Permission for final appeal
The Court of Appeal recently rejected an application for permission to appeal its judgment in Harvest Treasure Ltd v Cheung Fat Enterprises Ltd to Hong Kong's top court (the Court of Final Appeal). That judgment decided that an expert witness has no obligation to disclose pending disciplinary proceedings against him or her when giving evidence in civil proceedings. Therefore, an obligation of disclosure arises under the Code of Conduct for Expert Witnesses only where an expert is sanctioned by his or her professional body and the sanction curtails the expert's right to practise. The Court of Final Appeal also recently refused to stay the lower court's order. In the process of doing so, it appears that the Court of Final Appeal sees little merit in an application for permission to appeal.
The background to the case is set out in a previous update.(1) In a substantial piece of litigation arising from an application for the compulsory sale of land, a respondent challenged another party's expert evidence on the basis that the expert witness had not disclosed pending disciplinary proceedings at the time of giving evidence, although he had done so within a couple of weeks of learning that he had been disciplined. As a result of the disciplinary proceedings, the expert's membership of a professional body was suspended for one year. That sanction was later quashed on the expert's challenge.
Both the Lands Tribunal and the Court of Appeal rejected the respondent's challenge to the other party's expert evidence.
The respondent applied to the Court of Appeal for permission to appeal to the Court of Final Appeal. The principal issue sought to be appealed was whether an expert witness in civil proceedings is required to disclose any non-trivial pending disciplinary proceedings against him or her, or whether (as the Court of Appeal decided) an obligation to disclose arises only where a disciplinary charge is determined and a sanction is imposed that curtails the expert's ability to practise as a member of his or her professional body.
The Court of Appeal refused permission to appeal to the Court of Final Appeal.(2) While the Court of Appeal accepted that the issue of an expert witness's disclosure of disciplinary proceedings may potentially raise a question of great general or public importance, the issue was largely academic in the case at hand(3) – the expert had disclosed the disciplinary matter before the Lands Tribunal proceedings concluded, albeit after he had given evidence. Further, the Court of Appeal noted that there was no legal precedent supporting the extent of an expert's duty of disclosure as advanced by the respondent.
At the same time, the Court of Appeal dismissed the respondent's application to stay the order for sale made by the Lands Tribunal.(4) The appellant recently made a further application for a stay to a single permanent judge of the Court of Final Appeal, who also rejected it.(5) In the course of doing so, that judge commented that the case was not one in respect of which the Appeal Committee of the Court of Final Appeal (made up of three judges) would grant permission to appeal in order for the matter to be argued for a third time. Therefore, while the respondent could still apply for final permission to appeal, such an application would appear to have little prospect of success.
The outcome in the case brings some welcome clarity to the circumstances in which an expert witness should disclose disciplinary proceedings when giving evidence in civil proceedings in Hong Kong. As previously noted, there is a marked difference between, on the one hand, disciplinary proceedings that are pending and, on the other, disciplinary proceedings that result in a non-trivial sanction– such as the curtailment of an expert's right to practise.
Failure to disclose pending disciplinary proceedings does not render an expert witness's evidence inadmissible under the Code of Conduct for Expert Witnesses. That said, an expert should bring such disciplinary proceedings promptly to the attention of the instructing party and its legal representatives, so that they can take an informed view as to how best to proceed.
Notably, in this case the Court of Appeal saw no fault with the expert and the party's legal representatives taking approximately two weeks to disclose the outcome of the disciplinary proceedings, but before the Lands Tribunal proceedings concluded. There is also arguably something unattractive about an argument that an expert's failure to disclose pending disciplinary proceedings, at the time of giving evidence, should render the evidence inadmissible even though he or she is subsequently exonerated.
For further information on this topic please contact Warren Ganesh or David Smyth at Smyth & Co in association with RPC by telephone (+852 2216 7000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
(1) For further details please see "Expert witness's duty to disclose disciplinary matters".
(2) Harvest Treasure Ltd v Cheung Fat Enterprises Ltd, CACV 67/2016, August 22 2016.
(3) Section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484).
(4) Supra note 2.
(5) FAMV 37/2016, August 31 2016.