Ad Hoc Admission of Overseas Barristers and "Mixed Doubles"

In Re Simpson QC [2019] HKCFI 2689 the High Court allowed an application, pursuant to s. 27(4) of the Legal Practitioners Ordinance (Cap. 159), for an overseas barrister to advise and appear for the plaintiffs at the trial of substantial proceedings in Hong Kong, on condition that he appear with a local barrister. However, in the first such case of its kind in Hong Kong, the court declined to allow the applicant to appear only with the solicitor advocates having the conduct of the underlying proceedings without a local barrister. Interestingly, the removal of the condition was supported by the Secretary for Justice but opposed by the local Bar. 

The circumstances of the application would appear to raise important issues of public importance for the development of solicitor advocates in Hong Kong. Senior local barristers already appear in proceedings together with solicitor advocates (so-called "mixed doubles") and the removal of the condition (to allow an overseas barrister to appear only with a solicitor advocate) would take this one step further.

In addition to the development of the profession of solicitor advocates in Hong Kong, the decision in Re Simpson QC raises some important issues regarding access to justice and client choice. It appears that the decision (in particular, the imposition of the condition) is being appealed to the Court of Appeal (see the Report of the Bar Association's Standing Committee on Overseas Admissions, December 2019, paragraph 4). 

Appeals arising out of contested applications for ad hoc admission are rare; for example, see Re Mably [2014] 1 HKLRD 627 – an exceptional case of a successful application for ad hoc admission by a junior overseas barrister. However, such is the importance of the issues raised in Re Simpson QC, an appeal to the Court of Final Appeal appears possible. If successful on appeal, the condition attached to the applicant's ad hoc admission would (presumably) be to the effect that he could appear in the Hong Kong proceedings together with a local barrister or a solicitor advocate. 

At the time of writing, the most recent contested application for ad hoc admission is Re Perry QC [2020] HKCFI 1521; which also appears to be the only contested application since Re Simpson QC. Given the Covid-19 pandemic and the limited options (at present) to use video conferencing for trials in Hong Kong, it is likely that the number of applications for ad hoc admission will be much lower this year. The Report of the Bar Association's Standing Committee on Overseas Admissions (December 2019) shows that for 2019 there were only seventeen applications by overseas barristers to practise in Hong Kong on an ad hoc basis. This is much lower than the average number of applications in previous years. 

The application for ad hoc admission in Re Perry QC was opposed by the Bar Association and the Secretary for Justice; the latter acting as the proponent of the public interest and whose role is to make impartial submissions. The application in Re Perry QC was allowed by the court and is for the purpose of appearing to represent two appellants in an appeal before the Court of Appeal arising out of an offence of allegedly living off the earnings of prostitution in the context of a so-called "compensated dating" forum for men and women "members". The legal issues in the appeal appear to be complex and an appeal to the Court of Final Appeal is likely. 

Despite the application in Re Perry QC being granted, the Secretary for Justice saw fit to apply for the costs of an adjourned hearing in the proceedings. The application for costs was refused by the court ([2020] HKCFI 1796). As applications for ad hoc admission of overseas barristers turn on the application of the public interest, adverse costs orders should be rare – unless there are exceptional circumstances, the usual order is for there to be "no order as to costs". 

– David Smyth, Senior Consultant, RPC 

Jurisdictions: 

Senior Consultant and Accredited Mediator, RPC