SIU YAT FUNG ANTHONY t/a ANTHONY SIU & CO v. THE JOINT TRIBUNAL OF THE BAR COUNCIL AND THE LAW SOCIETY

HCAL 1205/2021

[2022] HKCFI 2199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1205 OF 2021

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J U D G M E N T

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A.  Introduction

1.  The Determination of the Joint Tribunal was stated in just 7 pages and 28 short paragraphs. It may be thought ironic that it will take many more pages and paragraphs to subject the Determination to judicial review, so as to decide whether (a) it was a model of appropriate brevity and succinctness or (b) it was so ‘thin’ that it failed properly to grapple with the issues and/or adequately identify its reasoning.

2.  The Determination, dated 24 June 2021, was made in circumstances where, in Hong Kong, barristers cannot sue solicitors for fees. Instead, fee disputes between members of the two professions are mandatorily resolved by a “Joint Tribunal” which is set up by the Council of the Law Society and the Bar Council specifically for the purpose of resolving such disputes. Once the Joint Tribunal has made a determination, both the solicitor’s and the barrister’s compliance with it is enforced via the two Councils’ professional conduct and disciplinary regime.

3.  In this instance, the Joint Tribunal comprised Mr Frederick Hui (a solicitor) and Mr Robin Egerton (a barrister).

4.  In the Determination, the Joint Tribunal determined that the solicitor (“Solicitor”) and the sole proprietor of a law firm called Anthony Siu & Co (“Firm”), is liable to pay Counsel’s fees of HK$1,050,000 to the barrister Mr Dickson Wong Kai Tak (“Barrister”), and that the Barrister is not liable to return to the Solicitor or Firm the Counsel’s fees of HK$950,000 already paid.

5.  The Form 86 was filed by the Solicitor as applicant on 30 August 2021. Leave to apply for judicial review was granted by me on the papers on 6 September 2021.

6.  Originally, just the Bar Council and the Law Society Council were named as respondents, and the Barrister was named as the interested party. Issues subsequently arose as to (1) whether the Determination is amenable to judicial review and (2) who should be the correct respondent to the application. In my decision given on 17 June 2022, with Reasons for Decision dated 29 June 2022 [2022] HKCFI 1977, I held (1) that the Determination is amenable to judicial review, and (2) that the proper respondent is the Joint Tribunal. I directed the proceedings to continue on that basis.

7.  The Solicitor – represented by Counsel, Mr Bernard Man SC and Mr Thomas Wong – asks for the Determination to be quashed and for an order directing the Joint Tribunal to reconsider the decision. The Barrister – represented by Counsel, Mr William Wong SC and Mr Brian Fan – asks for the application to be dismissed.

8.  By separate letters in early December 2021, the Bar Council and the Council of the Law Society had indicated that they would not contest the substantive judicial review and would consent to an order for the Determination to be quashed and for a new Joint Tribunal to be constituted to consider the dispute afresh. They both sought to be excused from attendance at the substantive hearing, which was granted.

9.  Since being joined as respondent, the members of the Joint Tribunal have written to indicate that it takes a neutral stance, and the Joint Tribunal’s attendance was also excused.

10.  Hence, as before the Joint Tribunal, the battle is between the Solicitor and the Barrister. But, the battleground is different. In these judicial review proceedings, the Court does not sit as an appellate court reviewing the merits of the fee dispute or the Joint Tribunal’s Determination. Rather, the Court is concerned with considering the legality, rationality and fairness of the decision-making process.

11.  Having said that, some of the submissions made to me in these proceedings seem to invite consideration of, and perhaps expression of views as to, the underlying merits of the fee dispute. I should make clear that, in so far as I traverse such ground, I do so only for the purposes of the review of the decision-making process.

12.  This is my Judgment.

B.  The Relevant Instructions

13.  The arrangements between the Solicitor and the Barrister in this case were not typical.

14.  Ordinarily, a solicitor acts on instructions from the solicitor’s client (the lay client) to instruct a barrister at the lay client’s cost. The barrister sends his fee note to the solicitor, and the barrister’s fee is charged by the solicitor to the lay client as a disbursement, and in addition to the solicitor’s own fees.

15.  In this case, the lay clients may well have been aware of the intended involvement of the Barrister, and would have known of his actual involvement from correspondence and his attendance at meetings, but they had not instructed the Solicitor or the handling partner, Ms Lee, to instruct the Barrister in the ordinary way.

16.  Rather, it seems to me that the true ‘client’ of the Barrister (if ‘client’ is the right word) was the Firm. Each lay client in the two Projects engaged the Firm for the relevant legal work, at an agreed lump sum fee. Therefore, such work as was conducted by the Barrister was actually part of the work for which the lay client had paid (or was to pay) the Firm, and so what happened was that Ms Lee in effect ‘sub-contracted’ part of the Firm’s work to the Barrister – perhaps because the Firm did not have the resources internally.

17.  In her witness statement made for the Joint Tribunal, after writing that the Solicitor had acknowledged and expressly agreed to the arrangements to engage the Barrister as had been suggested by her, Ms Lee wrote (at §32):

Thereafter, I confirmed with the clients for the Projects that I would be able to take on the appointment and engagement letters were subsequently signed by me and the clients. I confirm that at about the conclusion of the engagement of the Respondent, the clients for the Projects knew that I would be instructing the Applicant or a barrister at our costs [sic] to assist in the drafting work. The clients for the Projects were agreeable to this as long as the work could be completed at the end of the day and that I took the overall responsibilities of those matters.

18.  That passage seems to me to make good my view of the actual arrangements, namely that the Barrister would assist the Firm (not the lay client), and do so at the expense of the Firm (not the lay client).

19.  I acknowledge that there may be situations in which a solicitor or solicitor’s firm may quite properly be simultaneously both the instructing solicitor and the lay client of the barrister. But I am not sure that the particular arrangements in this case fall into that kind of situation, within the rules of professional conduct.

20.  At the hearing, I raised with both Leading Counsel my provisional view as to the actual arrangements between the Barrister and the Solicitor/Firm – and, in particular, whether that view of the arrangements might impact these proceedings, or raise any other issue. Both Leading Counsel submitted that the particular view of the arrangements would be relevant, if at all, only to matters of professional conduct, and ought not to affect or be taken into account in the consideration of my judicial review of the Determination. I proceed on that basis.

