High Court · Decided 5 November 2014

Re Michael Fordham QC

Feedback & support

[2014] SGHC 223Case no. Originating Summons No 595 of 2014

What happened, in plain English

There is no plain-English summary of this judgment yet.

Ask about this judgment

Laws this judgment relies on

Grounds of decision

Official text from eLitigation

Steven Chong J:
Introduction
[3] Apart from the intense publicity generated by the entire episode, there are several unusual features in this application as well as in the underlying application for judicial review.
[5] Second, the ad hoc admission application is also unusual in one very unique fact. The Applicant in his statement in support of his application asserted that he should be admitted “[n]otwithstanding that I do not satisfy all the requirements under s 15” of the LPA. I note that this is the first application for ad hoc admission where the Applicant himself accepted that the requirements under s 15 are not satisfied. However, the Applicant purported to correct his statement by subsequently filing a corrective affidavit (a) without leave of court, (b) without explaining why he had earlier stated that he did not satisfy the requirements under s 15, and (c) what caused him to reverse his position.
[6] I will return to discuss these peculiarities in due course. At this juncture, however, it is perhaps appropriate to elaborate on the relevant background facts in greater detail.
Background facts
The proceedings between the SMC and Dr Lim
[8] On 3 December 2007, an official of the Ministry of Health, Singapore (“MOHS”) lodged a complaint against Dr Lim with the SMC (Susan Lim at [11]). This complaint expressed MOHS’s concern over the sums invoiced by Dr Lim for the treatment of one of her patients and concluded that MOHS was referring the matter to the SMC for a thorough investigation. The complaint was laid before a Complaints Committee which, after having invited and reviewed Dr Lim’s written explanation, made an order on 17 November 2008 that a formal inquiry be held by a Disciplinary Committee (Susan Lim at [12]). A Disciplinary Committee (“the First DC”) was duly appointed to inquire into MOHS’s complaint.
[9] On 20 July 2009, the First DC issued a notice of inquiry to Dr Lim containing 94 charges of professional misconduct under s 45(1)(d) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (Susan Lim at [14]). The hearing before the First DC commenced on 28 January 2010 and, at the close of the Prosecution’s case, counsel for Dr Lim made a submission of no case to answer. A three-day hearing commencing on 29 July 2010 was fixed for oral submissions but, as it turned out, the First DC recused itself after an application was made by Dr Lim’s counsel on the basis that the First DC had prejudged the matter (Susan Lim at [14]).
[10] Subsequently, the SMC proceeded to appoint a fresh Disciplinary Committee (“the Second DC”) on 14 September 2010 (Susan Lim at [15]). This prompted Dr Lim to file OS 1131/2010 and OS 1252/2010 on 1 November 2010 and 17 December 2010 respectively.
[11] OS 1131/2010 was an application that the SMC had no right to use the patient’s confidential medical records in disciplinary proceedings against Dr Lim without the consent of the patient’s next-of-kin. However, it was later withdrawn on 21 February 2011 after the SMC produced a letter from the patient’s next-of-kin which permitted the use of her medical records. OS 1252/2010 was a judicial review application for a quashing order against the SMC’s decision to appoint the Second DC. This application was heard before Philip Pillai J, who granted leave for judicial review (see Lim Mey Lee Susan v Singapore Medical Council [2011] SGHC 131) but eventually dismissed the application for a quashing order on 26 May 2011 (see Lim Mey Lee Susan v Singapore Medical Council [2011] 4 SLR 156).
The claim for costs against Dr Lim
Mr Sharma’s complaint to the Law Society
[15] As stated earlier, Mr Sharma’s complaint against Mr Yeo SC and Ms Ho was made to the Law Society on 23 January 2014. It was accompanied by the written opinion of a Queen’s Counsel, Mr Ian Winter QC (“Mr Winter QC”), dated 8 December 2013. Mr Sharma stated that, prior to approaching Mr Winter QC for his opinion, he had contacted several local Senior Counsel (“SCs”) to act for him in respect of his complaint. However, these SCs and/or their law firms declined to act for him. He had therefore “no choice” but to obtain the advice of a Queen’s Counsel in deciding whether to proceed with his complaint.
[17] The RC was duly constituted under s 85(6) of the LPA to review the complaint and its decision was conveyed to Mr Sharma by way of a letter dated 10 April 2014. In this letter, the RC began by noting that Mr Sharma’s complaint against Mr Yeo SC and Ms Ho could be understood as comprising two independent limbs as follows:
(a) first, that the sums claimed by Mr Yeo SC and Ms Ho were exorbitant and demonstrative of a persistent conduct of gross overcharging as well as improper and/or fraudulent conduct that was opportunistic, arbitrary, unconscionable and unjustified (“Limb 1”); and
(b) second, that the sums claimed by Mr Yeo SC and Ms Ho were probably in excess of what was billed to, or could have been billed to the SMC and that this amounted to misconduct (“Limb 2”).
Mr Sharma’s application for judicial review
[19] After the RC had conveyed its decision, Mr Sharma considered whether to apply for a quashing order against it. He approached several local SCs to assist him in this connection but experienced the same outcome as when he first sought legal assistance in respect of his earlier complaint to the Law Society – all the SCs who had been approached and/or their law firms declined to act for him or provide him with a formal opinion. Therefore, Mr Sharma stated that he was again left with “no choice” but to approach a Queen’s Counsel who, on this occasion, turned out to be the Applicant.
[21] On 26 June 2014, Mr Sharma proceeded to file Originating Summons No 593 of 2014 (“OS 593/2014”). This was an application for leave to commence judicial review proceedings against the RC’s decision to wholly dismiss his complaint against Mr Yeo SC and to partially dismiss his complaint against Ms Ho. Notably, the statement which accompanied this leave application broadly recited the same grounds for judicial review which the Applicant had framed in his earlier opinion. Indeed, this is confirmed by Mr Sharma, who states in an affidavit filed in this application that “[m]y grounds for judicial review are in line with Mr Fordham Q.C.’s Analysis”.
The present application for ad hoc admission
Mr Sharma’s standing to complain to the Law Society
[23] Before embarking on the analysis of whether the Applicant satisfies the requirements in s 15 of the LPA, I wish to first deal with the rather peculiar circumstances under which the complaint to the Law Society was made (see [4] above).
[24] The question whether a complainant is required to establish standing when making a complaint against an advocate and solicitor has hitherto not been considered in our courts. This is perhaps not entirely remarkable because to my knowledge, there has never been a complaint filed by a “stranger” or more aptly a “non-party” to the underlying proceedings such as Mr Sharma. In this limited sense, it is unprecedented.
[26] With these reservations in mind, I invited the parties to attend before me for directions on the legal issues which I required assistance. At this hearing, I directed all parties to specifically address me on the locus standi issue given the unique nature and circumstances of the leave application and the underlying complaint. I informed the parties that locus standi is a relevant consideration for the purposes of the ad hoc admission application only if I am able to come to a definite landing that Mr Sharma clearly has no standing to proceed with the leave application, ie, that the leave application is a non-starter. In that limited event, it would serve no purpose to admit the Applicant to argue the underlying leave application.
[27] It may be useful to first set out the various positions adopted by the parties on the standing issue and how some of their initial positions changed in the course of the proceedings:
(a) The RC implicitly acknowledged the requirement to demonstrate standing when it noted in its decision of 10 April 2014 that “whilst you [ie, Mr Sharma] were neither a client nor a party to the proceedings against Dr Susan Lim, you were funding the legal expenses and the information furnished by you were legitimately the subject matter of a complaint”.
(b) Counsel for the Applicant, Mr Abraham Vergis (“Mr Vergis”), initially intimated to me at the directions hearing that Mr Sharma is indeed required to demonstrate standing. However, upon further reflection, Mr Vergis adopted a different position at the hearing for oral submissions. He argued forcefully that there is no requirement for a complainant to demonstrate standing.
(c) The Attorney-General maintained a consistent position throughout that standing is necessary and that Mr Sharma does not satisfy the requirement.
(d) The Law Society’s position is somewhat interesting. Initially, it adopted the position that there is no strict requirement to demonstrate any particular standing and that any person could lodge a complaint against an advocate and solicitor. However, in the course of his oral submissions, probably recognising the potential floodgate of frivolous complaints, counsel for the Law Society, Mr Christopher Anand Daniel (“Mr Daniel”), sought to hedge his position on locus standi by proposing a hybrid position. He submitted that in respect of complaints where there is a victim, only the victim should be able to file the complaint. In respect of alleged professional misconduct where there is no direct victim, the complaint against such conduct can be lodged by any person. In this case, Mr Daniel’s tentative submission is that since there is a “victim”, only that “victim”, ie, Dr Lim, could lodge the complaint regarding the costs claimed against her.
