IN RE J.F. BADENOCH

HCMP1680/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1680 of 1999

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J U D G M E N T

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1. This is an application by Mr Badenoch QC for admission to the Hong Kong Bar for the purpose of appearing in a trial before the Court of First Instance in High Court Action No.A6969 of 1994, pursuant to section 27(2)(b) of the Legal Practitioners Ordinance, Cap.159. The Bar Association opposes the application. The Secretary for Justice is named as a defendant acting on behalf of the Queen Elizabeth Hospital in that action and takes a neutral stance in respect of the present application. I am given to understand that the Department of Justice had also approached the Bar Association in connection with the Department's proposed application to retain another London Queen's Counsel to represent the Secretary for Justice in the same case but the Bar had refused to give its consent. That matter is not before this court. However, the Department of Justice has retained counsel to appear in this application to assist the court if and when necessary. Mr Wong for the Department has assured me that the information he has obtained in this application will not be disclosed to his colleagues handling the High Court Action or used in connection with any other action.

2. Among the documents relied on by the applicant, there was a supplemental affirmation filed on 27 March 1999. In that affirmation, it is sought to adduce as exhibit a copy of the letter from the Secretary General of the Law Society addressed to the solicitors for the applicant after they had sent copies of the relevant documents to the Council of the Law Society in accordance with the Law Society's practice. In that letter, the Secretary General indicated that the Council of the Law Society supported the application. There are some remarks in that letter which are subjected to serious criticisms. The letter purports to set out certain opinions of the Council of the Law Society to the effect that Mr Badenoch's client would be at a "considerable disadvantage" and would be "seriously prejudiced" if the application for Mr Badenoch's admission is refused and that "there is no counsel in Hong Kong with the level of expertise in a medical negligence claim of this complexity by whom (Mr Badenoch) could be replaced at this time". Although this letter was addressed to the solicitors for the applicant, its contents are clearly meant for the eyes of the court. Notwithstanding the various remarks made in relation to the Bar, the letter was not copied to the Bar Council. While the Council of the Law Society may like to support the application, the various opinions and remarks are expressed without stating any basis therefor and are entirely gratuitous. I agree with Mr Bleach SC, counsel for the Bar Council that as such, those opinions and remarks are not appropriate. In so far as the applicant seeks to rely on these opinions, I would therefore attach no weight to them.

3. The main ground relied on by the applicant is that the case in which he is briefed to appear is one of unusual difficulty and complexity and that no local counsel of appropriate skill and experience is available. In the supporting affirmations, a second ground is also mentioned, that is, the case involves a legal principle which may have an impact on the development of local jurisprudence and that there is a likelihood that the case would finally end up in the Court of Final Appeal. In his written and oral submissions, Mr Bharwaney relies on the main ground and elaborates on the second ground.

4. Mr Badenoch acts for the plaintiff in an action against the Queen Elizabeth Hospital for medical negligence. The plaintiff was treated in that hospital in March 1979 for an injured right ankle. He was suspected of having tuberculous meningitis. There was an operation with follow-up treatment. In the years which followed, he had various other operations and treatment. He was later diagnosed as having suffered from syringomyelia. He commenced action in 1994 against the Hospital for medical negligence. The amended Statement of Claim contains some 17 heads of negligence. They include failure to diagnose the patient's conditions, to administer proper treatment, and to properly warn or inform the patient of the risk involved in the operations and treatment which he received.

5. It is fair to say that leading counsel for the Bar Association accepts that the case is of some difficulty and complexity. According to the affirmations of the applicant's solicitors, in December 1996, junior counsel who was instructed from the commencement of the proceedings advised that leading counsel should be retained because of the difficulty and complexity involved. He recommended one local senior counsel. This recommendation was not accepted. It was said that the local senior counsel recommended had "more or less" the same knowledge and experience as junior counsel involved in the case. The solicitor said that he did not know at that time of any counsel or leading counsel in Hong Kong who had the specific expertise in medical negligence. It was his view that a suitable leading counsel could only be found in the United Kingdom. He suggested that a London silk be retained to give a written opinion. The reason given was that it would be cheaper.

6. It must also be pointed out that in this case the client who wants to brief the applicant had consulted a number of medical experts who gave different views on the matter. At one stage, consideration was given to the possibility of discontinuing the case. Hence, it was necessary to seek the opinion of leading counsel. It should also be mentioned that apart from the medical experts briefed by the client, there was one Dr Teddy, an expert in the United Kingdom. It was said that he is one of the leading medical experts in this field but a difficult witness to obtain. In these circumstances, the applicant was retained to advise on the case.

