Chevalier (Construction) Co Ltd v. Tak Cheong Engineering Development Ltd

HCA 153/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 153 OF 2008

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BETWEEN

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Before: Hon Lam J in Chambers

Date of Hearing: 23 February 2011

Date of Decision: 23 February 2011

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D E C I S I O N

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1.This case is about a construction dispute. For some unexplained reasons, the case was not put into the Construction List and the preparation of the case proceeded as if it was a general civil action. The case was set down for trial for 7 days. The trial is to start on 7 March 2011. Both sides filed expert evidence by way of quantity surveyor’s reports. Due to the problem in respect of expert evidence, there have been several pre-trial reviews.

2.Soon after this court seized with the case, I have tried to exercise my case management power to make sure that the expert evidence tendered is within the proper remit for expert evidence and that expert issues are narrowed down.  For that purpose, apart from the usual directions for expert meeting and joint expert report, this court directed on 14 January 2011 that counsel for each party shall explain to the respective expert the role and duty of an expert and the guidance given by the court as to how expert should perform his duty to the court as set out in the cases, including my judgment in Chinachem Charitable Foundation v Chan Chun Chuen HCAP 8 of 2007, 2 Feb 2010 at paras. 483 to 493 and 498 to 500.  Such direction has been complied with and the experts had met again and produced a revised joint report in the light of such advice.

3.Due to the unsatisfactory state of the expert evidence, this court also took the precautionary measure of making preparation for the appointment of an assessor to assist the court.  Security for the remuneration of the assessor was paid into court by the parties pursuant to the court’s direction.

4.The court also directed counsel to file skeleton submissions setting out what the parties regarded as the expert issues that the court needs to determine in order to assist the court in managing the trial and in appointing the assessor.  Mr Ho and Mr Lau have filed such submissions and they provide some assistance in narrowing down the issues, for which I am grateful.

5.However, I regret to say that the joint report is still unsatisfactory.  There are still too many areas where one expert simply fails to engage with his counterpart in terms of the reasons behind his disagreement.  It is not good enough for an expert to state in a joint report that he disagrees with the other expert.  He should explain intelligibly why he disagrees.  In the Revised Joint Report, at some instances, one expert puts forward certain calculation and set out the scope of construction works covered by an item.  Instead of tackling the substance, the other expert simply adopts another approach (by using the day work sheets supplied by his client) to work out the quantum.  He did not comment on the accuracy of his counterpart’s summary of the scope of work and his calculation.  I must say such failure to engage (whether intentional or otherwise) is not helpful as far as this court is concerned.  In other instances, the reason behind an opinion held by an expert is not properly explained and even counsel could not be certain that they fully comprehend what was said by their experts.  To make matter worse, some of the documents referred to by the experts are not included in the reports or in the bundles available to the court.  Thus this court is in no position to make proper preparation for the trial.

6.As a result, in order to enable this court to have a clear understanding of the points advanced by the respective expert, I have to go through the respective issues at some length at the 3^rd Pre-trial review.  In view of the many issues raised in the expert reports, it has taken a full day’s hearing.  I make no apology for the unusual length of such pre-trial review.  In the light of what had happened and the unsatisfactory state of the joint expert report (despite the efforts of the counsel in explaining to the experts what they should do in providing the necessary assistance to the court), I came to the firm conclusion that this exercise had to be undertaken and it should be undertaken before the trial and before the assessor is instructed.  Otherwise, we would have to spend days in court during the trial to decipher what the experts are arguing about.  Substantial costs would have to be spent, not only in terms of legal representation, but also in terms of fees payable to the experts and the assessor.  I do not think it is right for trial time to be utilized in such manner.  That would not be in accordance with the underlying objectives in Order 1A.

7.In the end I find the 3^rd Pre-trial review useful in identifying the issues between the parties, in particular in cutting down unnecessary expert evidence.  Some of the issues raised by the experts are either factual issues (which has no support in the factual evidence and should not have been raised by the expert on his own) or forensic submissions in terms of construction of the relevant provisions in the contract or other documents (which should be the job of counsel and again should not be the subject of expert evidence).

8.Thus, it is agreed that at the trial this court will only need to hear expert evidence on what the experts have identified in the Revised Joint Report as Issue 3 and Variation Orders 5, 13 and 14 under Issue 5.  As for the rest of the dispute, having regard to the positions of the parties as put forward by counsel at the 3^rd Pre-trial review, there is no need to hear viva voce evidence from the expert at the trial.

9.It follows that the assistance of the assessor is only necessary in respect of these issues.  For the preparation of the trial, the assessor should confine himself to Issue 3 and variation orders 5, 13 and 14 [“the Expert Issues”].  Though I will direct a full set of the witness statements and expert reports be supplied to the assessor, it is not necessary for him to read all of them.  He should focus on materials pertaining to the Expert Issues.  To assist him in understanding the stance of the parties, he would also be supplied with a set of the skeleton submissions of the counsel placed before this court for the 3^rd Pre-trial review.

