TIERRA TRADING LTD AND ANOTHER v. LAND BASE LTD

HCMP 3074/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3074 OF 2014

__________________

__________________

__________________

__________________

J U D G M E N T

__________________

Introduction

1.  (1)   Tierra Trading Limited is the 1^st plaintiff and Keep Forever Development Limited is the 2^nd plaintiff (collectively “Ps”).  Except where this is inappropriate, “Ps” include Ps’ predecessors-in-title.

(2)   Ps are the registered owners of 464⁄668 equal undivided shares together with the exclusive right to possession of various units in a commercial building known as Kyoto Plaza situated on Nos. 491 – 499 Lockhart Road, Causeway Bay.

(3)   Kyoto Plaza is situated on a number of land lots, including the Remaining Portion of Subsection 15 (“Subsection 15”) of Section A of Inland Lot No. 2836.

2.  (1)   Land Base Limited (“Land Base”) is the defendant.  Except where this is inappropriate, “Land Base” includes the predecessors-in-title of Land Base.

(2)   Land Base is the registered owner of the adjacent commercial building to the west of Kyoto Plaza known as L’Hart situated on Nos. 487 and 489 Lockhart Road.

(3)   L’Hart is situated on the Remaining Potion of Subsection 14 (“Subsection 14”) and the Remaining Portion of Subsection 8 (“Subsection 8”) of Section A of Inland Lot No. 2836.

3.  (1)   Immediately before 9 March 1955, Subsections 14 and 15 were both owned by one Tam Kam Ping.  The two buildings shared a common party wall and two sets of common staircases and landings (“Common Staircases”) (front and back of the buildings).

(2)   By an Assignment dated 9 March 1955 and registered in the Land Office by Memorial No. 233459, Tam Kam Ping assigned Subsection 15 to Madam Tang Yiet Moet, retaining for himself Subsection 14.  Reciprocal rights of way were created by express grant under this Assignment for access and egress.  These rights of way are quoted in §9 below. 

(3)   Until around 2004, all subsequent assignments of the two land lots were made with the benefit of and subject to these rights of way.

4.  (1)   By a Deed of Surrender dated 31 March 1970, the then owner of Subsection 14 surrendered the strip of land coloured pink in the plan annexed to the Deed of Surrender to the Crown.  The following image, “Image A” is a reproduction of the plan.

(2)   By a Deed of Surrender dated 1 April 1970, the then owner of Subsection 15 surrendered the strip of land coloured pink in the plan annexed to the Deed of Surrender to the Crown.  The following image, “Image B” is a reproduction of the plan.

IMAGE A

IMAGE B

5. (1) Between June 1988 and February 1990, Ps acquired, among others, Subsection 15.

(2) Ps demolished the then old building situated on Subsection 15 (“Old Subsection 15 Building”) but kept the Blue Area of the Common Staircases intact (“the Disputed Land”).

(3) The occupation permit of Kyoto Plaza is dated 25 September 1992.

6. (1) In August 2004, Land Base acquired Subsection 14 and Subsection 8.

(2) On 23 February 2006, building plans for the demolition of the Old Subsection 14 Building and the portion of the Common Staircase in the Yellow Area on Subsection 14 were approved by the Building Authority.

(3) From around 2006 to 2008, Subsection 14 and Subsection 8 were developed into L’Hart by Land Base.  However, Land Base did not demolish the portion of the Common Staircase in the Blue Area situate on Subsection 15, i.e. the Disputed Land, which has been left intact until today.

7.  On 21 November 2014, Ps issued the Originating Summons in HCMP 3074/2014 against Land Base claiming an Order for Vacant Possession of the Blue Area (i.e. the Disputed Land) and other reliefs.

8.  Land Base contested liability on the ground of adverse possession.

The rights of way

9.  As stated in §3(2) above, by an Assignment dated 9 March 1955 and registered in the Land Office by Memorial No. 233459, Tam Kam Ping assigned Subsection 15 to Madam Tang Yiet Moet, retaining for himself Subsection 14.  Reciprocal rights of way were created by express grant as follows:

“… the Vendor thereby assigned unto the Purchaser ALL THAT … Subsection 15 … AND TOGETHER with a full free and uninterrupted right of way for the Purchaser and others the owner or owners and occupiers for the time being of the said premises thereby assigned and his or her or their respective tenants servants visitors workmen and other persons by him or her or them authorised in common with all other persons having the like right from time to time and at all times thereafter during the residue of the said term of 99 years renewable as aforesaid for all purposes connected with the use and enjoyment of the said premises thereby assigned to go pass and repass over through upon and along the staircases and landings erected on such portions of the adjoining premises registered in the Land Office as Subsection 14 … as were shown on the plan there unto and hereunto annexed and thereon coloured Yellow …

“… EXCEPTING AND RESERVING unto the Vendor or owner or owners or occupiers for the time being of the said adjoining premises and registered as aforesaid as Subsection 14 … her or his or their tenants, servants visitors workmen and other persons by her or him or them authorised in common with all other persons having the like right from time to time and at all times thereafter during the residue of the said term of 99 years renewable as aforesaid for all purposes connected with the use and enjoyment of the adjoining premises to go pass and repass over through upon and along the staircases and landing erected on the said plan thereunto and hereunto annexed and thereon coloured Blue[1] TO HOLD the said premises thereby assigned unto the Purchaser for all the residue then to come and unexpired of the said term of 99 years with such right of renewal as aforesaid …” (“the Relevant Right of Way”)

10.  The following image, “Image C” is a reproduction of the plan attached to Memorial No. 233459[2] showing the rights of way.  The portions marked “blue” or “I” comprise the Disputed Land:

IMAGE C

Limitation Ordinance, Cap 347

11.  The following provisions are relevant to these proceedings.

12.  It is clear from section 7(2) that the right of action must have accrued to the paper owner before the limitation period may begin to run:

“ (2) No action shall be brought by any other person to recover any land after the expiration of [20] years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person:

Provided that, if the right of action first accrued to the Crown through whom the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Crown, or of [20] years from the date on which the right of action accrued to some person other than the Crown, whichever period first expires.”

