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HCMP001610/1990
IN THE SUPREME COURT OF HONG KONG
MISCELLANEOUS PROCEEDINGS No. 1610 of 1990
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IN THE MATTER OF DAVID BURNHAM JOHNSON one of Her Majesty's Counsel, a Barrister and Member of the Honourable Society of the Inner Temple
and
IN THE MATTER of the Legal Practitioners' Ordinance, Cap. 159 of the Laws of Hong Kong, Section 27
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Coram: Hon. Yang, C.J.
Date of Hearing: 8th June, 1990.
Date of Judgment: 13th June, 1990.
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JUDGMENT
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Hon. Yang, C. J.:
1. This is the application by one of Her Majesty's Counsel practising in England for admission as a barrister of the Supreme Court of Hong Kong under S. 27(2) of the Legal Practitioners Ordinance, to advise and represent the owners of the vessel "Frinton", the appellants in an appeal from an interlocutory judgment of Barnett, J. in an action between the cargo owners as plaintiffs and the owners of the vessel as defendants (High Court Action No. A.J. 163 of 1988).
2. The Bar Association opposes the application on the ground that it has not been demonstrated that the appeal is of such unusual difficulty or complexity as to be beyond the competence of local counsel or that no competent local counsel is available.
3. The owners were represented by two junior counsel who were not specialists in shipping law. One of the junior counsel has since become a Queen's Counsel in Hong Kong. It was the intention of the owners to engage the same two counsel to represent them in the appeal, fixed for hearing on 26th to 28th June, 1990, but neither is available. The cargo owners were represented by Mr. Michael Thomas QC the acknowledged leader in Hong Kong who specializes in shipping law. He is to appear for the cargo owners in the appeal.
4. Whilst the ranks of both junior and leading counsel here have grown considerably over the past two years, it would appear that very few except for a few juniors, could truly claim to be experts in shipping law.
5. It is not disputed that the applicant is a well-known specialist in shipping law, and it is the appellants' express wish to have his assistance in their appeal. In my judgment, however, the maxim that a litigant should have counsel of his choice does not entitle him to demand the admission of an English counsel to represent him: see Re Gray (1984) HKLR 367, per Huggins, Ag. CJ at p. 368; see also Re Coles (1985) HKLR 480, 483A.
6. It is then argued on behalf of the applicant that the Law Society supports the application by a letter dated 7th June, addressed to the applicant's instructing solicitors. Regrettably, I do not have the benefit of a full explanation of the Law Society's views, they having elected not to be represented in the proceedings now before me. In the circumstances, and with the greatest respect, I do not feel able to accord the weight which the views of the Law Society would otherwise undoubtedly deserve.
7. On the other hand, I do have before me two affidavits sworn by the appellants' solicitor in charge of the case, helpfully setting out the reasons why she and the principals of her firm consider it necessary for the applicant to represent the appellants.
8. The action between the parties concerns allegations of damage to cargo on board the "Frinton" during the voyage from South America to the Far East at the end of 1988. The vessel was arrested on 30th December 1988 when she was in Hong Kong waters, following the commencement of proceedings in the High Court on 11th November. Of the 87 cargo owners, 85 claim under the Conline form of bill of lading containing a jurisdiction clause referring "any disputes" arising out of the bill of lading to the country of the carrier's "principal place of business", which is Greece in this case. The owners of the vessel, as defendants, therefore applied for a stay of proceedings on the grounds of this exclusive jurisdiction clause and also adopting the argument of forum non conveniens.
9. The defendants' application for a stay of proceedings in favour of Greece was heard by Barnett, J. in November 1989. In his judgment, whilst the learned judge found that the Greek courts recognized the validity of, and will give effect to, such a jurisdiction clause and that the principal place of business of the defendants is in Greece, he nevertheless exercised his discretion in favour of the cargo owners and dismissed the application for a stay.
10. The principles which ought to be applied in an English counsel's application to be admitted to the local Bar are set out in the well-known judgment of Roberts, CJ in Re Coles, supra, at 482H - 483D, in particular the principle that the case must be one of unusual difficulty or complexity, within which category counsel for the applicant says this action falls.
11. Clearly, there are in this case areas of law which are complex and difficult, in particular:
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(i) |
The present uncertain state of the English law on the doctrine of forum non conveniens.
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(ii) |
The difficulties arising from the application of the rules under the Conline bill of lading as governed by the Hague Rules concerning the carrier's principal place of business. |
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(iii) |
The operation of Greek law in the present case. |
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(iv)
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Considerations of international policy relating to the Conline bill of lading, particularly in the context of international trade. |
12. In this connection, I am grateful to the assistance given by counsel acting on behalf of the Attorney General, whose stance, as always in these applications, is one of neutrality. It is his submission that the applicant has made out a case of complexity "with considerable force" and he accepted the need for a specialist. But he queried why, then, the appeallants were content to engage two non-specialist juniors in the court below, and the same two counsel (albeit one is now a Queen's Counsel) in the appeal if available. The arguments, he submits, are "finely balanced", as indeed they are.
13. Seen in the light of the arguments advanced on behalf of the Attorney General, the applicant's case loses much of its weight. It is not suggested that the issues to be argued on appeal are different from those in the court below. If it was thought that the service of two non-specialist juniors in the court below was adequate, then it is difficult to see why a leading specialist silk is required for the appeal. Whilst the case is undoubtedly difficult and complex, I doubt if it is one of unusual difficulty and complexity.
14. That being my view, it will not be necessary for me to discuss the availability of at least seven or eight highly competent local Queen's Counsel who are available but have not been approached by the appellants, save perhaps to note that one other local Queen's Counsel, who is not a specialist in shipping law, was approached by the applicant's solicitors for the first time on 4th June but his availability for the appeal could not be confirmed. Indeed it has not been suggested that other than Mr. Michael Thomas, QC, there are other local Queen's Counsel who specialize in shipping law.
15. In my judgment the applicant has not discharged his burden of showing cause that an overseas counsel should be admitted on the basis that the case is one of such unusual difficulty or complexity that no local counsel of appropriate skill and experience is available, or that the case requires specialist knowledge of the kind not available from the local Bar.
16. The application is therefore refused.
Representation:
Mr. A. Rogers, QC & Mr. M.T. Yeung (C.Y. Kwan & Co.) for Bar Association
Mr. W.R. Marshall, QC & Miss R. Drake for Attorney General
Mr. John Scott (Richards Butler) for Applicant
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