Maysun Engineering Co Ltd v. International Education and Academic Exchanges Foundation Co Ltd t/a Hong Kong Institute of Technology

DCCJ 27/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 27 OF 2006

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BETWEEN

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Coram : Her Honour Judge Mimmie Chan (sitting in Court as in Chambers)

Date of hearing : 6 August 2010

Date of handing down decision : 22 September 2010

DECISION

The Application

1.This is an application by the Defendant ("Institute") for leave to adduce the supplemental expert report of Mr. Kenneth Chan ("Mr. Chan"), which application is opposed by the Plaintiff ("MEC"). MEC applies for an order that the said report, the earlier expert report of Mr. Chan dated 10 October 2005 and the entirety of Mr. Chan's expert evidence including his opinion as stated in the Joint Report of Mr. Chan and Mr. Ludwig Hon ("Mr. Hon") dated 19 August 2009 are inadmissible as expert evidence.

2.The application was made by Summons issued on 30 July 2010 ("Summons"), trial having commenced on 1 February 2010. The trial was initially fixed for 4 days, but by the return day of the Summons, the trial was into its 10th day. The application was finally heard on the 11th day of trial, after Mr. Hon had completed his evidence in the capacity of MEC's expert, and before Mr. Chan was called as the Institute's purported expert. The trial had originally been scheduled to continue on 30 November 2010, and I reserved judgment on the application.

The background

3.By way of background, MEC commenced these proceedings against the Institute for recovery of a sum of $641,133.69, being what it claims to be the balance of the amount due under a contract made between MEC and the Institute ("Contract") for fire services works, electrical works and other additional works ("Works") carried out at the premises of the Institute at 2, Breezy Path, Mid Levels, Hong Kong ("Site"), and damages. MEC claims that the Institute was in repudiatory breach of the Contract, by failing (amongst other things) to provide the necessary design information and design drawings to facilitate MEC to carry out the Works in accordance with the Contract, to provide the necessary building works required to enable MEC to carry out the Works, to make payment of interim payments due to MEC under the Contract, and to provide employee's compensation insurance in respect of the Works. MEC further claims that the Institute instructed MEC on 24 September 2005 and 28 September 2005 to remove its tools and machinery from the Site. MEC claims that it had accepted the Institute's repudiatory breach by removing its tools and machinery on 4 October 2005, but is entitled to claim for payment in respect of the Works done prior to the Institute's repudiation, and to damages including loss of profits and the cost of materials left unused on the Site.

4.By way of defence, the Institute denies that it was in breach of the Contract. It claims that MEC was contractually bound to provide design drawings for the Works, and to submit layout plans to the Fire Services Department for approval before the fire services works could commence on the Site. The Institute claims that it was an implied term of the Contract that MEC would maintain or provide adequate insurance cover for MEC's employees. It further claims that it had no obligation under the Contract to provide the building works alleged by MEC to be necessary to enable it to carry out the Works. In summary, the Institute claims that it was MEC which was in breach by failing to perform its contractual duties, and by suspending work since 19 September 2005.

5.At the core of the dispute is the extent of MEC's obligations, as assumed under the Contract. This in turn focuses on the meaning of the words used in the Schedule of Works comprising the Revised Tender submitted by MEC and accepted by the Institute in August 2005. Interpretation of the meaning of the terms of the Contract is obviously the role of the trial judge.

6.The rights and liabilities of the parties further depend on the Works carried out by MEC prior to its leaving the Site, the valuation of such of the Works carried out, and the value of the items allegedly left by MEC at the Site. These call for expert opinion on the extent of the Works carried out, how they should be valued, and the expert's valuation of the materials left on the Site when MEC vacated the same.

The Orders made

7.The directions for expert and expert-related evidence have a checkered history. I will go into such history to some extent, as it is the submission of Miss Cruden (who appears for MEC) that the Institute's or Mr. Chan's conduct has bearing on the admissibility or otherwise of Mr. Chan's expert evidence, in the light of the directions made by the Court.

