DOUGLAS STEPHEN CLARK v. THE BAR COUNCIL AND ANOTHER

CACV 273/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 273 OF 2010

(ON APPEAL FROM A DECISION OF THE BAR COUNCIL
REGARDING AN APPLICATION FOR CERTIFICATE OF
ELIGIBILITY FOR PUPILLAGE)

(IN THE MATTER OF an Appeal pursuant to Section 18(2) of
the Barristers (Qualification for Admission and Pupillage Rules),
Chapter 159AC, Laws of Hong Kong)

_____________

______________________

REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.  This was an appeal from the decision of the Bar Council of 24 November 2010 refusing to issue the appellant (Mr Clark”) a certificate of eligibility for pupillage.  At the conclusion of that hearing, the appeal was dismissed with written reasons to be handed down.

2.  The court also heard oral argument on costs and gave directions for further written submissions.  The written reasons appear below together with this court’s judgment on costs.

The statutory framework

3.  Section 72AA(g) of the Legal Practitioners Ordinance, Cap. 159 conferred on the Bar Council, subject to the prior approval of the Chief Justice, power to make rules “regulating the serving of pupillage”.  The Barristers (Qualification for Admission and Pupillage) Rules, Cap. 159AC comprising 19 sections (“the principal provisions”) and 2 Schedules (collectively “the Rules”) were made pursuant to that power.

4.  Section 11 of the Rules provides:

“ 11. Application for pupillage in Hong Kong

(1) A person seeking to become a pupil in Hong Kong shall apply to the Bar Council for a certificate of eligibility for pupillage in accordance with subsection (2) not less than 3 weeks before he proposes to commence pupillage.

(2) An application under subsection (1) shall be made in accordance with Form 5 in Schedule 2.”

Form 5 of Schedule 2 contains the declarations and undertakings to be given. They include the following:

“1. I am a fit and proper person to be a barrister. In particular–

…

(3) I am not currently engaged, and during my pupillage undertake not to engage, in any occupation which is incompatible with pupillage.

…

3. I am not currently in practice as a solicitor either on my own account or as a partner or salaried employee in a firm of solicitors practising in Hong Kong.

…”

5.  Under section 12, the Bar Council “shall approve the application for pupillage” and issue a certificate in accordance with Form 6 if satisfied that the applicant is not ineligible by virtue of section 14.

6.  Section 14 which deals with ineligibility reads:

“14. Ineligibility for pupillage

(1) A person shall not be eligible to become a pupil for the purposes of these Rules if he–

…

(c) is engaged in any occupation which, in the opinion of the Bar Council, is incompatible with pupillage; …”

7.  Form 6 prescribes the form of the certificate to be issued upon approval of the application:

“THIS IS TO CERTIFY THAT [full name in English and, if applicable, Chinese] of [current residential address]–

1. on the ……. day of ……. 20 …. applied under section 11(2) of the Barristers (Qualification for Admission and Pupillage) Rules (Cap. 159 sub. leg. AC) (“Rules”) for the issue of a certificate of eligibility for pupillage;

2. has satisfied the Council of the Hong Kong Bar Association that he–

…

(3) is not ineligible for pupillage by virtue of section 14 of the Rules; and

…

3. is eligible for pupillage.”

The background facts

8.  On 11 October 2010, Mr Clark submitted an application dated 7 October 2010 to the Bar Council for a certificate of eligibility for pupillage (“a section 12 certificate”), with a view to commencing pupillage on 1 January 2011.  On the date of his application, Mr Clark was a practising solicitor, a status he retained until 31 December 2010.  He was thus unable to submit a Form 5 in the prescribed form.  What he submitted was a modified Form 5.  In pertinent part, it read:

“ 1. I am a fit and proper person to be a barrister. In particular-

…

(c) I am not currently engaged, and during my pupillage undertake not to engage, in any occupation which is incompatible with pupillage.

…

3. I am currently a partner in a firm of solicitors practising in Hong Kong (namely Messrs Hogan Lovells). I will cease to be a partner in Messrs Hogan Lovells on or before 31 December 2010. I undertake that during my period of pupillage I will not be a partner or employee of a firm of solicitors practicing in Hong Kong.

…”

9.  On 15 October 2010, the Bar Council’s Special Committee on Pupillage and Limited Practice refused his application for a section 12 certificate.  It took the view that the Form 5 submitted was not in the prescribed form.  It invited Mr Clark to consider submitting another Form 5 when he was in a position to make the necessary declarations.

10.  Mr Clark was dissatisfied with that decision and requested a review by the Bar Council pursuant to section 18(1) of the Rules.

