Lpk v. Sh also known as Hsc and Another

FCMC 11930/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO.11930 of 2010

________________________________

BETWEEN

________________________________

Coram: Before Deputy District Judge G. Own in Chambers

Date of Hearing: 4^th July 2011

Date of Handing Down Reasons: 28^th July 2011

___________________________

REASONS FOR DECISION
(Ruling on Summons)

__________________________

Background

1.Today’s hearing is scheduled for argument of the Petitioner’s Summons dated 20^th January 2011 applying for interim injunction against the 1^st and 2^nd Respondents.

2.Since the application involves proceedings taken in Taiwan, parties have filed their respective experts opinion on Taiwanese law with the leave of the Court. 

3.The 2^nd Respondent issued a Summons dated 29^th June 2011 which is 4 days before the substantive hearing of interim injunction seeking leave for filing fresh expert evidence by way of affirmation from one Mr. Cai. After hearing submissions, I dismissed the Summons with costs which I now deliver my detailed reasons.

The Application

4.There is a supporting affirmation filed by the trainee solicitor Wong Ming Kit together with the said Summons. Attached to the Affirmation are 3 exhibits, namely, “WMK-1”, “WMK-2” and “WMK-3”.

5.Exhibit “WMK-1” is a copy legal opinion in Chinese dated 2^nd June 2011.  Exhibit “WMK-2” is another copy legal opinion in Chinese dated 23^rd June 2011.  Exhibit “WMK-3” is a draft Affirmation of the intended expert Mr. Cai’s in draft form.

6.The ground for application is simple and straightforward.   It was submitted that the expert opinions of the Taiwanese lawyers on the part of the Petitioner and the 2^nd Respondent contradicted each other.  In order to assist this Court, the intended expert Mr. Cai was arranged to provide his expert opinion. The draft affirmation of Mr. Cai was to incorporate his 2 pieces of legal opinions on Taiwanese law.   The draft affirmation has yet to be signed and notarized which would not be available before the hearing today.

7.This application was strongly opposed by the Petitioner’s Counsel. Counsel for the 1^st Respondent took a somewhat neutral stance.

Grounds of application and opposition

8.Counsel for the Petitioner raised the following grounds of opposition :-

(a)  The Order of this Court dated 28^th January 2011 giving

directions on expert evidence was granted upon a Consent Summons signed by all parties’ legal representatives.  It provides that upon filing of expert evidence by all respective parties, no further evidence be filed except with the leave of the Court.

(b)  Expert evidence can only be adduced with leave of the

Court and normally leave is only granted for 1 expert each party.  Any change in expert requires proper justification.

(c)  No proper explanation on justification of additional expert and/or replacement of an existing expert.

(d)  No proper or any explanation for such introduction before the hearing today and the 2^nd Respondent has had nearly 6 months to prepare his case.

(e)  No proper justification to seek the Court’s indulgence to receive a draft affirmation which does not contain the necessary statement of truth.

(f)  The introduction of fresh evidence will have the effect of further delaying the Petitioner’s claim for ancillary reliefs.

(g)  It is disproportionate and contrary to the CJR, also unfair to the Petitioner, to permit the 2^nd Respondent to have 2 experts and/or replace his existing expert whether at such late stage or at all.

9.In reply, Counsel for the 2^nd Respondent submitted that the affirmations or legal opinions already filed are given by the parties’ lawyers in Taiwan rather than experts.  The evidence from these lawyers had not covered those essential matters which this Court has to consider in deciding the injunction application today.

Discussion

10.Upon review of the records, it is correct to say that all parties’ legal representatives did sign a Consent Summons seeking expert directions in relation to the Petitioner’s Summons for interim injunction scheduled for full argument today.  The learned deputy Judge Tracy Chan made an Order in terms on 11^th January 2011. 

11.Pursuant to the Order on expert directions, the following evidence on Taiwanese law are filed by the respective experts, namely :-

(a)  Affirmation of LYS (for 2^nd Respondent) dated 18^th February 2011;

(b)  Legal Opinion of LSL (for 1^st Respondent) dated 14^th March 2011;

(c) 1^st Affirmation of YFW (for Petitioner) dated 21^st March 2011.

12.It should be noted that expert evidence will cause special concern for the Court because it may cause delay and waste of expenses for the parties if proper directions are not made for its preparation or, as in the present case, further expert directions are being sought at a late stage.

