Ehsanul Haq Bajwa v. Hospital Authority and Another

HCPI 1040/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1040 OF 2004

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BETWEEN

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R U L I N G

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INTRODUCTION

1.This case involves a medical negligence claim brought by the plaintiff against the defendants.  It arose out of a lymph node biopsy performed by the 2^nd defendant on the plaintiff at one of the hospitals run by the 1^st defendant.  The incident happened on 20 November 2001.

2.I am asked to determine the costs issue resulting from the plaintiff’s change of liability and quantum expert.

BACKGROUND

3.Although the factual background leading to the present summons as set out by the defendants in their written submissions are not disputed by the plaintiff, it is important to recite them in full here in order to provide a better understanding of what exactly took place which led to the present saga.

FROM ISSUE OF WRIT TO CHECKLIST REVIEW HEARING BEFORE MASTER J WONG

4.The Writ of Summons in the present proceedings was issued on 18 November 2004.  The plaintiff’s liability expert Dr Goh Yu Ching, Keith (“Dr Goh”) was first appointed by the plaintiff’s solicitors on 28 September 2004.  His first report on liability was dated 8 October 2004.  Dr Goh subsequently produced 3 further expert reports in April 2005, November 2006 and June 2009.  In March 2011, the plaintiff wished to have leave to change his expert on liability and applied by way of summons to do so.  While the defendants subsequently decided not to oppose the plaintiff’s application, they dispute the costs resulting from such change.  The defendants contend that the costs of and occasioned by the plaintiff’s application for leave to replace his expert be paid by the plaintiff to the defendants in any event.

5.The Statement of Claim of the action was filed by the plaintiff on 16 November 2005.  The Defence was filed by the defendants on 30 March 2006. Pursuant to an Order of Master Kwan dated 26 May 2006, the defendants were given leave to file their expert report.  The defendants’ expert report of Dr Lam dated 3 September 2007 was subsequently served out of time pursuant to an Order made by Master Yu on 8 April 2010.

6.On 17 July 2010, the plaintiff filed his Amended Statement of Claim.  The defendants filed their Amended Defence on 26 July 2010.

7.There were a number of Checklist Review hearings before several different Masters during the aforementioned period.

8.Another Checklist Review hearing was fixed before Master J Wong on 24 August 2010.  At the Checklist Review hearing, the plaintiff was ordered to file and serve a Revised Statement of Damages by 11 January 2011.

DEFENDANTS’ SUMMONS DATED 25 FEBRUARY 2011 AND HEARING BEFORE MASTER A CHOW ON 3 MARCH 2011

9.In breach of Master J Wong’s Order dated 24 August 2010, the plaintiff failed to file and serve his Revised Statement of Damages by the deadline of 11 January 2011.

10.Nonetheless, the defendants did not chase up the plaintiff on this matter until 21 February 2011, ie a month and a half after the deadline set down by Master J Wong.  In the defendants’ letter, the defendants gave the plaintiff 3 days to provide them with the Revised Statement of Damages and indicated that if the plaintiff failed to do so, the defendants would take out a summons for directions from the court.

11.However, the plaintiff did not reply to the defendants’ letter, not even to indicate that the plaintiff would require more time to prepare the Revised Statement of Damages.  The defendants therefore took out a summons on 25 February 2011 to seek an Unless Order from the court.

12.The summons was heard before Master A Chow on 3 March 2011.  Mr Krishnan from the plaintiff’s solicitors attended the hearing on behalf of the plaintiff. It was at this hearing that Mr Krishnan first made known to the court and the defendants that the plaintiff intended to replace his liability and quantum expert, Dr Goh.

13.Master A Chow therefore ordered the plaintiff to file and serve a summons to apply for leave to change his experts together with a supporting affirmation by 24 March 2011.  The defendants’ summons dated 25 February 2011 was ordered to be adjourned to be heard together with the plaintiff’s summons for leave to replace the plaintiff’s expert.  Costs were reserved on that occasion.

THE PLAINTIFF’S SUMMONS DATED 24 MARCH 2011 AND HEARING BEFORE MASTER A CHOW ON 7 APRIL 2011

14.The plaintiff subsequently took out a summons dated 24 March 2011 for leave to replace his expert.  The hearing was fixed before Master A Chow on 7 April 2011.  However, in breach of Master A Chow’s directions on 3 March 2011, the plaintiff’s supporting affirmation was not filed until 6 April 2011 (ie the day before the hearing) and was not served on the defendants until the morning of 7 April 2011 (ie on the day of the hearing).

15.The supporting affirmation however did not provide the names of the plaintiff’s proposed replacement experts and did not exhibit a gist of their opinion.

16.Master A Chow was of the view that the issue could not be decided without knowing the names of the plaintiff’s proposed replacement experts and without seeing the gist of their opinion.  Master A Chow therefore ordered the plaintiff to file and serve the gist of his proposed replacement liability and quantum experts’ opinion by 7 June 2011.  As the plaintiff’s solicitors told the court that the plaintiff would set his application down for argument before the PI Judge, Master A Chow did not fix a date for the parties to return for substantive argument.  Costs were again reserved.

