Deepak Sharma v Law Society of Singapore [2016] SGHC 105

Originating Summons No 593 of 2014 (“OS 593”) is an application by Mr Deepak Sharma (“Mr Sharma”) under O 53 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) for judicial review against the decision of a review committee (“the RC”) constituted under s 85(6) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”). Mr Sharma seeks leave to apply for and the grant of the following primary reliefs:

(a) A quashing order against the decision of the RC which dismissed Mr Sharma’s complaints against Mr Yeo Khirn Hai Alvin SC (“Mr Yeo SC”) and partially dismissed Mr Sharma’s complaints against Ms Melanie Ho Pei Shien (“Ms Ho”) made by way of Mr Sharma’s letter of complaint to the Law Society of Singapore (“Law Society”) dated 23 January 2014; and

(b) A mandatory order that Mr Sharma’s complaint against Mr Yeo SC and Ms Ho dated 23 January 2014 be reviewed by a freshly appointed and constituted Review Committee.

In support of his application, Mr Sharma relied on the following three grounds:

(a) The RC erred in law and/or misdirected itself as to the law, in concluding that professional misconduct through gross overcharging could not be established by objective evidence that the fees claimed were grossly excessive in the “absence of other impropriety”;

(b) The RC erred in law and/or misdirected itself as to the law in its conclusion that the pursuit of the fees claimed could not constitute professional misconduct on the basis that they reflected the work of all the solicitors involved; and

(c) The RC’s reasons for concluding that the complaint against Mr Yeo SC were lacking in substance, were legally inadequate and unsustainable in law, being incapable of sustaining the RC’s conclusion, and having no reasonable or proper evidential basis, and were not open to the RC acting reasonably and lawfully.

Background

The RC was subsequently constituted under s 85(6) of the LPA. Before I continue, I would mention that the LPA is the main legislation governing the conduct of advocates and solicitors practising Singapore law in Singapore. I have referred to such advocates and solicitors as “solicitors” for convenience and will continue to do so. Pursuant to s 85(8) of the LPA, the RC was to review the complaint and direct the Council of the Law Society (“the Council”) to dismiss the matter if it was unanimously of the opinion that the complaint was “frivolous, vexatious, misconceived or lacking in substance”, or in any other case, refer the matter back to the Chairman of the Inquiry Panel (“the Chairman”). The RC reviewed Mr Sharma’s complaint and directed the Council to dismiss it in whole as against Mr Yeo SC and in part as against Ms Ho. The reasons for the RC’s decision were conveyed to Mr Sharma by way of a letter dated 10 April 2014 from the Law Society (“the Decision Letter”), and it bears setting out in some detail. Before I do so, I would mention that eventually the full report of the RC was provided to the court before the completion of the hearing before me. However, as arguments had been made by reference to the Decision Letter and there was no suggestion that that letter had inaccurately stated the reasons of the RC, I will continue to refer to that letter. Where necessary, I will also refer to the report.

The Decision Letter

At the outset, the RC observed that while Mr Sharma was neither a client nor a party to the proceedings against Dr Lim, he was funding the legal expenses and the information furnished by him was legitimately the subject matter of a complaint. Hence, the review by the RC related to the substance of Mr Sharma’s complaint and not his standing in the matter.

The RC also noted that “in so far as what constitutes professional misconduct, liability is dependent on an actual act or omission on the part of a solicitor which clearly arises from his/her personal conduct” and that the Complaint thus lacked details on the following matters:

(a) The respective roles of Mr Yeo SC and Ms Ho in the matter; and

(b) The terms of engagement between the SMC and WP, the amounts billed and the amounts that would have been due under the terms of engagement. This was in the context of Limb 2 of the Complaint.

The RC then sought clarification from WP to which WP replied as follows:

(a) Mr Yeo SC although the counsel in the proceedings against Dr Lim was not involved in drawing up the Bills of Costs or the taxation proceedings;

(b) The engagement by the SMC was on WP’s standard fee arrangement based on actual time spent by the solicitors on the files; and

(c) Each of WP’s bills were approved by the SMC and paid in full.

Written confirmation was also provided by the SMC that the total amount billed by WP to the SMC was higher than the quantum claimed in the Bills of Costs and that the SMC had paid the bills in relation to the matters in full. Copies of the bills rendered by WP to the SMC were also provided to the RC. However, WP took the position that the contents of significant parts of its response to the RC were only made available to the RC to address its queries, and that no reference should be made to these parts in the written grounds of the RC’s decision. The RC was of the view that the material was covered by privilege which had been expressly reserved. It was therefore bound by the conditions imposed by WP. However, it was also of the view that it would be neither fair nor appropriate to consider such material in reaching a determination without setting out the import of the material. As it was precluded from setting out the import of the material, it decided not to consider it.

The RC then made the following findings and directions in relation to Limb 1 of the Complaint:

(a) There was no specific allegation in the complaint that Mr Yeo SC was involved in the preparation of the Bills of Costs and the proceedings related thereto;

(b) Further to the confirmation by WP that Mr Yeo SC was not involved in the matters complained of, the RC noted that the Notes of Evidence produced by Mr Sharma did not show Mr Yeo as being present at the taxation hearings;

(c) In relation to the Bills of Costs being excessive, “the fact that the [b]ills were eventually taxed down significantly does not in itself give rise to an inquiry of professional misconduct, in the absence of other impropriety.” In this regard, the RC noted that Mr Sharma had alleged that the effective hourly rate would be excessive but “the RC accept[ed] the amounts in the Bills of Costs reflect[ed] the work of all the solicitors involved”; and

(d) Thus, Limb 1 against both Mr Yeo SC and Ms Ho was lacking in substance, and the RC directed the Council to dismiss this header of the complaint.

In relation to Limb 2 of the Complaint, the RC found and directed as follows:

(a) Mr Yeo SC was not involved with the preparation of the Bills of Costs and the proceedings related thereto. Therefore, there was no misconduct on his part and the RC directed the Council to dismiss Limb 2 in respect of Mr Yeo; and

(b) Insofar as Limb 2 pertained to Ms Ho, the complaint was not frivolous, vexatious, misconceived or lacking in substance and the matter was referred back to the Chairman to constitute an Inquiry Committee (“IC”) to inquire into Limb 2 against Ms Ho.

Mr Sharma then filed OS 593 on 26 June 2014. On the same day, Originating Summons No 595 of 2014 was filed for ad hoc admission of Mr Michael Fordham QC under the LPA to represent Mr Sharma in OS 593. The application for ad hoc admission was dismissed by Steven Chong J on 5 November 2014 and no appeal was filed against that dismissal. The judgment of Chong J is found in Re Fordham, Michael QC [2015] 1 SLR 272 (“Re Fordham, Michael QC”).

Mr Sharma also filed an application (Summons No 3271 of 2014) on 30 June 2014 to have the IC proceedings against Ms Ho stayed until OS 593 had been determined. This application came before me on 22 July 2014 and I stayed the IC proceedings until further order.

Finally, in a hearing before me on 4 May 2015, I directed that the leave application and the substantive merits of OS 593 be heard together and on an inter partes basis.

Issues

The issues that arise in the application for leave are as follows:

(a) Whether the decision of the RC is susceptible to judicial review; and

(b) Whether Mr Sharma has sufficient locus standi to bring the present judicial review application.

If leave were to be granted, the following issues arise in relation to the substantive merits of the application:

(a) Whether the RC erred in law in concluding that an inquiry of professional misconduct does not arise even if the Bills of Costs were taxed down significantly unless there is other impropriety shown;

(b) Whether the RC erred in law in concluding that the pursuit of the fees claimed could not constitute professional misconduct on the basis that they reflected the work of all the solicitors involved; and

(c) Whether the RC erred in law, was irrational or unfair in finding that Mr Yeo SC was not involved in the matters complained of based on WP’s clarification that he was “not involved in drawing up the Bills of Costs or the taxation proceedings”.

The leave application

The test for granting leave to bring judicial review proceedings is well settled. The court must be satisfied that (see Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 SLR 345 at [5]):

(a) The matter complained of is susceptible to judicial review;

(b) The plaintiff has a sufficient interest or standing in the matter; and

(c) The material before the court discloses an arguable case or prima facie case of reasonable suspicion in favour of granting the public law remedies sought by the plaintiff.

Susceptibility of the RC’s decision to judicial review

Mr Sharma argued that judicial review of the RC’s decision is in principle available because the source of the power and function exercised by the RC is statutory, and this statutory power and function has a public element to it. He further submitted that there is no express Parliamentary intention to exclude judicial review of the RC’s findings and decisions. In this regard, the Attorney-General confirmed during the oral hearing that he is in agreement with Mr Sharma. The Attorney-General took the view that where the decision-maker’s power comes from statute and has a public element to it, the default position is for judicial review to be available where the statute is silent on the matter and it is in the public interest for decisions of a body like the RC to be susceptible to judicial review.

The Law Society did not dispute that the source of the RC’s power is statutory. It also did not appear to dispute that the nature of the RC’s power has a public element to it. Nonetheless, the Law Society, relying on the authority of Manjit Singh s/o Kirpal Singh and another v Attorney-General [2013] 2 SLR 844 (“Manjit Singh (CA)”), argued that the presence of “compelling reasons” renders the RC’s findings and decisions unamenable to judicial review. These “compelling reasons” are that the disciplinary framework envisioned within the LPA, specifically ss 91A, 96, 97, 98 and 106, strongly suggests that Parliament intended for the RC’s findings and decisions to not be susceptible to judicial review.

