In the Matter of an Application for Exemption from Submitting a Form 4  HKCFI 1901 may have slipped some solicitor principals' attention, although it was formally reported ( 4 HKLRD 223). The case contains a useful insight into the court's approach to an application to exempt a person from one of the formalities in the Admission and Registration Rules (Cap. 159B) pursuant to rule 13.
In this case, the applicant was a trainee solicitor and she (in effect) sought exemption from having to file a "Form 4" ("Application for a Certificate of Eligibility for Admission as a Solicitor") counter-signed by her former principal. The Form 4 requires a trainee and a principal to confirm on oath that the training contract and the training have fulfilled the necessary statutory requirements. A certificate of eligibility is usually a prerequisite for a trainee to be admitted as a solicitor.
The power of exemption is exercised by the Chief Judge of the High Court on "special grounds" and subject to such conditions as he deems necessary. An example might be the unfortunate death of a trainee solicitor's principal or his or her disappearance.
In this case, the application for exemption was submitted against the background of the trainee apparently having fallen out with her principal. At some point, their working relationship appears to have taken a turn for the worse. Eventually, the trainee commenced legal proceedings against the principal's firm. It appears that the trainee was unable to obtain the principal's signature on the Form 4.
In such circumstances, controlling case law establishes that the court should make two enquiries. First, has the underlying purpose of the Form 4 been fulfilled; namely, a satisfactory traineeship and the applicant being fit and proper to be a solicitor. Second, is there a cogent reason why the applicant is unable to provide a Form 4.
In this case, the Chief Judge decided that (based on the papers and without the need for an oral hearing):
- the underlying purpose of the Form 4 had been fulfilled; and
- given the breakdown in the relationship between the trainee and the principal, there was a cogent reason why the she could not provide a signed Form 4.
Therefore, the exemption was granted to the extent that the Form 4 to be used by the trainee (to apply for a certificate of eligibility) did not need to be completed or signed by the principal; the exemption was not to be used for any other purpose.
It is worth noting that an application for exemption pursuant to rule 13 should not be adversarial litigation. The application is made by Originating Summons with supporting evidence and the court may give directions for the filing of further evidence or submissions.
The Law Society must be given notice of the application and its role is to arrive at a clear decision (whether to consent, oppose or be neutral), having given the matter careful consideration. Crucial to the Law Society's deliberations is the public interest (Re Fu Sze Ying, HCMP 908/2008, 6 June 2008). As the Chief Judge acknowledged in this case, the Law Society's consent to an application for exemption is "highly relevant" (paragraph 11).
Fortunately, applications for exemption in circumstances where trainees and principals have personally fallen out are not that common. When this does occur, with the Law Society (in effect) caught up in the middle, it is worth noting that senior judges may take a more understanding view of a trainee's predicament – particularly, given a perceived imbalance in (among other things) the experience of the parties. In these circumstances, principals might do well to reflect on the reasons for withholding their signature on a Form 4.