Re: William Andrew Brewer Iii and Others

HCMP 2456/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2456 OF 2008

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Before: Hon Ma CJHC in Court

Date of Hearing: 6 January 2009

Date of Judgment: 6 January 2009

Date of Handing Down Reasons for Judgment: 13 January 2009

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REASON FOR JUDGMENT

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1.By a Notice of Motion dated 4 December 2008, the Applicants (William Andrew Brewer III, James Stephen Renard and Michael Joseph Collins), all US attorneys and partners in a US law firm (Bickel & Brewer) applied to be admitted as barristers under section 27(4) of the Legal Practitioners Ordinance, Cap. 159 (“the LPO”) for the purpose of representing a US client, Brunswick Bowling & Billiards Corporation, (“Brunswick”) in proceedings instituted in the Court of First Instance (HCCT 66/2007) under section 34C of the Arbitration Ordinance, Cap. 341 and Article 34 of the UNCITRAL Model Law on International Commercial Arbitration (contained in the Fifth Schedule to that Ordinance).  After hearing submissions from Mr Nigel Aiken SC (for the Applicants), Mr Godfrey Lam SC (for the Hong Kong Bar Association) and Ms Leona Cheung (for the Secretary for Justice), I dismissed the application with the Reasons for Judgment to be handed down at a later stage.  It is right to point out that at the hearing, Mr Aiken effectively abandoned the applications for admission of Mr Brewer III and Mr Collins (for reasons which I shall presently identify).

2.The relevant proceedings for which the Applicants sought admission arose from an arbitration award dated 31 July 2007 in proceedings that had been commenced by Brunswick (as Claimant) against two Respondents (Shanghai Zhonglu Industrial Co Ltd and Chen Rong).  I shall refer to these parties simply as the Claimant and the Respondents.  The arbitration dealt with disputes that had arisen between these parties in relation to a contract (a Supply and Worldwide Distribution Contract dated 12 January 2001, as supplemented) for the manufacture by the Respondents of certain ten-pin bowling equipment.  The Claimant is a well-known manufacturer, seller and distributor of such bowling equipment and has been in this business since 1900.  The dispute between the parties arose from a termination of the SWDC by the Claimant following alleged breaches by the Respondents.

3.The SWDC (which was governed by the laws of the State of Illinois, USA) contained an arbitration agreement whereby all disputes and claims were to be resolved by arbitration in Hong Kong under the UNCITRAL Model Law provisions.  The relevant Notice of Arbitration was given on 14 March 2003.  Three arbitrators were appointed.

4.The substantive hearing of the arbitration took place over 34 days between 7 March 2005 and 10 August 2005.  Without doubt, it was a substantial one.  The following facts were emphasized by Mr Aiken in his written submissions : -

“4.  The arbitration proceedings involve substantial issues of fact and law.  The scale of the proceedings is demonstrated by the following :

4.1  Discovery involved the production of around 46,000 pages of documents by the Company and of around 39,000 pages of documents by the Respondents;

4.2  The proceedings lasted 34 days;

4.3  The Company submitted 52 factual witness statements and 7 expert witness statements; the Respondents submitted 49 factual witness statements and 20 expert reports from 11 expert witness;

4.4  During the proceedings, the Company called 25 factual witnesses and 6 expert witnesses, while the Respondents called 14 factual witnesses and 7 expert witnesses; 20 additional witnesses statements were prepared by the parties to rebut and/or supplement oral testimony;

4.5  Each side submitted written briefs to address specific issues during the course of the proceedings and there were a total of 9 briefs submitted by the parties;

4.6  Closing submissions of both parties totalled around 600 pages; and

4.7  The tribunal, consisted of Anthony Dicks QC SC, Anthony Neoh QC SC and Sally Ann Harpole, took almost 2 years to deliberate the award which ran to almost 200 pages.”

5.Mr Aiken informed me at the hearing that Mr Renard was the lead counsel for the Claimant at the arbitration (assisted by Mr Collins).  Mr Brewer III did not appear to have any actual involvement (or very little involvement) and this therefore explained why the application for his admission was abandoned by Mr Aiken.  The Respondents were represented by Hong Kong Senior Counsel (Ms Teresa Cheng SC).

6.The arbitrators awarded the Claimant US$3,065,775.52 on its claim and awarded the Respondents US$2,966,520.06 on their counterclaim.  The eventual balance found due to the Claimant was assessed at US$89,106.10.

