Siu Yat Fung Anthony t/a Anthony Siu & Co. v. The Council of the Law Society of Hong Kong and Another
Read the full judgment text of HCAL 1205/2021 on BabelCite. This High Court CFI judgment was delivered on 17 June 2022.
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.
Cited by 2 cases · Cites 4 cases
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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 ________________________
________________________ 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:
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:
19.In gist, whilst a barrister cannot sue a solicitor for fees, the solicitor is obliged, as a matter of professional conduct, either to pay the fee notes or to challenge the fee notes within two months. The only avenue for challenging such fees is in the Joint Tribunal, since reference to the tribunal is “mandatory”. Once the Joint Tribunal has made a decision, compliance with the decision, for both the solicitor and the barrister, is enforced via the two professional bodies’ disciplinary regime controlling professional conduct. D. Reviewability D.1 The law 20.The general principles in this area are well settled. Reviewability admits of no universal test. The only essential elements are what can be described as public law elements, which can come in many different forms. 21.The source of power will often be decisive. If the source of power is a statute, or subordinate legislation under a statute, then the body in question will most likely be subject to judicial review. At the other end of the scale, if the source of power is contractual, as in the case of private arbitration, then the decision is often not subject to judicial review. 22.Sometimes, the source of power of the decision-making body may have arisen from a contractual or consensual basis, but that body could be said to have stepped into the shoes of some public authority to discharge public functions which would otherwise be discharged by that public authority. 23.When the source of power is not determinative, the courts will look at the nature of the power and whether the power is exercised to perform a public function. The presence of public elements sufficiently significant could turn an otherwise commercial, contractual or consensual decision into a ‘public law’ decision. 24.Since this is apparently the first case relating to reviewability of decisions of the Joint Tribunal, my attention has not been drawn to any authorities directly on the reviewability of Joint Tribunal decisions. But the judgment of G Lam J (as he then was) in Leung Sze Ho Albert v Bar Council of Hong Kong Bar Association [2015] 5 HKLRD 791 is instructive. 25.There, a barrister challenged the decision of the Bar Council refusing to grant him permission to engage in a supplementary occupation. The then §23 of the Bar Code prohibited barristers from taking up supplementary occupation without permission of the Bar Council. The barrister challenged the decision both: (a) on the ground that §23 of the Bar Code itself infringed his freedom to choose his occupation, against the Basic Law; and (b) on the ground of inadequate reasons. The Bar Council argued that the decision was not amenable to judicial review. It was argued that: neither the Bar Association nor the Bar Council is a governmental or statutory body; whilst section 72AA of the Legal Practitioners Ordinance Cap 159 (“LPO”) empowers the Bar Council to make rules governing professional practice of the Bar with the approval of the Chief Justice, the Bar Code’s existence pre-dated section 72AA; the Bar Code is not subsidiary legislations made pursuant to the power under section 72AA but a set of domestic rules made by Bar Council, as a professional body, to govern its own internal management; and the Bar Council’s decision in question was a matter of internal management of the Bar as a professional body. 26.That argument was rejected by G Lam J. The Bar Council’s decision in question was held to be reviewable. In G Lam J’s view, neither the status of the decision-making body, nor its source of power is determinative. Rather, it is necessary to focus on the nature of the power and the function performed. Judicial review has been extended to bodies whose birth and constitution owed nothing to governmental power, but which had been performing a public function such that the body has been woven into the fabric of public regulation. 27.At §§35-58, it was observed that:
28.Whilst much of the discussion on reviewability may appear to have focussed on the challenge to §23 of the Bar Code itself, it is also applicable to the actual decision which was made pursuant to §23. D.2 Nature of the Joint Tribunal’s power and functions 29.Both the Solicitor and the Bar Council submit that the Decision is reviewable. 30.The Solicitor submits that the source of power of the Joint Tribunal is statutory, found in section 72AA(b) for the Bar Council and section 73(1)(a)(iii) for the Council of the Law Society. The Bar Council says the Joint Tribunal owes its existence to the two Councils’ respective statutory powers under section 72AA(b) and section 73(1)(a)(iii). 31.Section 72AA(b) empowers the Bar Council to make rules subject to the approval of the Chief Justice “for the purpose of harmonizing the relationship of the barristers inter se and, with the prior approval of the [Council of the Law Society], governing the relationship of solicitors and barristers.”