In Manjit Singh (CA), the Court of Appeal (“CA”) considered the question of whether, in some circumstances, a power conferred by statute may not be amenable to judicial review. The CA held at [28] and [32] as follows:

It is apparent that the “compelling reason” the CA was referring to in Manjit Singh (CA) are those reasons which “indicate the absence of … a public element” in the statutory power that is being sought to be judicially reviewed. Since the Law Society did not dispute that the source of the RC’s power is statutory and its nature has a public element to it, the RC’s exercise of that power in coming to a decision should in principle be judicially reviewable. The “compelling reasons” that the Law Society had relied on, viz, that the legislative framework of the LPA indicates that Parliament had intended to preclude review committee decisions from judicial review, are of a different nature from the “compelling reasons” enunciated in Manjit Singh (CA). What the Law Society was really arguing was that Parliament intended to oust the jurisdiction of the court vis-à-vis decisions by a review committee. This in turn requires an analysis of the disciplinary framework envisioned by the LPA.

The starting point is that the LPA is silent as to whether the decisions of a review committee are susceptible to judicial review. According to the learned authors of Lord Woolf et al, De Smith’s Judicial Review (Sweet & Maxwell, 7th Ed, 2013) (“De Smith’s Judicial Review”) at para 4-015:

Hence, words in a statute that purport to oust the jurisdiction of the court to review decisions of an inferior tribunal or a public body exercising public functions must be construed strictly (Stansfield Business International Pte Ltd v Minister for Manpower (formerly known as Minister of Labour) [1999] 2 SLR(R) 866 at [21] citing South East Asia Fire Bricks Sdn Bhd v Non-Metallic Minieral Products Manufacturing Employees Union and Others [1981] AC 363 with approval). It stands to reason that if a statute is silent as to whether the jurisdiction of the court to review such decisions is ousted, Parliament’s intention to that effect must be abundantly clear before the court will find that its jurisdiction has been ousted.

The Law Society argued that Parliament intended for a complainant to have no recourse to court over a review committee’s decision for the following reasons:

(a) There is a clear escalation process structured within the disciplinary framework of the LPA. A complaint goes through a series of bodies constituted under the LPA, each of which has its duties and functions specifically delineated in the LPA. Further, there are various recourses available to a solicitor or complainant built into the various stages of the disciplinary framework under the LPA (for example, s 96 of the LPA sets out the procedure for a complainant dissatisfied with the Council’s determination under s 87(1)(a) and (b) of the LPA).

(b) Section 91A of the LPA evidences that Parliament contemplated judicial review as a form of recourse within the LPA when amending the LPA in 2008. Parliament expressly provided for a judicial review mechanism for decisions made by a Disciplinary Tribunal (“DT”) but did not do so for those made by a review committee.

(c) Section 106 of the LPA supports an interpretation that a review committee’s decision is final, non-appealable and non-reviewable. This is consistent with Parliament’s intention for the review committee to act as a preliminary sifting mechanism for complaints.

(d) The decisions made within the disciplinary framework of the LPA are of a sui generis nature. To support this proposition, the Law Society relies on statements made by the CA in Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279 (“Top Ten Entertainment”) that “Pt VII [of the LPA] provides a self-contained disciplinary framework outside the civil proceedings framework” (at [44]) and Re Naplon Zero Geraldo Mario [2013] 3 SLR 258 (“Re Naplon Zero”) that the “disciplinary jurisdiction is a unique jurisdiction entirely distinct from civil or criminal jurisdiction of the court” (at [69]).

(e) Taken together, the omission of any mention of judicial review over a review committee’s decisions in the LPA should be interpreted as an intention by Parliament to preclude such judicial review.

Before dealing with the Law Society’s arguments, I set out the disciplinary framework under the LPA in gist. A complaint made against a solicitor to the Law Society will first be referred to the Chairman (see s 85(1A)). The Chairman will then constitute a review committee which will review the complaint. If that committee finds the complaint frivolous, vexatious, misconceived or lacking in substance, it is to direct the Council to dismiss the matter and give the reasons for the dismissal. In any other case, it is to refer the complaint back to the Chairman (see ss 85(6) and 85(8)). If the complaint is to be dismissed, the Council is to give effect to the review committee’s decision and inform the complainant and the solicitor of the dismissal and furnish the complainant with the reasons for its dismissal. The LPA does not expressly provide the complainant with any recourse thereafter.

If the complaint is referred back to the Chairman, the Chairman will then constitute an IC to inquire into the complaint (see s 85(10)). The IC will then render a report to the Council with its recommendation. Upon considering the report, the Council may determine that (a) a formal investigation is not necessary; (b) no cause of sufficient gravity exists for a formal investigation but that the solicitor should be given a warning, reprimanded or ordered to pay a penalty; (c) there should be a formal investigation by a DT; or (d) the matter be referred back to the IC for reconsideration or for a further report (see s 87(1)).

If the Council determines that a formal investigation is not necessary (ie, (a) or (b) in [29] above), the complainant may apply to a judge of the High Court to review the matter (see s 96(1)). At the hearing of the application, the judge may affirm the determination of the Council or direct the Law Society to apply to the Chief Justice (“CJ”) to appoint a DT (see s 96(4)).

If the Council decides that a formal investigation is necessary (ie, (c) in [29] above), it shall then apply to the CJ to appoint a DT to hear and investigate the matter (see s 89(1)). The DT will determine one of the following: (a) no cause of sufficient gravity for disciplinary action exists; (b) while no cause of sufficient gravity for disciplinary action exists, the solicitor should be reprimanded or ordered to pay a penalty; or (c) cause of sufficient gravity for disciplinary action exists (see s 93(1)).

If the DT determines that no cause of sufficient gravity for disciplinary action exists (ie, (a) or (b) in [31] above), the complainant, the solicitor or the Council may apply to a judge of the High Court to review that determination or order (see s 97(1)). If the DT determines that cause of sufficient gravity for disciplinary action exists, the Law Society shall then apply for the matter to be heard by a court of three judges (see s 94(1) read with s 98(7)). A decision of the court of three judges is final and non-appealable (see s 98(7)) and the matter would end there.

It is thus clear that there is an elaborate stepped process by which a complaint to the Law Society is dealt with. The LPA not only provides for how the complaint is to be dealt with at each stage of the process, it provides for various recourses available to dissatisfied parties at some of these stages. This, however, does not in and of itself indicate that Parliament intended for the disciplinary process to be self-contained to the effect that any recourse outside of the LPA is excluded. The courts have consistently found that judicial review is available at various stages of the disciplinary process even though the LPA is silent on the issue, for example, see Whitehouse Holdings Pte Ltd v Law Society of Singapore [1994] 2 SLR(R) 485 (“Whitehouse Holdings”) where the CA held at [37] that judicial review was available over a determination of the Council made under s 87(1) of the LPA; see also Carolyn Tan Beng Hui v The Law Society of Singapore [1999] SGHC 23 (“Carolyn Tan”) where the court held at [11] that the IC’s decision was subject to judicial review. The inclusion of the review committee into the stepped disciplinary process does not per se preclude its decisions from judicial review. Furthermore, it is important to remember that while various recourses are available to a complainant at other stages, the LPA is silent as to the recourse available to a complainant when the review committee directs the Council to dismiss the complaint.

The Law Society’s reliance on the cases of Top Ten Entertainment and Re Naplon Zero is incorrect. Those cases stand for the proposition that decisions made by a judge or the CJ under Part VII of the LPA are exercises of the court’s unique disciplinary jurisdiction distinct from its civil or criminal jurisdiction and it is in this sense that proceedings under the LPA are part of a “self-contained disciplinary framework” and appeals against such decisions are not available. They have no bearing on whether judicial review is available over decisions made under the disciplinary framework of the LPA (which may include decisions made by bodies other than the court). To the extent that the Law Society is arguing that such decisions are so unique that judicial review should not apply to them, I reiterate the oft-quoted statement of the CA in Chng Suan Tze v Minister of Home Affairs [1998] 2 SLR(R) 525 at [86] that all power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. It is precisely the exercise of such sui generis statutory powers that judicial review is meant to police.

The introduction of s 91A of the LPA does not change the analysis. Section 91A(1) of the LPA provides:

As can be seen, judicial review of an act or a decision of a DT is not entirely precluded. It is subject to s 82A, 97 and 98 of the LPA. I will elaborate later on ss 97 and 98, and need only note here that s 98 also applies to certain findings of the DT under s 87A. More importantly, a plain reading of s 91A shows that it applies only to acts done and decisions made by a DT and does not extend to those of a review committee. This is supported by the CA’s decision in Manjit Singh (CA) where the CA considered whether s 91A applied to the CJ’s decision to appoint members of the DT under s 90(1) of the LPA. The CA held that it did not since the CJ’s decision was neither “an act” nor “a decision” of the DT. Furthermore, during the Second Reading of the Legal Profession (Amendment) Bill (No 16 of 2008) (“Second Reading of the Legal Profession (Amendment) Bill 2008”) which introduced s 91A into the LPA, the Minister for Law stated that s 91A was intended by Parliament to exclude judicial review of “the Disciplinary Tribunal’s decision” (Singapore Parliamentary Debates, Official Report (26 August 2008) vol 84 col 3187). The CA concluded that there was “no indication that s 91A … was intended by Parliament to exclude judicial review of decisions by persons other than the DT” [emphasis added] (Manjit Singh (CA) at [58]). This reasoning similarly applies to decisions made by a review committee.

Second, the fact that s 91A expressly reserves some avenues of judicial review over acts done or decisions made by a DT and not those of a review committee cuts both ways. On the Law Society’s reading, this means that Parliament intended to completely preclude review committee decisions from judicial review, especially when considered against the elaborate stepped disciplinary process identified above at [33]. On the other hand, the legislative silence in relation to review committee decisions may just as easily be interpreted as an intention by Parliament to restrict judicial review over decisions made by a DT only but not those made by a review committee. Therefore, decisions by a review committee continue to be subject to judicial review. I am of the view that the latter interpretation is the correct one.

