Expert reports within expert reports

In a previous article, we reported on the Court of First Instance (CFI) and Court of Appeal judgments in Sun Cheong Construction Company Ltd v The Incorporated Owners of King Fu, Ho Fu, Ki Fu & Ka Fu Buildings, [2019] HKCFI 236 and [2019] HKCA 167. The CFI had held that assessment/survey reports attached to an expert report of a Dr Chan were inadmissible on the basis that although leave had been given to adduce the expert report (2015 Order), it had not been given to adduce the assessment/survey reports (Reports) attached to it. On appeal to the Court of Appeal, the Defendant Incorporated Owners conceded that the Reports were expert evidence and the only question before the Court of Appeal was whether leave to adduce the Reports had been granted under the 2015 Order. The Court of Appeal overturned the CFI’s decision and ruled that no separate leave was required to adduce the Reports because Dr Chan had had personal involvement in the relevant investigations and inspections and preparation of the Reports. The Court of Appeal only excluded as inadmissible those parts of the Reports which made reference to infrared testing, which was not within Dr Chan’s expertise. On 3 May 2019, the Court of Appeal dismissed the Plaintiff Contractor’s application for leave to appeal to the CFA.

Grounds of Contractor’s application for leave to appeal to the CFA

The Plaintiff Contractor sought leave to appeal to the CFA, raising the following questions as questions of great or public importance:

Whether as a matter of law leave to call an expert on an issue granted under RHC Order 38, rule 36:

(i)         operates retrospectively to permit/include pre-existing expert evidence on the same issue to be adduced at trial without the need for separate leave;

(ii)        permits/includes pre-existing expert evidence on the same issue to be adduced at trial without the need for separate leave, when the pre-existing expert evidence was constituted by the work of expert(s) other than the expert appointed under that leave.

(iii)       permits/ includes pre-existing expert evidence on the same issue to be adduced at trial without the need for separate leave, when the pre-existing expert evidence was constituted by the work of the other expert(s) with the personal involvement on the part of the expert appointed under that leave;

The Plaintiff also sought leave to appeal on the “or otherwise” limb, arguing that the effect of the Court of Appeal judgment would be to enable a party to adduce undisclosed pre-existing expert evidence, thereby taking the other party by surprise, facilitating the proliferation of uncontrolled expert evidence and promoting unfairness.

Court of Appeal declined to grant leave to appeal to the CFA

The Court of appeal refused to grant leave to appeal to the CFA, holding:-

  • Properly understood, the effect of the Court of Appeal judgment was not to give carte blanche to a party to adduce retrospective expert evidence at trial, without reference to the other party or the court.   
  • There was no substance in the complaint that the Court of Appeal’s finding of Dr Chan’s personal involvement was “imprecise” and “unspecified”. This went to the quality and weight of the expert evidence (yet to be decided by the trial judge) and not its admissibility.   
  • This was an interlocutory appeal on a procedural issue and concerned case management powers and it was therefore only in rare and exceptional cases that leave to appeal to the CFA would be granted. This was not a rare or exceptional case.
  • Question (i) above was so widely framed that it did not reflect the Court of Appeal judgment.
  • Questions (ii) and (iii) above were case and fact specific and did not qualify as questions of great general or public importance. 

As for the “or otherwise” limb, there was no “procedural lacuna”. The precise formulation of expert directions is a matter to be decided upon by the court at first instance in the exercise of its case management powers, to cater for the particular circumstances of the case. As regards the argument that the Court of Appeal judgment would enable a party to adduce undisclosed pre-existing expert evidence thereby taking the other party by surprise, this had no substance here. The Reports had been disclosed to the Plaintiffs and the experts’ joint statement and each party’s expert report had been prepared with knowledge of the Reports.