. Section 73(1)(a)(iii) provides the equivalent for the Council of the Law Society. 32.The referral of fee disputes to the Joint Tribunal is made mandatory and its decision is made binding on parties via both professional bodies’ code of conduct. As already set out above, the relevant rules of professional conduct are to be found in the Solicitors’ Guide, Circular 97-60, and the Bar Code and the Terms of Reference at Annex 9C. These rules are the Joint Tribunal’s source of power, enabling it to make a decision binding on both the relevant solicitor and barrister, without their prior agreement to be subject to the jurisdiction of the Joint Tribunal. 33.Applying Albert Leung, §9.12(d) and Annex 9C of the Bar Code is the functional equivalent of subsidiary legislation made under section 72AA(b), given that it governs the relationship between the two professions, and its integration into the statutory disciplinary mechanism of the Barristers Disciplinary Tribunal under the LPO. 34.The same could be said for the Solicitors’ Guide and circulars issued by the Council of the Law Society, both of which are not subsidiary legislation of the LPO made pursuant to the power under section 73(1)(a)(iii). The Solicitors’ Guide itself lists rules in the guide and circulars as non-statutory sources of rules of professional conduct: see §1.04. In a similar vein, §§12.04 and 12.05 of the Solicitors’ Guide and Circular 97-60 are functional equivalent of subsidiary legislation made under section 73(1)(a)(iii). 35.The Joint Tribunal does not derive its power from the LPO or its subsidiary legislation. It derives its power from a set of rules which the legislature has envisaged as capable of being made as such. The nature of the Joint Tribunal’s power is undoubtedly public. So are the functions served by the Joint Tribunal. 36.Mr Wong for the Barrister has sought to make a distinction between (a) the rules made by the two Councils which have made the Joint Tribunal a compulsory dispute resolution mechanism and (b) the Decision of the Joint Tribunal. He says that only the former, but not the latter, is susceptible to judicial review. I disagree. In Albert Leung, not only §23 of the Bar Code but also the actual decision of the Bar Council was held to be reviewable. The source of power pursuant to which the decision was made in Albert Leung and the source of power pursuant to which the current Decision is made are materially identical; both are rules which could be said to be the functional equivalent of subsidiary legislation that could be made under section 72AA (and also section 73). 37.I have taken note that the Decision, unlike the decision in Albert Leung, is not made directly by the Bar Council (or the Council of the Law Society) but a tribunal set up jointly by them. But that has, in my view, little impact on the reviewability analysis of the Decision. It does not detract from the public nature of the source of power under which the Decision is made and the public functions served by the Decision. D.3 Whether the submission to the Joint Tribunal was consensual 38.For completeness, I should address the Barrister’s argument that the Joint Tribunal’s jurisdiction is consensual and that the Decision is only binding on the parties as a matter of contract. This, if true, may tilt the Decision towards the non-reviewable end of the spectrum. 39.This argument is built upon (a) the assumption that the Hong Kong regime governing fee disputes share the same features with the English regime and that (b) the Barrister and the Solicitor had agreed as a matter of contract to submit their dispute to the Tribunal. 40.In England and Wales, the Bar Council and the Law Society there had also set up a joint tribunal to adjudicate fee disputes between the two professions. The relevant rules and procedures are provided for in ‘The Terms of Work on Which Barristers Offer their Services to Solicitors and the Withdrawal of Credit Scheme 1988’ (“English Terms of Work”) and the “Joint Tribunal Standing Orders” (“English Standing Orders”). As provided for in the two documents, submission to the tribunal is consensual. Mr Wong further relies on the case of Adams v Law Society of England and Wales [2006] EWCA Civ 1857. There, the solicitor sought judicial review against the decision of the joint tribunal which was rejected. On appeal, the English Court of Appeal upheld the lower court’s decision that the joint tribunal is not a public body and in any event that body is simply resolving a purely private law dispute between the solicitor and the barrister. 41.However, I agree with the Solicitor that this Court can derive little assistance from Adams or the English regime. Adams was premised on the point that that the submission to the English joint tribunal is consensual. The English Court of Appeal emphasised that the solicitor claimant had agreed to be bound by the joint tribunal procedures and that he had made no attempt to vary or exclude the terms governing the joint tribunal procedures (the relevant part is at §14 of the Terms of Works) despite that it was open for him to do so under §27 of the same document: see §§10, 46-48 of the Judgment. 