As I have mentioned earlier, judicial review should in principle be available over decisions made by a review committee (at [25] above). The fact that the LPA is silent on the availability of judicial review over a review committee’s decisions, even in the light of s 91A, is insufficient to change this. The CA in Manjit Singh (CA) held that judicial review was available over the CJ’s decision under s 90(1) despite the presence of s 91A and even though there was no express provision for such review in the LPA. Also, the CJ was not exercising his power under s 90(1) in a judicial capacity. The CA also said at [61]:

I am reinforced in my view by the rationale for introducing s 91A of the LPA in 2008. Prior to the amendments in 2008, it was well-established that the findings and determination of a DT (then known as a Disciplinary Committee (“DC”)) could be subject to judicial review notwithstanding that the complainant or the solicitor had a right to apply to a single judge under the then s 97 of the LPA or that the solicitor might have to show cause before a court of three judges. This resulted in a situation where judicial review challenges were made to the courts even before the DT had made a determination, causing the disciplinary process to be delayed significantly. In order to resolve this delay, Parliament amended ss 97 and 98 of the LPA along with the introduction of s 91A. The amendment to s 97 provides a single judge with the power of judicial review over the determinations of a DT where the DT has determined that there is no need for show cause proceedings before the court of three judges. The amendment to s 98 provides the court of three judges the power to determine “any question as to the correctness, legality or propriety of the determination of the [DT], or as to the regularity of any proceedings of the [DT]” (see s 98(8)(a) of the LPA). In other words, the court of three judges now decides both the merits and any judicial review challenges (see Mohd Sadique bin Ibrahim Marican and another v Law Society of Singapore [2010] 3 SLR 1097 at [10]). The purpose of s 91A is thus to restrict judicial review over determinations of a DT by consolidating the judicial review process with the hearing on the merits into one process, instead of maintaining them as two distinctly separate processes. Judicial review remains available, but only through the single judge process under s 97 (in the event there are no show cause proceedings) or the court of three judges under s 98 (in the event there are show cause proceedings). This is confirmed by the Minister of Law’s statement in the Second Reading of the Legal Profession (Amendment) Bill 2008 (at col 3251) which is as follows:

Viewed against this background, s 91A is more accurately characterised as restricting or consolidating the then existing judicial review process over DT decisions to the extent provided under ss 82A, 97 and 98 of the LPA. This is in contrast to the characterisation of the provision by the Law Society as “[providing] judicial review as a form of recourse … for DT proceedings”. Section 91A’s purpose is to speed up the disciplinary process at the DT stage. It would be a stretch, on a purposive statutory interpretation, to say that by restricting or consolidating the judicial review process over DT decisions, Parliament intended to completely exclude judicial review over decisions of a review committee which is an entirely different stage of the disciplinary process.

Further, the overall scheme of the disciplinary process under the LPA points towards judicial review being available over decisions of a review committee. At other stages of the disciplinary process, recourse to the court is provided to the complainant if his or her complaint does not progress on to the next stage of the disciplinary process. If the Council determines that there is no need for a formal investigation after considering the IC’s report, the complainant may apply to a judge of the High Court under s 96(1) of the LPA. If a DT determines that there is no need for show cause proceedings before the court of three judges, the complainant may similarly apply to a judge of the High Court for a review of that determination under s 97(1) of the LPA. Given that the review by a review committee represents the most preliminary inquiry into the matter, it would be odd for Parliament to have intended for there to be no recourse to a complainant if his or her complaint is dismissed by the review committee. Furthermore, if a review committee directs the Council to dismiss the complaint in breach of the statutory obligations of the review committee, the complainant is left without any remedy.

The Second Reading of the Legal Profession (Amendment) Bill (No 39 of 2001) where the mechanism of the review committee was first introduced shows that the review committee was set up as a “sifting mechanism” to weed out frivolous complaints and was aimed at reducing the caseload of the IC and to speed up the disciplinary process (Singapore Parliamentary Debates, Official Report (5 October 2001) vol 73 col 2196). The Law Society argued that it would be inconsistent with this purpose to allow judicial review over decisions by a review committee. In my view, allowing a complainant to apply for judicial review will not interfere with the review committee’s function as a sifting mechanism although it may appear that the availability of judicial review may result in delay to the disciplinary process.

In the first place, if judicial review is available, it may arguably be restricted to complainants only. This is because if a complaint is not dismissed, the solicitor will still have his chance to address the IC. On the other hand, a complainant has no recourse if his complaint is dismissed and judicial review is not available. Even with judicial review, the court considers the process by which the review committee reached its decision and not the merits of the decision. With respect to the apparent delay in the disciplinary process, I quote again a relevant observation by the CA in Manjit Singh (CA) at [60]:

Finally, the Law Society relied on s 106 of the LPA to argue that the right to judicial review over decisions of a review committee is precluded unless bad faith or malice is proved to the court, or there are other express provisions to the contrary in the LPA. Section 106 provides:

Mr Sharma argued that s 106 does not have the effect of ousting judicial review over decisions made by a review committee. Section 106 is concerned with shielding the parties named therein from being sued (for example, in tort) for actions taken in the discharge of their duties under the LPA. The Attorney-General was in agreement with Mr Sharma’s argument.

I am of the view that the Law Society’s reliance on s 106 is incorrect. To begin with, there is a well-established body of jurisprudence that has held that judicial review is available over the parties named in s 106 despite the presence of s 106 or its predecessor. I have already referred to the cases of Whitehouse Holdings and Carolyn Tan at [33] above. Another example is Re Shankar Alan s/o Anant Kulkarni [2007] 1 SLR(R) 85 (“Re Shankar Alan”) where Sundaresh Menon JC held that judicial review was available over determinations made by the DT (then known as the DC) notwithstanding that show cause proceedings were available to the solicitor before the court of three judges (though this has been legislatively amended via s 91A of the LPA). As pointed out by Mr Sharma, there was always some version of s 106 within the LPA (there is minimal difference between the versions) when these cases were decided. It may be the case that there was no argument on the provision but in my view, the more likely scenario is that counsel for the Law Society in those cases did not consider that provision to oust judicial review.

The Law Society responded by arguing that in all of these cases, there was an equivalent of ss 96 and 97 of the LPA such that the court’s exercise of judicial review may very well have been a review under those provisions. Therefore, the cases do not indicate whether s 106 is an ouster provision. I am unable to accept the Law Society’s argument. In Re Shankar Alan, s 97 was not referred to at all given that the DT (then known as the DC) had found that the solicitor was guilty of the allegations against him. This was rightly so because s 97, which provides for review by a judge of the High Court only if the DT determines that no cause of sufficient gravity for disciplinary action exists, would not have applied. The same can be observed in Carolyn Tan where Choo Han Teck JC held that the IC was subject to judicial review. Sections 96 and 97 were not referred to at all as they were not applicable to decisions made by the IC.

Section 106 of the LPA should also be compared with s 33B(4) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). In Cheong Chun Yin v Attorney-General [2014] 3 SLR 1141 (“Cheong Chun Yin”), the court had to consider the effect of s 33B(4) of the MDA on the court’s jurisdiction to review the Public Prosecutor’s decision as to whether any person had substantively assisted the Central Narcotics Bureau (“CNB”) in disrupting drug trafficking activities within or outside Singapore. Section 33B(4) provides:

Tay Yong Kwang J held that the effect of s 33B(4) was that the Public Prosecutor has the “sole discretion” whether to certify that a person has substantively assisted the CNB and his “exercise of discretion can only be challenged [by judicial review] on the grounds of bad faith and malice”. Tay J further found that unconstitutionality, though not expressly mentioned in s 33B(4), is another ground for challenge. This reading was supported by the statement of the Minister of Law during the Second Reading of the Misuse of Drugs (Amendment) Bill (No 27 of 2012) that the Public Prosecutor’s discretion is subject to judicial review, either on bad faith, malice or unconstitutionality.

In the present case, the term “sole discretion” is conspicuously missing from s 106 of the LPA. Further, there is no such clear statement by Parliament of an intention to restrict judicial review over decisions made by the parties named in s 106. As I have mentioned earlier at [26], clear and explicit words indicating Parliament’s intention must be present before the court will relinquish its supervisory jurisdiction over inferior tribunals or public bodies performing public functions. Section 106, whether taken on its own or when read against the disciplinary framework of the LPA, does not have such clear and explicit words.

In addition, reading s 106 to exclude judicial review over decisions made by the parties named therein would sit somewhat uncomfortably with s 91A of the LPA. If s 106 had the effect of restricting judicial review over a DT’s decisions to bad faith and malice, it would have been unnecessary for Parliament to further introduce s 91A to exclude judicial review except as provided in ss 82A, 97 and 98.

In conclusion, I am of the view that the RC’s findings and decisions are susceptible to judicial review.

Whether Mr Sharma has sufficient standing

I come to the issue of whether Mr Sharma has sufficient standing to bring the present judicial review proceedings. This issue was broken down into two sub-issues by the parties:

(a) Whether Mr Sharma had sufficient standing to make the Complaint to the Law Society; and

(b) If so, whether Mr Sharma has sufficient standing to bring the present judicial review proceedings.

Mr Sharma’s standing to make the Complaint to the Law Society

At the core of this sub-issue lies the question of whether a complainant is required to establish standing when making a complaint against a solicitor to the Law Society. This question was first raised during the hearing of the application for the ad hoc admission of Michael Fordham QC before Chong J (see [15] above). As Chong J highlighted, this question has hitherto not been considered in our courts. However, as it was unnecessary for Chong J to come to a definitive conclusion on the issue for the purposes of the ad hoc admission, he declined to answer it and left the issue to be fully explored and determined during the present application. Nonetheless, Chong J did express some preliminary observations on the matter which I will address shortly.

The Law Society was in agreement with Mr Sharma that a person need not establish standing to make a complaint to the Law Society. Even if standing needed to be established, the RC had decided that Mr Sharma had standing to make his complaint and that should be the end of the matter.

