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26 November 2019
In an important and interesting judgment, the High Court declined to admit an overseas barrister, pursuant to Section 27(4) of the Legal Practitioners Ordinance (Cap 159), unless he appeared with a local barrister.(1) The applicant had applied for ad hoc admission to conduct a case in Hong Kong, on the basis that he would appear with the two solicitor advocates who had charge of the case. Therefore, they sought the removal of what is a usual condition to the grant of ad hoc admission – namely, that the applicant (an English Queen's Counsel (QC)) appear with a local barrister in order to enhance the cross-fertilisation of skills and experience between the two. Given the importance of the case generally, it will be interesting to see whether there is an appeal.
The applicant applied to be admitted to appear in a substantial piece of litigation in Hong Kong that is set down for trial for 10 weeks in the summer of 2021. The litigation is complex and involves alleged audit negligence. The other party in the case (the defendant) is represented by a legal team which includes a QC. The solicitors' firm acting for the plaintiffs in the litigation includes two partners who are solicitor advocates. One, in particular, is a very experienced advocate.
Given that the underlying litigation was particularly complex and difficult, and that the defendant was represented by a QC, it is no surprise that the plaintiffs also wanted to engage the services of their own QC. In normal circumstances, the applicant's ad hoc admission would not have been contested, but for the fact that his instructing solicitors wished to appear with him without engaging the services of a local barrister.
The main issue for determination by the court was whether the applicant should be admitted on the condition that he appear with a local barrister or whether he could instead appear with the two solicitor advocates. This issue, in turn, fell to be determined according to whether:
This was the first application of its kind in Hong Kong.
The Bar Council of Hong Kong was prepared to consent to the applicant's admission only if he was instructed with a suitable local barrister. Interestingly, the secretary for justice (whose legal representatives always appear on contested applications for ad hoc admission) supported the application.(2)
The application was granted but only subject to the usual condition that the applicant appear together with a local barrister (and not just on a nominal basis). Therefore, the local bar's objection was upheld.
The judgment analyses the development of the independent bar in Hong Kong and what is referred to as the "relatively nascent development" of the profession of solicitor advocates.
The court rejected the applicant's lawyers' argument that there was no relevant material distinction (for these purposes) between barristers and solicitor advocates. In particular, the court referred to barristers' 'cab rank' rule, greater independence and self-employed status.
As for the application of the public interest, the court considered that (for now) this strongly supported the imposition of the usual condition that an overseas barrister be admitted provided that they appear with a local barrister. Such sentiments are best summed up in the following passage of the judgment:
Accordingly, the public interest in having a strong and independent local Bar for the extremely important purpose of maintaining and enhancing an effective and meaningful access to justice must definitely be accorded much greater weight than those in favour of admitting overseas counsel to appear with solicitor advocates only in the overall balancing exercise. It requires, as an appropriate safeguard against inhibition on the growth and development of the local Bar, overseas counsel to appear together with local counsel, if admitted.(3)
The outcome in the case will be disappointing to the profession of solicitor advocates in Hong Kong, who at present number approximately 70.
It will probably come as little comfort that the judgment does at least recognise that, as the public interest evolves, and as the profession of solicitor advocates becomes larger and more active, the balance may shift towards justifying the admission of an overseas barrister (on a case-by-case basis), without having to instruct a local barrister.(4)
Given the complexity and size of the underlying litigation, it will be no particular surprise if there is an appeal against the condition imposed by the court. The capability of the applicant and the complexity of the underlying dispute are not in doubt – therefore, everything turns on whether the application of the public interest in this case justifies the imposition of the condition. On the face of it, it is difficult to see that it did and, in this regard, the supportive submissions of the secretary for justice's legal representatives are noteworthy.
In the meantime, the profession of solicitor advocates in Hong Kong continues to evolve and gain more confidence.
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