Liu Ka Chun v. Hong Kong Airport Services Ltd and Others

HCPI 416/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 416 OF 2009

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BETWEEN

Before : Hon Bharwaney J in Chambers (Open to Public)

Date of Hearing : 11 November 2011

Date of Decision : 11 November 2011

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DECISION

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1.I have before me an application by the defendants, initiated by a letter from Messrs Deacons, solicitors for the 1^st and 3^rd defendants, to which Messrs Hogan Lovells have also appended their signature as solicitors for the 2^nd defendant, that I make an order that the plaintiff shall not adduce the supplemental report from Dr Johnson Lam, dated 17 September 2011, as evidence at trial. They also seek an order for costs against the plaintiff of the costs of their application and the incidental costs incurred upon the disclosure of Dr Johnson Lam’s report of that date.

2.When I received that letter I directed the parties to attend before me this morning for the hearing of the application for the orders sought in that letter.  I received written submissions from the defendants’ solicitors and, late yesterday afternoon, I was very surprised to receive written submissions from Mr Patrick Lim, who has been instructed to appear in this matter on behalf of the plaintiff.

3.I had thought that this was a matter that could very readily, and easily, be dealt with by solicitors, having regard to the guidance that I had given in Chan Yuet Keung and Harmony International Knitting Factory Limited last year when, at pages 618 to 621 of my reported judgment in [2010] 5 HKLRD I had set out, in the following terms, the proper procedure to be followed when parties wish to seek clarifications of opinions expressed in a joint expert report:

“(4) The proper procedure to be followed when parties wish to seek clarification of opinions expressed in a joint expert report

46. This issue has not been addressed in the Personal Injuries Practice Direction PD18.1.

47. Where there is a dispute as to the factual requirements of the pre-accident employment, the joint instructions to the single joint expert, or to the experts appointed to prepare a joint report, should outline the different factual versions to the expert(s) concerned and his or their expert opinion should be sought on each separate version. The provisions contained in §87 of PD18.1 address and contemplate a situation where the joint report contains opinions, based on common parameters as well as on different parameters. Where those parameters can only be known after an exercise of fact finding by the trial judge, an expert should not himself embark on any fact finding exercise but should offer his opinion based on one version and his different opinion, if, indeed, it be different, based on the other version(s).

48. That did not happen in the present case and Dr Lam offered his opinion based on the plaintiff’s version of his pre-accident work requirements. In this situation the other party, receiving the joint report and seeing that it contained opinion based on disputed facts, should seek the expert’s opinion based on that party’s version of the disputed facts. Obviously, it is wrong for a party to approach the maker(s) of a joint report without informing the other side. I agree with Mr Lim that in a situation such as the present, or when clarification is sought from the maker(s) of a joint report, the proper procedure should be:

(a) The party raising any question for clarification should in the first instance write to the other party and seek his consent for the question to be put to be expert(s).

(b) If the other party does not agree to the question raised, he may propose a different question for the consideration of the party that raised the matter.

(c) If consensus cannot be reached between the parties then the party that wishes to seek clarification should take out a summons before the PI Master to determine the matter.

49. In resolving the dispute the PI Master would no doubt be guided by §84 of PD18.1 and impose sanctions on the party acting unreasonably in the matter by raising matters which went beyond clarification or by unreasonably refusing to agree to proper questions being put to the expert(s) to clarify genuine issues.

50. The guidance offered above should not be construed as a carte blanche to seek clarification. Parties should take care to compose joint instructions which deal with all relevant matters. In the normal course of events, there should be no need for a joint report to be amplified or tested by cross-examination.

51. ... The PI Master will be astute to ensure that only proper questions to clarify genuine issues that are raised in a timely fashion are allowed to be put to the expert(s) after the joint report has been produced.”

4.Mr Lim took the preliminary point in his written submissions that my guidance, which he helped me to produce because he framed the questions that appear on 619, and which I adopted, and the procedure I had set out there, were limited to cases where a joint expert report was produced by a single joint expert.  That is certainly not the case.  My guidance was offered in respect of all joint expert reports, whether produced by a single joint expert or produced by two or more experts, each appointed by a party to the case, as was the case here.