8.On 11 April 2008, at a pretrial review, Master Lee directed that "unless the expert evidence is agreed, the parties shall be at liberty to call as expert witnesses those witnesses the substance of whose evidence has been disclosed, except that the number of expert witness shall be limited to one for each party".

9.On 10 October 2005, a report had been compiled by KC Surveyors Ltd. ("KCS") and signed by Mr. Chan on its behalf. It purports to be a report by KCS on the survey of the condition of the Works at the Site as at 10 October 2005 ("October Survey Report"). The purpose of the inspection was stated in the report to be "to record the conditions of the Premises and the progress of the renovation work completed in a report to be submitted to the client before the continuing (sic) the outstanding works".

10.On 23 June 2008, while giving leave to MEC to file an expert report, Master Lee directed the Institute to explain why 2 experts were required on its part and further ordered that failing such explanation, the number of expert witness remained limited to one for each party. On 2 October 2008, MEC filed Mr. Hon's expert report dated 14 November 2005.

11.The Institute's procrastination on the position of its expert led Master Lee to make a further order on 17 December 2008, directing the Institute to state on or before 31 December 2008 the precise number of experts and witnesses to be called on its behalf. It appears that the Institute finally decided to call one expert witness and abandoned an application to file further expert reports.

12.Nearly 6 months later, by which time the Institute must have known its own position on the number and identity of the expert to be called on its behalf, on 4 June 2009, Master Lee directed the parties' experts to meet on or before 2 July 2009, "for the purpose of preparing a joint statement pursuant to Order 38 rule 38 of RDC ("Joint Statement"), indicating those parts of their evidence on which they are, and those on which they are not, in agreement". The Joint Statement was directed to be filed within 21 days from the experts' meeting.

13.The Order of 4 June 2009 specifically provides that the Joint Statement shall include: the issues on which the experts have reached a common opinion; the issues on which the experts have failed to reach a common opinion and their competing views on each issue; and the reasons for a given expert's disagreement with any opposing expert's views on each such issue. Such a Joint Statement would no doubt assist the Court in understanding the experts’ views on matters on which they cannot agree, and why they disagree. Properly prepared by experts acting in accordance with their duties to the Court, such a Joint Statement would save a lot of time which would otherwise have to be spent by the Court, and by the parties' legal representatives, in considering the issues in dispute between the parties and in the Court's resolution of these matters in dispute. From experience, as a result of the genuine and independent efforts made by the experts at this stage when they consider each other's impartial views in the course of preparing the Joint Statement, litigants are normally able to confine the areas of their disagreement and often are able to settle their dispute. Whether or not there is settlement, significant time and legal costs are incidentally saved by avoiding days otherwise spent in court by experts and factual witnesses giving evidence and Counsel making submissions on matters which can reasonably be agreed.

14.At this juncture, I would add that the Courts have often tested the reliability and professionalism of an expert witness by the way they deal with the opinion and matters raised by the expert of the other side, as can be seen from, amongst other things, communications between the experts at the joint meeting and agreement and disagreement at the meeting. As Lam J. observed in his decision in Chinachem Charitable Foundation v. Chan Chun Chuen HCAP 8 of 2007, 2 February 2010 in paragraph 490:

"The joint meeting is an opportunity for the experts to narrow their differences. It takes two to tango. It requires both experts to focus on the objective of the meeting and act responsibly and frankly with each other. At such meeting, an expert should bear in mind his overriding duty to the court to act independently without any fear of compromising his client's position. Thus if his professional judgment dictates that a concession should be made in the light of the arguments advanced by the other side, he should not feel inhibited from doing so due to conflicting opinion previously expressed by him in favor of his client. On matters within his expertise, an expert need not seek instructions from his client before reaching an agreement with the other side's expert. A self-respecting expert should not accept instructions that placed limitations on his professional judgment in the performance of his duty as an expert witness. And it is not proper for lawyers to give such instructions on behalf of his clients. In line with his duty to act independently, an expert should not be dictated by his client in respect of the substance of his expert evidence and the agreement to be reached in joint meeting."

