RE HER MAJESTY'S COUNSEL

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JUDGMENT

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1. This is an application by Michael David Sherrard, a Queen's Counsel practising in England for admission to the Hong Kong Bar for the purpose of representing the respondent in Civil Appeal NO.72 of 1987.

2. The admission of Mr. Sherrard was opposed by the Bar Committee and by the Attorney General, both of whom were represented at the hearing of the application. The Law Society was not represented, but gave its support to the application.

The Case

3. There is a long history of litigation between various parties over the proceeds of the sale of land, and of letters "B" representing that land, in the Tuen Mun area of the New Territories.

4. For the purposes of this application, however, it is not necessry to refer to any proceedings before 30th January, 1985, when Mr. FONG Ming obtained judgment for $2.3M. against Mr. Michael MA. That judgment was never satisfied by Mr. Ma and Mr. Fong took steps to serve a bankruptcy petition on Mr. Ma in March 1985. Mr. Ma was adjudged bankrupt by order of the High Court on 15th May, 1985.

5. Mr. Ma sought to have the order of bankruptcy revoked. His application was heard by Jones, J. from the 18th to 21st May, 1987 and dismissed on 10th June, 1987.

6. Mr. Ma entered a notice of appeal on 23rd June and on 8th July, 1987, dates were fixed for the hearing of the appeal from 27th October onwards for four days.

7. A Respondent's Notice was entered on 13th July and, on 24th July, Clough, J.A. ordered that security for costs, in the sum of $4400,000, be provided by Mr. Ma within 14 days, in default of which the appeal would be dismissed. Such security was afforded on 30th July, 1987.

8. It is not disputed by counsel appearing on behalf of the Bar Committee and the Attorney General that the appeal raises questions of law and fact of a sufficient complexity to make the retention of leading counsel appropriate.

9. It would, indeed, have been difficult for them to have argued otherwise, since both the appellant and the Official Receiver were represented by leading counsel at the hearing before Jones, J. and intend to be so represented at the hearing of the appeal.

Availability of Counsel

10. Although it is agreed that the appeal is a matter which justifies the retention by Mr. Fong of leading counsel, it is not conceded that the nature of the appeal is such as to require the services of a specialist in bankruptcy law.

11. Indeed, neither Mr. Griffiths, Q.C., representing Mr. Ma, nor Mr. Mills-Owens, Q.C. representing the Official Receiver, could fairly be described as persons who specialize in bankruptcy, since it is well-known that each of them has an extensive general practice in the commercial and common law fields, though both have experience of bankruptcy.

12. Indeed, Mr. Sherrard himself, though he also is said to have had experience of bankruptcy work, can hardly be called a bankruptcy specialist, since he has appeared in a wide range of commercial, common law and company cases in Hong Kong in the past few years.

13. The general principles which should govern applications for the admission of an overseas counsel for the purposes of a case in Hong Kong are set out in Gerald James Kay Coles, Q.C. ⁽¹⁾. A number of tests, though these are not meant to be exhaustive, are set out at page 483B, to be applied in applications of this nature.

14. I am satisfied that this is not a case of unusual difficulty or complexity; and that it does not require specialist knowledge of a kind not available from the local Bar. Nor is it of such a nature as to make it desirable for overseas counsel to appear; nor does any question arise as to whether or not local counsel of appropriate skill is available at a fee within the range of the client.

15. The only issue in this application is whether local counsel of appropriate skill and experience are available.

16. As has been stated in Goldblatt⁽²⁾-

"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."

17. It should be noted that a substantial proportion of leading local counsel had already represented other parties in the earlier stages of this action or in related actions and so were unacceptable to Mr. Fong.

18. On 19th September, solicitors appearing on behalf of Mr. Fong wrote to the Bar Committee seeking its approval to the admission of Mr. Sherrard for the purposes of the appeal. The Bar Committee replied on 3rd October informing the solicitors that it was unable to consent to Mr. Sherrard's admission.

19. Subsequently, the solicitors enquired as to the availability of a number of local counsel. According to an affidavit, sworn by Mr. Ip, Mr. Fong's solicitor, at least nine local Queen's Counsel were asked if they would be available to represent Mr. Fong in the appeal, six of them replied that they would.

20. Two of these six were described by Mr. Ip himself as "suitable". Against this background, I am not persuaded that local counsel of appropriate skill and experience were not available and the application must fail for this reason.

Time of application,

21. I think it appropriate that I should add a footnote as to the timing of applications to the Bar Committee and the Attorney General for their agreement to the admission of overseas counsel.

22. In Goldblatt ⁽²⁾ , I commented as follows -

"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.

 

        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."

23. In this case, dates were fixed for the appeal on 8th July. It was, however, not until 19th September that the Bar was approached for its consent. At present the number of local Queen's Counsel is limited and the busiest of them are likely to be booked ahead for some months. It is, therefore, likely that, unless early application is made to the Bar, solicitors will find themselves in some difficulty in finding a suitable local silk who is still available, if there is opposition to the admission of overseas counsel.

24. However, a late application and the difficulties which this brings with it, will not be allowed to weigh in favour of the applicant. Thus he may well find that the availability of local counsel will be assessed as if the application had been submitted at an appropriate date rather than at the later one.

(1)     [1985] H.K.L.R. 480

(2)     [1985] H.K.L.R. 484, 488A

(2)    [1985] H.K.L.R. 484, 488I