HING YIP HOLDINGS (HONG KONG) LTD v. CELLMARK CHINA LTD AND ANOTHER

HING YIP HOLDINGS (HONG KONG) LTD v. CELLMARK CHINA LTD AND ANOTHER

The court admitted the 2nd Defendant's provisional and final expert reports subject to the condition that the expert sign and file the required statement of truth and the Order 38 rule 37C declaration before continuing to give evidence, because the Plaintiff had full notice of the reports, there was a signed Joint Report addressing duties, the Plaintiff suffered no real prejudice, and the defect was curable without undermining the just resolution of the dispute.

Citation
[2020] HKCFI 1764
Parties
Plaintiff (in Compulsory Liquidation): Hing Yip Holdings (Hong Kong) Limited; 1st Defendant (in Voluntary Liquidation): Cellmark China Limited (formerly Pechiney Far East Limited); 2nd Defendant: Bayin Resources Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 July 2020
Case Number
HCCL15/2016
Procedural Posture
Commercial Action (no 15 of 2016) / Ruling on Admissibility of Expert Evidence at Trial
Outcome
2nd Defendant permitted to rely on the provisional and final expert reports of Mr Lee conditional on Mr Lee signing and filing the statement of truth and the Order 38 declaration before resuming evidence.
Legal Topics
Admissibility of Expert Evidence, Expert Witness Statements of Truth and Declarations, Court Discretion Under Procedural Rules, Case Management
Source Language
EN
Civil Procedure Evidence Insolvency Admissibility of Expert Evidence Expert Witness Statements of Truth and Declarations Court Discretion Under Procedural Rules Case Management

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Parties

Hing Yip Holdings (Hong Kong) Limited

Plaintiff (in Compulsory Liquidation)

Cellmark China Limited (formerly Pechiney Far East Limited)

1st Defendant (in Voluntary Liquidation)

Bayin Resources Company Limited

2nd Defendant

Procedural Posture

Commercial Action (no 15 of 2016) / Ruling on Admissibility of Expert Evidence at Trial

Legal Issues

  1. 1 Whether expert reports lacking a signed statement of truth and the Order 38 rule 37C declaration are inadmissible
  2. 2 Whether the court may dispense with the statement of truth or the declaration
  3. 3 Whether the lateness of the objection and absence of prejudice justify admitting the reports subject to conditions

Ratio Decidendi

The court admitted the 2nd Defendant's provisional and final expert reports subject to the condition that the expert sign and file the required statement of truth and the Order 38 rule 37C declaration before continuing to give evidence, because the Plaintiff had full notice of the reports, there was a signed Joint Report addressing duties, the Plaintiff suffered no real prejudice, and the defect was curable without undermining the just resolution of the dispute.

Court Disposition

2nd Defendant permitted to rely on the provisional and final expert reports of Mr Lee conditional on Mr Lee signing and filing the statement of truth and the Order 38 declaration before resuming evidence.

Orders

  • Allow 2nd Defendant to rely on Mr Lee's provisional report dated 15 December 2017 and final report dated 20 July 2018
  • Mr Lee must sign and file the necessary statement of truth and the declaration required by Order 38 rule 37C before he continues to give evidence