13.  The period of 20 years was reduced to 12 years in 1991.

14.  Section 8(1):

“ (1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”‌

15.  Section 13(1) and (2) make it clear that accrual of cause of action to the paper owner is a requirement additional to the requirement of adverse possession by the squatter:

“ (1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

(2)   Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken in adverse possession.”

16.  Section 17:

“ Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

The applicable principles

17.  The principles are well settled.  They were stated by Li CJ in Wong Tak Yue v Kung Kwok Wai & another (1997–1998) 1 HKCFAR 55 at pp 68 – 69 as follows:

“ As Nourse LJ pointed out in Buckinghamshire County Council v Moran at 644, adverse possession can be described as ‘possession as of wrong’ and with limitation it is the intention of the squatter that is essential.”

“A person claiming to be in adverse possession must be shown to have both[3] possession and[4] the requisite intention to possess. See the Court of Appeal decisions in England in R v Secretary of State for the Environment ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v Moran [1990] 1 Ch 623 which treated as authoritative and applied the principles enunciated by Slade J in Powell v McFarlane (1979) 38 P & CR 452.

…

The requisite intention to possess has been referred in various authorities under its Latin tag ‘animus possidendi’. I shall refer to it simply as the intention to possess. As Slade J observed in Powell v McFarlane at 471–472, the intention to possess requisite for adverse possession:

… involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.

The question of intention to possess, as with any other questionof intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.

   Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation orwhen challenged in legal proceedings, the courts should approach them with some scepticism.  The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”

18.  In Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588, Nazareth NPJ stated the principles in §7 as follows:

“ The principles for the application of ss.7(2), 17 and the associated provisions of the Limitation Ordinance are well settled. They were formulated and set out by Slade J in Powell v McFarlane (1979) 38 P & CR 452, approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, and adopted by this Court in Wong Tak Yue v Kung Kwok Wai (1997–98) 1 HKCFAR 55. Their application has not been disputed in these proceedings, and they have been relied upon by both parties. The authorities mentioned, not only approve those principles, but provide explanation of them and guidance in their application. Of particular relevance to dispossession are the following passages in Slade J’s judgment in Powell v McFarlane:

…

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both[5] factual possession and the requisite intention to possess (animus possidendi).

(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances … acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree … is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.

(4) … the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.

…

An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved.  This is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.  The position, however, is quite different from a case where the question is whether a trespasser has acquired possession.  In such a situation the courts will require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world.  If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.(pp.470–472.)”

19.  Wong Tak Yue and Incorporated Owners of San Po Kong Mansion are Court of Final Appeal judgments.  They are binding on me.  They hold that a person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess.  To equate possession with the requisite intention to possess is plainly wrong.

20.  In On Yip Property Development Company Limited v Kwok Tai Kuen Alan, unreported, HCMP 3192 and 3223/2013, 15 April 2014, Cheung CJHC stated in §8 that adverse possession is a question of fact to be established by cogent and sufficient evidence, the burden being on the squatter, there being no place for any presumption, whether legal or evidential, in favour of the squatter:

“Whether, at any material time, there was adverse possession, and whether any such adverse possession once begun continued unbroken for 20 years, are questions of fact to be established by evidence, the burden being on the squatter. He has to discharge the burden of proof by cogent and sufficient evidence. Whilst such evidence can take many forms, including direct oral evidence, documentary evidence and inferential evidence, and the parties’ cases must be considered in light of inherent probabilities and commonsense, there is no place for any presumption, whether legal or evidential, in favour of the squatter. Everything must naturally depend on the facts of each case. The situation of a squatter who has enclosed the land in question and that of one who seeks to establish a case of continuous adverse possession of open land must, by the nature of things, be rather different.”

21.  On 19 January 2016, the Court of Appeal handed down its judgment in Gotland Enterprises Limited v Kwok Chi Yau and others, unreported, CACV 260/2014.  Gotland was a case where there were two large ponds separated by a strip of land in between.  There was no physical barrier to the first pond and no segregation of the pond from the adjoining areas within the land in dispute.  Lam VP, delivering the judgment of the Court of Appeal, held that “one must examine what steps were taken by the person claiming exclusive occupation to exclude others” and held that:

“What should be considered is whether the 5^th Defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carried out various activities as described above.”

Lam VP stated in §§36, 37 and 39, 54 and 59 as follows:

“ 36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37.   Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so.  In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.”

“ 39. At paragraph 54 of the judgment, the Judge did not examine the exclusive occupation of Pond 1 at length. He dismissed the significance of lack of fencing in the absence of evidence that this was normally done for fishponds. With respect, this is not the correct approach. What should be considered is whether the 5^th Defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carried out various activities as described above.”

“ 54. … The crucial question remains: what objective acts could the 5^th Defendant pinpoint as unequivocal manifestation of the intention to possess?”

“ 59. In our judgment, ultimately the crucial issue is whether the Judge was correct in holding that the acts of fish farming and duck rearing carried on at Pond 1 was equivocal. For reasons we have already given, we are of the view that the Judge had come to the correct conclusion.”

1992—earliest possible date for adverse possession to commence

22.  Prior to 9 March 1955, no question of adverse possession could arise as the Old Subsection 14 Building and the Old Subsection 15 Building were owned by the same person, Tam Kam Ping. 

