RE LUKE ARTHUR PARSONS QC

HCMP 1654/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1654 OF 2015

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J U D G M E N T

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The facts

1.  This is an application for the ad hoc admission of Mr Luke Parsons QC as a barrister of this court under section 27(4) of the Legal Practitioners Ordinance (Cap 159) to represent the respective plaintiffs in HCAJ 188/2013 (“the collision action”), the trial of which has been fixed before the Admiralty Judge, Ng J, for 9 to 17 March 2016, and HCAJ 189/2013 (“the limitation action”), which has yet been set down for trial.

2.  Very briefly, the two actions arose out of a sea collision between ELENI and HEUNG‑A DRAGON in Vietnamese waters on 7 November 2013.  ELENI was seriously damaged in the collision, and HEUNG‑A DRAGON sunk with the cargo on board.

3.  The collision action was commenced by the owners of ELENI to determine the liability for the collision and to claim for the (alleged) losses they suffered.  The defendant, owners of HEUNG‑A DRAGON, counterclaimed in respect of their own (alleged) loss and damage, including the costs of wreck removal, and the counterclaim gave rise to a limitation issue (described below), which issue Ng J has since directed to be determined in the limitation action.

4.  The limitation action was commenced by Eleni Maritime Limited against Heung‑A Shipping Co Ltd and other parties claiming or being entitled to claim damages in respect of their (alleged) loss and damage arising out of the collision.  It raises, in short, the limitation issue, that is, whether a recourse claim falling within paragraph 1(a) (“loss of or damage to property”) of Article 2 of the Convention on Limitation of Liability for Maritime Claims 1976 (“the Convention”), which, according to Ng J’s decision, forms part of Hong Kong law by virtue of the Merchant Shipping (Limitation of Shipowners Liability) Ordinance (Cap 434) (“the Ordinance”) with the exception of paragraph 1(d) of Article 2 which does not apply to Hong Kong for the time being (section 15 of the Ordinance), is subject to limitation in accordance with the Convention, even though the underlying claim for wreck removal falls within paragraph 1(d) and thus is not limitable.

The arguments

5.  Moving the admission, Mr Clifford Smith SC, Mr Colin Wright with him – both of whom will be led by the applicant if admitted to appear in the two actions – essentially argued that admission in the collision action is justified as the action raises issues relating to the application of the International Regulations for Preventing Collisions at Sea 1972 (“the Regulations”) as amended and matters of seamanship, which are “difficult and complex” (para 37 of their skeleton argument), particularly in relation to the question of apportionment of liability.  According to counsel, these issues should be handled by specialist counsel daily immersed in the Regulations and matters of seamanship, because of the forensic advantages which experience brings.  Non‑specialist counsel would not have any substantial familiarity with the wider subject area, technical vocabulary, applicable rules and standard operating procedures, and would accordingly operate under an “uncompensatable disadvantage” (ibid).  Counsel also emphasised on the exceptional difficulty of cross‑examining factual and expert witnesses due to the dynamic nature of the developing close‑quarters situation and the shifting and developing obligations of the relevant individuals under the Regulations, and therefore the assistance of specialist counsel with the requisite skills was indicated.

6.  As for the limitation action, Mr Smith basically argued that the limitation issue is one which might impact substantially on the development of local law; but not only that, the issue involves the construction of an international convention in force in many jurisdictions and “it is to be anticipated that the determination of this question will have a worldwide impact” (para 19).  The question of law raised is “novel” and, by reason of its public importance, worthy of consideration by the Court of Final Appeal.  Counsel pointed out that there is no direct authority on the effect of the decision not to give effect to Article 2(1)(d) of the Convention in the Ordinance, a phenomenon not unique to Hong Kong, but is also found in, for instance, the UK and Australia. The only authority on this point is a majority decision of the Full Court of the Supreme Court of Queensland in O’Connor v Barameda Enterprises Pty Ltd (1987) 74 ALR 569, but the views expressed there by the majority and by the dissenting judge were only obiter ones since no actual loss or damage had been proved in that case.  In submission, counsel also outlined to the court how this issue should be approached as a matter of construction, so as to illustrate, apart from the point’s importance, the difficulty or complexity involved in resolving the issue.

7.  Other considerations, such as the amount at stake and the involvement of local senior and junior counsel, were mentioned in the materials before the court.