7.Following the publication of the relevant award, the Respondents applied to set aside parts of it.  The Notice of Motion in HCCT 66/2007 was taken out on 7 November 2007.  The hearing of this Motion has been fixed for hearing on 13 January 2009 (three days reserved) before Lam J.  The letter to the Hong Kong Bar Association from the Applicants’ solicitors seeking consent was dated 28 November 2008.  It can therefore be seen that the application for admission is a late one.

8.The following issues in the application to set aside the award have helpfully been summarized by Mr Aiken in the Certificate he has provided supporting the admission of the Applicants : -

“The main grounds of the application may be summarised as follows, being that the Tribunal :

(a)  wrongly applied PRC law rather than Illinois law to the assessment of the certain orders entered into by the Respondents before the date of the SWDC and attributed pursuant to the SWDC to the Claimant;

(b)  awarded damages to the Claimant in the form of revenue when only profits had been claimed;

(c)  failed to address the Respondents’ defence of cure in relation to the Claimant’s claim for inferior quality goods;

(d)  wrongly applied PRC law rather than Illinois law to the various tort claims;

(e)  unfairly allocated more hearing time to the Claimant despite an agreed ‘chess-clock’ procedure;

(f)  wrongly applied the Hong Kong double-actionability rule when Hong Kong law did not apply to the arbitration; and

(g)  refused to arbitrate certain of the Respondent’s counter-claims that predated the SWDC.”

9.In dealing with the merits of the present application, I think it would first be helpful to be reminded of the requirements of section 27(4) of the LPO regarding the admission of overseas counsel.  I do so given the somewhat unusual nature of the application before the court – the Applicants are all US attorneys.  Counsel seeking admission have in the past been barristers (usually Queen’s Counsel) from the United Kingdom or, at least in one instance, New Zealand.  This application represents the first occasion in which an admission has been sought regarding lawyers from the USA.

10.Section 27 of the LPO states : -

“27.  Power of Court to admit barristers

(1)  Subject to subsection (2), the Court may, in such manner as may be prescribed by the Chief Justice, admit as a barrister of the High Court in Hong Kong, a person whom it considers a fit and proper person to be a barrister, provided such person has –

(a)  complied with the requirements;

(b)  passed the examinations; and

(c)  paid the fees,

prescribed by the Bar Council.

(2)  The Court shall not admit a person under subsection (1) unless it is satisfied that that person –

(a)  is not in practice as a solicitor either on his own account or as a partner or salaried employee in a firm of solicitors practising in Hong Kong; and

(b)  satisfies one of the following requirements-

(i)  has resided in Hong Kong for at least 3 consecutive months immediately before the date of his application for admission;

(ii)  has been ordinarily resident in Hong Kong for at least 7 years;

(iii)  has been physically present in Hong Kong for at least 180 days of each of at least 7 years within the 10 years immediately preceding the date of his application for admission.

(3)  If at the time of his admission under subsection (1) the person is a solicitor, the Registrar shall remove the person's name from the roll of solicitors.

(4)  Notwithstanding that a person does not satisfy all the requirements specified in subsections (1) and (2)(b), where the Court considers that he is a fit and proper person to be a barrister and is satisfied that he has -

(a)  the qualification acquired outside Hong Kong to engage in work that would, if undertaken in Hong Kong, be similar to that undertaken by a barrister in the course of ordinary practice as a barrister in the High Court or Court of Final Appeal; and

(b)  substantial experience in advocacy in a court,

the Court may admit such person as a barrister under this section for the purpose of any particular case or cases and may impose such restrictions and conditions on him as it may see fit.

(5)  The Court may, when admitting a person as a barrister, sit in chambers.”

11.The usual route for the admission of barristers in Hong Kong is through section 27(1).  The requirements and examinations referred to in sections 27(1)(a) and (b) are contained in the Barristers (Qualification for Admission and Pupillage) Rules, Cap. 159AC.  These Rules set out the requirements regarding examinations and pupillage which have to be fulfilled before a person may be admitted.