23.  From 9 March 1955 to 1992, no question of adverse possession could arise as the owner(s) of the Old Subsection 15 Building had no cause of action against persons exercising the Relevant Right of Way, i.e. the right of way over the Disputed Land.

24.  1992 is the earliest possible date for adverse possession to commence.

21 November 2002—latest possible date for adverse possession to commence

25.  The Originating Summons in these proceedings (HCMP 3074/2014) was issued against Land Base on 21 November 2014 which meant that the latest possible date for adverse possession to commence was 21 November 2002[6] (“the Cut-Off Date”) if Land Base was to succeed.  After 21 November 2002, no person, including Land Base, could possibly accumulate 12 years of adverse possession by the time Ps issued the Originating Summons.

26.  The earliest possible date for adverse possession to commence is 1992.  The latest possible date for adverse possession to commence is the Cut-Off Date, i.e. 21 November 2002.

Primary contentions of Land Base

27.  The primary contentions of Land Base, as Mr Bernard Man SC and Mr James Man put it in §5 of “Opening Submissions of the Defendant” is:

“The undisputable evidence is that since 1992, there has been acore wall erected by Ps completely blocking off the Disputed Lands from Ps’ building. In other words, Ps excluded the Disputed Lands from his own land. This is strong evidence of abandonment or discontinuance of possession of the Disputed Lands by Ps. Since then, as a matter of physical configuration, the Disputed Lands formed an integral part of the building belonging to D’s predecessors, and were adversely possessed by D’s predecessors. D has continued the adverse possession of the Disputed Lands to date.”

Land Base went on to contend in §61 of its Opening Submissions that:

“In the present case, the Disputed Lands have been incorporatedinto the building of D’s predecessors forming an integral part of it, just like in Minchinton the garden was incorporated into the squatter’s land by the true owner. The tenants and licensees plainly intended to, and did, use the Common Staircases (including the Disputed Lands) as part of the Old Subsection 14 Building after 1992. It is difficult to imagine how else an owner of a building of this nature could be expected to possess the Common Staircases. This would constitute sufficient factual possession and animus possidendi.”

These contentions are referred to collectively as the Primary Contentions of Land Base.

No evidence of “incorporation”

28.  The Primary Contentions of Land Base cannot get off the ground for want of any evidence of “incorporation” of the Disputed Land into the Old Subsection 14 Building.  Factual possession is a question of fact to be established by cogent and sufficient evidence[7], the burden being on the squatter.  Evidence must be considered in light of inherent probabilities and common sense, there being no place for any presumption, whether legal or evidential, in favour of the squatter. 

29.  If the Disputed Land had been “incorporated” into the Old Subsection 14 Building, the inherent probabilities are that Land Base would have demolished the Disputed Land (blue staircase) when it demolished the Old Subsection 14 Building.  Significantly, Land Base left the Disputed Land intact.  Importantly, no explanation had been offered.  The Disputed Land had no or no material commercial value to Land Base.  The blue staircase led to nowhere, neither Kyoto Plaza nor L’Hart.  This objective fact is adverse to Land Base.  It cries out for an explanation.  Land Base proffers none.

30.  Absent any or any cogent or sufficient evidence of “incorporation”, the Primary Contentions of Land Base fail and I reject them. That is the end of the case of Land Base on adverse possession.

Discontinuance of possession

31.  Land Base asserted that Ps discontinued possession of the Disputed Land.  Ps denied discontinuance of possession.  Ps contended that the Disputed Land formed part of their land and was regarded by Ps as their land.

32.  Not only is there no evidence of discontinuance or abandonment.  No explanation has been offered why Ps would wish to and did discontinue possession.  In any event, the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. 

33.  Ps relied on the following fact referred to in a letter dated 26 May 2015 from Glamorous Building & Engineering Consultancy Ltd to Land Base:

“According to [the approved building plans], the site area calculation and its following plot ratio calculation of the development of Kyoto Plaza … had included the land of the Disputed Portion of Staircases and the party wall [that is] the plot ratio of the whole site including the aforesaid piece of land of the Disputed Portion of Staircase and party wall, has been utilised for the development of Kyoto Plaza. However, the floor area of the Disputed Portion of Staircase and party wall had not been included in the GFA of [the] Building ([that is] Kyoto Plaza).”

34.  Ps were making use of the area of the Disputed Land to calculate the permitted gross floor area of the then proposed new building, Kyoto Plaza.  Plainly, Ps had not abandoned the Disputed Land. To argue that Ps had abandoned the Disputed Land when Ps were making use of the Disputed Land to maximise the permitted gross floor area is an argument which flies in the face of common sense and I reject it.

No evidence of possession

35.  Further and in any event, there is no evidence of occupation or possession by Land Base of the blue staircase.  A right of way confers the right to pass and repass.  It confers no right to occupy or possess.  The Relevant Right of Way is, at best, evidence of user of the Disputed Land, see Gotland on user, occupation and possession.  It is not (and there is, in any event, no) evidence of occupation or possession, let alone adverse possession, by Land Base.

No manifestation of intention to possess

36.  Applying the approach adopted by Lam VP in §54 in Gotland, I ask the crucial question: what objective acts could Land Base pinpoint as unequivocal manifestation of the intention to possess?

37.  What steps did Land Base take to exclude Ps, the paper owners?  None.  What steps did Land Base take to exclude the world at large?  None.  There was no barrier to the Disputed Land.  Any Tom Dick and Harry is/are free to roam the Disputed Land. 

38.  On the question of “incorporation”, Mr Bernard Man SC contended that:

“So the way that this building, or this land, physically, was for a period of some 14 years, was that you go through this staircase asthe way that you go into the Subsection 14 units, and we therefore say that it’s physically amalgamated and incorporated into the Old Subsection 14 Building.”

