Herman Iskandar v. Bonardy Leo and Others
Read the full judgment text of CACV 117/1987 on BabelCite. This Court of Appeal judgment.
1. This is appeal by Mr. Bonardy Leo, the unsuccessful Defendant in a probate action brought by Mr. Herman Iskandar to prove the will of his father Mr. Lugito Surjo Kusno who died in Jakarta, domiciled in Indonesia, on 21 November 1978.
Cited by 3 cases
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CACV000117/1987 Civil Appeal 117 of 1987 Courts, practice and procedure - expert evidence - objects of R.S.C. 0.33, Part IV - contents of experts' reports - meaning of "substance" in 0.38, r38(1) in relation to expert evidence on handwriting. IN THE COURT OF APPEAL
BETWEEN
________ Coram: Fuad, Kempster 6 Hunter, JJ.A. Dates of Hearing: 21st, 22nd, 25th, 26th 6 27th January 1988 Judgment handed down: 5th February 1988 ______________ J U D G M E N T ______________ Fuad, J.A.: 1. This is appeal by Mr. Bonardy Leo, the unsuccessful Defendant in a probate action brought by Mr. Herman Iskandar to prove the will of his father Mr. Lugito Surjo Kusno who died in Jakarta, domiciled in Indonesia, on 21 November 1978. 2. After a hearing lasting 11 days, Liu J. decreed. probate of the will in solemn form in a reserved judgment delivered on 13 July last year. Mr. Bonardy Leo seeks to persuade this Court that by reason of an adverse ruling made in error by the judge relating to the admission of certain expert evidence, and the improper curtailment of his counsel's cross-examination of the expert witness called by Mr. Iskandar, he had been denied the right to have his case. fairly submitted to the trial court so that a re-trial should be ordered. 3. Lord Irvine of Lairg, Q.C., Mr. Richard Mills-Owens, Q.C. and Mrs. Margaret Clough appeared for Mr. Iskandar. Lord Irvine and Mrs. Clough continue to represent him in this appeal. Mr. Bupert Spicer appeared for Mr. Ronardy Leo and is lead before us by Mr. Gilbert Rodway, Q.C. 4. The Plaintiff's case was that his father executed his will in Singapore on 27 November 1975. It had been prepared by Mr. Lui Poon Poh, an advocate and solicitor practising in that jurisdiction, and duly witnessed by Mr. Lui and his qualified legal assistant, Miss Ivy Neo. 5. By his will, Mr. Kusno appointed his wife Mrs. Lily Iskandar and his son Herman as his executors and trustees. Mrs. Iskandar died on 17 September 1983. Mr. Kusno left two pieces of immovable property to his wife Lily and three to his son Herman, all in Singapore. He left the rest of his movable and immovable property wherever found to his trustees on trust for the maintenance and education of all his five children until his youngest son Tommy attained the age of 21 (this happened on 20 May 1977). At the end of the trust period, the income and capital of his residuary estate was to he divided equally between his wife, his son Herman, his son Tommy, his two other sons and his only daughter. 6. Mr. Kusno also cohabited for some time with a lady named Madam Wong Tjow Moei who pre-deceased him. They had three children, Mr. Bonardy Leo and his two sisters, who are the Defendants in this.action. They were left nothing under the will. 7. There were proceedings in other jurisdictions over Mr. Kusno's estate. About five weeks after he died, Mrs. Lily Iskandar and Herman filed a petition in Singapore for the probate of the will there (28 December 1978). The three Defendants in this action entered a caveat and so, on 10 April 1979, Mrs. Iskandar and Herman instituted a probate action against them. The Defendants challenged the will on the grounds (in summary) that it contravened the deceased's lex domicili; that Mrs. Lily Iskandar was not lawfully married to him since he was already married to Madam Wong, and thus, under Indonesian law, Mrs. Iskandar's five children could not inherit; and that the will preferred was a copy and not the original. 8. The hearing began before Chua J, on 13 April 1981. The parties agreed that the Court should decide only whether the Plaintiffs should be granted probate of the will in respect of the immovable estate of the deceased in Singapore. The question of probate in relation to the movable estate should be adjourned until the Indonesian Court had decided upon the validity of the will in Indonesia and the status of the Defendants as the lawful heirs of the deceased. It was common ground that under Indonesian law a legitimate or legitimated child of the deceased is entitled to a specified portion of the deceased's estate notwithstanding dispositions in a will. Chua J. heard evidence from Mr. Lui and Miss Neo regarding the execution of the will. He held it had been proved and that the deceased had fully and completely understood the will, and made certain orders. 9. In September 1982 and in February 1983, the matter was restored before Chua J. by the Plaintiffs on the grounds that the Supreme Court of Indonesia had finally decided the issues there between the parties. The Defendants conceded that the Indonesian Court had finally decided that the will had been validly executed under their law but argued that the status of the Defendants as lawful heirs of the deceased (i.e. whether or not they were his legitimate children) had yet to be decided. Chua J. upheld this contention, concluding that the'' Supreme Court of Indonesia had not effectively adjudicated upon the issue of the legitimacy of the Defendants and that it was still open to them to seek to establish this and claim their statutory share of the movable estate; they should not be denied this opportunity. He made appropriate orders to reflect his decision. The Plaintiffs appealed. 10. On 5 September 1985, the Singapore Court of Appeal gave their reasons for having earlier (on 21 May 1985) dismissed the appeal, holding that Chua J. had made an eminently fair and just order as an interim measure to preserve the position. 11. I now turn to the Indonesian Proceedings. It is not necessary to review all. that happened. On 21 January 1979, the Court of First Instance, Jakarta, Utara-Timur appointed Mrs. Lily Iskandar and Herman as testamentary executors of the deceased in Indonesia. Then on 12 March 1979, the Defendants in our action obtained a "Statement of the Right to Inherit" from the District Court, Medan. On 4 June 1979 the Utara-Timur Court decided that the three Defendants in our action were the only.heirs of the deceased. 12. On 13 March 1980, the High Court, Jakarta, declared that the Statement of the Right to Inherit, and the judgment of 4 June 1979, were null and void and on 4 June 1981, the Supreme Court of Indonesia dismissed the appeal of the Defendants in our case against the High Court's decision. On 28 October 1982, the Supreme Court of Indonesia refused to review their decision of 4 June 1981. Thus the validity of the will and the appointment of Mrs. Lily Iskandar and Herman as the testamentary executors and heirs of the deceased was confirmed. 13. Between 1982 and 1985, various petitions were submitted by the Defendants in our action to the authorities in Indonesia, so far with no success. 14. On 20 August 1985, there was a letter to Mrs. Lily Iskandar's attorney from the Directorate-General of Law and Legislation, Department of Justice, Indonesia, confirming that the Supreme Court had rejected the petition for the "legalisation" of the Defendants. The letter enclosed a copy of a letter of 8 April 1985 to the Defendants' attorney from the Junior Chief Justice of the Supreme Court of Indonesia, Written Civil Law Section, informing him of the reasons why their petition had been rejected as not being based on law. 15. We are told that certain proceedings which would give Mr. Bonardy rights are still pending, in Indonesia, and that he was a beneficiary under an earlier testamentary document. 16. I now return to Hong Kong. Between June and November 1984 there was a caveat entered by the Defendants, a warning issued by Herman and an appearance entered by the caveators. And so it was that on 12 December 1984, Mr. Herman Iskandar issued a writ against the three Defendants. The Statement of Claim prayed the Court to decree probate of the will in solemn form. 17. The Defendants filed their Defence on 2 February 1934 admitting the signature of the will by the deceased and its due execution in accordance with the law of Singapore. It was pleaded that the Defendants, as the lawful children of the deceased, were entitled under the law of Indonesia to three-quarters of the entire estate of the deceased wherever situate, notwithstanding any purported testamentary disposition, and that this applied to the moveable property of the deceased. The Defence refers to the steps taken by the Defendants in Indonesia and Singapore to have their rights recognised and they then aver that probate should only be granted n respect of the deceased" immovable estate in Hong Kong for the Plaintiff was not entitled to probate in respect of the moveable property, "alternatively that the question of probate in respect of such moveable estate ought in any event to be adjourned pending the final determination of the Defendants. aforesaid application" [to confirm their status as lawful children of the deceased.] 