15.The experts were directed by Master Lee to meet on or before 2 July 2009 for preparing the Joint Statement. The correspondence exchanged between the parties' solicitors show that the Institute sought to have its solicitor and counsel attend the meeting of the experts to be held pursuant to Master Lee's Order. The purpose, it was said, was to ensure that queries raised by the experts would be responded to promptly. MEC objected to the presence of the parties' legal representatives, pointing out that an expert has an overriding duty to assist the Court impartially and independently, and that the presence of the legal representatives may exert undue influence on the minds of the experts who may refrain from giving frank and impartial opinion at the meeting and undermine their overriding duty to the Court.

16.Despite the objections raised by MEC's solicitors, who reserved their right to refer the matter to the Court, the experts' meeting was held on 26 June 2009 and attended by Mr. Hon, Mr. Chan, Mr. Jeffrey Kwok of KCS ("Mr. Kwok") and Mr. Cheng, the Institute's solicitor. However, the meeting had to be adjourned, as Mr. Hon had not studied Mr. Hon's expert report, despite the fact that it had been served on the Institute's solicitors, and the meeting had been scheduled through the solicitors for the sole and specific purpose of the joint meeting of the parties’ experts.

17.By Order dated 10 July 2009, Master Lee extended the time for the experts' meeting to be held to 30 July 2009. The parties were further directed to prepare and lodge on or before 23 July 2009 an agreed statement of issues for the experts to prepare the Joint Statement. It was further stated in the Order that the experts' meeting should be attended by the parties' respective experts, namely Mr. Hon for MEC and Mr. Chan for the Institute, only. The wasted costs of the meeting of 26 June 2009 were ordered to be payable by the Institute forthwith.

18.The solicitors for the Institute confirmed in writing on 24 July 2009 that the adjourned meeting of the experts was to be held on 28 July 2009, just two days before the deadline specified by Master Lee. Surprisingly, Mr. Chan failed to attend the meeting. Mr. Kwok attended the meeting, apparently as Mr. Chan's assistant. In the absence of Mr. Chan, no discussion on the issues took place on the day.

19.The experts' meeting was finally held on 30 July 2009. It was attended by Mr. Hon for MEC, Mr. Chan for the Institute, and Mr. Kwok as Mr. Chan's assistant. This meeting led to the filing of a Joint Experts Report dated 19 August 2009 ("Joint Report"), setting out the matters on which the experts agreed, the matters on which they disagreed, and brief reasons for their failure to agree, in relation to 3 issues:

(1) To what extent was the work under the Contract completed by MEC, and what was the estimated value of those works?

(2) To what extent was the work under MEC's quotation dated 11 October 2005 completed by MEC and what was the estimated value of those works?

(3) Assuming that MEC did leave behind the materials as alleged, what is the estimated value of the materials?

20.On the first day of trial on 1 February 2010, MEC sought leave to file a supplemental report of Mr. Hon, who seeks to clarify the areas of disagreement and to explain his assessments of the disagreed items. I granted leave for him to do so, with sufficient time for the Institute and Mr. Chan to consider Mr. Hon's supplemental report prior to Mr. Hon giving evidence.

21.On 2 August 2010, the Summons first came before the Court. This was the Institute’s application for leave to file Mr. Chan's supplemental report, in reply to Mr. Hon's supplemental report. By this time, the Institute's factual witnesses were giving evidence, as it had been agreed that the factual evidence from both parties will be heard prior to the expert evidence. Miss Cruden indicated on 2 August 2010 that MEC will be opposing the Summons. Full arguments on the Summons were adjourned until the completion of the factual evidence, and finally made before the Court on 6 August 2010.

The objections to Mr. Chan's expert evidence

22.MEC's objections to Mr. Chan's expert evidence are manifold. I have grouped the objections raised by Miss Cruden into the following categories.

23.First, it is claimed that he lacks the correct expertise, since he is a building surveyor, and not a quantity surveyor, and does not possess the necessary expertise to give an opinion on the valuation of the work MPC had carried out at the Site, nor on the costs of such work.

24.Second, it is claimed that Mr. Chan lacks understanding of his duties as an expert to assist the Court, and importantly, that he has failed to discharge his paramount duties to the Court as an independent expert.