21.  Ms Lee issued the Briefs to the Barrister for both Projects at around the same time. Both are dated 24 November 2017, and are in similar format. Both are headed:

IN THE MATTER OF A LISTING APPLICATION TO BE MADE BY [name of lay client] (the “COMPANY”) and ITS GROUP OF COMPANIES

22.  There followed the respective name of the Project – “PROJECT GARLIC” or “PROJECT SEIKO” – and the actual instructions were extremely brief, both being simply:

For settling and reviewing the prospectus in relation to Project Seiko [the instructions for Project Garlic nevertheless still referred to Project Seiko]

23.  Each Brief then set out the relevant brief fee, as a total and by reference to the stages for payment. Each Brief appears to have been signed or initialled by Ms Lee over the block of words:

Instructing Solicitors:
Ms. Eva Lee
Solicitors for [name of lay client]
Unit 1102-3, 11^th Floor, Nine Queen’s Road Central
Hong Kong.
Tel: 2523 4630    Fax: 2520 6877
Ref: EL

24.  Ms Lee was employed as a salaried partner of the Firm. The address shown was the then address of the Firm. The fax number shown was the fax number of the Firm. Though I have not found the reference in the papers, I anticipate that the telephone number shown was Ms Lee’s direct number at the Firm. However, the name of the Firm is not on the Briefs. Nor did the file reference of “EL” match the file reference of either Project Seiko (EL/2379/17) or Project Garlic (EL/2431/17), or any other reference of the Firm’s files.

25.  In the Joint Tribunal, the Solicitor gave evidence and submitted that the Briefs were issued without his authority, because:

(1)  Before the relevant Projects, Ms Lee had been put in charge of another IPO matter for the Firm, namely Project Money BB.

(2)  In May 2017, Ms Lee recommended to the Solicitor and the Firm to instruct the Barrister to assist in settling and reviewing the prospectus in Project Money BB, for which the Barrister quoted $270,000.

(3)  That recommendation was agreed to by the Solicitor. A brief was issued to the Barrister (a) by the Solicitor, (b) signed by the Solicitor, and (c) containing a proper reference number (AS/EL/LHK/LCK/2224/17).

(4)  In around November 2017, Ms Lee informed the Solicitor she would again like to instruct the Barrister to assist in settling and reviewing the prospectuses for Project Seiko and Project Garlic, and that the Barrister’s fees would be in line with that in Project Money BB with reasonable adjustments having regard to the scope and complexity of the work involved.

(5)  On that basis, and against that background, the Solicitor already indicated to Mr Lee that she might instruct the Barrister.

(6)  However, the fees under the Projects are totally out of proportion to, so not in line with, Counsel’s fees for Project Money BB, and the Solicitor had never seen or approved the issue of the Briefs (despite the fact that he was the principal and sole proprietor of the Firm).

(7)  The fees were also a disproportionately high proportion of the fees expected to be received by the Firm for the Projects (26% and 40% respectively).

26.  On 30 November 2017 and 20 December 2017, the Barrister issued fee notes (invoices) for the first instalments of $350,000 for Project Garlic and $600,000 for Project Seiko. Not suspecting irregularities or misconduct, and because the payment vouchers had been signed and approved by Ms Lee, the Solicitor settled the invoices on 4 and 23 December 2017.

27.  On 12 May 2018, the Barrister issued a fee note to the Firm for the sum of $450,000, being the second and third instalments for Project Garlic.

28.  In response, on 31 May 2018, the Firm requested the Barrister to explain the work done by him and to provide supporting documents (such as drafts of prospectus showing the comments made by him, correspondence between him and Ms Lee, and so forth) relating to the Projects. The demand was made pursuant to Chapter 9.13 of the Code of Conduct of the Bar.

29.  Despite chasers, the Barrister failed or refused to accede to the Firm’s requests. Instead, on 28 November 2018, he issued a fee note for $600,000, being the second instalment for Project Seiko.

C.  The Case Before the Joint Tribunal

30.  In the proceedings before the Joint Tribunal, the Barrister was the Applicant and the Solicitor was the Respondent. Many of the documents used before the Joint Tribunal referred to them in those roles (and can be read accordingly).

31.  Before the Joint Tribunal, both the Solicitor and the Barrister filed lengthy pleadings, submissions and evidence/exhibits, together running to thousands of pages. They were reproduced as part of the materials in the judicial review bundle, which ran to 17 bundles of exhibits.

32.  The Barrister’s claim was based on the assertion that he had been formally instructed by Ms Lee on behalf of the Firm, on an agreed sum basis for each of the Projects, and/or that the Briefs amounted to representations made by the Firm to instruct him for his professional services in relation to the Projects in return for payment of counsel fees. The Barrister said he had commenced work relevant to or in connection with the instructions, and his involvement was evidenced by production of drafts of the prospectus, and letters from third parties confirming his involvement. Despite the agreed fees, only some stages of the fees totalling $950,000 were paid, but $1,050,000 remained unpaid.

33.  In response, the Solicitor essentially argued the following points (though they were not quite formulated nor defined in this way):

(1)  Ms Lee had no actual authority to issue the Briefs on behalf of the Firm, by reason of the prior express discussions between Mr Lee and the Solicitor. Reliance was also placed on the argument that the Briefs were not issued by or in the name of the Firm, that the reference was not the Firm’s reference for either of the Projects, and that they were issued without the knowledge of the Solicitor (“Instructions Point”, as defined by Mr Man in these proceedings).

(2)  The Barrister knew or ought to have known that the Briefs were for excessive fees (being between 3.7 and 4.4 times the fees charged for Project Money BB a few months earlier), and the irregularities would have been apparent to him, so that it was dishonest or irrational for him to rely on Ms Lee’s apparent authority (“Irrationality Point”).

(3)  The fees payable under the Briefs, totalling $2.2 million, were grossly excessive having regard to the seniority of the Barrister – because he was called to the Bar in 1994 but, according to him, commenced practice only in April 2013. Further, there was persistent failure to provide records showing the work done by him, and the fees were not “proper fees” within the meaning of Principal 12.04 of the Solicitors Guide and Annex 9B of the Bar Code (“Proper Fee Point”).

