IN RE J.F. BADENOCH

HCMP2292/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2292 of 1999

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J U D G M E N T

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1. This is the second application by the applicant since I dismissed a similar application on 1 April 1999. Counsel for the applicant informs me that the applicant now relies on a different ground for the application, that is, local leading counsel who has been retained at short notice since the last application does not feel that he can do justice to his client given less than 2 weeks to prepare this heavy case which is due to start next Monday 26 April. It is submitted that the applicant who has been retained for some two years is much more conversant with the facts of the case in which he is to be briefed. The Bar consents to the present application. The reason for this "change of heart" is, Mr Bleach SC tells me, that the Bar accepts the difficulty which now faces local leading counsel and also the plaintiff in the main action.

2. In my view, the same ground is relied upon. The principles which govern this sort of applications and the last application have not changed and remain applicable. What has changed is the circumstances of the case. I accept that local leading counsel who was briefed only last week has an almost impossible task in preparing this difficult and complicated case. But I too have an equally impossible situation. I am left with practically no choice. On the one hand, if I grant the application, I would be seen to depart from the principles and guidelines which I have set out in previous decisions. On the other hand, if I refuse the application, the interest of the plaintiff in the main action would be at serious risk given the limited time now available to local leading counsel to prepare the case.

3. Having balanced the public interest which needs to be protected in the control of admission of overseas counsel on the one hand and the plaintiff's interest in this difficult litigation on the other, I think that, in the very special circumstances of this case, I ought to exercise my discretion in favour of protecting the plaintiff's interest. I would however point out that if I am to grant this application, it can only be on the ground that at this very late stage, it would be detrimental to the plaintiff's interest not to get someone who is conversant with this case and who can protect his interest. That being the case, I see no reason why junior counsel who has been in the case since its commencement should not continue to be retained as well. Without any disrespect to the local leading counsel who is retained, the particular junior counsel's familiarity in that case is much greater. His absence would affect the plaintiff's interest. I would, in these circumstances, grant the application upon the undertaking by the Director of Legal Aid who briefs the applicant to retain this junior counsel in the case.

4. This is an exceptional case. It highlights the importance in all cases to adhere to the principles and guidelines in relation to the admission of overseas counsel, particularly the guidelines regarding the procedure in relation to these applications. I would take this opportunity of reiterating yet again that in future any failure in complying with the guidelines without good reasons will not be tolerated. If such failure results in the court refusing an application for admission and hence in any detriment to a litigant's interest, the blame will lie on those who have the conduct of the litigation and this may well be visited by further litigation for negligence or for costs.