[28] Having heard detailed submissions from all parties on the locus standi issue, I have arrived at the view that it is neither plain nor obvious at this stage whether Mr Sharma is required to demonstrate his standing and, if so, whether he has the standing to lodge the complaint or to file the leave application. Parties, in particular, the Law Society, are still in the process of settling their respective positions on the standing issue. This is understandable from the Law Society’s perspective given the wide-reaching implications on the legal profession. As I am strictly not required to decide this issue definitively in the context of the ad hoc admission application, it is preferable and more appropriate for the issue to be fully explored and determined at the hearing of the leave application. For the immediate purpose of this application, I am satisfied that the standing issue should not stand in the way of my consideration of its merits. Nonetheless, I will make some preliminary observations on the submissions made by the parties.
[29] The starting reference should be the statutory regime under the LPA. Section 85 of the LPA provides, inter alia, as follows:
[30] What s 85(1) of the LPA makes clear is the manner in which a complaint should be made to the Law Society – the complaint must be in writing, accompanied by a statement as to whether there are any other complaints arising from the same facts against the same lawyer, and supported by a statutory declaration. What is not entirely clear, however, is who can make such complaint.
[31] The question posed above may be answered in one of two possible ways. On one view, any member of the public can make a complaint regardless of his interest in or connection to the conduct of the allegedly errant lawyer. This appears to be supported by the wording of s 85(1) of the LPA, given its use of the rather open-ended term “[a]ny complaint” to invite complaints by any person and that, under s 85(1A), the Council of the Law Society is required to refer “every complaint” to the Chairman of the Inquiry Panel so long as the requirements under s 85(1) are satisfied. The second and more circumscribed view, however, is that only those persons who are able to demonstrate sufficient interest in making a complaint can properly do so because, otherwise, the Law Society may become inundated with frivolous complaints by persons with no interest other than being busybodies. From a policy standpoint, such a scenario may appear 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.
[33] Further, I observe that if Mr Vergis is right that any person could file a complaint under s 85(1), why then is there any need for sub-ss 85(2) and (3), which empower specific public institutions and office-holders to refer information touching upon the conduct of an advocate and solicitor to the Law Society? Such public institutions and office-holders have an inherent interest in making such referrals when the occasion arises. Seen in this light, it would appear odd if s 85(1) is then regarded as conferring carte blanche on any person to make a complaint even though he may have no direct interest in doing so. In other words, the juxtaposition of s 85(1) with sub-ss (2) and (3) tends towards the conclusion that it was unlikely that s 85(1) was intended to be of such an unqualified nature. Mr Vergis explained that sub-ss 85(2) and (3) speak of “any information” to the Law Society while s 85(1) refers to “[a]ny complaint”. It is not entirely clear to me whether the difference lies in form rather than substance since both would oblige the Law Society to look into them.
[34] For the reasons that follow, I am able to decide on the merits of this application without having to reach a landing on the locus standi issue, however interesting and challenging it may be. Having said that, as I will elaborate at [57] and [84] below, it is ultimately a question of statutory interpretation of the local scheme for the filing and processing of complaints under the LPA.
The analytical framework for ad hoc admissions
The present statutory framework
[35] The present statutory framework for ad hoc admissions is a result of the recent round of amendments to the LPA by the Legal Profession (Amendment) Act 2012 (Act 3 of 2012) (“the 2012 Amendment”) that took effect from 1 April 2012. This framework comprises ss 15(1), 15(2) and 15(6A) of the LPA, which are reproduced here for ease of reference:
[36] These provisions in the LPA must be read together with two further pieces of subsidiary legislation to complete the picture on our current statutory scheme for ad hoc admissions. The first is the Legal Profession (Admission) Rules 2011 (S 244/2011) (“the Admission Rules”), which lists out the areas of legal practice referred to in s 15(2) of the LPA above. As provided in r 32(1) of the Admission Rules, there are three such “ring-fenced” areas of legal practice – constitutional and administrative law, criminal law, and family law – in respect of which a “special reason” must be shown to exist. The second piece of subsidiary legislation is the Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012) (“the Notification”), which was issued by Chan Sek Keong CJ pursuant to s 15(6A) of the LPA. Paragraph 3 of the Notification sets out the following matters which the court may consider for the purpose of deciding whether to admit a foreign senior counsel in a particular case – (a) the nature of the factual and legal issues involved in the case; (b) the necessity for the services of a foreign senior counsel; (c) the availability of any local SC or other advocate and solicitor with appropriate experience; and (d) whether, having regard to the circumstances of the case, it is reasonable to admit a foreign senior counsel for the purpose of the case.
[37] Since the current statutory framework for ad hoc admissions came into effect, there have been five reported cases which are, in chronological order, as follows: Re Andrews Geraldine Mary QC [2013] 1 SLR 872 (“Re Geraldine Andrews”), Re Caplan Jonathan Michael QC [2013] 3 SLR 66 (“Re Caplan”), Re Lord Goldsmith Peter Henry PC QC [2013] 4 SLR 921 (“Re Lord Goldsmith”), Re Beloff Michael Jacob QC [2013] 4 SLR 849 (“Re Beloff (HC)”) and Re Beloff Michael Jacob QC [2014] 3 SLR 424 (“Re Beloff (CA)”). The first four cases in this quintet were decisions of the High Court while the fifth was handed down by the Court of Appeal. These cases have been highlighted right at the outset here because, collectively, they contain much useful discussion on the applicable principles for ad hoc admissions under the current statutory framework, thus regular references will be made to them in the course of this judgment. The most recent decision of Re Beloff (CA), in particular, will be turned to shortly as it has helpfully set out the appropriate analytical framework for approaching ad hoc admission applications. Before proceeding to do so, however, I digress briefly to outline how the current statutory regime for ad hoc admissions in s 15 of the LPA has evolved from its immediate predecessor, which was contained in s 21 of the Legal Profession Act (Cap 161, 1990 Rev Ed) (“the 1990 Act”) and retained in its successor versions until 1 April 2012 (see Re Geraldine Andrews at [28]). The purpose of this exercise is to illustrate how the current statutory framework has fundamentally shifted the analytical focus from that which prevailed under the 1990 Act and, as a consequence, cases which were decided under the latter statutory regime should be approached with a degree of caution in today’s context.
The relevance of earlier cases
[38] Re Geraldine Andrews was the first case to be decided under the current statutory framework and, fittingly, V K Rajah JA took the opportunity (at [21]–[28]) to chart how the statutory regime for ad hoc admissions in Singapore had evolved over the last half a century since its inception in 1962 as s 7A of the Advocates and Solicitors Ordinance (Cap 188, 1955 Rev Ed). I do not intend to repeat the detailed excursus undertaken by Rajah JA here. For present purposes, it suffices to note that the position before the 2012 Amendment was a result of the Legal Profession (Amendment) Act 1991 (Act 10 of 1991) (“the 1991 Amendment”).
[39] Prior to the 1991 Amendment, there was a “fairly relaxed approach which saw most [ad hoc admission] applications succeeding” (see Re Beloff (HC) at [14]) because the primary consideration at the time was simply whether the foreign senior counsel had special qualifications or experience for the purpose of the case. It was common practice for parties then not to object to such applications; hence the court was seldom required to exercise its discretion against admission (see Re Geraldine Andrews at [34], citing Re Oliver David Keightley Rideal QC [1992] 1 SLR(R) 961 at [8]). It is therefore unsurprising that the statutory regime prior to the 1991 Amendment did not generate much case law. Indeed, as Rajah JA had noted in Re Geraldine Andrews at [34], over the span of 20 years from 1970 to 1990, there was only one reported decision on the ad hoc admission of foreign senior counsel which, in any event, was conspicuously brief on its discussion of the statutory framework existing then.
