THE INCORPORATED TRUSTEES OF THE SISTERS OF THE IMMACULATE HEART OF MARY v. 曹琳 AND OTHERS

THE INCORPORATED TRUSTEES OF THE SISTERS OF THE IMMACULATE HEART OF MARY v. 曹琳 AND OTHERS

The court refused leave because the proposed expert evidence was unnecessary and unlikely to assist: the plaintiff could obtain medical information without formal leave; there was no realistic prospect of a useful 'baseline' expert could provide; permitting such expert evidence risked usurping the court's role in assessing credibility; no draft expert report was produced to show necessity; and D1's stance removed the principal risk of an adverse inference.

Citation
[2023] HKCFI 1586
Parties
Plaintiff: P (Plaintiff); 1st Defendant: D1 (1st Defendant); 2nd Defendant: D2 (2nd Defendant)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 June 2023
Case Number
HCMP2233/2020
Procedural Posture
Summary Possession / Possession Proceedings / Interlocutory Application for Leave to Adduce Expert Psychiatric and Psychological Evidence; Pre Trial Deposition Taking Fixed
Outcome
Summons refused
Legal Topics
Expert Evidence, Witness Competence, Deposition Taking, Summary Possession, Costs
Source Language
EN
Civil Procedure Evidence Capacity and Mental Health Property Law Expert Evidence Witness Competence Deposition Taking Summary Possession +1 more

Case Brief

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Parties

P (Plaintiff)

Plaintiff

D1 (1st Defendant)

1st Defendant

D2 (2nd Defendant)

2nd Defendant

Procedural Posture

Summary Possession / Possession Proceedings / Interlocutory Application for Leave to Adduce Expert Psychiatric and Psychological Evidence; Pre Trial Deposition Taking Fixed

Legal Issues

  1. 1 Whether leave should be granted to adduce expert psychiatric and psychological evidence about a proposed witness's current mental condition and intellectual impairment
  2. 2 Whether proposed expert evidence would assist or usurp the court's function in assessing witness credibility and competence
  3. 3 Whether an adverse inference would be drawn if the plaintiff did not call the witness and whether expert evidence is necessary to avoid such an inference

Ratio Decidendi

The court refused leave because the proposed expert evidence was unnecessary and unlikely to assist: the plaintiff could obtain medical information without formal leave; there was no realistic prospect of a useful 'baseline' expert could provide; permitting such expert evidence risked usurping the court's role in assessing credibility; no draft expert report was produced to show necessity; and D1's stance removed the principal risk of an adverse inference.

Court Disposition

Summons refused

Orders

  • The summons dated 2 February 2023 is refused
  • Costs of the application up to 11:00am to 1st Defendant in any event, to be taxed if not agreed; 1st Defendant's costs to be assessed in accordance with applicable Legal Aid regulations