Re James Badenoch Qc

HCMP1834/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1834 of 2006

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Before : Hon Ma CJHC in Court

Date of Hearing: 4 October 2006

Date of Judgment: 4 October 2006

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J U D G M E N T

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1.The Applicant applies to be admitted as a barrister for the purposes of advising and representing at trial the Plaintiff in a medical negligence claim brought against a private hospital, an obstetrician and his employers.  The trial of the action is scheduled to take place next April before Suffiad J.

2.The Plaintiff makes the claim by her father and next friend.  She was born on 2 July 1998.  When the Plaintiff’s mother went into labour at the private hospital, the obstetrician gave instructions by telephone to the midwife to administer a drug called Syntocinon to the mother.  The intention was to speed up labour.  According to the Plaintiff’s case, the administration of this drug was negligent both in its being used in the first place and in the dosage that was administered.  This led apparently to a drastic change in the contracting pattern in the uterus and led to the sudden onset of bradycardia.  The Plaintiff’s foetal heart rate drastically declined and this was indicative of severe foetal distress.  According to the Plaintiff’s case, this state of affairs persisted for about half an hour before the Plaintiff was delivered.  The Plaintiff sustained serious brain damage resulting in cerebral palsy.  Now aged 8, she suffers from castastrophic disabilities.

3.The Plaintiff’ claim is a massive one, I understand in the order of about $500 million.  Liability is contested.

4.It is clear from the papers before me that extremely important issues arise for determination in this case, among them the question of the duty and appropriate standard of care owed by hospitals specializing in maternity care in the event of emergencies and the practice of obstetricians advising on important medical manoeuvres such as the speeding up of labour when neither the advising doctor nor a specialist is present (and unlikely to be so for a substantial period of time).

5.The case involves in my view issues of unusual difficulty and complexity.  It was also said by Ms Remedios (who appears for the Applicant today) that the case also involves the determination of issues that might impact substantially on the Hong Kong jurisprudence.  I am not so convinced by this latter ground at the present time although I accept it is a possibility, particularly as the application of the existing law to the facts may not necessarily be an easy one.

6.That the case is of unusual complexity and difficulty can be seen by the number of medical experts engaged by the three parties, altogether twelve.  They are all leading world experts in their respective fields (two paediatric neurologists, six obstetricians, two specialists in midwifery and two experts in neonatal medicine and paediatrics).  It is significant for the purposes of the present application that all but one of these experts are based in the United Kingdom.  I understand that all four of the Plaintiff’s experts are based there.  I should also add that the Plaintiff and her parents now reside in the United Kingdom (in Huddersfield in Yorkshire).

7.The Applicant has seen and advised the Plaintiff and her parents.  More importantly he has seen the experts and has already worked with them in the present litigation.  The role of the experts will be crucial in the trial and, although one cannot be absolutely sure, one’s experience of this type of major personal injuries litigation is that it will be necessary for counsel conducting the trial to be working closely with the experts in the lead up to the trial.  If admitted, I expect the Applicant will be doing exactly that.  In my opinion, the fact that the Applicant will be available to meet the medical experts in order to prepare properly and fully for the trial, is a significant feature in the circumstances of the present case to warrant his admission.  He is able to devote sufficient time to the preparation of the case by meeting the experts in a way that Hong Kong counsel, for obvious reasons, cannot.  It ought of course to be borne in mind that the experts are all working in the United Kingdom and presumably would not easily find the time to come regularly to Hong Kong to prepare for the case.  Much the same can be said for any Hong Kong counsel if he or she were to be expected to go regularly to the United Kingdom to prepare for the case.

8.I ought to point out that there is a possibility that some part of the trial may take place in England since many of the experts are located there.  If this were to be so, it would of course be a great advantage for the Applicant to be instructed.  However, I have not really taken this factor into account as it is speculative at this stage as to whether any trial or any part of the trial would take place in England.

9.Mr Andrew Li (for the Hong Kong Bar Association) in resisting the application has, in his written submissions, criticized the Applicant’s solicitors for the lack of effort in seeking to instruct local counsel.  In fact, local counsel have been instructed : Ms Remedios and Mr Michael Ozorio SC.  There was therefore no need to make any further inquiries.  It is not suggested that leading counsel would somehow be unable to conduct the case skillfully or competently.  Rather, I think the more important point is simply that local counsel of appropriate skill and expertise is not as available as the Applicant.  I doubt whether any local counsel would be as free, as I have said, to meet the experts and adequately prepare the case in the same way as the Applicant.  In the particular circumstances of the present case, which is by no means is a simple one, this is an important factor and is decisive.  It is not necessary to deal with the other grounds raised by Ms Remedios although I must say I am tempted to think that the Applicant, who is acknowledged to be a leading specialist in the field of medical negligence, would be able to add a significant dimension to the proceedings.

10.I recognize that the present case may not easily fit into any of the usual situations in which the admission of overseas counsel is sought.  However, as the court reminded in Re McGregor QC [2003] 3 HKLRD 585, at 591I-592A (paragraph 11(4)), there must be flexibility in the approach adopted : -

“The court must be prepared to adopt a flexible approach to admissions and not treat what is said in Re Flesch QC and other cases as anything more than guidelines.  The applicability (or inapplicability) in any given case of the guidelines enumerated in these cases, while obviously a matter of significant (and in some cases, decisive) weight, is nevertheless subject to the court’s overall discretion in looking at the whole of the circumstances and may involve a balancing exercise between sometimes conflicting factors.  Such flexibility must be the right approach where the court is required to consider as the paramount consideration, the public interest.”

11.Lastly, I should just deal with a technical point raised by Mr Li to the effect that it would be pointless to order the Applicant’s admission since he is not on the Legal Aid panel of counsel willing to act for legally aided persons (see section 4 of the Legal Aid Ordinance, Cap.91).  Section 13(1) of that Ordinance requires counsel appointed to act for legally aided person to be on the panel.  Assuming this to be the requirement, I am of the view that there is nothing in the point.  If the Applicant were to be admitted by this court, he would then be entitled to a practising certificate (albeit a limited one) which would in turn entitle him to be on the Legal Aid panel of counsel (see sections 4(3) and (4) of the Ordinance).

12.For these reasons, I order that the Applicant to be admitted and enrolled as a barrister in Hong Kong for the purpose of advising and representing the Plaintiff in HCPI 717 of 2003 in the trial of that action.

Ms Corinne Remedios, instructed by Messrs Simmons & Simmons for the Applicant

Mr Andrew S Y Li, instructed by Messrs T S Tong &Co for the Hong Kong Bar Association

Mr Louie Wong of the Department of Justice for the Secretary for Justice