12.Of particular note here are the provisions in relation to the admission of overseas lawyers as barristers.  Apart from the requirement of demonstrating the requisite period of qualifying practice and standing in the relevant overseas jurisdiction, the overseas lawyer must also have passed the Barristers Qualification Examination unless exemptions have been granted : - see section 4(2)(d).  This examination consists of five papers testing the applicant’s knowledge in Contract and Tort (Paper I), Property Law, Conveyancing and Equity (Paper II), Criminal Law, Criminal Procedure and Criminal Evidence (Paper III), Hong Kong Legal System and Constitutional and Administrative Law, and Company Law (Paper IV) and Civil Procedure and Civil Evidence, Professional Conduct and Advocacy (Paper V).  The subjects dealt with in these examinations reflect those very matters with which non-overseas lawyers would have to be acquainted before admission as a barrister.  I should also point out that for overseas lawyers, there is of course still the requirement to serve the requisite period of pupillage in Hong Kong.

13.A less usual route for admission has been where the transitional provisions of section 74C of the LPO applied, namely, in relation to those law students who were, at the time of the amending legislation in 2000, enrolled in a course of study in the United Kingdom.  This route is now no longer open as any application for admission on this basis had to be made prior to 31 December 2004 : - see section 74C(iii).  I refer to these provisions to highlight the historical position in Hong Kong whereby the close links with the United Kingdom provided a ready means to gain admission as a barrister in Hong Kong.

14.I now come to admissions under section 27(4).  Admission under this provision is possible notwithstanding that the stringent requirements regarding examinations and pupillage (which would otherwise be applicable) are not met.  There are three conditions to be fulfilled before the court can exercise its discretion in favour of an admission : -

(1)  The court must consider the applicant to be a fit and proper person to be a barrister.

(2)  The applicant’s qualifications acquired outside Hong Kong to engage in work must be, if such work were undertaken in Hong Kong, be similar to the work undertaken here in the course of ordinary practice as a barrister in the High Court or the Court of Final Appeal.

(3)  The applicant must have substantial experience in advocacy in a court.

The second requirement makes it clear that this provision is in reality restricted to applicants who are practising lawyers overseas.

15.I have the following general observations in relation to admissions under section 27(4) : -

(1)  The intention behind this provision is to recognize there may be exceptional situations whereby, notwithstanding the stringent requirements which must normally be satisfied before a person is admitted to practice as a barrister in Hong Kong, nevertheless it would be desirable to allow such a person to practice in Hong Kong.

(2)  That this is exceptional is shown by the very fact of what otherwise would be the appropriate requirements regarding qualifications as a barrister.

(3)  The desirability of the exception is obvious, that is, broadly put, to enable the public interest to be served in appropriate cases.

(4)  It is a narrow exception in that there is no power to admit persons generally.  Under this provision, admission is possible only for a specified case or specified cases.

16.Underlying the exceptional nature of section 27(4) is, I emphasize, the public interest.  Indeed, it is this aspect that has permeated the reasoning of the court when dealing with applications for admission of overseas counsel under this provision.  The public interest is of course a broad and flexible concept but, in the present context, requires the court to take into account the interests of the public at large, the parties directly affected by the relevant proceedings, the local Bar and the courts themselves in the discharge of their responsibilities in the administration of justice.

17.In most applications for admission under section 27(4), the main aspect for the court’s consideration has usually been whether the case or proceedings for which admission is sought, justifies the admission of overseas counsel.

18.Yet, as the present application demonstrates, before there is any consideration of the question whether the case or proceedings justifies the admission of overseas counsel, the court must be satisfied of those three facets referred to in paragraph 14 above (these being expressly set out in section 27(4) itself).  In most applications for admission dealt with by this court, there has been little or no dispute over these matters.  The reason, as I shall presently elaborate, is that almost all applications for the admission of overseas counsel have involved Queen’s Counsel from common law jurisdictions, in particular the United Kingdom, where the qualifications and practice of a barrister closely resembles those of barristers in Hong Kong.

19.The three conditions in section 27(4) require the court to be satisfied of the following : -

(1)  The applicant must be “fit and proper”.  These are of course general terms, but on the whole, the term “fit” refers to qualifications and experience, while “proper” is mainly a reference to the good standing of the applicant.  In this latter regard, it is important to emphasize the need to provide details of any disciplinary or other proceedings involving an applicant, whether past or present.

(2)  Section 27(4)(a) sets out the requirement of details being provided of the qualifications of the applicant, in particular those professional qualifications as a lawyer.  The court is here examining the qualifications of the overseas lawyer as against the qualifications of a Hong Kong barrister with a view to seeing whether the respective qualifications are comparable.

