Update on Overseas Barrister and Solicitor Advocate “Mixed-Doubles”

As previously reported (Industry Insights, February 2021, “Update on Ad Hoc Admission of Overseas Barristers 2020-21”), in Re Simpson QC the Court of First Instance and the Court of Appeal allowed an application for ad hoc admission to the Hong Kong Bar but, in doing so, they refused to remove the usual condition that the applicant appear with a local barrister. In the first such application of its kind, the applicant’s legal representatives had sought to remove the condition in order that the applicant could appear only with one or more solicitor advocates in the proceedings for which the applicant sought admission.

The Law Society of Hong Kong (as an intervening party in the appeal) and the applicant applied to the Court of Appeal for permission to appeal to Court of Final Appeal but that was rejected on 31 March 2021 ([2021] HKCA 450). Both appellants have applied to the Appeal Committee of the Court of Final Appeal for permission to appeal and, at the time of writing, those applications are due to be heard on 14 July 2021.

In the meantime, the applicant’s ad hoc admission is for the purpose of appearing at the trial of proceedings that are due to commence on 28 June 2021 (HCCL 9/2019) with an estimated duration of approximately fifty days – therefore, the applicant will have to appear with a local barrister irrespective of whether he also appears with a solicitor advocate. However, the fact that the application to the Appeal Committee has not been able to be heard before the commencement of the trial should not detract from the importance of the issues raised in Re Simpson QC.

Based on the judgments in Re Simpson QC to date, the application to the Appeal Committee is likely to focus on some interesting points of public importance – including, what is the distinction between a barrister and a solicitor advocate (if any) in this context and, assuming there is such a distinction, is it relevant when considering an application for ad hoc admission pursuant to s. 27(4) (“Power of the Court to admit barristers”) of the Legal Practitioners Ordinance (Cap. 159).

There is also the point that, while applications for ad hoc admission turn on their facts, the Court of Final Appeal rarely (if ever) gets a chance to review what is meant by the “public interest” in the context of such applications – the relevant legal principles having been set out in the landmark case of Re Flesch QC [1999] 1 HKLRD 506 (known as the “Re Flesch QC guidelines”). The public interest is paramount, which includes having a strong and independent local Bar. As things stand, the judgments of the Court of First Instance and the Court of Appeal in Re Simpson QC operate (in practice) as a prohibition against an overseas barrister appearing only with a solicitor advocate – however, the public interest also involves the development of a strong pool of “local advocates”, which includes solicitor advocates.

A final appeal in Re Simpson QC would give the Court of Final Appeal an opportunity to review the development of the legal principles relevant to an application for ad hoc admission in the current circumstances of Hong Kong – a generation on from Re Flesch QC and almost a decade on from the introduction of solicitor advocates in Hong Kong.

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Partner and Accredited Mediator, RPC

Focusing on commercial disputes, Charles Allen is a solicitor advocate supporting clients in domestic and cross-border litigation as well as in international arbitrations across numerous jurisdictions.

During the course of more than 20 years of practice in Asia, Charles has been involved in a wide range of disputes before the Hong Kong courts as well as in other jurisdictions around the region, including China, Singapore and India. 

Charles also specialises in domestic and international arbitration across a range of industries and has extensive experience under various rules including HKIAC, ICC, LCIA, UNCITRAL and LMAA. He has handled numerous institutional and ad hoc arbitrations as counsel, and has also sat as arbitrator.

Among others, Charles is on the arbitrator panels of the Hong Kong International Arbitration Centre and the Law Society of Hong Kong. He is a Fellow of the Chartered Institute of Arbitrators.

Charles is a versatile and "very sharp and tactical lawyer" who represents clients on a variety of commercial disputes. He acts for a range of clients, including individuals, private and listed companies, multinationals, conglomerates and financial institutions.

He is dual qualified in Hong Kong where he has higher rights of audience in civil matters.