17.Since the issue with the plaintiff’s expert evidence had not been resolved, the parties subsequently wrote jointly to the court to vacate the Checklist Review hearing fixed before Master A Chow on 3 May 2011.  Master A Chow ordered that the Checklist Review hearing be vacated “to a date after the plaintiff’s Summons to replace his experts”.

18.However, in breach of Master A Chow’s Order dated 7 April 2011, the plaintiff did not file and serve the gist of his proposed replacement liability and quantum experts’ opinion by 7 June 2011.

HEARING BEFORE MASTER K K PANG ON 26 JULY 2011

19.The defendants reported the plaintiff’s breach of Master A Chow’s Order dated 7 April 2011 to the court and the parties appeared before Master K K Pang for directions on 26 July 2011.

20.At the hearing, Master K K Pang gave the following directions:

“ 1. The parties shall liaise with each other and, within 14 days of the date hereof, i.e. on or before 9 August 2011, attend the office of the Listing Clerk for the purpose of fixing a date for the adjourned hearing of the defendants’ Summons filed on 25 February 2011 and the plaintiff’s Summons filed on 24 March 2011 before the PI Master with 1 hour reserved.

2. Unless on 31 August 2011 by 4:00 pm, the plaintiff files and serves:

a. the gist of his proposed replacement quantum and liability experts’ opinion;

b. the name(s) of his proposed replacement quantum and liability expert(s);

Pursuant to the Order of Master A. Chow dated 3 March 2011, the plaintiff’s Summons filed on 24 March 2011 shall be dismissed with costs to the defendants.

3. If the plaintiff fails to comply with the above paragraph 2, the adjourned hearing date shall be vacated and the plaintiff shall forthwith take steps to fix a date of the next Checklist Review hearing.

4. If the plaintiff complies with the above paragraph 2, within 14 days thereafter, i.e. on or before 14 September 2011, the defendants shall file and serve the opposing affirmation.

5. Within 14 days thereafter, i.e. on or before 28 September 2011, the plaintiff shall file the replying affirmation if so advised.

6. There shall be no further affirmation evidence without leave of the court.

7. Costs of this hearing be to the defendants in any event.

8. The plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

9. There be liberty to apply.”

PROGRESS AFTER THE HEARING BEFORE MASTER K K PANG ON 26 JULY 2011

21.On 9 August 2011, the plaintiff filed and served a Notice of Appeal against Master K K Pang’s Order dated 26 July 2011.  The appeal was fixed to be heard before the Honourable Mr Justice Bharwaney on 16 September 2011.

22.By 31 August 2011, the plaintiff had served on the defendants a gist report of Mr James Brown dated 30 August 2011 (Mr James Brown being the plaintiff’s proposed replacement liability expert) and the full report of Dr Huang Chen Ya dated 16 August 2011 (Dr Huang Chen Ya being the plaintiff’s proposed replacement quantum expert).

23.On 5 September 2011, the plaintiff’s solicitors wrote to the defendants’ solicitors to indicate that they no longer intended to appeal against Master K K Pang’s Order dated 26 July 2011 as the plaintiff had managed to comply with the Unless Order set out in paragraph 2 of the Order.  The plaintiff therefore proposed that the Notice of Appeal be withdrawn by consent.

24.The defendants agreed to have the Notice of Appeal withdrawn by consent.  On 14 September 2011, the parties filed a consent summons to withdraw the Notice of appeal.

25.Further, after studying the gist report of Mr James Brown dated 30 August 2011 and the full report of Dr Huang Chen Ya dated 16 August 2011, the defendants decided not to oppose the plaintiff’s application for leave to replace his experts.  The defendants’ solicitors indicated to the plaintiffs’ solicitors as early as on 12 September 2011 that the defendants had no objections to the plaintiff’s replacing his expert but that the costs occasioned by the plaintiff’s application should be to the defendants in any event.  The costs should include the costs of the hearing before Master A Chow on 3 March 2011 and 7 April 2011, and the costs to be incurred by the defendants in seeking supplemental expert reports from their liability and quantum experts.

26.In addition, in an attempt to avoid further escalating the already significant legal costs, the defendants proposed to the plaintiff that it would be in the interests of all parties and in the spirit of the Civil Justice Reform for the parties to consider mediation.

27.The parties subsequently attempted mediation on 9 January 2012. Settlement could not be reached but it was agreed that: -

(1)  The plaintiff would seek instructions from the Legal Aid Department regarding the costs incurred by the parties as a result of the plaintiff’s application for leave to change experts and upon obtaining such instructions, the parties to deal with the costs issue by way of a consent summons;

(2)  For the purpose of mediation, the plaintiff would seek instructions from the Legal Aid Department regarding obtaining further expert opinion on the medical treatments that the plaintiff would require; and

(3)  The parties to return for another attempt at mediation upon obtaining the further expert opinion.