39.  I have no hesitation in rejecting this contention.  Walking over land does not “amalgamate” or “incorporate” the land walked over.  Critically, there is no difference between the conduct of Land Base in relation to the Disputed Land before (a) 1992 and (b) between 1992 and the Cut-Off Date (21 November 2002).  There is user as of right (under the Relevant Right of Way), no possession as of wrong.

40.  In answer to my questions summarised in §37 above, Mr Bernard Man SC regurgitated that Land Base had been using the Disputed Land as an occupying owner might have been expected to deal with it and that no one else has done so.

41.  Mr Bernard Man SC was regurgitating the test on possession in Powell v McFarlane (1979) 38 P & CR 452.  But Slade J was there dealing with possession, not animus which are different questions.  Although the learned judge decided in favour of the person claiming adverse possession on possession, the learned judge decided against the boy on animus.

42.  There is no evidence of any manifestation of intention to possess.  The case of Land Base does not even get off the ground.

Possession and animus

43.  Land Base made the fundamental error of equating factual possession with animus possidendi.  There is no justification, whether in law or in fact for such error.

44.  Land Base has failed on all the points above. It remains for me to deal briefly with the reliance by Land Base on the conduct of the (former) tenants of the Old Subsection 14 Building.

Conduct of the tenants of the Old Subsection 14 Building

45.  Ng Ian stated in §12 of his Affirmation as follows:

“In particular, the following sitting tenants had been using the Disputed Area in the manner and for such periods set out below which usages were inconsistent with mere right of way and demonstrated a clear intent to possess to the exclusion of the Plaintiffs.”

Such submission makes 2 major errors.

(1) It mistook user as possession, see §35 above.

(2) Animus possidendi requires exclusion of the world at large, including the paper owner, not just exclusion of the paper owner.

46.  Unfortunately, there seems to be a growing trend for Order 41, rule 5 of the Rules of the High Court, Cap 4A, to be ignored instead of being complied with.  The Rule provides that:

“ (1) Subject to Order 14, rules 2(2) and 4(2), to Order 86, rule 2(1), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof.”

47.  Subject to exceptions which are not applicable in this case, an affidavit may contain (a) only (b) facts (c) from the deponent’s own knowledge.

48.  This is the trial of the Originating Summons and is not an interlocutory proceeding.  In any event, hearsay evidence must state the sources and grounds of information and belief.

49.  Evidence in relation to (former) tenants was contained in the Affirmation of Ng Ian.  Ng Ian’s evidence is in breach of all the requirements referred to in §§47 and 48 above.

50.  Ng Ian’s evidence is plainly hearsay or irrelevant.  The Cut‑Off Date is 21 November 2002.  Ng Ian did not become a director of Land Base until 18 October 2005 and came to be in charge of the L’Hart development.  Land Base was only incorporated on 16 March 2004.  The preliminary sale and purchase agreement for the acquisition of Subsection 14 was dated 20 April 2004.  16 March 2004, 20 April 2004 and 18 October 2005 were all after the Cut-Off Date.  There is no allegation that Ng Ian had any personal knowledge of the conduct of the (former) tenants before the Cut-Off Date.  Such evidence as Ng Ian purported to give is inadmissible hearsay.

51.  As the matters deposed to were after the Cut-Off Date, they were irrelevant and were mere red herrings:

(1) Lead Profit’s tenancy was from 1 November 2002 to 31 October 2005.  The period from 1 to 21 November 2002 was before the Cut-Off Date.  The photograph shows the “shop front”.  It has nothing to do with the Disputed Land.  Evidence on “the entrance to the Back Staircase” was as “at the time of Acquisition” which was after the Cut-Off Date. Further, “entrance to the Back Staircase” was on Government Land (see §4 above).

Ng Ian asserted at the end of §12(a) of his Affirmation that:

“I verily believe that the Ramen Shop had been utilizing the said area for such purposes since 1 November 2002 with the consent and endorsement of its landlord, i.e. the date of commencement of the Tenancy Agreement”

• Ng Ian’s belief is not relevant and not admissible.

• If it purports to be hearsay, it is not admissible. 

• Usage with “consent and endorsement” is usage with consent (i.e. as of right), not possession as of wrong.

(2) Ng Ka Tung’s tenancy was for 3 years from 1 June 2003.

(3) Wave Salon’s tenancy was from 1 September 2003 to 31 August 2005.

(4) L’Plus Limited / Workshop’s usage of the signboard was as “at the time of acquisition”.

(5) Advertising posters or decorations—the photographs exhibited by Ng Ian are said to be taken “Around 10/2005”, i.e. after the Cut-Off Date.

52.  Ng Ian’s Affirmation also contained submissions. Submissions have no place in affidavit evidence.

53.  Even if hearsay evidence were admissible, Ng Ian did not state the sources or grounds of his information and belief.  Hearsay evidence from Ng Ian is conspicuous in the lack of pertinent particulars.  A stark example is §13 of Ng Ian’s Affirmation where he asserted that:

“Hence, my understanding and impression from the former owner, occupiers and tenants of Subsection 14 at the time of Acquisition was that Land Base could continue using the Disputed Area to the exclusion of the whole world including the Plaintiffs.”

At the risk of repeating myself, this was permission to use (thus as of right), not possession as of wrong.

Conclusion

54.  Land Base fails in establishing adverse possession.  Judgment should be entered in favour of Ps.  Ps and Land Base agreed that costs should follow the event.