The Attorney-General argued that Mr Sharma must show he has standing to make a complaint. He argued that whether a person has standing must be considered in the light of who the allegedly violated principles of professional conduct were meant to protect and the nature and subject matter of the complaint. Considering that Mr Sharma’s complaint pertained to WP’s conduct in the taxation proceedings and that he was a “stranger” to those proceedings, he did not have standing to make his complaint. In other words, the Attorney-General’s submission was that only parties to litigation proceedings may make a complaint to the Law Society about a matter arising from such proceedings.

As I mentioned at [10] above, the RC had proceeded on the premise that Mr Sharma has standing to make the Complaint. I am aware that the court’s role in judicial review proceedings is not to interfere with the merits of the RC’s decision. However, if standing is indeed a requirement to make a complaint, and the RC had erroneously decided that Mr Sharma’s standing was not in issue, then the RC would be acting outside its jurisdiction. Therefore, the RC’s view on Mr Sharma’s standing to make the Complaint does not preclude the court from enquiring into this issue.

The starting point of the analysis would be the LPA and the rules made thereunder. Section 85 of the LPA provides, inter alia:

Section 2(1) of the Legal Profession (Disciplinary Tribunal) Rules (Cap 161, R 2, 2010 Rev Ed) (“LP(DT)R”) provides:

Section 85(1) uses the words “any complaint of the conduct of an advocate and solicitor”. On its face, s 85(1) provides that the subject matter of a complaint may be varied. It also provides the manner in which a complaint is to be made, ie, in writing, accompanied by a statement as to whether there are other complaints arising from the same facts against the same solicitor, and supported by a statutory declaration. Section 85(1), however, does not address who may make a complaint. Similarly, s 2(1) of the LP(DT)R only provides that a complainant is the person who has made a complaint but does not address whether there is any limit on who that person might be.

The legislative history of s 85 provides some insight to the correct analysis. Prior to 1993, s 85 of the LPA (Cap 161, 1990 Rev Ed) provided, inter alia:

The old s 85(1) appears to contain two limbs: (a) an application that a solicitor be dealt with under Part VII; and (b) a complaint touching on the conduct of a solicitor in his professional capacity. The latter limb caused some degree of confusion previously as to whether there was a distinction between the two limbs. The CA in Law Society of Singapore v Ang Boon Kong Lawrence [1992] 3 SLR(R) 825 (“Lawrence Ang”) clarified the matter and held that there was no material difference between the two, and that a complaint can be properly considered as an application under the old s 85(1) (see [17]–[18]). Shortly after the decision in Lawrence Ang, Parliament amended the LPA via the Legal Profession (Amendment) Act 1993 (Act 41 of 1993). One of the amendments was the removal of the first limb of the old s 85(1) and the words "in his professional capacity”, such that s 85(1) then read:

During the Second Reading of the Legal Profession (Amendment) Bill (No 34 of 1993), the Minister for Law specifically referred to cl 15 of the Bill, which is the clause that introduced the amendments to the old s 85(1) referred to in the previous paragraph. However, no reference was made to the removal of the first limb of s 85(1) and the effect it was intended to have. The Minister instead focused on the reasons for removing the words “in his professional capacity” and for introducing the predecessor of the current s 85(4)(a) of the LPA. I reproduce this part of the Minister’s speech in full (Singapore Parliamentary Debates, Official Report (12 November 1993) vol 61 at col 1164):

From the legislative history of s 85(1), it appears that the statutory position before the Legal Profession (Amendment) Act 1993 was that any person may make an application or a complaint against a solicitor to the Law Society. Although the words “any person” were removed in 1993, Parliament made no statement to the effect that this removal was meant to restrict the type of persons who may make complaints. In fact, when considered in the light of the CA’s decision in Lawrence Ang, it is likely that Parliament’s intention was simply to remove the first limb of the old s 85(1) because it had become otiose (especially after removing the words “in his professional capacity”) and not to introduce a new standing requirement for the making of complaints.

In Re Fordham, Michael QC, Chong J observed that ss 85(2) and (3) of the LPA, which empower specific public institutions and office-holders to refer information touching upon the conduct of a solicitor to the Law Society, may sit uncomfortably with s 85(1) if any person could file a complaint under s 85(1). Chong J observed at [33]:

With respect, I do not think that interpreting s 85(1) to mean that any person can make a complaint would be odd when juxtaposed against ss 85(2) and (3). Sections 85(2) and (3) have been in existence pre-1993 (see, for example, the Legal Profession Act (Cap 161, 1985 Rev Ed)). This means that these provisions co-existed with the old s 85(1) which, as I have noted earlier at [57], allowed any person to make an application or a complaint about the conduct of a solicitor. Furthermore, there is no indication that Parliament removed the words “any person” from the old s 85(1) in order for it to be read harmoniously with ss 85(2) and (3) when the words “Any complaint” still remain in the provision. From at least a historical standpoint, allowing any person to make a complaint under s 85(1) would not be at odds with ss 85(2) and (3). Further, there may well be a distinction between making a complaint and referring information. The former suggests a specific grievance. The latter may but does not necessarily amount to a complaint and can be the communication of some unease over conduct which merits further inquiry. That is why the latter is restricted to the persons named in ss 85(2) and (3).

I am reinforced in my view that Parliament had no intention to restrict the kind of persons who may make a complaint by the rationale underlying why solicitors are disciplined for professional misconduct. The rules of professional conduct that govern solicitors in Singapore and the disciplinary process by which they are enforced are established with the aim of maintaining the high standards and good reputation of the legal profession.

While disciplinary proceedings may have in certain situations the corollary effect of righting the wrongs that the solicitor’s conduct may have inflicted upon individuals, the disciplining of a solicitor for professional misconduct goes beyond the interests of the complainant. This is why disciplinary proceedings against a solicitor do not come to an automatic end when the complainant withdraws the complaint, no matter how voluntarily or unreservedly (Manjit Singh s/o Kirpal Singh and another v Attorney-General [2013] 2 SLR 1108 (“Manjit Singh (HC)”) at [100]). In Manjit Singh (HC), Vinodh Coomaraswamy JC held at [101]:

As the primary reason for disciplining solicitors is to maintain the high standards and good reputation of the profession, it follows that it should not matter who brings the complaint to the Law Society. If the conduct of the solicitor complained of is so egregious that it brings the profession into disrepute, and if the complaint has substance and is backed up by evidence, there is a public interest in having such conduct investigated and the solicitor disciplined regardless of who makes the complaint.

No doubt, the public interest in upholding the integrity and standing of the legal profession must be balanced against the impact disciplinary proceedings have on the solicitor’s reputation and livelihood, and the strain it places on the solicitor and the Law Society’s limited resources. In Re Fordham, Michael QC, Chong J noted at [31] that if any person may make a complaint to the Law Society, the Law Society may become inundated “with frivolous complaints by persons with no interest other than being busybodies.” He also noted that this may be undesirable since it causes the limited resources of the Law Society to be unduly stretched which, in turn may delay the prosecution of more meritorious complaints. I appreciate the concern about busybodies. Nonetheless, I am of the view that the scales fall in favour of the public interest in maintaining the profession’s integrity.

First, there are safeguards in place to prevent both the Law Society and the solicitor from being flooded with frivolous complaints.

(a) Every complaint must be accompanied by a statutory declaration (see s 85(1)(c)). This requirement was specifically introduced to emphasise the seriousness of complaints against solicitors and that complainants should take steps to ensure the accuracy of their complaints.

(b) The IC is empowered to order the complainant to deposit a sum not exceeding $1,000 (see s 85(18)).

(c) The IC can order the complainant to pay costs if the complaint is found to be frivolous or vexatious (see s 85(19)(a)).

(d) A party making a knowingly false complaint shall be guilty of an offence and be liable to a fine not exceeding $5,000 (see s 85(21)).

(e) The review committee itself functions as a filter. The review committee acts as the floodgate not by dismissing a complaint because the complainant has no standing, but by dismissing the complaint because it is frivolous, vexatious, misconceived or lacking in substance.

Secondly, in relation to the concern over the limited resources of the Law Society, the Law Society itself has taken the position that any person may make a complaint. It is willing and prepared to, at the minimum, have a review committee review any complaint from any person as long as the complaint complies with the statutory requirements of s 85(1) of the LPA (see s 85(1A) read with s 85(6)). The mechanism of the review committee has been around for the past 14 years and there is no evidence that allowing any person to make a complaint has inundated the Law Society.

Interestingly, the Law Society has itself represented to the general public that any person may make a complaint. On its website, the Law Society publishes a guidance note on “complaints against a lawyer”. Under the header of “A Complaint of Professional Misconduct Under Section 85(1) Legal Profession Act”, the question of “[w]ho can make the complaint” is asked. In response, the Law Society states that “[a] complaint may be made by a client against his own lawyer or any person against a lawyer who has not been appointed to act for him” [emphasis added].

Thirdly, a requirement of standing like the one suggested by the Attorney-General (see [54] above) will be too restrictive although easy to implement. For example, if a non-party is aware that a defendant’s solicitor had deliberately misled the court in litigation proceedings, that non-party should be entitled to complain to the Law Society about it. I do not think it suffices to say that it should be left to the plaintiff to complain. The plaintiff may not know of the misconduct. Also, a plaintiff who has received full payment from a defendant may not wish to trouble himself any further to make a complaint. It must be in the public’s interest and the profession’s interest for the non-party to be entitled to make the complaint.

In Re Fordham, Michael QC, Chong J considered at [31] a demarcation which is arguably different, ie, that only those persons who are able to demonstrate sufficient interest may make a complaint, though he did not decide the point. This appears to be a wider demarcation than that contended for by the Attorney-General.

However, it seems to me that this demarcation may still be unduly restrictive or would be difficult to implement as seen in the illustration discussed above. Would the non-party be able to demonstrate “sufficient interest”?

