for his consideration and for appropriate guidance to assigned solicitors on fair and reasonable conduct of litigation that uses public funds.

91.Practitioners should take note that the court does not necessarily grant legal aid taxation of the aided party’s costs as a matter of course. In future, in similar circumstances as in the present case, the court may need to be satisfied that the Director of Legal Aid has been properly advised on risks as to costs and that a refusal of legal aid taxation (or a wasted costs order) is not appropriate before granting legal aid taxation. The court may also grant leave for or even require the Director of Legal Aid to appear and address on such issue.

Representation:

Mr Peter Ng of Messrs W K To & Co for the Applicant.

Mr Richard Charles Claypole of Messrs Munros for the Respondent.