HONG KONG SAR, CHINA Law and Practice Contributed by: Gordon Chan
Consequences of Breaching the Rules Courts may draw adverse inferences against a par - ty that destroys or fails to preserve evidence. This could lead to the court assuming the missing mate - rial would have been unfavourable. Other sanctions include adverse costs orders. Hence, businesses should implement clear internal protocols to meet these expectations efficiently. 2.7 Rules for Disclosure of Documents in Product Liability Cases Generally, product liability claims follow the same civil procedure rules on document disclosure as other cas - es. These rules are set out in Order 24 of the Rules of the High Court. They promote fairness by requiring each party to share evidence relevant to the dispute so that both sides can prepare their case properly and not be ambushed at trial. The Automatic Discovery Process After pleadings close, each party must exchange a list of documents within 14 days. The list must include every relevant document that is or has been in the par - ty’s possession, custody or power. Relevance covers anything that could help prove or disprove an issue in the case or lead to further useful inquiries, even those that are damaging to one’s case. This duty continues throughout the proceedings, so parties must disclose any new relevant documents that come to light later. Documents Commonly Disclosed in Product Liability Cases Product liability disputes often involve technical and internal records. Typical items include design specifi - cations, manufacturing processes, safety test reports, quality control logs, customer complaints, and internal emails or memos discussing potential risks. Electronic records, data files and video footage also qualify as documents and must be listed. Inspection and Further Disclosure Once lists are exchanged, parties may inspect and copy non-privileged documents. If one side believes the disclosure is incomplete, it can apply to the court for an order for specific discovery of particular docu - ments or categories. The court is empowered to grant pre-action discovery and non-parties discovery, by sections 41 and 42 of the High Court Ordinance (Cap
4) in certain situations where the court considers it necessary for justice or to save costs. Consequences of Non-Compliance Under Order 24, rule 16, failure to fulfil the obligation can lead to serious sanctions. The court may dismiss the action or strike out the defence and enter judg - ment. Furthermore, any party who fails to comply with an order for discovery or production, or any solicitor who fails to give notice to a client, may even be liable to spend time in prison. 2.8 Rules for Expert Evidence in Product Liability Cases Product liability claims in Hong Kong frequently turn on technical questions that judges cannot resolve without assistance. Issues such as product design flaws, manufacturing defects, safety standards, or the link between a fault and resulting harm often require experts’ input. Legal Foundation Section 58 (1) of the Evidence Ordinance (Cap 8) pro - vides the basis for admitting expert opinion evidence in civil proceedings. It allows a person with the nec - essary knowledge or experience to give opinion evi - dence on any relevant matter falling within their exper - tise in technical, scientific, medical, or other fields. Court Oversight and Permission The procedural rules are set out under Part IV of Order 38. Parties must first obtain the court’s permission, usually at the case management conference, or secure agreement from all other parties. The court may direct the use of a single joint expert, limit the number of experts, or restrict the issues they address. Written expert reports should also be disclosed. Duties of Experts Experts owe an overriding duty to the court rather than to the party that instructs them. They must remain independent, objective and impartial at all times. Before their report can be adduced, experts must con - firm in writing that they have read and agree to follow the Code of Conduct for Expert Witnesses set out in Appendix D to the Rules of the High Court. Reports must state the expert’s qualifications, the facts and
176 CHAMBERS.COM
Powered by FlippingBook