(4)  The Barrister was acting in concert with Ms Lee to charge and obtain unreasonably high fees. This was to be inferred from at least: (a) the intimate relationship between the Barrister and Ms Lee; (b) the fact that the Barrister and Ms Lee had in March 2018 rendered legal services to a Mr Lam, without the knowledge or authorisation of the Firm, and (c) the Brief fees accounted for a disproportionately high proportion of the total fees which the Firm expected to and did receive from the Projects (“Collusion Point”).

34.  I note that the allegation about the intimate relationship was expressly denied by the Barrister, and that his Points of Reply described the averment as groundless, frivolous, vexatious or devoid of particulars and inappropriate or improper, in bad faith and liable to be struck out.

35.  Before the Joint Tribunal, the Solicitor had sought to define the issues in dispute on the liability to pay fees (or to recover fees already paid) as:

(a)  Whether such purported fees were in the nature of “honorarium”;

(b)  Whether such purported fees were unreasonably high so as to amount to professional misconduct on the part of the Applicant;

(c)  Whether there is “reasonable excuse” for non-payment of such purported fees as per principal 12.04 of the Solicitors’ Guide to professional conduct (“the Solicitors’ Guide”) and paragraph 1 of Annex 9B of the Bar Code, including whether the Applicant satisfied his duty under paragraph 9.13 of the Bar Code, whether there were adequate records of the substantial work of the Applicant to support and justify such fees, and/or whether such fees were unreasonably high;

(d)  Whether such purported fees were “proper fees” as per principal 12.04 of the Solicitors’ Guide;

(e)  Whether the “Briefs to Counsel” dated 24 November 2017 were issued to the Applicant by EL [i.e. Ms Lee] with herself (but not AS nor the Firm) as the “instructing person”, and/or without the proper authority (whether actual or apparent) of the Respondent so that the Applicant may not rely on such “Briefs” against the Respondents; and/or

(f)  Whether the Applicant had acted in concert with EL to charge excessively?

36.  On the other hand, the Barrister sought to define the issues in dispute as follows:

1.  Whether there are any reasonable grounds for the Respondent not to honour the Briefs issued by EL who was a then-partner of the Respondent?

2.  Whether there are any reasonable grounds for the Respondent to dispute the fact that the Briefs delivered were on an agreed sum basis, with an arrangement for Brief fee payments based on milestone dates?

3.  Whether confirmation letter from lay client and/or joint legal adviser of lay client in relation to Applicant’s involvement is conclusive evidence of the Applicant’s involvement in the work?

4.  If so, whether there are any reasonable grounds for Respondent not to honour the Brief fees payment once the end-product has been produced / once the milestone date(s) has/have passed?

37.  As will be seen below, the Joint Tribunal chose to define the issues differently from those offered by both the Solicitor and the Barrister (though perhaps with greater similarity to those put forward by the Barrister).

38.  However, the totality of the materials identifies that the issues to be addressed and determined – though potentially overlapping – included at least those relating to:

(1)  the identity of the person instructing – whether it was the Firm, or Ms Lee (and not the Firm);

(2)  the fact of and scope of the actual authority of Ms Lee – by reference to the fact that she was only a salaried partner, and/or that she had had the alleged material prior discussions with the Solicitor, and/or because of the way in which the Briefs were formulated and signed;

(3)  the apparent authority of Ms Lee – by reference the fact that she was a salaried partner, and to the surrounding circumstances and the Barrister’s knowledge of them;

(4)  the “properness” of the fees, by reference to their magnitude and/or the surrounding circumstances;

(5)  the alleged collusion between the Barrister and Ms Lee, and its impact on the other points.

39.  All of these matters were canvassed at some length in the various submissions.

40.  The Solicitor did not file an actual witness statement – there being no direction requiring him to do so – but he did verify the truth of his pleadings and submissions. The Barrister did file a verified witness statement, and one from Ms Lee. But it can be noted that both the Solicitor and the Barrister were apparently content for the fee dispute between them to be determined on the papers, without an oral hearing and without live evidence. The Joint Tribunal was also apparently content to deal with the matter on the papers, without an oral hearing and without live evidence.

41.  I also note – and the Joint Tribunal was also informed – that the Firm had conducted an internal investigation into the conduct of Ms Lee at the Firm, which investigation allegedly revealed various incidents involving serious misconduct, fraud and/or dishonesty on her part (as well as aspects of her prior dealing with the Barrister). Ms Lee was summarily dismissed from her employment with the Firm on 29 May 2018. On 18 July 2018, the Firm also commenced High Court proceedings, HCA 1667/2018, against Ms Lee and a company solely owned and controlled by her. The case is due to come to trial in 2023.

D.  The Joint Tribunal’s Determination

42.  It can be noted that the last submissions were made to the Joint Tribunal in April 2020. But the Determination was not provided until 14 months later, in July 2021. With the heading, it is about 7½ pages long, of which only 3 pages are the analysis/reasoning.

43.  Section A ‘Background’ of the Determination identified the parties to the fee dispute, and went on to state, covering a little over 1 page (bold in original):

4.  The material facts of the present case are as follows:

Date		Event
4.1	September to November 2017	The Respondent was retained to act for Project Seiko and Project Garlic (Project Garlic and Project Seiko together as the “Projects”)
4.2	24 November 2017	2 Briefs to Counsel (1 each for Project Garlic and Project Seiko) were issued to the Applicant, signed by Eva Lee (“Lee”) Brief fee for Project Seiko: HK$1.2m Brief fee for Project Garlic: HK$1.0m (the “Briefs”, or respectively the “Project Garlic Brief” and “Project Seiko Brief”)
4.3	November to December 2017	2 invoices No.1665 and No. 1666 in the amount of HK$350,000 and HK$600,000 were issued to the Respondent by the Applicant. The Respondent made payment to the Applicant by cheques signed by Siu Yat Fung Anthony, sole proprietor and principal of the Respondent.
4.4	10 May 2018	Project Garlic successfully submitted to HKSE for vetting
4.5	12 May 2018	Invoice no.1668 issued by the Applicant to the Firm for Project Garlic Brief items (2) and (3) – HK$450,000
4.6	18 October 2018	Invoice no.1669 issued by the Applicant to the Firm for Project Seiko Brief item (2) – HK$600,000

44.  It is to be noted that, from the context, these are statements of undisputed background facts – and not findings of fact where a dispute arose.

