Re Gerald Godfrey, Q.C.

HCMP001263/1985

Coram:    Roberts, C.J.

Date of Judgment:         23rd May, 1985.

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JUDGMENT

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The action

1. This is an application for the admission of overseas counsel, Mr. Gerald Godfrey, Q.C. to appear on behalf of the second defendant in an interlocutory appeal.

2. The original High Court action was brought by the plaintiff, the Overseas Trust Bank, against the first defendant, Longterm (Investment) Ltd. for the repayment of money advanced by the plaintiff to the first defendant byway of overdraft facilities, together with an amount of interest, and against the second defendant for the payment of the same sums, amounting to over $33 M., in accordance with a letter of guarantee said to have been signed by the second defendant on 26th February, 1983.

3. The plaintiff sought judgment under Order 14 before Master Hansen, who ordered that judgment be entered against the second defendant, but gave unconditional leave to defend to the first defendant. The second defendant appealed against the Master's order to a judge in Chambers.

4. On 18th March, 1985, after a hearing lasting less than a day, Mayo, J. gave the second defendant leave to file a defence within 21 days, on condition that he paid $27 M. into court. The second defendant has entered an appeal against this order and wishes to retain the applicant for the hearing.

Is this a complex matter?

5. In the second of three affidavits sworn by the solicitors for the second defendant, in support of the application, it is stated that the appeal involves an issue of significant public importance, namely, whether it is proper for the guarantor of a debt to be given only conditional leave to defend, in Order 14 proceedings, when the principal debtor has been given unconditional leave.

6. As I indicated during the course of the argument, this does not seem to me to be a broad issue, even if there are conflicting authorities on the point. Certainly, other factors may be of weight in determining whether or not the judge should exercise his discretion to apply conditions to leave, but they can hardly be said to make the appeal one of unusual difficulty.

7. I am not prepared to find, in accordance with the guidelines set out in Coles ⁽¹⁾, that this is a case of unusual difficulty or complexity.

8. Also, as was conceded by counsel for the applicant during the course of argument, it is not a matter which requires specialist knowledge of a kind not available locally.

Are local counsel available?

9. The main ground, therefore, of the application  is that, although there are a number of local counsel who could well undertake the appeal, those who hold the necessary skill and experience are not available for various reasons.

10. As I indicated in Coles ⁽¹⁾, if the client and solicitor take the view that leading counsel is appropriate, I do not consider that the court should normally disagree with their assessment.

11. The second and third affidavits sworn by solicitors for the applicant, assert the seven local counsel are not available because they have appeared in other matters involving either the second defendant or one of the numerous companies with which he is involved or which he controls.

12. It is not contested by counsel for the Bar Association that three of those counsel are likely to have been involved in matters which would give rise to a genuine conflict of interest. It is therefore reasonable that the second defendant should be unwilling to retain them, even for a fairly limited interlocutory matter of this kind.

13. The applicant's affidavit lists another four counsel who, it is said, might be retained by other persons in litigation involving one of the other companies in which the second defendant has an interest.

14. I was assured, however, by counsel for the Bar that three of these counsel had been approached on behalf of the Bar Association and had given assurances that there was no existing conflict of interest such as would preclude them from accepting instructions to appear in this appeal on behalf of the second defendant.

15. I was further given the names of three other Hong Kong leading counsel, all with a degree of commercial experience, who had expressed themselves as available to appear for the second defendant and willing to do so.

Conflict of interest

16. Since Miss Vibert relied heavily on paragraphs in the affidavit which referred to a possible conflict of interest, I think I ought to say that experienced counsel are well aware of the risk that a conflict of interest, between two of their clients, may emerge. Any responsible counsel, in such circumstances, will make it clear to the later client that his involvement with the earlier client makes it impossible for him either to receive instructions from the second one or to continue to represent him, as the case may be.

17. Some of the names in the solicitors' third affidavit, are said to be likely to be retained by another party against a company in which the second defendant has interest at some time. If that should occur and any of those three has already accepted instructions from Mr. Lam, the second defendant, he would no doubt refuse to accept instructions in the later matter.

Conclusion

18. I am therefore not satisfied that there are not available a significant number of local counsel of appropriate skill and experience who can undertake an interlocutory appeal of this nature.

19. I would not go so far as to say that some interlocutory matters are not of such complexity as would justify the admission of overseas counsel to argue them, but I do not regard this interlocutory appeal as sufficiently complex to justify admission of overseas-counsel on that ground.

20. Thus the applicant has not discharged the burden, which lies upon him, to show that overseas counsel should be admitted for the purposes of the proceedings specified in the application, which is accordingly dismissed.

(1)     M.P. 2762 of 1984.

Representation:

Miss V.Vibert (P.C. Woo & Co.) for Applicant

Mr. R. Wong (C.Y. Kwan & Co.) for the Hong Kong Bar Association

Mr. N.L. Strawbridge, Asst. Crown Solicitor for the Attorney General Law Society of Hong Kong - not appearing (not wanting to be heard)