RE NICHOLAS ANTHONY JOSEPH GHISLAIN MOSTYN QC

HCMP3552/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3552 of 2003

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REASONS FOR JUDGMENT

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Introduction

1. The applicant is a Queen's Counsel from London specializing in matrimonial law. By a Notice of Motion dated 14 August 2003, he has sought admission under section 27(4) of the Legal Practitioners Ordinance, Cap.159 ("the LPO") "for the purpose of advising and appearing on behalf of the Respondent in HCMC 1 of 2003 in the trial of the ancillary relief matter and in any applications, proceedings, hearings and in any appeals arising therefrom and relating thereto".

2. The relevant ancillary relief application in HCMC 1 of 2003 (actually cross applications made by the husband and wife in those proceedings) involves what Ms Anita Yip (who appeared for the applicant) referred to as a "big money" case. The petitioner wife is said to be worth about $450 million while the respondent husband (for whom the applicant seeks to represent) has assets said to be worth over $230 million. The application for ancillary relief was transferred from the Family Court of the District Court to be heard by the Court of First Instance. The hearing is estimated to be in the region of 40 days. No doubt the papers are voluminous.

3. At the hearing of the application for admission, Ms Yip appeared for the applicant, Mr Erik Shum for the Hong Kong Bar Association and Mr Herbert Li for the Secretary for Justice. Mr Li supported the application in its entirety. After hearing submissions, I made an order admitting the applicant for the purpose of advising and appearing on behalf of the respondent in the above mentioned proceedings at the trial of the ancillary relief applications. I refused the application in so far as admission was sought on any broader basis.

Reasons for Decision

4. Neither the Hong Kong Bar Association nor the Secretary for Justice opposed the application so far as the trial of the ancillary relief application itself was concerned. In my judgment, the admission of the applicant to conduct the trial is well justified on the basis that the ancillary relief application may involve a consideration by the Court of First Instance (and perhaps ultimately the Court of Final Appeal) of the applicable principles involved in the division of matrimonial assets. In the United Kingdom, White v White [2001] 1 AC 596 has signified an approach that has yet to be accepted in Hong Kong. In F v F, unreported, HCMC 4 of 2001, 14 January 2003 Hartmann J considered the applicability of White v White in the context of the relevant provisions of the Matrimonial Proceedings and Property Ordinance, Cap. 192. He had to consider whether the correct approach was to follow the "reasonable requirements" criteria established by the Court of Appeal in C v C [1990] 2 HKLR 183 or to adopt the approach laid down by the House of Lords in White v White, which was to begin from a position of equality in the division of matrimonial assets. Hartmann J came to the conclusion that C v C was binding on him and that White v White was only of persuasive authority. In the event, he did say that the case before him was not a classic White v White case and that if he had been free to adopt White v White, the award he made in that case would not have been materially different.

5. It was precisely because the Court of First Instance will have to consider again the applicability of White v White (and the jurisprudence that has built on that decision) that has persuaded me to allow the applicant to be admitted for the purpose of the substantive hearing of the ancillary relief application. This is a straightforward application of the relevant principles in Re Flesch QC [1999] 1 HKLR 506. Mr Shum confirmed that this was the position of the Hong Kong Bar Association as well. Although, as I have already noted, neither the Bar nor the Secretary for Justice resisted this part of the application, this is not conclusive of the matter as it is the court that has the ultimate duty under section 27(4) of the LPO to consider whether or not an order for admission should be made.

6. More contentious (as between the Hong Kong Bar Association and the applicant) was that part of the application relating not to the trial itself but to "any applications, proceedings, hearings and in any appeals arising therefrom and relating thereto".

7. On a general note, this form of wording is not acceptable in applications for admission. The function of the court under section 27(4) of the LPO is to consider the application for admission against the specific matter for which his admission is required. Where court hearings are concerned, the particular hearing or hearings should be identified.

