Law Society of Singapore v Top Ten Entertainment Pte Ltd

Chan Sek Keong CJ (delivering the judgment of the court):

[3] The material facts are as follows. Arul is an advocate and solicitor of the Supreme Court of Singapore, and is a partner in the firm of Messrs Arul Chew & Partners. On 29 January 2007, Top Ten filed a complaint to the Law Society against the conduct of Arul, who had represented Top Ten in litigation. Due to a procedural irregularity, the complaint was re-lodged on 19 April 2007 (“the Complaint”). The Complaint made the following allegations:

(a) that Arul had rendered exorbitant bills of costs contrary to agreed costs at $25,000; and

(b) that he had acted contrary to strict instructions from Top Ten not to transfer any money from the client’s account by transferring sums of $54,909 and $32,000 from the client’s account to satisfy his bills of costs which were disputed by Top Ten.

[4] The Complaint was inquired into by an IC which recommended to the Council (a) to dismiss the Complaint as having no merit, but (b) to impose a fine of $500 on Arul for breaching the Society’s Practice Directions in relation to Rule 7(1)(a)(iv) of the Legal Profession (Solicitors’ Accounts) Rules (Cap 161, R8, 1999 Rev Ed) (“Solicitors’ Accounts Rules”) in failing to give adequate notice to Top Ten of the transfer of its money from the client’s account. The Council accepted the findings of the IC and decided that a formal investigation by a Disciplinary Committee (“DC”) was unnecessary and dismissed the Complaint.

[6] At the conclusion of the hearing, the Review Judge held that although there was no fee agreement between Top Ten and Arul, there was sufficient material to justify an investigation into the Complaint. By then, the 2001 LPA had been amended by the Legal Profession (Amendment) Act 2008 (Act 19 of 2008) such that the DC was renamed as the Disciplinary Tribunal (“DT”) – otherwise the provisions relevant to this matter remained the same. The amended version will hereinafter be called the LPA. Accordingly, the Review Judge directed the Law Society to apply to the Chief Justice under s 96(4)(b) of the LPA to appoint a DT to investigate two matters:

(a) whether Arul was in breach of his professional duties by paying the sum of $114,440.97 (received as party and party costs) into the client’s account contrary to Top Ten’s instructions as contained in the two emails dated 7 July 2006 and 24 August 2006, and also in transferring money from the client’s account in payment of solicitor’s fees; and

(b) whether Arul was in breach of the Solicitors’ Accounts Rules by placing the sum of $10,000 which he received on 11 August 2006 as party and party costs into Messrs Arul Chew & Partners’ office account instead of the client’s account.

[13] Section 96 of the LPA provides as follows:

It should be noted that s 103(3) makes a distinction between “the Judge” and “the court” before whom the hearing takes place. These two terms are defined in s 2 of the LPA, but as we shall see, it does not follow that those definitions apply when the terms are used in Part VII of the LPA. The reason is that the definitions in s 2 of the LPA are subject to the context in which they are used (see [44]–[45] below).

[18] In affirming the judgment of the Divisional Court, the English Court of Appeal in Baxendale-Walker (per Sir Igor Judge P, as he then was) said at [27], [34] and [39]:

[19] The Baxendale-Walker principle has recently been endorsed and refined by the English Court of Appeal in R (Perinpanathan) v City of Westminster Magistrates’ Court [2010] 1 WLR 1508 (“Perinpanathan”). In Perinpanathan, Stanley Burnton LJ enunciated seven propositions as follows (at [40]–[41]):

[20] Proposition (2) qualifies the application of the Baxendale-Walker principle to first instance hearings before the tribunal, having regard to the decision of the Privy Council in Walker v Royal College of Veterinary Surgeons [2008] UKPC 20 (“Walker v Royal College”) that in the case of a successful appeal against a decision of a disciplinary tribunal, different considerations may apply.

[21] Propositions (1) and (4) in the above passage (see [19] above) were also endorsed by Lord Neuberger of Abbotsbury MR in the same case where he said (at [73]):

It bears mentioning that r 44.3(2) of the English Civil Procedure Rules 1998 (SI 1998 No 3132) or “CPR” is in substance the same as O 59 r 3(2) of our Rules of Court. It states:

[22] Proposition (3) requires the court to consider the substantive legislative framework and the applicable procedural provisions when deciding whether the principle should be applied in other contexts.