Orders by court

55.  The Orders I make are:

(1) A declaration that the 1^st and 2^nd plaintiffs are, inter alia, co-owners of the area which is identified and coloured blue in the plan (“the Blue Area”) annexed to the Indenture of Assignment dated the 9^th day of March 1955 and registered in the former Land Office by Memorial No. 233459 on the 16^th day of March 1955, enclosing the remains of a staircase and lands erected on the land registered in the Land Registry as THE REMAINING PORTION OF SUB-SECTION 15 OF SECTION A OF INLAND LOT No. 2836 (the “Subject Land”);

(2) A declaration that any right of way over the Blue Area in favour of the defendant, as owner of and for all purposes connected with the use and enjoyment of the adjoining property registered in the Land Registry as THE REMAINING PORTION OF SUB-SECTION 14 OF SECTION A OF INLAND LOT NO. 2836, have been extinguished;

(3) A declaration that the plaintiffs are entitled to pull down and remove or cause to be pulled down and removed the metal boarding, and all other structure(s) or object(s) erected on or placed at the Subject Land and/or the Blue Area by the defendant, its servants, nominees, agents or licensees;

(4) An Order for vacant possession of the Blue Area; and

(5) The defendant do pay the plaintiffs the costs of these proceedings, to be taxed, if not agreed, with certificate for 2 counsel.

  

  

HCMP 3074/2014

MISCELLANEOUS PROCEEDINGS NO 3074 OF 2014

______________________

______________________

______________________

_________________

D E C I S I O N
_________________

1.  By a summons dated 7 October 2015, the defendant seeks directions for two further issues to be dealt with by the single joint expert that has been appointed pursuant to the decision of this court dated 21 August 2015.

2.  The two proposed issues are:

“a. whether the residual plot ratio on Subsection 15 (if any) could be considered a safety margin in the design stage of Kyoto Plaza as a matter of general practice; and [which I will refer to as “the Safety Margin Issue”]

b. whether the floor area of the Subsection 15 Staircases was (and if not, whether it should have been) included in the calculation of the Gross Floor Area in the building plan of Kyoto Plaza as part of Subsection 15, and if it had been included, whether the permissible plot ratio of the Kyoto Plaza development had been exceeded [which I will refer to as “the GFA Issue”)]; …”

3.  The parties are not in serious dispute as to how the court should approach the question of expert evidence. 

4.  The evidence must be relevant in the sense that it is helpful to the court in arriving at its decision on the issues to be resolved.  The parties refer to Wong Hoi Fung v American International Insurance Company (Bermuda) Ltd [2002] 3 HKLRD 507, paragraphs 11 and 12:

“11. …. Where the proposed expert evidence is plainly inadmissible or irrelevant, the court ought to exercise its discretion to refuse the admission of such evidence. But where the court cannot form a clear view on the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at the trial….

12. In deciding whether certain proposed expert evidence should be received, the relevant test has been stated to be a two-stage one. Firstly, the evidence has to be admissible as "expert evidence" for the purpose of section 58 of the Evidence Ordinance, Cap.8. Secondly, the evidence must be relevant, in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved, Barings plc (in Liquidation) & Anor v. Coopers and Lybrand & Ors, Lexis Transcript, 9 February 2001, Evans-Lombe J at paras.44-45.”

5.  The court is also reminded of its case management powers set out in the judgment of Fung Chun Man v Hospital Authority, HCPI 1113/2006 (24 June 2011) at paragraphs 9‑11”

“9. The enactment of the CJR did not result in a change to O.38, r.36 of the Rules of the High Court (‘RHC’). However, after the enactment of the CJR, it is clear that the court’s discretion, whether or not to grant leave to a party to adduce expert evidence, is to be exercised within the ambit of the court’s management powers. Those powers must be exercised in the light of the underlying objectives of the CJR, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

10. The courts recognise that the primary aim of its case management powers is to secure the just resolution of the dispute in accordance with the substantive rights of the parties. However, the substantive rights of the parties to a personal injury action do not include a legal right to call experts of their choice.

11. The expert evidence can only be adduced with leave of the court and, in deciding whether or not to grant leave, the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR.”

6.  I respectfully adopt the approach laid down in Wong Hoi Fung, bearing in mind the principles of how the court should exercise its case management powers.  I would supplement that where the court cannot form a clear view on the relevance of the expert evidence and nonetheless grant leave for such evidence to be adduced at the trial, it is open to the court to make an order that costs relating to such expert evidence be borne by the applying party irrespective of the outcome of the case if it turns out at the end of the trial that such expert evidence is irrelevant or immaterial.  It is not uncommon that the utility of the expert evidence would only be clear at the trial.  Hence, if such expert evidence turns out to be of no utility, parties seeking to adduce it should bear the costs associated with it.  In considering the matters below, I bear in mind the above principles and approach.

7.  The defendant filed its submissions on 22 October 2015, the plaintiff objected to the application and made submissions on 27 October 2015, followed by a reply submissions by the defendant on 30 October 2015. 

8.  Insofar as the Safety Margin Issue is concerned, the parties are effectively in agreement that the derivation of the residual plot ratio will be part of the analysis that will have to be conducted by the single joint expert in addressing the first expert issue that has already been directed in the court’s decision on 21 August 2015.  It is therefore, the plaintiff said, redundant. 

9.  The plaintiff argued that by the time of the defendant’s redevelopment, any remaining plot ratio would have been available to be used by the defendant.  As such, it contends that the “safety margin” represented by the unused plot ratio was irrelevant at that stage since, by that time, any “safety margin” issue would have lapsed even if it had existed at the time when the Subsection 15 was developed by the plaintiff. 

10.  It would not be right for this court to form any view on this observation or argument of the plaintiff.  However, given that there does not seem to be any dispute that in dealing with the first expert issue set out in paragraph 21(II)(7)(a) of this court’s decision dated 21 August 2015, the residual plot ratio will be calculated, there can be no real objection for the expert to identify such residual plot ratio on Subsection 15 (if any). 

