“For Noting” – Bar’s Revised Guidelines For Ad Hoc Admission

David Smyth, Senior Partner, Smyth & Co in association with RPC

What are these?

They are the Hong Kong Bar Association’s “Revised Practice Guidelines For Ad Hoc Admission of Overseas Counsel”, as at July 2015 (the “Guidelines”). The Guidelines came into effect on 10 July 2015 and at the time of writing do not appear to have been referred to on a contested application before the Chief Judge. It is unclear what prior consultation there was between the Bar Council and the Chief Judge (who usually hears ad hoc admission applications) or the solicitors’ profession.

The Guidelines set out the Bar’s approach to applications by overseas counsel for ad hoc admission to practise in Hong Kong, pursuant to s. 27(4) of the Legal Practitioners Ordinance (Cap. 159). It is important to note that the Guidelines are just that. They are not a Practice Direction or a Practice Note; although, certain passages may appear to read as such. At the time of writing, the Bar’s website states that the Guidelines “shall apply and must be duly complied with”.

Who should read them and why?

Any overseas counsel seeking ad hoc admission to practise in Hong Kong and their instructing solicitors in the matter for which admission is sought. In practice, this means overseas English QCs (“Silks”).

The Guidelines read a bit like a “wish list” of issues that the Bar considers are relevant to applications for ad hoc admission; strict compliance is described as normally being “the minimum requirement for the Bar to consider giving consent to the application” (para. 11). The fact that the Bar does not consent, however, does not mean that a Silk will fail to persuade the Chief Judge to grant an application.

The Guidelines also come with an updated “Checklist”, which is a tad easier on the eye compared with the previous version but its contents have not changed much. One question (under “Mechanics of Application”) now asks: “Has the applicant been involved in earlier proceedings (eg, arbitration) in relation to the same case”. One can see how an answer to that question could lead to efficiencies in terms of cost and time (particularly, as regards certain matters)*.

What is new?

The new provisions in the Guidelines include:

  • a more explicit warning concerning prejudice stated to be caused by "late" applications;
  • a more specific request for details of the unusual difficulty or complexity of the facts or the law arising out of the case or of the determination of legal principles which may have a substantial impact on the development of Hong Kong law and the likelihood of the case making its way to the Court of Final Appeal;
  • a statement that an application for ad hoc admission of overseas junior counsel is “only justifiable in truly exceptional circumstances” (see – Re Mably [2013] 3 HKLRD 738, upheld on appeal; and Industry Insights, January 2014, Ad Hoc Admission of Junior Overseas Barrister”);
  • an express reservation of rights to seek costs against an applicant, in the event that the Bar refuses to give its consent and the application is dismissed by the court.

Anything else?

The Bar’s “Report of the Special Committee on Overseas Admissions” for 2014 confirms that last year there were 47 applications by overseas counsel for ad hoc admission to practise as a barrister in Hong Kong. That number is about an average in recent years. Of those applications, 41 were consented to by the Bar (which is a higher proportion than in recent years). The total number of applications allowed by the court is stated to be 36 (which is statistically unremarkable). Irrespective of the Bar’s consent, an application can be dismissed.
 

For more details, see – (i) http://www.hkba.org/admission-pupillage/ad-hoc/index.html; and (ii) http://www.hkba.org/whatsnew/chairman-corner/annual-statement/2014-2015/index.html.

* Aside: It is worth noting that ad hoc admission is not required for overseas counsel to appear in arbitrations in Hong Kong; they frequently do and with considerable skill.