Ad hoc Admission of Overseas Counsel 2017–18

In 2017 we reported that contested applications by overseas counsel for ad hoc admission to the Hong Kong Bar, pursuant to s. 27(4) of the Legal Practitioners Ordinance (Cap. 159), appeared to be gaining some ground (Industry Insights, May 2017), after experiencing something of a rough patch (Industry Insights, December 2016).

Interestingly, until the recent case of Shân Warnock-Smith QC, [2018] HKCFI 689, the application for ad hoc admission in Dinah Rose QC (the subject of the May 2017 Industry Insights) was the last one of which either writer is aware that produced a reported judgment.

The application in Shân Warnock-Smith QC was unsuccessful. In brief, the applicant sought permission to represent the appellants in substantial appeal proceedings arising out of a case to do with the provision of private banking, investment management and trust services. The court proceedings out of which the appeal arises are undoubtedly complex.

However, the court (as is customary, a single judge of appeal sitting at first instance) was not persuaded that the application met the guidelines for ad hoc admission, with the public interest being the ultimate aim. In particular, the issues arising in the appeal were not considered to be unusually difficult or complex (in the context of the test for ad hoc admission), nor were they considered to be of such nature that they would have a substantial impact on the development of local jurisprudence.

In some respects, the application in Shân Warnock-Smith QC is not dissimilar to that in cases such as Lord QC, HCMP No. 1397 of 2013, and Hapgood QC, HCMP No. 101 of 2013. For example, while the applicant’s expertise was not in question, the proceedings (in respect of which ad hoc admission was sought) appear to involve legal principles that primarily concern the construction of documents or depend on the application of facts. Issues of novelty (of themself) do not satisfy the test for ad hoc admission (Parsons QC, HCMP No. 1654 of 2015).

Of interest, what appears to have crept into some of the language of the court’s jurisprudence is a reference to aspects of the test for ad hoc admission being a “matter of feel” (Shân Warnock-Smith QC, at para. 20, and Dinah Rose QC, at paras. 19 and 38); while not helpful for applicants, their instructing solicitors or those they represent, a “feel test” does represent an actuality.

So far, 2018 appears to have been a relatively quiet year for applications for ad hoc admission. That carries on a trend from 2017. The Bar’s “Report of Standing Committee on Overseas Admissions 2017” confirms that there were only twenty-three applications for ad hoc admission in 2017; the lowest number that either writer can recall in almost ten years. Of these applications, twenty-one were not opposed by the Bar; the highest ratio that either writer can recall. Whether these two matters are related is not clear.

What is clearer is that the trend with applications by English Silks for ad hoc admission is generally declining, while (in contrast) their presence in arbitrations in Asia is increasing.

Amid all of this, the trend with new admissions by local barristers (and “net growth”) remains stable – one might even describe it as “healthy” (Bar’s “Report of Standing Committee on Local Admissions 2017”). That is a good thing.

Jurisdictions: 

Partner, RPC

Senior Consultant, RPC