Hong Kong Court allows Plaintiff to adduce evidence from its own expert following a single joint expert's report and oral evidence

In the first instance decision of Daimler AG (formerly known as Mercedes-Benz AG) v. Helge Herbert Leiduck and another HCA4089/1994, the Court allowed the Plaintiff to adduce evidence from its medical expert who had expressed an opinion contrary to that of the single joint expert. The Judge held that the appointment of a single joint expert does not of itself prevent a party from seeking leave to adduce additional expert evidence. A party's reasons for doing so must be "not fanciful" and the Court will weigh up all the relevant considerations to determine whether giving leave would be just and in accordance with the underlying objectives of the Civil Justice Reform.

Facts

This case is centred around the Defendants' application for an inquiry as to the damages suffered by them as a result of a Mareva injunction made against them in 1994. Between January 2008 and January 2013, Mr Herbert Leiduck, who was until his death in March 2014 the first Defendant, signed statements of truth and swore a number of affidavits and witness statements in support of the inquiry application. Mr Leiduck was over 80 years of age and suffered from various physical disabilities and medical conditions.

On day 34 of the trial and during Mr Leiduck's cross-examination, Counsel for the Defendant produced a medical report which stated that Mr Leiduck had been summoned previously to other proceedings in Germany but had been unable to testify because he was suffering from mental disability. The report concluded that Mr Leiduck was, at that time, completely unable to participate as a witness as he had considerable deficiencies in both long and short-term memory thereby preventing him from being questioned “responsibly” on things that happened many years ago. The report concluded that Mr Leiduck had no prospect of recovery.

The trial was adjourned to allow the Defendants to disclose all information relevant to Mr Leiduck’s mental health and capacity. The Defendants' solicitors produced three medical reports, which all the parties agreed questioned Mr Leiduck's ability to be a witness in the current proceedings.

Pursuant to the Court's directions, the parties appointed Dr Förstl as the single joint expert, a neurologist, psychiatrist and psychotherapist. In his expert report, Dr Förstl concluded that Mr Leiduck was now incompetent to be a witness but that he could not find sufficient evidence upon which to conclude whether Mr Leiduck was competent or incompetent when giving his earlier written and oral evidence.

Prior to the commencement of Dr Förstl's oral evidence, Counsel for the Plaintiff handed up a report produced by its own expert, opining that Mr Leiduck had become incompetent from 2008 and remained so throughout the material time up to January 2013. Counsel reserved the right to make an application to adduce this report until after Dr Förstl's oral evidence had concluded, and subsequently did so.

The relevant principles

Recorder L. Wong, SC stated that "the appointment of a single joint expert (“SJE”), whether by agreement between the parties or imposed by the Court, does not per se bar a party from seeking leave to instruct its own expert to challenge the SJE’s evidence or aspects thereof." The Judge further explained, however, that leave to adduce further expert evidence would only be granted if, upon balancing all relevant considerations, it is just and accords with the underlying objectives of the Civil Justice Reform to do so.

In relation to the considerations that would be relevant to such an application, Recorder L. Wong, SC cited nine factors identified by Neuberger J in the English case of Cosgrove v Pattison [2001] CP Rep 68: 

1. the nature of the dispute;
2. the number of disputes on which the expert evidence is relevant;
3. the reason for requiring the second report;
4. the amount at stake or the nature of the issues at stake;
5. the effect of permitting a second expert report on the conduct of the trial;
6. the delay in making the application;
7. the delay that might be caused in the conduct of the proceedings;
8. any other special features;
9. the overall justice to the parties.

This list is not exhaustive and other factors may be taken into consideration. For example, two additional relevant facts to the present case were (1) whether the single joint expert’s report could be challenged by cross-examination without the need for a further report; and (2) whether the parties have already engaged own-party experts.

The Court also considered the test which the applying party must satisfy in relation to their reasons for wanting to adduce further own-party expert evidence. The Court rejected the more stringent test proposed by the English Court of Appeal (in obiter) which would require such a party to provide "good reasons". It was held that for what is essentially a case management decision to be made to achieve justice and upon balancing all material factors, of which the reasons for challenging the single joint expert’s opinion is but one, it should be sufficient if those reasons are not fanciful, particularly if the other considerations also point to own-party expert evidence being appropriate. 

The decision

The Plaintiff was given leave to adduce evidence from its own expert. The Judge considered a number of arguments put forward by the Defendants' counsel including one about the increased costs and delay that would inevitably result from allowing additional medical evidence to be adduced.  Interestingly, the Judge found that the prejudice would be suffered equally by both sides. In respect of the extra costs, said the Court held that such costs should be viewed and weighed in the perspective of the magnitude of costs that had already been incurred and, in any event, each of the parties had already engaged its own expert.  The Judge accepted that the timetable would slip but that the Defendants were the engineers of that delay. The issue of Mr Leiduck's competency as a witness would have been determined much sooner had the Defendants' brought the initial medical report to the attention of the Court and the Plaintiff as soon as it was made available to them. Further, the Plaintiff had acted as quickly and efficiently as it could have in the circumstances by having the additional expert report ready soon after receiving Dr Förstl’s report. 

Comment

This decision is remarkable given that the underlying objectives contained in Order 1A, rule 1 of the Rules of the High Court include the requirement to increase cost-effectiveness and deal with cases expeditiously. The Court's responses to the issues of additional costs and delays raised by the Defendants' counsel do not seem convincing and certainly go against the very objectives deemed to be relevant to such an application. 

Take-away points

Admittedly, the facts of this case are unusual and it is clear that the factual evidence surrounding Mr Leiduck's health was piecemeal and complex. There are, however, some valuable lessons to be learnt:

1. Parties should consider the underlying objectives at all stages of the dispute. Past delays and excessive expenditure may hinder your future position and a later pleading to the objectives when opposing an application of this kind may be looked at unfavourably.
2. The general rule is that the appointment of a single joint expert does not prevent further expert evidence being adduced. In the event that a single joint expert's report is unfavourable to your case or appears open to challenge in some way, you should consider whether there is a need to seek to adduce evidence from your own expert.
3. The test for adducing additional evidence from your own expert does not seem to be particularly stringent. A party's reasons do not have to be good so long as they are not fanciful.

Please contact Gareth Thomas or Dominic Geiser of our Hong Kong Dispute Resolution Team if you have any questions.