Dispute Resolution Briefing: Hong Kong Court Discourages 'Expert Shopping' in Financial Misselling Case

27 June 2017

Richard Keady, James Wong

Appointing an appropriate expert is a key element in running a successful litigation strategy. An expert's function is to assist the court on the subject of his expertise. But what happens if a party wants to change its expert during the course of the proceedings, in light of negative judicial comment as to the experience and evidence of its current expert? Justice Mimmie Chan J's recent judgment has demonstrated the court's attitude and serves as a helpful reminder.

Background

In Chang Pui Yin v Bank of Singapore HCCL 12/2013, 5 April 2017, the plaintiff elderly couple claimed against the defendant Bank for negligent advice, misrepresentation and breach of contract (please refer to our previous note of "Investor Beware? Hong Kong Court Confirmed Bank's Advisory Duty to Inexperienced Investors" linked here. Bharwaney J gave judgment on liability against the Bank, with the quantum of damages to be assessed.

In the judgment, the experience of the defendant's expert at the hearing on liability was described as "wholly academic", and in the Judge's view "of little relevance in the real world". Bharwaney J instead preferred the evidence of the plaintiff's expert, who was described as having "impressive theoretical knowledge about finance and investments as well as extensive practical experience of investments".

Prior to the hearing on quantum, the Bank applied to the court for leave to adduce fresh expert evidence on the issue of loss, on the basis that it had lost confidence in its expert following the adverse comments made by the trial judge, and also because the newly proposed expert had practical experience which was more relevant to the issues before the court.

The Court's view

Mimmie Chan J referred to the underlying objectives of the Civil Justice Reforms, which included cost effectiveness, dealing with cases expeditiously, ensuring fairness and the promotion of reasonable proportion. Her Ladyship referred to the proposed change of expert at a late stage of the court proceedings as "expert shopping", which the court does not encourage. Very good reasons have to be adduced for the court to approve the change.

In dismissing the defendant's application, Mimmie Chan J found that the Bank's original expert had been instructed to address all relevant issues in his original reports, and that the new expert would not be called upon to address any new issue. Her Ladyship considered that the plaintiffs would be prejudiced if they were now required to adduce evidence in response to any new expert evidence. Other relevant facts included the advanced age of the plaintiffs and the lapse of time between the commencement of proceedings in 2011 and the assessment of the quantum fixed for February 2018. The court also stressed the impartiality and independence of each party's expert, such that the court should not doubt the ability of the plaintiff's expert to give the necessary objective and impartial assistance on the issue of quantum and the plaintiff's loss.

Comment

As set out in our previous note, this case reminds litigants of the importance of finding an expert with suitable and appropriate practical experience in addition to his academic knowledge. The court's reluctance to allow a party to change its expert, despite previous negative judicial comment on his evidence, means that parties will be held to their choice of experts made at an early stage of the court proceedings.

The court also highlighted the trend of appointing a single joint expert by both parties, such that the single joint expert will be able to give all necessary assistance in order to address the concerns of both parties.

Authors

Keady-Richard

Richard Keady

Partner
China and Hong Kong

Call me on: +852 2248 6000
Image of James Wong

James Wong

Associate
China and Hong Kong

Call me on: +852 2248 6000