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There may of course be challenges to proposed expert evidence mounted prior to the
trial, when questions of admissibility would have to be confronted. There was at one
time doubt whether there was jurisdiction to entertain a pre-trial challenge since
questions of admissibility were thought to lie within the exclusive province of the trial
judge.
However, this approach has since been rejected and admissibility can and
often is determined before the trial.
As Chu J puts it :-
"[The] modern judicial approach has moved away from leaving all matters to be resolved by
the trial judge at the trial to an emphasis on effective pre-trial case management. The court is
prepared at an interlocutory stage to exercise its discretion to exclude evidence, including
expert evidence, which it perceives to be plainly irrelevant : see for instance the judgment of
Rogers JA in Ying Ho Company Limited & Ors v The Secretary of Justice (Unreported)
CACV 365/1999. The advantages of such an approach in reducing the costs and the length of
trial are obvious and need no elaboration."
Additionally, section 58(1) provides that admissibility shall be "subject to any rules."
"Rules" are defined in section 60(2) as "the Rules of the High Court ...... made under
section 54 of the High Court Ordinance, Cap 4." Rules have indeed been made which
restrict the introduction of expert evidence in two important ways.
(a)
First, O 38 r 4 provides :-
"The Court may, at or before the trial of any action, order that the number of medical or other
expert witnesses who may be called at the trial shall be limited as specified by the order."
(b)
Secondly, O 38 r 36 provides that, except with the court's leave or the consent
of all parties, no expert evidence may be adduced at the trial or hearing unless
the party seeking to adduce the evidence has first sought and complied with
directions of the court concerning pre-trial disclosure of the substance of the
expert evidence sought to be relied on. Such disclosure is generally ordered
by means of disclosing or exchanging expert reports.
Notes
Sullivan v West Yorkshire Passenger Transport Executive [1985] 2 All ER 134.
Woodford and Ackroyd v Burgess [2000] CP Report 79; Ko Chi Keung v Lee Ping Yan Andrew
[2001] 1 HKLRD 829.
Annabell Kin Yee Lee v Lee Wing Kim (May Lee) (Unreported) HCA 9522/1997, 22 November 2001,
at §15.
O 38 r 37. In personal injury cases, disclosure is catered for in automatic directions under the RHC:
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