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HCMP 1013/2019
[2019] HKCFI 2689
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 1013 OF 2019
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In the Matter of the application of Mark Taylor Simpson QC for admission as a barrister of the Hong Kong Special Administrative Region |
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and |
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In the Matter of Section 27(4) of the Legal Practitioners Ordinance (Cap 159) of the Laws of Hong Kong |
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| Before: |
Hon Poon Ag CJHC in Court |
| Date of Hearing: |
28 August 2019 |
| Date of Judgment: |
31 October 2019 |
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J U D G M E N T
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1. The applicant, Mr Mark Simpson, QC, seeks ad hoc admission under section 27(4) of the Legal Practitioners Ordinance, Cap 159 (“LPO”), for the purpose of advising and appearing on behalf of four plaintiffs at the trial in HCCL 9/2019 (“the Action”).[1] This is the first application where the admission of an overseas counsel is sought on the basis that, if admitted, he would only appear with the solicitor advocates having the conduct of the underlying proceedings without instructing a local barrister. It is opposed by the Hong Kong Bar Council but supported by the Secretary for Justice.
A. Background
2. The four plaintiffs in the Action are China Forestry Holdings Co Limited (In Official Liquidation) and some of its subsidiaries. The defendant is the former auditor of China Forestry, KPMG. The Action is a substantial audit negligence claim. The plaintiffs allege that the defendant negligently failed to identify that they were the victims of a serious and pervasive false accounting by former members of executive management who falsified the substantial majority of China Forestry’s planation assets and revenue in its financial statements for the year ended 31 December 2009. The plaintiffs claim for loss and damages totaling more than HK$1.3 billion which, they allege, would have been averted had the defendant conducted a competent audit. The trial of the Action has been fixed for 10 weeks in June 2021. The parties are in the meantime taking various interlocutory steps such as discovery and preparation of witness statements to ready the trial.
3. Since the outset of the Action, the plaintiffs have been represented by Messrs Lipman and Karas (“LK”). Mr Jason Karas and Mr Tim Kentish, who are solicitor advocates and principals of KL, have had conduct of the proceedings throughout. Both of them (especially Mr Karas) have substantial experience in litigation in their capacity as solicitor advocates. No counsel has been engaged hitherto.
4. It is common ground that the Action involves unusual difficulty and complexity. With the consent of the Bar Council, the defendant had already obtained ad hoc admission of Mr Justin Fenwick, QC for the purpose of advising and appearing on its behalf at the trial of the Action.[2] Mr Fenwick will appear together with a local senior counsel.
5. On 8 November 2018, LK wrote to the Bar Council seeking its consent to the applicant’s ad hoc admission to advise the plaintiffs and appear at the trial of the Action together with Mr Karas and Mr Kentish without instructing a local counsel.
6. Relevantly, LK regarded Mr Karas and Mr Kentish, who would be instructed to appear at trial of the Action, as local counsel for the purposes of both the trial and the applicant’s ad hoc admission. Thus in answer to question 3 of Part I of the Bar Association’s Checklist on Ad Hoc Admission asking if suitable local counsel is unavailable, LK stated local solicitor advocates (Mr Karas and Mr Kentish) had been engaged.[3] In answer to question 9 of Part II on the evidence of attempts to look for local counsel with appropriate skill and experience and the results of such attempts, LK repeated that Mr Karas and Mr Kentish were instructed to appear for the plaintiffs. To question 14 of Part II asking if viewed objectively, the attempt to instruct local counsel had been reasonable, serious and genuine, LK replied in the affirmative reiterating that local solicitor advocates had already been retained in the Action and continued to be instructed.
7. Also importantly, it is not LK’s position that no senior counsel in Hong Kong is suitable or able to act for the plaintiffs. LK simply took the view that a case of this magnitude and complexity would benefit greatly from the involvement of overseas leading counsel with specialization and expertise in large scale insolvencies, audit negligence cases and complex multi-disciplinary professional negligence cases, such as the applicant : see [26] of the letter of 8 November 2019 and the answer to question 14 of Part II of the Bar Association’s Checklist on Ad Hoc Admission. This explains why LK had not made any enquiry to see if any suitable local senior counsel was available to take up the Action at all.
