In a recent judgment of the Court of Appeal, an issue arose as to whether certain technical survey reports appended to one of the party's expert reports required the court's permission to be adduced as evidence for trial.(1) A first-instance court had determined that the survey reports were expert opinion evidence and were inadmissible because they did not fall within the scope of the original court order granting permission to use expert reports at trial. The Court of Appeal agreed that the survey reports were expert opinion. However, given the nature of the survey reports and the extent of the expert's involvement in their preparation, the Court of Appeal considered that (in the main) they were admissible pursuant to the original court order and that, therefore, no separate permission was required for their use at trial. Taken together, the decisions of the lower court and the appeal court are an interesting summary of what constitutes expert opinion. They are also a good example of the courts' increased scrutiny of the use of expert reports at trial in civil proceedings, almost 10 years into Hong Kong's civil justice reform.
The proceedings arose out of a substantial dispute concerning a contractor's repair works to the exterior and certain common parts of various buildings in a well-known estate in Hunghom, Hong Kong. The plaintiff contractor made claims for the outstanding costs of the works. The incorporated owners (the defendants) counterclaimed for damages for allegedly defective works. Such disputes are not uncommon in Hong Kong.
As part of the case management directions in the proceedings, the court granted the parties permission to adduce expert evidence on aspects of the alleged defects and the quantum of the claims. One of the experts instructed by the incorporated owners was a structural engineer who, in his report, appended nine survey reports concerning (among other things) the concrete structure at various locations and the condition of the external walls.(2) The survey reports were made on different dates and appear to have predated the court's order.
An issue arose as to whether the survey reports were expert opinion at all and, if so, whether they:
- were admissible as part of the original court order granting permission for expert evidence to be adduced at trial (as argued by the incorporated owners); or
- should be excluded as inadmissible evidence opinion (as argued by the contractor).
Before the first-instance court, the incorporated owners argued that the survey reports were not expert reports as such, but more in the way of records as to the condition of parts of the buildings. That argument was rejected by the court and the survey reports were found to be inadmissible.
The incorporated owners appealed. On appeal, they conceded that the survey reports were expert opinion. Therefore, the sole issue on appeal was whether the survey reports came within the scope of the original court order granting permission to adduce expert evidence or whether separate permission was required before the expert was allowed to refer to and rely on them.
While the incorporated owners conceded that the survey reports were expert opinion, the Court of Appeal confirmed the lower court's analysis that where an expert makes inferences from facts based on their expertise, specialist knowledge or experience, that constitutes expert evidence for which permission of the court is required in advance if a party seeks to rely on it at trial.
Where the Court of Appeal differed to the lower court was in its analysis of whether the survey reports were covered by the grant of permission to adduce expert evidence in the original court order. The Court of Appeal considered that the lower court may have been distracted by the incorporated owners' initial argument that the survey reports were not expert opinion rather than focusing on the real issue – namely, whether the survey reports were admissible. Therefore, the lower court had erred in law.
The Court of Appeal considered that those survey reports, dealing with previous inspections and certain 'hammer tapping' tests, were admissible, taking into account the extent of the expert's personal involvement in the inspections and the preparation of the reports. The same could not be said of certain infrared testing carried out by a third party which the expert referred to in his report and which did not appear to fall within his expertise.
In the main, the incorporated owners' appeal was allowed.
Nothing in the appeal judgment appears to undermine the lower court's analysis of what constitutes expert opinion. Lay witnesses give evidence of facts. Experts present their opinion drawing on permissible inferences from facts and their expertise and experience. The distinction is not always easy, particularly where an expert employs both fact and opinion to describe their observations.(3)
The argument that the survey reports were not expert opinion was referred to in passing by the Court of Appeal as a "bad point" which appears to have taken up much of the argument in the lower court.(4) Therefore, while the incorporated owners were successful on appeal, the Court of Appeal was unwilling to disturb the lower court's order for costs in the contractor's (the plaintiff's) favour.
In the lower court, an argument had also been raised by the incorporated owners that the contractor had in some way agreed to the survey reports being admissible.(5) This argument received rather short shrift from the lower court and was not pursued on appeal.(6) That said, the survey reports appear to have been disclosed by the incorporated owners to the contractor in February 2016 (a few months after the original court order granting permission to adduce expert evidence), but they do not appear to have challenged the admissibility of the reports until December 2018.
The case is a timely reminder of the regime for court directions in respect of adducing expert evidence and the use of expert reports at trial in civil proceedings. The courts' case management of expert evidence featured large in the civil justice reforms adopted in Hong Kong in April 2009. In this case, the Court of Appeal may have understandably shown some leniency given that a degree of flexibility is desirable when it comes to court directions for expert evidence in litigation involving complex and technical matters. The Court of Appeal was careful to make the point that the focus of the appeal was compliance with the court directions and not the weight to be attached to the expert opinion (which was a matter for trial).
For further information on this topic please contact Warren Ganesh or Michael Maguiness at RPC by telephone (+852 2216 7000) or email (email@example.com or firstname.lastname@example.org). The RPC website can be accessed at www.rpc.co.uk.
(5) Rules of the High Court, Order 38, Rule 36(1) ("Except with the leave of the Court or where all parties agree", no expert evidence may be adduced at trial unless the party seeking to adduce the evidence has applied to the court for direction and complied with any direction given).
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.