25.It is claimed that Mr. Chan's reports and opinion evidence are not independent, but are tainted by a conflict of interests which he has failed fully and frankly to disclose to the Court.

26.It is claimed that the October Survey Report is not the product of Mr. Chan's work, nor is it a complete record.

27.Since it is the duty of the Institute to establish that Mr. Chan's evidence should be accepted by the court as the evidence of a qualified, impartial and independent expert, it is submitted on behalf of MEC that the Institute has not been able to show that Mr. Chan's reports and evidence should so be accepted, and they should be rejected in their entirety.

The applicable legal principles

28.Under s.58(1) of the Evidence Ordinance, where a person is called as a witness in civil proceedings, "his opinion on any relevant matter on which he is qualified to give expert evidence" shall be admissible in evidence. However, the Court retains the discretion to admit expert evidence only if it is relevant, necessary and of probative value, and to be given by a witness proved or admitted to be an expert on the topic.

29.Under Order 38 rule 43, when a party calls as a witness the maker of an expert report which has been disclosed under the Rules, the report may be put in evidence either at the commencement of the examination in chief of its maker, or at such other time as the Court may direct.  Any directions given may, on sufficient cause being shown, be revoked or varied by a subsequent direction given at or before the trial (O.38 r.44).

30.In Ko Chi Keung v. Lee Ping Yan [2001] 1 HKLRD 828, it was held by Lam J. that the discretion to determine the admissibility of expert evidence should usually be exercised at trial, save in clear and obvious cases.

31.Time and again, the courts have stressed the importance of the duties owed by an expert who seeks to give evidence before the Court. The duties of an expert witness were summarized in National Justice Compania Naviera SA v. Prudential Assurance Co. Ltd. ( The Ikarian Reefer) (No. 1) [1993] 2 Lloyd's Rep. 68, and include the following :

"1. Expert evidence presented in the court should be, and be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

2. Independent assistance should be provided to the court by way of objective unbiased opinion regarding matters within the expertise of the expert. An expert witness in the High Court should never assume the role of advocate.

3. Facts or assumptions upon which the opinion was based should be stated together with material facts which could detract from the concluded opinion.

4. An expert witness should make clear when a question or issue fell outside his expertise."

32.To quote the words of Stone J in Secretary For Justice v. Wembley International (HK) Ltd. & Anr. HCA 8518/1998, 19 March 2004, "the dominant purpose of an expert witness is to educate, and not to seek to persuade".

33.As Miss Cruden has highlighted,  Order 35A under Part IV, Rules of the District Court provides as follows:

(1) It is the duty of an expert witness to help the Court on the matters within his expertise.

(2) The duty under paragraph (1) overrides any obligation to the person from whom the expert witness has received instructions or by whom he is paid.

34.Order 37C further provides as follows:

(1) An expert report disclosed under these Rules is not admissible in the evidence unless the report contains a declaration by the expert witness that-

(a) he has read the code of conduct set out in Appendix E and agrees to be bound by it;

(b) he understands his duty to the Court; and

(c) he has complied with and will continue to comply with that duty.

(2) Oral expert evidence is not admissible unless the expert witness has declared, whether orally or in writing or otherwise, that-

(a) he has read the code of conduct set out in Appendix E and agrees to be bound by it;

(b) he understands its duty to the Court; and

(c) he has complied with and will continue to comply with that duty.

35.In Hong Kong Air Cargo Terminals Ltd. v. Commissioner of Rating and Valuation [2004] 2 HKLRD 702, Lam J had the following to say:

"In addition to the overriding duty to provide independent and unbiased assistance to the court, an expert should also ensure that he does not omit to consider material facts which could detract from his concluded opinion and should make clear when a particular question or issue falls outside his expertise.”