(3)  Section 27(4)(b) refers to the necessity of demonstrating substantial experience in advocacy in a court.  Full details of an applicant’s involvement in court cases (a ready reference is often in reported decisions) and the number of years of experience as an advocate in court proceedings should therefore normally be provided.

20.These three requirements are the minimum requirements that have to be fulfilled before the court even embarks on a consideration as to whether its discretion should be exercised in favour of admission.  If any of the requirements are not satisfied, that is the end of the application.  It is only when these three requirements are satisfied that the court then applies the principles that have been derived from the numerous cases on admissions of overseas counsel.  Of the three requirements, the dominant one is the general requirement that the applicant is a fit and proper person.  The requirements set out in sections 27(4)(a) and (b) are, on analysis, specific examples of the general requirement.  The emphasis is on suitability to practice as a barrister.  Where an applicant is a barrister from an overseas jurisdiction, it may be that the requisite conditions are easier to demonstrate.  Where the applicant is from a jurisdiction which makes no distinction between barristers and solicitors, more information will have to be provided going to suitability to practice as a barrister in Hong Kong for the specified case or cases.

21.As I have remarked earlier, there is often little or no dispute on these three requirements.  Where, as has hitherto been by far the case, only Queen’s Counsel have sought admission under section 27(4), these requirements have been easily satisfied.  This is particularly so where the applicant comes from a jurisdiction where the qualifications and practice of counsel there substantially mirror the position of Hong Kong barristers.  This would explain the fact that in the past, admissions of overseas counsel in Hong Kong, have all, with one exception, involved counsel from the United Kingdom (a country which, for historical reasons, Hong Kong has always maintained a close connection).  The one exception was the admission of a Queen’s Counsel from New Zealand last year.

22.In the present application, the evidence going to those three requirements consisted of the following (as far as Mr Renard, effectively the only Applicant, was concerned) : -

(1)  A letter from the Office of the Chief Disciplinary Counsel of the State Bar of Texas was provided in which it was certified that the Applicant was licensed to practice law in Texas.  It was also certified that no disciplinary action involving misconduct was being taken against him.

(2)  As far as qualifications were concerned, Mr Renard’s academic and legal qualifications were set out in an extract from the website of his firm.  Apart from just setting out what those were, no further details were provided as to what training was involved in obtaining the qualifications.

(3)  Details of Mr Renard’s experience in advocacy in a court were also somewhat sparse.  In the firm’s website, no details were given save that Mr Renard was apparently voted one of the best lawyers in Texas in a survey of his peers conducted by a magazine.  In the letter to the Hong Kong Bar Association seeking consent, the details of his “substantial advocacy experience in court” consisted only of references to two cases in the Maryland State Court and the Texas Federal Court, and to two arbitrations.

23.I was not satisfied on the evidence it had been demonstrated that Mr Renard had the necessary experience as an advocate in court.  No details were provided of the extent of his involvement as counsel in the two cases involving court proceedings.  Although the two arbitrations involved hearings lasting weeks, they were arbitration hearings rather than court proceedings (it will be borne in mind that the reference in section 27(4)(b) is to advocacy in court).  Mr Aiken submitted that the relevant arbitration proceedings which have led to the court proceedings (for which Mr Renard seeks admission) lasted some 34 days and it was therefore unlikely that a large corporation such as the Claimant would engage any counsel other than one who was experienced in advocacy.  This may or may not be so, but provides scant evidence as to Mr Renard’s experience as an advocate in court.

24.Nor was I satisfied, again on the evidence before me, of the necessary qualifications for the purposes of section 27(4)(a).  Where an applicant comes from a jurisdiction where the system of qualifications and practice as a barrister is similar to Hong Kong (as in the case of the United Kingdom), little more than brief details setting out a person’s qualifications and practice is perhaps necessary.  Where, on the other hand, the system is potentially quite different (as in the case of Texas), the evidence has to go into substantially more detail in order to satisfy this requirement.  Earlier, I referred to the contents of Paper V of the Barristers Qualification Examination for overseas lawyers seeking admission as barristers under section 27(1) (namely, civil procedure and evidence, professional conduct and advocacy).  These subjects provide a good example of the type of qualifications to which a court would pay particular attention when assessing the requirements of section 27(4)(b).  As far as Mr Renard was concerned, there was much more that was required by the court.

