Eagle Merchant Bank of Jamaica Ltd and Crown Eage Life Insurance Company Ltd v Paul Chen Young et Al (No 1)

• Jurisdiction: Jamaica
• Judge: ANDERSON: J.
• Judgment Date: 19 May 2003
• Judgment citation (vLex): [2003] 5 JJC 1901
• Court: Supreme Court (Jamaica)
• Date: 19 May 2003

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. C.L. 1998/E. 095

BETWEEN

EAGLE MERCHANT BANK OF JAMAICA LTD.

1 ^ST PLAINTIFF

AND

CROWN EAGLE LIFE INSURANCE CO. LTD

2 ^ND PLAINTIFF

AND

PAUL CHEN-YOUNG

1 ^ST DEFENDANT/ ANCILLARY CLAIMANT

AND

AJAX INVESTMENTS LIMITED

2 ^ND DEFENDANT

AND

DOMVILLE LIMITED

4 ^TH DEFENDANT

AND

DAISY M. COKE

ANCILLARY DEFENDANT

AND

OSWALD G. HARDING

ANCILLARY DEFENDANT

AND

BRIAN GOLDSON

ANCILLARY DEFENDANT

AND

GEOFFREY MESSADO

ANCILLARY DEFENDANT

AND

GEORGE BARRTNGTON JOHNSON

ANCILLARY DEFENDANT

AND

DERRICK MILLING

ANCILLARY DEFENDANT

AND

STANLEY MOORE

ANCILLARY DEFENDANT

AND

PATRICK HYLTON

ANCILLARY DEFENDANT

AND

ROSEMARIE MORGAN

ANCILLARY DEFENDANT

^st

^nd

CIVIL PROCEDURE - Expert evidence - Application to exclude expert evidence - Hearsay rule - Whether the expert evidence falls under the hearsay rule - Civil Procedure Rules, Rule32.3

ANDERSON: J

1 On May 19, 2003, after hearing submissions on applications to exclude the expert witness report of Edward Avey, prepared on the instructions of the claimants herein, I ruled that the report would not be excluded. I indicated at that time that I was putting my reasons in writing and would provide these in due course. In fulfillment of that undertaking, I now provide my written judgment in respect of the applications.

2 At a re-convened Pre-Trial Review held on May 2 ^nd 2003, the Applicants in these applications, that is the first, second and fourth defendants in this action (hereafter referred to as "the Applicants") indicated that they may wish to apply for an order to exclude the Expert Witness Report which had been ordered pursuant to an application at the Case Management Conference held before Her Ladyship Mrs. Norma Mcintosh J, on the 18th day of March 2003. At the Case Management Conference, the learned judge had granted an application that Mr. Edward Avey produce an expert witness report for the purposes of the trial. After considering the other matters to be settled at the Pre-Trial Review, I indicated that I would be prepared to hear such an application in. Chambers on Monday May 5 ^th 2003. The applicants also indicated that, at that time, they might wish to make an application that they be allowed to call an expert witness or for permission to have an expert witness report prepared on their instructions. When the parties arrived on Monday May 5 2003, for the application, it became clear that the matter could not be dealt with on that day at a hearing commencing at 4:00 p.m. I then decided that I would hear the application on Monday May 12, 2003, the date upon which the substantive action was due to commence.

3 The application seeks the exclusion of the Expert Witness Report of Mr. Avey and also, in the application of the first defendant, seeks permission to "be allowed time to obtain and file Expert Witness Reports to be tendered for use at the trial, such Reports to be prepared by Mr. John Jackson and another Expert respectively".

4 The applications are in the following terms

• 1. That the Report of Edward Avey be excluded from being used in evidence at the trial

• 2. That the Applicant be allowed time to obtain and file Expert Witness Reports to be tendered for use at the trial, such Reports to be prepared by Mr. John Jackson and another Expert respectively.

5 The grounds upon which the applications are made are stated to be in the case of the first defendant/applicant

• (a) Contrary to the principles that an exception to the hearsay rule is permitted in relation to expert evidence only to the extent that:

  • i. the expert purports forgive evidence only of facts within his. own knowledge or opinions on evidence given by others;

  • ii. expert opinions may be expressed only upon matters within the experts area of expertise;

  • iii. such opinions are to assist the court, and not to usurp its functions;

    Mr. Avey's report:

  • iv. refers to and base's conclusions on documentation not put in evidence and proved by any of the witnesses of fact whose statements have been put in as evidence in chief, and to this extent amounts to inadmissible hearsay;

  • v. contains opinions and draws conclusions that are not within his area of expertise, and instead gives evidence on matters not within his personal knowledge;

  • vi. seeks to conclude the mixed issues of fact and law that are before the court, for it to decide, and therefore trespasses on the function of the Court, and to this extent cannot be regarded as expert evidence, as trial by expert is not permitted.

