Civil procedure - parties - legal representation - maritime collision - solicitors acting for plaintiff on claim not instructed to defend cross-claim - other solicitors seeking to act for plaintiff's P&I underwriter to defend cross-claim - whether exceptional circumstances justifying leave for co-counselling
Admiralty - collision claim - legal representation - whether party could be represented by different solicitors for claim and for defending cross-claim
P's vessel sank with cargo, fuel and effects on board, after colliding with D's vessel, which was on a ballast voyage and was damaged but later repaired. P brought an action in personam on the instructions of the hull and machinery underwriters (AS) against D, which filed a cross-claim. By a Settlement Agreement, liability was apportioned between D at 1/3 and P at 2/3 with damages to be referred to the Registrar. P's solicitors (HG) had no instructions to represent it on the cross-claim and another firm of solicitors (RSRB) acting for P's liability underwriters (P&I Club), filed a notice of change of solicitors to replace HG to defend the cross-claim. Notwithstanding HG and RSRB's agreement to co-counselling, the Master ordered RSRB to be removed from the record and HG to remain as P's solicitors. RSRB filed, inter alia, a defence for P&I Club and a "co-counselling" summons for HG to remain on record for P's claim and RSRB for P's defence to D's "counterclaim". The Master dismissed the co-counselling summons. RSRB appealed.
Held, allowing the appeal, that:
(1) The primary rule was that there should be no separate representation for co-plaintiffs (Lewis v Daily Telegraph Ltd (No 2)  2 QB 601 applied). (See para.12.)
(2) In general, the insured and insurer could not have separate legal representation even if the claim involved "insured" and "uninsured" elements; or a nominated party was a person behind whom different insurers stood or who was involved in more than one capacity. However, the court had an inherent power to grant leave for separate representation but leave was not likely to be granted and full evidence was needed to justify such an exceptional order (Lewis v Daily Telegraph Ltd (No 2)  2 QB 601, Secker v Oxfordshire County Council (1992 WL 12678895), Elphick v Westfield Shopping Centre Management Co Property Ltd  NSWCA 356 applied). (See paras.13, 16.)
(3) It was appropriate to exercise the discretion to grant an exceptional order of co-counselling of Ps. Given that AS had already paid P in full, AS and P&I Club were the real entities having an interest in this litigation and they had different rights derived from different sources. Second, the claim and cross-claim were commenced as, and remained, separate actions. Third, HG entered into the Settlement Agreement without informing P&I Club which decided, for commercial reasons, not to overturn it and which should not be forced to retain solicitors it had not chosen. Fourth, there was no likely conflict of interest between AS and P&I Club, since liability had already been agreed with damages to be assessed on facts which did not overlap. (See paras.22-31.)
This was an appeal by a firm of solicitors against the decision of the Master to dismiss its summons to represent the plaintiff in defending the cross-claim by the defendant and for another solicitors' firm to remain on record for the plaintiff's claim. The facts are set out in the judgment.
[Editor's note: for earlier related proceedings between the parties, see  2 HKLRD 328.]