45.  As part of the Section A ‘Background’, the Joint Tribunal identified the issues (as set by itself in an earlier email) as follows:

7.  By the Tribunal’s email dated 20 January 2020, the key issues for determination are as follows:

7.1.  Whether instructions were given by the Respondent to the Applicant;

7.2.  If so, (a) why is the Respondent not liable for instructions given by the Respondent’s member at the material time and (b) what was the agreement on fees;

7.3.  If instructions were given by the Respondent, whether the fee notes / invoices rendered by the Applicant are payable; and

7.4.  Whether the Respondent should be directed to pay the fee notes / invoices and if so the amount.

46.  Section B ‘Documents considered by the Tribunal’ set out in a little over 1 page a long list of the pleadings, submissions, evidence and correspondence considered. (I have noted that those documents comprised thousands of pages.)

47.  The entirety of the remainder of the Determination – across pages 5 to 8, but covering the space of only 3 full pages – was as follows (bold, underline and italics as in original):

C.  Whether instructions was given by the Respondent to the Applicant

10.  The Respondent’s case boils down to four points, namely:

10.1.  Lee, as salaried partner, had no authority to instruct the Applicant;

10.2.  Lee was instructing in her own capacity;

10.3.  The fees are so high that Lee had no authority to bind the Firm; and

10.4.  An allegation that Lee was in collusion with the Applicant.

11.  “Instructions” means instructions or directions in whatever form (including a brief) given to a practicing barrister to supply legal services whether in a contentious or non-contentious matter: paragraph 2.2(y) of Bar Code.

12.  As a Partner of the Respondent at the material time, Lee had actual and apparent authority to give instructions to a practicing barrister to supply legal services, her instruction, per se, binds the Respondent.

13.  Lee’s status as a salaried Partner, or the amount of the fees, are not of material importance in relation to her capacity to give instructions.

14.  By Lee’s issuance and delivery of the Briefs, the Tribunal is satisfied that instructions were duly given by the Respondent to the Applicant.

D.  Why is the Respondent not liable for instructions given by the Respondent’s member at the material time and agreement on fees

15.  In view of Lee’s position as a Partner of the Respondent, the Tribunal finds that Lee had the proper authority to instruct and agree on fees with the Applicant for the Projects and hold the Respondent liable.

16.  Lee signed in the capacity of “Solicitors for Wilson Logistics Limited” on the Project Garlic Brief and “Solicitors for Wah Mou Machinery (Zaoqing) Co. Ltd” on the Project Seiko Brief.

17.  It is not disputed that the Respondent was retained to act for both Project Garlic and Project Seiko.

18.  The involvement of

18.1.  the Respondent, and

18.2.  the Applicant in assistance of the Respondent in the Projects were acknowledged by the other parties to the Projects: Exhibits WKT-20, WKT-21.

19.  As a Partner of the Respondent at the material time, it was within Lee’s capacity as the solicitor for the said companies in paragraph 16 to instruct the Applicant and make agreement on fees.

20.  After establishing that instructions were duly given by the Respondent, the next issue is to determine whether such amount is payable.

E.  Whether the fee notes rendered by the Applicant are payable

21.  The Applicant claims counsel fees in the amount of HK$450,000 comprising items (2) and (3) for the Project Garlic Brief, and HK$600,000 comprising item (2) for the Project Seiko Brief.

22.  The items are payable that:

22.1.  For Project Garlic:

Item (2) – HK$200,000 on or before 3 June 2018;

Item (3) – HK$250,000 upon submission of Form A1;

22.2  For Project Seiko:

Item (2) – HK$600,000 upon submission of Form 5A or 31 March 2018 which is earlier.

23.  The listing application for Project Garlic was successfully submitted to the Stock Exchange for vetting on or around 10 May 2018.

24.  The listing application for Project Seiko was successfully submitted to the Stock Exchange for vetting on or around February 2019.

25.  As mentioned in paragraph 18.2, the Applicant’s involvement had been acknowledged by other parties to the Projects. There is no apparent complaint from any other parties to the Project.

26.  The Tribunal is satisfied that upon reaching the relevant dates and the occurrence of the above events, the Respondent is obliged to honour the two invoices No. 1668 and No. 1669 rendered by the Applicant to the Respondent.

27.  The Tribunal is of the view that the quantum of fees is a matter between the instructing solicitors and the barrister.

F.  Conclusion

28.  The Tribunal hereby directs:

28.1.  The Respondent to pay to the Applicant forthwith HK$1,050,000 being the outstanding sums which is payable by the Respondent in accordance with the Briefs and instructions;

28.2.  The Respondent’s cross-claim be dismissed.

48.  It seems that the essence of the Joint Tribunal’s ruling was on the grounds that Ms Lee was a partner of the Firm, so had actual and/or apparent authority of the Firm to engage the Barrister, whose involvement in the Projects had been acknowledged by third parties to those Projects, and the quantum of whose fee was simply a matter between the Barrister and those instructing him.

49.  The Solicitor has complied with the Joint Tribunal’s direction to pay the $1,050,000, but under protest and reserving the right to challenge the Determination.

E.  Grounds of Review

50.  The Form 86 identifies the Grounds of review to be as follows. In respect of each of the Instructions Point, the Irrationality Point, the Proper Fee Point and the Collusion Point:

(1)  the Joint Tribunal has failed to make any enquiries or to take it into consideration; and

(2)  the Joint Tribunal has failed to give adequate reasons for rejecting or disregarding it.

51.  The first ground is said to be a breach of what is conventionally referred to as the ‘Tameside duty’, where a decision-maker exercising a statutory power must ask himself the right questions and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.

52.  But, I agree with Mr Wong that the intended reliance upon a ‘Tameside duty’ as such is something of a red herring. Such a duty as it is usually understood would not ordinarily be thought to arise in the kind of adversarial proceedings as occurred before the Joint Tribunal. Therefore, in so far as there was intended to be a suggestion on the part of the Solicitor that some sort of inquisitorial steps should have been taken by the Joint Tribunal, that suggestion is to be rejected.