A different illustration may throw further light on the argument. What if a stranger were to complain that a solicitor is taking advantage of his illiterate clients by overcharging them? The stranger produces copies of invoices rendered by the solicitor to his clients which, on the face of them, do have alarming information indicative of gross overcharging. Should the complaint be dismissed because he has no locus standi? I am of the view that such a complaint should not be dismissed for lack of locus standi. However, if the stranger were to complain about overcharging of illiterate clients but is unable to produce copies of the invoices or the copies do not on the face of them suggest overcharging, then such a complaint could be considered as having been made without substance and it would be open to a review committee to direct the Council to dismiss it.

I am mindful that most complaints are made by clients against their own solicitors and some are made by opponents of solicitors. However, that does not mean that a stranger may never complain about a solicitor. The question is where the line should be drawn. In my view, it should be drawn not by imposing some sort of locus standi requirement, but by considering whether there is substance in the complaint. This is not to say that a complainant’s interest in the subject matter of the complaint is totally irrelevant. It may be taken into account as a factor in the overall assessment of the complaint.

The Attorney-General also submitted that all the cases relied on by Mr Sharma and the Law Society only show that a complaint against a solicitor need not necessarily be lodged by the client. They do not show that anyone is entitled to lodge a complaint. The Attorney-General contended that these cases are therefore consistent with his position, ie, who can lodge a complaint depends on the nature and subject matter of the complaint. He cited a DT’s decision in The Law Society of Singapore v Koh Lee Kheng Florence [2005] SGDSC 7 (“Florence Koh”) as authority for its position.

First, I have already mentioned that the Attorney-General’s proposed test is too restrictive (above at [68]). Secondly, Florence Koh only stands for the proposition that in order for a solicitor to breach r 25(a) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“LP(PC)R”), it must be shown that his client’s interests were affected by the solicitor’s own interests. If the client’s interests were unaffected, then there would be no breach of r 25(a) even if the partners in the solicitor’s firm were of a contrary view. Florence Koh does not address the issue of standing to make a complaint.

In conclusion, I find that Mr Sharma does not need to establish standing before he may make a complaint to the Law Society under s 85(1) of the LPA.

Standing to bring judicial review proceedings

The Law Society took the position that Mr Sharma had sufficient standing to bring the present judicial review proceedings. The Law Society, however, also proposed an alternative position. It proposed that perhaps a distinction should be made between a complainant who was the “victim” of the solicitor’s conduct and a complainant who was not (though both having sufficient standing to make the complaint), and that only the former should have sufficient standing to bring judicial review proceedings. In other words, Dr Lim, being the true “victim” of the Complaint, was the proper person to bring the present judicial review proceedings if she had made the Complaint.

I accept the Attorney-General’s statement of the law in Singapore on locus standi to bring judicial review proceedings (at [77] above). However, I do not agree that Mr Sharma did not have any of his private rights interfered with. I have found that Mr Sharma was entitled to make the Complaint to the Law Society under the LPA. The RC, in turn, is statutorily obliged to review the Complaint in a manner that is legal, rational and procedurally proper, regardless of the outcome. This duty is owed not simply to the public in general, but to Mr Sharma personally as the complainant. It follows that Mr Sharma has a private right for his complaint to be reviewed by the RC legally, rationally and with procedural propriety. It is precisely an alleged violation of this right that Mr Sharma is basing his present application. It seems incongruous that Mr Sharma may make a complaint but has no standing to seek judicial review against the dismissal of his complaint (if, as I have decided, the decision of the review committee is susceptible to judicial review). Furthermore, if Mr Sharma may make the complaint, he may, as the complainant, exercise other rights. For example, if an IC were appointed to hear any of his complaints and if the Council were to determine thereafter that a formal investigation is not necessary and therefore no DT has to be appointed, Mr Sharma may apply to a judge of the High Court to direct the Law Society to apply to the CJ to appoint a DT (see [30] above). It seems incongruous that he can do this but he has no standing to seek judicial review if his complaint is dismissed based on the decision of the RC.

I therefore find that since Mr Sharma may make the complaint, he may also seek judicial review of the decision of the RC. The latter follows from the former. It is therefore not necessary for me to consider the alternative proposed by the Law Society.

Since I have consolidated the leave application with the substantive merits, I do not need to decide whether there is an arguable case or prima facie case of reasonable suspicion in favour of granting the public law remedies sought by Mr Sharma. Instead, I proceed to consider the substantive merits.

The substantive merits

For the sake of convenience, I set out again the three grounds that Mr Sharma relied on:

(a) The RC erred in law and/or misdirected itself as to the law, in concluding that professional misconduct through gross overcharging could not be established by objective evidence that the fees claimed were grossly excessive in the “absence of other impropriety” (“Ground 1”);

(b) The RC erred in law and/or misdirected itself as to the law in its conclusion that the pursuit of the fees claimed could not constitute professional misconduct on the basis that they reflected the work of all the solicitors involved (“Ground 2”); and

(c) The RC’s reasons for concluding that the complaint against Mr Yeo SC were lacking in substance, were legally inadequate and unsustainable in law, being incapable of sustaining the RC’s conclusion, and having no reasonable or proper evidential basis, and were not open to the RC acting reasonably and lawfully (“Ground 3”).

Ground 1

The first ground that Mr Sharma relied on was that the RC had made an error of law. It is well-established that illegality is a basis for judicial review. The oft-quoted passage of Lord Diplock on illegality in Council of Civil Service Unions and others v Minister for the Civil Service [1985] AC 374 (“GCHQ”) at 410 is as follows:

This passage was cited with approval by the CA in Attorney-General v Venice-Simplon Orient Express Inc Ltd [1995] 1 SLR(R) 533 at [10]. The ground of illegality includes errors of law made by the tribunal or decision-making body in coming to its decision. As Lord Pearce held in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 195 (cited with approval by F A Chua J in Leong Kum Fatt v Attorney-General [1983–1984] SLR(R) 357 at [11]):

The parties’ arguments on Ground 1 were as follows:

(a) Mr Sharma argued that the correct position in law is that “the claiming of grossly excessive fees can be professional misconduct in the absence of other impropriety”. He contended that the RC had therefore misdirected itself as to the law by reasoning that “professional misconduct through gross overcharging could not be established by objective evidence that the fees claimed were grossly excessive in the ‘absence of other impropriety’”.

(b) The Law Society argued that the correct position in law is that the “mere fact that a bill of costs is significantly reduced on taxation does not necessarily mean that there has been gross overcharging amounting to professional misconduct”. It contended that the RC was merely applying this reasoning in coming to its decision and was therefore not erroneous.

(c) The Attorney-General argued that the correct position in law is that the claiming of grossly excessive costs between a party and another (“P & P”) does not constitute professional misconduct in the absence of other impropriety and that this was the reasoning which the RC applied. It contended that the principle which Mr Sharma argued was the correct position in law only applied in the context of solicitor-and-client (“S & C”) costs and not to P & P costs.

As mentioned above at [7], Mr Sharma relied on an opinion from Mr Ian Winter QC. Mr Winter QC relied on r 38 of the LP(PC)R. This rule states:

Mr Winter QC said in para 9 of his opinion that Andrew Phang Boon Leong JA had “made [it] clear in Dr Susan Lim v Singapore Medical Council [2013] HGSC (sic) 122” that WP’s demand for costs against Dr Lim in the sum of £1,025,009.37 “amounted to the charging of costs for the purpose of Rule 38”. I note that the judgment of the CA in that case is reported as Lim Mey Lee Susan v Singapore Medical Council [2013] 3 SLR 900 and I also assume that Mr Winter QC was intending to refer to 1,025,009.37 in local and not British currency. Furthermore, the figure of “1,025,009.37” appears to be a typographical error and should have referred to the figure of “1,007,009.37” instead. This is the total sum claimed in the three Bills of Costs. In any event, the short point is that Phang JA was referring to the situation of a solicitor overcharging his client and not to P & P costs. Therefore, he did not say that an over-claim of P & P costs “amounted to the charging of costs for the purpose of Rule 38”.

Mr Sharma’s Statement in support of OS 593 also appeared to rely on r 38. However, in his submissions, he accepted that r 38 applies only to a solicitor and his client.

In Mr Winter QC’s opinion, there is no difference in terms of professional misconduct whether the gross overcharging was in relation to the solicitor’s own client or to his opponent’s client (see para 40 of his opinion). Mr Winter QC also said that, “Parties to litigation are entitled to trust their opponents not to seek fees that either have not been agreed between the lawyer and his client or which fees are grossly excessive” (see para 41 of his opinion). What I understood Mr Winter QC to mean was that parties to litigation are entitled to expect a certain standard of conduct from their opponents.

It is clear that the words “to trust” do not mean that there is a trust relationship between a party and the solicitor of his opponent. This is in contrast to the relationship of trust and confidence between a client and his own solicitor (see Lim Mey Lee Susan v Singapore Medical Council [2013] 3 SLR 900 at [50]). A client looks to his solicitor to protect his interests. Indeed, in Veghelyi v The Law Society of New South Wales CA 40257/91 (6 October 1995) (unreported), the court observed that, “[c]lients are, or may frequently be, in a vulnerable position vis-à-vis their solicitors”. On the other hand, an opponent has his own solicitor to protect his interests. Even if he is not represented by a solicitor, he knows that he cannot look to his opponent’s solicitor to protect his interest.

The Attorney-General submitted that a solicitor would not be liable for misconduct even if he made a grossly excessive claim for his client, in the absence of other impropriety. Likewise, if a solicitor were to make a completely misconceived non-monetary claim for his client.

Secondly, r 69 of the LP(PC)R states that “An advocate and solicitor shall not, in his letter of demand, demand anything other than that recoverable by due process of law”. I am of the view that this rule supports a wider proposition, ie, that a solicitor must not deliberately present a claim that is unsustainable whether it is a monetary claim or not. If this proposition is correct, then it should follow that a solicitor must also not deliberately present a claim for an amount which is unsustainable.

One may argue that the availability of various sanctions under O 59 r 8(6) and (7) of the Rules of Court make it undesirable or unnecessary to impose any further responsibility on a solicitor. I do not think so. Those provisions apply only if there is taxation. The gross over-claim may be made even before taxation. Furthermore, the sanctions are not dependent on proof of any misconduct. If there is evidence of misconduct, then further sanctions should be available.

