The Law Society of Hong Kong v. Mark Taylor Simpson Qc v. Bar Council of the Hong Kong Bar Association and Another
Read the full judgment text of FAMV 141/2021 on BabelCite. This FAMV judgment was delivered on 19 July 2021 before Andrew Cheung CJ, Ribeiro PJ, Fok PJ.
Administrative and constitutional law – Legal Practitioners Ordinance (Cap 159) – section 27(4) – ad hoc admission of foreign advocate – usual condition requiring appearance with local barrister – distinction between barristers and solicitor advocates – higher rights of audience granted to solicitor advocates by 2012 legislative amendments (Part IIIB) – Article 35 of the Basic Law – right to choice of lawyers – applications for leave to appeal – academicity – Court of Final Appeal – overseas counsel Mark Taylor Simpson QC applied for ad hoc admission as a barrister to appear in HCCL 9/2019 before the Court of First Instance – Poon Ag CJHC granted the application on the usual condition that the applicant appear with a local barrister – applicant appealed to the Court of Appeal (CACV 543/2019) arguing that a solicitor advocate with equivalent higher rights of audience should suffice – whether there is a material distinction between barristers and solicitor advocates in terms of level of independence, freedom from conflicts of interest, and accessibility to the general public – whether the 2012 legislative amendments conferring higher rights of audience on solicitor advocates resulted in equal standing with barristers – whether the usual condition was wrongly imposed absent exceptional circumstances – whether Article 35 of the Basic Law protects the choice of overseas counsel – Court of Appeal dismissed the appeal holding there was a material distinction between barristers and solicitor advocates, the usual condition was correctly imposed, and Article 35 only protects choice of lawyers from those available to represent a litigant and does not extend to overseas counsel without a general right to practise locally – applicant and Law Society applied for leave to appeal to the Court of Appeal, which was refused – applications for leave to appeal to the Court of Final Appeal (FAMV 141/2021 and FAMV 144/2021) – underlying litigation settled by commercial resolution on 25 June 2021 and plaintiffs instructed a local barrister to comply with the contested condition – whether the proposed questions of great general or public importance warranted leave to appeal when the matters were wholly academic – Court of Final Appeal's general rule against entertaining academic cases – exceptions rare even in public law – leave may only be granted exceptionally where there is sufficiently great public interest – Appeal Committee considered the rationale for the usual condition, arguability of the questions, stage of development of solicitor advocates, and potential stifling effect – not satisfied that exceptional circumstances existed – applications for leave to appeal dismissed – determination does not preclude future consideration of the questions in an appropriate case – Secretary for Justice took neutral stance – Bar Association opposed the applications.
Legal issues: Whether to grant leave to appeal on questions concerning ad hoc admission conditions for overseas counsel
Outcome: Applications for leave to appeal dismissed; the questions raised were wholly academic given the settlement of the underlying dispute and compliance with the contested condition.
Cited by 2 cases · Cites 6 cases
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FAMV Nos. 141 and 144 of 2021 [2021] HKCFA 25 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NOS. 141 and 144 OF 2021 (CIVIL) (ON APPLICATIONS FOR LEAVE TO APPEAL FROM CACV NO. 543 OF 2019) _____________________________________
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_______________________________ REASONS FOR DETERMINATION _______________________________ The Appeal Committee: 1.At the conclusion of the hearing, we dismissed these applications for leave to appeal. We now give our reasons. 2.The applicant, Mr Mark Simpson QC, applied for ad hoc admission as a barrister for the purposes of advising and appearing on behalf of the plaintiffs in HCCL 9/2019 at the trial of the Action before the Court of First Instance, pursuant to the statutory discretion under section 27(4) of the Legal Practitioners Ordinance (Cap 159). Poon Ag CJHC (as the Chief Judge then was) granted his application on the usual condition that he appear with a local barrister[1]. Dissatisfied with that condition, the applicant appealed to the Court of Appeal[2], arguing that two solicitor advocates had from an early stage been instructed to advise and represent the plaintiffs in the proceedings, and one of them would be instructed to appear together with the applicant for the plaintiffs at trial. Since a solicitor advocate has the same higher rights of audience as a barrister (since 2012), the judge was wrong to impose the condition that the applicant must appear together with a local barrister. 