53.  However, it seems to me that the ground put forward in reality is not a complaint that the Joint Tribunal failed to make relevant enquiries in the Tameside sense. Rather, it is a complaint that there has been procedural impropriety, in that (a) substantial issues which arose on the claim and response, and which were required to be addressed and determined, were not in fact addressed and/or determined, and (b) perhaps as a result, matters which ought to have been taken into account were not properly taken into account.

54.  The second ground is an aspect of procedural impropriety, arising from the suggested failure to give adequate reasons for the Determination. Clause 15 of the terms of reference of the Joint Tribunal provides that it “shall give reasons for its decision which shall be final”. There is no dispute, therefore, that there is a duty to give reasons, and that such reasons must be adequate.

55.  Though I might deal separately with each of the grounds in turn, it seems to me that they are so much linked that it is convenient to deal with them together. In practical terms, it is necessary to look at the reasoning of the Joint Tribunal to see what they did or did not do.

F.  Applicable Legal Principles

56.  It is trite that a tribunal in adversarial proceedings, or exercising a quasi-judicial role, ought properly to identify the issues required to be determined by it, and then ought to address and determine those issues (or perhaps identify why any one of the issues need not be addressed and/or determined). In other words, the tribunal should identify and address the substantial issues before it. I do not think authority is needed for this proposition – and, as already stated, I do not think there needs to be any reference to a Tameside duty.

57.  Whether there were adequate reasons and whether the reasons given contained errors are two separate matters. The judicial review Court does not decide the issues that were before the tribunal. Assessment of evidence is for the tribunal, and the judicial review Court will not interfere unless the decision is Wednesbury unreasonable.

58.  As to what the tribunal should decide, Mr Man referred to the case of Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 at 764G, where Lord Keith stated:

It is for the courts, if the matter is brought before them, to decide what is a relevant consideration. If the decision-maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision-maker to attribute to the relevant considerations such weight as he thinks fit, and the court will not interfere unless he has acted unreasonably in the Wednesbury sense.

59.  That may be so, but in the context of a challenge to an adjudicative decision, there is also the prior point of whether the issue has been dealt with at all. In other words, whilst it is for the Court to decide what was a relevant consideration, it is necessary first to look to see whether the decision maker (a) considered that a matter was not relevant, or (b) failed to consider at all whether it was or was not relevant. In this case, the complaint is that the Joint Tribunal failed to carry out its task properly because there were certain matters which were either obviously relevant or had been identified by the Joint Tribunal as being relevant, but which were not then addressed. The complaint is that the Joint Tribunal has not addressed, or has not properly addressed, the substantial issues before it.

60.  On the other hand, it is a settled principle that there is no duty on a judge – or similar tribunal – when giving reasons in the judgment or decision, to deal with every argument presented by the parties. This is linked to the second principle relating to adequacy of reasons, not least because the judge or tribunal is only required to identify issues the resolution of which is vital to his or its conclusion and explain the manner in which those issues are resolved: see, for example, Song Lian Zhong v Chan Ze Wan [2018] HKCA 685 at §65.

61.  The ‘classic’ statements about the duty to give, and the adequacy of, reasons are to be found in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279 at 290D-291G. The first point made is that a duty to give reasons should not be regarded by the decision-maker as a burden, but he should view the duty positively as it brings various benefits:

First, it would impose desirable intellectual discipline and concentrate attention on the relevant issues. It would thus assist in ensuring that any decision is made on proper grounds and contribute to the effective disposal by the tribunal of its work. Secondly, reasons would assist in demonstrating to the parties that the tribunal has carried out its task properly and would enable them to decide on the appropriate course of action in the case at hand, including whether to appeal or apply for judicial review. It would also provide guidance in the future to the community and persons concerned in this area. Publishers as well as the law enforcement and prosecuting authorities would have a better understanding of the standards as applied by the tribunal and would be in a better position to make their own decisions accordingly. Thirdly, the reasons given by the tribunal will promote and enhance consistency in its decision-making and assist the law enforcement and prosecuting authorities. I would observe that broad consistency in approach is important. Fourthly, the giving of functions would demonstrate to the community that the tribunal is functioning properly and this would engender public confidence.

62.  Though those points were made in the context of the particular tribunal in that case (the Obscene Articles Tribunal), the points are each (to perhaps varying extent) applicable to other tribunals.

63.  As to adequacy of reasons, it was stated:

Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision-maker is operating and the circumstances of the case in question.

64.  The following further specific points were made:

(1)  the reasons given should show that the tribunal has addressed the substantial issues before it and should show why the tribunal has come to its decision;

(2)  there may not be any need to address every single issue, but the reasons should show that the issues that arise for serious consideration have been considered;

(3)  the reasons may not require great elaboration and they may be brief, so that it is only when they are defective in substance that they should be considered inadequate;

(4)  ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly;

(5)  but, the decision should not merely in effect assert conclusions which would not reveal why the tribunal has come to such conclusions.

65.  To these points might be added the following:

(1)  issues of fact are ordinarily determined by findings of fact – unless for some reason (which should be explained) it is considered unnecessary to make any finding;

(2)  findings of fact should sufficiently identify why the particular finding is made, in other words the process of reasoning leading to the conclusion;

(3)  issues of law should generally be determined by identification of the point of law, and any relevant findings of fact, and the process of reasoning leading to the decision on the point.