While it may be simpler to implement a proposition that a gross over-claim in a P & P situation will never in and of itself constitute misconduct, I am of the view, for the reasons stated above, that this is not the correct proposition. While this may create difficulties in implementation, these difficulties do not outweigh the interest of the public and the profession as a whole. The following guidelines may assist.

Although gross over-claiming may constitute misconduct in a P & P situation, the application of that principle is vastly different from a case of overcharging as between a solicitor and his client.

For example, a review committee is entitled to take into account factors such as, but not limited to, the following:

I set out the relevant paragraphs of the Decision Letter. Under the heading “Proceedings of the RC”, it stated at para 9 as follows:

Para 14(a)(iii) of the Decision Letter stated the following in relation to Limb 1 of the Complaint:

Mr Winter QC had taken into account the larger sum when he concluded that WP had over-claimed by 300%. I do not think that is a correct approach. Using the amended amount as the basis for comparison and Mr Sharma’s table of figures at p 7 of the Complaint, the eventual figures after the review was conducted were:

The Complaint alleged that the difference for the first two bills (between the amount claimed and the amount allowed) was 200%, and that the difference for the third was 171.4%.

While $600,000 is double that of $300,000, the difference of $300,000 is 100% more than the $300,000 allowed. Likewise, for the third bill, the difference of $50,000 is actually 71.43% more than the $70,000 allowed.

On the other hand, looking at it from another angle, the reduction of $300,000 for the first two bills is 50% of the $600,000 claimed. Likewise, the reduction of $50,000 for the third bill is 41.67% of the $120,000 claimed.

Whichever way one looks at it, and bearing in mind the factors stated above at [103], the difference is not so significant or stark in itself as to constitute misconduct.

Ground 2

I begin by identifying the reasoning applied by the RC. Then I will determine whether that reasoning reveals an error of law. The relevant portion of the Decision Letter is found in para 14(a)(iii), which I reproduce:

In order to understand what the RC meant, it is necessary to understand first Mr Sharma’s allegation in relation to Mr Yeo SC’s and Ms Ho’s effective hourly rate being excessive. In the Complaint, Mr Sharma made the argument that Mr Yeo SC and Ms Ho were effectively charging hourly rates of more than $2,000 per hour. Apparently, he obtained this figure from the Notes of Evidence of the taxation hearing before the AR (referred to above at [5]) where the AR noted that “Mr Yeo SC and [Ms Ho] charged more than $2,000 an hour”. It appears that the AR in turn derived the figure from the Notice of Dispute filed by R&T for Dr Lim in relation to BC 65. That notice had alleged that Mr Yeo SC’s and Ms Ho’s billing rate under BC 65 was $2,121.04 per hour and $2,258.28 per hour respectively. R&T also applied a similar approach in the Notice of Dispute for BC 66 but not for BC 71 as BC 71 did not attribute the overall amount claimed to any particular solicitor. It is therefore important to see how R&T arrived at its figures in the Notice of Dispute for BC 65.

In Section 1 of BC 65, a total of 1,034.3 hours was claimed under the header “Time spent”, which was sub-divided between seven solicitors as follows:

However, the Bill of Costs later identified only two counsel by name, Mr Yeo SC and Ms Ho, for which amounts of costs were claimed, presumably because there was no certificate for more than two solicitors. For Mr Yeo SC, the amount stated below his name was $373,831.78 and for Ms Ho, the amount stated below her name was $242,990.66. R&T had arrived at their figures of Mr Yeo SC’s and Ms Ho’s hourly billing rate by simply dividing the amounts claimed below their names by the actual number of hours each of them had spent, ie, 176 hours and 107.6 hours respectively. However, in so doing, R&T had not taken into account the number of hours spent by other solicitors in WP. Likewise for BC 66.

In my view, what WP did for BC 65 was to include the hours spent by other solicitors in addition to the hours spent by Mr Yeo SC and Ms Ho when WP claimed the aggregate amount. Otherwise, there would be no purpose in WP setting out the names of various solicitors and the hours they had spent. WP was entitled to do this provided there was no overlap in compliance with O 59 r 19.

In setting out the names of two specific solicitors for the eventual amounts claimed leading to the aggregate amount, WP was not foregoing the hours spent by the other solicitors. It had simply thought that because of the Two Solicitors Rule, it was supposed to identify two specific solicitors by name, but that is not correct. What WP should have done was to simply claim the aggregate amount for two solicitors generally rather than to try and apportion the amount between two specific solicitors who did not do all the work for which the claim is being made.

It follows that R&T’s approach to derive Mr Yeo SC’s and Ms Ho’s hourly rates, which excluded the hours spent by other solicitors in WP, was not correct, and the AR should not have adopted R&T’s approach. Therefore, Mr Sharma’s allegation about the hourly rates under Ground 2 which was derived from R&T’s approach was also not correct. I add that it is because of R&T’s incorrect approach that the hourly rate of Ms Ho appeared to be higher than that of Mr Yeo SC.

There was no error of law by the RC, and therefore, I dismiss Ground 2.

Ground 3

Under this ground, Mr Sharma relied on three different bases to impugn the RC’s decision, viz, illegality, irrationality and procedural unfairness. He contended that the RC adopted the following reasoning:

(a) Mr Yeo SC was not involved in drawing up the Bills of Costs or in appearing in the taxation proceeding;

(b) Therefore, Mr Yeo SC could not be guilty of any professional misconduct in respect of Mr Sharma’s complaints.

Mr Sharma made two different arguments in relation to this reasoning. First, he submitted that this reasoning was erroneous in law or irrational because (a) was incapable of sustaining (b). Secondly, he argued that, further or alternatively, coming to conclusion (b) based on WP’s “clarification” was erroneous in law or irrational. Mr Sharma also made the further argument that it was procedurally unfair and a breach of natural justice that Mr Sharma was not informed of WP’s clarification and provided with an opportunity to respond.

The Law Society argued that Ground 3 was really an attempt to appeal on the merits of the RC’s decision. It contended that it was clear on the face of the record that the RC had taken into account the applicable law, attempted to obtain any relevant evidence, and came to a conclusion based on the law and evidence. Further, it was neither irrational nor unfair for the RC to rely on WP’s clarification as it was the only course open to the RC, especially considering the lack of details in the Complaint. Mr Sharma neither had a right to respond to WP’s clarification nor a right to be kept “fully informed” of WP’s response to his complaint.

The law in relation to irrationality as a basis for judicial review is famously set out by Lord Diplock in GCHQ at p 410:

Contemporary formulations of the irrationality basis asks whether the decision falls “within the range of responses which a reasonable decision-maker might have made in the circumstances” (see Soomatee Gokool and others v Permanent Secretary of the Ministry of Health and Quality of Life and another [2008] UKPC 54 at [18]; see also De Smith’s Judicial Review at para 11-006). A decision can be accurately described as “irrational” if the evidence taken as a whole is not reasonably capable of supporting the decision of the decision-maker as to his or her finding (see Ng Hock Guan v Attorney-General [2004] 1 SLR(R) 415 at [59] citing De Souza Lionel Jerome v Attorney-General [1992] 3 SLR(R) 552 with approval). Further, the court must always be alive to the danger of delving too deep into the merits of the decision. As the learned authors of De Smith’s Judicial Review stated at para 11-004:

I now come to what the RC decided. Para 8 of the Decision Letter, under the header “Proceedings of the RC”, stated:

As can be seen, the RC was of the view that a solicitor can only be guilty of professional misconduct based on his or her own personal conduct. As a result, the RC deemed it necessary to obtain clarification from WP as to the respective roles played by Mr Yeo SC and Ms Ho in relation to the matters complained of and it so did.

According to the Decision Letter, WP’s reply in relation to this issue was as follows:

The RC then went on to make the following findings in relation to Limb 1 of the Complaint:

In relation to Limb 2 of the Complaint, the RC found as follows:

Nonetheless, I am of the view that it was not for the RC to find that Mr Yeo SC was not involved in the matter complained of and therefore not guilty of any professional misconduct. The only evidence before the RC in relation to Mr Yeo SC’s role and involvement in the matter complained of was WP’s clarification in this regard. WP’s clarification did not appear to be supported by any documentation or objective evidence except insofar as the Notes of Evidence of the taxation proceedings show that Mr Yeo SC was not present at the hearings. The assertion by WP was self-serving in nature and stood in direct contradiction to the position taken by Mr Sharma. WP’s clarification must also be viewed in the light of the following background facts:

(a) The file reference number on WP’s Letter of Proposal to Mr Sharma and WP’s response to Mr Sharma’s counter-proposal dated 20 November 2012 bore, inter alia, “AY”. It is not disputed that “AY” refers to Mr Yeo SC.

(b) The Bills of Costs similarly contained “AY” in the file reference number. They also indicate that the solicitor in charge was: “1. Alvin Yeo SC”.

(c) Mr Yeo SC was one of the solicitors who acted against Dr Lim in the underlying proceedings and that the Bills of Costs claimed, amongst others, his fees for those proceedings.

The review committee was introduced to be a “sifting mechanism” and its mandate is a limited one. Having said that, I am not saying that a review committee is never entitled to come to findings of fact based on answers that the solicitor (or the complainant for that matter) provides to the review committee in response to questions from it. A review committee may be able to come to findings of fact for it to determine whether a complaint is frivolous, vexatious, misconceived or lacking in substance. Section 85(7) of the LPA further provides a review committee with the power to have the complainant or solicitor answer any inquiry. However, it is not for a review committee to perform the task of an IC and make findings on disputed facts especially when the finding is based on a self-serving statement. The RC implicitly recognised this. The Decision Letter stated at para 5 that, “the RC is entitled to obtain verification of the status and facts where this do not require any consideration of credibility, weight or finding on the merits”. Yet it seems that it proceeded to accept WP’s explanation at face value which would involve, inter alia, a consideration of WP’s credibility. It may turn out subsequently that Mr Yeo SC was indeed not involved at all in the matters complained of. Nevertheless, that was not a conclusion for the RC to make in the circumstances.