Lam, J further commented (at page 709):

"It is not enough that an expert appreciated that he had an overriding duty to the court. Nor is it sufficient that such a witness understand that he had to be comfortable with his evidence and it is to be truthful. He must also understand that he has a duty to ensure his evidence does not omit any relevant matters. As Rogers V-P said in Tang Ping Choi & Another v. Secretary for Transport [2004]2 HKLRD 284 at para 17:

‘ In the second place. many of the problems which have arisen with regard to expert evidence have been caused by the fact that the witnesses have not been frank with the court. In some cases they have given evidence which is half truthful, keeping back knowledge which they knew as experts and which was relevant to the matter in respect of which they were giving evidence.’ "

36.The following propositions are in fact summarized and set out in the judgment of Lam J. in the Hong Kong Air Cargo Terminals Ltd. case (at p. 710H-711C):

(1) admissibility and weight are two different questions to be considered at different stages;

(2) in the context of expert evidence, it is a relevant consideration in determining permission to admit such evidence (as well as weight) whether he is fully aware of his duty as an expert;

(3) the fact that a witness is an employee of a litigant would not automatically bar him from giving expert evidence for that litigant;

(4) however, once the issue of admissibility is brought up, whether in respect of an employee or otherwise, the court could examine the extent to which such a witness is aware of his duty as an expert witness;

(5) an important aspect of the duty of an expert witness is to inform the court or tribunal all relevant matters whether such matters are favorable to his conclusion or otherwise.

Mr. Chan's expertise

37.According to the curricula vitae of Mr. Chan, he holds a Higher Diploma in Building Surveying from the Hong Kong Polytechnic and Bachelor of Science in Building Surveying from Leicester Polytechnic in the United Kingdom. He is a registered Professional Surveyor in building surveying and in property and facility management, as well as an Authorized Person (Surveyor). Mr. Chan is a fellow member of the Hong Kong Institute of Surveyors, a fellow member of the Royal Institution of Chartered Surveyors, United Kingdom and a fellow member of the Association of Building Engineers, United Kingdom. According to the Directory and Annual Report 2007-2008 of the Hong Kong Institute of Surveyors ("HKIS"), the HKIS apparently has a building surveying division, a property and facility management division and a quantity surveying division. According to the HKIS, building surveyors in practice are involved in all stages of the development process from inception, completion to operation. The building surveyor acts as project manager in the development stage which includes the construction stage to monitor the development and construction process. The major functions of the project manager include the preparation of budgets, management of the design process and selection of materials, project monitoring including time, cost and quality controls, and undertaking financial control over cash flow, interim payments and final account procedures. The expertise possessed by building surveyors include project planning and design, project supervision, and building and fire safety inspections and works supervision.

38.At the stage of conducting feasibility studies for clients, a building surveyor's work includes agreeing the initial budget costs of the project, and at the site supervision stage, a building surveyor's work includes issuing variations and quantifying interim payments to contractors and suppliers.

39.I am satisfied on the available evidence that as a qualified and registered building surveyor, Mr. Chan has the experience and expertise of quantifying the Works and valuing the costs of the Works carried out by MEC. I will however provide a caveat in respect of the works specified under 5.14, 5.15 and 5.16 on pages 250 and 251, and the works specified under 5.9 to 5.13 on page 253 of the Joint Report, in respect of which Mr. Chan is stated to claim that these works were not within his expertise.

Can it be demonstrated that Mr. Chan is aware of his duty as an expert witness?

40.The October Survey Report was signed by Mr. Chan, for and on behalf of KCS. It contains a set of photographs taken on the Site. The purpose of the survey was, as stated in the Report itself, "to record the conditions of (the Site) and the progress of renovation work completed" as at 10 October 2005. The survey was stated to be by way of visual inspection of the Works serving the basement and the ground floor of the Site. It was noted in the October Survey Report that some materials and components were delivered to the Site, but that no detailed inventory check was carried out.

41.According to the October Survey Report: "the conditions of (the  Site) and the progress of renovation works were recorded and shown in the photograph record provided in Appendix B". Appendix B comprises 60 photographs ("Photographs").