8. While the Bar Council accepted that the Action is of sufficient unusual difficulty and complexity, it did not consider it to be in the public interest to admit the applicant when he would not be instructed together with local barrister(s). The Bar Council was only prepared to consent to the applicant’s admission if he was instructed to advise and appear with suitable local barrister(s) instructed otherwise than on a nominal basis as opposed to local solicitor advocates and would oppose any application for the applicant’s ad hoc admission.[4]
B. Main issues
9. Before me, Ms Gladys Li SC (together with Mr Stewart Wong SC, Mr Anthony Chan and Ms Esther Mak) for the Bar Council accepted that the applicant has the requisite qualifications and substantial advocacy in court and is of fit and proper standing. And there is no dispute that the applicant, with his vast and specialist expertise, would add a significant dimension to the Action, if admitted. However, in addition to the objection raised by the Bar Council in correspondence, Ms Li also complained about LK’s failure to make any enquiry of availability of suitable local senior counsel.
10. Two narrow but important primary issues arise for my determination :
(1) whether in the circumstances of the present case, the applicant should be admitted on the condition that he acts together with a local barrister or whether he can instead act with Mr Karas and Mr Kentish, the two solicitor advocates with conduct of the Action from the outset, without instructing a local barrister (“First Issue”); and
(2) whether in the circumstances of the present case, LK should have made enquiries of the availability of suitable local senior counsel (“Second Issue”).
11. The guiding principle in approaching these Issues is well established. The public interest is the paramount consideration in the court’s exercise of the unfettered discretion to admit overseas counsel under section 27(4) of the LPO. In the context of a contested application, various and conflicting facets of the public interest are invariably engaged. The court’s task is to identify the relevant facets of the public interest engaged, carefully balance them in a flexible and sensible way in order to arrive at a decision that best suits the public interest arising in the application.
C. Maintaining a strong and independent local Bar
12. The first and foremost aspect of the public interest that is plainly engaged in the present case is the maintenance of a strong and independent local Bar. As will be explained in greater detail, this particular facet of the public interest explains why ordinarily, (1) a local counsel has to be instructed to appear together with the overseas leading counsel seeking admission and (2) it is required to ascertain the availability of suitable local counsel prior to the application for ad hoc admission.
C1. Independence of the Bar
13. Independence of the Bar has always been a fundamental pillar and indeed one of the hallmarks of the Hong Kong legal system.
14. First, the Bar is independent from the Government. The Bar has always been autonomous, only subject to the applicable provisions in the LPO and the court’s supervisory jurisdiction. Independent from the Government and governmental agencies, the Bar is free to represent citizens without fear or favour in criminal proceedings and in protection of their rights and civil liberties against incursions from the Government in public law litigation.
15. Second, there is a considerable degree of interpersonal independence in the barristers’ practice. The Bar Code contain various rules that demand such independence of barristers, including the way in which their practices are organized. Briefly, barristers must practise alone and are prohibited from forming partnerships with anyone else, whether or not they are lawyers : rule 5.15 of the Bar Code. For administrative convenience, group of barristers may form together to share office accommodation (known as chambers) and support services and overhead expenses in running their practices. They however remain self-employed.
16. Third, subject to very limited limitations, the Bar Code prohibits barristers from taking up other employment : rules 5.7 and 5.8. In a sense, it keeps barristers independent from other profession or employment. Such independence aims at protecting the reputation of the Bar as an institution and ensuring that individual barrister’s ability to attend properly to his practice or interests of his clients will not be prejudiced.
17. Fourth, barristers are independent from their clients. A barrister can generally only be engaged by a solicitor through referral : rules 5.16 – 5.18 of the Bar Code. A prospective client must first consult a solicitor in relation to any matter on which a barrister’s services are sought who would then advise if a barrister has to be instructed and if so act accordingly. The independence implied by such a referral...
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