66.  Reference can also be made to Capital Rich Development Ltd v Town Planning Board [2007] 1 HKLRD 155 at §§97-98, where Stock JA (as he then was) made points including the following:

(1)  sound public administration requires that when reasons are required or are provided for and administrative decision, they should be clear as well is sufficient to the circumstances;

(2)  the provision of adequate and clear reasons promotes transparency and itself encourages a disciplined approach to the issues at hand;

(3)  the requirement is based on fairness, so that the person or body adversely affected by a decision should have an adequate indication of the reasoning process, enabling him to know whether the decision-maker has addressed his grievance and whether there may be a basis for challenging the decision;

(4)  what is sufficient will depend on the legal framework within which the body takes the decision and upon the case at hand;

(5)  sometimes, a brief statement of reasons will suffice, because in context no more needs to be said;

(6)  therefore, even if reasons articulated might be more clearly stated, a common sense approach in context may readily reveal what was obviously intended – and the Court should be loathe to permit scrutiny of reasons as if they constituted a statutory instrument;

(7)  in short, reasoning must be examined with reality and contextual common sense;

(8)  however, where a real issue arises as to whether an allegedly material issue was or was not taken into account, or what was at the end of the day made of that issue by the decision-maker, the Court is entitled to expect the answer to be sufficiently clear from the evidence before it without having to resort to guesswork.

67.  To attempt an even tauter summary, it seems to me that – when looking at the decision itself, and examining it with reality and contextual common sense – adequate reasons are those which are clear and sufficiently demonstrate what issues the decision-maker has addressed and why he has reached his stated conclusions.

G.  The Submissions

68.  It is helpful to set out in broad form the submissions made respectively for the Solicitor and the Barrister, as follows.

G.1  The Submissions for the Solicitor

69.  Mr Man’s submissions on the Instructions Point were as follows. The scope and extent of approval and instructions given by the Solicitor to Ms Lee were obviously relevant to whether she had actual authority to issue the Briefs, and so whether the Firm was liable to pay the Barrister’s fees. But there was no mention of the Instructions Point in the Determination. Rather, the Joint Tribunal found that Ms Lee had actual authority simply by virtue of her status as a salaried partner of the Firm (see Determination §§12, 15 and 19).

70.  As to the Irrationality Point, Mr Man submitted that it was plainly relevant, as it is well-established that a person cannot rely on apparent authority where it is dishonest or irrational to do so, including turning a blind eye or being reckless. But there was no mention of the Irrationality Point in the Determination. Rather, the Joint Tribunal focused only on the appearance of authority because Ms Lee was a salaried partner of the Firm.

71.  As to the Proper Fee Point, Mr Man submitted that the point is relevant since the fees of a barrister are of an honorary character, where no right of action can be maintained. Instead, payment of Counsel’s fees is governed by the Solicitors Guide and the Bar Code, both of which refer to the responsibility to pay “proper fees”, and exempt a solicitor from liability where there is “reasonable excuse” for the non-payment. In this case the excessive or unreasonably high fees were not “proper fees”. But the Determination (§§13 and 27) disregarded the Proper Fee Point without explanation, and ignored the submissions and evidence showing the Barrister’s minimal work on the Projects.

72.  As to the Collusion Point, Mr Man submitted that it is relevant because, if the Barrister acting in concert with Ms Lee to charge grossly excessive counsel fees, Ms Lee would not be acting honestly in pursuit of the Firm’s interest, meaning she could have no actual authority. Nor would she have apparent authority, as the Barrister would have notice of her lack of actual authority. However, despite acknowledging that a key plank of the Solicitor’s case was that Ms Lee was in collusion with the Barrister, the Joint Tribunal concluded that Ms Lee had actual and apparent authority without any consideration of the Collusion Point.

73.  Mr Man also submitted that it is important to recognise that the various other points may be independent of the Collusion Point, though they are also potentially impacted by the Collusion Point.

74.  Looking specifically at the adequacy of reasons, Mr Man submitted that the Joint Tribunal gave no explanation for dismissing or disregarding the Instructions Point, the Irrationality Point and the Collusion Point. Indeed, where there is no analysis whatsoever on the Applicant’s submissions and evidence on those points, there is nothing to show that the Joint Tribunal has considered them. Further, on the Proper Fee Point, the Joint Tribunal’s statement that the quantum of fees is a matter between the instructing solicitors and the Barrister is a statement of conclusion, which does not inform the Applicant as to why the Proper Fee Point was disregarded.

G.2  The Submissions for the Barrister

75.  In his written submissions, Mr Wong summarised the Barrister’s position as follows:

(1)  The Determination, fairly read as a whole and in proper context, gave sufficient reasons that (a) the serious allegations made by the Solicitor were rejected, and that the Joint Tribunal was satisfied that (b) instructions were given by Ms Lee for the Firm and (c) the Barrister did perform work for the Projects, which the lay clients confirmed.

(2)  That is all the Joint Tribunal had to do. Its only role was to ascertain if the fees were due and should be paid, and it was not concerned with adjudicating civil wrongs or making other findings to bind the parties, nor with any disciplining.

(3)  Given how the case for the Solicitor was put, the Joint Tribunal was able to rule in favour of the Barrister upon finding authority (either apparent or actual) and that the work was done.

(4)  From the Determination, the Solicitor should know full well that his argument that the Barrister was a necessary party to a dishonest scheme, and who did little or no work, was not accepted.

76.  Mr Wong did not demur from the general principle that a tribunal should show that it has addressed the substantial issues before it and why it has come to its decision. But, he submitted that the reasons need only show that the issues which arose for serious consideration had been considered. Further, a Joint Tribunal is not concerned with making findings in the abstract, its decisions are not published, and there is no room for appeal from what is intended to be a swift and cost-effective manner for resolving fee disputes. The practical utility of the duty on a Joint Tribunal to give reasons is to inform the immediate parties why they have won or lost and to show that the Joint Tribunal carried out its task properly.

77.  This, Mr Wong submitted, occurred because:

(1)  The “relative yardstick” (as he put it) is to look at matters from the perspective of an informed party well aware of the issues raised and arguments advanced, all the more so when those parties are professional persons trained in the law.

(2)  The “relevant question” is not whether each point has been dealt with at length. Rather, the ultimate question is one of fairness, and where its application turns on competing accounts, what is required is that the losing party should know why he has lost. The explanation can be brief, and not dealing with a submission – such as the allegation of collusion – which is not critical to his decision and is of no merit anyway does not constitute breaching the duty to give reasons.

78.  Mr Wong submitted that despite the splitting of the points by the Solicitor into individual points, they all sprout from the same “contrived factual account” (as he put it), involving a very grave allegation against the Barrister and Ms Lee. Mr Wong submitted – in what seems to me to be in essence a merits submission – that as there was no evidence to put before the Joint Tribunal, other than hearsay and double hearsay, and because the Solicitor was content to have the matter determined on paper, the allegations of collusion were not required to be addressed by the Joint Tribunal, which focused its mind on the key issues identified by it.