11.  On 24 November 2010, the Bar Council affirmed the decision of the Special Committee, stating that being in current practice as a solicitor either on his own account or as a partner or salaried employee in a firm of solicitors practising in Hong Kong is incompatible with pupillage.  It considered the declaration at paragraph 3 of Form 5 an important one and the applicant’s inability to make such a declaration an important and substantive variation from the statutory form which was unacceptable.  It further noted that the wording of Form 6 did not permit the scenario of an applicant only becoming eligible on a date in the future.

12.  After filing a notice of motion/appeal on 10 December 2010, on 6 January 2011, Mr Clark made a new application for a certificate of eligibility for pupillage for four months, commencing 27 January 2011. (He had been granted a reduction in his pupillage of 8 months by the Chief Judge).  He was informed that his pupillage would commence on 28 January 2011, that being 3 clear weeks after the date of submission of his application as mandated by section 11(1).

13.  Mr Clark’s application was approved on 24 January 2011.  He was notified of the approval letter on 26 January 2011.  The certificate issued was dated 28 January 2011, the date of commencement of his pupillage.

14.  The relief Mr Clark sought on this appeal was a retrospective order that he be issued a section 12 certificate with effect from 1 January 2011 and that the commencement of his pupillage from 10 January 2011 to 9 May 2011 be approved.  He also sought a declaration that solicitors in private practice who provide an undertaking to cease practice before commencement of pupillage are eligible to be issued with a certificate.

15.  In practical terms, if Mr Clark were successful on this appeal, the completion of his pupillage of 4 months would be brought forward by 18 days, from 27 May 2011 to 9 May 2011.

This appeal

16.  Mr Clark’s position is that on a proper interpretation of section 12(1)(a)(iii) and section 14(c), a practising solicitor is eligible to apply for a section 12 certificate to become a pupil and that statutory forms only provide a form of wording that can be amended as necessary.  It was said that the Bar Council’s interpretation that a practising solicitor is not eligible to apply for a certificate to become a pupil places unjustifiable barriers to commencing pupillage, breaches fundamental common law rights, namely, the right to work, the right to choice of occupation, the right to choice of lawyers and is unfairly discriminatory.

17.  It is important to bear in mind the nature of the present proceedings since a number of Mr Clark’s submissions which are pertinent in the context of a judicial review may convey the impression that these are judicial review proceedings which are governed by a entirely different procedural regime involving remedies not available under section 18(2).  This appeal was brought under section 18(2) of the Rules.  That section defines and limits the court’s jurisdiction: it may only “confirm, vary or quash the decision or remit it to the Bar Council for reconsideration”.  Considerations relevant to judicial review proceedings are not engaged on this appeal.

18.  I agree with Mr Dykes SC who appeared for the Bar Council that the sole issue that arises is whether the Rules are intra vires the Ordinance.

19.  The Forms set out in Schedule 2 are intended to give effect to the principal provisions and, unless they contradict or are inconsistent with them, they constitute part of the subsidiary legislation which must be read as a whole.  Form 5 clearly contemplates that a person applying for a section 12 certificate is required to demonstrate his eligibility to become a pupil at the date of his application to the satisfaction of the Bar Council and to undertake not to engage in any occupation which is incompatible with pupillage during his pupillage.  The question that arises is whether the inclusion of such a requirement is consistent with the principal provisions and within the powers conferred by section 72AA(g).

20.  Section 11 is framed in mandatory terms.  It contemplates a verification process for an application for a section 12 certificate and provides for the application to be made not less than three weeks before the applicant proposes to commence pupillage.  The tenor of section 11(1) is that the application would be processed during the 3-week period.  Mr Clark’s application was processed within the time-frame of three weeks and may be taken to be indicative of the norm.

21.  Eligibility is a question of status.  The Bar Council considers that being a practising solicitor is incompatible with pupillage.  As I understand it, Mr Clark does not take issue with that view.

22.  There is nothing exceptional or out of the ordinary to require that an applicant has the requisite status at the time the application is made.  The Bar Council (being the body charged with carrying out the verification process) acts on the contents of the formal application when considering and deciding whether or not it is satisfied that the applicant does possess the stipulated attributes.  In relation to the applicant’s attributes, it is to be noted that both sections 12 and 14 employ the present, and not the future, tense.  That is a matter of considerable significance.  In Mr Dykes’ words the “temporal grain” of those sections is “explicit”.  I find nothing in Form 5 that is at odds with the principal provisions.

23.  The next question to consider is whether the modification made to Form 5 by Mr Clark is permissible.  In Davis v Burton (1883) 11 QBD 537 at 540, a case under the Bills of Sale Acts, Brett MR applied the following test:

“Nothing substantial must be subtracted from it, and nothing actually inconsistent must be added to it.”