• (b) The report from Mr. Avey fails to comply with Rule 32.3 of the CPR in that in breach of the duty of an expert to help the Court on matters within his expertise (such duty overriding any obligation to the person from whom he has received his instructions and by whom he is paid) in accordance with. Rule 32.3 of the CPR:

  • (i) it seeks to pronounce upon matters of fact, of which Mr. Avey has no personal knowledge, and to draw from such matters of fact conclusions adverse to the interest of the Defendants, without any entitlement in law to do so, and is therefore manifestly not impartial;

  • (ii) Mr. Avey is a partner in a firm of forensic accountants retained by FINSAC Limited and/or the Government of Jamaica to investigate entities and individuals in connection with the collapse of portions of the financial services sector of the Jamaican economy, with a view to instituting criminal and civil proceedings against such entities, for which they are paid substantially, so that Mr. Avey and his firm have a deep and overriding interest, financial and otherwise, in the outcome of these proceedings,

  • (iii) Mr. Avey's firm was party to raiding the offices of Peat Marwick with a view to finding evidence to use against the Defendants in proceedings, and Mr. Avey cannot be an impartial, dispassionate expert.

• (c) The Report prepared by Edward Avey pursuant to the Order of This Honourable Court dated the 20 ^th day of March, 2003 and delivered to the Registrar on the 14 ^th day of April, 2003 fails to comply with the Supreme Court of Jamaica Civil Procedure Rules 2003 since:-

  • (i) the Report is not addressed to the Court in accordance with Rule 32.12 of the CPR;

  • (ii) the report does not contain a Statement of Truth

  • (iii) the report does not conclude with a statement that the Expert understands his duty and had complied with that duty in accordance with Rule 32.13(2)(a);

  • (iv) the report fails to disclose that it includes all matters within the witness's knowledge and area of expertise relevant to the issue on which the evidence is being given;

  • (v) the report fails to give details of any matters which might affect its validity;

  • (vi) the report fails to exhibit the substance of all material instructions whether written or oral as the basis on which it was written in summary or otherwise.

• (d) The Report prepared by Edward Avey pursuant to the Order of This Honourable Court dated 20 ^th March 2003 and delivered to the Registrar on the 14 ^th April 2003 fails to comply with the Supreme Court of Jamaica Civil Procedure Rules 2002 since:-

  • (i) it fails to give details of the expert witness's qualifications.

  • (ii) it fails to give details of any literature or other material which the expert witness has used in making the report.

  • (iii) It fails to summarise the range of opinions and give reasons for his own opinion.

6 In the case of the. second and fourth defendants/applicants,, the grounds of the application are stated to be as follows:

• 1. A. the report fails to comply with Rule 32.3 of the CPR in that:

  • i. it is the duty of an expert to help the Court on matters within his expertise and this duty overrides any obligation to the person from whom he has received his instructions and by whom he is paid in accordance with Rule 32.3 of the CPR.

  • ii. The Report is not impartial.

  • iii. The report is not objective as the witness is a "hired gun" employed to the Government of Jamaica in various and sundry matters involving a wholly-owned Government entity FTNSAC Limited and both Government and F1NSAC Limited have a deep and overriding interest, financial and otherwise, in the outcome of these proceedings.

• B. The Report prepared by Edward Avey pursuant to the Order of This Honourable Court dated the 20 ^th day of March, 2003 and delivered to the Registrar on the 14 ^th day of April, 2003 fails to comply with the Supreme Court of Jamaica Civil Procedure Rules 2003 since:-

  • (i) The Report is not addressed to the Court in accordance with Rule 32.12 of the CPR.

  • (ii) The report does not contain a Statement of Truth.

  • (iii) The report does not conclude with a statement that the Expert understands- his duty and has complied with that duty in accordance with Rule 32.13(2)(a).

  • (iv) The report fails to disclose that it includes all matters within the witness knowledge and area of expertise relevant to the issue on which the evidence is being given.

  • (v) The report fails to give details of any matters which might affect the validity of the report.

• C. The Report prepared by Edward Avey pursuant to the Order of This Honourable Court dated the 20 ^th day of March 2003 and delivered to the Registrar on the 14 ^th day of April 2003 fails to comply with the Supreme Court of Jamaica Civil Procedure Rules 2003 since:-

  • i. it fails to give details of the expert witness's qualifications.

  • ii. Give details of any literature or other material which the expert witness has used in making the report.

  • iii. Fails to summarise the range of opinions and give reasons for his own opinion.

• D. It is the duty of an expert to help the Court on matters within his expertise and this...