42.It was only in the course of the evidence given by the Institute's factual witness, Mr. Kwok of KCS, that it was revealed for the first time that the Photographs were taken not by Mr. Chan, but by Mr. Kwok himself. According to Mr. Kwok, he took photographs of what he considered was relevant. The October Survey Report purports that the Photographs record and showed the condition of the Site and the progress of the Works as at 10 October 2005. However, comparing the Photographs with those taken by Mr. Hon on 4 October 2005 and attached to Mr. Hon's expert report dated 14 November 2005, it is highly questionable, to say the least, whether the Photographs do represent a full and complete record of the Works carried out by 10 October 2005. Whereas Mr. Hon's photographs taken on 4 October 2005 show light troughs which had been put up near the ceiling (page 184 of the trial bundle, and part of Appendix F to Mr. Hon's report), and sprinkler heads which were in place (page 192 of the trial bundle and also part of Appendix F to Mr. Hon's report), these were not shown at all in the Photographs comprising the record referred to in the October Survey Report.

43.The Photographs were the product of Mr. Kwok's work, and it was Mr. Kwok who exercised judgment in the choice of the areas of the Site and the parts of the Works carried out by MEC to be photographed on 10 October 2005. Mr. Kwok has not been shown to be a qualified expert. On his part, Mr. Chan has failed to disclose the fact that it was not he who had exercised judgment in taking photographs of the alleged progress of the Works. Nor has it been disclosed or explained that there may have been parts of the Works carried out by MEC (e.g. some light troughs) which had been omitted from the photographic record comprising the October Survey report, and that such omission may be relevant to the Court's consideration, even though not favorable to Mr. Chan's (or Mr. Kwok's) own conclusions.

44.It is not disputed that KCS had been instructed by the Institute to prepare the Schedule of Works which form part of the tender. KCS were not the project managers of the Works, but the evidence of Madam Shi of the Institute is that KCS had continued their role after the Contract had been awarded to and signed by MEC. Mr. Kwok's evidence also shows that MEC had continued to give advice to the Institute concerning the Institute's application to the Education Bureau/ Department for registration as a school. From the evidence of Madam Shi and Mr. Kwok, KCS had advised the Institute that the Works could only proceed upon approval of the relevant plans by the Fire Services Department ("FSD"), although MEC disputes this and there is evidence from FSD that works could proceed before approval of the relevant plans. It is apparently on the basis of the advice from KCS that allegations were made by the Institute that MEC was in breach of the Contract by commencing the Works without submitting layout plans to the FSD for approval (paragraph 15 of the Re-Re-Re-Amended Defence and Counterclaim).

45.In Tang Ping Choi v. Secretary for Transport [2004] 2 HKLRD 285, it was held by the Court of Appeal that a consultant, or an employee of the consultant, engaged by a party was not thereby prevented from being called as an expert witness in subsequent court proceedings, as there is no absolute bar to such evidence. It was explained that such concern as there might be might stem from the fact that the consultant might wish to justify the previous advice given, and/or the expert witness might not be frank with the court, giving evidence which is half truthful and keeping back knowledge which they knew as the experts, but which was relevant to the matter in which they were giving evidence.

46.Hence, in Kam Hing Trading (Hong Kong) Ltd. v. The People's Insurance Company of China (Hong Kong ) Ltd. [2009] 4 HKC 531, HCA 1062/2008, 9 July 2009, Madam Registrar Au-Yeung stated that when seeking expert evidence, the name of the intended expert should be given and it may be necessary to clear issues of conflict of interest with the experts.

47.Miss Cruden has further drawn the attention of the Court to the decision of the English Court of Appeal in Regina (Factortame Ltd. and others) v. Secretary of State for Transport, Local Government and the Regions (No. 8)[2003] QB 381, where it is held that:

"The test of apparent bias is not applicable to an expert witness as it is to a tribunal. Although it is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, such disinterest is not automatically a precondition to the admissibility of his evidence. The fact that an expert has an interest in the outcome of the case should be made known to the court as soon as possible and the question whether he should be permitted to give evidence should be determined in the course of case management, having regard to the overriding objective of the Civil Procedure Rules."

At page 410AB of the judgment, Lord Phillips of Worth Matraverns states:

"It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence. Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible."