[25] The question before us therefore is whether the Law Society was acting as a regulator in performing its functions under ss 87 and 96 of the LPA. The Review Judge held that it was not acting as a regulator under s 96, and she distinguished Baxendale-Walker on this basis. The Review Judge gave three reasons for her decision, as follows:

(a) the Law Society’s function under s 96 (the discharge of which would be in the public interest) was to lay before the court its full reasons for its decision, and not to oppose a challenge of its decision “regardless of whether it was legitimate or reasonable for it to do so” (see the GD at [17]);

(b) the Law Society did not act as a regulator in the present proceedings because it was not the complainant, unlike the LSEW in Baxendale-Walker, and there were substantial differences between the disciplinary framework under the English Solicitors Act 1974 (c 47) (where the Solicitors Regulation Authority initiates most disciplinary proceedings against solicitors) and the LPA (where the Law Society does not initiate such proceedings) (see the GD at [19]–[24]); and

(c) the Law Society did not participate in the hearing before the Review Judge in its capacity as a regulator of the legal profession, but rather, in its capacity as the maker of its decision to dismiss Top Ten’s complaint and with a view to defending its own decision. It was not acting in the public interest but its own private interests (see the GD at [42]).

[26] In our view, the Review Judge has interpreted the role of the Law Society too narrowly by focusing only on s 96 of the LPA and limiting its role thereunder to that of laying before the court the full reasons for its decision, rather than to oppose a challenge of its decision regardless of the merits of the IC’s recommendations or the dissatisfied complainant’s case. In our view, the Law Society’s appearance in an application under s 96 is at the tail end of a role which begins at s 87 under which the Council is required to consider the report of the IC after it has completed its inquiry on the complaint against an advocate and solicitor. If, under s 88, the Council determines that no cause of sufficient gravity exists for a formal investigation (as was the case here), it may impose a penalty on the advocate and solicitor (as was the case here). In carrying out these functions, the Law Society is performing a statutory role as a regulator, and not promoting or protecting its private interests as a society.

[27] However, s 96 gives a complainant who is dissatisfied with the decision of the Council a right to apply to a Judge to review its decision. Since the Law Society is named effectively as a defendant in such proceedings, it would be odd if the Law Society is not allowed to defend its Council’s decision before the Judge, but only to explain the reasons for its decision. In substance, there is no difference between giving the reasons for a decision and justifying a decision by giving the reasons for it. In our view, there is no reason why the Law Society, in opposing the complainant’s case by justifying its Council’s decision, is no longer performing a regulatory function. Its role in s 96 is merely a continuation of its role in s 87. When the Law Society opposes the complainant’s case “regardless of whether it was legitimate or reasonable for it to do so”, it does not mean that it is no longer performing a regulatory role. What it means in such a situation is that it is performing it unreasonably or recklessly or even wilfully.

[28] In Perinpanathan, Lord Neuberger MR addressed the analogous issue of the police assisting a court as opposed to taking an active part in the proceedings. He said (at [67] and [68]):

[29] In the same case, Stanley Burnton LJ also said (at [45]):

In Re Shankar Alan (costs), Menon JC distinguished Chew Kia Ngee on the ground that in the case before him, it was not incumbent on the Law Society to resist the application, whereas Thean J had found that it was incumbent on the Singapore Society of Accountants to resist the application. Interestingly, even though O 59 r 3 of the Rules of Court (which prescribes that costs follow the event) was applicable to the case (since it was an appeal to the High Court under s 54 of the Accountants Act (Cap 2, 1985 Rev Ed)), Thean J did not apply the principle that costs follow the event. His decision effectively foreshadowed the establishment of the Baxendale-Walker principle in England in 2008.

[37] It may be noted that the LPA does not contain any provision for an appeal against any order made by a Judge under ss 95, 96 or 97 (or a decision by the court of 3 Judges of the Supreme Court under s 98). To the extent that there is no appeal against the decision of the Judge or the court of 3 Judges of the Supreme Court under Part VII of the LPA, the Perinpanathan limitation would have no application to proceedings under that Part. We are aware that there are existing decisions of the Privy Council and of the Court of Appeal that there is a right of appeal from the decision of a Judge under s 95 of the LPA (and therefore by analogy also the decisions of a Judge under ss 96 and 97 of the LPA). As we shall show (see [41] below and the following paragraphs), the correctness, and therefore authority, of these decisions is doubtful and they should not be followed. In any case, these are pre-Baxendale-Walker decisions and are no longer relevant.