28.According to a letter from the plaintiff’s solicitors to the defendants’ solicitors dated 26 March 2012, the plaintiff had obtained the Legal Aid Department’s instructions regarding the costs incurred by the parties as a result of the plaintiff’s application to change experts and that they would prepare a draft consent summons for the defendants’ solicitors consideration. However, despite the defendants’ constant reminders, it was not until 5 July 2012 (ie more than 3 months later) that the plaintiff’s solicitors produced a draft consent summons for the defendants’ consideration.  Instead of agreeing to pay the defendants’ costs, the plaintiff asked that the costs of and occasioned by him in replacing his expert be costs in the cause, that the costs of the defendants’ summons dated 25 February 2011 be costs in the cause, that the plaintiff’s summons dated 24 March 2011 be costs to the plaintiff in any event and the costs of the consent summons be to the plaintiff in any event.

29.The defendants were unable to agree with the costs directions sought by the plaintiff and therefore issued the summons dated 17 July 2012.

HEARING BEFORE MASTER J CHOW ON 26 JULY 2012

30.The summons dated 17 July 2012 was initially fixed before Master J Chow on 26 July 2012.  At the hearing, Master J Chow made the following orders: -

“ 1. The plaintiff do have leave to replace his liability and quantum expert, Dr. Keith Goh Yu Ching, with Mr. James Brown as the liability expert and Dr. Huang Chen Ya as the quantum expert;

2. The plaintiff do have leave to serve Mr. James Brown’s expert report dated 7 September 2011 with the actual serve on the defendants being dispensed with;

3. The plaintiff do have leave to serve Dr. Huang Chen Ya’s expert report dated 16 April 2011 with the actual service on the defendants being dispensed with;

4. Paragraphs 4 to 8 of the Summons filed on 17 July 2012 be adjourned to a date to be fixed for argument before a PI Master with 2 hours reserved. The parties shall fix the date within 7 days;

5. Leave for the defendants to file and serve an affirmation in support within 7 days;

6. Leave for the plaintiff to file and serve an affirmation in opposition within 14 days thereafter;

7. Leave for the defendants to file and serve an affirmation in reply, if any, within 7 days thereafter;

8. The Checklist Review hearing be heard immediately after the argument of paragraphs 4 to 8 of the Summons filed on 17 July 2012;

9. The parties do file the Checklist Review Questionnaire 14 days prior to the date of argument;

10. Costs of today be reserved.”

PROGRESS SINCE THE HEARING BEFORE MASTER J CHOW ON 26 JULY 2012

31.The hearing for argument was subsequently fixed on 28 November 2012 before me.

32.In accordance with Master J Chow’s Order dated 26 July 2012, the defendants duly filed and served an Affirmation of Cheung Hoi Ting, Florence on 27 July 2012.  However, the plaintiff failed to file and serve an affirmation in opposition by the deadline of 16 August 2012 in accordance with paragraph 6 of Master J Chow’s Order dated 26 July 2012.  Despite of that, the defendants agreed to the plaintiff’s requests for time extensions.  The defendants indicated to the plaintiff that the final time extension that the defendants would agree to was for the plaintiff to file and serve the affirmation in opposition by 5:00 pm on 6 September 2012.  However, despite the defendants’ indulgence, the plaintiff did not file and serve the affirmation in opposition by 5:00 pm on 6 September 2012.  After some rounds of correspondence with the court in this regard, Master J Chow ordered on 24 September 2012 that the time be extended for the plaintiff to file and serve an affirmation in opposition to the defendants’ affirmation on or before 26 September 2012 and the costs of the application be summarily assessed at $800, to be paid to the defendants forthwith.

33.However, in breach of Master J Chow’s Order dated 24 September 2012, the plaintiff did not file and serve an affirmation in opposition on or before 26 September 2012.  After some further rounds of correspondence with the court in this regard, Master J Chow ordered on 5 October 2012 that: -

“ 1. Unless the plaintiff file and serve the Affirmation in opposition on or before 4 pm on 9/10/2012, the plaintiff be debarred from adducing evidence at the substantive argument on 28/11/2012 at 2:30 pm;

2.       Costs of an occasioned by the late filing of the plaintiff’s Affirmation in opposition be dealt with in the hearing on 28/11/2012.”

34.The plaintiff finally filed and served the affirmation of Mr Krishnan Sundaramoothy on 9 October 2012, ie the plaintiff’s 2^nd affirmation in opposing the defendants’ summons to ask for costs.  This was almost two months after the original deadline of 16 August 2012.