79.  Mr Wong submitted that, reading the Determination fairly, the Joint Tribunal must be understood to have rejected the allegation of collusion as unfounded, and thus not removing the apparent or actual authority of Ms Lee as salaried partner. The collusion allegation having been rejected, the Barrister succeeded on either actual or apparent authority, and it does not matter which. What remains is the appropriate quantum of lump-sum fees for settling and reviewing the prospectus in each Project, and whether that quantum was too high or too low must be a matter between the instructing solicitor and instructed barrister as generally understood.

80.  Mr Wong submitted that the real question was whether the Barrister had been instructed to perform work for a fee, and whether that work was performed. If the Barrister performed what was required of him, then collusion was irrelevant.

H.  Whether There was a Public Law Error

81.  In my view, the issues raised for determination by the Joint Tribunal were interlocking. Whilst some issues were capable of being addressed – and would conveniently have been addressed – to an extent separately, it was throughout necessary to keep in mind the potential impact of one point on any other.

82.  As Mr Wong himself accepted in his written submissions – obviously correctly – it is elementary that if there was collusion (in the fraudulent sense necessarily implied by the Solicitor’s case), there was no actual authority nor could the colluder rely on apparent authority. Indeed, as he also further accepted, the consequence that there cannot be actual or apparent authority if collusion is established is not something that must be spelt out.

83.  It also seems to me to be obvious that the presence or absence of the alleged collusion is directly relevant to the “properness” of the fees. I do not think that the issue relating to “proper fees” was limited only to consideration of the quantum by reference to the work to be performed, or whether any or what work was in fact performed.

84.  Nor was the consideration as to “proper fees” limited to whether there was an agreed sum, when the allegation being made was that the whole agreement – including the agreement as to the size of the fee – was tainted by the collusion. I accept that it might have been a relevant consideration, in assessing the allegation of collusion, to look at whether the fee seemed grossly excessive for the work that was done, or was supposed to have been done. But that relevant consideration was not dealt with by pointing simply to the fact of an agreement, and that it was open to a solicitor and a barrister to agree fees between them.

85.  Fundamentally, despite mentioning the allegation of collusion as being one of the four points to which the Solicitor’s case boiled down, there was no further mention of the point at all.

86.  I would respectfully suggest that perhaps part of where the Joint Tribunal went wrong was in its identification of the issues in §7 of the Determination. As already identified, the first three issues were:

(1)  7.1: Whether instructions were given by the Respondent to the Applicant;

(2)  7.2: If so, (a) why is the Respondent not liable for instructions given by the Respondent’s member at the material time and (b) what was the agreement on fees; and

(3)  7.3: If instructions were given by the Respondent, whether the fee notes / invoices rendered by the Applicant are payable.

87.  But those issues are rather ‘high level’, and framing the issues as was done in §7 did little more than identify the outline contours of the dispute. In reality, those three broad issues embrace a whole series of issues or sub-issues at a lower level which are not adequately identified. Potentially tangled amongst and across those three issues are matters relating to (a) the identity of the person who, or body which, in fact gave the instructions; (b) the actual authority of that person to give the instructions, (c) the extent of the actual authority, and whether it was limited in any way; (d) the apparent authority of that person to give the instructions; (e) whether the authority – either actual or apparent – was vitiated in some way, including potentially as a result of the alleged collusion; (e) whether the agreement on the amount of fees was itself vitiated in some way; and (f) whether the fees were for some other reason not “proper fees”.

88.  Even if it were thought by the Joint Tribunal that some of the sub-issues were not relevant, that was not identified.

89.  Further, the fourth defined issue – 7.4: Whether the Respondent should be directed to pay the fee notes / invoices and if so the amount – does not really seem to me to be an issue at all. Rather, it is more the identification of the conclusion from the previous issues (as the Joint Tribunal’s own section heading ‘Conclusion’ itself identifies).

90.  There is also the mismatch between – or a failure to reconcile – the issues identified in §7 of the Determination and those apparently identified by reference to the planks of argument in §10. This may help to explain why one key allegation, which had been briefly identified and which was capable of significantly impacting the other questions to be determined, was apparently simply not addressed.

91.  In so far as Mr Wong submitted that there was simply no evidence of the Collusion Point, so that (he said) the Joint Tribunal gave it “short shrift”, Mr Man submitted in response that the Collusion Point was in fact well supported by evidence. But, as Mr Man also submitted, the real point for present purposes is not whether the Collusion Point is meritorious or could have been rejected by the Joint Tribunal, but whether the Joint Tribunal failed to consider the argument at all.

92.  In my view, it is impossible to tell from the Determination whether the Joint Tribunal (a) thought the Collusion Point to be irrelevant, and, if so, why it was thought to be irrelevant, or for some other reason need not be addressed, (b) thought the Collusion Point might be relevant but was utterly without merit, and if so why it was potentially relevant but without merit, or (c) simply failed or forgot to address the question of collusion, despite having identified the Solicitor’s case as in part resting on it. I regret that I think that is so, even when examining the Determination with reality and common sense and in its full and proper context.

93.  I have noted above that the Barrister’s submissions to the Joint Tribunal argued that the collusion allegation was liable to be struck out. But there is no indication that it was struck out, or was thought to be demurrable, and in fact the allegation was expressly identified as one of the planks on which the Solicitor relied (as though it would be considered and determined on its merits).

94.  Further, I do not think it correct that the Determination identifies that the Collusion Point was given short shrift. Indeed, Mr Wong’s argument is something of a ‘bootstraps’ point. He said the allegation of collusion must have been rejected because the Joint Tribunal accepted that Ms Lee had either actual or apparent authority. But, it is equally possible that the finding as to actual or apparent authority was made because the allegation of collusion was overlooked or ignored – whether for an acceptable or unacceptable reason (neither of which was identified). Nor do I think it right to say that the Joint Tribunal must have dealt with the Collusion Point, because it found work was done by the Barrister on the Projects, or that there was no complaint about his involvement.

