A Solicitor and Another v. The Law Society of Hong Kong

cacv 269/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 269 of 2004

(ON APPEAL FROM THE FINDINGS AND PROVISIONAL ORDERS
OF THE SOLICITORS DISCIPLINARY TRIBUNAL DATED
THE 14^TH DAY OF MAY 2004 AND THE FINAL COSTS ORDER OF
THE SOLICITORS DISCIPLINARY TRIBUNAL
DATED THE 24^TH DAY OF AUGUST 2004)

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BETWEEN

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Before : Hon Rogers VP, Le Pichon JA and Burrell J in Court

Date of Hearing : 23 November 2005

Date of Judgment : 23 November 2005

Date of Handing Down Reasons for Judgment : 28 November 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an application for leave to appeal to the Court of Final Appeal.  At the conclusion of the hearing this court refused leave with reasons to be given in writing.

2.The background to the matter and the decision of this court is to be found in the Reasons for Judgment dated 22 June 2005.  As set out there, the appeal to this court had arisen because despite the fact that the Solicitors Disciplinary Tribunal (the “Tribunal”) had dismissed all charges against both the respondents, the Tribunal had made a costs order which not only deprived the 1^st respondent of his costs in relation to the proceedings against him but had ordered him to pay the costs of the Law Society and the costs of the 2^nd respondent in respect of the charges brought against the 2^nd respondent on a full indemnity basis.  As a result the 1^st respondent’s costs liability was in excess of $800,000 notwithstanding the fact that both respondents had been acquitted of the charges which had been brought against them.

3.This court held that the costs orders were wrong in principle and could not be permitted to stand.  The decision in that respect is set out in paragraphs 2 to 15 of the judgment of this court.  In view of that decision this court found it unnecessary to consider the further arguments which had been addressed in respect of the without prejudice negotiations.

4.This court however went on to make observations in respect of the role of the Clerk to the Tribunal.  This was prompted by the fact that the Tribunal had said at paragraph 11.12 of the Findings and Provisional Costs Order:

“The Tribunal is also aware of the observations of the Court of Appeal in Au Wing Lun William v. The Solicitors Disciplinary Tribunal and Another CACV 4154/2001 (decided dated 9 September 2002) regarding the role of the Clerk to the Tribunal.  The Clerk is of course not aligned with one party or another but is a practising solicitor appointed by the Tribunal itself from a panel of clerks in order to assist the Tribunal.  The assistance of the Clerk to Tribunal, of this nature is invaluable as the Clerk is remunerated for his services whereas members of the Tribunal are not.  Were it incumbent upon the unpaid members of the Tribunal to physically draft findings, particularly in relatively difficult cases, it would be difficult to find anyone suitable willing to give their free time to serve their profession in this capacity.  The Tribunal wishes to make it clear that the decisions reached and orders made in this matter and the basis of the same were agreed orally between the members of the Tribunal without influence from the Clerk and thereafter conveyed to the Clerk to enable his preparation of an initial draft of the findings and orders which draft was thereafter discussed and settled by the members of the Tribunal.  The Tribunal is of the view that proceeding in this matter combines practicality with fairness to the parties.”

5.This court expressed the view in very clear terms that it did not consider that the drafting of a decision of the Tribunal should be entrusted to the Clerk or anybody else.  The Tribunal should draft the decision.

6.It is clearly because of this last aspect that the application was made for leave to appeal to the Court of Final Appeal.  It is said that this matter is of considerable concern to the Law Society because the point is now being taken on other appeals.

7.In arguing the matter Mr Carolan, who appeared on behalf of the Law Society, did not present any separate argument in the skeleton arguments that leave to appeal should be given in respect of the costs order other than that contained in the Notice of Motion nor did this aspect feature in the oral argument; concern about the correctness of the decision in relation to costs was thus clearly not the reason behind the decision to seek leave to appeal.  It suffices to say that this court considered that the orders made were wrong in principle for the reasons given in the Reasons for Judgment of 22 June 2005 and that they had to be set aside.  Nothing put in this application demonstrates that there is a valid ground of appeal from this court’s decision in this respect, still less that it raises a matter of great general or public importance which should be considered by the Court of Final Appeal.

8.On this aspect I would note in passing that an affidavit had been prepared on behalf of the Law Society by the Chairman of the Tribunal.  In paragraphs 31 to 35 and 37 to 38 of his affidavit the Tribunal Chairman purported to give an explanation and reasons supplementing the decision of the Tribunal.  This part of the affidavit was immediately objected to by the solicitors for the respondent but the first reaction by the Law Society’s solicitors was that the affidavit in that form was proper.  It was only when they received advice of counsel that they appreciated the error of their ways.  I make this observation because the very fact that the Chairman of the Tribunal and the solicitors acting for the Law Society should see fit even to contemplate filing such an affidavit raises the question as to their appreciation of their respective roles.  Despite the fact that the solicitors for the Law Society had said in correspondence that they no longer sought to rely upon those paragraphs, unfortunately that affidavit in its complete form was put before this court in the hearing bundle and was thus read prior to this court reaching the correspondence which indicated that the particular paragraphs were no longer to be relied upon.

9.The effect of the observations of this court in relation to the duty of the Tribunal and the role of the Clerk to the Tribunal may cause difficulties in relation to future cases but it cannot give grounds for allowing leave to appeal in respect of what was not the basis of this court’s decision.  They were simply observations of this court.  Nothing said of this court’s decision whether in headnotes of reports of the decision or academic writings can alter that position.  The point is thus academic so far as this case is concerned.  I would only add that nothing said in argument, whether by reference to the cases cited or otherwise, leads me to consider that this court was wrong about what it said about the duty of the Tribunal in relation to its decisions and as to the necessity to draft its own decisions. 

Hon Le Pichon JA:

10.I agree.

Hon Burrell J:

11.I agree.

Mr Erik Shum, instructed by Messrs Chui & Lau, for the 1^st and 2^nd Applicants/Respondents

Mr Paul Carolan, instructed by Messrs Wilkinson & Grist, for the Respondent/Applicant