18. On 4 April 1985 directions were issued. An affidavit by Mr. Lui Boon Poh as to the due execution of the will was to be admissible in evidence, and one expert onIndonesian law could give affidavit evidence on each side, the affidavits to he exchanged. The action was to be placed on the "Running List". Later that month, Penlington J. allowed an appeal by the Defendants and ordered the action to he placed on the Fixture List. The date later chosen was 30 June 1986. 19. On 11 July 1985 Mr. Bonardy changed his solicitors and on 7 January 1986 his new solicitors sought a "ceasing to act" order due to difficulties in obtaining instructions. This was granted. 20. Then on 9 January 1986 a consent order was made appointing two joint administrators pendente lite, and a grant of letters of administration was made to them under s.40 of the Probate and Administration Ordinance. 21. The next thing that happened was that on 15 January 1996 Mr. Ronardy's original solicitors gave notice that they were acting again for him. On 13 March 1986 the Plaintiff set down the action for trial. Mayo J. made an "unless" order on 27 May 1986 that the Defence would. be struck out if the Defendants did not provide expert affidavit evidence on Indonesian law within 14 days. 22. There was then an unexpected turn of events. On 18 June 1986 the Defendants' solicitors wrote to the Plaintiff's solicitors saying that the Plaintiff had been arrested in Indonesia on a charge that he had forged the will and intimating that in view of the charges an application would be made to amend the Defence at the hearing, withdrawing the admission of due execution. 23. It seems that the Plaintiff was in custody in Indonesia for some 20 days and has since been provisionally released. We were given no information about the present state of the investigation. 24. If I understand the warrant correctly, it indicates that Mr. Herman Iskandar was arrested on 8 June 1986 and it refers to an earlier police report dated 24 December 1984. 25. I may mention here that the correspondence file shows that a report was lodged against Mr. Herman Iskandar on 28 August 1986 with the Commercial Crime Division, C.I.D., Singapore and that on 22 July 1987 he was informed by the Singapore police that their investigations had been completed and that, regarding the matter as closed, they would take no further action. 26. The Plaintiff's solicitors were iaformed by telex on 28 June. 1986 from the Defendants' solicitors that on the day fixed for the hearing of the action (30 June 1986) they would be applying for an adjournment on account of the forgery issue. Then on 30 June 1986 the Defendants took out a summons (apparently with no supporting affidavit) for, inter alla, leave to amend the Defence in the manner previously intimated. When the matter came on before Mayo J. on that day he gave the leave sought to amend and granted an ad journment on very stringent terms. Various other orders were made including one allowing and limiting expert handwriting evidence to two witnesses on each side. Reports were to be exchanged. This was done within the time stipulated. 27. The amended Defence (new Para. 2) states: "... it is denied that the Will was signed by the Deceased ....", and prays that probate should be refused. There are alternative, amended, prayers. It is to be noted that no issue of this kind was raised in the Court proceedings in Indonesia or Singapore. 28. On 29 April 1997 the Defendants' solicitors wrote to the Plaintiff's solicitors saying that in view of the delay by the Indonesian authorities in reaching a final decision on the legitimacy issue (of the three Defendants) they had decided that at the start of the hearing they would abandon the issue of their entitlement to part of. the estate under Indonesian law and pursue only the issue of the alleged forgery of the will. Then on 21 May the 2nd and 3rd Defendants (Mr. Bonardy's sisters) intimated by telex from their solicitors that they wished to withdraw their Defence in toto, on terms. Terms were ultimately agreed. 29. On 2 June 1987, the parties appeared before Liu J. Mr. Bonardy, by then again acting in person, applied for an adjournment on several grounds. One was that the C.I.D. in Indonesia were still investigating the Plaintiff. Another was that he needed time to raise money for legal representation. The application was refused. 30. Mr. Spicer, instructed by new solicitors, appeared before Liu J. on 3 June 1987 for Mr. Bonardy and renewed the application for an adjournment. It was again refused. Mr. Spicer asked for time to take the matter to Court of Appeal but later abandoned the application. The hearing then continued and, as we have seen, lasted 11 days. 31. The learned judge concluded that the signature on the will was genuine and, as we know, decreed probate in solemn form. The way in which he reached this conclusion is examined in the judgments which follow and, for reasons which will appear, I do not find it necessary to comment on the judge's reasoning. 32. The adverse ruling made by the judge about the evidence the Defendant's expert witness on handwriting (Mr. Radley) would be allowed to give is challenged by paragraphs 1, 2 and 3 of the Grounds of Appeal and paragraph (B) of the Supplementary Notice of Appeal. On behalf of Mr. Bonardy, the Appellant, it is said that the judge erred in law in refusing to allow Mr. Spicer to put questions in examination-in-chief to Mr. Radley about either (a) the "significant differences" between the questioned signatures and the genuine signatures of the deceased or (b) the "discrepancies" referred to by Mr. Radley in his written report. This had disabled the Court from making a full, fair and just comparison and evaluation of the expert evidence in the case. The judge therefore had.no basis, alternatively no proper or satisfactory basis, for preferring the opinion of Mr. Davis (the Plaintiff's expert) to that of Mr. Radley, or for treating the evidence of the former as confirming the evidence of Mr. Lui and Miss Neo that the alleged will was genuine. 33. Paragraph (B) of the Supplementary Notice of Appeal has it that the judge wrongly excluded evidence concerning the "Kromacote test" on the Defendants' own control documents in that he failed to apply the principles laid down in two cases cited. 34. To understand these grounds it is necessary first to review in some detail the contents of Mr. Radley's expert report exchanged in accordance with the order made by Mayo J. when he issued directions on 30 June 1986. 35. Mr. Radley begins his report dated 16 September 1986 by identifying the two questioned signatures (one on the "top" copy and one on the carbon copy of the disputed will) and lists the 34 documents provided by the Plaintiff and the 37 supplied by the Defendant, which were said to contain, genuine signatures of the deceased. He points out that the signatures span a period of 20 years but that a substantial proportion of them are reasonably contemporaneous with the questioned signatures. 36. Mr. Radley then draws attention to the fact that the questioned signatures were made with a ball pen and.that only eight of the known writings of the deceased had been executed with such an instrument. A similar number had been completed with fibre tipped pens. He noted that a few of these showed apparent slowness in the execution of the signature, but other signatures, which appeared to have been executed freely and spontaneously, indicated that the deceased could write well with a ball pen on some occasions. He felt that comparisons in the known signatures showed that the deceased was not comfortable in using fibre tipped pens, so that modifications of features resulted. 37. He reported that the deceased's signatures were of a highly personalised nature and did not represent conventional letter forms. Thev could be described in the most basic form as being a series of near vertical zig-zag lines of different amplitudes terminating with an elongated horizontal, followed by a second pattern of short, nearly vertical zig-zag strokes, ending, with a short, near horizontal pen movement. He had noted a considerable variation in virtually all aspects of the signature .production. These were to be classified as "accidentals" and were not surprising. He identified, as examples, signatures upon three of the documents he examined for comparison which contained detail atypical of the deceased's writing, habits. These incorporated examples of features which should he treated as exceptions and not as comparison standards. 38. Mr. Radley then explained why he was able to express the opinion that the deceased's signature could relatively easily be copied by a person of reasonable ability. 