Personal Injury
The SJE Mandate vs. The Right to a Second Opinion: Navigating the 2026 Jurisprudence of Wong Yan Kwok and Chow Chi Yi
The use of Single Joint Experts (SJE) has become a cornerstone of civil litigation in Hong Kong following the Civil Justice Reform. While the goal is cost-effectiveness and efficiency, recent decisions from the High Court and District Court offer critical guidance on when the Court will insist on an SJE—and crucially, when a party can successfully argue for a “second opinion.”
In this update, we analyze two key decisions from March 2026: Wong Yan Kwok Henry v Lok Chi To [2026] HKCFI 1524 and Chow Chi Yi v Poon Tak Lun [2026] HKDC 502. We then provide our strategic insights on how to navigate this evolving landscape.
Part 1: HCPI 64/2025 – Wong Yan Kwok Henry v Lok Chi To
The High Court Clamps Down on Tactical Avoidance of SJEs
Fact
The Plaintiff claimed over HK$33 million against a dentist for alleged negligence spanning 17 years, resulting in severe anxiety and total loss of earnings. The Plaintiff sought to rely solely on reports from his treating clinicians, arguing that a separate independent SJE on quantum was unnecessary and costly.
Crucially, despite a court direction at a Checklist Review to address the SJE issue via a joint letter, the Plaintiff’s solicitors unilaterally wrote to the Court opposing an SJE, preferring their own “solo” experts.
Ruling (Hon Leung J)
His Honour Judge Leung reaffirmed the primacy of the SJE regime, particularly in high-value PI claims:
• Admissibility of Treating Doctor Reports: The Court clarified that reports from treating doctors are evidence of the fact of treatment. They are not readily admissible as independent expert opinion for the purpose of assessing complex quantum (e.g., lifelong care). The Defendant is entitled to challenge the diagnosis with independent evidence.
• Procedural Conduct: The Court expressed strong disapproval of the Plaintiff’s solicitors ignoring the order for a joint submission. The judgment serves as a reminder that a solicitor’s overriding duty is to the Court, and they cannot bypass procedural orders simply because a client prefers a different tactical route.
• Complexity vs. Value: The Court held that a large claim (HK$33m) does not automatically justify separate experts. Given the Plaintiff’s own medical records described him as “rational and cooperative,” the issues were not deemed sufficiently complex to bypass the SJE route.
Key Takeaway: For high-value claims, the Court will not allow Claimants to “hide” behind treating doctor notes. Parties must justify an SJE departure based on the technical complexity of the issue, not the size of the payout.
Part 2: DCCJ 3293/2023 – Chow Chi Yi v Poon Tak Lun
The District Court Draws the Line: When a “Second Opinion” is Justified
Fact
In a water seepage dispute at Whampoa Garden, an SJE (Surveyor) concluded the leak originated from the Defendant’s unit. The Defendant argued the SJE failed to consider the external wall/rainfall as a source. When the Defendant sought leave to adduce his own expert report (a “second opinion”), the Plaintiff appealed.
Ruling (DDJ Kenneth K H Lee)
The Court dismissed the appeal, allowing the Defendant to adduce his own expert evidence based on the following:
• The Legal Threshold: While Daimler AG v Leiduck provides the “overall justice” framework, the Court applied the Cosgrove v Pattison factors. It emphasized that there is no rigid “fanciful” test; rather, the Court must balance the need for a fair trial against the goal of cost-saving.
• The “Fatal” Methodology Flaw: The SJE had noted the Defendant’s theory regarding moisture timing (higher readings after rain) but dismissed it solely because no water spray test was performed. The Court found this to be a failure of analysis—the SJE had given “no answer at all” to a central piece of technical evidence.
• Trial by Expert: Forcing a party to proceed with a report that contains a demonstrably illogical gap on a central issue creates an unjust risk of “trial by expert.”
Key Takeaway: A party seeking a second expert must identify a specific, logical gap in the SJE’s methodology. Mere disagreement is not enough, but ignoring relevant data is a “fatal” flaw that opens the door for a second opinion.
Comments
These judgments provide a clear roadmap for our 2026 litigation strategies:
1. Scrutinize the “Treating Doctor” Trap
We advise insurers and defendants to move early against Plaintiffs relying exclusively on treating clinicians. We will use the Wong Yan Kwok principle to press for SJE directions under O.38 r.4A.
• Tactical Tip: One should look for “favorable” descriptions in the treating notes (e.g., “patient is alert/rational”) to argue that the medical issues are straightforward and suitable for a single expert assessment.
2. The “Forensic Audit” of SJE Reports
When an SJE report is adverse, one does not just “disagree.” One should conduct a forensic audit to find a Chow Chi Yi style flaw. Did the expert ignore a specific test result? Did they dismiss an alternative theory without a technical reason? Identifying these “logical gaps” is the key to challenging the report—but the available remedy depends on the nature of the case:
• For non-PI disputes (e.g., water leakage, building defects): A sufficiently serious logical gap may justify an application for permission to adduce a second expert opinion under the Cosgrove v Pattison framework. The Court will weigh overall justice against cost efficiency.
• For Personal Injury (PI) claims: The Court is far less willing to permit a second expert. Instead, the remedy is judicial rejection. We make focused submissions to the Judge, highlighting the logical gaps in the SJE’s reasoning, to persuade the Court to depart from the SJE’s opinion and make its own findings based on the remaining evidence (or conclude that the Plaintiff has failed to discharge its burden of proof on that specific issue).
3. Avoid the “Scattergun” Cost Penalty
Clients must be aware of cost risks. In Chow Chi Yi, the successful Defendant was only awarded 50% of their costs because they raised multiple unsuccessful criticisms alongside their one winning point. The strategy is to be forensic and focused—identifying the “killing point” rather than diluting the argument with minor grievances.
4. Proactive Instructions
It is recommended to draft SJE instructions in more granular way, forcing the expert to engage with specific technical theories from the outset. This “bottles” the expert into a logic path that is easier to challenge if they later attempt to gloss over inconvenient data.
Conclusion
The landscape of expert evidence in Hong Kong is maturing. Our firm remains at the forefront, ensuring that our clients benefit from a strategy that balances the efficiency of the SJE regime with the fundamental right to a fair and technically sound trial.