10.The final version of the revised joint report will be filed on 28 February and a copy will be sent to the assessor.  Again, in reading of the Revised Joint Report, the assessor only needs to focus on the Expert Issues.

11.In addition to what has been set out in the Revised Joint Report, counsel for the Defendant explained at the 3^rd Pre-trial Review that under Issue 3 the defence expert reduced the quantum for substandard work from $52,335 (as stated in his first report) to $6,400 (as stated in the Revised Joint Report) because he now identifies the substandard works by reference to the Daywork Sheets instead of another set of documents.

12.Further in respect of Variation Orders 13 and 14, counsel for the Plaintiff informed the court that there were two issues. The first issue is whether the variation applied only up to the 3^rd Floor or extended beyond that up to the roof.  Counsel agreed that this is a matter of construction of the relevant document and expert evidence is not required.  Hence, at least for the time being, the assessor needs not be concerned as to that.  The second issue is one which counsel cannot adequately explain to me and his expert’s view (as set out in para. 3.5.6.8(a) the third paragraph) is, with respect, too cryptic for a layperson to understand.  For that limited scope, there could be room for expert evidence.

13.I have heard submissions as to the role of the assessor in this case.  In Ahmed v University of Oxford [2003] 1 WLR 995^[1], the English Court of Appeal considered the role of an assessor in the modern litigation setting.  At paras. 20 to 25, Waller LJ discussed the function of an assessor and the wide discretion of the court.  It was pointed out that there are two possible roles an assessor may play.  At para. 25, Waller LJ said,

“So the use that a judge makes of assessors is very much within his discretion. It will depend on the type of case. It will depend on how far assessors are fulfilling an evidential role and how far simply assisting in the decision making process, and of course a judge will have in mind at all times what fairness to the parties requires.”

14.Then at para. 30,

“The reality is that it is impossible to lay down strict rules of general application as to the way in which assessors may be used. Where assessors are appointed under CPR 35.15 the court has a broad discretion on how to use the same and the type of assistance they give may vary widely, dependant upon the character of the litigation. They may have an evidential function (in which event disclosure to the parties will be the normal rule) and a function which is more involved in assisting the evaluation of evidence (in which event disclosure to the parties will not be the normal rule and only occur if fairness demands it).”

15.Mr Ho urged this court to bear in mind what was said at para. 34 as well.  That observation was made in the context of an assessor appointed under Section 67(4) of the Race Relation Act 1976 and the primary role of the assessor under that statutory regime was held to be in the decision making process.  Waller LJ said,

“That militates against any general obligation of disclosure prior to judgment. Of course there may be circumstances where disclosure will be necessary. For example, where a point arises as a result of the assistance of the assessors which the parties clearly did not have in mind and which they should be entitled to address, disclosure should be made. Furthermore assessors, despite their primary role, may provide a piece of information akin to expert evidence, and here, once again disclosure should be made.”

16.In the present case, after discussing with the parties, I believe it is unlikely that the assessor would play any evidential role and I do not intend to ask him to make a report to the court.  His role would be assisting the court in understanding and analysing the evidence given by the parties’ expert witnesses.

17.Therefore, with the agreement of the parties, I shall adopt the approach set out by Waller LJ and bear in mind the rider mentioned in para. 34 of that judgment.

18.Further, with the consent of the parties, I shall also direct that the guidance in Hodgkinson & James, Expert Evidence: Law and Practice, 3^rd Edn, p. 164-5 para. 5-017 and Halsbury’s Laws of England 5^th Edn Vol 12, para. 1133 on the function and role of an assessor be provided to the assessor so that he understand what his function is in this action.

19.A copy of this Decision will also be furnished to the assessor.

20.Lastly, I would reiterate the duty of the parties and their legal representatives under Order 1A Rule 3 and the overriding duty of expert witnesses under Order 38 rule 35A.  In 1974, Megarry J made this observation in another context in Re Barbour’s Settlement [1974] 1 All ER 1188 at p. 1193b to c,

“… justice according to law is a co-operative process to which solicitors, counsel and judges all make their contributions. No judge can perform his duties adequately and efficiently without the great assistance from counsel and solicitors that is traditional. The gratitude for this assistance that is sometimes expressed from the Bench is genuine indeed; and correlative to that gratitude is the duty of the Bench to take whatever steps may be appropriate to see that the ancient standards are fully maintained.”

21.With the implementation of the Civil Justice Reform and the increased use of expert in the trial process, Megarry J’s list of persons contributing to the judicial process should be extended to cover expert witnesses.  In cases where expert evidence is required, their assistance to the court is valuable in the administration of justice.  Unfortunately there are situations where expert evidence is not properly used or managed.  Such abuses add considerable costs and delay to civil litigation.  In order to ensure that proper and efficient use is made of expert evidence, the judge has a duty to take appropriate steps to foster the standards of the expert witness and the lawyers and the parties in the preparation of such evidence.  This is an important facet in modern case management.

Mr Simon Ho, instructed by Messrs Robertsons, for the Plaintiff

Mr Bruce Lau, instructed by Messrs Lui & Law, for the Defendant