11.  However, I am not content as to whether it should be described as “a safety margin” in the design stage of Kyoto Plaza.  The proposed Safety Margin Issue also includes reference to “general practice”, a matter which I find is not relevant to the issues here.  The single joint expert has been engaged to look specifically at the plot ratio referable to the area of Subsection 15 Staircases, and in so doing, it may be able to identify whether there is any residual plot ratio on Subsection 15.  It is irrelevant as to whether it was actually designed as “a safety margin” but whether in fact there was such a residual plot ratio.  In the premises, insofar as the Safety Margin Issue is concerned, this court is only prepared to grant leave to deal with the issue as framed: Whether there is any residual plot ratio on Subsection 15, and if so, what is its magnitude?

12.  As to the second issue, the GFA issue, I am not convinced that it is relevant to the issue in dispute between the parties.  The plaintiff is right in contending that the Buildings Authority has approved the building plan for Kyoto Plaza, and issued occupation permit.  The fact that it has been raised in Mr Ng’s affirmation as something that he was “given to understand” is neither here nor there.  To embark on an intention, purported to have been reflected by the submission of the building plan is, as submitted by the plaintiff, a new assertion made by evidence in reply. 

13.  It is not a matter for the single joint expert in this case to ascertain whether the developers of Kyoto Plaza had acted properly or correctly in calculating the GFA and in submitting the relevant plans showing the plot ratio referable to the development at the time.  Those plans have been approved and not in issue here. 

14.  I am also not persuaded that the GFA Issue would show the plaintiff's understanding as to whether they were in possession of the Disputed Area after Kyoto Plaza was built.  The approved building plan will show what the consultants have done and what has been approved.  Even if it were to be said to manifest the plaintiff's intention, which, I do not accept, it is the intention of the defendant claiming adverse possession that matters.

15.  For these reasons, the GFA issue is irrelevant and no leave is granted for it.

16.  Given that this application goes to the further conduct of the proceedings, and the parties each succeeded partially, I would make an order nisi that costs be in the cause.

HCMP 3074/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3074 OF 2014

______________________

______________________

______________________

________________________

D E C I S I O N

________________________

1.  The originating summons was filed on 21 November 2014. Two affidavits were filed on behalf of the plaintiffs by Leung Mei Sze on 21 November 2014 and 9 April 2015. The defendant filed two affidavits of Li Kit Hung and Ng Ian on 10 February 2015.

2.  The notice of appointment to hear the originating summons was heard on 29 April 2015 where the court directed that the question of whether these proceedings should proceed as if begun by writ be adjourned for argument, which matter is now before this court.

3.  The question for this court is whether this originating summons proceedings should continue as if begun by writ, or whether there should simply be directions for oral evidence and cross‑examination. 

4.  The relevant provisions empowering the court to deal with such applications are set out in Order 28, rules 4 and 8, which provide:

“Directions, etc., by Court (O.28, r.4)

…

     (2) In any case where the Court does not dispose of any originating summons altogether at a hearing or order the cause or matter begun by it to be transferred to a District Court or some other court or makes an order under rule 8, the Court shall give such directions as to the further conduct of the proceedings as it thinks best adapted to secure the just, expeditious and economical disposal thereof.

     (3) Without prejudice to the generality of paragraph (2), the Court shall, at as early a stage of the proceedings on the summons as appears to it to be practicable, consider whether there is or may be a dispute as to fact and whether the just, expeditious and economical disposal of the proceedings can accordingly best be secured by hearing the summons on oral evidence or mainly on oral evidence and, if it thinks fit, may order that no further evidence shall be filed and that the summons shall be heard on oral evidence or partly on oral evidence and partly on affidavit evidence, with or without cross-examination of any of the deponents, as it may direct.

     (4) Without prejudice to the generality of paragraph (2), and subject to paragraph (3), the Court may give directions as to the filing of evidence and as to the attendance of deponents for cross-examination and any directions which it could give under Order 25 if the cause or matter had been begun by writ and the summons were a case management summons under that Order. (L.N. 152 of 2008)

     (5) The Court may at any stage of the proceedings order that any affidavit, or any particulars of any claim, defence or other matters stated in any affidavit, shall stand as pleadings or that points of claim, defence or reply be delivered and stand as pleadings. (L.N. 404 of 1991)

…

Continuation of proceedings as it cause or matter begun by writ (O.28, r.8)

     8.—(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.

...”

5.  As this is a case management issue, the court should have regard to the objectives of the Civil Justice Reform set out in Order 1A, rule 1:

“1. Underlying objectives

The underlying objectives of these rules are-

(a) to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court;

(b) to ensure that a case is dealt with as expeditiously as is reasonably practicable;

(c) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;

(d) to ensure fairness between the parties;

(e) to facilitate the settlement of disputes; and

(f) to ensure that the resources of the Court are distributed fairly.

6.  Similar questions were considered in other proceedings and the courts have, depending on the circumstances of each case, made orders appropriate to the matter at hand.  The principle and practice adopted can be seen from the following decisions. 

7.  In Li Fung Kai v Fung Sau Lin, HCMP 919/2013, 3 September 2013, DHCJ M Ng held at paras 40 to 44:

“40. Under Order 28 rule 8 (1) of the RHC, the court has power to order originating summons proceedings to continue as if the cause or matter had been begun by writ where it appears to the court at any stage of the proceedings that the proceedings should be so continued. The onus is on the applicant to show it will be just and convenient to make the order.