8.  The application is opposed by the Bar. Mr Douglas Lam SC (leading Ms Sabrina Ho) disagreed that the two cases involve any “unusual” difficulty or complexity.  They pointed out that both the local courts and local counsel have had experience in dealing with sea collision cases, including high profile collision cases such as the Court of Final Appeal’s recent decision in Kulemesin v HKSAR (2013) 16 HKCFAR 195, and the inquiry into the Lamma Island ferry collision chaired by Lunn VP as Commissioner of Inquiry, as well as the criminal prosecution which followed.  Counsel pointed out that the interpretation and application of the Regulations are not matters of unusual difficulty or complexity beyond the expertise of local counsel, nor are matters of seamanship.

9.  Mr Lam also disputed the suggestion that the limitation issue is one which is so difficult or complex as to justify the admission of overseas counsel.  He essentially submitted that the applicant has unduly played up the significance of the CFA factor, pointing out that the case is only before the Court of First Instance now.  See Re Dicker QC [2013] 2 HKLRD 245, para 16.  Counsel also pointed out that there are local senior counsel with experience in collision and admiralty matters who have not been approached by the plaintiff in the limitation action, whereas both Mr Smith and Mr Wright are themselves experienced admiralty practitioners.  Counsel further criticised the delay in making the present application.

10.  Mr SY Suen, representing the Secretary for Justice, also had his reservations regarding the degree of difficulty or complexity involved in the collision action.  He reminded the court that what is required to be shown is “unusual” difficulty or complexity, particularly bearing in mind the experiences of quite a few local counsel in dealing with collision cases in recent years, and the fact that a substantial amount of difficulty in these cases lied with the need for good expert assistance, rather than assistance by overseas specialist counsel.

11.  As for the limitation issue, Mr Suen submitted that a novel, interesting issue is not equivalent to an unusually difficult or complex one.  The fact that the applicant has undisputed specialist experience and skills in admiralty matters does not necessarily stand him in better position than suitable local counsel in resolving the limitation issue as it is a novel issue both in Hong Kong and in the UK.

12.  Mr Suen also echoed Mr Lam’s point that the limitation issue is only before the Court of First Instance, and it may still have some way to go to reach the Court of Final Appeal, so that the narrower CFA factor, that is, that the underlying proceedings are actually before the Court of Final Appeal, is absent in the present application.  See Re Dicker QC at paras 19 to 20.

13.  Mr Suen also pointed out that the amount of the claim may not itself be a sufficient ground for overseas admission.

My views

14.  The general principles relating to overseas admission are well established and they need not be repeated: Re Flesch QC [1999] 1 HKLRD 506; Re Kosmin QC [1999] 1 HKLRD 641; Re McGregor QC [2003] 3 HKLRD 585.  This application for admission essentially turns on the application of these general principles to the facts of the case.

15.  Turning first to the collision action, I accept Mr Smith’s point that collision cases are relatively rare in Hong Kong, as a result of which the experience of local counsel in handling collision cases cannot be compared with the experience of those specialising in “wet” shipping law or collision cases in England.  Apparently, according to counsel’s research and information, there is thus far only one local civil collision case, which was done by Mr Wright, Mr Smith’s junior, and another local senior junior on the other side, and the rest are really criminal cases or maritime inquiries.  I also accept Mr Smith’s point that in criminal cases, the question of apportionment may not arise as such.

16.  But, in my view, the test is not whether the applicant, whose expertise in admiralty cases is not in doubt, is more knowledgeable and experienced as specialist counsel in handling collision cases than local counsel.  Rather, the test is whether this present collision action raises issues or matters of unusual difficulty and complexity such that specialist counsel from overseas would be highly desirable; in other words, whether specialist counsel can add a significant dimension to a very complex or difficult case: Re McGregor QC, para 11(2) and (3).

