Civil evidence — expert evidence — change of expert — whether to grant permission to replace one expert with another — application of principles — securing payment of costs to be ordered in favour of other party in consequence of allowing application
In proceedings brought by P, D1, representing the estate of his deceased father, applied for permission to appoint an expert, V, in place of the previously appointed expert, K. Although K had declared that he was no longer available, the application to replace him was not based on his unavailability, but his inability to deal with the issue on which expert evidence was to be given.
Held, granting such permission subject to a payment into court to secure payment of the costs to be ordered in favour of P, that:
- Ds were not seeking to replace an expert with one whose conclusion was more favourable to them. K’s reports were so inadequate and unhelpful that any party who was properly advised would want to replace him. While Ds might be blamed for putting him forward as their expert in the first place, they should, in the interests of a just resolution of the dispute, be given a chance to remedy their error if that can be done without prejudice to P. There was no way to remedy that error other than by replacing K (Chinachem Charitable Foundation Ltd v. Chan Chun Chuen  5 HKC 190, Law Chung Fai v. Lam Ming Kuen (unrep., HCPI 96/2008,  HKEC 1410) applied). (See paras. 44–45.)
- V had canvassed different facets of the issue from angles and with reference to supporting materials which were not covered by K or P’s expert and which would be conducive to a just resolution of the issue. P’s expert would have a full opportunity further to explain his analysis and conclusions. (See paras. 46–47, 52.)
- Permitting replacement would not cause P any prejudice for which it could not be adequately compensated by costs. (See paras. 48–50.)
- Not too much weight was to be attached to the fact that V would have seen P’s expert’s reports. There was nothing to suggest that the experts’ opinions would be different under an exchange arrangement (Chinachem Charitable Foundation Ltd v. Chan Chun Chuen 5 HKC 190 applied). (See para. 51.)
- As for the view that permission to replace K with V should have been sought before obtaining a report from V, it was not a view to be favoured. A report by, or at least the preliminary views of, the proposed replacement expert was necessary for the purpose of demonstrating that her or his opinion is likely to facilitate the just resolution of the dispute (Chinachem Charitable Foundation Ltd v. Chan Chun Chuen  5 HKC 190, Law Chung Fai v. Lam Ming Kuen (unrep., HCPI 96/2008,  HKEC 1410) applied; Yip Kwok Sun v. Poly-style Ltd (unrep., DCMP 2891/2011,  HKEC 1729) not followed). (See paras.53–54.)
This was an application by the first and second defendants for leave to appoint another person in place of their expert. The facts are set out in the judgment.