[40] The Law Society has proceeded on the basis that it had a right of appeal. This was not challenged by counsel for Top Ten. We are not surprised by this as the existing case law, including a Privy Council decision and a decision of the Court of Appeal, supports the position that there is a right of appeal. We think they were wrongly decided, and should not be followed in future cases. We will discuss these cases now.

[41] The proposition is a simple one. A right of appeal is exclusively a statutory right (see [58] below), but nothing in the LPA provides for such a right with respect to the decision of the Judge under ss 95, 96 or 97. In Hilborne v Law Society of Singapore [1977–1978] SLR(R) 342 (“Hilborne (PC)”), the Privy Council decided there was a right of appeal to the Court of Appeal from a decision of the Judge made under s 95 of the Legal Profession Act (Cap 217, 1970 Rev Ed) (“1970 LPA”) (which corresponds to s 95 of the LPA). We shall discuss this decision at [46] below and the paragraphs that follow.

[42] We start our analysis by considering the civil jurisdiction of the Supreme Court under ss 16 and 17 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”). The Supreme Court consists of the High Court and the Court of Appeal (see Art 94(1) of the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”) and s 3 of the SCJA). Section 16 of the SCJA provides for the general jurisdiction of the High Court with respect to in personam actions, and s 17 sets out the specific areas of law within its jurisdiction. The general powers of the High Court are set out in the First Schedule to the SCJA. None of these provisions refers to disciplinary proceedings. The ordinary meaning of an in personam action does not include a disciplinary action. In short, the civil jurisdiction of the High Court does not include jurisdiction over any disciplinary matter under Part VII of the LPA. If the High Court has no jurisdiction over disciplinary matters, it follows that the Court of Appeal also has no jurisdiction over such matters as s 29A(1) of the SCJA provides that:

[43] We next consider the Rules of Court made under the SCJA to regulate civil proceedings. Order 57 of the Rules of Court sets out the rules of practice relating to appeals to the Court of Appeal. Rule 1 provides that:

Rule 1 requires us to consider whether the Judge hearing a review under s 96 of the LPA is a “tribunal from which an appeal lies to [the Court of Appeal]” within the meaning of the Rules of Court and whether the LPA provides for an appeal to the Court of Appeal.

[44] In our view, Part VII provides a self-contained disciplinary framework outside the civil proceedings framework. There is no express provision in Part VII or in any other part of the LPA that provides for an appeal from a decision of a Judge under ss 95, 96 or 97. Section 2 of the LPA defines the term “Judge” to mean “a Judge of the High Court sitting in chambers”. But this definition is not apt to refer to a Judge hearing a review under s 96 as that section does not require the hearing to be in chambers, nor is there any reason to specify such form of hearing. The definition is intended to refer to a Judge of the High Court exercising civil jurisdiction under other provisions of the LPA, such as s 22 (application to a Judge to reverse a decision of the Board of Legal Education), s 23 (application for admission before a Judge), s 25B (appeal to a Judge against a Registrar’s refusal to issue an unconditional practising certificate), s 25C (application to a Judge for an order that a solicitor submit to a medical examination), s 27A (application to a Judge for imposition of conditions on a practising certificate), s 27B (application to a Judge for referral to a Disciplinary Tribunal and suspension of a practising certificate), s 28 (application to a Judge to cancel a practising certificate) and s 32(3) (application to a Judge to allow an unqualified person to appear in court).

[45] However, the term “Judge” is defined in the Interpretation Act (Cap 1, 2002 Rev Ed) (“Interpretation Act”) (as well as s 2 of the SCJA) to mean “a Judge of the High Court and includes any person appointed to exercise the powers of a Judge.” This definition is more appropriate in denoting the functions of a Judge exercising judicial power under s 96 which prescribes a special form of judicial proceedings with respect to disciplinary matters. In the context of ss 95, 96, and 97 of the LPA, a “Judge” as defined under s 2 of the Interpretation Act is simply a Judge of the High Court exercising disciplinary jurisdiction under Part VII of the LPA, and not a Judge of the High Court exercising civil jurisdiction under ss 16 and 17 of the SCJA. Hence, because the decisions of a Judge under Part VII of the LPA are not decisions in civil proceedings, they do not fall within the appellate jurisdiction described in s 29A(1) of the SCJA. In short, the SCJA does not confer any right of appeal on any person dissatisfied with the decision of the Judge on a review made under ss 95, 96 or 97 of the LPA.