95.  Mr Wong sought to make great play of the fact that the Collusion Point rested on a very serious allegation of professional misconduct against a barrister and a solicitor. But that seems to me to identify precisely another reason why it was not open to the Joint Tribunal in effect to have ignored the point (despite briefly identifying it) in the Determination. Lawyers know that serious allegations amounting to dishonesty should not be made unless it is believed there is proper evidence upon which a finding of dishonesty might be made (and the Joint Tribunal of course also knew that the Solicitor had alleged dishonesty against Ms Lee in a High Court action). That such a serious allegation was made by the Solicitor seems to me to be one of the reasons why it should have been recognised as such and addressed accordingly – even if were to be rejected as irrelevant or without merit. Further, the issue of collusion was apparently a significant point in the Solicitor’s case, and directly relevant to the other issues of authority and properness of fees. This is why it was an allegation that required being addressed in some way.

96.  I acknowledge that the Collusion Point in particular raised the kind of allegation which a tribunal might prefer not to have to decide if not necessary to do so. But, at least in the circumstances of this case, if it was truly thought not necessary to do so, that needed to be stated and at least brief reasons why should have been given.

97.  I acknowledge that serious allegations of the sort made in the Collusion Point would ordinarily not be determined absent oral evidence. But, I do not think that the fact that the Solicitor was apparently content for the issues in the dispute to be determined without oral evidence changes the analysis. As is common ground, the process was supposed to have been relatively swift and efficient. More importantly, there is certainly no indication in the Determination or the surrounding context that the Joint Tribunal was going to proceed on the basis that, because no one had asked for an oral hearing, it could and would simply avoid addressing the allegations of collusion. In any event, having identified it, it was for the Joint Tribunal to address this substantial issue, and if it felt it was unable to do so without an oral hearing, it could and should have said so.

98.  I am therefore satisfied that the Joint Tribunal was in breach of its public law duties, in that it failed to address all of the issues which fell for serious consideration and/or failed to provide adequate reasons for its decision.

I.  Discretionary Relief

99.  It is trite that, even if grounds for judicial review are made out, it remains within the discretion of the Court to decide whether to grant any relief, and if so what relief. In the exercise of that discretion, the effect on third parties (namely, other than the decision-maker) may be a relevant consideration.

100.  I also accept that it is probably unhelpful to suggest that it would be “rare” for the discretion to be exercised against granting relief on an argument that “the result would have been the same”. It may not happen frequently, but each case turns on its own circumstances. If it is appropriate in any particular case for the discretion to be exercised against granting relief, it does not matter whether that is regarded as rare or otherwise.

101.  In this case, Mr Wong submitted that it would be inappropriate to grant the relief sought by the Solicitor – involving the entire Joint Tribunal proceedings to be reconvened – because:

(1)  Regardless of how the Joint Tribunal reasoned, and whether the reasoning in the Determination was defective, it is clear on the evidence and materials actually put forward to the Joint Tribunal that the evidence was far from cogent enough to support the allegations made by the Solicitor. This is so, notwithstanding that the Solicitor was given full opportunity to make his case and chose not to produce further evidence. Therefore, there is no real possibility that the result would have been different on the materials, even had the Joint Tribunal given for the reasons. In short there is no practical utility in the grant of the relief sought.

(2)  Justice to the Barrister is also a weighty factor where:

(a)  numerous issues raised by the Solicitor and substantial costs were incurred by the Barrister;

(b)  the Barrister would have to face again the making of baseless, but grave, allegations;

(c)  no costs are recoverable for proceedings before the Joint Tribunal, so that the practical consequence of reconvening the proceedings would be for the Barrister to have to incur irrecoverable costs, twice, for a sum of HK$1.05 million;

(d)  reconvening also means that the Solicitor has a second bite of the cherry where, practically speaking, the Court could unlikely limit the newly constituted Joint Tribunal to consider only those materials filed before the previous Joint Tribunal.

102.  Insofar as those submissions require me to form a firm view on the merits of the dispute ventilated before the Joint Tribunal, I do not think it is appropriate. As already indicated and is well-settled, the judicial review court is ordinarily not concerned with the merits of the decision, and is instead focused on the decision-making process. Further, this case is not like some other cases where the original decision maker might explain to the Court that even if, for example, it were to take into account matters which it is had been held was a procedural impropriety not to have taken into account, that would not have changed and would not in future change the decision made. In this case, the Joint Tribunal has remained appropriately neutral.

103.  Of course, I accept it is deeply unattractive for the Barrister to have to go through – and perhaps to pay for representation at – reconvened proceedings before a differently constituted Joint Tribunal, if the Determination is quashed. But it seems to me that the unattractiveness is almost equal for the Solicitor (except the possibility of achieving a different result). The recoverability of legal costs, or the costs of lost working or management time, is also something which is applicable to both the Barrister and the Solicitor – and it might be thought a matter not unusual in any litigation where the parties may face a costs-benefit analysis (which may point to a resolution or compromise, not requiring full adjudication on the merits).

104.  Nevertheless, it seems to me in the overall exercise of my discretion, that where I have found the public law wrong in the particular circumstances of this case, it is appropriate to grant relief. There is a fee dispute between the Solicitor and the Barrister. It has not been properly resolved. It is not appropriate for the Court to seek now to resolve it. The matter must go back for the consideration by the relevant tribunal, mandate relief identified for resolution of such disputes (unless, of course, the matter is dealt with beforehand by way of compromise).

105.  The relief granted is the quashing of the Determination, and the direction to the two Councils that they should convene a new Joint Tribunal (with different members) to consider the dispute afresh. I so order.

J.  Costs

106.  I reserve the question of the costs of these proceedings to further submissions. I do so for three reasons:

(1)  I have not heard argument on costs;

(2)  the parties may wish to consider this Judgment before making submissions on costs;

(3)  the incidence and quantum of the costs in these proceedings may be a relevant factor in any broader discussions between the Solicitor and the Barrister as to how to resolve the dispute between them.

107.  In those circumstances, I direct the parties to notify me by 2 September 2022 (or such reasonable later date as they might jointly request) whether they wish for me to make a costs order upon their respective submissions. If so, I will give further directions for submissions, so as to address the question of costs on paper.