25.However, on the assumption that the three basic requirements of section 27(4) are satisfied, ought Mr Renard nevertheless have been admitted for the purposes of the hearing of the application to set aside the arbitration award?

26.The first inquiry on this aspect is to identify the purpose for which the admission of the Applicant is sought.  Again, in the usual application, this is not a controversial matter because the purpose is always to act as an advocate (and invariably as leading counsel) in the relevant proceedings.  Indeed, this is really the only purpose for which a person can be admitted under section 27(4).  The references in that provision to admission as a “barrister” and to substantially experienced in “advocacy” in court point to this conclusion.

27.And yet, this was not the purpose for which Mr Renard was sought at all, certainly not the dominant purpose.  In the affidavit in support of the application, it was stated by the Applicants’ solicitor : -

“I am instructed by Messrs Brewer, Renard and Collins, and verily believe, that they were involved at every stage of the arbitration proceedings.  I respectfully submit that given their familiarity with the record and the underlying documents and evidence of many thousands of pages and of what actually happened during the 35 days of substantive hearing, it would be extremely difficult, inefficient and costly for local counsel to become sufficiently acquainted with the record of the proceedings to be able to properly represent the Claimant, particularly where one of the key grounds for the Respondents’ application to set-aside the Award of the Tribunal is that the Respondents were unable to present their case.  This ground for setting-aside requires the Claimant’s counsel to be fully acquainted with every step of the underlying proceedings and not just those which have been recorded in writing.

In the circumstances, I verily believe that it will be crucial to Nigel Aiken SC, and to assist the Honourable Court, for Messrs Brewer, Renard and Collins to be able to make submissions on the history of the arbitration proceedings and what went on as a matter of fact during the arbitration.  It goes without saying that Messrs Brewer, Renard and Collins will not be required, nor are they qualified, to make submissions on matters of Hong Kong law.”  (Emphasis added)

28.Mr Aiken frankly accepted that the application for admission was an unusual one in that Mr Renard’s admission was sought, not as an advocate who would be presenting the Claimant’s case, but as effectively junior counsel to him.  His role would really be to deal with any point arising as to what occurred in the relevant arbitration proceedings.  The fear was that the Respondents might seek to introduce arguments that would depend on what transpired in the arbitration proceedings.  This would then put the Claimant at a great disadvantage if it were unable to deal with any factual disputes of this nature.

29.I agree with Mr Lam that this was far fetched.  Any dispute going as to what occurred in the arbitration could easily be resolved by reference to the transcript.  If there were to be any substantial dispute as to what had occurred, it would in any event be wrong for counsel to give evidence from the Bar table.  It seems to me bizarre that the admission of overseas counsel should be sought for this limited purpose.  I was also reminded of paragraphs 61 of the Code of Conduct of the Hong Kong Bar.  This provides : -

“61.  A barrister may not accept instructions in a case in which he has reason to believe that he is likely to be a witness.  If, being engaged in a case, it becomes apparent that he is likely to be a witness on a material question of fact he should not continue to appear as Counsel if he can retire without jeopardizing his client’s interests.”

It was for this reason that the admission of Mr Collins was also effectively abandoned by Mr Aiken.  Mr Collins had sworn an affidavit which was to be used in the court proceedings.  However, it seems to me that Mr Renard would be potentially in the same position were he to be asked to give evidence of what transpired in the arbitration proceedings.

30.Moreover, the need for Mr Renard to give an account of what went on in the arbitration was itself highly speculative.  Mr Aiken pointed to no issue in the relevant papers in the court proceedings at present that might require such an account of what took place in the arbitration to be given by him.  It was more a fear of what the Respondents might do; in other words, a fear of the unknown (borne, I suspect, simply out of distrust between the parties).  It was submitted that if it became necessary to go into what took place, the Claimant would be prejudiced in that while the Respondents would have the services of the same counsel who conducted the arbitration on their behalf, the Claimant would not.  Quite apart from the entirely speculative nature of these submissions, if it did become necessary to inform the court of what transpired at the arbitration, this could still be done without the need for one of the Applicants to inform the court in his capacity as counsel.  It is simply misconceived to believe that there is any added value or advantage for such facts to be relayed to the court by counsel from the Bar table, rather than by conventional means.  In the end, Mr Aiken was driven to submit only that it would be more convenient for counsel to provide such information to the court directly rather than by way of instructions to the counsel who would have the conduct of the proceedings.  I can only repeat the point that it is really no part of a counsel’s role in the court to be giving evidence in this way.