3.The appeal was dismissed by the Court of Appeal basically on the grounds that there was a material distinction between barristers and solicitor advocates in terms of the level of independence, the degree of freedom from conflicts of interest and the accessibility to members of the general public. The 2012 legislative amendments[3] whereby solicitor advocates are given higher rights of audience did not result in the conferring of equal standing on barristers and solicitor advocates. The judge was right to impose the usual condition in the absence of exceptional circumstances. The Court also rejected an argument based on article 35 of the Basic Law as that article only protects a litigant’s choice of lawyers from those available to represent him. It does not extend to overseas counsel who do not have a general right to practise locally. 4.Both the applicant and the Law Society (as intervener) applied for leave to appeal from the Court of Appeal’s decision. They failed before the Court of Appeal[4], and thus the applications before us. 5.On behalf of the applicant, it was submitted that the following questions of great general or public importance arose from the decision of the Court of Appeal:
6.The Law Society raised three similar questions said to be of great general or public importance in support of its application for leave to appeal:
7.Unlike her position taken before the courts below (which was in support of the applicant’s and the Law Society’s position), the Secretary for Justice, representing the public interest, took a neutral stance in relation to the applications for leave to appeal before us. 8.The Bar Association opposed the applications. 9.An immediate hurdle facing the applications for leave to appeal was this. After the applicant’s unsuccessful appeal to the Court of Appeal, the plaintiffs in the underlying litigation instructed a local barrister to appear together with the applicant (and the solicitor advocate) at the trial, in compliance with the condition imposed by the judge and upheld by the Court of Appeal[5]. But not only that. On 25 June 2021, a “commercial resolution” was reached between the parties to the underlying litigation such that, for all intents and purposes, the dispute between the parties was settled, and the service of the applicant as trial counsel was no longer required[6]. These developments therefore rendered the applications for leave to appeal to this Court wholly academic. 10.It is well established that as a general rule, this Court does not entertain cases that are academic between the immediate parties. Exceptions are rare. Even in the field of public law, the fact that an appeal would be academic as between the immediate parties is a strong factor against granting leave to appeal, even though it is not an absolute bar. In such a case, it is only where there is a sufficiently great public interest to be served by having a question or questions of public law decided by this Court that the grant of leave to bring such an appeal may be appropriate[7]. 11.Having considered the matters urged upon us, including in particular the underlying rationale for the usual condition, the relevance and arguability of the questions that were said to be of great general or public importance, any public interest to be served by having those questions (or one or more of them) decided by this Court in this particular case, the current stage of development of solicitor advocates in Hong Kong and their exercise of the higher rights of audience before the courts[8], and whether a refusal of leave to appeal would have a stifling effect on the future development of solicitor advocates, we were not satisfied that, exceptionally, we should give leave to appeal to entertain the wholly academic questions. For these reasons, the applications for leave to appeal were refused. Our determination does not necessarily preclude any future consideration of one or more of the questions raised in an appropriate case. But that is for another day.
Mr Jason Karas, Solicitor Advocate, of Karas LLP, for the Applicant (Applicant in FAMV 144/2021) Mr Charles Manzoni SC, instructed by Herbert Smith Freehills, and Mr Simon Chapman, Solicitor Advocate, of Herbert Smith Freehills, for the Law Society of Hong Kong (Applicant in FAMV 141/2021) Ms Gladys Li SC, Mr Stewart Wong SC and Mr Anthony Chan, instructed by Anthony Chiang & Partners, for the Bar Council of the Hong Kong Bar Association Secretary for Justice, attendance excused [1] [2019] 5 HKLRD 441. [2] [2021] 1 HKLRD 715. [3] Legal Practitioners Ordinance, Part IIIB. [5] The applicant’s notice of motion dated 28 April 2021, footnote 3. [6] The applicant’s reply skeleton submissions, [2]. [7] Yeung Chun Pong v Secretary for Justice FAMC 101/2005, 2 March 2006, [3]; Secretary for Security v Sakthevel Prabakar (2003) 6 HKCFAR 397, [4]. [8] According to the evidence, as at July 2019 (the hearing before Poon Ag CJHC was on 28 August 2019), there were 59 solicitor advocates for civil cases and 5 for criminal cases. Since 2012 up to July 2019, there were only 4 instances where a solicitor advocate had exercised higher rights of audience to appear at trial, 101 instances where a solicitor advocate had been listed as appearing in a case. Putting these numbers in context, there were 1,548 barristers in Hong Kong with 106 Senior Counsel. Although the latest figures were not placed before us, we proceeded on the basis that there were no drastic increases in the figures in the past two years. |
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