41. The main reason for originating summons proceedings to be so continued as if begun by writ is that there can be shown on the available evidence genuine and/or substantial issues of fact. In Shum Wah Ming v The Estate of Chen King Ngo, deceased & anor, Cheung J reminded that originating summons procedure was not and was never intended to be a short-cut to resolve disputes which could only be properly dealt with in a writ action. Mayo JA accepted there was no hard and fast principle concerning what cases could properly come within the ambit of Order 28 of the RHC, it was nonetheless necessary to consider whether there were significant factual issues requiring determination, and if there was it would be inappropriate to resort to the originating summons procedure.

42. But continuing the originating summons procedure as if the cause or matter had been begun by writ is not the only way forward where there are factual issues. Order 28 rule 4 of the RHC provides as follows:

‘(2) In any case where the Court does not dispose of any originating summons altogether at a hearing or order the cause or matter begun by it to be transferred to a District Court or some other court or makes an order under rule 8, the Court shall give such directions as to the further conduct of the proceedings as it thinks best adapted to secure the just, expeditious and economical disposal thereof.

(3) Without prejudice to the generality of paragraph (2), the Court shall, at as early a stage of the proceedings on the summons as appears to it to be practicable, consider whether there is or may be a dispute as to fact and whether the just, expeditious and economical disposal of the proceedings can accordingly best be secured by hearing the summons on oral evidence or mainly on oral evidence and, if it thinks fit, may order that no further evidence shall be filed and that the summons shall be heard on oral evidence or partly on oral evidence and partly on affidavit evidence, with or without cross-examination of any of the deponents, as it may direct.

(4) Without prejudice to the generality of paragraph (2), and subject to paragraph (3), the Court may give directions as to the filing of evidence and as to the attendance of deponents for cross-examination and any directions which it could give under Order 25 if the cause or matter had been begun by writ and the summons were a case management summons under that Order.

(5) The Court may at any stage of the proceedings order that any affidavit, or any particulars of any claim, defence or other matters stated in any affidavit, shall stand as pleadings or that points of claim, defence or reply be delivered and stand as pleadings.’

43. It is plain from the above that it is permissible to receive oral evidence to resolve disputed issues of fact in originating summons proceedings. What the court has to consider is “whether the just, expeditious and economical disposal of the proceedings can … best be secured by hearing the summons on oral evidence or mainly on oral evidence”. Order 28 rule 4 (4) of the RHC enables the court to give directions for the attendance of deponents of affidavits/affirmations for cross-examination. In Ye Hong-ying v Chan Lup-ying, such procedure was adopted since it was not desirable in the context of that case to significantly delay the resolution of the dispute by ordering that the proceedings should continue as if they had been begun by writ under Order 28 rule 8 of the RHC.

44. Bearing in mind the above principles, in considering the Summons, the first question is whether there are conflicting affirmations from the parties that raise substantial factual disputes that require oral evidence or trial. The observations of Deputy Judge A To (as he then was) in Ip Kam Wah & anor v Fair City Group Ltd are pertinent to such question:

‘8. I accept that, unlike the plaintiff in an O.14 application, the plaintiff in an originating summons procedure bears the burden of proof. When faced with conflicting affidavits from both parties, the court will be failing in its duty if it should take the assertions in the affidavits on their face value in isolation and jump to the conclusion that there is a triable issue without first considering whether the assertions in the affidavits are believable. I bear in mind the test laid down by Bokhary JA (as he then was) in Re Safe Rich Industries Ltd (unrep., Civ App No 81 of 1994, [1994] HKLY 183) that whether the assertions are believable is a question to be answered not by taking the assertions in isolation but by taking them in the context of so much of the background as was either undisputed or beyond reasonable dispute. In an originating summons procedure, it is only when the court is satisfied after having undertaken that exercise that factual disputes could not be resolved on affidavit evidence that oral evidence or trial should be considered.’” (Original emphasis)

8.  In EmpireTrend Enterprises Ltd v Double Mind Company Ltd, HCMP 2425/1998, 23 March 1999, Burrell J observed at page 4:

“… The trial Judge will hear the same witnesses and be apprised of the same issues and make the same judgement regardless of the procedure employed to get the matter before the Court. …”

9.  In Ye Hong-ying v Chan Lup-ying [1996] 1 HKLR 255 at page 258F‑I, the court held:

“Disputed Facts

     It is common ground that the outcome of the application for reasonable provision for maintenance depends on a number of facts which are in dispute. But that does not necessarily render the originating summons procedure inappropriate. Ord. 28 r. 4(3) permits the resolution of disputed issues of fact on the hearing of the originating summons. What the Court has to consider is

‘whether the just, expeditious and economical disposal of the proceedings can ... best be secured by hearing the summons on oral evidence or mainly on oral evidence,’

Indeed, Ord. 28 r. 4(4) enables the Court to give directions for the attendance of deponents of affidavits or affirmations for cross-examination.  As it is, on 8th January 1996, Patrick Chan J. ordered the deponents of all affirmations or affidavits to attend the hearing of the application for cross-examination, as well as making orders for mutual discovery and inspection, upon the assumption that the Court would eventually decide to permit the proceedings to continue by way of the originating summons procedure.”

10.  The court should first consider whether there are disputes on fact.  The defendant has prepared a list of factual issues in paragraph 12 of its submissions dated 11 August 2015.  The plaintiffs have also provided a list of factual and expert issues in its letter dated 12 August 2015.  Both parties agreed that the deponents should be cross-examined.

11.  It is noteworthy that the parties are able to discern the core issues in dispute in this matter from the affidavit evidence and they are not dissimilar.  Some may be better classified as issues of law, but these are matters that the trial judge will have to decide.  The main purpose and utility of any pleadings is to identify the issues that the court has to decide and to limit the parties to the pleaded issues in the case.  Given that the parties are able to list out the issues here, I am not persuaded that there is a need for a set of pleadings to be filed in this case. 