Therefore, although the RC’s interpretation of WP’s clarification was not irrational nor necessarily an error of law, it had exceeded its remit. The error would in principle entitle the court to set aside the RC’s decision in respect of Mr Yeo’s involvement. In the circumstances, it is unnecessary for me to consider whether Mr Sharma had a right to respond to WP’s clarification.

Consequences of my findings

To summarise my findings thus far, I have found that the RC did not make any error of law under Grounds 1 and 2 and I have dismissed both grounds. I have, however, found that the RC exceeded its remit under Ground 3. I now proceed to consider the impact my findings would have on the RC’s decision for the purposes of the present judicial review and whether Mr Sharma is entitled to the reliefs claimed.

Later in the Complaint, he said :

As a complainant, Mr Sharma has to make a positive assertion/complaint. He is not in the category of persons who may refer information touching upon the conduct of a solicitor to the Law Society (see [60]). Therefore, if there was no complaint as such then the RC should not have treated it as one.

On the other hand, it may be said that there was a complaint by Mr Sharma as summarised in Limb 2, however indirectly it may have been made. It seems to me that Limb 2 was really a subset of Limb 1 which was the complaint. Mr Sharma was complaining that WP had grossly over-claimed against Dr Lim and he then wondered whether WP might even have claimed more against Dr Lim than what SMC was liable to WP for. Limb 2 was therefore not a complaint as such. On this basis alone, Mr Sharma’s application to quash the RC’s decision in respect of Limb 2 vis-à-vis Mr Yeo SC should be dismissed.

However, assuming that Limb 2 was a complaint and a distinct one at that, the next point then is whether the court should consider whether there was some basis or material for the complaint.

Mr Sharma submitted that the court should refer the Limb 2 complaint back to the RC (or a newly constituted one) and not consider whether there is any substance in the Limb 2 complaint. This is because it is outside the purview of a supervising court to sift through the evidence and evaluate whether a tribunal was correct to arrive at a certain conclusion (see Re Shankar Alan at [39])

On the other hand, the Law Society submitted that the court may and should decide not to exercise its discretion to quash that part of the RC’s decision on Limb 2 in respect of Mr Yeo SC if the court is of the view that the same decision would still be reached by the RC, citing R v Knightsbridge Crown Court, ex parte Marcrest Properties Ltd [1983] 1 WLR 300 and R v Broadcasting Complaints Commission, ex parte Owen [1985] 2 WLR 1025.

The Law Society also relied on O 55 r 6(7) of the Rules of Court which states that, “The Court shall not be bound to allow the appeal on the ground of misdirection … unless in the opinion of the Court substantial wrong or miscarriage has been thereby occasioned”. I should observe that that provision applies to an appeal and not a review and hence is not applicable to Mr Sharma’s application before this court.

The Attorney-General submitted that the court should not make a quashing order if the outcome would still be the same. He stressed that the court should not act in vain. He relied on R (on the application of Garg) v Criminal Injuries Compensation Authority [2007] EWCA Civ 797, R v Secretary of State for the Home Department, Ex parte Fire Brigades Union and others [1995] 2 AC 513 and R v Mansfield Justices, Ex parte Sharkey [1985] QB 613. The Attorney-General also pointed out that a similar approach is taken by English and Singapore courts where there has been a breach of natural justice, citing Malloch v Aberdeen Corporation [1971] 1 WLR 1578, Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 and Management Corporation Strata Title Plan No 301 v Lee Tat Development Pte Ltd [2011] 1 SLR 998.

Mr Sharma did not contest the proposition that the court has a discretion not to quash the decision of the RC even if the RC had exceeded its remit or made an error in law. His point was that the court should quash the decision and refer the matter back to a review committee.

I am of the view that since the court has a discretion whether to quash the decision of the RC or not, the court should consider whether it ought to issue a quashing order in the circumstances, while bearing in mind not to usurp the function of the RC.

I will now refer to the RC’s report itself as it reflects the flow of the RC’s reasoning better. Paragraph 13(c) of the report stated:

This observation was expanded in para 14(e) of the report which stated:

Although para 14(e) of the report identified two bases of complaint for Limb 2 (ie, the significant reduction in the amounts allowed and the apparent discrepancy in hourly rates), it suggested that the RC had proceeded to seek clarification from WP not because there was substance in the two bases of the Limb 2 complaint but because the RC was of the view that “the true state of affairs could be ascertained quite easily” and “that clarification would be useful in consideration of the matter”. This is confirmed by the fact that the RC subsequently dismissed the two bases of the Limb 2 complaint, as gleaned from para 21(c) of the report which stated:

The above passage is similar to the passage in para 14(a)(iii) of the Decision Letter (cited at [107] and [121] above).

In my view, the RC had erred in its approach here and, ironically, this error was in favour of Mr Sharma as the RC eventually referred Ms Ho to the IC on the Limb 2 complaint. I will now elaborate as to how this came about.

As the Attorney-General stressed in his submission to this court, Limb 2 involved S & C privilege. It is worthwhile for me to mention that it is easy to overlook that such a privilege exists especially when complaints are frequently made by the clients themselves. In such a situation, it may be said that a client impliedly waives the privilege when he makes a complaint so that a solicitor and a review committee or an IC need not concern themselves about such a privilege. This is not so when the complainant is not the client.

It seems to me that the RC had overlooked the point that any request by the RC for a clarification from WP on Limb 2 was likely to intrude on S & C privilege as between WP and the SMC. What the RC should have done was to see first if there was any substance in the Limb 2 complaint before seeking any clarification from WP. If there was no substance, then the matter should have ended there. Instead, what the RC did was to seek clarification from WP even though it had not satisfied itself that there was some substance in the Complaint, thinking that the clarification would resolve the question quite easily. The RC then found that it had run into a brickwall because WP claimed S & C privilege in one of its responses. The RC then considered its options (see paras 10 and 20 of the report which are substantially repeated in paras 11 and 12 of the Decision Letter). Eventually the RC decided not to consider the material for which privilege was being claimed and the RC decided to refer Ms Ho to the IC for the Limb 2 complaint. It seems to me that the RC was distracted by the options it had to consider, in the light of the claim of privilege, and had overlooked the fundamental point as to whether there was any substance in the Limb 2 complaint in the first place.

In a further irony, the RC had referred Ms Ho to the IC on the Limb 2 complaint but not Limb 1 when, ordinarily, a complaint in the nature of Limb 2 has to cross a higher threshold than Limb 1. I say this because if the complaint under Limb 2 were made out, it would mean that there was gross over-claiming by WP which would amount to misconduct. However, the converse is not true – even if there was a gross over-claim which would amount to misconduct, it would not necessarily mean that the Limb 2 complaint was made out. In my view, the RC had referred Ms Ho to the IC on the Limb 2 complaint but not on Limb 1 because of the incorrect approach the RC had adopted.

Therefore, having not received any useable information from WP or SMC due to S & C privilege, the RC was essentially back at its starting point, which was its view that the Limb 2 complaint was not supported by any facts or evidence, ie, that the Limb 2 complaint was lacking in substance. However, instead of directing the Council to dismiss the Limb 2 complaint, the RC referred that complaint in respect of Ms Ho to the Chairman to constitute an IC. In my view, such a course of action was inherently contradictory to the RC’s own findings and was irrational.

I appreciate that the RC’s decision on the Limb 2 complaint in respect of Ms Ho is not before the court for review. In this regard, I agree with the submission of the Attorney-General that there is nothing for this court to do vis-à-vis Ms Ho and it is up to Ms Ho to take whatever steps she wishes regarding the Limb 2 complaint. Instead, it is only the RC’s decision on the Limb 2 complaint in respect of Mr Yeo SC that is before the court for review. It would, however, be incongruous for the court to refer the Limb 2 complaint vis-à-vis Mr Yeo SC back to the RC when the RC had already, in essence, found that the Limb 2 complaint was lacking in substance. Even if the RC did not make the error that it did under Ground 3, its decision on Limb 2 vis-à-vis Ms Ho should still be the same as for Mr Yeo SC, ie, to direct the Council to dismiss it. Accordingly, I was not inclined to exercise my discretion to quash the RC’s decision in respect of Limb 2 vis-à-vis Mr Yeo SC. However, for completeness, I have considered further whether a refusal to quash the RC’s decision would result in some injustice to Mr Sharma. I have done so even though this may entail going into the merits of the remainder of his allegations as those allegations raise important points of principle or approach.

It appears from the Complaint that Mr Sharma was relying on various allegations to draw an inference to support the Limb 2 complaint. The RC had referred to two of the allegations which it dismissed:

The first of these allegations is already dealt with in my discussion of Ground 1, and the second is already covered in my discussion of Ground 2.

It appears to me that Mr Sharma was also relying on the following additional allegations to draw inferences in respect of Limb 2 (as well as Limb 1):

(a) In WP’s without prejudice letter dated 12 March 2012, they had asked for $865,000 for costs, excluding disbursements and GST. When that proposal was rejected, they increased the amount claimed to $1,007,009.37 in the three Bills of Costs which they filed (“Reason A”).

(b) When the Bills of Costs was being reviewed by the judge, after taxation done by the AR, WP had reduced their claim by $287,009.37 (see [6]) (“Reason B”).

However, the question still arises as to whether any of these allegations is applicable to sustain the Limb 2 complaint.

Mr Sharma cannot be in a better position than Dr Lim. As Dr Lim would have been precluded from referring to the without prejudice proposal in any complaint which she might choose to make about over-claiming, Mr Sharma is likewise precluded. Therefore, even though the without prejudice proposal was in fact made it cannot sustain any such complaint.