[46] We have earlier referred to Hilborne (PC) where the Privy Council held that there was a right of appeal to the Court of Appeal from a decision of the Judge in review proceedings under s 95 of the LPA. Section 95 provides that an advocate and solicitor who is dissatisfied with an order of the Council that he/she pay a penalty may apply to a Judge to set aside the penalty, such application to be heard in chambers (which is not the case for a s 96 or a s 97 application). However, this anomaly makes no difference to the fact that these are disciplinary proceedings and not civil proceedings. Section 96 provides a similar right to a dissatisfied complainant who wishes to set aside a decision of the Council. Save for these two differences, s 95 and s 96 operate in the same way vis-à-vis the absence of any right of appeal to the Court of Appeal. Hence any discussion of the decision in Hilborne (PC) will apply equally to s 96 (and also s 97).

[47] In Hilborne (PC), the advocate and solicitor (“Hilborne”) was ordered by the Council to pay a penalty of $250 under s 89 (1) of the 1970 LPA. His application to the Judge under s 95 was dismissed. He appealed to the Court of Appeal (see Hilborne v Law Society of Singapore [1971–1973] SLR(R) 685 (“Hilborne (CA)”)). The Court of Appeal dismissed the appeal on the merits, and additionally expressed doubts on its jurisdiction to hear the appeal. At [3] and [18]–[20], Wee Chong Jin CJ (delivering the judgment of the court) said:

[48] Hilborne appealed to the Privy Council, which dismissed the appeal. Both parties ignored the Court of Appeal’s decision that it had no jurisdiction and conceded that issue before the Privy Council. Even with the effluxion of time since that appeal, we find the Law Society’s concession most unusual, if not self-serving. This made it necessary for the Privy Council to address that issue without the benefit of counsel’s arguments. On the issue of jurisdiction, the Privy Council said (per Lord Russell of Killowen) at [33]:

[49] In our view, the reasoning of the Privy Council is flawed on two grounds. The first is that, as shown in the above passage, the Privy Council proceeded on the basis that disciplinary proceedings under the LPA were civil proceedings under the Supreme Court of Judicature Act (Cap 15, 1970 Rev Ed) (“the 1970 SCJA”) which for our purposes is similar to the SCJA. This assumption is incorrect. As we have pointed out at [42]–[45] above, disciplinary actions under the LPA are not civil actions under the SCJA. The second flaw is the wrong assumption that the absence of a provision in the LPA excluding such appeal and the fact that disciplinary proceedings were not to be found among the non-appealable matters in s 34 of the SCJA could have given rise to a right of appeal, by implication, from a Judge’s decision made under s 95 (or ss 96 or 97) to the Court of Appeal. Nor was the express provision that there should be no right of appeal from a special court of three judges to the Court of Appeal a logical basis for implying a right of appeal from s 95 proceedings. It is established law that a right of appeal is statutory in nature and must be expressly provided for (see [58] below).

[50] In our view, the Court of Appeal’s decision in Hilborne (CA) correctly interpreted s 29 of the 1970 SCJA (s 29A of the SCJA) and we would disagree with the Privy Council’s decision to the contrary. However, Hilborne (PC) was subsequently approved by the Court of Appeal in Wong Juan Swee v Law Society of Singapore [1994] 3 SLR(R) 619 (“Wong Juan Swee (CA)”) on an additional ground not mentioned by the Privy Council in Hilborne (PC). We will now discuss this decision.

[51] In this case, Wong Juan Swee (“Wong”), an advocate and solicitor, applied under s 95 of the Legal Profession Act (Cap 161, 1990 Rev Ed) (“1990 LPA”) to set aside the penalty the Council had ordered her to pay. Lai Siu Chiu JC dismissed her application (see Wong Juan Swee v Law Society of Singapore [1993] 1 SLR(R) 429 (“Wong Juan Swee (HC)”)) and she appealed. Counsel for the Law Society raised the objection that the Court of Appeal had no jurisdiction to hear the appeal. The Court of Appeal (by a majority) held (at [9]–[11]):

[52] We are unable to agree with the reasoning in the above passages for the following reasons. First, the issue of jurisdiction was not raised in Ang Boon Kong Lawrence (CA) and Whitehouse Holdings Pte Ltd v Law Society of Singapore [1994] 2 SLR(R) 485 (“Whitehouse Holdings”), and therefore they do not reinforce the authority of Hilborne (PC) or the reasoning in that case.

