Cases on Ad Hoc Admission of Overseas Counsel in 2015

Warren Ganesh, Senior Consultant, Smyth & Co in association with RPC

Applications by English Silks (QCs) for ad hoc admission to practise as a barrister in Hong Kong turn on their facts and are determined according to a principle based discretion of the judge hearing the application (the so-called Re Flesch Guidelines). That said, each year there are certain judgments dealing with such applications that give some interesting guidance. As the Re Flesch Guidelines evolve, the thread that runs through all related judgments is the “public interest”.

In short, an application for ad hoc admission will seek to show that it is with respect to a case that: (i) requires the determination of legal principles that impact substantially on the development of the law in Hong Kong; and/or (ii) is one of unusual difficulty or complexity. The fact that a case involves the determination of legal principles that are likely to end up in the Court of Final Appeal is a powerful factor in favour of admission (part of the so-called “CFA factor”).

Of the publicly available judgments released so far this year, the following contain some useful pointers:

  • Re Perry QC [2015] HKEC 750. Although the application was described as “a late one”, it was granted. The application was in order to appear on behalf of a barrister in an appeal against an order of the Barristers Disciplinary Tribunal. An important point in the appeal concerned: “how the autonomy of counsel in the conduct of a defence in a criminal trial impact upon the duty to advise a client on evidence in the course of trial in light of the oral testimony of a witness”. The applicant’s familiarity as an advocate in the courts of Hong Kong is noted in the judgment, as was his ability to add a “significant dimension” to the determination of issues in the appeal. The fact that the applicant was proposing to represent the barrister on a pro bono basis, in the best traditions of the Bar, was not a relevant factor.
  • Re Pannick QC [2015] HKEC 1117. The application was in order to represent a party in proceedings before the Court of Appeal; those proceedings would consider whether ss. 81(4) and 84(3) of the Arbitration Ordinance (Cap. 609) were unconstitutional because they disproportionately restricted the power of final adjudication provided for in Art. 82 of Hong Kong’s Basic Law. If the application for leave to appeal was dismissed (as it subsequently was – [2015]HKEC1626), the Court of Appeal would, in effect, be serving as a final appeal court. Therefore, the “CFA factor” could be said to be relevant to the application and it was granted.
  • Re Crow QC [2015] HKEC 1236. The application was in order to represent a defendant in its appeal to the Court of Appeal. The main issue in the appeal related to the execution of a deed and whether the managing director had actual or apparent authority to bind the defendant. This was said to raise an important issue of law and to be unusually difficult or complex. However, the court noted that the issue appeared to relate more to the interpretation of the company’s articles of association. The HK$ multi-millions in dispute did not change this. The application was refused.
  • Re Parsons QC [2015] HKEC 1742. The application was in order to represent the plaintiff at the trial of a “collision action”. A “novel” limitation issue arose in connection with Art. 2 of the Convention on Limitation of Liability for Maritime Claims 1976. The application was refused demonstrating that “novelty” does not mean a point is unusually difficult or complex. Rather, the court observed, what was needed was the assistance of good trial counsel able to deal with technical expert evidence, but this did not justify ad hoc admission of overseas counsel. This is not to rule out the assistance of overseas counsel should there be an appeal (particularly, to the CFA). Overseas counsel and those who wish to engage their services will also note the closing comments of the Chief Judge (see para. 27 for full context):

“When a pure point of law is involved, overseas counsel’s input can be easily sought and obtained via the internet, whilst leaving the actual advocacy work to be done by local counsel”.

In all these cases, the expertise of the applicants is not in doubt. However, that expertise has to be matched with the right case and therein often lies the real hurdle with these applications.