17.  Given the recent cases on collision, and bearing in mind everything Mr Smith has said, I am not convinced that the collision action raises issues of unusual difficulty and complexity such that specialist overseas counsel’s involvement would add a significant dimension to the case.  In the materials placed before the court, it has not been suggested that there are any peculiar or special features in the present collision that renders it a very special case.  The court was told that the vexed question of whether the channel involved is a narrow channel is again in issue.  As has been pointed out by the Court of Final Appeal in Kulemesin v HKSAR, a criminal collision case done by two Queen’s Counsel and three local Senior Counsel together with a number of local juniors, whether a channel is a narrow channel is a question of fact turning on a number of factual matters.  As I read the judgment, the resolution of this issue of fact will very much turn on expert evidence.  In this regard, I agree with Mr Suen’s submission that the present collision action cries out for good expert assistance, rather than specialist counsel from overseas.  And Ng J will sit with a nautical assessor at trial to assist the court.  As this court observed in Re Lord QC, HCMP 1397/2013, 16 August 2013, an admission case involving a different specialised area of law:

“15. In reality, the suggested unusual difficulty and complexity lie with technical or expert matters. What is required is good expert assistance. What is not necessarily required is overseas specialist counsel. I take it as an essential requirement of a good trial counsel the ability to deal with experts and expert evidence in fields which counsel knows very little or practicably nothing about. That is by nature of counsel’s work a requirement of necessity. No counsel can be expected to know everything outside the law. By necessity, counsel, and indeed the court, must possess the ability to deal with experts and expert evidence. In my view, such an ability is certainly not lacking amongst many of our senior counsel (and indeed junior ones as well) practising in the local Bar.

16. …

17. Given the true nature of the legal and factual issues involved, I have no doubt that we have got in the local Bar senior counsel of sufficient standing, skill and ability to tackle the issues involved. He or she may or may not have the same knowledge and experience of structured products as the applicant. But, like the court, senior counsel will be assisted by expert witnesses – and one must act on the assumption that these are expert witnesses of competence. And with their expert assistance, I am not convinced – putting it negatively, as the burden is on the applicant to establish otherwise – that someone belonging to the cream of our civil Bar would not be able to adequately lead the case for Shine Grace, or that the applicant’s presence at trial would add a significant dimension to the resolution of the issues involved. Counsel submitted that there are no local counsel with sufficient “credit crunch” litigation experience comparable to that of the applicant. If that is so, this is all the more reason for reserving for our leading civil practitioners the opportunity to conduct such litigation in the instant case, thereby further enhancing the strength and independence of our local Bar, to the benefit of the public interest. Happily, in the present case, since the case has not been set down, availability of local counsel – including the very top ones – is not in question.”

18.  I am mindful that in a case turning on law and fact, it is important, for the purposes of any future appeals, that all necessary evidence is adduced and all relevant factual findings are made at trial, and thus the importance of the expertise and experience of trial counsel.  But it does not follow that at every level of court, one must have specialist overseas counsel to assist the court.  If that were right, one wonders how local counsel would ever get the opportunity to argue the case by themselves and gain the necessary experience or hone their forensic skills.  Quite plainly, a balance has to be struck somewhere, particularly when one is talking about a case pending before the Court of First Instance, even though the applicable principles are the same.

19.  Having considered all relevant matters urged upon the court in written and oral submissions, I am not persuaded that the collision action justifies the admission of the applicant.

20.  That leaves the limitation action. Mr Smith accepted at the hearing that the limitation issue is a pure question of law, quite independent of the facts.  The court has had the benefit of Mr Smith’s explanation of how the issue should be approached and the potential arguments involved, as well as the authorities, direct or otherwise, which may be relevant to the resolution of the issue.  The court is given to understand that this is a novel issue, with no direct authority on it in the common law world at least technically – as mentioned, the majority decision of the Full Court of the Queensland Supreme Court was an obiter decision only.

21.  For my part, I have no doubt that the limitation issue is an interesting law point and raises interesting arguments. But, that is not the test.  The test is whether the resolution of this point might have a substantial impact on local jurisprudence (or a fortiori, international jurisprudence, given that the point arose out of an international convention).  I am not so convinced.  Certainly, the resolution of this limitation issue will plug a hole in the limitation law involving sea collision. But the question is whether this is an important and significant hole to be plugged.  The fact that a point is novel does not by itself make it one the resolution of which might have a substantial impact on local (or international) jurisprudence.  It all depends on what the point is and its significance or importance in the overall picture.