48.The key question raised when there is a potential conflict of interests regarding the expert's position is whether the expert's opinion is truly independent and impartial. The general issues concerning conflicts of interest were addressed by the English Court of Appeal in detail in Toth v. Jarman [2006] 4 All ER 1276, the judgment of which states as follows (from paragraph 102):

"Where an expert has a material or significant conflict of interests, the court is likely to decline to act on his evidence, or indeed to give permission for his evidence to be adduced. This means it is important that a party who wishes to call an expert with a potential conflict of interest should disclose details of that conflict at as early a stage in the proceedings as possible… The obligation to disclose the existence of a conflict of interest in our judgment stems from the overriding duty of an expert, to which we have already referred and which is clearly laid down in CPR 35.3, and also from the duty of the parties to help the court to further the overriding objective of dealing with cases justly (CPR 1.3). The court needs to be assisted by information as to any potential conflict of interest so that it can decide for itself whether it should act in reliance on the evidence of that expert.

As already stated, in our judgment, an expert should produce his cv when he provides his report, and that cv should give details of any employment or activity which raises a possible conflict of interest. This may indeed already be best practice.

…The expert should not leave undisclosed any conflict of interest which might bring into question the suitability of his evidence as the basis for the court's decision. The conflict of interest could be of any kind, including a financial interest, a personal connection, or an obligation, for example, as a member or officer of some other body. But ultimately, the question of what conflicts of interest fall within this description is a question for the court, taking into account all the circumstances of the case."

49.It is therefore clear from the authorities that although the mere fact of the expert being a consultant to a party involved in the litigation does not automatically bar him from acting as an expert for the party, it is for the Court, and not the expert or the party calling him, to decide whether or not there is a potential conflict of interests in the consultant so acting as the expert. It is material that the expert should disclose the relevant facts of his involvement or activity which raises the possible conflict. I regret to note that in this case, neither Mr. Chan nor the Institute instructing him as its expert has disclosed to the Court at any stage of the proceedings when expert evidence is sought to be introduced the full relationship between KCS/Mr. Chan and Madam Shi or the Institute, nor the full role played by KCS and Mr. Chan in relation to the Works forming part of the project for which tenders were invited, and in respect of which tenders KCS and/or Mr. Chan had prepared the Schedule of Works.

50.MEC relies on the fact that as disclosed in the testimony from Mr. Kwok and Madam Shi, KCS or Mr. Chan had acted for either Madam Shi or the Institute on other projects. KCS and/or Mr. Chan had certainly been involved in the drafting of the Schedule of Works and the detailed specifications in the tender documents, the interpretation of which so far as they relate to MEC's contractual obligations is the subject of the current dispute. The evidence further suggests that KCS had advised the Institute that the Works should not have been commenced by MEC prior to approval having been obtained from the FSD, and that this is a further issue in dispute in these proceedings. Moreover, MEC's case is that the Institute is involved in litigation with other parties concerning construction work projects, in which litigation KCS have been joined as third parties.

51.According to MEC, Mr. Chan may have a commercial interest in the successful outcome of these proceedings in favor of the Institute. In particular, it is claimed that Mr. Chan would have an interest to defend his or KCS' advice to the Institute on the Contract and the Works, as well as to defend KCS' drafting of the Schedule of Works and the specifications contained in the tender documents, and the duties they impose on MEC.

52.On this aspect, I totally agree that it is incumbent on Mr. Chan and on the Institute when seeking to engage Mr. Chan as its expert in these proceedings to make full and frank disclosure to the Court of KCS' and Mr. Chan's role in the Contract and the Works, on his dealings with the Institute and Madam Shi, and on any other matters which may be relevant to the issue of his possible conflict of interests. It is only when such details are given to the Court that the Court can decide whether it is proper to accept Mr. Chan as an independent and impartial expert of the Court, who can be considered to be uninfluenced by the exingencies of this litigation.

