Admission of Overseas Counsel (2017): Looking A Tad Rosier?

As previously noted (Industry Insights, December 2016), overall 2016 was a tougher year for overseas applicants (English QCs) looking to obtain ad hoc admission to the Hong Kong Bar, pursuant to s. 27(4) of the Legal Practitioners Ordinance. While statistics for 2017 are too early to collate, the first half of the year appears to have got off to a better start judged by reported cases (at the time of writing).

First, in re Girolami QC an application for ad hoc admission was approved by the court (HCMP 3657/2016, 23 January 2017). The application was in order to appear at a hearing of an application for permission to appeal before the Appeal Committee of the CFA ("Court of Final Appeal") in complex commercial proceedings (albeit, the Appeal Committee later refused the prospective appellant permission to appeal).

Second, in re Lord Pannick QC an application for ad hoc admission was approved by the court with respect to high profile constitutional proceedings headed for the CFA (HCMP 316/2017, 1 March 2017); the application having not been opposed by the local bar or the Secretary for Justice.

Third, in re Rose QC the court allowed the ad hoc admission of two leading QCs to represent an appellant and the Director of Immigration on an appeal to the Court of Appeal (HCMP Nos. 350 and 415/2017, 5 April 2017, and CACV 117/2016). At issue in the appeal is the lawfulness of the Director's policy in refusing to grant "dependency visas" to same-sex couples and (among other things) the meaning of "spouse". The fact that the case is likely to end-up in the CFA was an important factor in allowing the applications. That both applications were approved also represents a so-called "equality of arms".

While the public interest is the guiding principle in deciding applications for ad hoc admission, in re Rose QC the court suggests that the determination of whether a matter is unusually difficult or complex, such as to justify the admission of overseas counsel, "is a matter of feel and judgment" (paras. 19 and 38 of the judgment).

Although the jurisprudence surrounding the admission of overseas counsel has evolved over the last two decades, in re Rose QC one detects a more flexible approach. There is an interesting passage in the judgment (at para. 35):

"It is not invariably the case that overseas counsel are admitted to lead local Senior Counsel and junior counsel. There is ample precedent for overseas counsel to be admitted to lead local junior counsel without a local silk also being involved. [The appellant] is legally aided, and her solicitors formed the view that it would not be necessary or justified to engage both overseas Queen's Counsel and local Senior Counsel. There is nothing improper about this."

Prospective applicants for ad hoc admission and their legal representatives would do well to stay on top of developments, keep calm and carry on in a timely manner (while having some protection against potential applications by the local bar for adverse costs orders).