The tendency these days is for a single joint expert (SJE) to be appointed in a construction dispute. In the recent case of Ho Yat Wah v Chung Hang Him, HCA 731/2014, 7 June 2018, the Court looked at the situation where a SJE is appointed, but one of the parties is dissatisfied with the SJE’s opinion and then instructs an expert of its own and obtains a report more favourable to its case. In that situation, should it be allowed to rely on that report?
In this case, which concerned a probate dispute, a SJE had been appointed to examine whether the signature of the deceased (Madam Chan) on a document was genuine or a forgery. The SJE concluded that the signature was not genuine, which supported the Defendant’s case. The Plaintiff therefore instructed another handwriting expert who concluded that the evidence was inconclusive and he could not say one way or the other whether the signature was genuine or not. He concluded that without knowing very precisely the writing capabilities of Madam Chan around the time she signed the document, there was no way of determining whether the differences he observed between the questioned signature and the known writings were the result of natural variations of an individual due to failing health and/or drugs or whether these could be the results of errors of forgery. The Plaintiff’s solicitors sought leave to rely on this second expert report at trial.
Relevant legal principles
The judgment usefully summarises the relevant legal principles applicable to this situation, as follows.
The appointment of a SJE, whether by agreement between the parties or imposed by the Court, does not per se bar a party from seeking leave to instruct its own expert to challenge the SJE’s evidence or aspects of it. Leave should and would be granted if, upon balancing all relevant considerations, it is just and accords with the underlying objectives of Civil Justice Reform to do so.
The Court referred to the following factors identified from previous Hong Kong case authorities, which are to be taken into account in deciding whether to allow the evidence of another expert, in addition to that of the SJE, to be relied on:
(1) the nature of the dispute;
(2) the number of disputes on which the expert evidence is relevant;
(3) the reason for requiring the second report;
(4) the amount at stake or nature of the issues at stake;
(5) the effect of permitting a second expert report on the conduct of the trial;
(6) the delay in making the application;
(7) the delay that might be caused in the conduct of the proceedings;
(8) any other special features;
(9) the overall justice to the parties;
(10) whether the SJE’s report can be challenged by cross-examination without the need for a further report;
(11) whether the parties have already engaged own-party experts;
(12) the court should guard against expert shopping;
(13) the potential disruption to the trial;
(14) the prejudice to the other parties;
(15) the explanation offered by the applicant for the change of experts.
As regards, how compelling the reason for wanting evidence from an additional expert has to be, it should be sufficient if those reasons are not fanciful, particularly if the other considerations also point to own-party expert evidence being appropriate.
The Court said that the focus was on the SJE’s report and whether any shortcomings in the report justified instructing another expert in the field. The Court noted that in his report, the SJE had failed to mention that he had been provided with the notes, records and medical reports on Mrs Chan. Nor did it explain why he excluded the state of her health as a reason for the dissimilarities between her known signatures and the signature on the document in question. In these circumstances, the Plaintiff’s wish to commission and rely upon another expert’s opinion was entirely understandable.
The Court said that since (a) the issue whether Madam Chan signed the document in question was at the heart of the case (because if she did it would be difficult for her son to contend that she had a beneficial interest in four properties to which the document related), and (b) there were reasons which were far from fanciful for questioning the basis on which the SJE excluded the possibility that the differences between Madam Chan’s known signatures and her signature on the document in question were attributable to different authorship rather than the state of her health, it might well be appropriate to permit the Plaintiff to rely on the second expert’s report, provided that this would not have a really significant impact on (a) the time which would elapse before the case came on for trial, and (b) the costs which would be incurred by the parties, particularly by the Defendant who was a man of more limited means than the Plaintiff.
However, the Court held that it might not be right for it to reach a concluded opinion because the current application for leave to rely on the second expert report may be premature. The Court referred to Daniels v Walker  1 WLR, a decision of England’s Court of Appeal, which raised the issue of premature applications. There Lord Woolf MR (as he then was) acknowledged that there may well be cases in which one of the parties is dissatisfied with the opinion of the single joint expert for reasons which are not fanciful, and obtains a report from another expert. He said that in the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert and in many cases it would be wrong to make a decision until one is in a position to consider the situation in the round. Lord Woolf said:-
“If there is disagreement on [the single joint expert’s] report, then there would be an issue as to whether to ask questions or whether to get your own expert’s report. If questions do not resolve the matter and a party, or both parties, obtain their own expert’s reports, then that will result in a decision having to be reached as to what evidence should be called. That decision should not be taken until there has been a meeting between the experts involved. It may be that agreement could then be reached; it may be that agreement is reached as a result of asking the appropriate questions. It is only as a last resort that you accept that it is necessary for oral evidence to be given by the experts before the court. The cross-examination of expert witnesses at the hearing, even in a substantial case, can be very expensive.”
In the current case, following the approach in Daniels v Walker, the Court therefore ordered that the Plaintiff’s application for leave to rely on the second expert report at trial be adjourned. It ordered that within 14 days, the SJE be provided with documents relating to Madam Chan’s medical condition and that the SJE and the second expert discuss their respective opinions within 28 days after that (whether in person or by video link or conference call). Within 21 days after that, they should jointly prepare a report setting out the issues on which they agreed and issues on which they disagreed. The parties were given liberty to restore the Plaintiff’s application following the receipt of that joint report.
The purpose of having a SJE is to save time and costs of all parties concerned. When one or both parties are dissatisfied with the opinion of the SJE and seek to adduce expert evidence of their own, it appears from this judgment that the threshold for allowing additional experts of the parties is not so high since it only requires the party to show that the reason for being dissatisfied with the SJE is not fanciful. In such case, the costs saving purpose may be frustrated since two or even three experts may have to be involved in the case.
The practice of having a SJE in construction cases is relatively new. It is hoped that more comprehensive directions for SJEs can be given by the Court in due course.
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