Tang Tak Ping v Kai Shing Construction Company and Keader Construction Company Limited HCPI 539/2011

The Judge in this decision sets out the principles involved in adducing expert evidence in personal injury and medical negligence cases.

Background

The Plaintiff, in this personal injury action, appointed his own expert and obtained a psychiatric report in support of his claim of damages without first seeking leave from the court and agreement of the Defendants. According to the general rule set out in the Practice Directions, leave of the court or consent of the other party is required before any expert evidence can be adduced at trial. A party who obtains expert evidence without first obtaining leave runs the risks of adverse costs consequences and/or eventual refusal of leave to adduce such expert evidence.

The Judge reiterates the factors to be considered when the court has to exercise its discretion as to whether or not to grant leave for the admission of the expert evidence. First of all, the court has to decide whether such evidence is reasonably required to resolve the issues in disputes and is proportionate, having regard to the importance of the issue in question and the amount of money involved.

If such evidence is considered necessary to assist in the determination of a particular issue, the further question arises as to whether such expert evidence is best adduced from a single expert, or from experts nominated by each party conducting a joint examination and preparing a joint report, or from experts nominated by each party conducting separate examinations and preparing separate reports.

All in all, the discretion must be exercised:

"In the light of the underlying objectives of the Civil Justice Reform; including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties."

The same principles apply to medical negligence cases when the expert evidence is required on quantum issues, and in such case, a joint approach of obtaining expert evidence is the norm. However, when the expert evidence is required on liability, the plaintiff can commission an expert report from his liability expert without leave of court and without agreement of the other party, and can do so without running the risks of adverse costs consequences.

The Judge pointed out that in circumstances where a joint approach on liability is warranted, the parties lose their right of private access to their respective nominated experts, at least until such time as the court grants leave for the nominated experts to give oral evidence at trial. But in cases where each nominated expert prepares his separate report, the parties are permitted to communicate privately with their respective experts at any time, and even if the court directs a without prejudice meeting be held by the experts in the absence of legal representations.

Implications

This decision serves as a reminder of the court’s approach in dealing with expert evidence in medical negligence cases. When the expert evidence is on quantum, a joint approach is preferred and is seen to be the most cost efficient way in resolving the dispute. In cases where a party wishes to appoint their own expert, it is advisable for them to obtain the leave of the court or the consent of the other parties first before instructing the expert.