Personal injuries action – Pre-action protocol – Medical expert evidence - Approach – Joint medical report – Joint medical examination – Plaintiff failing to invite defendants’ orthopaedic expert to jointly examine plaintiff – Parties subsequently agreeable to joint medical examination and joint medical report – Whether plaintiff ’s orthopaedic expert debarred from joint medical examination and joint medical report – Whether defendants be at risk of costs incurred by plaintiff in preparing solo orthopaedic expert report

Evidence – Expert evidence – Personal injuries case – Medical evidence – Leave to advise – Joint medical examination and report

SIU FOOK CHEONG v SIU KWOK FAI [2010] 3 HKC 333

Court of First Instance
Personal Injuries Action 768 of 2009
Master Marlene Ng
27 January, 2 February 2010

Victor Yeung of Tso Au Yim & Yeung for the plaintiff.
Jonathan Lui of TS Tong for the 1st and 2nd defendants.

The plaintiff suffered personal injuries following a road accident which he claimed was caused by the negligence of the 1st defendant on 21 December 2006. The plaintiff ’s solicitors instructed an orthopaedic expert in September 2009 to examine the plaintiff and to compile an orthopaedic expert report. The plaintiff ’s solicitors sent pre-action letters thereafter in October 2009. The defendants’ solicitors expressed concern that the plaintiff had obtained a solo orthopaedic expert report without inviting their clients’ expert to participate in any joint medical examination and proposed a joint medical examination of the plaintiff by the defendants’ orthopaedic expert and some other orthopaedic expert to be nominated by the plaintiff.

The plaintiff commenced a personal injuries action in December 2009. Upon the plaintiff’s solicitors indicating that the plaintiff would not object to attending medical examination by the defendants’ nominated orthopaedic expert, solicitors for the defendants sought an expedited checklist review hearing. The PI Master directed that an inter partes summons be issued by the defendants to canvass all matters relating to expert medical evidence. The defendants’ solicitors maintained that the plaintiff ’s nominated orthopaedic expert was not suitable and the plaintiff ’s solicitors suggested
that the costs of the solo report already compiled by that expert be reserved for consideration at the checklist hearing.

Held, giving case management directions:
Part B of Practice Direction 18.1 established a pre-action protocol for personal injuries litigation with which intended plaintiffs and defendants should comply. The pre-action protocol included a regime for obtaining expert medical reports prior to the commencement of legal proceedings. If expert medical evidence would be required for the intended personal injuries claim at the pre-action stage, then either the intended plaintiff or the intended defendant could invite the other party to proceed with single joint or joint medical examination of the injured person by their respective medical expert(s) for the purpose of compiling single joint or joint expert medical report. This would enable the parties to have early access to expert medical opinion to facilitate negotiations for settlement and/or provide material for constructive consideration of the option of alternative dispute resolution/mediation, which may in turn obviate the need for legal proceedings. Even if the matter proceeded to litigation, time would be saved and there would be substantial progress of the case by the time of the first checklist review hearing.

(a) If efforts to arrangement single joint or joint expert medical examination at the pre-action stage were unsuccessful and there was no constructive reply from the intended defendant within one month of service of the pre-action letter, the intended plaintiff was entitled to commence legal proceedings forthwith without risk as to costs arising out of the non-compliance of para 19 of Practice Direction 18.1. After the commencement of legal proceedings, either party shall as soon as possible apply by inter partes summons to the PI Master to seek directions for obtaining expert medical evidence.

(b) If efforts to arrange single joint or joint expert medical examination were initially unsuccessful but there was constructive reply from the intended defendant pursuant to para 19 of Practice Direction 18.1, the parties should in the next three months communicate constructively and provide mutual disclosure of information and documents with respect to the issues of liability and quantum as are reasonably required not only for attempting to settle the claim in whole or in part but also for revisiting
proposal(s) for arranging medical examination of the injured person by medical expert(s). If three months of constructive communications did not result in settlement of the claim in whole or in part and/or in arrangements for single joint or joint expert medical examination/report, the intended plaintiff was entitled to commence legal proceedings without risk as to costs and either party shall as soon as possible after the commencement of the proceedings issue inter partes summons returnable before the PI Master or both parties shall apply for the checklist review hearing to be expedited in order to seek directions on obtaining expert medical evidence.

(c) Where the end of the limitation period was so imminent that it fell within the time scale set out in para 19 of Practice Direction 18.1, then the intended plaintiff should commence legal proceedings but was expected to comply with the spirit of paras 15 and 19 of Practice Direction 18.1 and further progress in the action should be delayed for such purpose save in cases of emergency.

(d) Failure to follow the pre-action protocol or to co-operate in arranging single joint or joint medical examination/report without good and cogent reasons may attract court sanctions and/or costs penalties.

The plaintiff ’s non-compliance with para 22 of Practice Direction 18.1 (ie failing to invite the defendants to participate in joint expert medical examination/report and proceeding to obtain the solo report) was unjustified. The defendants were fully entitled to issue the
inter partes summons for seeking directions from the Court on obtaining expert medical evidence and in not acceding to the implicit suggestion by the plaintiff ’s solicitors in correspondence that their orthopaedic expert should proceed with solo medical examination fo the plaintiff. The defendants should not be put to risk on costs in respect of costs of and occasioned by the solo report already compiled by the plaintiff ’s orthopaedic expert in addition to the plaintiff ’s costs of the joint report for the present proceedings. The costs incurred in preparing the solo report of the plaintiff ’s orthopaedic expert were unnecessary given the imminent availability of the joint orthopaedic expert report by the two nominated experts. Had the plaintiff invited the defendants to adopt a joint approach to expert medical evidence under the pre-action protocol, not only would
the solo report already compiled by the plaintiff ’s orthopaedic expert have been unnecessary, the parties would already have had the joint report to hand by now and they would have been able to get on with the litigation or with constructive consideration of sanctioned offer/payment, settlement, and/or alternative dispute resolution/mediation much more expeditiously. There should be no order as to costs of and occasioned by the solo report already compiled by the plaintiff ’s orthopaedic expert.

