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Siu Yat Fung Anthony T/a Anthony Siu & Co. v The Council Of The Law Society Of Hong Kong And Another

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date29 June 2022
Neutral Citation[2022] HKCFI 1977
Citation[2022] 3 HKLRD 443
Judgement NumberHCAL1205/2021
Year2021
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL1205/2021 SIU YAT FUNG ANTHONY t/a ANTHONY SIU & CO. v. THE COUNCIL OF THE LAW SOCIETY OF HONG KONG AND ANOTHER

HCAL 1205/2021

[2022] HKCFI 1977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1205 OF 2021

________________________

BETWEEN
SIU YAT FUNG ANTHONY (蕭一峰) trading as
ANTHONY SIU & CO. (蕭一峰律師行)		 Applicant
and
THE COUNCIL OF THE LAW SOCIETY OF HONG KONG 1st Respondent
THE COUNCIL OF THE HONG KONG BAR ASSOCIATION 2nd Respondent
and
WONG KAI TAK Interested Party

________________________

Before: Hon Coleman J (Paper Disposal)

Date of Submissions: 6 April 2022, 20 April 2022 and 4 May 2022

Date of Decision: 17 June 2022

Date of Reasons for Decision: 29 June 2022

____________________

REASONS FOR

DECISION

___________________

A. Introduction

1. This case gives rise to questions about the reviewability of, and the proper party to, a decision made on a fee dispute between a barrister and solicitor as to the barrister’s fees.

2. As it now stands in Hong Kong, barristers cannot sue solicitors for fees. Fee disputes between the two professions are resolved by a “Joint Tribunal” which is set up by the Bar Council and the Council of the Law Society specifically for the purpose of resolving such disputes. It is the Decision of the Joint Tribunal dated 24 June 2021 (“Decision”) which has become the subject of challenge in this application. I am told that this is the first decision from a Joint Tribunal being challenged by way of judicial review.

3. In the Decision, the Joint Tribunal determined that the applicant, a solicitor and the sole proprietor of a law firm called Anthony Siu & Co. (“Solicitor”) is liable to pay Counsel’s fees of HK$1,050,000 to a barrister known as Mr Wong Kai Tak (“Barrister”) and that the Barrister is not liable to return to the Solicitor the Counsel’s fees of HK$950,000 already paid. The Bar Council and the Law Society Council have been named as respondents in this case. The Barrister is named as the interested party.

4. The Form 86 was filed on 30 August 2021. The Solicitor asks for the Decision to be quashed and for an order directing the Joint Tribunal to reconsider the Decision.

5. On 6 September 2021, on the papers, I granted leave to apply for judicial review. But there has been much correspondence among the parties and this Court since leave was granted, which eventually led to my case management directions dated 26 January 2022 that there should be disposed of on the papers the two preliminary issues as to (1) whether the Decision is susceptible to judicial review (“Reviewability Issue”) and (2) whether the Bar Council and the Council of the Law Society are the proper respondents in this action (“Proper Party Issue”).

6. I have had the benefit of the written submissions filed: by Counsel Mr Bernard Man SC and Mr Thomas Wong dated 6 April 2022 and 4 May 2022 on behalf of the Solicitor; by Counsel Mr Anthony Chan dated 20 April 2022 on behalf of the Bar Council, and by Counsel Mr William Wong SC and Mr Brian Fan dated 20 April 2022 on behalf of the Barrister. The Solicitor and the Barrister have also filed affidavit evidence in support.

7. On 17 June 2022, I notified my decision that: (1) the Decision of the Joint Tribunal is amenable to judicial review; (2) the Joint Tribunal is a proper party as respondent to the application (though that does not mean, however, that the Joint Tribunal needs to take an active role); (3) the Bar Council and the Law Society Council were properly served as interested parties, and will be bound by the result of the substantive application. I also reserved the questions of costs arising and said the reasons for my decision would be handed down later.

8. This is my Reasons for Decision on the Reviewability Issue and the Proper Party Issue.

B. Further Background

9. For present purposes, there is no need to delve into the detail of the underlying disputes between the Solicitor and the Barrister, or the reasoning of the Joint Tribunal.

10. However, it may be helpful briefly to set out the correspondence amongst the parties – and the ensuing procedural muddle – to understand how the Reviewability Issue and the Proper Party Issue came about.