THE SUMMONS DATED 17 JULY 2012

35.The defendants in their summons dated 17 July 2012 are seeking the following directions:

“ 1. The plaintiff do have leave to replace his liability and quantum expert, Dr. Keith Goh Yu Ching, with Mr. James Brown as the liability expert and Dr. Huang Chen Ya as the quantum expert;

2. The plaintiff do have leave to serve Mr. James Brown’s expert report dated 7 September 2011 with the actual service on the defendants being dispensed with;

3. The plaintiff do have leave to serve Dr. Huang Chen Ya’s expert report dated 16 April 2011 with the actual service on the defendants being dispensed with;

4. The costs and occasioned by the plaintiff’s application to replace his expert, including the costs of the Summons filed by the plaintiff on 24 March 2011, be paid to the defendants in any event;

5. Unless the plaintiff files and serves his Revised Statement of Damages, together with any further statements as to quantum and any documentary support not already disclosed within 14 days of this Order, he be debarred from doing so;

6. The costs and occasioned by the defendants’ Summons filed on 25 February 2011 be paid to the defendants in any event;

7. The costs of this application be to the defendants in any event;

8. The plaintiff’s own costs arising from the plaintiff’s application to replace his expert (including the costs of the Summons filed by the plaintiff on 24 March 2011), the defendants’ Summons filed on 25 February 2011 and this application be taxed in accordance with Legal Aid Regulations; and

9. The Checklist Review hearing be restored and be fixed to [  ] 2012.”

36.As paragraphs 1 to 3 of the summons had already been dealt with by Master J Chow at the hearing before her on 26 July 2012, the hearings before me on 28 November 2012 and 20 December 2012 only focused on paragraphs 4 to 8 of the summons.  For the sake of completeness, I should add that the case was adjourned part-heard for argument to 30 January 2013 as the parties could not finish their submissions on 20 December 2012.  However, the day before the adjourned hearing, the plaintiff’s solicitors wrote to the court and asked for an adjournment citing the fact that the plaintiff’s counsel had taken ill and was not able to attend the hearing on the following day.  A sick leave certificate was produced in support.  The case was thus further adjourned to 6 March 2013 for the part-heard argument with costs reserved.

37.It is against the factual background as set out above that I have to decide the matters stated in paragraphs 4 to 8 of the defendants’ summons dated 17 July 2012.

DISCUSSION

Paragraph 4 of Summons: Costs of replacing the plaintiff’s expert on liability

38.Although not objecting to the plaintiff’s application for leave to replace his expert, the defendants ask for costs of and occasioned by the plaintiff’s application for leave to replace his expert be paid by the plaintiff to the defendants in any event.

39.The plaintiff on the other hand says that the costs should be in the cause.

40.In short, the plaintiff’s case on this is that the change of the expert was due to Dr Goh’s withdrew as an expert on his own accord and not due to his fault or the fault of those representing him, therefore he should not be responsible for the costs of the defendants.  Further, the plaintiff says that despite the best endeavors and attempts on the part of his solicitor to try to persuade Dr Goh to continue to act as his expert, Dr Goh, “for best reasons known to him” (sic), declined to act further.

41.In support of his arguments to change Dr Goh as the plaintiff’s medical expert, the plaintiff’s assigned solicitor Mr Krishnan has filed an affirmation on 7 April 2011 (“the plaintiff’s 1^st affirmation”), setting out the plaintiff’s view on that issue.  Further, in support of his arguments on the issue of costs resulting from the change of expert, the plaintiff filed a further affirmation of Mr Krishnan on 9 October 2012 (“the plaintiff’s 2^nd affirmation”).  In response to a request made by the court at the hearing before me on 28 November 2012, the plaintiff filed a further affirmation of Mr Krishnan on 10 January 2013 (“the plaintiff’s 3^rd affirmation”) exhibiting the correspondence between the plaintiff’s solicitors and other potential medical experts they approached on behalf of the plaintiff since Dr Goh had indicated that he no longer wished to act as the plaintiff’s expert.

42.Much of the contents of the above affirmations have been cited in the parties’ skeleton submissions and during arguments before me and I do not wish to repeat them here.

43.In essence, the plaintiff claims that the only reason behind why he needed to change his expert 6 years after Dr Goh was appointed was due to Dr Goh’s sudden indication on 4 October 2010 that he was not an expert in head and neck surgery and therefore was not qualified to comment on other issues in relation to the issues in question. In particular, he said that since he had performed very few cervical lymph node biopsies (which was the surgery in question) in the past, he did not consider that he possessed the necessary expertise. Hence, Dr Goh decided to withdraw as the plaintiff’s expert.

44.The plaintiff’s solicitor in the plaintiff’s 2^nd affirmation stated that his firm had taken more than sufficient steps in searching for an appropriate expert: see paragraphs 73-75 of the plaintiff’s 2^nd affirmation.  However, I note that all the search and information downloaded by the clerk of the plaintiff’s firm on the internet (on the instructions of the plaintiff’s solicitor) was done on 30 August 2012, long after Dr Goh was first appointed as expert and provided his expert opinion on the matter.

