Re James Badenoch Qc

HCMP 1890/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1890 OF 2012

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Before: Hon Cheung CJHC in Court

Dates of Further Evidence/Submissions: 4, 8, 10, 11 and 12 October 2012

Date of Further Judgment: 17 October 2012

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FURTHER JUDGMENT

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1.This judgment is further to the judgment handed down on 27 September 2012. In paragraph 34 of that judgment, the court gave leave to the parties to file or lodge further evidence/submissions in relation to the possible expansion of the scope of the applicant’s admission to cover the main trial of HCPI 228/2010 fixed for November 2012. Evidence and submissions have since been filed/lodged and served by the parties. Suffice it to say, the applicant’s further evidence and submissions have gone quite outside the scope of leave given by the court and both the Secretary for Justice and the Bar have been forced to respond to them (out of abundance of caution). In view of the conclusion that I have reached, I see no point in spending further time on this unsatisfactory aspect of the case save to say generally that court directions must be complied with strictly but if any difficulties or unforeseen matters are encountered in complying with them, an application can and should be made to the court to vary them. What is not permissible is for a party to ignore the directions and just do whatever he or she wants.

2.Leaving aside the question of leave, I am not satisfied by the further evidence and submissions from the applicant that the ambit of the applicant’s admission should be expanded to cover the main trial.  I am not persuaded that no suitable local senior counsel are available to conduct the main trial.

3.To the extent that the further evidence and submissions seek to argue that the main trial is such an unusually difficult and complex one that it warrants the admission of the applicant, they directly contradict the court’s judgment and constitute an attempt to re‑argue the issues before the court.  This is wholly impermissible, nor is it something authorised by the liberty to file further evidence given by the court.

4.Insofar as the new materials seek to say that none of the available local silks are as good as the applicant, that is not the issue before the court.  What is in issue is whether those available have the required expertise and experience to conduct the main trial.

5.As regards the suggestion that the leading counsel conducting the main trial will have to be involved in arguing the unique question of discount rate (and vice versa), it is, with respect, wholly misplaced.  The question of discount rate, to be heard by Bharwaney J as a preliminary question in HCPI 228/2010 in conjunction with two other cases raising the same issue, is a very general issue.  It relates to the discount rate that should be applied in Hong Kong in view of the local economic and other conditions, when selecting multipliers for making awards in personal injuries litigation generally.  This general issue is not dependent on the facts of any particular case, or on any specific claims by any particular plaintiff.  That is precisely why the other two cases can conveniently be joined for trial of this issue.

6.Conversely, my order admitting the applicant to conduct the hearing on behalf of the Hospital Authority on the question of discount rate has nothing to do with what multipliers should be chosen in making awards in favour of the plaintiff in HCPI 228/2010 in respect of her loss and damage (assuming that liability can be established).  Multipliers are matters for the main trial.  There is no question of this (that is, choosing the appropriate multipliers based on the facts found by the court and on the claims upheld by the court after trial) being an unusually difficult and complex matter warranting the admission of a London silk.

7.Insofar as the applicant’s new materials suggest otherwise, this is again an attempt to re‑argue matters which were, or should have been, argued before the court on the last occasion.

8.Furthermore, it is plain from the above that the concern of the Hospital Authority and its solicitors on possible conflict of interest on the part of available and otherwise suitable local senior counsel is unjustified.  The fact that counsel is acting for the plaintiff in some other litigation against the Hospital Authority where the same question of discount rate is also being raised will not give rise to any actual or potential conflict of interest if he is only instructed to act for the Hospital Authority in the main trial in HCPI 228/2010, which is what is being contemplated here.  As already explained, as the Hospital Authority’s counsel for the main trial, counsel will not be required to be involved in the hearing on the discount rate.  They are simply two separate matters.  I do not understand the Hospital Authority or its solicitors to be saying that just because a silk has appeared or is appearing against the Hospital Authority in one medical negligence claim, he or she cannot or should not be instructed to act for the Hospital Authority in another totally unrelated medical negligence claim.

9.In any event, I am not satisfied, on the evidence, that no suitable local counsel are available to act for the Hospital Authority in the main trial.

10.I refuse the application to vary the order of admission.

Kennedys, solicitors, for the applicant

Mr Raymond Leung & Mr Jeffrey Chau, instructed by Anthony Chiang & Partners, for the Hong Kong Bar Association

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