42.Regardless of the position of the previous Grey Area Committee, as it now stands in Hong Kong, the Joint Tribunal is a mandatory mechanism for resolving fee disputes. This is unmistakable in light of the clear language of §1 of Circular 97-60 and §18 of the Terms of Reference. Mr Wong submits that the legislature could not have intended to effect such a change (from the consensual mode adopted by the Grey Area Committee to the present mandatory arrangement) by a side wind. But I do not think it fair to characterize the clear language in Circular 97-60 and the Terms of References as a side wind. 43.At the evidence stage, the Barrister mistakenly believed that the English Standing Orders were applicable in Hong Kong and insisted that the parties had signed a written agreement, in the form as envisaged by the English Standing Orders, to agree to be bound by the Joint Tribunal’s decision. The mistaken belief was later dispelled. Of course, as Mr Wong submits, that does not preclude a contractual analysis. But once I have found that the Hong Kong regime is mandatory in nature, which I have, whether alongside that compulsory regime the parties have also voluntarily agreed to be bound is beside the point. 44.Nor do I accept the submission that the Decision is akin to an expert determination which is only open to judicial scrutiny on very limited grounds. This analysis seeks to profit from §14(3)(i) of the English Terms of Work which provides that the English joint tribunal should “act as experts and not as arbitrators and its decision shall be conclusive, final and binding for all purposes upon the solicitor and the barrister”. This argument cannot take the Barrister any further. First, there is no reference to “expert” or “expert determination” in the relevant documents in the Hong Kong regime. Second, expert determination is premised on the parties’ consensual agreement, and the argument along this line has already been rejected. 45.The Barrister has also sought to draw support from the fee disputes resolution mechanism in New South Wales. He relies on the case of Carr v Branson (15 December 1997, Supreme Court of New South Wales Equity Division, Lexis Citation BC9706886) to submit that the proper action to challenge the Joint Tribunal’s Decision is by way of a writ action against the Barrister. The New South Wales regime requires the parties’ agreement to have the fee disputes adjudicated by way of arbitration, see §§10 and 14 of the Judgment. That regime is fundamentally different from Hong Kong’s mandatory regime. 46.I should also mention that I do not think that §15 of the Terms of Reference – “The Joint Tribunal shall give reasons for its decision which shall be final” – is capable of ousting the Courts’ supervisory jurisdiction by way of judicial review. Indeed, ultimately, as is often noted, the Court is fundamentally interested in and engaged in the oversight and supervision of the two legal professions. E. Proper Party Issue 47.The Barrister proposes that Mr Robin Egerton and Mr Frederick Hui, being the two members comprising the Joint Tribunal, should be named as respondents (in a writ action rather than an application for judicial review). This proposal can be disposed of quickly. Mr Egerton and Mr Hui did not make the Decision in their personal capacity. They did so by invoking the power granted to the Joint Tribunal. They sat as and comprised the Joint Tribunal. The contest as to proper respondent(s) is therefore between the two Councils and/or the Joint Tribunal. 48.The Solicitor proposes that the two Councils are the proper respondents. Mr Man first submits that the Joint Tribunal is not a legal entity and non-legal entities cannot sue or be sued in legal proceedings including judicial review. He cites Chow J’s (as the JA then was) judgment in Wong Wai Yin v Buildings Department [2020] HKCFI 2011. At §2, Chow J said that a government department is not legal entity capable of being sued and ordered that the application should be treated as against the Director of Buildings. Mr Man also submits that a tribunal discharging a quasi-judicial function should not appear as a party in proceedings. He relies on Nattrass v AG [1996] 1 HKC 4680 and Orrico Philippe v Municipal Services Appeals Board [2015] 4 HKLRD 111, which are authorities for the principle that such a quasi-judicial body should not compromise its impartiality by taking a stance in court proceedings, seeking to support its own decision. 49.The Bar Council’s position is that the proper respondent is the Joint Tribunal because it is that tribunal’s decision that is being challenged in the present proceedings. Mr Chan submits that the fact that the Joint Tribunal is not a legal entity is no obstacle to its being named as the respondent. In R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, the Takeovers Panel was named as such despite the court’s recognition that the panel “is an unincorporated association without legal entity”. Further examples include: the Statutory Authorities Service Commission (“SASC”) which also lacked legal personality, see AG of Trinidad and Tobago v Carmel Smith [2009] UKPC 50 at §§19-20; or the Municipal Services Appeal Board (“MSAB”) in Orrico. Mr Chan says the real reason why the Building Department should not have been named as the respondent in Wong Wai Ying was because the impugned decision was not made by the department but by the Director of Buildings qua Building Authority. 