Re David Eady Q.C.

HCMP000333/1990

Headnote

Overseas Queen's Counsel - Admission to the Hong Kong Bar - in a libel action - admission refused.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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1990, No. MP 333

Coram: Hon. Yang, C.J.

Date of Hearing: 20 March 1990

Date of Delivery of Judgment: 28 March 1990

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J U D G M E N T

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Hon. Yang, C.J.:

1. The applicant is a member of the Inner Bar in England. He seeks admission to the Hong Kong Bar to represent the plaintiff in a libel action No. A6115 of 1988 in the High Court and all and any proceedings related thereto or related to the subject matter thereof.

2. The plaintiff was at all material times an Authorised Person registered under the Buildings Ordinance (Cap. 123). In March 1985 he was appointed by China Resources (Holdings) Co. Ltd. ("CRH") as the Authorised Person in respect of the construction of a godown at Cheung Sha Wan, Kowloon ("the Project"). It was in that capacity that he was allegedly libelled by the defendant. The defendant was a contractor in the project and had carried out a site investigation in connection with the caisson foundation for the project in June 1985. The site investigation report produced by the defendant was said by the plaintiff to be inaccurate and misleading, and various letters were written by the plaintiff in May and July 1986 to various parties. These letters formed the basis of an earlier action, High Court Action No. A4809 of 1986, where the defendant sued the plaintiff for defamation. That action was discontinued by the defendant on the 17th December 1988.

3. The present action concerns a letter dated 26th July 1986 written by the defendant to CRH in Chinese, with copies to the Ministries of Central Administration and of Economics and Trade of the People's Republic of China. The plaintiff claims, inter alia, that as a result of that letter his working relationship with CRH came to an end, and he suffered a loss in business. It is therefore against the same background that the two libel actions were brought.

4. The principles governing the admission of overseas counsel are well set-out in Re Coles (1985) HKLR 480: see also Re Goldblatt (1985) HKLR 484, and Re Glasgow (1988) HKLR 607.

5. The applicant's case rests on four main arguments, all of which are discussed in Coles (supra).

6. The four main arguments are:

(i) that the case is one of unusual difficulty or complexity;

(ii) that no local counsel of appropriate skill and experience is available; and that the case requires specialist knowledge of the kind not available from the local Bar;

(iii) that the case is of such a nature that it is desirable for overseas counsel to appear, or

(iv) that no local counsel of appropriate skill and experience is available at a fee which is within the range of the client whereas an overseas counsel is.

7. I was in the course of the hearing much assisted by counsel for the applicant, counsel for the Bar Association who oppose the application and by counsel for the Attorney General who adopts a neutral stance. I shall now deal with the four arguments seriatim.

(i) Difficulty or complexity. It is said that the facts of the case involve nearly all the difficult features of the law of libel: justification, malice, aggravated damages, gualified privilege, foreign publication. It is further submitted that the background of the alleged libel touches upon construction law and practice in Hong Kong. Finally, defamation is a specialist area of the law.

That the law of defamation is a specialist area is not in dispute. That, in itself, however, does not in my view warrant the admission of an overseas counsel specialized in defamation law. The Court looks at the nature of the case rather than narrowly considers the area of the law the case might fall within. It is commonsense that a straightforward libel set against an uncomplicated background does not require the service of a specialist counsel from overseas.

There is in this case nothing difficult or complicated about the letter said to contain the libel. And it is not so much the law that is difficult or complicated but the surrounding facts within which the alleged libel must be considered. The letter is in the Chinese language. The construction law and practice, as applicable to a project in Hong Kong, is an area in which we have over the years built up a considerable amount of expertise. The letter was copied to Beijing: the so-called foreign publication was therefore set in a Chinese context. In my judgment these factual matters lend themselves to a local counsel rather than one from England, in spite of the absence of expertise in the local Bar in defamation cases.

(ii) Local counsel not available. In the light of my observations under (i) above, the argument under this head too, fails. Furthermore, eight Queen's Counsel in private practice have been appointed this year.

(iii) Desirability for overseas counsel. The plaintiff in his affidavit said, inter alia. "In effect I am now a marked man and am most concerned with the attitude the (Beijing) authorities may take to me post-1997 and the steps they may then take against me." I am not here concerned with the truth or otherwise of this dramatic statement, but it sets a dangerous precedent for the local Bar if it is acted upon in this case, for it may be thought to be tantamount to an indictment against the local Bar and a denial of their objectivity, integrity and fearlessness. Not one iota of evidence has been produced to support such an indictment if indeed an indictment it was intended to be.

Whilst not denying that in a suitable case, it would be desirable to have an overseas counsel because, for example, for the need that justice must be seen to be done, the present case does not belong to that category.

(iv) Fees. The plaintiff's affidavit refers to fees that would be incurred by instructing the overseas counsel "would be considerably less than the fees for instructing a suitable local Q.C." In the same affidavit he also refers to having "suffered considerable financial burden" by virtue of the proceedings in High Court Action No. A4809 of 1986. However there is nothing to show that the fees of a local Queen's Counsel are outside the plaintiff's range. This argument therefore also fails.

8. In addition to the four main arguments, one or two other considerations have also been urged upon this Court.

9. It is said that this application should be supported because of the very recent developments in this area of the law in the English jurisdiction. No examples, however have been advanced to indicate the extent of these developments or the way they may affect the law in Hong Kong. All that I have before me is a bare assertion in an affidavit.

10. I have before me the affidavit sworn by the applicant's solicitor who stresses the need for a London Queen's Counsel for this libel action. Such opinion is of course entitled to considerable weight to be given to it: Re Tyrrell (1984) HKLR 370, 371. Against that opinion, however, one has to consider the factor of public interest: Re Goldblatt (supra), at 485.

11. Balancing the competiting claims, bearing in mind the paramount factor of public interest, I have come to the conclusion, not without hesitation, that this is not a suitable case for an English leader to be engaged. The application is therefore refused.

Representation:

Mr. Geoffrey Ma (Herbert Smith) for the Applicant

Mr. R. Whitehead (C.Y. Kwan & Co.) for the Bar Association

Mr. W.R. Marshall, Q.C. and Ms. Y. Mohamed for the Attorney General