Qing Li & Ors v Fan Demetris Yuan & Anor

HIS HONOUR JUDGE BAUMGARTNER:

1. Shortly after the trial closed on 28 November 2025, and by a written application notice dated 2 December 2025 and filed 4 December 2025 (the “Application” ), the Claimants sought permission to rely on a short further addendum report from Xiaoguang Xu, their expert in PRC law on the rules of construction under that law, dated 2 December 2025 (the “Supplemental Report” ), on a discrete issue arising out of Mr Xu’s evidence on Day 3 of the trial, commencing at page 110, line 4 of the transcript.

2. That evidence related to averments set out in an application by the Defendants to amend their Defence, served on 20 November 2025, i.e. , one working day before trial. The amendment raised a new defence to the First Claimants Mr Qing Li’s claim: that the jurisdiction clause in his agreements with the Defendants was unenforceable under PRC law because it referred to the “People’s Court of Baixia District”, a court which at the date of those agreements no longer existed. The amendment to the Defence was agreed to by consent and ordered by the Court on 28 November 2025.

3. Subsequent to and prompted by Mr Xu’s evidence, and without notice to the Claimants, Mr Xu undertook further research into the matters raised by the issue. As set out in the Supplemental Report, Mr Xu identified a series of PRC Court rulings which relate directly to the issue before this Court: how would the PRC Courts interpret a jurisdiction clause in the terms used in Mr Qing Li’s agreements with the Defendants. Mr Xu exhibits those rulings to the Supplemental Report.

4. A draft Application was sent by the Claimants’ solicitors to the Defendant’s solicitors under cover of a letter dated 2 December 2025, seeking the Defendants’ consent for the Claimants to rely upon the Supplemental Report. That consent was not forthcoming.

5. The Application was referred to me by the Court registry in papers sent to me on 10 and 11 December 2025. Having considered the Application on the papers, I refused the Claimants permission to rely upon the Supplemental Report and reserved my reasons for doing so until judgment on the trial issues. That judgment having been handed down earlier today, these are my reserved reasons in refusing permission.

6. The basis for the Application set out by the Claimants’ solicitors in their letter of 2 December is in accordance with the ongoing CPR 35 duty to assist the Court. The Claimants maintain such supplemental reports are envisaged by paragraph 66 of the Civil Justice Council’s Guidance for the Instruction of Experts in Civil Claims, which provides (emphasis added): “Where experts significantly alter their opinion, as a result of new evidence or for any other reason, they must inform those who instruct them and amend their reports explaining the reasons. Those instructing experts should inform other parties as soon as possible of any change of opinion.”

7. The Claimants’ position was that the late timing of the Supplemental Report was a result of the Defendants’ belated application to amend. This, however, was not such a case. In my judgment, Mr Xu had not changed his opinion significantly or otherwise. All Mr Xu did by the Supplemental Report was to add reference to cases which ultimately were unnecessary to the Court’s determination of the issue. The PRC Court rulings referred to by Mr Xu concerned the issue of jurisdiction clauses referring to a court that had merged as a result of a district change, including in relation to Baixia itself. This Court’s consideration of those rulings was unnecessary because: (a) the Court had before it all of the codified principles necessary to determine the enforceability of the Baixia jurisdiction clause; (b) the PRC is not a common law jurisdiction; it is a civil law jurisdiction in which case law is not precedent in the same sense as in common law jurisdictions (see, e.g. , Mr Jiang’s report, at paragraph 4.6.5); and (c) as I said in the judgment which I handed down earlier today, it is a question for this Court, not the experts, to determine the meaning of a contract (at [43], and [50]).

8. In my judgment, the Application did not flow from the amendment to the Defence. Although the Defendants’ application to amend was made on 20 November 2025, the amendment was grounded in a point to which the Claimants had been alive since their Particulars of Claim, where they positively asserted that the true court must be the one formed as a result of a merger with the Baixia District Court. Further, the issue was explained by Mr Zhang in the experts’ Joint Written Statement dated 14 October 2025, which records Mr Zhang’s position as follows (at p.5): “The guarantee contract designated the non-existent Baixia District Court (non-existent at the time of signing the contract) as the competent court, which violates the requirement that jurisdiction agreements must be clear, specific, and enforceable under Chinese law and practice. Hence, the clause has no binding effect. If at the time of filing, the competent court cannot be determined pursuant the jurisdiction agreement, jurisdiction shall be established based on other criteria under the civil procedure law—namely, the court of the defendant’s domicile or the place of contract performance.”

9. The point was also dealt with in Mr Miall’s skeleton argument dated 19 November 2025, at paragraphs 18 and 34, and in footnote 15.

10. In the event, the Claimants consented to the Defendants’ amendment application on the basis that Mr Xu could be examined-in-chief on these matters. He was. At no stage did the Claimants suggest that Mr Xu then have the opportunity to provide the Supplemental Report. And, in any event, by the time the Application issued it was far too late to adduce the Supplemental Report in evidence. The trial had concluded, and the parties had already examined Mr Xu’s evidence at trial. Whilst the Court has a discretion to admit evidence after the close of trial, this discretion is governed by principles based on fundamental rules: (a) that parties should bring their whole case before the Court; (b) that there should be finality in litigation; (c) which have regard to the overriding objective; and (d) of fairness and justice and of proportionality: see, e.g. , ACL Netherlands BV v Lynch [2023] EWHC 1847 (Ch) , at [15]-[16] per Hildyard J, where the learned judge said this: “15. The Claimants accepted that the well-known Ladd v Marshall principles were not directly applicable; but they relied on the fundamental principles underlying it and submitted that the admission of any further evidence after Trial should be governed by the principles applicable to any decision whether to admit new documentary evidence after the close of Trial, such principles being based on fundamental rules that (i) ‘parties should bring their whole case before the court’ and (ii) there should be finality in litigation. They cited a number of authorities for good measure, including Sainsburys v Mastercard [2020] UKSC 24 ; [2020] 4 All ER 807 (para.239); Foster v Action Aviation Ltd [2013] EWHC 2930 (QB) ; Heiser’s Estate v Iran [2019] EWHC 2073 (QB) ; and Re Southern Counties Fresh Food Ltd [2009] EWHC 1362 (Ch) . These authorities do illustrate and support the principles identified above, and the appropriate caution with which a Court should approach an attempt to introduce further evidence after Trial.

16. However, as Warren J pointed out in Re Southern Counties , the issue whether to admit further evidence after a long hearing has finished, is ‘very much a matter for the discretion of the court having regard to the overriding objective…’ (para.20), and in the end ‘the issues are ones of fairness and justice and of proportionality’. Mr Rabinowitz KC unhesitatingly accepted this, whilst urging me to have the principles adumbrated above in mind in exercising such discretion (as of course I accept I should).” In my judgment, it would not have been fair to admit further expert evidence from Mr Xu where the Defendants had not had the opportunity to cross-examine him on it. Moreover, it would have been disproportionate to reopen the trial or to have a further hearing just for that purpose. And even if the Supplemental Report had been admitted, in all fairness the Defendants’ expert Mr Zhang would had to have been permitted to provide expert evidence in response. That would have further extended the process, and added to the costs incurred after the trial had closed. That was not a course that I was prepared to countenance in the exercise of my discretion, having regard to the fundamental principles set out by Hildyard J in ACL Netherlands NV v Lynch .

11. It was for all those reasons that I refused the Application.