45.Judging from what the plaintiff’s solicitor has stated in the plaintiff’s 1^st affirmation, it seems to me that the basis for them to instruct Dr Goh in the first place was mainly, if not solely, based on Dr Goh’s reputation as a “renowned, highly experienced and skilful surgeon who had and was carrying out sophisticated surgeries such as those involving the separation of conjoined twins like the famous Iranian and Nepalese twins”: (see paragraph 8 of the plaintiff’s 1^st affirmation).  Nothing was mentioned about his expertise in the kind of head and neck surgery the plaintiff had undergone, namely, cervical lymph biopsy.  It has not been shown what steps, if any, the plaintiff’s solicitors had taken in order to satisfy themselves that Dr Goh indeed possessed the kind of very sophisticated surgical skills which involved both orthopaedic and neurosurgical skills prior to appointing him as an expert.  While the plaintiff’s solicitors might have made enquires with other specialists as to whether he was a suitable candidate after Dr Goh withdrew as an expert, the primary duty is on the plaintiff’s solicitors to satisfy themselves that the expert they appoint possesses the necessary skills and expertise to provide expert opinion on the matters at hand before they instruct the expert.  There is nothing in the history of the correspondence between the plaintiff’s solicitors and Dr Goh before he was appointed in September 2004 showing that such steps had been taken by the plaintiff’s solicitors.

46.Dr Goh had acted as the plaintiff for a period of 6 years (with his first report written in October 2004) and had furnished a total of 4 reports in the present case prior to Dr Goh’s decision of withdrawal.  It is true to say that during those 6 years, Dr. Goh had not once raised the point of his lack of expertise in the area.  However, in my view, this is a matter between the plaintiff (and to a large extent his solicitors) and his own expert, it is not something that the defendants should concern themselves with, least to suffer any costs consequences as a result of their own internal dispute.

47.The plaintiff’s assigned solicitor in the plaintiff’s 2^nd affirmation states that he believes that Dr Goh’s reason for withdrawing as an expert is “patently spurious” and that Dr Goh withdrew as an expert for an ulterior reason and motive: see paragraph 85 of the plaintiff’s 2^nd affirmation. 

48.I must say that I find such serious accusation and speculation on the motive of Dr Goh made by the plaintiff’s solicitor, without giving him as much as a chance to explain himself, rather inappropriate.  The more appropriate question to ask in my view is whether the plaintiff or his solicitors had made clear to Dr Goh the exact kind of surgery underwent by the plaintiff and whether they had satisfied themselves that Dr Goh possesses that kind of expertise to act as an expert prior to his appointment.  It is not for the plaintiff or his legal representatives to speculate the “motives” behind the expert’s withdrawal.

49.Mr Kamlesh Sadhwani, counsel for the plaintiff, submits that when Dr Goh made his intention of withdrawal know to the plaintiff’s solicitors by email on 4 October 2010, he did not provide any explanation of why he did so.  As Dr Goh stood by his reports while at the same time formally withdrew from the case as an expert, the plaintiff suggests that he did so for reasons best known to him and lack of expertise in this area of medicine was not the real reason.  Mr Sadhwani rhetorically asked the question of why should the plaintiff be penalized by bearing the costs resulting from the replacing of the experts when it was through no fault of his own or his solicitors.

50.In my view, this is a totally irrelevant matter when it comes to the consideration of who should bear the costs wasted resulted from the changing of expert due to Dr Goh’s withdrawal.

51.I agree with Ms Florence Cheung, solicitor who represents the defendants at the hearing before me, that the burden is on the plaintiff or those representing him to ascertain whether an expert instructed by them has the suitable professional experience, expertise and suitability.  It is not for the defendants to raise any objection or comment or concern as the plaintiff submits the 1^st defendant ought to have done when they found out that Dr Goh was acting as the plaintiff’s expert.  In our adversarial system of litigation, I find such suggestion from the plaintiff’s solicitors as stated in the plaintiff’s 2^nd affirmation rather absurd.

52.In my view, the plaintiff’s application to change his expert is akin to an application to apply to amend his pleadings during the course of a personal injury action.  A party may like to amend his claim due to a multitude of reasons: it may be due to a change of instructions; a change of views of the medical experts; a change in the nature of injuries or medical condition as a result of the development of the disease or deterioration of the condition and so on.  When the party applies to amend his pleadings, he is basically asking for an indulgence from the other side.  The normal rule is that the party asking for such indulgence from his opponent should bear the costs of such amendments no matter what are the real reasons behind the amendments: see Order 62 rule 3(3) of the Rules of the High Court.

53.This is also similar to a situation where a party asks for an extension of time to file a document or to comply with a court order.  The fault may not lie with the litigant or his lawyers.  It may be due to some extrinsic factors which he or his lawyers have no control of.  However, if he is asking for a favour or indulgence from the court or the other side, then the normal rule is that he pays the costs in doing so: see Order 62 rule 3(4) of the Rules of the High Court.

54.I am fully aware that the court has a discretion when it comes to making an order to the costs of or incidental to any interlocutory proceedings.  It may order the costs to follow the event or make any such order as it sees fit so long as such order is made in a judicial manner: see Order 62 rule 3(2A).

