RE LORD IRVINE OF LAIRG, Q.C.

1988, No. MP 936

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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Cons, Ag. C.J.:

1. The Plaintiff in the proceedings which have given rise to this motion is a commodity futures and options brokerage company, incorporated under the laws of Illinois in the United States of America. The 1st Defendant is a futures broker incorporated in Hong Kong; and the 2nd Defendant, also incorporated in Hong Kong, is said to have held, until recently, all the snares in the 1st Defendant.

2. The original action, entered by the Plaintiff in the Commercial List, was against the 1st Defendant only; claiming a little under US$7.2 million as being due on a futures trading account, alternatively as damages for breach of contract. Subsequently the Plaintiff obtained leave to join the 2nd Defendant, alleging it to be liable under an agreement for indemnity, alternatively by reason of misrepresentation.

3. On the 3rd March, on the application of the 2nd Defendant, Sears J. struck out the Points of Claim, in so far as they were against the 2nd Defendant, as disclosing no cause of action. However on the 14th March he gave leave to amend the Points of Claim, together with the endorsement on the writ, to include a claim against the 2nd Defendant based upon an implied term in something called the "Clearing Agreement". He refused further amendments which would have alleged in the alternative misrepresentation, breach of a collateral warranty and agency.

4. The Plaintiff has lodged Notice of Appeal against both orders, that is to say, against the striking out of the earlier Points of Claim and against the-refusal to include the three alternative causes of action; the 2nd Defendant has cross-appealed seeking to strike out the claim under the Clearing Agreement.

5. Both appeals are due to be heard next month. The Plaintiff's solicitors intend to instruct Mr. Kaplan Q.C. and Mr. Ronny Tong of the local Bar, both of whom have already appeared on behalf of the Plaintiff at some stage of these proceedings. The solicitors wish to instruct in addition Lord Irvine of Lairg, a Queen' s Counsel practising in England. Hence this motion for his limited admission to the Hong Kong Bar under Section 27(2) of the Legal Practitioners Ordinance, Cap. 159. There is also an application to abridge the 14 day period specified by Rule 8(1)(b) of the Admission and Registration Rules. No objection has been taken to the latter application.

6. Soon after the issue of the original writ the 1st Defendant, still at that time the only Defendant, issued a summons to stay proceedings on the ground of concurrent proceedings in the United States District Court. Hearing of that application was in due course set for the 12th April. Solicitors for the Plaintiff wished in that instance, as in this, to retain Lord Irvine in addition to Mr. Kaplan and Mr. Tong. So far as that matter was concerned the Dar Association raised no objection and Lord Irvine was accordingly admitted, although in the event the application for the stay was not proceeded in.

7. The Bar Association however does oppose Lord Irvine's admission for the purposes of the two appeals. No suggestion is made that he lacks the necessary expertise or that local counsel have been overlooked. The objection is simply that the Bar Association is not satisfied that the Plaintiff has shown the appeals to be of “unusual difficulty or complexity". This requirement is taken from the judgment of Sir Denys Roberts, then the Chief Justice, in Re Coles ⁽¹⁾. In that judgment he restated the principles upon which opposed application of this kind should be decided.

8. Mr. Faulkner for the Law Society informs me that its members find some difficulty in advising with confidence as to this requirement. As Sir Denys Roberts observed in Re Goldblatt ⁽²⁾ -

"Such a finding is a subjective one, about which different views are bound to be held."

At the same time the Society is anxious that applications for admission should not turn into a "dry run" for the hearing of the proceedings themselves. However it is not for this reason that the Society supports the present application. It is concerned at the apparent inconsistency in the Bar Association's not opposing the admission for the purpose of-the stay proceedings but doing so for the appeals, despite what am told is the opinion of Mr. Kaplan that the questions raised by the latter are no less in difficulty than those which would have been argued in the former. In the Society's view, public interest demands that the principles should be applied with consistency.

9. Mr. Bunting, for the Plaintiff, contends that the requirement has no relevant in the present instance, the interest of the Bar being amply protected by the retention of local silk and junior. With respect, as Mr. Strawbridge for the Attorney General pointed out, that might lead, if pursued far enough, to the suggestion of an inherent "right" to admission provided that local counsel were instructed at the same time. For my part I do not think such a contention is consonant with the public interest that there should be a strong and independent local Bar.

10. Even so, Mr. Bunting further contends, there is sufficient here to show that the matter is of the required standard. I have already referred to the opinion of Mr. Kaplan. The Plaintiff's solicitor, in his affidavit in support has indicated “a strongly held view that his client should be represented by the most able, experienced, Senior Leading Counsel available". These views cannot of course be conclusive. But a court must necessarily be slow to reject the considered views of those usually best placed to form an opinion.

11. There can be no doubt that the paramount factor for my consideration is the public interest. And as Sir Alan Huggins observed in the first authority to which I have been referred, that is Re Gray ⁽³⁾ –

"Public interest can only be ascertained from a consideration of several competing interests. "

One of those interests, perhaps not so often referred to within these Courts as without, is the need to maintain the reputation of Hong Kong as an international financial centre. I stress the word "international", partly because the Plaintiff in this instance comes from overseas, and partly because financial transactions of the kind which underlie the present proceedings are truly international in their nature. The happenings of last October have made it plain that markets of one financial centre can no longer hope to function in isolation from what is happening in other markets around the world. Persons overseas dealing with Hong Kong companies will no doubt appreciate the need here for a strong and independent bar. But it would, I feel, be detrimental to the reputation of Hong Kong if the financial world elsewhere were led to believe that even where there is no question as to that, obstacles would nevertheless still be placed in the path of presenting their cases to this Court in what they are advised is the best way that they can. It is this perhaps that Sir Denys Roberts had in mind when he said in Goldblatt ⁽²⁾ -

12. The emphasis is my own.

13. I have come to the conclusion that in all the circumstances, this particular application should be granted.

(1)  [1985] H.K.L.R. 480

(2)  [1985] H.K.L.R. 484 at 487F

(3)  [1984] H.K.L.R. 367 at 368