11. After I granted leave on 6 September 2021, the parties negotiated by way of correspondence to settle the timetable for filing evidence and fixing the date for the substantive hearing. Both the Bar Council and the Council of the Law Society (“two Councils”) participated in the correspondence. Eventually, a timetable for filing evidence was set on 30 September 2021 and on 15 October 2021 the date for the substantive hearing was fixed.

12. Then, in early December 2021, there came what the legal representative of the Barrister described as an “unexpected turn of events”. The two Councils, by separate letters, put forward the joint position that (a) the two Councils have been wrongly named as respondents and it is the Joint Tribunal which should be named instead, but they would not pursue that point, and (b) they would not contest the judicial review and would consent to an order for the Decision to be quashed and for a new Joint Tribunal to be constituted to consider the dispute afresh. They both sought to be excused from attendance at the substantive hearing, which was granted. The Solicitor, of course, had no quarrel with the new position taken by the two Councils.

13. In light of the non-opposition stance taken by the two named respondents, I invited the Barrister, as the interested party, to express his view as to how the matter should be taken forward. By letter dated 23 December 2021, the Barrister indicated that should the Solicitor, being the applicant, have failed to identify the proper respondents, the proper course of action is to have this judicial review dismissed. By the same letter, the Barrister also raised the Reviewability Issue. The Barrister indicated that he would contest both the Reviewability Issue and the Proper Party Issue. Further correspondence ensued as to how the two preliminary issues should be dealt with.

14. On 26 January 2022, I directed the Reviewability Issue and the Property Party Issue to be dealt with together on paper and set out a timetable for filing of written submissions and evidence. I also directed for the court documents to be served on the two Councils and invited them to make submissions on the two preliminary issues should they wish to. Although they were previously excused from attending the substantive hearing, I thought they might want to be heard on the two preliminary issues. In the end, only the Bar Council (amongst the two Councils) filed written submissions.

C. The Joint Tribunal Mechanism

15. Currently, the mechanism for resolving fee disputes between a barrister and his or her instructing solicitor are governed by the codes of conduct of the two professions.

16. For solicitors, the relevant rules are to be found in The Hong Kong Solicitors’ Guide to Professional Conduct (“Solicitors’ Guide”) and a circular issued by the Council of the Law Society. §12.04 of the Solicitors’ Guide provides that in the absence of reasonable excuse a solicitor is personally liable as a matter of professional conduct for payment of a barrister’s proper fees. §12.05 provides that a barrister’s fee must be either paid or challenged within two months from the submission of fee notes.

17. The mechanism by which such fee notes could be challenged is provided in Circular 97-60 which was issued by the Council of the Law Society on 3 March 1997 and formed part of the commentary to §12.05 of the Solicitor’s Guide. The circular provides:

1. The Society and the Bar Association have agreed to replace the existing Grey Areas Committee with a Joint Tribunal which shall resolve disputes between solicitors and barristers in relation to fees. References to the Tribunal will be mandatory.

2. The Society will be represented by 10 senior practitioners on the panel and is seeking applications from suitably qualified members with

· at least 10 years call

· criminal or civil litigation experience

18. For barristers, the relevant rules are to be found in the Bar Code of Conduct. §9.12(d) provides that the two professional bodies have set up the Joint Tribunal to adjudicate disputes regarding Counsel’s fees and the Terms of Reference and procedure of the tribunal are reproduced in Annex 9C. The Terms of Reference are excerpted below:

1. The Joint Tribunal (formerly known as the Grey Areas Committee) shall be a Joint Tribunal of the Bar Council and the Law Society.

2. The membership of the Joint Tribunal shall comprise a panel of 10 barristers appointed by the Chairman (“the Chairman”) of the Bar Association and 10 solicitors appointed by the President (“the President”) of the Law Society.

3. The Joint Tribunal shall resolve disputes between members of the Bar Association and the Law Society relating to fees which are referred to it by the Chairman or the President.

4. Where the Chairman or the President is of the opinion that such a dispute should be referred to the Joint Tribunal, the Chairman or the President shall each inform the other and the parties (“the parties”).

15. The Joint Tribunal shall give reasons for its decision which shall be final.

18. In the event of any failure to abide by the Joint Tribunal’s decision on any award or interim award the Joint Tribunal shall refer the matter as professional misconduct to the Law Society or the Bar Council.

19. In gist, whilst a barrister cannot sue a solicitor for fees, the solicitor is obliged, as a matter of professional...

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