39. His report concludes:
40. It will have been seen at once that Mr. Radley's report does not explain or identify the "significant differences" and "discrepancies" upon which he based his opinion. Mr. Radley acknowledged that if he had been asked to submit a detailed report he would have done so Mr. Radley described his report as "a report of opinion" explaining that he had prepared it in a hurry and that a "detailed report of a technical nature would have been very time-consuming and expensive". He was saying, in effect that he had provided all that he had been asked for. 41. It is not surprising therefore that Lord Irvine felt it necessary to complain at the end of the hearing on 8 June that he was at a great disadvantage, contending that Mr. Radley should be required overnight to particularize the differences and discrepancies upon which he relied for his conclusions. when his application was resisted, Lord Irvine began to elaborate the grounds upon which he would object to Mr. Radley giving evidence in chief about these matters contending that Mr. Radley should not be permitted to give evidence until the deficiency complained of had been remedied. The judge expressed the view that while Lord Irvine's suggestion was an eminently sensible one, he knew of no authority that would entitle him to compel particulars to be ,given, and so refused the application. 42. On the following day, 9 June, Lord Irvine first referred to the evidence that Mr. Spicer intended to elicit from Mr. Radley about a test ("the Kromacote test") carried out by him. Mr. Davis, the Plaintiff's expert, had been cross-examined about the test on 8 June and at a suitable moment Lord Irvine intervened to point out that there was not a word about this test in Mr. Radley's report. 43. I will not refer to the lengthy exchanges on the matter which occurred between counsel and the Court. But Mr. Spicer explained how, according to his instructions, the Kromacote test' was conducted and that it revealed (it was said with certainty) in' which order the strokes made by a writer were put down on paper. 44. Mr. Spicer said that the result of these tests, carried out by Mr. Radley during the luncheon adjournment that day, would positively support his opinion about the order of the strokes without, admittedly, being conclusive on the issue of forgery. The issue here was whether Mr. Davis was right in his opinion that the first element of the deceased's signatures (consisting of three lines) were written forwards, from left to right, or whether Mr. Radley's opinion that they were written from right to left was sound. While the experts differed on this, they were at one that the first element in the genuine and the questioned signatures were written in the same direction. 45. Returning to 9 June, on that day Lord Irvine submitted, inter alia, that to lead evidence about the test would be allow evidence to be introduced, which was of a wholly different character from anything foreshadowed in Mr. Radley's report, and on the matter of Mr. Radley's report, he reminded the Court of the rejection by the Defendant of the earlier suggestion that Mr. Radley should give the particulars he had sought of the differences and discrepancies he had taken into account. 46. Lord Irvine then referred to the terms of 0.38, r.36 and the consequences of failure to abide by them and drew attention to the observations of Ackner J. (as he then was) in Ollett v. Bristol Aerojet Ltd. reproduced as a "Practice Note" in [1979] 1 W.L.R. . 1197 about experts reports. He submitted that, in truth, Mr. Radley's report did not qualify as such a report because there was no material in it to explain or justify his conclusions. It asserted a conclusion while giving nothing away. He should therefore not be permitted to give evidence at all. 47. Lord Irvine invited the judge to approach the matter in this way. Since, he contended, an expert's report was to be regarded as essentially his evidence in chief (although supplementary questions could be asked to explain and clarify matters) if no directions had been given about reports and Mr. Radley had given evidence limited to what he had written in his report, he, Lord Irvine, would not have felt it necessary to cross-examine him at all.. He would adopt the same course if Mr. Radley's report stood as his evidence in chief. TIP suggested that it could not be right for. the Court to give a licence to an expert to put nothing that is revealing of the substance of his reasoning in his report and thus take the other side completely by surprise. 48. Among the other authorities cited by Lord Irvine was The "Capitaine Le Goff [1981] Lloyds Rep. 322 to which I will refer again. 49. I will not review all that Lord Irvine submitted so forcefully and at such length, but he emphasised the point that the burden of Mr. Radley's report was that he was merely expressing his conclusion that the two questioned signatures were forgeries. If he were not obliged to specify the differences etc. in his report, the order made on the directions given by Mayo J. would be reduced to an empty shell. All that the Plaintiff was being told in the disclosed report was what he already knew, that Mr. Radley had concluded that the signatures were forgeries. 50. Lord Irvine invited the judge to rule that if Mr. Radley were put in the witness box he should not be allowed to adduce any oral evidence, in chief, of the differences between the genuine and the disputed signatures which Mr. Radley had observed (and, as it later transpired, had detailed notes about) but had deliberately withheld from his report; and to rule that Mr. Radley would not be permitted in chief to give any evidence of the tests he had made by the Kromacote method on any of the documents. 51. Lord Irvine submitted, in accordance with the authority he cited, that Mr. Radley should only be allowed to explain or amplify those parts of his report where he did not discuss the "differences" and "discrepancies" for the only explanation or amplification he could give of the differences would be to state what the differences were and this he should not be permitted to do. 52. The Judge gave a lengthy ruling on the matter which is fully recorded in the transcript and which I will not read. He ruled that while Mr. Radley could not be prevented from entering the witness box, his functions must necessarily be limited to an explanation or amplification of the kind suggested by Sheen J. in The "Capitaine Le Goff". No justification had been shown for leave to be granted to adduce evidence on the differcences etc. wentioned but not particularised in his report. Any attempt to adduce such evidence, and any leave granted for that purpose, would cause grave injustice and prejudice to the Plaintiff. Nor would leave be granted for Mr. Radley to give evidence about the making and results of the Kromacote tests. 53. In the event, at the conclusion of Mr. Radley's examination in chief, lord Irvine indicated that while he did not accept his conclusions, he did not wish to cross-examine Mr. Radley. 54. I think it right to begin to address the main issues arising on this appeal by referring to the succinct statement regarding the function of expert witnesses made by. Lord Cooper, Lord President, in Davie v. Edinburgh Magistrates (1953) S.C. 34, at p.40:
55. And in Wakeford v. Bishop of Lincoln (1921) L.J.P.C. 174 Lord girkenhead, iving the opinion of the Privy Council, said of a handwriting expert: "His function is to point out similarities between the two specimens of handwriting, or differences, and leave It to the Court to decide...." 56. I mean no disrespect to Mr. Radley when I say that his report, after the opening generalisations, did little more than state that he had compared the questioned signatures with a large number of signatures acknowledged to be those of the deceased and had reached the conclusion that the former were not made by his hand. We have seen that he really acknowledged as much. If it had been decided not to call Mr. Radley as a witness, or he had not been available to give oral testimony, if the current procedure had allowed his report to be before the Court it would have been of no value whatever to the judge, and no doubt in a. jury trial the jury would have been directed to ignore it. 57. To consider the position where an expert witness is to be called, it is necessary to refer to 0.39, rr.35-44 which contain the substance of the law (although they derive from statutory provisions) and restrict the right of the parties to adduce expert evidence in civil proceedings as a matter of right our statutory law and the rules made under them were introduced in 1980 and closely follow parallel provisions in the English Act and theR.S. C. The purpose of these rules appear clearly enough from their contents. I will not read all that the learned authors of the Supreme Court Practice say about the object of this pre-trial procedure in note 39/35/2, but the first paragraph concludes thus: "In these several ways, these rules are designed to improve the conduct and quality of civil trials, by reducing cost, delay and vexation particularly in that they avoid surprise at the trial and the unnecessary attendance at the trial of experts who could be more usefully employed elsewhere. Sheen J. emphasised this in the passage from his judgment in The "Capitaine Le Gaff" to which I will later turn. 58. Here, when giving leave to amend the Defence, as we have seen, Mayo J. directed the expert reports on handwriting of each side "to be exchanged at least 6 weeks before the trial". If a party fails to obey the directions of the Court regarding disclosure, he will ordinarily be prevented from adducing, the relevant oral expert testimony at the hearing subject always to the leave of the Court or the agreement of the parties. 