In re Robert Michael Englehart, Q.C.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(Miscellaneous Proceedings No. 2758/1995)

In re Robert Michael Englehart, Q.C.

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J U D G M E N T

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Yang, C.J.:

1. On 13 October 1995, I granted an application to admit a London Silk to appear for the plaintiffs in a number of forthcoming High Court actions set down for hearing in November 1995. As one of the defendants was a well-known local Queen's Counsel and certain allegations might be put to him in cross-examination at the hearing which would cast doubt on his integrity, I thought it best in the circumstances for a senior counsel from outside Hong Kong to act for the plaintiffs: In re Coles [1985] 1 HKLR 480, at p.483(d). I also ordered costs against the Bar Council who had opposed the application.

2. On 16 October, and before my order was perfected, the Bar Council became aware of certain information which prompted them to take out a motion, dated 26 October, for the review, withdrawal, alteration or modification of my order of 13 October on the grounds that -

1. the Court and the Council of the Hong Kong Bar Association were not informed that the proceedings set out in the Originating Motion and for which the admission of Mr Englehart QC was sought had been settled prior to the hearing of the Originating Motion, thus there was no or no sufficient ground for the admission of Mr Englehart QC;

2. further and in any event, costs of the application ought not have been made against the Council of the Hong Kong Bar Association.

3. The alleged settlement was signed by Mr Benjamin Lung (one of the defendants) on the defendants' behalf and Mr Paul Hsu (one of the plaintiffs) on the plaintiffs' behalf. It was described as "an agreement for a global settlement". The agreement was "reached" on the evening of 12 October, in the absence of the parties' legal advisers.

4. There had however been correspondence between the parties' solicitors prior to 12 October.

5. On 11 October, the defendants' solicitors wrote to the plaintiffs' solicitors saying that they understood from their clients that an agreement for a global settlement of all the disputes had been reached "earlier today" and they set out their terms of the settlement as agreed.

6. On the following day the plaintiffs' solicitors wrote to the defendants' solicitors saying that they did not have any instructions from their clients that a global settlement had been reached for all issues. Later on the same day the defendants' solicitors wrote to the plaintiffs' solicitors that the defendants had instructed them that firm agreement was reached for a global settlement in terms set out in the letter of the defendants' solicitors dated 11 October.

7. On 13 October, after my order of the same date had been made, the plaintiffs' solicitors wrote to the applicant saying -

"1. After overcoming opposition from the Hong Kong Bar Association we succeeded today in having Mr Englehart admitted in Hong Kong for the hearing of these cases.

2. We have today been informed by the client that he has in fact agreed terms direct with the opposition for a global settlement of all the issues. We enclose herewith a copy of the agreement that has been reached. We should inform you that we have still not received confirmation from our opponent's solicitors that in fact an agreement has been reached in such terms.

Obviously, in the light of the instructions that we have received we are not presently in a position to be able to brief you. We anticipate that the position will be clear by Monday or Tuesday of next week."

8. On the same day, after the earlier letter had been sent, the plaintiffs' solicitors again wrote to the defendants' solicitors. It says, inter alia -

"We refer to your second fax of yesterday's date and are instructed that our respective clients have reached an agreement for a global settlement of the various proceedings on 12th October 1995 upon the terms as set out in the enclosed agreement signed by Paul Hsu and Benjamin Lung."

and it goes on to say -

"Could you please confirm your client's agreement to these terms and forward to us draft Consent Orders agreements and other documentation to put into effect the terms of the agreement as soon as possible."

9. According to the affidavit of Mr R M Healy, Assistant Solicitor in the firm of solicitors acting for the plaintiffs, he was first informed of the alleged agreement over the telephone by Mr Paul Hsu at about 9:30 am on the morning of 13 October. Mr Paul Hsu further told him that Mr Benjamin Lung had indicated that he was in effect "going out on a limb" but he would deal with the other defendants subsequently. In Mr Healy's opinion it was not a matter that should have been brought to the attention of the court. He was further of the view that it would have been "most improper and inappropriate to have relayed in open court, at this stage a submission to the effect that the proceedings had been settled." The reason he gave for adopting this stance was that if subsequently there was a problem with the "proposed settlement" no doubt such submission as was made in open court would be used against his clients.

