CITY WEST INVESTMENT LTD. and Others v. THE HONG KONG BAR ASSOCIATION

IN THE COURT OF APPEAL

1994, No. 29
(Civil)

-Headnote-

Leave to appeal to Privy Council - Whether there was a "live issue" between the parties - Courts do not pronounce on abstract questions of law - approach of Court of Appeal in A.G. v. SCM Post [1988]1 HKLR 143 at 159 followed. Leave to appeal to Privy Council refused.

IN THE COURT OF APPEAL

1994, No. 29
(Civil)

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D E C I S I O N

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Litton, J.A.:

1. By a judgment dated 11 March 1994 we allowed an appeal by the Hong Kong Bar Association against an Order of Barnett J. whereby he made (i) a declaration and (ii) an order for costs against the Hong Kong Bar Association. The developers who brought those proceedings against the Hong Kong Bar Association now seek leave to appeal to Her Majesty in Council, pursuant to rule 2(b) of the Order-in-Council regulating appeals from Hong Kong to the Privy Council. Rule 2(b) reads:

"2. Subject to the provisions of these Rules, an Appeal shall lie-

(b) at the discretion of the Court, from any.... judgment of the Court......if in the opinion of the Court, the question involved in the Appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to Her Majesty in Council for decision."

2. In Attorney General v. South China Morning Post Ltd (1988)1 HKLR 143 at 159 Kempster JA commented on the exercise of the discretion under this rule. He pointed out the fact that if the Hong Kong Court of Appeal granted the application the Judicial Committee of the Privy Council would be seized with an appeal regardless of its own wishes. If the court refused it, however, the applicant could seek special leave directly pursuant to the Judicial Committee (General Appellate Jurisdiction) Rules 1982. This point is, in my view, of some importance in this case.

Background facts

3. The background to this litigation is of relevance. The developers wanted Mr. Neville Thomas, QC to represent them at the hearing of their appeals before the Buildings Tribunal. When the solicitors, who had briefed Mr. Thomas on behalf of the developers, wrote to the tribunal for permission for Mr. Thomas' appearance, they were told that the tribunal had no objection to Mr. Thomas' appearance at the hearing but they should consult the Bar Association. It was in the process of that "consultation" that the Bar Association became embroiled in this litigation.

4. Mr. Thomas, could, of course, have made an application under section 27(2) of the Legal Practitioners Ordinance to be admitted as a barrister for the purpose of the appeals, since he was plainly able to satisfy the requirements of s.27(1)(a) to (c) of the Legal Practitioners Ordinance. The Bar Council, the governing body of the Hong Kong Bar Association, had indicated to the solicitors that if such an application were made it would be opposed but that did not in any was prevent an application to the court. As I remarked in the course of the hearing of the appeal, from the material before us, it seemed that this case warranted the wider experience of Queen's Counsel from London, and the court might well have allowed Mr. Thomas' admission despite the opposition of the Bar Council. The developers chose instead to take out the originating summons, seeking the declaratory relief as against the Bar Association which led to Barnett J's order of 17 February 1994, including an order for costs against the Bar Association, which formed the subject matter of the appeal before us.

"Matters in dispute"

5. Barnett J's order, including the order for costs, having been discharged, what remains of the litigation between the parties?

6. As far as the appeals before the Buildings Tribunal are concerned, these have concluded long ago. There is no suggestion that Mr. Thomas' further services as a "paid advocate" are required. Mr. Michael Thomas QC, appearing for the developers on this application, submits that there may well be other occasions in the future when these developers might wish to engage the services of other professional persons to conduct appeals before statutory tribunals, such as the Appeals Tribunal under the Buildings Ordinance or the Town Planning Appeal Board, without running foul of the provisions of section 44 of the Legal Practitioners Ordinance. It is, he says, therefore in the interests of the developers that the "ambiguity" surrounding the proper construction of s44 be clarified; our judgment left it open as to what "acts" performed by professional persons might be deemed acts of a barrister.

7. This appears to me to be another way of saying that the issue, if there ever was a real one between the parties, is now spent; but the developers hope that if the Privy Council would express a view on s44 of the Legal Practitioners Ordinance different from ours, that might help them in their business in some way in the future. I would be surprised if the Judicial Committee of the Privy Council would welcome its appellate function to be invoked on these grounds.

8. From the inception of the appeal before us on 11 March 1994, I had misgivings as to whether Barnett J had the jurisdiction to make the declaration that he did. I drew attention to the scope of Order 15 rule 16 of the Rules of the Supreme Court in my judgment. When the matter came before us on appeal, there was, on paper, a formal judgment against the Bar Association and, of course, an order for costs. To that extent there was a "live issue" between the parties. All that has now been discharged. In these circumstances, the words of Lord Bridge in Ainsbury v. Millington (Note) (HL) [1987]1 WLR 379 at 381C seem appropriate:

"It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law where there is no dispute to be resolved".

Question of great general or public importance

9. Mr. Michael Thomas argues that the scope of s44 of the Legal Practitioners Ordinance and, in particular, whether it was effective to prevent Mr. Neville Thomas QC from acting as a "paid advocate" in the Buildings Appeal Tribunal without having been duly admitted for the purpose under s27(2) of the Legal Practitioners Ordinance, is one of great general and public importance. He also argues that a resolution of this question in favour of the developers might upon the door to other professional persons, not necessarily English barristers, who might otherwise be inhibited from representing clients in proceedings before statutory tribunals in Hong Kong: our judgment having left open the question as to what "acting as a barrister" means. These may well be questions of great general and public importance. There is, however, no "lis" as between the developers and the Bar Association upon which the resolution of this question hangs.

Conclusion

10. If the Privy Council considers it proper to entertain arguments on this question, albeit academic as between these parties, it can always do so by giving special leave pursuant to the Judicial Committee (General Appellate Jurisdiction) Rules 1982.

11. In my judgment, this court should decline leave and I would accordingly dismiss this application.

Bokhary, J.A.:

12. I agree and have nothing useful to add.

Mayo, J.:

13. I also concur.

Litton, J.A.:

14. The costs of this application be awarded to the Appellant (Hong Kong Bar Association).