Godfrey Gerald QC v UBS AG and Others

V K Rajah JC:

[1] The applicant, Mr Anthony Wee Soon Kim (“Mr Wee”) is no stranger to court. He is a retired lawyer who has, in his personal capacity, battled a number of protracted and well-publicised jousts in court. This consequential application arises from one such matter; it seeks, in essence, to set aside an order made by the Court of Appeal, inter alia, on the ground that the court was functus officio when it clarified an earlier order.

[5] Soon after the appeal was dismissed, the respondents to this application, namely UBS, the Attorney-General and The Law Society of Singapore sought to perfect the order of the Court of Appeal. Their solicitors collectively took the position that as Mr Goh had discharged himself, the provisions of O 42 r (8)(5) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) (“RSC”) applied to the approval process apropos the draft Order of Court. This sub-rule stipulates that the draft shall be submitted to the Registrar if the other party has no solicitor. In the circumstances, the draft Order of Court was accordingly submitted to the Registrar for approval without being dispatched by the respondents’ solicitors to Mr Goh, Mr Godfrey QC or Mr Wee for their scrutiny. The Registrar duly approved the draft order as submitted. The engrossed Order of Court reads:

[9] It is critical to elucidate, at the outset, the peculiar characteristics of an ad hoc application to admit Queen’s Counsel pursuant to s 21 of the LPA. The applicant is nominally the Queen’s Counsel who seeks admission to practice as an advocate or solicitor. A fundamental feature of a s 21 LPA admission is that the ad hoc admission is exclusively for “the purpose of any one case” [emphasis added]. This is to be distinguished from an admission of an advocate and solicitor pursuant to s 11(1) of the LPA that confers a right of general audience and representation without any limitation to a particular case.

[11] Set against the backdrop of such a fundamentally flawed and untenable position, I now deal with Mr Wee’s first argument. This relates to the process of approving and finalising the court order. The relevant provisions are O 42 r 8(1) and (5) of the RSC:

These two sub-rules make it clear beyond peradventure that the procedure for “party approval” of a draft Order of Court only applies when a party is represented by a solicitor.

[12] Mr Wee stridently asserts that the draft order was not sent to either Mr Godfrey QC, Mr Goh or to him for approval before it was perfected. As a consequence, his counsel argues, the extracted order is a nullity. This is an absurd contention. The rules are plain. If a party is not represented by a solicitor, the draft shall be submitted to the Registrar. The rationale for this is axiomatic. The process of submitting draft orders to opposing counsel has the salutary objective of obtaining input from solicitors who are, presumably, familiar with the proceedings. The Rules Committee has taken the view that no useful purpose would be served in seeking the approval of what is essentially a document comprising legal technicalities, by unrepresented parties. Indeed, sending drafts to unrepresented parties may invariably lead to delays and barren contentions. That one of the parties is legally qualified does not alter the literal purport of the rule dispensing with service on unrepresented parties. It is not the identity of the party but the fact of being legally represented that is prescribed as a criterion. The Registrar, in turn, is required under O 42 r 8(5) of the RSC to directly superintend the process of extracting such an Order of Court. This is to ensure that an unrepresented party’s interests are adequately safeguarded. This attenuates the risk of a successful party arrogating to itself poetic license to take liberties with the terms of the Order of Court.

[13] Mr Wee’s counsel in the current application also suggested, albeit somewhat diffidently, that Mr Goh had merely discharged himself as “counsel” and not as a “solicitor” on record in the earlier application. This is untenable. It is as plain as a pikestaff that Mr Goh, in discharging himself from his responsibilities before the Court of Appeal and in related proceedings, had indicated that he wanted no further truck with Mr Wee’s cause. He had no further role to play in the matter after seeking the Court of Appeal’s leave to withdraw from the file.

[14] If counsel do indeed intend to engage in such subtle distinctions in their roles in a cause or matter, they should make their position patently clear when applying for a discharge. It would be most unusual for a court to permit or indulge such bifurcated roles, so that a party appears in person as his own counsel for the purposes of advocacy and at the same time retains a law firm to act as his solicitor in all other aspects of the matter. It is therefore both reasonable and proper to assume that a solicitor who applies to discharge himself from proceedings, whether as counsel or otherwise, intends to have no further role in the matter unless he seeks the court’s express leave for continued involvement, however limited that might be. I also note that while Mr Wee’s present counsel made this rather remarkable argument, there was nothing on record from Mr Goh that confirmed the stance taken in these proceedings.

