RE IAN MILL QC

HCMP 1786/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1786 of 2009

_________________________

________________________

______________

J U D G M E N T

______________

1.  The Applicant applies to be admitted as a barrister under section 27(4) of the Legal Practitioners Ordinance, Cap. 159 to represent the Defendants (the Appellants) in an appeal due to be heard by the Court of Appeal in December 2009.

2.  The Defendants, twin brothers, constitute the popular musical band “Soler”.  In the course of late 2004 and early 2005, they entered into a series of agreements with the Plaintiff (2 Artist Agreements, Exclusive Management Agreements and a Writers Agreement) in which the Defendants’ careers were to be managed by the Plaintiff.  I understand that such agreements are known in the entertainment industry as ‘multiple rights deals’.  The Plaintiff’s role was, as Ms Joyce Leung (for the Applicant) has described, that of a record company, manager and music publisher.

3.  Claims were brought by the Plaintiff against the Defendants following a breakdown in relations between the artists and their manager.  Essentially, the Defendants refused to perform under the various agreements.  For their part, the Defendants claimed that the agreements were unenforceable by reason of undue influence or duress, and also by reason of their being in restraint of trade.  It was also claimed by the Defendants that it was the Plaintiff who was in repudiatory breach of the contract, not them, and that the Plaintiff had also breached fiduciary duties owed to the Defendants.

4.  Following a trial last year before Deputy Judge Carlson lasting some 23 days, judgment was given in favour of the Plaintiff.  Damages were assessed at $5,058,000.  Much of the trial was taken up with evidence going to the peculiar relationship between the parties – a common feature of cases involving restraint of trade issues.

5.  The application for admission is based on the following factors : -

(1)  The appeal involves matters of unusual difficulty or complexity.

(2)  The appeal also involves the resolution of legal issues that would impact substantially on the development of Hong Kong law.

(3)  The pool of available counsel in Hong Kong who might be suitable to conduct the appeal is small and the Applicant, being an experienced practitioner in the field of entertainment law, would add a “significant dimension to a very complex or difficult case” (see Re McGregor QC [2003] 3 HKLRD 585 at 591 G-H (paragraph 11(3)).

6.  In my judgment, this application should be refused for the following reasons : -

(1)  The appeal will, as did the trial in the Court of First Instance, primarily be concerned with the application of well-known legal principles to the peculiar facts of the present case and the construction of the relevant agreements.  It is not suggested that there is any controversy as to the law.  While I accept that sometimes the application of law to facts may involve extremely complex questions for determination (see Re McGregor QC at 593 F-G (paragraph 18)), the present case is not one of these.  The facts are relatively straight-forward.

(2)  As to the law, it is important to reiterate the point that the importance a case may have to any particular sector in the community – in this case the entertainment industry – or even to the community as a whole, does not necessarily equate to that case involving legal issues that will impact substantially on the development of Hong Kong jurisprudence.  As I have already said, the present appeal involves the application of well-known principles to facts and arriving at the true construction of the relevant agreements.

(3)  The Applicant consistently makes the point that there have been no cases adjudicated by the higher courts in Hong Kong on ‘multiple rights deals’.  I do not for one moment underestimate the importance of such contracts to the entertainment industry, but in the end, in the present case, the applicable legal principles are, as I have said, well established.  Different consideration may arise if a court is asked to determine the legal effect of standard terms used in a particular industry, where its decision then would have a significant impact on the industry as a whole, but there is nothing really to suggest in the present case that the relevant agreements involve such terms.

(4)  There is no doubt that the Applicant is an experienced and leading specialist in the field of entertainment law, but nevertheless, in view of the nature of the issues before the court as I have earlier identified, I am not convinced that he will add a significant dimension to the case.  Furthermore, his “intricate understanding of the entertainment industry” (as his solicitor puts it) is, I assume, in any event confined to the entertainment industry elsewhere other than Asia.  It is not suggested that his knowledge of the Asian or Hong Kong entertainment industry is equally wide.

7.  Lastly, I should also say something about the efforts made by the Applicant’s solicitor to inquire as to the availability of suitable local counsel.  The Applicant’s solicitor deposes to the fact that inquiries were made of three Senior Counsel.  One of them declined instructions (for reasons not readily apparent).  No further details are provided as to the position of the other two Senior Counsel.  More importantly, no real explanation has been provided as to why it was felt that the available pool of counsel in Hong Kong was a small one.  It may be that the solicitor proceeded with the premise that counsel had to be knowledgeable in the field of entertainment law, but with respect, this is insufficient in the present case.  It is necessary to set out those particular aspects of the case that would require an expert in the field to be instructed.  Here, I repeat the observation made earlier that the case essentially involves the application of well-known legal principles to the peculiar facts of the case.  In my view, the available pool of Senior Counsel in Hong Kong for a case such as the present is relatively large.

8.  For the above reasons, the application is dismissed.