THE LAW SOCIETY OF HONG KONG v. MARK TAYLOR SIMPSON QC v. BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION AND ANOTHER

FAMV Nos. 141 and 144 of 2021

[2021] HKCFA 25

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 141 and 144 OF 2021 (CIVIL)

(ON APPLICATIONS FOR LEAVE TO APPEAL

FROM CACV NO. 543 OF 2019)

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REASONS FOR DETERMINATION

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The Appeal Committee:

1.  At the conclusion of the hearing, we dismissed these applications for leave to appeal.  We now give our reasons.

2.  The applicant, Mr Mark Simpson QC, applied for ad hoc admission as a barrister for the purposes of advising and appearing on behalf of the plaintiffs in HCCL 9/2019 at the trial of the Action before the Court of First Instance, pursuant to the statutory discretion under section 27(4) of the Legal Practitioners Ordinance (Cap 159).  Poon Ag CJHC (as the Chief Judge then was) granted his application on the usual condition that he appear with a local barrister[1]. Dissatisfied with that condition, the applicant appealed to the Court of Appeal[2], arguing that two solicitor advocates had from an early stage been instructed to advise and represent the plaintiffs in the proceedings, and one of them would be instructed to appear together with the applicant for the plaintiffs at trial.  Since a solicitor advocate has the same higher rights of audience as a barrister (since 2012), the judge was wrong to impose the condition that the applicant must appear together with a local barrister.

3.  The appeal was dismissed by the Court of Appeal basically on the grounds that there was a material distinction between barristers and solicitor advocates in terms of the level of independence, the degree of freedom from conflicts of interest and the accessibility to members of the general public.  The 2012 legislative amendments[3] whereby solicitor advocates are given higher rights of audience did not result in the conferring of equal standing on barristers and solicitor advocates.  The judge was right to impose the usual condition in the absence of exceptional circumstances.  The Court also rejected an argument based on article 35 of the Basic Law as that article only protects a litigant’s choice of lawyers from those available to represent him.  It does not extend to overseas counsel who do not have a general right to practise locally.

4.  Both the applicant and the Law Society (as intervener) applied for leave to appeal from the Court of Appeal’s decision.  They failed before the Court of Appeal[4], and thus the applications before us.

5.  On behalf of the applicant, it was submitted that the following questions of great general or public importance arose from the decision of the Court of Appeal:

“(1) Is there a material distinction, in terms of ‘level of independence and the degree of freedom from conflicts of interest’ or ‘availability…to the general public’, between solicitor advocates and barristers?

(2) If so, in a case where a solicitor advocate has been instructed, does it justify imposing a condition on ad hoc admission of an overseas advocate that a local barrister must be instructed as well?

(3) Is it in the public interest to prohibit a suitably qualified solicitor advocate from appearing with an overseas advocate admitted on an ad hoc basis, without a local barrister also being instructed?

(4) Is such a condition or prohibition contrary to the right to a ‘choice of lawyers…for representation in the courts’ under Article 35 of the Basic Law?”

6.  The Law Society raised three similar questions said to be of great general or public importance in support of its application for leave to appeal:

“(1) whether there is any relevant distinction to be drawn between barristers and solicitor advocates in Hong Kong in terms of their accessibility to members of the general public;

(2) in the event a relevant distinction may be drawn between barristers and solicitor advocates in Hong Kong in terms of their accessibility to members of the general public, whether such distinction is a consideration which ought to be taken into account by the CFI when exercising its discretion to admit a foreign advocate as a barrister in Hong Kong on an ad hoc basis under section 27(4) of the Legal Practitioners Ordinance (Cap. 159) (the ‘LPO’); and

(3) whether a foreign advocate may be admitted as a barrister on an ad hoc basis under section 27(4) of the LPO, on the condition that the foreign advocate appear with a local solicitor advocate and without instructing a local barrister.”

7.  Unlike her position taken before the courts below (which was in support of the applicant’s and the Law Society’s position), the Secretary for Justice, representing the public interest, took a neutral stance in relation to the applications for leave to appeal before us.

8.  The Bar Association opposed the applications.

9.  An immediate hurdle facing the applications for leave to appeal was this.  After the applicant’s unsuccessful appeal to the Court of Appeal, the plaintiffs in the underlying litigation instructed a local barrister to appear together with the applicant (and the solicitor advocate) at the trial, in compliance with the condition imposed by the judge and upheld by the Court of Appeal[5]. But not only that.  On 25 June 2021, a “commercial resolution” was reached between the parties to the underlying litigation such that, for all intents and purposes, the dispute between the parties was settled, and the service of the applicant as trial counsel was no longer required[6]. These developments therefore rendered the applications for leave to appeal to this Court wholly academic.

10.  It is well established that as a general rule, this Court does not entertain cases that are academic between the immediate parties.  Exceptions are rare.  Even in the field of public law, the fact that an appeal would be academic as between the immediate parties is a strong factor against granting leave to appeal, even though it is not an absolute bar.  In such a case, it is only where there is a sufficiently great public interest to be served by having a question or questions of public law decided by this Court that the grant of leave to bring such an appeal may be appropriate[7].

11.  Having considered the matters urged upon us, including in particular the underlying rationale for the usual condition, the relevance and arguability of the questions that were said to be of great general or public importance, any public interest to be served by having those questions (or one or more of them) decided by this Court in this particular case, the current stage of development of solicitor advocates in Hong Kong and their exercise of the higher rights of audience before the courts[8], and whether a refusal of leave to appeal would have a stifling effect on the future development of solicitor advocates, we were not satisfied that, exceptionally, we should give leave to appeal to entertain the wholly academic questions.  For these reasons, the applications for leave to appeal were refused.  Our determination does not necessarily preclude any future consideration of one or more of the questions raised in an appropriate case. But that is for another day.