[15] I am of the view that the conduct of the solicitors for UBS and AGC in perfecting the relevant Order of Court, pursuant to the provisions of O 42 r 8(5) of the RSC, is beyond reproach. They acted appropriately in submitting the draft order directly to the Registrar for approval. Mr Wee himself was not, as he himself had correctly contended, a named party to the proceedings and could not paradoxically complain in the same breath that the draft order was not sent to him for approval. Mr Wee’s position was not prejudiced by the process adopted by the respondents’ solicitors. I ought to add, in any event, that even if there were any procedural lapses in this case, the provisions of O 2 r 1 of the RSC would preclude any contention that the perfected Order of Court was a nullity. The Court of Appeal’s subsequent clarification has laid to rest any scintilla of doubt that Mr Wee attempted to conjure.

[16] There is a further procedural point raised in relation to the Order of Court. The Court of Appeal, without elaboration, had ordered that the security deposit be paid over to the respondents. The respondents proceeded to divide this amount between themselves in three equal amounts. Mr Wee took issue with this, again unnecessarily. This division of the monies held as security for the appeal was plainly implicit in the court’s order.

[18] The Latin term functus officio is an abbreviated reference to a facet of the principle of finality in dispute resolution. Functus officio means that the office, authority or jurisdiction in question has served its purpose and is spent. A final decision, once made, cannot be revisited. In dispute resolution, this principle may manifest itself in the guise of res judicata, functus officio or issue estoppel. This principle of finality is intended to embody fairness and certainty. It is not to be invoked merely as a sterile and mechanical rule in matters where there are minor oversights, inchoateness in expression and/or consequential matters that remain to be fleshed out. Given that the court is always at liberty to attend to such axiomatic issues, various judicial devices such as the “slip” rule and the implied “liberty to apply” proviso are invoked from time to time to redress or clarify such issues. In short, both the High Court and the Court of Appeal retain a residual inherent jurisdiction even after an order is pronounced, to clarify the terms of the order and/or to give consequential directions.

[19] That such inherent jurisdiction exists, has never been doubted. In point of fact, it is regularly invoked and exercised by the court: see O 92 r 4 of the RSC and the helpful and incisive conspectus in Professor Jeffrey Pinsler’s article “Inherent Jurisdiction Re-Visited: An Expanding Doctrine” [2002] 14 SAcLJ 1 and the commentary in Singapore Court Practice 2003 at paras 1/1/7 and 1/1/8. This inherent jurisdiction is a virile and necessary one that a court is invested with to dispense procedural justice as a means of achieving substantive justice between parties in a matter. The power to correct or clarify an order is inherent in every court. This power necessarily extends to ensuring that the spirit of court orders are appropriately embodied and correctly reflected to the letter. Indeed, to obviate any pettifogging arguments apropos the existence of such inherent jurisdiction, the RSC was amended in 1995 to include O 92 r 5, which expressly states:

By dint of this rule, the court has an unassailable broad discretion and jurisdiction to give effect to the intent and purport of any relief and/or remedy that may be necessary in a particular matter. Admittedly, while the rule sets out in stark terms the court’s wide inherent jurisdiction in this area of procedural justice, I should add for completeness, that the power to “make or give such further orders or directions incidental or consequential to …” does not prima facie extend to correcting substantive errors and/or in effecting substantive amendments or variations to orders that have been perfected. This is plainly not such a case.

[20] While ex facie Mr Wee was not a nominal party to the appeal, he was indisputably, to all intents and purposes, the de facto appellant. The Court of Appeal recognised this and consequently gave him leave to argue the appeal “in person”. An ordinary third party would not usually be given such a right of audience to appear and argue “in person” when the party on the record is ex facie different. Mr Wee has lamentably and inexplicably refused to acknowledge or accept his responsibilities and liabilities as an unsuccessful litigant. All said and done, he has no conceivable grievance, let alone valid ground concerning the manner in which the subject Order of Court was extracted and clarified. Mr Wee, by tilting at windmills, has cavilled pointlessly in this entirely misconceived application.