22.  Moreover, as I said also in Re Lord QC (in the context of that case):

“11. As for the further case introduced by the amendments, it is true that to some extent, the case will raise for the first time for our court’s examination and determination factual and legal issues which have not been encountered before. Ms Leona Cheung, for the Secretary for Justice, has helpfully reminded the court that the fact that a case appears to be the first case of the type of situation in question and would carry with it some implications for future cases or, even more generally, on how some people might wish to arrange their affairs in future, does not by itself turn the case into an unusually difficult or complex one : Re Pointer QC, HCMP 455/2012, 3 April 2012, Cheung CJHC. Furthermore, even if some of the legal principles involved may not be covered by direct authority, that does not necessarily mean that they are of unusual difficulty or complexity. Legal issues may be interesting and the law may be capable of further development, but this does not by itself make the issues involved unusually difficult or complex : Re Hapgood QC, HCMP 101/2013, 19 February 2013, Cheung CJHC, paras 18, 24 and 25(1).”

23.  In the present case, the first matter to note about the limitation issue is that despite the making of the Convention and the passing of adopting legislations in Hong Kong as well as countries like the UK and Australia for some years, there has not been any case turning on this point, thus resulting in the lack of any direct authority.  Mr Smith, in his submission, was unable to say that a recourse wreckage claim is a common occurrence in the shipping world.  In other words, though this is a novel point and its resolution would benefit not only the jurisprudence of Hong Kong but that of other countries having similar legislations, the significance and importance of having this point resolved should not be exaggerated.  And in this regard, one must also look at the difficulty or complexity of the point. Having had the benefit of having the underlying issues analysed to some extent by Mr Smith, I am not convinced that this is an unusually difficult and complex point.  To some extent, it turns on general shipping law on limitation.  And to some extent, it turns on section 15 of the Ordinance which disapplies paragraph 1(d) of Article 2 of the Convention to Hong Kong pending the setting up of a central fund, and thus the true legislative intent behind the non‑application.  In my view, it is a crisp point of law that our top civil practitioners are more than capable of handling, particularly when availability of counsel is not in question as no date has yet been fixed for trying the limitation issue.

24.  Mr Suen made a good point when he said that the limitation issue is a novel point not only in Hong Kong but also in the United Kingdom.  That, at the lowest, puts the burden squarely on the part of Mr Smith to show that the applicant’s appearance before the Court of First Instance, as compared to local counsel’s appearance, would add a significant dimension to the case, in terms of the assistance that counsel could render to the court for the resolution of the issue.

25.  Moreover, even accepting that the point has some impact or significance, one must not lose sight of the fact that the issue is now only before the Court of First Instance.  Coupled with the fact that it is a pure law point quite independent of the facts, if overseas counsel’s assistance is really required, that assistance can be brought in later when the case should reach a higher court or the highest court, that is, the Court of Final Appeal, in which event the narrower CFA factor would come into play to ensure that, if justified in accordance with well‑established principles, overseas counsel would be admitted to assist our top court to determine the issue authoritatively for the benefit of local jurisprudence and of overseas jurisprudence.

26.  As I say, whilst the principles governing admission are the same for all levels of court and the ultimate criterion is the public interest, in the application of these principles, the level of court involved for the time being is a material factor.  And the quality of assistance that can be rendered to the court must be viewed against this important facet of the public interest, namely, the development and maintenance of a strong, independent local Bar.  All this suggests that everything else being equal, when an issue of law such as the limitation issue involved in the present case is only before the Court of First Instance, suitable and available local counsel should be preferred to overseas counsel to argue the case before the court notwithstanding that overseas counsel may be relatively more specialised or experienced, leaving it to a later day to decide whether, when the point reaches a higher court or the Court of Final Appeal, overseas counsel should be brought in.

27.  This is particularly so when one must look at the reality on the ground.  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 this way, one is, as it were, getting the best of both worlds, that is, while overseas specialist’s input can be obtained ultimately for the benefit of the court, local counsel are not deprived of the opportunity of actually arguing the case in court.  This consideration is of particular significance when the case is only before the Court of First Instance, and when, as is suggested, the issue involved is one which is likely to go all the way up to the Court of Final Appeal, so that any mistake made below can be corrected on appeal.

28.  At the end of the day, what one has to do is to conduct a balancing exercise, bearing in mind all relevant factors.

29.  Having done so, I have no doubt that in relation to the limitation issue which is pending before the Court of First Instance, admission of the applicant should be refused.

Disposition

30.  For these reasons, the application is refused.  I thank counsel for their assistance.