Single joint experts preferred in construction cases

In Perpetual Wealth (Hong Kong) Ltd v Be Solutions Company Ltd, HCA 1905/2018, the Court emphasised that for construction cases, the starting point for expert directions is that single joint expert (SJE) evidence is preferred, as it assists to narrow the scope of the issues in dispute, shortens the trial, facilitates settlement of issues and often leads to global settlement of the action. It also emphasised the importance of parties properly formulating the questions to be answered by the experts and identifying experts with the necessary expertise to answer the questions.

The action concerned a dispute arising out of a renovation contract. The Plaintiff alleged that marble supplied by the Defendant was defective and that the Defendant had made misrepresentations about its quality and price/value and had breached implied terms of the contract, that the marble to be installed and supplied would correspond to the sample approved by the Plaintiff, and/or would be of merchantable quality.

The Court gave the parties leave to adduce expert evidence on defects and quantum of damages and made a direction for them to confer and agree on SJEs to be appointed. The parties were unable to agree on the identity of the SJEs and the Plaintiff maintained that leave should be granted to both parties to call separate experts of their own on the issue of liability. Written submissions on the question of whether there should be separate or joint experts, and the identity of the experts, were filed, and a hearing fixed for the parties to be heard.

At the hearing, the Court made a number of observations on the subject of expert evidence. It indicated that having considered the nature of the dispute on the alleged defects in the marble, the Court was prepared to grant the parties leave to appoint separate experts on the issue, but said there was no justification for separate experts to be called on quantum. The Court said that the parties should confer and agree on the identity of a SJE on quantum, and confirm the identities of separate experts on defects if a SJE could not be agreed.

The Court expressed reservations as to the expertise of the experts proposed by the parties and sought clarification on the essence of the Plaintiff’s claim as to the alleged defects, whether they related to defects in installation of the works, or if they related to defects in the pattern or colouring of the marble pieces. The Court also expressed queries and concerns about the questions which the parties had framed for the experts.

The Court made the following comments about expert evidence:

• The Court’s objective is to ensure that time and costs are not wasted on unnecessary expert evidence which may not be either relevant, or helpful to the Court in the effective trial of the real issues in dispute between the parties, as identified in the pleadings. 

• Expert evidence can only be adduced with the Court’s leave, and upon the Court being satisfied as to the necessity of the expert evidence, relevance of the questions to be answered by the expert(s), and timetable and manner of exchange of expert reports.

• It is not the practice of the Construction Court to give directions for expert evidence on a piecemeal basis. If the questions for the expert are not properly framed, the expertise and qualifications of the suitable candidate cannot be identified. If the issues in dispute cannot be properly identified, the questions for the expert cannot be accurately and usefully formulated. Only when the issues in dispute have been clearly identified can the Court assess whether expert evidence is appropriate and necessary, and if yes, whether separate experts are to be appointed instead of SJEs.

• As the Court has repeatedly emphasized to parties in cases in the Construction List, there have been more than enough cases of trials being unduly prolonged and distracted, and the costs of preparation for trial being wasted unnecessarily as a result of prolix, and very often unnecessarily complicated, and at times not useful, expert reports. SJE evidence is preferred and has been used as the starting point for expert directions by the Construction Court for some time. Evidence involving SJEs assists to narrow the scope of the issues in dispute, shortens the trial, facilitates settlement of issues and often leads to global settlement of the action.

• As the Court was not satisfied that the parties and their legal advisers had taken the time to: (i) properly consider real issues in dispute as identified in the pleadings; (ii) formulate the proper questions to be answered by the experts to assist in the Court’s resolution of the real issues in dispute for trial; and (iii) identify the candidates with the necessary expertise to answer the questions, the Court refused to give any directions for expert evidence to be adduced at trial. It said, it remained for the parties and their legal advisers to properly consider these matters before any party applied for leave to adduce expert evidence, with all the properly formulated directions proposed set out in the application. The Court also gave the parties a list of the issues that should be taken into account in framing the questions to be answered by the experts in this case, to ensure that any expert evidence to be adduced would be of assistance to the Court.

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Kwok Kit (KK) Cheung

Partner | Litigation and Dispute Resolution

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