RE SIMON GOLDBLATT, Q.C.

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JUDGMENT

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1. These applications, under section 27(2) of the Legal Practitioners Ordinance (Cap. 159), were for the admission of two overseas counsel to the Hong Kong Bar for the purposes of the trial of High Court Commercial List Action No. 65 of 1984 ("HCCL 65/84").

2. Both were supported by counsel appearing for the Hong Kong Law Society and opposed by counsel representing the Hong Kong Bar Association ("the Bar"). Counsel representing the Attorney General adopted a neutral Attitude to the applications, but drew my attention to Re Coles ⁽¹⁾, Re Gray ⁽²⁾ and Re Tyrre11⁽³⁾ which dealt with various matters which should be considered in applications of this kind.

History of Application

3. Dates for the trial of HCCL 65/84 were fixed by the Commercial Judge on 15th February, 1985. The dates allotted were 10th June to 1st July this year.

4. 12th April. Messrs. Denton Hall and Burgin, solicitors for the defendant ("the solicitors") having previously ascertained that Mr. Goldblatt would be available for the trial and briefed him to so appear, wrote to the Bar, seeking its consent to an application for the admission of Mr. Goldblatt for the purposes of HCCL 65/84.

5. 22nd April. The Bar asked for more details of the action, which were supplied on 24th April.

6. 29th April. The Bar asked for copies of pleadings, which were furnished on 30th April.

7. 4th May. The Bar wrote to the solicitors, informing them that they would not consent to the application.

8. 9th May. The solicitors wrote to the Bar informing them that they had enquired as to the availability of a number of local leaders for the trial and had found that none of them was available.

9. 10th May. The Chairman of the Bar spoke to the solicitors, informing them that the Bar would give its consent on the basis that, at such a late stage, no local counsel was available, provided that the solicitors made it clear that they did not contend that the action was one of unusual difficulty or complexity or that no local counsel was capable of dealing with it.

10. On the same day, the solicitors summarized their understanding of this conversation in a letter to the Bar and the Bar replied to the same effect.

11. So far as the application for the admission of Mr. Uff is concerned, it appears from the affidavit of Mr. Eddis that Mr. Uff had advised the plaintiffs on the matter in dispute as early as October 1984. However, no attempt was made to secure the consent of the Bar until the notice of motion for the admission of Mr. Uff was sent to the court and the Bar on 8th May, 1985.

12. Counsel for both applicants accepted that a burden lies on an applicant for admission under section 27(2) of the Legal Practitioners Ordinance to establish that he court should admit him, in the exercise of its discretion to do so.

13. The affidavit of the solicitors sought to justify Mr. Goldblatt's admission on the basis of the judgment of the Chief Justice in Re Coles⁽¹⁾ in which he sets out, in paragraph (6), some of the considerations which might induce the court to exercise its discretion to admit an overseas counsel under section 27(2).

14. The solicitors, in their affidavit, argued that the Goldblatt application fell within paragraphs 6(a) (b) (c) and (e) of that judgment.

15. Before considering these paragraphs in turn, it should be noted that they are not intended to be exclusive, but merely illustrative, of the sort of grounds which may secure an admission of overseas counsel. They are intended to be of some assistance to those who have to advise clients on the choice of counsel. They must not be construed as if they were the words of a statute.

6(c).    Did the case require specialist knowledge of a kind not available at the local Bar?

16. Counsel for the Bar argued that this was not so and that building and civil engineering disputes have been dealt with frequently and for a long time by local counsel alone.

17. I do not myself regard this kind of dispute as so esoteric that there are no local leaders who can conduct it satisfactorily, even if the number of those who can do so is not large.

6(b).    Is the case one of unusual difficulty or complexity?

18. It is, of course, very difficult for a court to reach a judgment of this kind on the basis of the pleadings (and perhaps of some of the documents) though in some cases it may be obliged to do this.

19. So far as this application is concerned, I have seen the pleadings, the particulars and some of the supporting documents. It is clear that it is a heavy case, for which 15 trial days have been allotted.

20. In addition to this material, I have read the affidavits of the solicitors, who assert that the case is unusually difficult and complex, and of one of the counsel retained for the plaintiff, who is of similar opinion.

21. Counsel for the Law Society, referring to Coles,⁽¹⁾ commented that it contained no reference to the importance of the view taken of a case by the instructing solicitor who, he argued, was better placed than anyone else to assess the complexity of a case, the need for a leader and the abilities of local counsel.

22. For future reference, 1et me say that the views of the instructing solicitor as to the kind of representation needed, and as to its availability from local sources, must be given considerable weight.

23. I would, if this had been necessary, have been prepared to find that this is a case of unusual complexity. Such a finding is a subjective one, about which different views are bound to be held. My own superficial opinion is reinforced by those of solicitor and counsel already heavily involved on the matter, for both plaintiff and defendant.