5.This application allows me to make the clarification, if, indeed, clarification be required, that the same procedure should apply whether the joint report is produced by a single joint expert or by two or more experts appointed by each party.

6.In particular, I should point to the fact that, in many cases where you have experts appointed by each side to prepare and produce a joint report, whilst that joint report may contain and set out areas of agreement, there are often many areas of disagreement and that, in respect of those areas of disagreement, each expert would set out his own opinion, with supporting reasons, on that particular point of disagreement.

7.It may be, and, indeed, it appears to me to be very likely that one party may wish to seek clarification of the opinion expressed in the joint report by the expert appointed by the other party.  Even in those circumstances it is appropriate for this procedure to be followed.  The question for clarification should be framed and referred to the other party for his consent for the question to be put to both experts. Because, whilst the question is being posed to one expert for his own personal view, nevertheless, the exercise is a joint one; and any response or clarification that expert makes should also be commented on by the other expert if he feels it is appropriate to do so.  The exercise remains a joint exercise, whether the question is being posed by a party to the other side’s expert or to his own expert.  Once you have a direction or agreement for a joint report then, whatever the past practice might have been of each party addressing his own expert privately, that practice can no longer prevail.

8.Where, however, the difference between the experts is such that a direction is made by the PI Master or Judge that the experts be called at trial to give oral evidence, the joint exercise comes to an end and each party may resume private consultations with their respective experts before calling them to give evidence.

9.In cases where a direction or agreement for a joint report is absent and the parties have instructed their respective experts to produce their own separate reports, a direction is often given by the court for the experts to have a without prejudice meeting, in the absence of legal representatives, to see if they can narrow their differences, and to produce a joint statement of the matters on which they agree and the matters on which they disagree.  Such a direction is not to be confused with a direction for a joint report.  Notwithstanding such a direction, the parties are permitted to communicate privately with their respective experts before and after the without prejudice meeting.

10.Of course, whether or not private written communications between a party’s solicitor and his expert are discoverable is quite another matter which I do not address in this judgment.

11.Coming back to the present application, Mr Lim has, I think, very properly and very fairly, at the end of his submissions, conceded that he should accept that the wrong procedure was adopted and, therefore, he fell back on the second limb of his submission that I should grant retrospective leave for the further report of Dr Johnson Lam to be adduced with the clarification contained therein, with leave to the defendants to seek a comment, if they wish to do so, from their expert, Dr David Cheng.

12.The offer for this course to be taken was not accepted by the defendants’ solicitors who pressed upon me their original position that there was nothing in the original joint report that needed clarification.  The only areas of difference between the parties’ experts, as expressed in their joint report, was the difference of opinion as to the length of time for which sick leave ought to have been granted.

13.I have looked at that joint report closely. I have looked at the questions posed closely, and the further report of Dr Johnson Lam.  I accept the submissions of the defendants that the plaintiff’s solicitors were straining to try to identify some area of confusion.  In any event, the views of Dr Johnson Lam expressed in his further letter are not of any particular assistance to the court.  They relate matters of common sense. The courts do not need expert assistance on matters which are well within their province to resolve.  For these reasons I allow the defendants’ application.

[Submissions on costs]

14.I summarily assess and order the plaintiff to pay costs to the 1^st and 3^rd defendants in the sum of $6,000 and to the 2^nd defendant in the sum of $6,000.  The plaintiff’s own costs are to be taxed pursuant to the Legal Aid Regulations.

Mr Patrick Lim, instructed by Messrs Ambrose Ng & Co., assigned by the Department of Legal Aid, for the Plaintiff

Mr L. Lee of Messrs Deacons, for the 1^st and 3^rd Defendants, and the Thirty Party

Mr Danny Leung of Messrs Hogan Lovells, for the 2^nd Defendant