Even if Mr Sharma were entitled to refer to the proposal, it is not evidence of a gross over-claim, let alone that WP was claiming more than what SMC was liable to pay them. It is in the nature of a without prejudice proposal that the amount proposed is less than the actual claim if pursued. Furthermore, even if no detail or reason was given by WP for claiming more than what it had proposed, it was for WP to justify its claim in taxation. The position remains that the proposal made without prejudice cannot be referred to in order to argue that the claim was grossly excessive or more than what SMC was liable for.

I now come to Reason B. Was the reduction by WP of $287,009.37 during the hearing of the review application as sinister as Mr Sharma was suggesting? Before I continue, I will address a point made by Mr Sharma in oral submissions. It was argued that this reduction was a distinct complaint although it was also part of the overall complaint about gross over-claiming. I do not consider this reduction as a distinct complaint. Furthermore, it was not treated as such by the RC, and the Statement in support of the application before me did not allege that the RC had erred in failing to consider it as a distinct complaint.

In the Complaint, Mr Sharma stressed (at p 7) that the reduction of this sum demonstrated that WP “had already attempted to overcharge [Dr Lim] by” the same amount. There cannot be any dispute that since WP had reduced their claim by $287,009.37 for the review hearing, there was an over-claim by WP of this amount during the initial taxation. However, in my view, that is not the point. The point is whether this was done deliberately.

The dispute between SMC and Dr Lim was not a simple one. The taxation was also not simple. I reiterate that although WP could claim for two solicitors only, in fact more than two were involved. In such a situation, one cannot assume that the existence of an over-claim necessarily means that it was done deliberately.

Mr Sharma submitted that a mere acknowledgment of an error by a solicitor will not necessarily absolve the solicitor of all wrongdoing. That is true. However, it is also true that an acknowledgment of an error is not necessarily evidence of misconduct. The circumstances under which the error was made should be considered.

WP disclosed the specific over-claim for the taxation review which I had heard. It was not as though its back was to the wall and the court was close to discovering that over-claim when WP revealed it. Thus Mr Sharma stopped short of saying that the court would have discovered the over-claim in any event.

In the circumstances, I am of the view that WP had made the disclosure voluntarily and no adverse inference should be drawn from such a disclosure. Otherwise, WP would be damned for disclosing the over-claim and damned if they did not and the error was subsequently discovered. That cannot be right for it will discourage solicitors from redressing their errors. Therefore, the fact that WP had voluntarily disclosed the over-claim cannot sustain any complaint of misconduct let alone the Limb 2 complaint.

Furthermore, there was no complaint by R&T about Limb 2 (or even Limb 1) during the taxation. On this point, the Attorney-General had submitted that this omission precluded Dr Lim or Mr Sharma from raising the Limb 2 complaint. He relied on Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 (“Pamplin”) to submit that Dr Lim should have raised the point in taxation so that the SMC could have elected then whether to waive S & C privilege and not be troubled by this issue when the Complaint was made later. He submitted that the Complaint constituted re-litigation and encourages satellite litigation.

Mr Sharma submitted that the Complaint was not re-litigation. He was not seeking to go behind the result of the taxation and was instead acting upon that result. He also submitted that the omission to make any complaint of misconduct in taxation did not preclude him from making the Limb 2 complaint.

I agree that this was not a case of re-litigation. Whether it was satellite litigation is neither here nor there. The case of Pamplin does not assist the submission of the Attorney-General. In that case, the question was whether a litigant was entitled to see certain material from his opponent which was filed for taxation proceedings and which was available to the taxing master. The court was considering a conflict between two legal principles. The first was that a party may not make secret communications to the court. The second was the right of a party not to disclose to his opponent documents or transactions covered by legal professional privilege. It was in that context that the court said that a litigant has to choose what evidence he will adduce and to what extent he will waive his privilege. That case is not authority for the proposition that failure to raise an issue in taxation precludes the raising of that issue in a subsequent complaint about the conduct of a solicitor.

Therefore, I am of the view that the omission to raise the point in taxation did not preclude Dr Lim, or Mr Sharma, from raising it in a complaint. However, the omission to do so did militate against the validity of such a complaint.

In the first place, as I mentioned already, the without prejudice proposal cannot be referred to in the Complaint. As for the over-claim of $287,009.30, this was revealed voluntarily as I have said.

In the circumstances, there was still no basis to draw any inference to support the Limb 2 complaint. Therefore, I am of the view that I should decline to quash the RC’s decision on Limb 2. I am satisfied that this will not be an unjust result to Mr Sharma.

Accordingly, I dismiss Mr Sharma’s application in this regard.

I add that the reasons I have considered would also not support an allegation of misconduct under Limb 1 of the Complaint for similar reasons.

Summary and Remedies

I summarise my findings in relation to the substantive merits of this application:

(a) Under Ground 3, I find that it was not for the RC to reach the conclusion that it did based on a self-serving statement. However, there is no reason to disturb the RC’s decision in respect of Limb 2 of the Complaint vis-à-vis Mr Yeo SC.

(b) Under Ground 1, I find that the RC had not made an error of law in its reasoning in dismissing Limb 1 of the Complaint.

(c) Under Ground 2, I find that the RC had not made an error of law.

In the circumstances, I dismiss OS 593. The Law Society is to notify both the Chairman and the RC of this judgment.

General observations

On complaints about over-claiming

On the current parties and disclosure of report

I have other general observations as well. I note that during the course of the hearing, a dispute arose as to whether the Law Society is the correct defendant to be named in this application. It arose because the remedies Mr Sharma applied for are a quashing order of the RC’s decision and a mandatory order for a fresh review committee to be constituted. In relation to the quashing order, the decision that is sought to be quashed was not made by the Law Society and the Law Society said it was unable to speak for the RC. In relation to the mandatory order, the Law Society submitted that it has no power under the LPA to appoint or re-constitute a review committee. That power is vested in the Chairman or Deputy Chairman under s 85(6) of the LPA, both of whom are independent of the Law Society. Therefore, an argument was made that even if the court was minded to grant the reliefs which Mr Sharma is seeking, the Law Society will not be able to comply with them.

I note that all the parties are in agreement that the Law Society can and should be named as the nominal defendant in this application. The gravamen of the Law Society’s objection was essentially its concern over its ability to comply with the relief being sought by Mr Sharma. I also note that O 53 r 2(3) of the Rules of Court provides that “all persons directly affected” by the application for judicial review must be served with the documents filed for the application. O 53 r 2(5) further provides that the court may adjourn the hearing in order that the said documents may be served on any person that ought to be served but had not been served. Considering the foregoing, I made the following directions:

(a) The Law Society is to formally notify the Chairman about these proceedings and to serve the Chairman with copies of OS 593 and affidavits already filed;

(b) The Law Society is to ask the Chairman to also notify the RC about these proceedings and to serve the RC with copies of OS 593 and affidavits already filed; and

(c) The Law Society is to ask the Chairman whether he or the RC wishes to be heard by the court. It is also to ask the Chairman and the RC whether they undertake to comply with any order or direction from the court.

The RC replied indicating that it would leave the matter in the hands of the court and will be bound by any order or direction made by the court. The RC also attached its full grounds of decision in its reply. That is how its full grounds were eventually made available to the court (see [8] above). The Chairman also replied stating that any decision of the court in a proceeding to which the Law Society is a party will bind him and be implemented by the Chairman. Thus there was no substantive issue about implementation of any court order that might require further steps to be undertaken.

Coming back to the RC report. I note that initially the report of the RC was not provided to Mr Sharma (or to the court). It was not clear to me why this was so. Perhaps the Council of the Law Society thought that since s 85(9)(b) of the LPA requires the Council to furnish a complainant with the reasons of a review committee in writing for dismissing the matter, there was no need to furnish a copy of the RC report to Mr Sharma (and to the court). The Law Society may also have thought that since s 66 of the LPA states that confidentiality shall be maintained in proceedings conducted by a review committee or IC, the report ought not to be disclosed to the complainant.

It seems to me that the Council would be complying with s 85(9)(b) LPA if it had simply forwarded a copy of the RC report to Mr Sharma and it would not be in breach of s 66 in doing so. There was no need to generate another letter to state the reasons of the RC. Indeed, if there was any impediment to disclosing the report, the RC would not have forwarded the report eventually to the court.

Unless there are good reasons for not furnishing a copy of the report, it may be that in future the furnishing of a copy should be the preferred approach for the following reasons:

(a) The extra effort and time to generate another letter to state the reasons of the RC would be saved.

(b) The risk of the letter being inaccurate when compared with the report will be avoided.

(c) The letter may also not give the full flavour of the report when considered in its entirety.

However, as there was no elaboration by the Law Society about the non-furnishing of the report, I will say no more.

On solicitor and client privilege

This application has highlighted the difficulty that a review committee or any other tribunal down the line may face if a complaint is made by a non-client which impinges upon solicitor and client privilege. In Pamplin, the court suggested that if a taxing master is to be given the power to decide an issue on the basis of material which the respondent is to have no right to see, that power should be expressly given by the Rules of the Supreme Court (at 698). Likewise, I would suggest that power be expressly given to the review committee and to any other tribunal down the line as well as the court of three judges to consider material which is covered by S & C privilege without necessarily disclosing the content of such material to the complainant or to the Law Society.

Conclusion

This has been an exceptional case which is unusual in many respects. Some of these unusual features are as follows:

(a) This is the first case in which a complaint of misconduct was made in respect of an allegation of over-claiming in P & P taxation.

(b) The complaint was not made by the party legally liable to pay the costs, raising the question of locus standi.

(c) The complaint raised matters not raised at the taxation.

(d) This is the first time that an application for review was made against a decision of an RC, raising the novel question as to whether judicial review of such a decision is available.

(e) Limb 2 of the Complaint touched upon and intruded into a matter involving S & C privilege where the complainant was not the client himself.

(f) An error of the RC was made in favour of the applicant seeking judicial review.

I would like to thank all counsel for their assistance.