On 28 January 2019, the Court of First Instance ruled in Sun Cheong Construction Company Ltd v The Incorporated Owners of King Fu, Ho Fu, Ki Fu & Ka Fu Buildings [2019] HKCFI 236, that assessment/survey reports attached to an expert report were inadmissible on the basis that although leave had been given to adduce the expert report, it had not been given to adduce the assessment/survey reports attached to it. The Court pointed out that expert evidence is not only evidence of opinion, but also factual evidence which goes to an expert issue.

Since the trial of the case was due to take place on 13 February 2019, the Defendant applied for an urgent appeal against the decision and the Court of Appeal allowed the appeal on 8 February 2019.

Background

The Plaintiff (Contractor) was engaged by the Defendant (Owners) to repair external walls and internal common parts of the Buildings, and upgrade drainage and water supply systems. The Contractor claimed outstanding costs of works carried out, and the Owners counterclaimed for defective works.

The Court granted the parties leave, under Rules of High Court Order 38 rule 36 (2015 Order) to adduce expert evidence on quantum and, in respect of the Owners’ complaint of defects, on (i) structural engineering, and (ii) infrared thermography.

Pursuant to the 2015 Order, Dr Chan served an expert report, as a structural engineering expert witness on behalf of the Owners. In Dr Chan’s report, he appended a number of “assessment” and “condition survey” reports (Reports) prepared by Wong & Cheng Consulting Engineers Limited (WC) for the Owners prior to the 2015 Order. The Reports referred to the condition of the pipe and drainage system, external walls, concrete structure at various locations, structural condition of the external walls, and water leakage at various locations of the Buildings. The Reports had not been disclosed by the Owners in their Lists of Documents and not dealt with by factual witnesses in their statements.

The Contractor applied to have the Reports excluded as inadmissible evidence, on the basis that leave was never obtained for the Owners to adduce and rely on them as expert evidence.

Court of First Instance (CFI) decision

The Court ordered that the Reports were inadmissible as expert evidence, holding as follows:

  • The position is clear. RHC Order 38 rule 36(1) states that except with leave of the court or where the parties agree, no expert evidence may be adduced at the trial unless the party seeking to adduce the evidence has applied for directions under rule 37 or 41 (whichever is appropriate) and has complied with any direction.
  • Parties and their legal representatives have a duty to assist the Court in formulating the appropriate expert directions and to ensure that, once given, the directions are strictly adhered to.
  • It was surprising, and the Court was somewhat dismayed, that the Owners and their legal advisors had chosen to withhold from the Contractor and the court, at the time when directions for expert evidence was sought in November 2015, that the Reports had been compiled and had been intended to be used by the Owners as expert evidence at trial.
  • As regards the Owners’ argument that the Reports were not expert reports as such, but merely “contemporaneous records” of facts and observations made as to the conditions of the Buildings, if those Reports did form factual evidence and nothing more, they should have been disclosed by the Owners in their List of Documents and dealt with by the factual witnesses in their statements, but that had not been done.
  • Expert evidence is not only evidence of opinion, but also factual evidence which goes to an expert issue. Where the expert is drawing an inference from the facts, on the basis of his expertise, specialist knowledge and experience, that is part of his expert evidence, for which leave of the court and directions given by the court under Order 38 are required. Evidence of fact given by an expert, the observation, comprehension or description of which require expertise, should rightly be included in expert evidence.
  • Leave of the court had been granted for Dr Chan to be appointed as the Owners’ expert on structural engineering. The Owners had never been granted leave to adduce any other expert evidence of WC or any other engineer of WC, on structural engineering or on infrared thermography. WC as a limited company could not have any “expertise” or specialist knowledge to proffer as expert witness.
  • The conduct of hammer tapping, infrared and other tests as referred to in the Reports required experience and the employment of skills and specialist knowledge. The Reports did not specify the individual(s) who had carried out the tests, what their relevant experience was, the detailed methodology they employed, their manner of analysis of the test results, or who had made the conclusions and compiled the Reports.
  • Furthermore, Dr Chan was not called as expert on infrared technology or thermography. Therefore his opinion, conclusions and inferences based on and made from the Reports were outside his own field of accepted expertise.
  • To the extent that references were made to the Reports in Dr Chan’s reports, and to the extent that Dr Chan’s expert evidence was purely reliant on hearsay evidence without his own detailed and expertise analysis and explanation, that would be a question that went to the weight (if any) to be attached to Dr Chan’s report and what remained of his evidence.
  • Dr Chan’s ability to fully understand the duties he owed to the court as an independent expert would also have to be considered, in light of his reliance on non-expert evidence or inadmissible evidence, and his lack of full disclosure of the individuals on whom he relied on in the compilation of his expert report and his expert evidence.

Court of Appeal decision

On appeal, the Defendant conceded that the Reports were expert evidence and the only question 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 on the ground that the CFI’s criticism of Dr Chan’s expert conclusion went to the quality and weight of his evidence, not admissibility. It was apparent from his report that he had some involvement in the tests carried out and the preparation of the Reports.

Regarding the infrared thermography report, since it was not within Dr Chan’s expertise, the Defendant accepted that leave should be sought to adduce such evidence and would not seek to rely on those parts relating to the infrared testing.

The Court of Appeal refused to disturb the CFI’s order awarding costs of the application to the Contractor since the CFI would appear to have been side-tracked by a bad point taken up by the Owners which took up much time in the hearing below.

Comments

This case provides useful guidance as to the difference between factual and expert evidence, which is sometimes difficult to distinguish.

It is also a good reminder to practitioners that when seeking leave to adduce expert evidence, if the expert evidence has already been prepared, it should be made known to the Court so that leave given will include that evidence.

Experts should also note that their evidence is given in their personal capacity. As can be seen from the judgment, a limited company could not have any “expertise” or specialist knowledge to proffer as expert witness. We have just seen too many draft expert reports which purported to be prepared by some unknown individuals from a consulting firm.