12.  It is true that originating summons procedures should not be adopted where there are serious disputes on fact.  However, in this case, the disputes on fact are comparatively narrow based on the evidence that have been filed.  It is the interpretation of such facts on the plea of adverse possession that is the main contention between the parties.  These are matters that can be dealt with by submissions.

13.  The defendant contends that one of the purposes of the pleadings is that general discovery would follow after the close of pleadings.  I have not been told what discovery the defendant is contemplating given the extent of evidence that have been filed.  In any event, Order 24, rule 3(1) allows discovery to take place in an originating summons procedure.  If and when an application is made, the court will have the power to deal with it. 

14.  The power to be exercised here is one of case management power.  The underlying objectives of the rules are set out in Order 1A.  The exercise of the case management power has to have these objectives in mind when considering the degree of difference in the factual disputes, the need for such affidavit evidence to be tested by cross‑examination (which is not in dispute here), the clarity of the issues that can be discerned from the evidence filed, and the just, expeditious and economical disposal of the proceedings before the court.

15.  Given the stage of the proceedings and that the evidence filed thus far have already crystallised the factual issues in dispute as identified by both parties, I am not persuaded that the action should continue as if begun by writ as contended by the defendant with directions for pleadings and discovery.  That would result in a wastage in costs and time which is not in line with the underlying objectives of the Rules of the High Court.  I would therefore give directions for the further conduct of this matter pursuant to the powers conferred on this court under Order 28, rule 4.

16.  Mr Mok SC, for the plaintiffs, submits that expert evidence is required and proposed three issues for the expert.  Mr Man SC, for the defendant, accepts that expert evidence would be required for the issue on the calculation of plot ratio but not the other two issues.  On balance, I am persuaded by the plaintiff to allow expert evidence for all three issues.  Whilst the interpretation of the Buildings Ordinance is a matter of law, the plaintiffs said that they would also like the experts to opine on the practice regarding consent for demolition works and erection of enclosures during such works.  The two other issues are very narrow and on balance I would allow expert evidence to be adduced on them.

17.  I have heard submissions of the parties on the use of a single joint expert under Order 38, rule 4A so as to reduce time and costs and to better assist the trial judge.  Given the narrow scope of the expert issues identified, I am satisfied that this is a case where a single joint expert should be appointed by both parties to provide an opinion on the three issues. The framework of the procedures to be adopted for the appointment and provision of expert evidence by the single joint expert is set out in rule 4A and the specific directions for this case are set out below. 

18.  As to the length of the hearing, and to err on the side of caution, I have directed that there should be a 5‑day hearing.  Subject to the directions to the contrary by the trial judge, it is expected that the 5‑day reserved would be adequate for the closing submissions to be made within that time frame. 

19.  I have given parties liberty to apply. 

20.  Costs should be in the cause as this is a case management hearing and I so order. 

21.  In the premises, I direct as follows:

(I) Factual evidence

(1) The defendant is given leave to file affirmation in reply within 28 days from the date of this Order to reply to two new allegations raised in paragraphs 7 and 13(a) of the 2^nd Affirmation of Leung Mei Sze.

(2) No further affirmation will be allowed except with leave of the court.

(3) The deponents of the affirmations shall attend the hearing for cross‑examination.

(4) The affirmations filed shall stand as evidence‑in‑chief of the deponents when they attend court to be cross‑examined.

(5) No supplemental oral evidence‑in‑chief will be permitted except with leave of the court.

(6) The affirmation evidence of deponents who do not attend court to be cross‑examined will not be admitted as evidence except by agreement of the parties or with leave of the court.

(II) Expert evidence

(7) There be leave for expert evidence to be adduced to deal with the following three issues:

(a) Whether Kyoto Plaza has used up the plot ratio referrable to the area of the Subsection 15 Staircases?

(b) Whether the defendant’s reinforcement and enclosure of the Subsection 15 Staircases during the period between 2006 and 2008 was for the purpose of compliance with building and construction practice and building regulations?

(c) Whether as a matter of building and construction practice, the Building Authority would require to obtain the consent of the plaintiffs before seeking to demolish the Subsection 15 Staircases situate on the plaintiffs’ land?

(III) Single joint expert

(8) The parties do try and agree a single joint expert to be appointed within 14 days of the date of this order.

(9) If no agreement can be reached for a single joint expert to be appointed:

(a) Within 7 days of the expiration of the 14 days set out in Direction (8) above, each party shall provide three names to the court together with their CV, terms of appointment, statement of willingness to accept appointment if made, and a declaration of impartiality and independence.

(b) Each party may within 3 days of receipt of the opposing party’s list make submissions on the suitability of the other side’s proposed experts and in particular whether there is any conflict of interest.

(c) This procedure shall be dealt with on paper only.

(d) The court shall appoint the single joint expert based on the lists and submissions of the parties.

(10) The parties shall prepare a Joint Instructions to be sent to the single joint expert setting out the three issues to be dealt with together with copies of the plans and documents necessary for him to provide his opinion.  The Joint Instructions shall be sent to the single joint expert as soon as he is appointed.

(11) There shall be no unilateral communication between the single joint expert and any party or legal representatives to the proceedings. 

(12) Any communications with the single joint expert must be copied simultaneously to the other party.

(13) The single joint expert shall provide a report on the three issues within 28 days of the date of his appointment, or such extended period as may be agreed by the parties and approved by the court.

(14) The single joint expert shall attend the hearing to answer questions that may be raised by the parties relating to his report. 

(15) The fees of the single joint expert shall initially be borne by both parties in equal share and will be dealt with as part of the costs of the proceedings in due course.

(V) Hearing dates

(16) The matter be set down for a hearing with 5 days reserved and to be fixed in consultation with counsel’s diary. 

(17) There be liberty to either party to apply.

(18) Costs of this application be in the cause.