There was insufficient justification in the present case for debarring the plaintiff from instructing the orthopaedic expert for the purpose of the joint medical examination/report even though he had examined the plaintiff and compiled the solo medical report. The lapse of time between the solo examination and the joint examination to be carried out was not substantial. The lost opportunity to physically examine the plaintiff did not constitute any material forensic disadvantage in the present case. Joint instructions were not mandatory even though joint instructions were encouraged and solo instructions were discouraged in order to minimise future disagreement over the scope of instructions. It did not follow from the mere absence of joint instructions that there must have been something sinister in the solo instructions. There was little support for the perception that the said orthopaedic expert would be reluctant to change the opinion
already expressed. The medical expert’s overriding duty to help the Court impartially and independently must include an obligation to ensure that those instructing him, the opposing party and the Court were made aware of any change of his view on any material matter. Thus if on any material matter he had previously held a particular view and had subsequently changed his view, he should disclose the same. Whether leave should be granted to the plaintiff to adduce the solo report at trial in addition to the
joint report to be compiled after their joint medical examination of the plaintiff should be reserved for consideration at the adjourned checklist review hearing when the joint report would be available.

Parties and practitioners were reminded of the following matters:

(a) The Court generally expected joint instructions to medical experts, and if solo instructions resulted in unnecessary future dispute on the scope of instructions leading to any supplemental expert medical report or any need to call the medical experts to give oral evidence, the party insisting on solo instructions may be at risk as to costs.

(b) Practitioners should fully familiarise themselves with the provisions in Practice Direction 18.1 that concerned expert medical evidence and in particular the rationale behind the provisions. In future, parties (and where appropriate their legal representatives) who failed to follow the joint approach to expert medical evidence set out in Practice Direction 18.1 without good and sufficient reason may not be able to adduce in evidence any solo expert medical report so obtained and may have to bear the wasted costs of such solo expert report.

(c) Where there was risk of prejudice to the opposing party and/or where there was concern that any solo report was an attempt to overreach or to gain forensic advantage, the Court in exercising control on how expert evidence should be obtained and presented in order to attain the goal of fairly disposing of the cause or matters would not hesitate to refuse leave for adducing any such solo report.

Striking out – Application for dismissal for want of prosecution – Whether provisions of RHC introduced as part of Civil Justice Reform in 2009 relevant to delay which occurred previously

RE WING FAI CONSTRUCTION CO LTD [2010] 3 HKC 593

Court of Appeal
Civil Appeal No 273 of 2009
Rogers VP and Le Pichon JA
16, 30 April 2010

Jeremy Bartlett (Richards Butler) for the applicants/respondents.
Barrie Barlow SC (Barlow Lyde & Gilbert) for the 1st to 3rd respondents/appellants.

Proceedings were commenced by summons under s 267 of the Companies Ordinance (Cap 32), dated 30 August 2004, by liquidators for breach of fiduciary duty and/or breach of trust relating to payments and shortfall which occurred between February 2001 and May 2002. Between the commencement of these proceedings and 19 April 2006, there was considerable action including pleadings on both sides. No steps were taken from then until 22 May 2008 when a summons for directions was issued on behalf of the liquidators. On 19 August 2008, well before the Civil Justice Reform which led to the current Rules of the High Court (Cap 4A) (Rules), the respondents issued a summons to strike out the proceedings on the basis that they were an abuse of the process of the court, and complaining of a period of delay on the part of the respondents which occurred well prior to 1 April 2009.

The judge, dismissing the application, observed inter alia that, for the period from 19 April 2006 until May 2008, no summons for directions had been taken out under O 25 r 1(1) of the Rules, but considered that it had not been established that it was not possible to have a fair trial due to the two-year period of delay. The judge was also satisfied that no serious prejudice had been caused by reason of the delay. The argument that the liquidators had been guilty of abusing the process of the court was rejected. The respondents appealed, arguing inter alia that the well-established rules relating to dismissal for want of prosecution were superseded by O 1A r 1(b) of the Rules following the amendments as part of the Civil Justice Reform.

Held, dismissing the appeal:
Order 1A r 1(b) was one of the ‘underlying objectives’ of the Rules to ensure that a case was dealt with as expeditiously as was reasonably practicable. It was not a rule which required a specific act to be done as such.

Following the introduction of the Civil Justice Reform, there were specific provisions in the Rules, designed to ensure that delay would not occur in the preparation of a case for trial, in relation to various steps which were required to be taken in relation to an action and orders which should be made when those steps had to be taken. There was however no specific Rule relating to striking out for want of prosecution. The matter was still an exercise of the inherent jurisdiction of the court.

While the Rules now in force were applicable to the present case, in circumstances where the period of delay complained of occurred well before the introduction of the amendments which led to the current Rules and the summons to strike out was also taken out well prior to 1 April 2009, application of principles that were applicable at the relevant time was correct and could not be faulted. The matter of delay had to be considered in the context in which it occurred.

Regarding the failure to take out a summons for directions for the period from 19 April 2006 to May 2008, no doubt in similar proceedings which were commenced now, other Rules would be relevant that did not exist previously and the court, faced with an application to strike out for want of prosecution, would have to take into consideration any nonobservance of those Rules. However, a party could not be blamed for not observing a Rule that did not exist at the relevant time.