RE NICOLAS DUSAN BRATZA

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JUDGMENT

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The Application

1. The applicant sought admission, under section 27(2) of the Legal Practitioners Ordinance, for the purpose of "advising the defendants in a civil action in settling pleadings, advising them generally and appearing on their behalf at the trial, but not for the purpose of appearing on interlocutory applications. "

2. The applicant was called to the English Bar in 1969 and has since practised in London Chambers, as a junior counsel. He is said to have specialized in building and civil engineering cases.

3. The application was opposed by the Bar Committee of the Hong Kong Bar Association ("the Bar"). The Attorney General expressed no strong views on the application but suggested that it did not seem, on the basis of the material available to him (which did not include the draft affidavit tendered by the applicant on the morning of the application) that it had been shown that no suitable local juniors were available. The Law Society did not appear and expressed no view.

The Action

4. It is not in dispute that the action is a very heavy and complex one, the claim amounting to about HK$250 Million, and that it will involve technical questions of some difficulty.

5. The Writ and Statement of Claim were issued in January 1985. A defence was entered, and further and better particulars were sought, on the advice of the applicant, in July 1985. There the pleadings rest at present, as the plaintiff has yet to provide the particulars sought.

6. The defendants have already retained one local counsel, "Mr. B.", to advise, to conduct any interlocutory proceedings and to appear as the second junior at the trial. They intend to apply for the admission of a London Queen's Counsel to conduct the trial on their behalf with two juniors.

Overseas Admissions

7. It was, I think, conceded by the applicant, and it is certainly my view, that somewhat different considera-tions ought to apply to the admission under Cap. 159 of junior counsel from abroad from those which govern applications from leading counsel.

8. The Hong Kong Bar contains only 21 Queen's Counsel, a number which is clearly inadequate for the number of civil and criminal matters appropriate for the employment of a leader. It has thus been necessary, and will remain so for a long time to come, to augment them by the admission of overseas Queen's Counsel in substantial numbers. . According to the affidavit of the Honorary Secretary of the Bar, there were 121 applications, relating to 172 matters, for the admission of overseas counsel during 1985.

9. However, it has always been unusual for junior overseas counsel to be admitted and only four of the 1985 applications related to them. So far as I have been able to determine, the last occasion on which the admission of a junior counsel was contested was that of Mr. Charles Gray, in February 1981

10. Mr. Gray, after opposition by the Bar, was admitted for the purpose of a libel action, on the basis that defamation was a field of law which calls for special expertise and that no members of the Bar "as yet have had more than a limited experience of contested (libel) actions. "

11. Since the time of the Gray⁽¹⁾ application, the strength of the Hong Kong junior Bar has grown from about 140 to around 280, so that it must be considered to be far more better equipped in numbers and experience to deal with all but rare and very specialized types of work than it was five years' ago.

Grounds of Application

12. The main arguments advanced in favour of the application were -

Building Contracts

13. I do not accept that building and civil engineering disputes are of such a specialized nature as has been suggested. They have become very common in Hong Kong in recent years, particularly since the collapse of the building boom of the late 1970's and early 1980's and Hong Kong junior counsel have appeared in significant numbers of such matters, both before the courts and in arbitration.

14. In essence, building and engineering disputes involve the application of principles of common law, even though the relationships of contractors, sub-contractors and other actors in major contracts of this nature may sometimes be complicated.

Time to assess the availability of local counsel

15. Nor was I persuaded that the applicant's solicitors has made reasonable efforts to retain Hong Kong junior counsel of adequate experience. I suspect that, in considering whom they might retain, they applied the standards of seniority and experience which would have been suitable in the junior Bar of 5,000 or so in England.

16. It was argued on behalf of the applicant that I should look at the position as it was in January 1985, when it was necessary for the defendants to draft a defence to the Statement of Claim which had been served on them, and not on the current position.

17. The affidavit of the solicitor for the defendants stated that one local junior had been approached early in 1985 but that he had been unwilling to undertake the heavy work involved in view of his other commitments. Nine other juniors had "been considered" but none had been asked if he was available, because the solicitor knew that they had other heavy commitments which would have made their acceptance unlikely. The affidavit does not suggest that any efforts have been made recently to test the availability of suitable Hong Kong counsel, as I think should have been done.

18. While I accept, of course, that a defendant faced with a Statement of Claim must take immediate steps to enter a defence, which involves the retention in a large case of an experienced junior counsel to perform this task, I do not accept that the retention at that stage of a London junior for that purpose can be allowed to inhibit the court's discretion when, much later, application is made for the admission of that London counsel to conduct other preliminary matters and the trial itself. Any solicitor who retains a London junior to advise or draft pleadings must accept the likelihood that permission will not be given for that junior's admission to the Hong Kong Bar for the later stages of an action.

19. If the correct time to test the availability of members of the Hong Kong Bar for this case had been January 1985, 1 would have concluded that the solicitors for the defendants had not made a conscientious attempt to find a suitable Hong Kong junior and had turned to a London junior because they preferred him, having worked with him before, and not because suitable Hong Kong juniors were not available.

20. However, as I have indicated above, the proper time for enquiries to be made as to the availability of suitable Hong Kong juniors is shortly before the application is made for the admission of overseas counsel. I am satisfied that, at best, only perfunctory recent efforts were made to seek out suitable Hong Kong counsel.

Conclusion

21. In the application of Coles⁽²⁾ I sought to set out the principles involved in applications for admission under Cap. 159, as I derived there the applications of Cray ⁽¹⁾ and Tyrrell⁽³⁾, both decided by Sir Alan Huggins.

22. I stressed that the paramount factor is the public interest, which requires a strong and independent local Bar.

23. This means that, so far as the junior Bar at least is concerned, local counsel should be briefed in preference to London counsel even if local skill and experience available, in a period of rapid expansion, is not of the standard which would be available in England with a junior Bar of 5,000.

24. The admission of overseas junior counsel must remain rare, and applications for such an admission may therefore be expected to be successful only where it is shown that no local juniors of suitable ability and experience are available, after conscientious efforts have been made to retain them and have failed.

25. I was not satisfied that these conditions had been met and therefore refused the application.

(1)    (1984) H.K.L.R. 367

(1)    (1984) H.K.L.R. 367

(2)    (1985) H.K.L.R. 480

(3)    (1984) H.K.L.R. 370