13.In the case of Chok Yick Interior Design & Engineering Co Ltd v. Lau Chi Lun trading as Chi Hung Construction Eng. Co. (HCA No.1480/2008), Mr. Justice Lam has vividly described his experience as the trial judge as follows :

“7. I wish to stress that application for expert directions is not a mere formality. It is an integral part of the case management process. As a trial judge, I have seen far too many cases where the lack of proper preparation of expert evidence resulted in unnecessary costs and time spent on evidence which is of no help to the resolution of the dispute. And such wasteful exercise cost the parties a great deal of money, not only in terms of the fees paid to the experts, but also legal costs spent on paying for the lawyers’ reading, understanding of the reports, discussing the matter with the experts and then the time (and costs) of the lawyers explaining and exploring the expert evidence with the judge by way of submissions and the examination and cross-examination of the experts during trial. Very often, it is not only the party responsible for the mismanagement of expert evidence who has to pay such costs, similar costs have to be incurred (at least on an upfront basis) by his opponent.

8.  Such wastage is not consistent with the underlying objectives set out in Order 1A Rule 1.  Thus, the court, in the performance of its case management duty under Order 1A Rule 1, should give expert directions to avoid the mismanagement of expert evidence.  And the parties and their legal representatives have a duty to assist the court in formulating the appropriate directions (Order 1A Rule 3). Further, the parties and their legal representatives have a duty to ensure that, once given, expert directions are strictly adhered to.  The experts, in accordance with their overriding duty to the court, must try their best to comply with the directions.”

14.At paragraph 28 of the Judgment, the learned Judge said :

“28. The court expects a party seeking indulgence for new evidence to be admitted at so late a stage to be full and frank in the explanation as to why the relevant evidence was not filed in a timely manner…….”

15.Further, at paragraph 32 of the Judgment, the learned Judge said :

“32. Since the CJR, it is wrong for litigants and their legal representatives to assume that they can put in additional evidence by agreement between themselves after a case has been set down for trial, particularly if the new evidence could proliferate issues, disrupt the readiness of the case for trial or otherwise prolong the trial. In respect of expert evidence, the parties should keep the court informed in order to facilitate the court in the performance of its case management duty. If the new evidence could disrupt the readiness for trial or prolong the trial beyond the time allocated for the case, the court may refuse leave……..”

16.There is no full and frank reason given in the supporting affirmation as to why the present summons for leave was taken out at such a late stage.  The 2^nd Respondent is all along legally represented in these proceedings.  Pursuant to the expert directions given by this Court back in January 2011, the 2^nd Respondent in compliance with directions had chosen LYS to provide legal opinion on Taiwanese law on his part.   LYS’s legal opinion dated back to 18^th February 2011.  If the legal opinion obtained and filed was considered to be lack of comprehensiveness, the proper way is to seek further directions for filing supplemental legal opinion by the same expert in good time.

17.The fact that there are conflicting views of experts on both sides is not a justification to call for a third expert to comment on the differences.  It will be for the Court to decide which expert evidence to be accepted subject to the right of a party to call the opponent’s expert and have that expert evidence tested by cross examination.

18.The interim injunction was scheduled for full argument today about 6 months ago.  I was informed by Counsel for the Petitioner that there was no indication at any stage that there will be a second expert for the 2^nd Respondent to provide expert evidence on Taiwanese law.  This came to the Petitioner’s knowledge only when the Summons was served upon the lawyers in the late afternoon of 29^th June 2011, which is 4 days before today (including the intervening 1^st July which is a holiday and the 3^rd July which is a Sunday).   In the supporting affirmation, it was not mentioned as to what would now be the position of LYS’s legal opinion.  Would that be replaced and substituted or that it would only be supplemented?   The legal opinion of Mr. Cai was not translated whereas all previous legal opinions in Chinese have been translated to assist respective parties’ Counsel who remain the same throughout and are English speaking.  Furthermore, the Affirmation of Mr. Cai exhibited to the supporting affirmation was not even signed by Mr. Cai and was in a draft form only.      

19.Considering all the above circumstances including the Judgment of Mr. Justice Lam which I cited above, I decided to refuse leave to the 2^nd Respondent’s application for adducing expert evidence of Mr. Cai.  Accordingly, the Summons is dismissed with costs.   Since this application is simple and straightforward, I will not grant Certificate for Counsel for this application.

20.I wish to add that with the CJR nowadays, practitioners are always expected to assist the Court to ensure that the underlying objectives under Order 1A Rule 1 are implemented.

Order

(a)  The 2^nd Respondent’s Summons dated 29^th June 2011 be dismissed;

(b)  Costs of and occasioned by the Summons be to the  Petitioner and the 1^st Respondent in any event, to be taxed if not agreed.

Representation :

Miss Corinne Remedios instructed by Messrs. Iu, Lai & Li, Solicitors for the Petitioner

Mr. Neil Clough instructed by Messrs. Li, Chow & Co., Solicitors for the 1^st Respondent

Miss Pauline Leung instructed by Messrs. Chiu, Szeto & Cheng, Solicitors for the 2^nd Respondent