Re Robin Potts QC

HCMP5047/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5047 of 2001

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J U D G M E N T

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1. The applicant, Robin Potts QC, sought admission to practice as a barrister in Hong Kong for the purpose of an interlocutory appeal. The application was opposed by the Bar Council. After a hearing on 23 October 2001, the application was granted on 29 October 2001. The applicant now seeks costs in relation to the hearing on 23 October 2001 and the present application.

2. The basis of his application is that he, being the successful party, should be entitled to costs, as normally costs follow the event. He asks this court to exercise its discretion to award costs to him.

3. There are two issues in the present application :

(1) Whether this court has power to award costs against the Bar Council in proceedings on application for admission to practice as a barrister in Hong Kong in the case of a successfully contested application.

(2) If there is, whether this court should exercise its discretion to award costs to the applicant having regard to the circumstances of the case.

4. The law relating to award of costs in civil proceedings is to be found in section 52A of the High Court Ordinance. This provides that the Court of Appeal and the Court of First Instance in its civil jurisdiction shall have the discretion to award costs and the power to determine by whom and to what extent costs are to be paid.

5. Section 27(1) of the Legal Practitioners Ordinance empowers the court in such manner as may be prescribed by the Chief Justice to admit as a barrister of the High Court in Hong Kong any person who satisfies the requirements prescribed thereunder.

6. The Admission and Registration Rules made by the Chief Justice under the Legal Practitioners Ordinance provide for the manner of admission and under rule 9 thereof, the Secretary of Justice and the Bar Council may appear in an application for admission to make representation. In relation to costs of the application, paragraph (2) of rule 9 provides that :

" ...and upon being satisfied that the applicant is eligible for admission as a barrister, may order that the applicant be admitted as a barrister, or if the Court is not so satisfied, may dismiss the application upon such terms as regards costs or otherwise as the Court may deem appropriate."

7. It would appear from this paragraph of rule 9, express provision is made for award of costs in the case of an application being dismissed by the court, whereas no such provision is made where the application is successful.

8. Mr Sarony SC for the applicant argues that :

(1) Rule 9 is subsidiary provision and it does not and cannot inhibit the court's exercise of its discretion under section 52A of the High Court Ordinance.

(2) The phrase "upon such terms as regards costs or otherwise as the court may deem appropriate" applies equally to a successful application having regard to section 19 of the Interpretation and General Clauses Ordinance which demands a "fair construction" of statutes.

(3) Because the court is empowered to impose terms upon the grant of an admission, it can hardly be argued that rule 9 disqualifies the court from making an order for costs in a successful application but enables it to do so on dismissal of an application.

9. Mr Chua for the Bar Council argues that the intention of rule 9 is clearly that on dismissal of an application, the court may award costs but not when the application is successful. Rule 13 only relates to exemption from the rules granted by the Chief Justice on special grounds and on terms. Any such term only concerns the formalities prescribed by the rules and does not relate to the question of costs.

10. Reference is made to the authority of Re Robert Michael Englehart QC MP2758/95 in which the then Chief Justice held that under rule 9(2) of the Admission and Registration Rules, the court had no jurisdiction to award costs in successful applications for admission. Mr Chua submits that this authority reinforces his argument.

11. Mr Chua also argues that the Bar Council's role in an application for admission is to protect the public and it was acting in good faith and in the interest of the public in contesting the present application. He further submits that the specific provision as to costs in the rules overrides the general provision as to costs in civil proceedings under section 52A of the High Court Ordinance.

12. The case of Robert Michael Engelhard QC is also referred to by Mr Sarony SC but he submits that the then Chief Justice, while holding that the court had no jurisdiction to award costs in the case of a successful application for admission, did not elaborate on the reasons for his conclusion. It is submitted that the conclusion cannot be right because it would import a manifest inequity into the proceedings. He submits that the Bar Council would in such circumstances enjoy a total indemnity against a costs order because they could hardly be ordered to pay the costs of an application that they had successfully opposed, such an order would strike at the very heart of the fundamental principle that "costs follow the event".

13. Apart from the case of Robert Michael Englehart QC, there is no Hong Kong authority on the matter in issue. In that case, albeit the Chief Justice did not elaborate the reasons for his conclusion, the fact remains that the Chief Justice had found that because of rule 9(2) of the Admission and Registration Rules, he had no jurisdiction to order costs against the Bar Council.

14. Rule 9(2), if I may repeat, states :

"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..." (emphasis added).

The wording is therefore clear beyond doubt that in the latter situation i.e. on dismissing the application, costs may be ordered. Accordingly it cannot be said that the Chief Justice's conclusion is not correct. The rationale for this particular paragraph, as it is worded, seems to be that if a person not sufficiently qualified but nevertheless attempts to seek admission, he should be made liable to the costs involved but not otherwise. To read into this rule that the intention is to award costs against the Bar Council in both cases would appear to be rewriting the rule.

15. In any case, the nature of admission proceedings is unique and distinguishable from ordinary civil proceedings which are adversarial in nature. In the Australian case of Wentworth v New South Wales Bar Association, [1992] CLR 239 ( a case dealing with admission procedure), referred to by Mr Chua, the Australian Appeal Court drew such a distinction :

"... disciplinary and admission proceedings are alike in that they are not ordinary legal proceedings. Admission proceedings are not directed to the resolution of some contest as to the private rights of disputing parties, as is usually the case with civil proceedings. And as has often been said, disciplinary proceedings are not criminal proceedings. Disciplinary proceedings and admission proceedings are 'sui generis'. Disciplinary proceedings have been described as proceedings concerned with the protection of the public. And it has been said that, because they have the protection of the public as one of their primary objects, they cannot necessarily be determined on the same basis as adversarial proceedings. That is also true of admission proceedings, although that may be more obvious in cases concerned with readmission. In any event, the right to practise in the courts is such that, on an application for admission, the court concerned must ensure, so far as possible, that the public is protected from those who are not properly qualified and, ... from those who are 'not suitable ... for admission'. And the consequence is that, as with disciplinary proceedings, admission proceedings are not automatically determined in accordance with rules and procedures applied in ordinary adversarial proceedings.

Both the nature and purpose of admission and disciplinary proceedings indicate that, unless and save to the extent that specific procedures are laid down by statute or by rules of court, and subject, of course, to the requirements of procedural fairness, they may be conducted in whatever manner the court considers appropriate to the matter before it."

16. From what has been said, although in an Australian case, admission proceedings are not ordinary civil proceedings. They are proceedings governed by the Legal Practitioners Ordinance and the rules made thereunder. These include provisions as to costs. The Bar Council has under section 33 of the Legal Practitioners Ordinance a general right of audience. The Bar Council is not there as a party to some adversarial proceedings involving the resolution of some private right. It is there to act in the interest of the public and for the protection of the public.

17. Nothing can be found in the Legal Practitioners Ordinance authorising award of costs against the Bar Council.

18. On this basis, it cannot be said that the absence of power to award costs on successful application in rule 9(2) is against the fundamental general rule that costs follows the event. This court has no power to award costs against the Bar Council in the present case. I would add that in this case, there is no doubt that the Bar Council contested the application in good faith and in accordance with its exercise of its public duty and the Bar Council had not acted unreasonably in the circumstances of the case.

19. This being my conclusion, it would not be necessary for me to consider whether this is a case 1 should exercise my discretion to make an order for costs.

20. For the reasons stated above, the application for costs is dismissed. For the sake of completeness, I make no order as to costs.