50.The Solicitor also submits that the Joint Tribunal, unlike the entities in Datafin, Carmel Smith or Orrico, is neither a body created by statute or a body recognized by statute. Mr Man submits that the MSAB in Orrico is a statutory body created by the Municipal Services Appeals Board Ordinance Cap 220 and the SASC in Carmel Smith is established by the State Authority Act (Chapter 24:01) of the Laws of Trinidad and Tobago. The existence of the Panel on Takeovers and Mergers in Datafin is expressly recognized in the rules of Stock Exchange. But even for non-legal entities, statutory underpinning is not necessary to enable it to be named as a respondent in judicial review proceedings. 51.Mr Chan draws the Court’s attention to the point that in judicial review proceedings against an inferior tribunal’s decision, the applicant is usually the party aggrieved, the interested party is the counter party in the tribunal proceedings, and the respondent is the tribunal who would generally take a neutral stance and would abide by the Court’s ruling. 52.Indeed, the judicial review court is very familiar with the situation described by Mr Chan, for example also due to the large number of torture claim judicial reviews which have flooded the courts in recent years. The decision impugned in such cases is the decision made by the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (itself a non-statutory body) (together “Board”). The applicant is the aggrieved torture claimant, and the respondent is the Board, which would take a neutral stance and be excused from the hearing. The interested party is the Director of Immigration, who was the torture claimant’s counter-party at the hearing before the Board and the one who answers the application for judicial review raised by the torture claimant. 53.I also agree with the Barrister’s submissions that one should not conflate being named as a respondent in judicial review proceedings and taking a stance and actively participating in such proceedings. The tribunal whose decision is impugned could clearly be made the respondent of the judicial review proceedings, but yet only to take a neutral stance. 54.In reply, Mr Man for the Solicitor says the relevant power invoked by the Joint Tribunal is the power of the Bar Council and the Council of the Law Society. The relief sought by the Barrister is to bind the two Councils rather than the Joint Tribunal. He submits that the two Councils are vested with a number of functions including disciplinary functions and the powers to make rules governing the relationship between members of the two professions. The two Councils appoint a number of persons making up the Joint Tribunal, which then exercises the power delegated to it by the two Councils, so that it remains the case that the powers exercised by the Joint Tribunal are those of the two Councils. 55.I do not accept this argument. The Joint Tribunal is set up as a body independent from the Bar Council and the Council of the Law Society. Whilst the Joint Tribunal owes its existence to the rule-making powers of the two Councils, it is inappropriate to say that the Joint Tribunal is merely exercising the powers of the two Councils. Under the rules now laid down by the §12.05 of the Solicitors’ Guide, Circular 97-60, §9.12(d) of the Bar Code and the Terms of Reference, the Joint Tribunal has exclusive jurisdiction in resolving fee disputes. Obviously under the current regime it is no longer up to the Bar Council nor the Council of the Law Society to adjudicate on such fee disputes. It may be up to the two Councils to amend the Bar Code, the Solicitors’ Guide and the relevant rules or to invoke their rule-making power under sections 72AA and 73 of the LPO to change the current fee disputes regime. But that does not detract from the point that, as it now stands, such power is exclusively given to the Joint Tribunal. I also note that in the Form 86, the substantive relief sought by the Solicitor – to have the Joint Tribunal reconsider the Decision – does not involve the two Councils (though, of course, a potential alternative form of relief requiring a new Joint Tribunal to be convened might involve the two Councils). 56.In view of the above, I have come to the view that the proper respondent is the Joint Tribunal. F. Conclusion 57.The Decision is amenable to judicial review, and the proper respondent is the Joint Tribunal. I direct the proceedings to continue on that basis, and I do not accept that the proceedings should be dismissed. 58.Further, on the basis that the Joint Tribunal – though the correct respondent – is unlikely to take any non-neutral stance in the proceedings, I see no reason why the substantive hearing should not go ahead on the date already fixed. The substantive argument will, of course, likely be conducted between the Solicitor and Barrister. 59.On the basis that this is a novel point, I do not think the applicant should be punished in costs for naming the two Councils as respondents, rather than the Joint Tribunal. In any event, exercising my discretion overall, and in light of my conclusions, and bearing in mind the assistance received from all those making submissions, I think the appropriate order to make is no order as to costs. I make that order on a nisi basis first, and it will become absolute if no variation application is made within 14 days. Any variation application will be dealt with on paper.
Mr Bernard Man SC and Mr Thomas Wong, instructed by Anthony Siu & Co., for the applicant Mr Anthony Chan, instructed by Anthony Chiang & Partners, for the 2nd respondent Mr William Wong SC and Mr Brian Fan, instructed by Deacons, for the interested party |
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