31.Accordingly, even if the three requirements of section 27(4) are satisfied (which, in my view, they are not), my conclusions on whether Mr Renard’s application for admission should be permitted, are as follows.

32.First, given that the purpose (and the only purpose) of admission under section 27(4) is as an advocate, I am not even satisfied in the present case that the provision is, as a matter of jurisdiction, engaged.  It seems to me that the main purpose for which Mr Renard sought admission was really, not so much to act as counsel, but as a witness (and only a potential at that).

33.Secondly, even if it were engaged, the present application for admission must be rejected.  Reliance was placed on what is known as the arbitration factor : this is the recognition that continuity of counsel is a weighty factor where arbitration proceedings are involved (see Re White QC, unreported, HCMP 1509/2005, 1 August 2005).  In Re Goddard QC, unreported, HCMP 2589/2007, 11 January 2008, the arbitration factor was explained in the following way : -

“4.  Where overseas counsel seeks admission in the present context - that is, proceedings in court which emanate from arbitration proceedings in which the relevant counsel has appeared in the substantive hearing or otherwise has had a substantial involvement - the court will readily accede to such application.  This factor, which has been for convenience called the arbitration factor, is a powerful one in favour of admission.  It recognizes the uniqueness of arbitration proceedings (in that counsel from overseas will not need special admission by the court to conduct arbitration proceedings here) and also recognizes the logical (if not, fair) consequence of that.”

34.However, the arbitration factor has its limitations.  In Re White QC, the court said this (in paragraph 14) : -

“14.  However, it must be recognized that there are limits to the operation of the arbitration factor.  While I do not wish to set out exhaustively all relevant principles in this regard, the following points ought to be noted : -

(1)The arbitration factor applies only to overseas counsel who conducted (or otherwise had substantial involvement in) the relevant arbitration proceedings out of which the court proceedings arise or from which they derive.  By “relevant arbitration proceedings”, I refer to the relevant arbitration hearing that has led to the court proceedings for which counsel is sought to be admitted.  For example, the relevant arbitration proceedings in the present application comprise the hearing that led to the Award.  Even though there was no actual hearing leading to the Award, the Applicant, I understand, drafted the written submissions and of course, he was the counsel who conducted the main arbitration hearing.

(2)Where a different overseas counsel applies to be admitted under section 27(4) of the Ordinance (that is, counsel other than as identified in sub-paragraph (1) above), the arbitration factor ceases to be a factor in itself.  As stated above, section 2F(c) draws a clear distinction between arbitration proceedings and court proceedings which derive from arbitration proceedings.  Where a different counsel is sought to be instructed, he is in no better a position than any other counsel in that he shares none of the advantages of the original counsel and, as far as the relevant client is concerned, there is no continuity of representation.

(3)The arbitration factor applies on the whole only to leading counsel.  As was emphasized in Re Flesch QC & Another [1999] 1 HKLRD 506, at 516D-F (paragraphs (7) and (8)), in order to gain admission, counsel must be of sufficiently high quality and standing and it would be rare for counsel who is not a Queen’s Counsel (or equivalent) to be admitted.  While the arbitration factor is a substantial factor, it is equally important to bear in mind that admission is being sought for proceedings in court.

(4)The matter for which counsel seeks to be admitted (even where the arbitration factor exists) must be a substantial one.  Where, for example, counsel is only sought to be admitted for minor hearings (such as for directions), it is unlikely that the court would allow the application for admission even if that counsel had appeared in the arbitration proceedings below.

(5)The principles established by cases like Re Flesch QC do not cease to have effect even where the arbitration factor exists, save perhaps for one aspect.  That aspect is the obligation on solicitors to provide details of local counsel who have been approached and of their availability.  Where the arbitration factor exists, by definition, other leading counsel (whether from Hong Kong or elsewhere) will not have represented the client in the relevant arbitration proceedings and therefore not have his advantages in this respect.”

35.The importance of the qualifications and experience of an applicant, even where arbitration proceedings are concerned, is explained in paragraph 14(3) of Re White QC.  The emphasis here is on the fact that court (not just arbitration) proceedings are involved.