55.The Rules of the High Court does not specify each and every single circumstance under which how a court should exercise its discretion, least the unusual situation when a plaintiff needs to change a liability expert 6 years after he was first appointed.  However, since it is an interlocutory application, the court has a wide discretion when it comes to the award of costs.

56.While I cannot find any decided cases that falls within all fours with the present case, I find the decision of Mr Justice Bharwaney in Law Chung Fai by his next friend Luk Siu Mui v Lam Ming Kuen (2010) HCPI 96 of 2008 (Bharwaney J; 13 September 2010) helpful.  In that case, the defendant applied to change his expert in a medical negligence action.  Bharwaney J summed up the principles that have to be applied in determining an application to change an expert witness at paragraph 9 of the Decision:

“ (a) The court’s discretion, whether or not to allow a party to change his expert, is exercised within the ambit of the court’s management powers. These powers must be exercised in the light of the underlying objectives of the recent civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

(b) In the exercise of its powers of case management, the court recognises that the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties.

(c) Expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it. It can lead to potential unfairness between those who can afford to shop around for the opinions of more than one expert and those who cannot. Expert shopping is not conducive to cost effectiveness of the proceedings and the expeditious disposal of a case.

(d) The disclosure of the original expert’s report, and the waiver of the privilege that would normally be attached to it, would usually be imposed as a condition for granting permission to call a substitute expert. However, the disclosure of the original expert’s report per se does not guarantee that the court would permit a substitute expert to be called.

(e) To curtail expert shopping, the court may refuse to grant leave if the only reason for calling a substitute expert is that his opinion is more favourable to the party calling him than the opinion of the original expert.

(f) However, if the court is satisfied that the just resolution of a dispute requires leave to be granted for a substitute expert to be called, it should not refuse leave simply because the opinion of the substitute expert is more favourable than that of the original expert.

(g) In every case, the court should examine the grounds put forward by the substitute expert and make a preliminary assessment of the cogency of those grounds as compared with those set out in the report of the original expert and the report of the expert engaged by the other side. If the court is satisfied that there are relevant matters canvassed by the substitute expert which may be important to the just resolution of the dispute which was omitted from the reports of the original expert, or which was outside the expertise of the original expert, a prima facie case would be made up for the admission of the substitute expert report in the interests of the just resolution of the dispute.

(h) In every case, however, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the change of experts. All these matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

(i) It is not possible to lay down definitive and exhaustive guidelines to cover and cater for every possible situation that may arise and which prompts an application by a party to change his expert.

(j) Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.”

57.It has not been suggested that this is an expert shopping case here. The plaintiff’s reason for changing the expert was, according to his legal representatives, a decision made by Dr Goh and something beyond his control. However, I agree with the learned PI Judge that in every case, the court must have regard to other relevant circumstances stated in 9(h) of the Decision.  I agree that all these matters have to be considered and weight in the light of and against the underlying objectives of the civil justice reform: to ensure cost effectiveness and economy, expedition, proportionality and fairness between the parties.

58.Even accepting that the plaintiff had nothing to do with Dr Goh’s decision to withdraw as an expert for the moment, the ways the plaintiff’s solicitors went about to apply to change his expert in my view was totally inappropriate and has left much room to be desired for.  Not only they have failed to follow the usual court procedures in taking out a summons in a timely fashion but also there had been repeated delays and failures to observe the court’s orders on the part of the plaintiff and those representing him.  In my view, the time and costs involved in dealing with this issue are totally disproportionate to the goal they tried to achieve, namely in changing the expert.

59.Instead of informing the court and the defendants immediately or as soon as practicable after it has become clear to them that Dr Goh would no longer willing to act as expert on 4 October 2010, the plaintiff’s assigned solicitor waited until 3 March 2011 at the hearing before Master A Chow to mention it for the first time of the plaintiff’s intention to replace his expert.  Even at the hearing, the plaintiff had failed to take out a summons for the purpose and only mentioned this matter to the court and the defendants verbally.

60.It was only upon the court’s Order at the hearing before Master A Chow that the plaintiff subsequently took out a summons for leave to change the expert on 24 March 2011.  However, that summons was not accompanied by any supporting affirmation, even though by that time more than 5 months had lapsed after Dr Goh decided not to act as the plaintiff’s expert.

61.The plaintiff only filed his supporting affirmation the day before the hearing for the summons when it was fixed before Master A Chow on 6 April 2011 for hearing.  Further, the plaintiff’s solicitors only served the affirmation on the defendants’ solicitors in the morning of the hearing.  The affirmation was defective in that it did not even provide the names of the plaintiff’s proposed replacement experts and did not provide the gist of their opinion.

62.Thus, at the hearing before Master A Chow on 7 April 2011, the court ordered the plaintiff to file and serve a gist of his proposed replacement liability and quantum expert opinion by 7 June 2011.  Again, the plaintiff failed to do so and it was necessary for the parties to appear before Master K K Pang on 26 July 2011 for further directions.

