The recent Lands Tribunal case of Yu Siu Hung v Yuen Man Chiu Roger, LDBM 292/2099, is a useful reminder for litigants that any expert evidence they adduce must be helpful to the Tribunal/Court or else they may be penalised on costs. Whilst it may sound obvious, legal advisers of parties should not think that experts should be left to do their work without any guidance about what the Court expects from them.
In this Lands Tribunal case (involving water damage to a flat), the Tribunal had made a costs order nisi that the Applicant pay 80% of the Respondent’s costs of the action. The Applicant sought to vary that level of costs from 80% to 60% and to disallow the costs of the Respondent’s expert (Wu), to reflect the Tribunal’s adverse comments about Wu’s reports being unhelpful. The Tribunal had found Wu’s reports to have at least two serious shortcomings, namely, (i) they were too clumsy and difficult to read; and (ii) no objective test whatsoever had been done to verify Wu’s hypothesis. Wu’s fee was HK$464,000 (HK$360,000 for his reports and HK$104,000 for his court attendance), which amounted to around 36% of the Respondent’s total costs.
The Tribunal varied the costs order nisi by disallowing 50% of Wu’s fee, having found that:-
- Wu’s voluminous reports were long-winded, over-meticulated, repetitive, unhelpfully presented and included irrelevant materials and information and his conclusion was no more than guesswork.
- The joint expert report was useless as it was only a repeat of the polarized views of the two experts and no reflection or re-consideration was made by them at their joint meeting on the hypotheses they had put forward. The hypotheses advanced by the experts were devoid of merit, but had been insisted on by them from the beginning until trial.
- Wu’s reports had not been useful at all and no part of his report was relied on in the disposal of the case. The two experts had simply failed to discharge their duty to the court. Both of them did not appear to realise the fundamental flaw of their opinion, namely that their theories were not tested. They had simply repeated and reinforced their views in the joint report and the Tribunal could not help forming a view that they were in fact assuming the role of advocate for those instructing them rather than that of expert, owing duties to the court.
The Court referred to the “…enlightening remarks concerning the duties and responsibilities of experts to the court” made by the court in Chinachem Charitable Foundation Ltd v Chan Chun Chuen & Another, as follows:-
- An expert should not advance an argument or use a piece of information or data to support his opinion unless he is professionally convinced of the validity of the argument or the appropriateness of using that supporting material.
- An expert’s evidence is admitted to assist the court and the court wishes to hear the expert’s own independent professional opinion instead of a biased view constructed and put forward for the purpose of advancing a party’s position. Whilst there might still be bona fide reasonable disagreements between two experts, the disagreements should only be based on independent professional judgments instead of being client interest driven.
- If it could be shown that an expert persistently adopted a stance which he himself had obvious difficulty in sustaining, most of the time this was the hallmark of the expert’s failure to adhere to his duty of independence.
- When faced with his own mistake after he produced his report, instead of keeping silent and hoping that the point would not be discovered, an expert should correct it on his own volition as soon as practicable.
- Another acid test on the reliability of an expert witness is the way in which he deals with the arguments of his counterpart. The court expects expert witnesses to act responsibly and professionally in meeting the points raised by experts on the other side. The whole point of requiring expert reports to be served or exchanged and directing meetings of experts and the preparation of joint statements/reports is to facilitate independent and frank communications between the experts in order to narrow down their differences. The objective is to focus on the real issues that need to be adjudicated by the court. Unnecessary and unhelpful arguments should be trimmed down through these pre-trial procedures.
- An impartial and responsible expert, after studying the report of his counterpart, should re-assess his own views and if there are valid points against his opinion, he should acknowledge them instead of finding other new material to salvage an exposed weakness.
- The joint meeting between experts is an opportunity for them to narrow their differences and requires both experts to focus on the objective of the meeting and act responsibly and frankly with each other. At such meeting, an expert should bear in mind his overriding duty to the court to act independently without any fear of compromising his client’s position. Thus if his professional judgment dictates that a concession should be made in the light of arguments advanced by the other side, he should not feel inhibited from doing so due to a conflicting opinion previously expressed by him in his client’s favour. On matters within his expertise, an expert need not seek instructions from his client before reaching an agreement with the other side’s expert.
- Thus, instead of spending time on indiscriminant defence of one’s position, expert witnesses should give due weight to the arguments set out in their counterpart’s opinion and try to reach agreement on points which are not worthy of argument.
- Following the Civil Justice Reforms in Hong Kong, an expert giving evidence in court has to observe the Code of Conduct for experts, which, amongst other things, requires an expert witness to set out the reasons for his opinion in his report. The purpose is to inform the court and the other parties of the expert’s reasoning process.
- If an expert comes across significant features which are indicative of a conclusion contrary to his own, he should set them out and explain why, despite the existence of such features, he still holds a contrary opinion. This flows from the duty to provide the court with independent assistance.