[53] Secondly, the Court of Appeal appeared to have placed some significance on the application to set aside the Council’s order as having been commenced by originating summons by describing it as one of the four modes of commencement of civil proceedings in the High Court. That this mode was used was not surprising as s 95 of the 1990 LPA specifically provided for it, and also that the hearing be in chambers. Furthermore, the express provision in s 95 regarding this procedure would imply that the Rules of Court had no application to disciplinary proceedings and that they were therefore not civil proceedings.

[54] Thirdly, the Court held that Lai JC was exercising “a form of appellate but supervisory jurisdiction” [emphasis added], and therefore her judgment “was a judgment of the High Court given in exercise of the appellate jurisdiction in a civil cause or matter” [emphasis added]. There are two problems with this ground. The first is that the Privy Council did not rely on this ground to support its decision in Hilborne (PC) and that, in itself, raises a doubt as to its materiality. The second is that, although the review jurisdiction of the Judge under s 95 is of a supervisory nature, and is also appellate in the sense that it is reviewing a decision of a subordinate body, a review is not an appeal, and it is not a civil proceeding. The Privy Council in James Chia appeared to have characterised the review as an appeal, but only tentatively, in stating “[t]he point of principle in the case is whether the appeal (or review) procedure established by s 97 is available to the Society” (see James Chia at [7]). But, this statement was made on the assumption that disciplinary proceedings are civil proceedings under the SCJA.

[55] In the review proceedings in Wong Juan Swee (HC) (at [14] of her judgment), the Judge referred to the statement of Chan Sek Keong JC in Wee Soon Kim Anthony v Law Society of Singapore [1988] 1 SLR(R) 455 (“Anthony Wee”) as follows:

In Anthony Wee, what Chan JC said at [16] of his judgment was as follows:

[56] However, the statement in the above passage was directed towards the point (made at [17] of Anthony Wee) that a Judge hearing an application under s 93 (s 96 of the LPA) did not have an original jurisdiction to inquire into the conduct of an advocate and solicitor where the IC had not done so. It was not directed towards the question of whether the Judge was exercising any supervisory or appellate jurisdiction of the High Court under the SCJA. Chan JC did not in his judgment refer to the Judge as exercising civil jurisdiction as a Judge of the High Court. Chan JC’s statement was also quoted and approved by the Court of Appeal in Whitehouse Holdings (at [38]) without it realising that the statement was made in the context of disciplinary proceedings and not meant to describe the High Court’s supervisory jurisdiction in civil proceedings under the SCJA.

[57] In our view, the Court of Appeal in Wong Juan Swee (CA) was too deferential in accepting the Privy Council’s reasoning in Hilborne (PC), ie that because the 1990 LPA did not say that the order of a Judge given under s 95 of the Act is final, and because such judgment or order “is not to be found among the non-appealable matters” in s 34(1) of the SCJA, Parliament “was not minded to forbid appeal to the Court of Appeal in a case such as the present one”.

[58] As we have pointed out earlier, a right of appeal is a statutory right, and has to be expressly conferred by the SCJA or the LPA in this case. It is only necessary to cite the following passage from the judgment of Andrew Phang Boon Leong JA in Blenwel Agencies Pte Ltd v Tan Lee King [2008] 2 SLR(R) 529, where he said at [24]:

[59] Although this issue does not arise in the present appeal, we consider it desirable that we clarify the meaning of this phrase in Part VII of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“2009 LPA”). Section 83 of the 2009 LPA provides for the jurisdictional powers of the Supreme Court over all advocates and solicitors as follows:

[60] The term “Supreme Court” is not defined in the 2009 LPA, but it is defined in s 2 of the Interpretation Act as follows:

[61] The Supreme Court is constituted under Art 94(1) of the Constitution which provides as follows:

It follows from this provision that a Judge of the Supreme Court may be a Judge of the High Court or a Judge of Appeal of the Court of Appeal.

[62] Section 98(7) of the 2009 LPA provides for the exercise of the jurisdictional powers under s 98(1) of the 2009 LPA as follows:

The exercise of the jurisdictional powers of the court of 3 Judges of the Supreme Court may be invoked under s 98(1) by the Law Society following an adverse finding by the DT against an advocate and solicitor under s 93(1)(c) of the 2009 LPA.

[63] Having regard to the various definitions we have referred to, the expression “court of 3 Judges of the Supreme Court” does not mean “court of 3 Judges of the High Court” or “court of 3 Judges of the Court of the Appeal”. It is a special court constituted under Part VII for the purposes of Part VII. Currently, the practice of the Supreme Court is for applications under s 98(1) to be heard by a court of 3 Judges of Appeal.