53.I also agree that on the evidence shown, it is totally undesirable and highly unsatisfactory that Mr. Chan did not make full disclosure of how the October Survey Report was compiled. At the time when it was prepared in October 2005, it may be argued that litigation had not commenced and it had not been envisaged that it would be used as an expert report. However, as soon as it became clear to Mr. Chan and to the Institute that Mr. Chan is to be the Institute's expert, and that the October Survey Report is to be relied upon by Mr. Chan, disclosure should have been made that the October Survey Report was compiled not by Mr. Chan, but by Mr. Kwok, who is not a qualified expert. Full details should also have been given as to whether the Photographs represented a full and complete record of the Works alleged to have been carried out as at the date of the October Survey Report, and if not, an explanation should have been given as to the process of selection made by the maker of the Report. On the evidence, the October Survey Report cannot truly be said to be the work product of the Institute's expert, Mr. Chan. Nor can it be shown to be a full, complete and reliable report by reason of its apparent omissions.

54.Taken on its own, each of the grounds of objection raised by Miss Cruden in relation to Mr. Chan's reports and evidence may, or may not, be sufficient to show that Mr. Chan lacks understanding of and fails to appreciate the full extent of the duties of an expert. However, when they are considered together, I regret to say that there is little room left to doubt that either Mr. Chan does not fully understand the paramount and important duties of the Court expert, or he has totally disregarded such duties. This is particularly so in the context of the sorry history of the joint meeting of the experts as ordered by Master Lee: how Mr. Chan agreed to attend the joint meeting of the experts in the presence of the Institute's representative and solicitor; his failure to read Mr. Hon's expert report before the meeting held on 26 June 2009; and his failure to attend the adjourned meeting on 28 July 2009. No explanation has been offered in respect of such failure on his part. Nor am I persuaded that there was sufficient reason for his failing to attend the joint meeting without the presence of his client and the Institute's solicitor. Although I do not wish to be harsh or uncharitable, it does seem that Mr. Chan's conduct demonstrates cavalier disregard of the expert directions given by the Court, and total misunderstanding of the duties and role of a Court expert, to the extent of permitting himself to be manipulated by those instructing him.

55.Miss Cruden has referred to parts of Mr. Chan's Supplemental Report in which he seeks to advocate the Institute's case. Whereas the report seeks to respond to Mr. Hon's supplemental report on valuation of the Works, Mr. Chan seeks to refer to the Schedule of Works and to give reasons and extraneous evidence as to why MEC had not worked in accordance with the Institute's requirements. I agree that an expert witness who seeks to advance arguments for a litigant is a telling sign of the purported witness's lack of impartiality and due observance of his overriding duty to the Court, as experienced judges have often noted. This, in my opinion, is regrettably another illustration of Mr. Chan's lack of understanding of his duties as an expert.

56.The Courts have repeatedly emphasized that we must be vigilant in ensuring the integrity of the legal process. Expert evidence is admitted to assist the Court on a subject which requires expertise which the Court lacks, and which the expert possesses. Due and efficient disposal of cases is too often hampered, and litigants' costs are regrettably wasted, by experts who proliferate issues as a result of their failure to act responsibly and professionally, in discharge of their duties to the Court to act independently and without fear of compromising their client's position. It is high time for parties and experts to heed that experts who give evidence in Court bear significant duties.  If they consider these duties to be too onerous, then they should decline to act as such.

57.In this case, I have come to the conclusion that the Institute has failed to discharge its burden to show that Mr. Chan's evidence should be admitted as the reliable, impartial and independent evidence of an expert of the Court who is aware of and able to discharge fully his duties to the Court. Grave doubt has been cast on the probative value of Mr. Chan's evidence. Enough time has already been wasted in this case, and no further time and costs should be squandered on evidence which is questionable in value.

Conclusion

58.I refuse leave to the Institute to adduce Mr. Chan's supplemental report dated July 2010, and further order that Mr. Chan's expert evidence is inadmissible in this case. The costs of the Summons are to be paid by the Institute to MEC, to be taxed if not agreed, with certificate for counsel.

Miss Liza Jane Cruden instructed by Messrs. Wong & Fok, for the Plaintiff

Mr. Kenneth Chung instructed by Messrs. Tso Au Yim & Yeung, for the Defendant