Bar Council of Hong Kong Bar Association v Barristers Disciplinary Tribunal
Court of First Instance
Constitutional and Administrative Law List No. 159 of 2014
Zervos J
Administrative Law
16 October 2015

Judicial review – withdrawal of application by consent – importance of complying with Practice Direction SL3 and need to consider public interest in light of subject matter of review

The Bar Council was granted leave to judicially review the decision of a Barristers Disciplinary Tribunal dismissing a complaint of D, a defendant in a criminal trial, against his barrister (“B”). D’s conviction was quashed on appeal and he accused B of flagrant incompetence in failing to call a witness without consulting first D (see [2015] 2HKLRD 150). The parties now sought an order by consent that the judicial review be withdrawn with no order as to costs. The Judge directed the parties to comply with para. 23(1) of Practice Direction SL3 (the “PD”). This requires the solicitors involved to file inter alia a short statement setting out the matters relied on as justifying the consent order sought and citing any relevant authorities and statutory provisions. Short statements were submitted stating that the Bar Council had accepted B’s representations that he had been vindicated by the Court of Appeal which held that the decision of another barrister, who was involved in the same case as B, not to call a witness was correct in law, so that it could not be said that B’s decision was negligent or had caused injustice to D.

Held, granting the order sought, that the Court was not a rubber stamp. It was for the Court, in the exercise of its discretionary jurisdiction, to satisfy itself that the order sought could be made on the case established, even though it was effectively unopposed. Hence, a short statement should provide sufficient reasons and circumstances that would justify and legitimise the order. The short statement served to ensure that the disposal order was just and appropriate taking into account the parties’ interests and any wider public interest which might be relevant to the case, where the subject matter of the review involved the professional conduct of a barrister in a criminal trial.

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