In the later case of Roberts v Roberts (1884) 13 QBD 794 at 803, Brett MR commented:

“I think still that what I said in Davis v Burton is correct. There must be a substantial compliance with the form contained in the schedule; if what is added, will make the meaning of the bill of sale different from the form contained in the schedule, it will make the document void …”

In my view, the test adumbrated by Brett MR is the correct test to be applied in the present case.

24.  A more recent formulation of that test is to be found in the judgment of Lord Neuberger in the decision of the English Court of Appeal in Chiltern Railway Company Ltd v Patel [2008] Bus LR 1295 at §13:

“ 13. … However, the requirement of paragraph 3 is … that it must be “in the form, or substantially in the form, set out in paragraph 7” (emphasis added). Accordingly, the first issue is whether the statutory declaration in paragraph 8, as used in this case, is substantially in the form of the declaration in paragraph 7. The answer to that question must, in my view, ultimately turn on whether the paragraph 8 form performs all the essential functions of the paragraph 7 form. After all, the purpose of the declaration under paragraph 7, like that of a contractual or statutory notice, is to convey information. In this case, the declarant must confirm certain facts and show that he or she has received and understands certain facts and their legal consequences. One must therefore look at the form prescribed by paragraph 7, in its statutory and commercial context, and see whether the departures, either individually or taken together, from that form, in the statutory declaration used in this case, result in any of the essential purposes of the prescribed form being thwarted or even significantly blunted. To say that this test is one of substance rather than form may well be correct, but that should not mask the point that the style, even the layout, in the prescribed form may at least in some respects be of the essence.”

Lord Neuberger considered (at §14) that the test he suggested had the endorsement of Davis v Burton. See also Bennion on Statutory Interpretation, Fifth Edition, at p. 1123.

25.  Applying that test, it is clear that the modified Form 5 submitted by Mr Clark departs substantially from the prescribed form.  It has the effect of dispensing with an essential and clear requirement, namely, that the applicant must demonstrate that he is eligible for pupillage at the date of application.  While paragraph 3 of the modified form has been re-cast to suit his own circumstances, the statement made by Mr Clark in paragraph 1(3) cannot be correct since it is accepted that being a practising solicitor is incompatible with pupillage.  While being a solicitor is not incompatible with pupillage, being a practising solicitor is.  That distinction is crucial.

26.  Practising solicitors who wish to change their profession and become barristers may consider the Rules as they stand to be inconvenient, inasmuch as the transition cannot be entirely seamless but requires a short hiatus between giving up practice as a solicitor and embarking on the road to the new chosen profession.  That, however, is a matter of choice and may be regarded as a price that has to be paid for that choice.

27.  I should add that as this was a section 18(2) appeal, given its terms, this court does not have jurisdiction to grant declarations even if Mr Clark had been successful.  This court is debarred from granting declaratory relief where the primary decision maker (i.e. the Bar Council) whose decision is the subject of the appeal could not grant declaratory relief.  See Zamir & Woolf, The Declaratory Judgment, 3^rd edition, at 3.024.  It is clear that the Bar Council as an administrative body does not have the power to make declarations of law.  It follows that this court’s powers are subject to the same limitations.

28.  It should be mentioned that the jurisdictional difficulties involved in the declaratory relief sought by Mr Clark had been made clear to him by letter of 18 March 2011 from the Bar Council’s solicitors.  Had the jurisdictional limits of section 18(5) been properly appreciated, it would have been obvious that declaratory relief which may have been appropriate in judicial review proceedings had no place in this appeal.

Costs

29.  Mr Clark submitted that there should be no order as to costs because (1) the Bar Council’s custom is not to seek costs in admission cases; (2) the appeal was brought in the public interest; and (3) his appeal was meritorious.

The Bar Council’s custom

30.  Mr Clark did not wish to adduce any evidence in support of his understanding that the Bar Council has a custom not to seek costs in cases in relation to the admission of barristers.  Rather, he chose to leave it to the Bar Council to advise what their custom is.

31.  The Bar Council appears to have a custom of not seeking costs when successfully resisting an application of overseas counsel under section 27 of the Ordinance.  Mr Dykes invited attention to the only 2 decided cases on this subject: Re Robert Michael Englehart QC, unreported, MP 2758/95, 22 April 1996 and Re Robin Potts QC, unreported, HCMP 5074/2001, 19 December 2001.