63.The plaintiff’s solicitors excuse of not complying with Master A Chow’s order to file and serve the gist reports of the proposed replacement expert is that they took the view that the matter should be fixed before the PI Judge for substantive arguments and for his ruling, and as they were busy looking for the replacement experts in the meantime, therefore they had overlooked the matter: see paragraphs 44 to 46 of the plaintiff’s 2^nd affirmation.

64.Instead of trying to get on with complying with the orders given by Master K K Pang at the hearing on 26 July 2011, the plaintiff filed a Notice of Appeal instead.  The appeal was originally fixed to be heard before the PI Judge on 16 September 2011.  However, as stated above, the appeal was subsequently abandoned when the plaintiff was able to get hold of the gist reports of Mr James Brown dated 30 August 2011 and Dr Huang Chen Ya dated 16 August 2011.  To my mind, it is not difficult to see that the appeal lodged by the plaintiff before the PI Judge was purely to allow the plaintiff’s solicitors to buy time and was done for tactical reasons only.

65.One would have thought that, after such a long delay and “detour” from the main proceedings, the plaintiff would get back on the right track and rigorously pursued with the claim.  It was not the case.  Instead, the plaintiff’s solicitors went into an argument with the defendants even after the defendants have indicated that they would not object to the change of experts after the production of the gist report of Mr Brown and the full report of Dr Huang.

66.To my mind, it is highly questionable whether a 38 page (104 paragraphs) affirmation in the form of the plaintiff’s 2^nd affirmation coupled with 4 bundles of documents (consisted of 861 pages) in support of the plaintiff’s arguments on costs was necessary at all.  In my view, both the time it took (almost 2 and a half year since Dr Goh decided he no longer wish to act as the plaintiff’s expert in October 2010) and the costs involved (no less than 3 summons and 6 hearings) are totally disproportionate to the plaintiff’s aim in changing the experts.  There were not only inordinate and unacceptable delays on the part of the plaintiff in dealing with this issue almost in every step of the way, they were done in a very cost-ineffective manner.  In my view, this is a classic case where the ways the plaintiff went about in changing the expert, no matter what was true reason in causing it in the first place, defeat the underlying objectives of the Civil Justice Reform as set out under Order 1A of the Rules of the High Court.  In my opinion, the court should not condone to this kind of practice under the Civil Justice Reform regime.

67.When it comes to decide who should pay for the costs of the application, I find the comments made by Bharwaney J. in Law Chung Fai, supra at paragraphs 17 & 27 particularly useful:

“ 17. Clearly, Ms Gekko Lan for the plaintiff is right to submit that the defendant went about their application the wrong way by not filing an affidavit in support of the application until nearly two months later and then only upon the direction of the court to do so. However, a wrong footed application is not a ground to dismiss it if, ultimately, the applicant manages to get his house in order. Costs ought to be paid for the wrongful steps taken that resulted in costs being raised or thrown away. I, therefore, turn to consider the substantive grounds of opposition raised by Ms Lan.

……

27.     The defendant must pay the costs of the application to the plaintiff, including the costs of the hearings on 13 July, 15 July and 12 August 2010.  Whilst I do not order costs to be paid on an indemnity basis, I will be generous in my summary assessment of the costs payable to the plaintiff.  The costs of the first two hearings were largely wasted because the application had not been properly brought, and had not been properly supported by an affidavit setting out the circumstances which prompted the application, and the grounds of the application, and exhibiting the opinion or, at least, the gist of the opinion of the new expert.  I direct the plaintiff to file a skeleton bill of costs within 14 days and the defendant to respond to it 14 days thereafter.”

68.I would respectfully agree with the learned judge on his observations.

69.There is no doubt in my mind that the plaintiff, as the party who is asking for a favour from the defendants to change his expert at this late stage of the proceedings, should pay for the costs of and occasioned by the change.  Whilst I do not think costs should be paid on an indemnity basis, like the learned PI Judge in Law Ching Fai, I think the costs should be summary assessed in a generous manner.

70.In the aforestated premises, I would order the costs of and occasioned by the plaintiff’s application to change expert should be paid by the plaintiff to the defendants.  The costs to be paid by the plaintiff would include the following: 

(1) The costs of the summons filed by the plaintiff dated 24 March 2011;

(2) The costs of the hearing before Master A Chow on 7 April 2011;

(3) The costs of the hearing before Master K K Pang on 26 July 2011;

(4) The costs of the summons filed by the defendants dated 17 July 2012;

(5) The costs of the hearing before Master J Chow on 26 July 2012;

(6) The costs incurred as a result of the plaintiff’s delay in filing and serving of his affirmation in opposition of the defendants’ summons; and

(7) The costs of the hearings before me on 28 November 2012, 20 December 2012 and 6 March 2013, including the costs of adjourning the hearing on 30 January 2013 due to the plaintiff’s Counsel inability to attend.