59. In my opinion it is essential to bear in mind what 0.38, r.38(1) says. It does not say that an order may be made that the substance of the expert's report be disclosed. If it had said that, the Defendant would have complied with the direction mald under the rule because Mr. Radley's whole report was disclosed and the leave of the Court to adduce the evidence sought to be led would not have been necessary. That the rule does say is that the Court may "direct that the substance of any expert evidence which is to he adduced by any party lie disclosed in the form of a ,written report of reports." This is what Mayo J. was empowered to do, and did do, despite the fact that his order uses the shorthand of saying that experts' reports must be exchanged. I notice that the same form of words is used in Chitty & Jacob's Queen's Bench rorms (25th Edition) Form No. 690. 60. What does the "substance" of. the evidence to be adduced mean? I will not be so bold as to attempt a comprehensive definition of that expression to cover every category of expert evidence. Everything will depend on the facts and the nature of the expertise relied upon. But I have no doubt that the "substance" of expert evidence on disputed handwriting is not disclosed in a written report which merely states, in effect, that comparisons have been made and a conclusion reached that the disputed writing is a forgery. It seems to me, that when the function of an expert witness, and the object of the rules are borne in mind, it is essential that a report of this kind includes at least the expert's reasoning for his conclusions and the salient features of the questioned handwriting said to be different from the handswriting with which it has been compared. A report, moreover, which speaks of a number of "accidentals" and asserts that the nature of the differences observed were such as to lead to the opinion that the disputed sianatures could not be so classed, but were forgeries, must surely indicate how that conclusion has been reached. It will be recalled that Mr. Radley had reported that there was a considerable range of variation in virtually all aspects of even genuine signature production and that even outside that range, "accidentals" could occur which appeared unusual or which incorporated atypical detail. 61. There would, I think, have been a non-compliance with the meaning and spirit of the rules if the issue in this action had been the testamentary capacity of the deceased and an expert report had said, in practical terms, no more than that the deceased has been the patient of the expert medical witness at the material time, and from observing the conduct of the deceased his opinion was that he had been of unsound mind (assuming that it was intended that the expert would give reasons for his opinion evidence at the hearing, without which his evidence would be valueless. ) 62. I have mentioned that to understand the words employed in 0.3a, r.38(1) the object of the rules must be borne in mind. All that Lord Ackner (as he now is) said in Ollett v, Bristol Aerojet Ltd [1979]1 H.L.R. 1197 is helpful to the resolution of the issue before us but I will merely quote this passage:
63. What Sheen .J. had to say on the object of exchanging the evidence of expert witnesses in The "Capitaine Le goff" is to be found in the, passage from his judgment which I will shortly read. 64. When Mr. Radley's report was received by the Plaintiffs solicitors I accept that all they were in effect being told was his opinion that the questioned sienatures were forgeries. There was really very little in the report, if anything at all, that would make it possible for the plaintiff's counsel to be properly instructed by his expert on the strengths and weaknesses, and indeed the validity, of Mr. Radley's conclusions. As a report by a expert designed to help a party decide whether to institute or continue an action, Mr. Raddley's report might have been perfectly adequate but it was not helpful for the very purposes for which the report was disclosed to the other side assuming, once again, that the "vildence which is to be adduced"(at the trial, of course) was something much more. 65. I draw support for my opinion regarding the scope and effect of Mayo J.'s order. from Sheen J.'s observations in The "Canitaine Le Goff" [1981] Lloyd's Rep. 322 at pp. 324-325:
66. I mention here that when sheen J. was speaking of the "general rule" he no doubt had In mind the provisions of 0.38, r.43 which state that where an expert's report has been disclosed pursuant to an order, his report may be put in evidence when the maker is called as a witness at the commencement of his examination in chief (reversing the previous practice) "or at such other time as the Court may direct". There is thus no inflexible rule. 67. Sheen J.'s approach in that case (and Ackner J's views in Ollett v. Bristol Aerojet Ltd.) are supported by the Ruling male by Hobhouse J. on the admissibility of certain evidence in The "Torenia" [1983] 2 Lloyd's Rep 210 where he rejected a submission that for the purposes of 0.33, r.36 expert evidence is opinion evidence only and that any evidence which is evidence of fact is to be treated as factual and not expert evidence which is admissible as of right. He concluded that in 0.38, r.36 the expert evidence referred to is not only evidence of opinion but is also factual evidence which goes to an expert issue (see pp.232-234 of. the Report). 68. I have reached the conclusion, accepting Lord Irvine's submissions, that the learned judge was right to hold that the leave of the Court was necessary under 0.33, r.36 to allow evidence to be adduced in relation to the "significant difference" and "discrepancies" upon which Mr. Radley's opinion was founded. 69. As regards the Kromacote tests, Mr. Rodway frankly conceded that leave was required in the judge's discretion to lead evidence on the results and conclusions to be drawn from them. It may be that the making and results of routine testing in a particular field need not burden an expert's report disclosed before the trial, but it is clear from what the judge was told that the Kromacote tests did not fall within this category. Mr. Davis, with his great experience, had never conducted such a test. If the judge had decided to exercise his discretion to admit this evidence an adjournment would have been necessary in fairness to the Plaintiff, as Lord Irvine had indicated, and I am not surprised that the judge did not even contemplate this way of overcoming the obvious prejudice that would otherwise have been occasioned in the light of the inconclusive nature of the tests and the history of these protracted proceedings over a will which had been awaiting proof for probate in Hong Kong for over 9 years. By an adjournment, I do not mean a mere interruption of the hearing, for a few hours or a day, but one that would have resulted in new dates having to be found for the continued hearing and the return to Hong Kong of witnesses and counsel. 70. For the reasons I have attempted to give, the exercise of the Judge's discretion in refusing leave for Mr Radley to give the evidence sought to be adduced falls to be examined. The principles upon which an appellate court is permitted to interfere with the discretion of a Judge are well-known; they are collected in note 591/1/31 of the Annual Practice. Lord Irvine very properly reminded us of them, and cited a recent case on the subject: G. v. G. [1985] 1W.L.R. 647. I do not think it is necessary to review any of the authorities on this subject. Of course, the Appellant assumed a very heavy burden when he sought to persuade this Court to interfere with tha discretion Liu J. exercised, for an appellate court has a severely limited function in these circumstances. 71. Our attention was drawn to Cable v. Dallaturca (1977) 121 Sol. Jo. 795. There the defendant had had to obtain the leave of the court to adduce expert evidence because there had been a failure to serve the expert's report on the plaintiff in compliance with the rules. In reducing an award of costs in favour of the defendant who succeeded in the action, Cantley J. is reported to have observed that the defendant hart been fortunate in obtaining leave. The rules were in strong terms which were meant to be strictly enforced. Parties who broke the rules could not rely on an act of grace from the Court to admit evidence covered by the rules when they had been broken. He felt that the case was a suitable one in which to mark the view which the Court took (ay the costs order he made) of the importance of the rules not only for the benefit of the Parties but also for the benefit of the profession. 