32.  Both decisions turned on the proper interpretation of Rule 9(2) of the Admission and Registration Rules, Cap. 159A which is identical in wording to section 3 of the Barrister (Admission) Rules, Cap. 159AA which provides:

“The Court, … upon being satisfied that the applicant is eligible … may order the applicant be admitted … or, if … not so satisfied, may dismiss the application upon such terms as regards costs …”

33.  It was held in both cases that the court may only award costs in favour of the Bar Council if the application is dismissed but not against it.  Leong CJHC observed in Re Robin Potts QC (at §15) that

“… the nature of admission proceedings is unique and distinguishable from ordinary civil proceedings which are adversarial in nature.”

34.  This appeal is an appeal from an administrative decision of the Bar.  As such, it is different in nature and distinguishable from admission proceedings.  The two cases concerning admission proceedings do not assist Mr Clark.  His understanding of the Bar Council’s custom appears to be derived from hearsay.  Since Mr Clark has failed to demonstrate a sound footing for his understanding, his submission based on the Bar Council’s custom falls to be rejected.

Public interest and merits

35.  Mr Clark maintained that these proceedings have been brought in the public interest and that he had no private gain in the outcome.  As a statement of fact, it would not appear to be accurate.  I have considerable difficulty in accepting that Mr Clark had no personal interest in the outcome, not least because had he been successful, he would be in a position to accept instructions as a barrister 18 days earlier than otherwise and, consequently, be in a position of being gainfully employed during that period.

36.  It is necessary to highlight other difficulties such as what would be sufficient to constitute “the public” given that the class of persons who will benefit from the interpretation of the Rules is a very limited class.  At the very least, it is unclear whether this very limited class is nevertheless sufficiently broad or representative to make the case one which is of benefit to the community as a whole.  Suffice it to note that there was no one else interested in the outcome, other than the speculation that, in the future, solicitors in practice may gain an advantage from a favourable ruling.

37.  Even if (contrary to my view), it is assumed for present purposes that this appeal was brought in the public interest, the general rule that costs follow the event is not displaced unless the challenge is sufficiently meritorious, i.e. that Mr Clark’s case had a real prospect of success.  In Chan Noi Heung(Discontinued) & Others v The Chief Executive in Council, unreported, CACV 197/2007, 16 March 2009 at §10, this court (Ma CJHC (as he then was) Tang VP and Lam J) referred to the need to have regard to the merits of the challenge and agreed with the observations of the Lam J in Chu Hoi Dick v Secretary for Home Affairs (No. 2) [2007] 4 HKC 428 at §§23 and 24:

“23. In R (Corner House Research) v Secretary of State for Trade and Industry [2005] 4 All ER 1, the English Court of Appeal gave guidance on the making of pre-emptive costs orders to protect an applicant from exposure of costs in public law cases. Merits is one of the criteria and the test set by Lord Phillips MR is that the applicant’s case has to have a real prospect of success, viz. the case is properly arguable (see Para.73). It is a higher threshold than the grant of leave for judicial review under Ho Ming Sai. I think this is the minimum that an applicant must satisfy before he can contend that the canvassing of his arguments in court is in furtherance of public interest. It cannot be in the public interest of the community as a whole to require the use of public fund to pay for the costs of the legal proceedings for resolution of an argument which has no real prospect of success. In fact it would be against public interest to deploy judicial and public resources in such manner.

24. In Oshlack at para.68, McHugh J considered the usual costs order could “instill in a party contemplating commencing … litigation a sober realization of the potential financial expense involved”. Mr Lee submitted that potential liability for costs could have a chilling effect on future applicants pursuing public interest litigation. I accept that liability for costs can be an inhibitive factor. However, it would be wrong and disproportionate to over-emphasize that factor such that public fund has to be deployed to underwrite litigations that only have little prospect of success. It is equally wrong to dictate that the public purse must pay for the court proceedings when the proper venue for the ventilation of the underlying issues should be elsewhere.”

38.  Further, public interest litigation should not be confused with the fact that the decision would provide some guidance for future actions and decisions.  The rationale for that distinction is explained in Chu Hoi Dick at §12:

“12. Given the inherent nature of case law in our legal system, every judicial decision is a precedent and can provide some guidance for future actions and decisions. Further, there are many challenges in public law cases which have wider implications than the immediate subject matter. Unless there is a principled and clear set of guidelines for deciding whether a judicial review is in furtherance of the interest of the society as a whole, there is a risk that this exception to the usual order for costs will be reduced to a rule that so long as some public purpose or purposes are being served by the litigation, a litigant pursuing the litigation without any personal gain would be immune from liability as to costs.”

39.  It will have become apparent from §§1 to 28 above that this appeal was far from meritorious.  In my view, it had no real prospect of success.  It follows that the usual rule that costs follow the event has not been displaced.  Accordingly, Mr Clark must bear the costs of this appeal with certificate for two counsel.

Hon Fok JA:

40.  I agree and have nothing to add.

Hon Saunders J:

41.  I agree.