[64] In this connection, it is convenient to mention the Privy Council decisions which referred to the “court of three judges” in the relevant statutes on this subject as the “High Court”. It started with Lau Liat Meng v Disciplinary Committee [1965–1967] SLR(R) 64, where the Privy Council (per Lord Hodson) said at [1] of the judgment:

[65] It should be noted that s 30(7) of the Advocates and Solicitors Ordinance (Cap 188, 1955 Rev Ed) (“the 1955 Ordinance”) did not refer to the High Court, but simply “a court of three judges”. That provision read:

However, s 25 of the 1955 Ordinance provided for advocates and solicitors to be under the control of the Supreme Court, and s 26 provided that “[a]ny application by any person that the name of a solicitor be struck off the roll or that he be otherwise dealt with by the Supreme Court under s 25 ...” [emphasis added], and s 27 provided that “[t]he Supreme Court or any Judge thereof may at any time refer to the Bar Committee any information touching on the conduct of a solicitor in his professional capacity ...”. These three provisions would suggest (a) that the “court of three judges” in s 30(7) of the 1955 Ordinance would refer to Judges of the Supreme Court rather than of the High Court, and (b) that a “Judge” would similarly refer to a Judge of the Supreme Court.

[66] The same description of the court of three judges as the “High Court” was given by the Privy Council in James Chia (see [1] of the judgment) and also Jeyaretnam (see [1] of the judgment). In both of these cases, the relevant section of the relevant revised editions of the Legal Profession Act referred to the court as a “court of three judges”, ie, in terms identical to the reference in s 30(7) of the 1955 Ordinance. However, s 29(c) of the Legal Profession (Amendment) Act (Act 41 of 1993) replaced that term with “a court of 3 Judges of the Supreme Court” to signify that the court of 3 Judges would include not only Judges of the High Court but also Judges of Appeal. This is the current wording in s 98(7) of the 2009 LPA, and therefore the correct name for the final appellate court in disciplinary matters is “the court of 3 Judges of the Supreme Court”, and not “the court of three judges” or “the court of 3 Judges of the High Court”, or “3 Judges sitting as the High Court”.

[67] We now discuss the disciplinary powers of the court of 3 Judges of the Supreme Court. Section 98 of the 2009 LPA provides as follows:

[68] The term “Rules Committee” in s 98(10) is defined in s 2 of the 2009 LPA as follows:

The Rules Committee is constituted under s 80(3) of the SCJA. However, to date the Rules Committee has not made any procedural rules pursuant to s 98(10) of the 2009 LPA. This provision reinforces our conclusion that the Rules of Court have no application to Part VII of the 2009 LPA. However, it should be noted that s 98(10) also provides that in the absence of any rule dealing with any point of procedure or practice, the Rules of Court may be followed as nearly as the circumstances permit. In our view, the circumstances regarding the role of the Law Society in disciplinary matters concerning advocates and solicitors in Part VII of the 2009 LPA do not call for the “costs follow the event” rule in O 59 r 3(2) of the Rules of Court but rather the Baxendale-Walker principle.

[69] It is clear from these provisions that Part VII of the 2009 LPA provides a comprehensive code of substantive law and procedure relating to disciplinary matters concerning advocates and solicitors. It is also clear from s 98(3) that the Rules of Court in their application to civil proceedings do not apply to disciplinary proceedings under this Part, as otherwise that subsection would not be necessary.

[70] To conclude our analysis of the disciplinary process under Part VII of the 2009 LPA, we might mention that as early as 1878, the Courts Ordinance (SS Ord No 3 of 1878) (“the 1878 Ordinance”) had codified the law on this subject. Section 50 of the 1878 Ordinance read:

The relevant portion of s 81 (as amended by SS Ord No 19 of 1889) stated:

[71] Accordingly, when these provisions were re-enacted in subsequent statutes, the strict demarcation between the Supreme Court’s disciplinary proceedings and the Supreme Court’s civil proceedings was preserved. The passing of separate legislation regulating the profession from the first Advocates and Solicitors Ordinance (Ord No 32 of 1934) to the 2009 LPA has only reinforced the separation of disciplinary proceedings from the normal civil process, which is now governed by the SCJA. There have been some misconceptions in the past that disciplinary proceedings under Part VII of the 2009 LPA (and its predecessor legislation) were civil proceedings under the SCJA. Hereafter, there should be no further misunderstanding, and consequentially, disciplinary proceedings under Part VII should not be treated as such and not as civil proceedings.