8. In the present application, Ms Yip has identified the hearing of a summons for directions as the relevant hearing. The summons was issued on 18 July 2003 and the call-over of that summons is due to be heard by Lam J on 22 September 2003. The main hearing of that summons is estimated to last 5 days.

9. In her submissions, Ms Yip argued that the summons involved complicated facts, although she accepted in her written submissions that viewed on its own, the summons could not be said to be one of unusual difficulty or complexity. It is, however, she adds (and I accept) a pivotal application. She says it will require counsel who is very familiar with the case to conduct it. In addition, all the above are to be seen in the context of the White v White issue which will have to be canvassed at the trial.

10. The court's basic approach to admissions as set out in cases like Re Flesch QC applies to all hearings, irrespective whether the hearings are final or interlocutory. It is true that there are fewer applications for admission in relation to interlocutory hearings compared to final hearings. However, the reason for this is that interlocutory hearings (which cover a very wide spectrum of types of hearings) are less likely to involve very complicated issues or important points of principle than final ones. This is not always true of course because sometimes interlocutory matters do involve weighty issues, particularly when the outcome may dispose of or significantly affect the action as a whole. Each case has to be looked at individually and no real assistance can be derived from the label 'final' or 'interlocutory'. As I remarked in Re Pannick QC, unreported, HCMP 2374 of 2003, 9 June 2003, at paragraph 18, "However, the court must always look at the nature of the application and the issues that arise from it".

11. Nothing I have said is at odds with the decision of Burrell J in Re Holgate [2001] 2 HKLRD 425, particularly the passage at paragraph 5. This passage must of course be seen in the context of the relevant interlocutory application in that case, namely, a striking out application.

12. In the present application, we are of course concerned with a summons for directions. The summons involves diverse applications which concern on the whole evidential or case management matters. In respect of the former, the respondent seeks an order for more information from the petitioner under rule 77(4) of the Matrimonial Causes Rules, Cap.179. He also seeks directions in relation to expert evidence going to the valuation of various properties owned by both the petitioner and the respondent in Hong Kong, the Mainland, Singapore and the United Kingdom. In addition to the above, the respondent also applies for caveats on two of his properties to be released.

13. It would appear at this stage that the hearing of the summons for directions will involve substantial, certainly lengthy, arguments. As I have already noted, Ms Yip referred to the summons as "pivotal". The estimated length of the hearing (5 days) is perhaps indicative of this. Nevertheless, I am not persuaded that the hearing requires or justifies the admission of overseas counsel :-

(1) With one possible exception, although conceivably difficult issues may arise at the hearing, they are by no means issues of unusual difficulty or complexity, involving as they do largely discovery, evidential and case management matters. Junior counsel (and in this case experienced junior counsel) can be expected to handle any such issues. All the more so if leading counsel were to be instructed.

(2) The one possible exception is in relation to what Ms Yip referred to as the "millionaire defence" which may be used to limit discovery. By this she meant the possibility that the judge hearing the discovery parts of the summons for directions, may apply C v C and ignore potential application of White v White. Ms Yip cited Lo Shiu Chun v Lam Ying Chee Fogg [1994] 1 HKC 227 for this purpose. Attractive though the submissions have been put, in my view, it has simply not been demonstrated that the court will be faced at the hearing of the summons for directions with having to decide the applicability of White v White in Hong Kong. That issue, as I understand the impact of the applicant's earlier submissions in relation to his application for admission for the trial, is a matter for determination at the trial itself. The highest that Ms Yip puts it is that it may be possible that the judge hearing the summons for directions may determine this issue. However, I am not persuaded that this will or is likely to be the case and no one has so far demonstrated this to my satisfaction. Of course, if it eventually transpires that the crucial issue of the applicability of White v White will be determined by the court at the hearing for summons for directions or as a preliminary issue, this change in circumstances may well cause the applicant to make a further application at that time.

14. The application for admission under the second part of the Motion was for the above reasons accordingly dismissed.