7. Counsel for the applicant submits that the relevant time to consider whether to engage an overseas counsel was the time before leading counsel was instructed to advise on the case, that is, before December 1996. He argues that the solicitors had given sufficient evidence for instructing counsel to give a written opinion and to handle a difficult witness at that time. He suggests that there is some substance in the statement that there is a dearth of leading counsel in Hong Kong who are specialised in medical negligence cases. It is submitted that at that time, i.e. before December 1996, it was reasonable to instruct the applicant at that crucial time of the proceedings. Counsel further submits that while it is accepted that no recent attempt had been made to find local leading counsel, this was because the applicant has already been so involved with the case that it would be unfair and unjust to the client to replace him now. It is pointed out that the contribution of the applicant during the course of the proceedings has been vital and that there had been at least two occasions when it was seriously considered that the case should be discontinued. It was because of the careful handling of the case and the expert knowledge and experience of the applicant that the action is still going on. There had been various conferences by the applicant with the expert Dr Teddy and a video-link conference with counsel and solicitors in Hong Kong.

8. In this case, I do not think it makes any difference whether the relevant time was the time overseas counsel was first instructed or whether it was the time of the present application. I would accept for the purpose of the present proceedings that the case in which the applicant is to be briefed is a difficult and complicated one. However, having read the evidence before me and having heard counsel's submissions, I am not convinced that this case is one of unusual difficulty and complexity. It would seem that the chances of success of the plaintiff in this case depend very much on the opinions of the experts which are somewhat evenly balanced. Hence, the difficulty is in fact the plaintiff's difficulty in obtaining favourable expert evidence and successfully persuading the court based on such evidence that the Hospital was negligent. I would also accept that the case is complicated because the medical conditions of the plaintiff are not common in ordinary personal injury cases; the whole medical history has not been straightforward and the medical experts differ in their opinions.

9. But even if the case in question is one of unusual difficulty and complexity, it is still necessary to satisfy the court that no local counsel of appropriate skill and experience is available. The greater the difficulty and complexity of the case is, the smaller is the pool of senior counsel experienced in the relevant field. But instructing solicitors are still obliged to try and find out whether any suitable local counsel would be available. From the evidence presented before me, it is clear that no attempt had been made to discharge this obligation before turning to overseas counsel.

10. I am also not satisfied that there is no local counsel of appropriate skill and experience for the case in question. I accept that medical negligence claims are not exactly the same as personal injuries claims. The former type of cases are in my view a more specialised category of the latter. It would seem, and I do not think there is any dispute, that the experience gained in personal injuries cases is extremely relevant in medical negligence cases and that counsel specialised in medical negligence cases usually started with and also do personal injuries cases. From the inquiry made by the Bar Council, it would seem that there are quite a number of senior counsel who had previously done medical negligence cases.

11. As I understand it, the main thrust of the arguments in the present application is that London silk was instructed at an early stage of the proceedings for one reason or another (which I must say is not at all convincing); he has been very helpful in this case and has salvaged a difficult situation for the plaintiff; he has been handling the case for some time; hence he should be retained for the trial. Such arguments would be tantamount to this. For the sake of convenience and based on the belief of instructing solicitors (probably misconceived) that London counsel is cheaper and better, the applicant can be retained to advise at an early stage. He has proved to be a success. Because he has been so involved in the proceedings, he should now be allowed to appear in court, otherwise, it would cause serious prejudice to his client. In my view, such arguments simply cannot succeed. If this is allowed to prevail, then in almost every case, an instructing solicitor would be tempted to brief overseas counsel at an early stage of the proceedings and try to persuade the court that because of his involvement in the case, he should be allowed to appear at the trial. That, with respect, is exactly what has happened in this case. There is nothing in the Legal Practitioners Ordinance prohibiting the obtaining of a written opinion or advice from counsel overseas. But section 27 applies when that counsel is briefed to appear in proceedings in the Hong Kong courts. The court should not and would not, as it were, be held at "ransom" by a self-created and accomplished situation. This would go against the spirit of the statutory provision.

12. With regard to the secondary ground, counsel argues that there is a legal principle involved in the case in which the applicant is to be briefed, that is, whether the Hong Kong courts should follow the House of Lords decision in Bolitho v. City and Hackney Health Authority [1998]AC 232 which extended the test in the Bolam case to the issue of factual causation. This is disputed by counsel for the Bar. For the present purpose, I do not purpose to deal with the principle in the Bolitho case and its effect on medical negligence cases since I do not wish to make any comment which may influence the judge or prejudice the parties in the subsequent trial. Suffice it to say that I agree with the submissions of Mr Bleach that the present application does not fall within the "new" ground for admission as stated in Re Flesch's case.

13. For these reasons, I am not persuaded that I should exercise my discretion under section 27 of the Ordinance. Counsel has not made out a case for the exercise of such discretion. I would dismiss the application.