Re David John Holgate, Qc Barrister of England

HCMP002725/2001

HCMP2725/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2725 OF 2001

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Coram: Hon Burrell J in Court

Date of Hearing: 8 June 2001

Date of Reasons for Decision: 8 June 2001

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REASONS FOR DECISION

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1.This is an application for the admission to the Hong Kong Bar of David John Holgate, QC pursuant to Section 27 of the Legal Practitioners Ordinance, Cap.159. The plaintiffs, in the case of Kaisilk Development Limited v. Urban Renewal Authority (HCA10017/2000), wish Mr Holgate to represent them both at the trial of this action and at an interlocutory strike out application being made by the defendants.

2.Mr Andrew Bruce, SC, appearing for the Hong Kong Bar, informed the court this morning that the Bar does not oppose Mr Holgate's admission for the trial but does oppose his admission for the strike out application. In a nutshell the Bar's opposition is based on the contention that the principles in strike out applications are not complicated and the admission of an overseas QC for such an application is not warranted.

3.The Secretary for Justice neither opposes nor supports the application.

4.The principles to be applied in such applications have been laid down by Chan CJHC (as he then was) in Re Flesch, QC and another (HCMP4561/1998) at p.515. They are :

"(1) Public interest has always been the paramount if not the sole consideration in the exercise of the court's discretion under s.27(2) of the Ordinance in admitting overseas counsel for the purpose of particular cases;

(2) There are many and sometimes conflicting aspects of the public interest. From time to time, other aspects of the public interest may be identified as a result of change of circumstances. It may then become necessary to address our minds to such aspects as well;

(3) Apart from the need to have a strong and independent local Bar and the need of Hong Kong people to have adequate legal representation, it is also in the public interest that the Hong Kong courts, particularly the Court of Final Appeal, should develop our own jurisprudence with enjoys international recognition and reputation;

(4) The court should adopt a flexible and sensible approach in dealing with applications for admission of overseas counsel to the Hong Kong Bar for the purpose of particular cases, balancing different aspects of the public interest;

(5) It is for the court to decide whether an overseas counsel should be admitted or not under s.27(2). Hence, even if an application is made by consent, the court must still be satisfied that it is in the public interest to grant the admission. The burden is on the applicant to so satisfy the court. It is therefore important that in every application for admission, all the relevant materials must be placed before the court even if there is no objection from the Department of Justice and the Bar Association;

(6) The burden of showing why it is in the public interest for an overseas counsel to be admitted for the purpose of a particular case can also be discharged if it can be shown that: (a) the case may involve the determination, possibly by the Court of Final Appeal, of some legal principles which may have an impact on the development of local jurisprudence; and (b) the applicant is a counsel of sufficiently high quality and standing to handle that particular case;

(7) The existing guidelines set by the court in Re Coles QC [1985] HKLR 480 and elaborated in Re Simon Goldblatt QC & Another [1985] HKLR 484 were set with the public interest in mind and must be reaffirmed. They continue to apply subject to the modification that overseas counsel wishing to gain admission according to those guidelines should be counsel of sufficiently high quality and standing for the cases in which they are instructed to appear;

(8) It would be extremely rare for the court even to consider an application for admission by an overseas counsel who is not a Queen's Counsel or where no local counsel or only a nominal local counsel is briefed together with the overseas counsel. The court would usually require that there is at least one local counsel actively involved in the case from an early stage and the earlier and greater is the involvement, the better are the chances of the application succeeding. The court would also be more sympathetic if more than one local counsel (including possibly senior counsel) are instructed in the case."

5.The Bar accepts that these principles apply to Mr Holgate's admission to conduct the trial. The only question, therefore, is do they also apply to the strike out application. Of course, not all interlocutory matters would merit the admission of the QC conducting the trial. Some interlocutory matters are relatively simple and straightforward. Where, however, the two following factors apply,

(a) the outcome of the interlocutory matter could dispose of the whole action; and

(b) the appeal process is very likely to be engaged whatever the outcome of the interlocutory hearing,

then, if no objection is taken to the admission for trial, the application for admission for the interlocutory hearing is considerably strengthened. Where the issues at trial pass the test of, for example, principle number (6) above, it is difficult to divorce the importance of the strike out application from the importance of the trial.

6.No issue has been taken as to Mr Holgate's specialized expertize in the subject matter of this action. He is a prominent, highly respected and experienced QC from England.

7.Mr Johnny Mok, counsel for the applicant, submits, and I agree (and Mr Bruce concedes) that at the trial of the action, a number of difficult questions of law in the field of compensation and valuation will arise. They will include the following :

(a) whether the defendant's statutory duties under the Ordinance gave rise to a common law duty of care owed to Kaisilk by the defendant to do or refrain from doing a particular act;

(b) whether in the course of carrying out its statutory duties the defendant had brought about such a relationship between itself and Kaisilk as to give rise to a duty of care at common law;

(c) whether the defendant came under an implied statutory duty to negotiate for the acquisition of the Properties on fair and reasonable terms before relying on compulsory resumption through the Secretary for Planning, Environment and Lands under the Ordinance;

(d) whether any of the above duties are supported by Article 6 of the Basic Law (which protect the right of private ownership of property) and Article 105 (which enshrines the right to compensation for lawful deprivation of property on the basis of "real value of the property concerned at the time");

(e) whether the defendant was precluded by the doctrine of estoppel by convention and/or legitimate expectation from changing its said practice of adopting the 1997 values, or from changing it before giving Kaisilk to accept previous offers based on such values; and

(f) whether Kaisilk is precluded by its previous judicial review proceedings against SPEL from pursuing a private law remedies against the defendant in Present Action; and whether Kaisilk is entitled to pursue a private law action instead of application by way of judicial review against the defendant.

8.Mr Mok submits, and I agree, that some or all of these issues may arise in the strike out application.

9.It seems to me also that the opinion of Junior Counsel that :

"The present case involves complex and novel questions of law. Kaisilk is trying to bring a private law action against an independent public body, namely, the [URA], in the purported performance of its statutory functions. I have in preparing for the Statement of Claim researched on this aspect of the law but I could not find any similar claim having been made in Hong Kong in the past.

... the issues raised in the above action straddle not only private law and public/administrative law, but also the area of town planning and land resumption"

has equal application to both the trial and the strike out application.

10.In my judgment to say that the principles in strike out applications are straightforward is an oversimplistic approach to the question facing this court and belies the reality of the situation. I am certain that, in this case, the link between the trial and the strike out application cannot sensibly be severed so as to admit Mr Holgate for the trial only.

11.Mr Mok further submits that even if one looks at the strike out application in isolation, there are many examples of strike out cases being appealed to the very highest courts on issues of great legal importance and complexity. In particular, he cites examples of strike out applications concerning the duties of a public authority acting under statutory powers which is particularly relevant in this action. All five examples, which I consider it unnecessary to recite, went either to the House of Lords or the European Court because important principles of law in a developing area of the law were involved.

12.To conclude, I am satisfied that the principles in Re Flesch QC apply in this case both for the strike out application and for the trial of the action. I admit David John Holgate, QC to the Hong Kong Bar to represent Kaisilk in the strike out application and, by consent, in the trial of the action.

Representation:

Mr Johnny S.L. Mok, instructed by Messrs Deacons, for the Applicant

Mr Andrew Bruce, SC, leading Mr P.Y. Lo, instructed by Messrs Anthony Chiang & Partners, for the Hong Kong Bar Association

Miss Jenny Fung, SGC of the Department of Justice, for the Secretary for Justice