Read the full judgment text of CACV 000062/2005 on BabelCite. This Court of Appeal judgment was delivered on 11 January 2006 before Rogers VP, Le Pichon JA and Lunn J.
Disciplinary proceedings – solicitors – professional indemnity – Solicitors (Professional Indemnity) Rules Cap. 159 – paragraph 2(5)(a) of Schedule 1 – Council's demand for further sum to make up deficit or anticipated deficit in the Solicitors Indemnity Fund – HK$25,575 demand issued March 2003 payable 30 April 2003 – solicitor failed to pay by deadline but paid before extended deadline of 12 May 2003 – Law Society brought disciplinary proceedings for conduct unbefitting – Solicitors Disciplinary Tribunal found solicitor guilty, imposed $3,000 fine and ordered payment of one third of costs including Clerk's costs – appeal to Court of Appeal – whether Tribunal should have considered validity of Council's call under paragraph 2(5)(a) – whether 'deficit' or 'anticipated deficit' contemplated cash flow deficit or balance sheet deficit – whether balance sheet of Fund as at 11 March 2003 was available – whether money raised was needed in the Indemnity period in which the call was made – whether Clerk's involvement in preparing Tribunal's findings was improper – whether Tribunal erred in ordering solicitor to pay Clerk's costs – Court of Appeal held that Tribunal should have considered the legality of the call – substantial unanswered questions about meaning of 'deficit' and method of calculation of balance sheet – cash flow interpretation arguable given that anticipated depletion fell in the following Indemnity period – judicial review not the appropriate primary remedy and should be a last resort – Rule 13 of the Rules concerned quantum disputes not legality – Clerk's role in preparing findings improper – Tribunal must write its own reasons and not delegate that function – Clerk's legal research was undisclosed to the solicitor and conducted in secret – Clerk was partner of the then President of the Law Society creating appearance of compromised independence – ordering solicitor to pay Clerk's costs foisted on the solicitor the cost of the Tribunal doing its own work – total costs of over $350,000 against a $3,000 fine demonstrated disproportion – appeal allowed – Tribunal's order set aside – matter remitted to differently constituted Tribunal – order nisi for solicitor's costs here and below.
Legal issues: Tribunal's refusal to consider validity of shortfall call · Clerk's role in preparing Tribunal findings · Ordering solicitor to pay Clerk's costs
Outcome: Appeal allowed; the Tribunal's order was set aside and the matter was remitted to be reheard by a differently constituted Tribunal
Cited by 2 cases