71.I would further direct that the costs be determined by way of summary assessment by a PI Master.  I would direct that the defendants to file and serve a summary bill of costs within 14 days from today and the plaintiff to file and serve a summary list of objections within 14 days thereafter.

Paragraphs 5 & 6 of the Summons: Filing and Serving of the Revised Statement of Damages

72.At the Checklist Review hearing before Master J Wong on 24 August 2010, the plaintiff was ordered to file and serve a Revised Statement of Damages by 11 January 2011.  The plaintiff failed to do so.

73.The defendants gave the plaintiff one and a half month to comply with the order.  Again, the plaintiff failed to do so.  On 21 February 2011, the defendants gave the plaintiff 3 days to file and serve the Revised Statement of Damages. Again, the plaintiff failed to respond.  Hence, the defendants took out a summons on 25 February 2011 to seek for an Unless Order from the court to compel the plaintiff to do so.  Instead, the plaintiff spent the last 2 years trying to resolve the changing of expert issue.

74.To date, the plaintiff has yet to file and serve his Revised Statement of Damages even though he has now found 2 experts in place of Dr Goh.

75.This is clearly an extremely unsatisfactory state of affairs.  The plaintiff must get on with pursuing his claim, whether he considers he has a strong case or not.  I therefore would order that unless the plaintiff files and serves his Revised Statement of Damages, together with any further statements as to quantum and any documentary support not already disclosed within 14 days of this Order, the plaintiff be debarred from doing so.

76.In my view, the only reason why the defendants had to take out a summons on 25 February 2011 was due to the plaintiff’s failure in filing and serving of the Revised Statement of Damages, in breach of Master J Wong’s Order dated 24 August 2010.  I see no reason why the plaintiff should not pay for the costs of the defendants’ summons dated 25 February 2011 and the hearing before Master A Chow on 3 March 2011.  I so order that such costs be borne by the plaintiff.  I would also order that the costs of this summons be summary assessed in the manner as directed in paragraph 71 above.

Paragraph 7 of the Summons: costs of the present application

77.As stated, I order the costs of the defendants’ present applications, including the costs of the hearings on 28 November 2012, 20 December 2012 and 6 March 2013, including the costs of the vacated hearing on 3 January 2013 due to the sick leave sought for by the plaintiff’s counsel be to the defendants in any event, such costs to be summary assessed.

Paragraph 8 of the Summons: the plaintiff’s own costs

78.While I have no problem to order that the plaintiff’s own costs arising from the plaintiff’s application to replace his own expert, including the costs of the Summons filed by the plaintiff on 24 March 2011, the defendant’s summons filed on 25 February 2011 and the present application (including the  hearing dated 28 November 2012, 20 December 2012 and 6 March 2013) be taxed in accordance with the Legal Aid Regulations, I would also direct that a copy of this Ruling be sent to the Director of Legal Aid so that they can closely monitor the progress of this case from now on.

79.Lastly, I would order that the Checklist Review hearing be restored and be fixed before the PI Master at an early date, at a date no later than in July 2013 (with 30 minutes reserved).

CONCLUSION

80.I think it is fair to say that there had been delays on both sides in bringing this matter to trial at an earlier stage of the proceedings.  However, the delay in the past 2 to 3 years was mainly caused by the plaintiff and his solicitors in the handling of the change of expert issue.  It is incredible that it would take the parties more than 9 years since the issue of the Writ of Summons to reach this stage.  It has now been more than 11 years since the medical incident occurred.  Even at this stage, the parties are still nowhere near to having this case set down for trial.  Bearing in mind that the medical incident happened in November 2001, it will be over 13 years if the plaintiff can get the case to trial towards the end of 2014, even that will be an optimistic estimate on my part.  I must say that this is one of the worst cases I have seen in terms of delay in my years of practice in the personal injury field and certainly the worst I have come across even in my short time sitting as a Personal Injury Master in the High Court.

81.In my view, it is totally unacceptable that a relatively simple medical negligence claim would take this long to reach to this stage, particularly under the rules of the Civil Justice Reform.  It is often said that ‘justice delayed is justice denied’.  There is no doubt that there has been substantial delay in this case and the plaintiff’s rights in pursuing his claim has been jeopardized as a result.  I think justice will demand that the plaintiff’s assigned solicitor should swiftly get back to the right track in prosecuting the claim with an aim to bring the case to trial without further delay and without being side-tracked by further interlocutory applications.

82.Under the Civil Justice Reform, this kind of delay in prosecuting the claim by a plaintiff or his solicitors will no longer be tolerated by the court and will be reflected in the costs order awarded against a party or, in appropriate cases, in the form of wasted costs order against his legal representatives under Order 62 rule 8 of the Rules of the High Court. 

Mr Kamlesh Sadhwani, instructed by Messrs Krishnan & Tsang, for the plaintiff

Ms Florence Cheung of Messrs Mayer Brown JSM, for the defendants