6(a).    Is local counsel of appropriate skill and experience available?

24. It was suggested during argument that junior counsel of appropriate skill would satisfy this test. With this I disagree. In my view, it must be for the solicitor and his client to judge whether a leader is appropriate. It is not for the court to refuse an application for the admission of an overseas Queen's Counsel on the ground that the case does not merit a leader at all.

25. The solicitors made no attempt to search for local counsel until very late, since they took the view that there were none of suitable experience in what they considered to be a specialized field.

26. However, on 9th May, at the suggestion of the Bar, they made enquires of seven local Queen's Counsel on the basis that, if they were obliged to retain local counsel, they would have selected one of them. None of those was available.

27. The affidavit of Mr. Ho, dated 12th May, states that "a number of local counsel, including silks were available, without identifying them, to conduct the trial on the scheduled dates at the fees agreed with Mr. Goldblatt.

28. I do not consider that it is incumbent on an instructing solicitor to enquire of every local Queen's Counsel if he is available for a case. The most he can reasonably be expected to do is to approach those whom he thinks to be competent to undertake it. It is not to be taken as a general criticism of local counsel if, in some classes of case the list of those acceptable to instructing solicitors is short. No sensible counsel pretends to be able to operate equally well in all fields.

29. In this instance, the solicitor made enquiries of seven local counsel, none of whom was available. The Bar, in view of the terms of the letter of 10th May, was prepared to give consent on the basis that no suitable local counsel was available, so long as the solicitor withdrew his allegation that no local counsel was competent to undertake that kind of work.

30. I can well understand the feeling of the Bar that such an allegation should not be allowed to stand. I hope that I have shown that I do not regard it as justified.

31. I am prepared to regard the non-availability of the seven Queen's Counsel approached by the solicitors, and the acknowledgment in the Bar's letter of 10th May that it would be prepared to concede that none were available at that date, as sufficient grounds for finding that no suitable local Queen's Counsel is available for this action on the dates fixed for trial.

6(e).    Fees.

32. It was suggested by the solicitors in their affidavit that the fees payable to a local silk would be 50% more than those agreed with Mr. Goldblatt; and that there would be a substantial difference in the overall cost to the client even when the expenses of the air fares and accommodation of overseas counsel were added to his fees.

33. While there was no evidence to challenge those figures, it should not be thought that the difference in the expense to the client is necessarily indicative of overcharging by local counsel, since there are many factors, outside the difficulties of a case, which affect the fees which may properly be chargeable

34. So far as the client is concerned, however, it is sometimes the size of the bill which is critical, even more than whether it is justified.

35. I did not have to reach any view as to paragraph 6(e), in view of my finding that the application should be granted on other grounds.

Time of application

36. These applications illustrate the desirability of solicitors making early application for admission of London counsel.

37. Most of them are admitted for the purposes of substantial civil trials, the hearing dates of which are usually allotted 3-6 months in advance.

38. It is suggested, though I do not seek to make this a requirement, that a solicitor who wishes to retain overseas counsel should approach the Bar for consent not later than a month after the trial date is fixed, so that, if there is opposition, the matter can be ventilated in sufficient time for an alternative counsel to be briefed.

39. In those cases, such as interlocutory matters, appeals and criminal trials, where notice of hearing is likely to be less than three months, instructing solicitors should try to apply to the Bar as soon as they decide to seek the admission of overseas counsel.

The future

40. Lest it should be thought that the Bar has become more active than in the past to opposing such applications, it is worth mentioning that of 80 applications since September 1984, the Bar has refused to give its consent in only five. The other three opposed applications were not pursued further by the applicants.

41. The main concern in these matters is the public interest. This involves the awkward task of giving weight to a number of factors, sometimes conflicting, such as the encouragement of a strong local Bar, the desirability of continuing to import specialized skills, the financial and legal interests of the client and the views of solicitors.

42. The courts of Hong Kong should not be swamped with overseas counsel; but they should be admitted in proper cases The continuance of this practice in the future, may well, be a factor of significance, in retaining public confidence, here and overseas, in the continuing efficiency and independence of our judicial system. 

Conclusion

43. The majority of this judgment has dealt with the application of Mr. Goldblatt, though there have been references to the affidavit sworn by local counsel in support of Mr. Uff's application.

44. The same considerations in the main, govern his application, though the solicitors seeking to retain him were less vigilant than those briefing Mr. Goldblatt, since they left their approach to the Bar until much later.

45. I should make it clear that, as Sir Alan Huggins indicated in Re A.R. Tyrre11, Q.C. ⁽³⁾ each application must be considered on its own merits and that the lateness of the application should not normally be allowed to weigh in its favour.

46. For the above reasons, both applications for admission under section 27(2) were granted in the terms sought.

(1)    M.P. 2762 of 1984

(2)    M.P. 139 of 1981

(3)    M.P. 2516 of 1984

(4)    [1984] H.K.L.R. 370