10. The information relating to the "proposed settlement" was not relayed to the plaintiffs' counsel until after the court hearing of 13 October.

11. According to Mr Paul Hsu's affidavit -

"During the afternoon of 13th October 1995 in order to avoid incurring such a substantial outlay, my solicitors wrote to Mr Englehart's clerk indicating that there had been what is claimed to be a global settlement of the issues negotiated direct between the clients but that they still had not received confirmation from the opposition's solicitors that such terms were in fact agreed and that they anticipated that the position would be clear by the early part of the following week. In the circumstances, my solicitors indicated that they were unable to effect payment of the brief fee until matters became clearer in the following week."

12. It would therefore appear that as far as the plaintiffs' solicitors were concerned no firm settlement had been reached between the parties. Indeed, Mr Healy in his affidavit (supra) said that when Mr Paul Hsu telephoned him at 9:30 am on 13 October -

"I did, however ask if Mr Hsu still wished us to go ahead with the application to admit Mr Englehart for the potential hearing of these actions. I advised that if Mr Englehart was not admitted and for any reason matters did not proceed amicably we could find ourselves in considerable difficulty as of course the trials were due to commence on 13th November 1995. Mr Hsu instructed that he felt we had to go ahead with the admission of Mr Englehart particularly in view of the problems that he had experienced in the past ......."

13. Whatever the status of the alleged global settlement, the fact was that several days later a formal settlement was drawn up by the parties' respective lawyers. There was therefore no longer any necessity for the London Silk to come to Hong Kong, and he did not come.

14. It should be noted at this point that the final settlement of what was a long drawn out and complicated dispute, was a complex document covering many pages, unlike the "global settlement" signed by Mr Benjamin Lung and Mr Paul Hsu, which is a loosely worded document, described by Mr Paul Hsu as "certain heads of agreement which were to form the basis of the agreement."

15. The main questions which call for determination are: (i) whether the Bar Council's present application is "sterile" and "academic", (ii) whether material information had been withheld from the court by the non-disclosure of the "global settlement" reached on the evening of 12 October, and (iii) whether the court has the jurisdiction to order costs against the Bar Council in cases where an application for the admission of a barrister is successful.

16. Before I deal with the three questions referred to in the previous paragraph, I wish to state at the outset that nothing which has been done by the Bar Council can be described as anything other than that done in the public interest. Their good faith cannot be called into question.

17. In my view, in the light of what took place after 13 October, the question of the London Silk's admission is no longer a live issue. It is of academic interest only. Nothing I do now will alter anything.

18. A corollary to the second question is whether the court was misled in any way.

19. It would appear that the plaintiffs' solicitors did not think a firm agreement had been concluded by the parties on the evening of 12 October. Indeed the form of the "global settlement" for what was acknowledged to be a complicated dispute seemed amateurish and lacking in precise details.

20. Mr Healy was informed of the alleged "global settlement" by telephone half an hour before he was due to appear in court. There was no time for proper consultation or detailed examination of the terms of the alleged settlement. Indeed he did not receive a copy of the alleged settlement until after the court hearing. It was necessary for him to make a quick decision whether or not to proceed with the application before me. In his professional opinion, as explained in his affidavit referred to above, he thought it preferable for the application to proceed, without disclosing to the court what had transpired between Mr Paul Hsu and Mr Benjamin Lung the evening before. It is not necessary for me to say here whether Mr Healy's opinion was the one I would have made myself if I were in his position, but I cannot criticise him for his decision, which in all the circumstances, was a difficult one to make.

21. On the question of costs, I have considered with care the arguments advanced on behalf of both sides. I accept that I have no jurisdiction to award costs in successful applications of this kind, vide Rule 9(2) of the Admissions and Registration Rules, Cap.159.

22. I further accept that the Bar Council have acted reasonably throughout; indeed they have taken a course of conduct which was entirely in the public interest and in the highest traditions of the Bar.

23. For the reasons given above, my answer to question (i) is yes, to question (ii) is no, and to question (iii) is no. I accordingly allow the motion in respect of question (iii) and withdraw my order for costs.

( T L Yang )

Chief Justice