72. Although Mr. Rodway steadfastly maintained that Mr. Ralley's report sufficiently (though perhaps only just) complied with the rules, he cited two cases dealing with the exercise of the Court's discretion to admit a hearsay statement in evidence despite failure to comply with the rules relating to the giving of notice pre-trial to the other side. Of course, as in all cases where the discretion of the Court is invoked , everything will depend on the relevant facts and circumstances. Ford v. Lewis(1971) 1 W.L. R. 623 was a case in which the trial judge, when asked to exercise his discretion to admit a hearsay statement regarding which no notice had been given, was not told of the true reason why the rules had not been observed: that a deliberate decision had been taken by counsel not to comply with them. The Court of Appeal held by a majority that the Judge's decision to admit the statement (of the defendant) could not have been a valid exercise of his discretion. A re-trial was ordered. 73. Lord Irvine relies on this case for the English Court of Appeal's condemnation of attempts to spring a surprise on the other side through non-compliance with the rules and emphasises the ground upon which the appeal was allowed despite the fact that the matter was within the discretion of the trial judge. He drew particular attention to what Edmund Davies L.J. (as he then was) said at p.633:
74. Ford v. Lewis was distinguished in Morris v. Stratford-upon-Avon Rural District Council [1973] 1 W. L.R. 1059. There the trial judge exercised his discretion under 0.38, r.29 to admit a statement on behalf of the defendants which had been made by the driver of the lorry by which the plaintiff was injured some 9 months after the accident (5 years before the trial) and which was a proof of his evidence taken by the insurance company concerned. The driver had. given evidence and the application was made at the conclusion of his evidence in chief. The Court of Appeal held that the discretion had been rightly exercised since in the circumstances no blame could be attached to counsel for the defendants in making the application at that time because it had understandably not come to his mind, until the driver gave the evidence he did, that there would he occasion to put the statement, in relation to which no notice had been given, in evidence. 75. Megaw L.J., who gave the leading judement in the Court of Appeal, said that the judge had to consider all the relevant matters in exercising his discretion with care "before he can properly decide whether or not the non-compliance with the rules was such that justice required the statement to be admitted" (p.1063). He added, at P.1065:
76. Megaw L.J. was satisfied that no prejudice or injustice had been caused to the plaintiff by the admission of the statement, an the appeal was dismissed. 77. These were, of course, cases under 0.38, r.29 but I have no doubt that the principles they state are generally of assistance to the matter before us. 78. It was urged upon us by Mr. Rodway that additional considerations were relevant to the exercise of discretion to admit evidence in probate cases. Trotman v. Trotman (1964) 108 Sol. Jo. 159 was a revocation action. Karminski J. (as he then was) admitted an affidavit of due execution made 19 years earlier by an attesting witness who had since died as well as the evidence of a conversation between the witness and the surviving attesting witness during which the former had told him, in effect, that the testatrix had not made or acknowledged her signature on the will in his presence. Karminski J. is reported to have said that the Probate Court had always done its best to elicit the facts of the cases it had to try without too rigid an adherence to the rules of evidence practised in other courts. Applying that principle to the present case, he had come to the conclusion that the affidavit and the evidence of the conversation should be admitted. 79. I would remark here that changes in the statutory law and the R.S.C. since that decision would probably have removed the basis upon which the contention that the evidence was not admissible was based. Nowadays, by virtue of ss.2 and 8 of the Evidence Act 1968 (U.K.) and the equivalent provisions in our Evidence Ordinance, Cap.31, the evidence would have been admissible subject to compliance with the rules. And so, a notice under 0.33, r.21, read with r.22, would have been given in respect of the two pieces of evidence and if proper notice had not been given, the Court would have to consider whether to allow the evidence to be adduced under 0.38, r.29 "if it thinks it just to do so" as exemplified in Ford v. Lewis and Morris v. Stratford-upon-Avon Rural District Council, bearing in mind the object of the rules and the likelihood of prejudice to the other side. 80. Mr. Rodway also cited the great case of Sugden v. Lord St. Leonard (1876) 1 P.D. 154 where the admissibility of secondary evidence of the contents of a lost will, and of the declarations made by the testator was discussed. We were particularly referred to the observations of Jessel M.R. at p.242 where he said, inter alia:
Jessel M.R. had earlier remarked that the case of a lost will was one where it is incumbent upon a tribunal not to grant a premium for fraud or wrong." 81. We were also referred to Vere-Wardle v. Johnson [1949] P.395 where Willmer J. (as he then was) held that the evidence of the attesting witnesses was not conclusive for or against due execution of a will so that even though both such witnesses had given evidence that they had subscrthed their signatures before the testatrix had done, rebutting evidence will be admitted. With respect, I permit myself to wonder how the contrary contention could seriously have been advanced. But Mr. Rodway relies on Willmer J. 's observations on p.397:
82. The cases certainly support the proposition that in a probate case the court will strive to elicit. the facts without too strict an adherence to the rules of evidence and I accept that this broad principle applies to the procedure by which evidence is rendered admissible. When a judge considers how to exercise his discretion he will take into account all the relevant circumstances and these will include the nature of the case he is trying and the importance of the issue which will be affected by his decision. I have no reason to suppose that the judge, who tried this action with anxious care, did not have, in the forefront of his mind, the need to arrive at the truth, while seeking to ensure, as far as possible, that no unfair prejudice was suffered by the party who advanced the objection he was dealing with. 83. The authorities now relied upon for the proper approach of a court to matters of evidence in probate caws were cited to the judge when, towards the end of the trial, counsel for the Defendant invited the Judge to review his ruling. In declining to do so the judge commented:
84. The discretion given to a judge by 0.38, r.36 is not circumscribed in its application to probate cases, and Mr. Rodway did not suggest that it was. The objects of the new regime regarding expert evidence in Part IV of 0.38 must govern the proper exercise of discretion in probate cases just as in other cases, and ligitants and practitioners must be disabused of any impression they might have that they are entitled to rely on any special indulgence in the former type of action. 85. When deciding upon the right course to take, the judge would have had in mind the attitude to the issues than under consideration adopted by counsel then appearing for the Defendant. I will say here, at once, that I have no doubt whatever that counsel was actin. throughout with the best of motives and seeking to do his duty, as he saw it, both to the court and his lay client. If I may be permitted to say so, I entertain no doubt that his stand was wholly genuine and his view of the law (though I think it was mistaken) was conscientiously held and adhered to. And, it must be said, authority in this area of the law is sparse. 86. However, quite apart from the special rules about expert evidence, it seems with all due respect that counsel did not appreciate the full force of the observations made by Lord (as he now is) Donaldson in a case which he himself cited at one stage of the argument: Naylor v. Preston Area Wealth Authority [1987] 1 W.L.R. 958. I read a passage from page 967:
87. This is to some extent demonstrated by the fact that counsel frankly admitted that matters were so arranged that he was able to cross-examine Mr. Davis on the subject of the Kromacote test without any prior warning and he thus wished to discredit Mr. Davis as a witness. 88. It is also demonstrated by the fact that counsel declined to give the particulars sought by Lord Irvine in the face of every encouragement from the judge, remarking more than once that Lord Irvine's application was a "ridiculous" one. The judge pointed out to counsel that as he understood Lord Irvine's intervention, the Plaintiff was only asking for "a sensible, reasonable outline" and the judge later said that there was "eminently good common sense" in the invitation that had been put forward, on two occasions. 89. I would interpose here that part of counsel's submissions were based upon the proposition, maintained before us, that if there were. Defects in Mr. Radley's report, the report furnished by Mr. Davis suffered from the same defects. I do not wish to be drawn into a detailed consideration of this contention but would observe that I do not read the latter. report in the same way. An expert who is maintaining that from his comparison between the genuine and the disputed signatures he has concluded that the disputed signatures were genuine is, to my mind, in a somewhat different position iron one who says that he has detected forgeries. If Mr. Radley's report had been fuller, Mr. Davis would have been able to focus upon at least some of the "significant differences" and "discrepancies" observed by Mr. Radley, and would have been in a position to supply a supplementary report explaining why (if that were the case) he still considered that those differences etc. did not point to forgery. If counsel for the Defendant had felt any difficulty in conducting his case Sue to the nature and contents of his opponent's expert report, he could have said so and the matter would have been gone into. 90. The judge would have had in mind, too, that counsel for the Defendant had seen fit to suggest that the request for details regarding Mr. Radley's conclusions was prompted by "tactical" motives "to load Mr. Radley with extra homework while he is preparing to give his evidence in chief tomorrow" and that Lord Irvine had rushed through the examination in chief of his expert "hoping to leave me wallowing in difficulties". 91. The transcript shows that on the following day counsel for the Defendant told the judge that at an earlier stage of the proceedings Mr. Radley had prepared a document, which was privileged, specifying the various points of difference in the handwriting which he wished to indicate, and classifying them according to their relative importance. There was also a reference to "a report called Notes to Counsel" extending to some 30 pages in the original form, which explains those differences by reference to diagrams. Counsel then said that assuming privilege were to be waived he would show the document which I have first mentioned to the other side but not "until the end of Mr. Davis's cross-examination, when he has finished his evidence." 92. Counsel for the Defendant was on firm ground when he spoke of the privilege which attached to the documents to which he referred. The ordinary privilege in documents is not lost by the power of the Court to order disclosure of expert reports under the rules. I only mention all this because it shows that it really would not have been too difficult for reasonable particulars to have been given overnight. 93. Mr. Rodway suggests that if the judge had a discretion, he should have given an opportunity for counsel to give the particulars that had been sought at the conclusion of his ruling in view of the crucial nature of the expert evidence to the Defendant's whole case. I have read and re-read the submissions of counsel then appearing for the Defendant and nowhere can I find a hint that if the position maintained were held to be erroneous, particulars would be supplied. The judge could, of course, have taken the course suggested by Mr Rodway but in the light of all the circumstances I feel unable to say that the judge erred, in the exercise of his discretion, by not doing so. It is true that the judge in his ruling dealt together with theissue whether the rules had been complied with (i.e. whether leave was necessary) and whether leave should be granted, but counsel did not say to the judge when he heard) the ruling, that while he maintained his stand on the law, he wished.to have leave, offering to provide the particulars asked,for and suggesting a suitable adjournment (without necessarily requiring more than a mere interruption of the trial) so that Mr. Radley could give the evidence which had been excluded. 94. Having regard to the whole history of the case and the way the action proceeded I am not persuaded that this is an appeal in which it would be right for this Court to interfere with the judge's discretion on the evidence which would be permitted to be led. 95. Para. (A) of the Supplementary Notice of Appeal says that the judge erred in law in that during the course of the trial (at about 4:45 p.m. on Friday 5th June 1987) "he wrongly caused an undertaking to be given by counsel for the Defence to the effect that cross-examination of the expert witness Mr. Davis be completed by 3:15 p.m. on Monday 8th June 1987." 96. On page 127 of Bundle 8 occurs the following note made by the judge (before arrangements were made for the proceedings to be recorded on tape for transcription):
97. Agreed counsel's notes put the matter slightly differently but the importance of the judge's own note is that he had understood Mr. Spicer to be falling in line with these arrangements and it is not suggested that counsel did not agree. What is contended is that unfair pressure was put upon him to accept this limitation so early in the cross-examination of Mr. Davis and that counsel had had throughout to work against the clock so that he was hampered, not only in the manner, but also in the scope, of his cross-examination, and that this was so despite the fact that various extensions were grudgingly permitted by the judge. It was wrong in principle ever to impose a time limit upon counsel seeking properly to cross-examine a witness. 98. Mr. Rodway took us through parts of the transcript to demonstrate how severely Mr. Spicer had been handicapped by the constraints placed upon him, and to show that he had not neglected his obligation to ensure that the course of the trial was not unnecessarily prolonged. 99. Counsel began, his cross-examination of Mr. Davis during the morning of Friday 5 June, and my examination of the transcript confirms that he in fact cross-examined the witness for three days (only two of these days were after mechanical recordin. of the evidence began). On 10 June counsel applied for, and was granted, a further day to continue his cross examination, and it went on until about midday on 11 June. 100. I think it is necessary, to read what happened next in full from the transcript. After an exchange between counsel and the Court about certain evidence, the transcript is as follows: Mr. Spicer: No, I'm not going to pursue any further, my Lord. I'm going to sit down now because I noticed that its 2 mins after 12:00. It is very difficult to take cross-examination in bits of 5-mins, because I might get cut off before I'm properly develop to the point. Court: Can I take it that you are finished [or] not....? Mr.Spicer: I'm sitting my Lord because I considered myself as bound by the agreement. Court: You have about 5 to 10 minutes. Mr. Spicer: Yes, my Lord, it's rather like driving a car, you don't drive it until you run out of fuel. Court: well, can I take that you have exhausted your cross-examination, I don't like the tone of it. You've been granted an hours indulgence and you have another 10 minutes or so to go. Mr. Spicer: I'm sorry, I didn't mean any .... Court: But if you've exhausted your cross examination, it would be only right for you to sit down not just making comment that time is not sufficient to broach another subject. But have you finished or not finished? Mr. Spicer: I'm sorry. Court: But have you finished or not finished? Mr. Spicer: Yes, my Lord, I've finished, I apologise. Lord Irvine: I am too very concerned there should be no complaint hereafter about that the at length which Mr. Spicer has taken for his cross examination, no complaint about that it has been longer. My Lord, it has extended now over about 3 days, and there was an agreement that it would have ended after about 20 minutes, so that's about yesterday after argument had been concluded and.your Lordship's ruling been given. Your Lordship recalls that there was an agreement between Counsel which binds me as well as Fir. Spicer. My Lord, I said that I wouldn't hereafter say that, your Lordship has given him the indulgence, your Lordship, hereafter [in] breach of that agreement. Court: But obviously there are so many other questions that one could possibly ask. I'll take it Mr. Spicer has exhausted all the cross-examination that he set out to do, that is, the :message I received. Lord Irvine: That's my understanding too, and Mr. Spicer wishes to say otherwise, he should say so now. Mr. Spicer: I am not going to answer my learned friend's submission unless you want me to do so. Court: But you've told me all you've wanted to express yourself as a result of my observation. Mr. Spicer: Yes, my Lord." 101. Mr. Rodway relied heavily on Blaise v. Blaise [1969] P. 54 which was a case in which the justices had refused to allow counsel for the husband to cross-examine a probation officer who had given evidence in chief on the wife's behalf, both parties having waived their privilege. The Court of Appeal considered that a "substantial wrong" and a "miscarriage of justice" had been occasioned by the course taken by the justices within the meaning of those words in Rule 73(7) of the Matrimonial Causes Rules, 1957 because the husband had been denied the right to cross-examine a witness whose answers might affect the result, and ordered a re-trial. Sachs L.J., who gave the leading judgment, I would note were, expressed the view there was no material difference in effect between those rules and 0.55, r.7(7) and 0.59, r. 11(2) in their present form which use thee same expressions. In his concurring judgment, Fenton Atkinson L.J. said at p.64:
102. There are many cases which discuss the duty of all concerned in a trial, as judges and counsel, to ensure that cross-examination is kept within reasonable bounds. The leading cases are conveniently collected in R. v. Maynard and Others (1979) 59 Cr. App. R. 309. I do not think it is necessary to read Roskill L.J.'s (as he then was) review of them. They emphasise the duty of trial judges to ensure that trials are not unnecessarily prolonged. 103. Whatever may have been the wisdom of the arrangement agreed to by the Court and counsel on 5 June at the instigation of the judge in the performance of his duty as he saw it at the time, in all the circumstances of the case, after looking at the passage from the transcript which I have just read, I feel quite unable to uphold this round of appeal. with every respect to counsel concerned, his duty was to be frank with the Court, otherwise the interests of justice could not properly be served. He told the judge he had finished his cross-examination. If he had finished, that was the end of the matter. If he had not done so he (of course, unwittingly) misled the Court. He had an opportunity to reconsider his response after Lord Irvine's intervention but failed to do so. 104. I do not think it can possibly be right to raise this complaint on appeal. If counsel had told the Court that he had further questions to ask, and had indicated broadly what was intended to be covered by them, it is inconceivable that the judge would not have allowed him to proceed. 105. For the reasons I have given, I would dismiss this appeal. 106. I would add that if I had felt it proper to interfere with the discretion exercised by the learned judge, I would have dismissed the appeal and would not have ordered a re-trial because I respectfully agree with my Lords Kempster and Hunter JJ.A. (whose judgments I have read in draft) as to the true effect of the judgment by reason of the judge's acceptance of the evidence of Mr. Lui. Kempster, J.A. : 107. The history, background and circumstances giving rise to this appeal and references to material authorities have fully been provided in the judgment of Fuad J.A. I will confine myself to what I regard as the salient points. 108. Although only hinted-at in the Amended Defence, which merely denies signature by the testator, the claim to probate was contested on the basis that what purported to be his signature on the will was a forgery and, the will being regular on the face of it, the defendant was required to rebut the presumption of due execution thus arising. This he sought to achieve by adducing the evidence of a handwriting expert. 109. When granting an adjoarnment and leave to amend the Defence on 30th June 1986 Mayo J. gave a direction pursuant to RSC 0. 38 rr. 36 and 38, as well applicable to Probate as to other proceedings, that the substance of any oral expert avidence to be adduced by either party should be disclosed in the form of a written report or reports. The question of the time limited for compliance apart, the report of Mr. Radley subsequently disclosed by the defendant did not, in my opinion, comply with the order or with the defendant's continuing obligation to give the plaintiffs due notice of. the case they had to meet. It failed to reveal the substance of Mr. Radley's evidence being the reasons for his conclusion that the signature on the will was not written by the hand, admitted to be that of the. testator, which had subscribed other documents examined for purposes of comparison. In the premises, as the trial judge implicitly found, the defendant had not complied with the relevant direction of Mayo J. and therefore required leave to adduce evidence of opinion from Mr. Radley at the hearing. The ruling eventually made, after much argument, precluied any amplification by Mr. Radley of his report in order to explain in the course of oral evidence his reasoning; whether by a comparison of signatures, by the use of the Kromacote chemical test or otherwise. essentially the defence was thereby emasculated. This is the defendant's substantial matter of complaint because restriction, self-imposed or not, of his counsel's cross-examination of Mr. Davis, the plaintiffs handwriting expert, also a ground of appeal, was neither here nor there if reasoned evidence to the contrary could not be adduced. 110. In the exercise of his discretion limiting the scope of Mr. Radley's oral evidence Liu J. would have had many factors in mind including on the one hand the equivalent inadequacy of the report of Mr. Davis disclosed by the plaintiffs pursuant to RSC 0. 38 r. 33(1), to which no exception was taken, and on the other the very late stage, in any jurisdiction, at which forgery was alleged, the improper use of documents lent by the plaintiffs and the failure of the defendant's counsel to accept an invitation to make good the lacunae in Mr. Radley's report before completing his cross-examination of Mr. Davis. For my part I would have been happier with a ruling inhibiting the introduction of any expert evidence on behalf of the defendant until and unless he had complied with the direction of Mayo J. coupled with a grant of any necessary adjournment at the defendant's expense. However, I find it unnecessary to make a finding in this regard. 111. The judge found that the case presented no difficulty. This, in my opinion, was due to his acceptance of the testimony as to signature of the will given by Mr. Lui Boon Poh, an attesting witness and for all material purposes the testator's solicitor, in the context of "two expert opinions of forgery". He found that "the high quality of Mr. Lui's evidence need. no buttresses" and that he was :
The expert evidence not being unanimous Liu J. adverted to it, at considerable length, only "for the purpose of good housekeeping". 112. The testimony of the attesting witnesses having been accepted in circumstances where, as before us, no suggestion of fraud or conspiracy had been made it is wholly unrealistic to suggest that the judge's reliance on such evidence could have been altered by expert evidence however cogent even if he had been disabused of the erroneous impression that Mr. Radley had conceded that Mr. Davis's opinion had merit or was "supportable by the available material". The concluding words of the judgment read
The words "as confirmed by that of Mr. Davis" are, as I read them, to be understood parenthetically and do no more than record the result of a "housekeeping" exercise which, with its attendant issues relating to the exercise of discretion, is now of no more than academic interest. I too would dismiss this appeal accordingly. 113. Albeit Lord Irvine, on behalf of the plaintiffs, has eschewed the point I feel bound to suggest that in the circumstances outlined the defendant was estopped from alleging forgery; the validity of the will being res judicata by reason of the decision of the Courts of Singapore. Hunter, J.A. . 