36.The facet referred to in paragraph 14(4) of Re White QC emphasizes the importance of looking closely at the nature of the court proceedings for which admission is sought and the role of the applicant in those proceedings.

37.It will therefore be seen by reference to these two facets that the arbitration factor ultimately carried very little weight in the present instance.

38.Lastly, I deal with the question of delay in making the present application for admission.  It will be recalled that the Motion seeking to set aside the arbitration award was dated 7 November 2007.  Service out of the jurisdiction on the Claimant was effected on 1 April 2008.  The relevant affidavit from the Respondents in support of the Motion was dated 15 August 2008.  Yet, the letter seeking consent from the Hong Kong Bar Association was not sent until late November 2008 and the present Motion for admission was dated 4 December 2008.  The hearing of the setting aside Motion was of course fixed for 13 January 2009.

39.The application for admission was not timeous and the delay was not explained.  I accept that in the past, there have been worse delays.  The court has on almost countless occasions reminded practitioners of the need to make applications for admission without delay and where there has been delay, to explain it.  Clearly, where an application has been made late, any delay cannot be used as a reason to support the application (such as where it is sought to be argued that it would be too late to instruct alternative counsel).  There are, however, three other reasons why delay is a factor that will be taken into account by the court against admission : -

(1)  Prejudice may be caused to the other party or parties in the relevant proceedings in relation to which the application for admission is sought.  Where a late application is permitted, such other party or parties may find it too late to instruct overseas counsel of their own.  See here : - Re Flesch QC [2007] 2 HKC 333, at 336F-337B (paragraph 10); Re Roger Ter Haar QC, unreported, HCMP 287/2007, 16 February 2007.  Unlike in jurisdictions such as Singapore, applications for admission of overseas counsel are not notified to other parties in the relevant proceedings or matter.

(2)  The parties who are entitled to be served include the Hong Kong Bar Association, the Law Society and the Secretary for Justice.  Where consent is not forthcoming (usually from the Hong Kong Bar Association), a contested hearing takes place (such as in the present case), in which counsel for the Bar and for the Secretary for Justice regularly appear to make submissions (the Law Society rarely appears).  Like any other hearing in court, adequate time must be allowed for parties to prepare their submissions.  All too often, the lateness of applications results in a compressed timetable for all concerned (not to mention difficulties in instructing counsel), with the attached risk therefore of inadequately prepared submissions (this was not, I should point out, what had occurred in the present instance).

(3)  From the court’s own point of view, there is no reason for applications for admission to be treated almost as urgent ones, with dates having to be given for the hearing of the contested application at short notice.  The court’s diary is often tight and although urgent applications will always be accommodated, there is, I emphasize, no reason at all why applications for the admission of overseas counsel should be treated in the same way.

40.Given the reminder (once again) of the need to make an application for admission in good time, in future, parties should not be surprised if applications are dismissed or not entertained simply on the ground of unexplained delay alone.  This is not anything new : the warning was given as long ago as 1998 by Chan CJHC in Re Flesch QC [1999] 1 HKLRD 506, at 516I-J : -

“An application for admission should be made as soon as practicable after it has been decided that overseas counsel will be briefed to appear in the Hong Kong courts.  Where a hearing date has already been fixed, that should also be disclosed in the application.  In any event, if an application is made less than two weeks before the hearing date, it will not normally be entertained, even if it is by consent, unless there are exceptional circumstances;”

41.In Re Flesch QC [2007] 2 HKC 333, at 337A-B (paragraph 10), the court also gave the following warning : -

“These considerations apart, where a late application is made, the court is entitled to a full and proper explanation.  In the absence of one, it is to be assumed there is no proper explanation.  By itself, it may justify the court in refusing an application for admission.  It is a matter simply of candour and where it is perceived to be a lack of it, a court may well regard the application as not being justified.”

42.For the above reasons, the application for the admission of the three Applicants (which in the end, as I have said, became an application only for the admission of Mr Renard) was dismissed.  This application was, as I have said, the first occasion which US counsel have sought admission in Hong Kong under section 27(4).  I do not discount the possibility of a successful application in the future but the present application fell very far short of what was required.

Mr Nigel Aiken SC, instructed by Messrs Lovells for the Applicant

Mr Godfrey Lam SC & Mr P Y Lo, instructed by Messrs Anthony Chiang & Partners for the Hong Kong Bar Association

Ms Leona Cheung of the Department of Justice for the Secretary for Justice