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18 August 2020
In the recent case of Hing Yip Holdings (Hong Kong) Ltd v Cellmark China Ltd,(1) the High Court allowed a defendant to rely on an expert's reports at trial, even though the expert witness had failed to verify his reports with a statement of truth or include a declaration that he agreed to be bound by the Code of Conduct for Expert Witnesses. The requirement for an expert witness's report to contain a statement of truth and a declaration are clearly set out in the court rules and the code and are both well understood. Where an expert witness fails to include a statement of truth or a declaration in their report, it will require good reasons for a court to allow them to rely on the report at trial on the condition that they sign and file a statement of truth or a declaration immediately before giving evidence. In the normal course of events, an expert report that lacks a statement of truth or a declaration will be inadmissible.
During a lengthy trial and after the plaintiff's expert had completed giving his evidence, the second defendant's expert was called to give evidence. The second defendant's expert had signed a joint experts' report in June 2018, which did contain a statement of truth and a declaration. However, the second defendant's expert had prepared his own provisional report and final report in December 2017 and July 2018, respectively. Apparently, neither report contained a statement of truth or a declaration that the expert had read the Code of Conduct for Expert Witnesses (and agreed to be bound by it) or that he had understood his duty to the court and complied with it.(2)
Immediately after the plaintiff's expert had completed giving evidence and on the second defendant's expert commencing his evidence, the plaintiff appears to have objected to the second defendant's reliance on the two expert's reports. The second defendant considered the plaintiff's objection to be too late. The plaintiff considered that it was entitled to wait and see whether the second defendant sought to cure the defects in the reports when the expert gave evidence, whereupon the plaintiff intended to cross-examine the expert about whether he had understood his duty to the court and the reasons for why the statement of truth and the declaration had been omitted.
The issue for determination by the court was whether the second defendant should be allowed to rely on its expert witness's reports at trial.
The court allowed the second defendant to rely on its expert witness's reports despite the omission of a statement of truth or a declaration, provided that the expert signed and filed a statement of truth and a declaration before he continued to give evidence.
In arriving at its decision, the court noted that a balance had to be struck between (on the one hand) the fundamental importance of expert witnesses, who are called to give evidence at trial, complying with the Code of Conduct for Expert Witnesses and the requirement for a statement of truth and (on the other hand) the need to secure a just resolution of civil disputes in accordance with the underlying objectives of the court rules.(3)
On the facts, the court considered that the balance lay in allowing the second defendant to rely on its expert witness's reports.
First, it appeared to be the case that the second defendant's expert witness had understood his duty to the court and his duty to comply with the court rules – in particular, he had confirmed as much when signing the joint statement in the joint experts' report in June 2018.
Second, the court rules permitted the court to override the need for a statement of truth in a court document where the court considered that it was just to do so.(4) While no such power specifically allowed the court to dispense with the need for a declaration in an expert report, the court did have an overall general discretion to secure a just resolution of civil disputes in accordance with the parties' substantive rights.(5)
On the facts, the court considered that it was difficult to see what prejudice the plaintiff had suffered as a result of the absence of the statement of truth and the declaration in the second defendant's expert's reports. The plaintiff had been given full notice of the reports and its expert witness had had adequate opportunity to respond to them. Any residual doubt as to whether the second defendant's expert witness might understand his duty to the court, or whether he believed in the contents of his reports, were matters that (on the facts) went to the evidential value to be attributed to the contents of the reports rather than their admissibility.
Therefore, the second defendant was permitted to rely on its expert witness's two reports at trial.
The tightening up of the rules regarding the use of expert witness reports at trial was one of the more important changes adopted as part of the civil procedure reforms in Hong Kong in April 2009 – in particular, the requirement for statements of truth in pleadings, witness statements and expert reports and the adoption of the Code of Conduct for Expert Witnesses. Nothing in the court's decision should be seen as detracting from the fundamental need for a statement of truth or a declaration in an expert's report.
However, on the facts, the court considered that the defects in the second defendant's expert's reports could be remedied by the expert witness making a statement of truth and a declaration at trial (albeit late), before continuing to give his evidence. In this case, the plaintiff appears to have made a deliberate choice to withhold its objections until the second defendant's expert witness commenced giving evidence at trial – the court considered that the plaintiff's objections could and should have been raised much earlier and, in particular, before the start of the trial, so that the defects could be dealt with in good time.(6) In the modern era of litigation, the courts in Hong Kong increasingly expect parties to raise fundamental procedural objections before trial. As a general observation, for example, the courts actively discourage litigation by 'ambush' which not that long ago might have been acceptable.
It is also worth noting that if a party's expert report is ruled inadmissible by a court as a result of a legal practitioner's failure to advise properly on the requirements of the court rules, this could expose the legal practitioner to a claim for negligence – a claim that may (in practice) be less difficult to pursue than a claim against the expert witness.
For further information on this topic please contact Antony Sassi, Jacky Darsono or David Smyth at RPC by telephone (+852 2216 7000) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The RPC website can be accessed at www.rpc.co.uk.
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