RE ANDREW GODDARD, QC

HCMP 2589/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2589 of 2007

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J U D G M E N T

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1.  The present application for admission under section 27(4) of Legal Practitioners Ordinance, Cap. 159 arises in the context of on-going arbitration proceedings.  The Applicant seeks admission for the purposes of advising and appearing for his client (the Hong Kong Housing Authority) in an application for leave to appeal from an interim award dated 14 August 2007 under section 23(2) of the Arbitration Ordinance, Cap. 341 and if leave to appeal were to be given, in the appeal proper.  These proceedings are in HCCT 51/2007 and the application for leave is due to be heard by Reyes J on 29 January 2008.  If the appeal were to take place, an order would be sought for the interim award to be set aside or varied, alternatively, that the award be remitted to the arbitrator for reconsideration under section 24(1) of the Arbitration Ordinance.

2.  The relevant award arose from a construction arbitration between Yau Lee Construction Co Ltd (as Claimant) and the Hong Kong Housing Authority (as Respondent) involving the construction of a public housing estate known as Homantin South Phase I.  Phase I was one of four construction phases and was the only one involving the Claimant.  On 22 April 1997, Yau Lee entered into a building contract with the Housing Authority in relation to the construction of Phase I.  As is standard in all construction contracts with the Housing Authority, the contractual documents incorporated the Hong Kong Government’s General Conditions of Contract for Building Works (in this case the 1993 edition) as well as a number of other documents.

3.  Disputes arose under the contract which then became the subject of a Notice of Arbitration dated 30 November 2005.  The sole arbitrator, Mr John Marrin QC, was appointed on 8 March 2006.  The disputes to be determined under the reference were initially ordered to be heard in three parts, called in the arbitration the Schedule A, B and C Issues.  The award which is the subject matter of the leave application was the resolution of the Schedule A Issue, hence its interim nature (the award was called the First Interim Award).  The hearing of the Schedule A Issue lasted two weeks (in June 2007).  Evidence was taken from six factual witnesses and four expert witnesses.  Separate hearings were originally envisaged for the resolution of the Schedule B and C Issues but the parties have now agreed that there should be a combined hearing for both.  This is now scheduled to commence on 3 November 2008 and five weeks have been set aside.  The Applicant will continue to be instructed by the Hong Kong Housing Authority for that hearing.

4.  Where overseas counsel seeks admission in the present context - that is, proceedings in court which emanate from arbitration proceedings in which the relevant counsel has appeared in the substantive hearing or otherwise has had a substantial involvement - the court will readily accede to such application.  This factor, which has been for convenience called the arbitration factor, is a powerful one in favour of admission.  It recognizes the uniqueness of arbitration proceedings (in that counsel from overseas will not need special admission by the court to conduct arbitration proceedings here) and also recognizes the logical (if not, fair) consequence of that.

5.  In Re Andrew White QC, unreported, HCMP 1509/2005, 1 August 2005, the court dealt extensively with the arbitration factor and the limitations to it.  One of the limitations, which is relevant in the present case, was put in the following terms : -

“

The matter for which counsel seeks to be admitted (even where the arbitration factor exists) must be a substantial one.  Where, for example, counsel is only sought to be admitted for minor hearings (such as for directions), it is unlikely that the court would allow the application for admission even if that counsel had appeared in the arbitration proceedings below.”

6.  Mr Kenny Lin (who appears for the Hong Kong Bar Association) argues that the section 23(2) application for leave to appeal from the interim award neither involves a case of unusual difficulty or complexity nor is a substantial one.  The two are of course not synonymous : while a “substantial” matter would certainly include a case of unusual difficulty or complexity, it does not mean that only such cases would fit this description.  In Re Jones QC, unreported, HCMP 2629/2006, 19 January 2007, the court (in the context of an application for admission to conduct an application for leave to appeal before the Appellate Committee of the Court of Final Appeal) said this as to the meaning of the term “substantial” : -

“

I should perhaps here emphasize again that whether a matter is ‘substantial’ depends both on the nature of the application and the issues that are likely to arise in it.  To put it another way, the court is required to examine both the importance of the matter itself (for which the admission of overseas counsel is sought) and also the issues that are involved.  Both are important facets.”

It should be noted in relation to that case that had leave been granted to appeal to the Court of Final Appeal, it was accepted that overseas counsel would be admitted.  The issues before the Appellate Committee of the Court of Final Appeal were in that case very straightforward.

7.  In my view, the application for leave to appeal in the present case is undoubtedly a “substantial” one.  An application for leave to appeal from an arbitration award is unlike many other situations in which leave to appeal is sought.  The relevant principles on the proper approach are summarised in Swire Properties Limited and Others v The Secretary for Justice (2003) 6 HKCFAR 236.  The application is no doubt an important one.  It is unnecessary to go into great detail as to the issues that arise in that application.  Included in the issues for determination is the often (and usual) complicated inter-relationship between the various documents that made up the construction contract.  The arbitrator felt bound by Court of Appeal authority to arrive at his conclusions.  The correctness of that authority (Secretary for Justice v Sun Fook Kong (Civil) Limited, unreported, CACV 219/1007, 1 September 1998) is challenged by Yau Lee.  There are other issues of a fairly complicated nature.  Perhaps an indication of the substantial nature of the application (albeit admittedly somewhat superficial) can be seen from the following : the interim award was itself 86 pages long; the application for leave to appeal contains ten grounds of appeal; there are two affidavits in support of the application and two affidavits against, all of which are fairly voluminous.

8.  The present application is a good illustration of why the arbitration factor is a powerful one in favour of admission.  The Applicant was instructed for the substantive hearing of the relevant arbitration proceedings and will continue to be instructed for the remainder of the arbitration.  It would seem odd (to say the least) that for an important application such as the application for leave to appeal, he should not be admitted.

9.  For the above reasons, I make an order that the Applicant be admitted as a barrister under section 27(4) of the Legal Practitioners Ordinance for the purposes of : -

(1)	Advising and appearing for the Hong Kong Housing Authority in HCCT 51/2007 at the hearing of the said proceedings in which leave is sought to appeal from an arbitration award dated 14 August 2007; and
(2)	Advising and appearing for the Hong Kong Housing Authority at the hearing of the appeal proper should leave to appeal be granted.