114. The credibility of Mr. Lui Boon Poh. 115. This is the first issue in this appeal. My Lord Fuad J.A. has outlined the crucial role he played in taking instructions for, drafting, explaining, witnessing and then keeping the will. If. what he told the court in Singapore and again here was true, then the signature on the will was that of the deceased, however "peculiar" any of its characteristics may have appeared to any subsequent expert examiner. Conversely if what he said was not true and these signatures were forgeries, then Mr. Lui must have been aware of this : party to it : and mainly responsible both in Singapore and Hong, Kong for the presentation of a false case supported by perjured evidence. No middle course is open. 116. Mr. Lui gave evidence before Chua J. in Singapore. He was extensively cross-examined by distinguished leading counsel for the purpose of testing the accuracy of his recollection. Neither the validity of the signatures nor his bona fides were questioned. Chua J. found him to be "an honest witness". and granted probate of the will in solemn form. 117. Mr. Lui gave evidence again before Liu J. His cross-examination again was limited to testing the accuracy of his recollection. His integrity and bona fides were in no way challenged during its course, nor indeed were they put in question in argument before this Court. The trial judge independently assessed Mr. Lui's credibility, and reminded himself at the outset of this assessment that two experts were of the opinion that the signatures were forted. His conclusion was that Mr. Lui was "an honest and truthful witness". The trial judge equally accepted the truth of the statements of the attesting witness Miss Neo. On my reading of his judgment, he reached this conclusion upon his assessment of these witnesses alone, with knowledge of the experts dispute but independently of his conclusion upon it. Indeed, as he seemed to acknowledge, it was in my view not necessary for him to express any conclusion upon the expert evidence alone. 118. This finding of fact is in my judgment conclusive of this appeal. First the finding as such is not and cannot be criticized. It is only sought to be attacked through the exclusion of part of Mr, Radley's evidence. But the judge saw and heard Mr. Lui. Once he felt able then to accept him, as his judgment shows that he did, as a witness of truth, the differences between the experts became something of a side show, and could not affect this conclusion. 119. Secondly, Mr. Lui has twice been cross-examined in the same interest. when faced with this experienced professional man in the witness box, neither cross-examiner has felt able to charge him with misconduct. But proof of such misconduct is in my view essential to a successful plea of forgery in fact. If counsel felt unable even to suggest this, I fail to see how they can invite a court to make, or how a court can make, a finding involving misconduct. This failure precludes this Court in my view both from interfering with the judge's actual finding and from ordering a retrial. 120. Thirdly, proof of misconduct in Mr. Lui was also essential in my view to the defendant's success in law. In the absence of any special circunistances, and none have been suggested, the judgment of the Singapore court was conclusive of due execution of the will and entitled the plaintiff to plead res judicata, Yat Tung Investment v. Dao Hang Bank Ltd(1).The only possible escape that I can see would have been for the defendant to plead and prove that the Singapore judgment was. impeachable for fraud i.e. on the part of Mr. Lui, Dicey, Conflict of Laws 11th edition Rule 44. No such attempt has yet been made, and I. can see no good reason for affording the defendant yet another chance to try this. 121. Expert evidence. 122. My views upon this are not necessary to my decision, and I only add them out of deference to the careful arguments advanced and. because of the importance of the position. 123. The intent of Part IV of R.S.C. 0. 38 rr. 35-44 is clearly to put an end to the laying of expert ambushes; to the springing upon a party of oral expert evidence with which he and his counsel are quite unable to deal. The purpose is to prevent surprise and to enable cross-examining counsel. to he properly prepared at the trial see Ollett v. Bristol Aerojet Ltd(2) and The Capitaine Le Goff(3). This aim is achieved by giving the court discretionary power to exclude expert evidence which has not been disclosed in accordance with the rules. This provides the clue to the meaning of the word "substance" in 0. 38 r. 38(1). It means, I think, the essential facts and reasoning :
124. It follows that "substance" relates to the evidence which the expert will ultimately wish to give in chief, and which his report desirably is intended to replace. This may not be the evidence which a party proposes to "adduce" at an early stage in the proceedings which may then be contained in an expert's initial report. This is because the expert may well wish to refine, alter or amend his view in the light of any contrary report or in the light of new or different facts. The purpose of the rules will not be achieved if they are construed as requiring the parties to disclose only an initial report, and then to allow each to add to or amend such report at will at the hearing. I therefore think it right to read 0. 38 r. 38(1) as imposing a continuing obligation to disclose upon all parties covering the ultimate substance of their expert's opinions. 125. The experience of this and other cases suggest that such continuing obligation is not yet fully appreciated by experienced expert witnesses and lawyers. it might assist to bring the nature of this obligation home if orders for exchange of reports routinely gave two time limits e.g. :-
126. This reading of the rule gives it both teeth and flexibility. The preparation at the outset of the case of a detailed and fully reasoned expert's report, sufficient to satisfy the ultimate disclosure obligation, may be time consuming and expensive. There is also a real risk of waste. It may therefore sometimes be sensible to treat the initial reports as defining the areas of expert difference. Their exchange can be followed by "without prejudice" meetings between the experts further to refine and define these areas. It is to be hoped that we will here follow the English practice and add their 0. 38 r. 38(3) to our rules. The final stage would be the exchange of detailed reports directed to such areas in sufficient time before the hearing. 127. In this case neither party appreciated or fulfilled its obligations under the rules. As it is put in the headnote to Wakeford v. Bishop of Lincoln (4) the function of an expert in handwriting "is to point out similarities between two specimens.of handwriting and differences". The real issue separating Mr. Davis And Mr. Radley was the significance of the differences they each detected between the disputed and control signatures, and whether those differences fell within or without what each regarded as normal tolerances. Both reports dealt with the matter generally: Mr. Radley being more general than Mr. Davis. Neither started to identify or to tabulate "their" differences or to Give their reasons for regarding them as normal or otherwise. This may well not have concerned either gentleman. Both were sufficiently experienced to be unlikely to be "surprised" by anything the other said. It was the court and counsel who were left totally in the dark. 128. It is easy now to see that the case should never have reached trial in this condition. Unfortunately when the point was first taken by Lord Irvine Q.C. on Monday 8th June, after about a day of cross-examination of Mr. Davis, it was not understood either by the judge or by Mr. Spicer. It would then have been sensible and feasible for Mr. Ralley and Mr. Davis collectively or individually to tabulate significant similarities, significant differences, and their respective positions on such differences. This might have taken the whole of Tuesday to complete. But then the court and counsel would have resumed on Wednesday knowing what the real points of substance were, and with I suspect an overall saving in total time. 129. In my judgment, the trial judge first fell into error on Monday 8th in ruling that he had no power to direct particulars and that it would not be just to do so. The rules, and both parties' failure, gave him the power to order the particularization which a fair trial required. The position in my view remains the same on Wednesday 10th June. Then after almost no further evidence, but a day and a half of legal argument, the judge refused leave to Mr. Radley to give any detailed evidence at all. Mutual particularization then remained essential for the same reasons. This was not a case of unilateral deliberate fluting of the rules. The unilateral exclusion of all detailed evidence which Mr. Radley wished to give in support of his report was in my view an unsupportable exercise of discretion. I except from this the exclusion of the "Kromacote" evidence. But for the reasons I have given this ruling gave rise to no "substantial wrong or miscarriage"; 0. 59 r. 11(2). 130. I also agree that this appeal should he dismissed. Fuad, J.A. : 131. The appeal is therefore dismissed. In handing these judgments down, we make an order nisi that the Appellant shall pay the costs of the appeal. (1) [1975] AC 581 (2) [1979] 1 WLR 1197 (3) [1981] 1 LI. Rep. 322 (4) [1921] 90 LJ PC 174 Representation: Mr. Gilbert Rodway, Q.C. and Mr. Rupert Spicer (Hwang & Co.) for the Appellant/Defendant. Lord Irvine of Lairg, Q.C. and Mrs. Margaret Clough (Susan Liang & Co.) for the Respondent/Plaintiff. |
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