[40] The 1991 Amendment, however, brought about a sweeping change. It caused the law to be “moved to an extremely restricted approach” (see Re Beloff (HC) at [14]) and this gradually saw a considerable body of jurisprudence being built up on the subject. These cases had to interpret s 21 of the 1990 Act which, as has been mentioned, was the direct precursor to the current statutory framework in s 15 of the LPA. Section 21 of the 1990 Act read as follows:
[41] The newly introduced requirement of “sufficient difficulty and complexity” received close treatment by the courts and, as Rajah JA noted in Re Geraldine Andrews at [33], it would become “notoriously difficult to satisfy”. This had important practical implications because, although the courts had formulated a three-stage test for approaching ad hoc admission applications under s 21 of the 1990 Act, the “sufficient difficulty and complexity” requirement was not merely one of several factors which the court weighed in “having regard to the circumstances of the case”. Instead, it was effectively treated in practice as a threshold requirement so that, unless the issues raised in the case for which admission was sought were assessed as being sufficiently difficult or complex, the application would not be acceded to (see Re Geraldine Andrews at [34]).
[42] The above approach, as may readily be observed, is very different from what is contemplated by our current statutory framework. Under the current framework, the court is directed to consider the totality of the circumstances surrounding the application, having particular regard to the four factors listed in the Notification. While the complexity of the underlying case will no doubt still have a bearing on the court’s final determination, it is by no means a decisive factor which trumps all other considerations. In this connection, I note that the Court of Appeal has pertinently observed that, in the light of the 2012 Amendment, the suitability of ad hoc admissions is now to be viewed through the prism of “need” (see Re Beloff (CA) at [42]). This fundamentally shifts the entire statutory emphasis away from the “difficulty and complexity” of a case and so, even though there may be some common elements between the statutory regime under the 1990 Act and the current LPA, one must exercise caution in drawing on principles espoused under the former for the purpose of interpreting the latter. Rajah JA made this point clearly at [64] and [65] of Re Geraldine Andrews:
[43] This underlines the point that, although a wider compass of cases than what I have identified at [37] above have dealt with ad hoc admissions, these cases of an earlier vintage may not necessarily point one in the right direction. The discussions contained in these cases certainly cannot be divorced from the statutory context prevailing at that time which, it is clear, has since been radically departed from.
The present analytical framework
[44] As mentioned earlier, the Court of Appeal in Re Beloff (CA) has recently set out the analytical framework for assessing ad hoc admission applications under s 15 of the LPA. This is neatly summed up at [54] of the judgment:
[45] The passage above makes clear that the court’s starting point is centred on the mandatory requirements in ss 15(1)(a)–(c) and 15(2) of the LPA. If any of these requirements are not satisfied, then it is unnecessary to consider the Notification factors. If, however, the analysis does reach the Notification factors, then it should be added that there is no particular precedence among the four enumerated factors nor do they set out a new rigid four-stage test (see Re Geraldine Andrews at [45]). Instead, these factors are in the nature of “signposts” which direct the court towards “the ultimate question” set out in the fourth Notification factor, namely, whether having regard to all the circumstances of the case, it is reasonable to admit the foreign senior counsel (see Re Beloff (CA) at [53]). With this framework in mind, I turn now to consider the first set of mandatory requirements in s 15(1) of the LPA, in particular, s 15(1)(c).
Whether the Applicant has “special qualifications or experience for the purpose of the case”
[46] There was no dispute that the Applicant satisfied the formal mandatory requirements in ss 15(1)(a) and (b) of the LPA. He has held letters patent as Queen’s Counsel since 2006 and is not ordinarily resident in Singapore or Malaysia but intends to come to Singapore to represent Mr Sharma in OS 593/2014 and further and/or related proceedings should this application be allowed. An issue was raised, however, as to whether or not the Applicant satisfied the further mandatory requirement in s 15(1)(c). In particular, the emphasis was on whether he had special qualifications or experience for the purpose of the case.
The parties’ arguments
[47] Counsel for the Applicant, Mr Vergis, pointed out that the underlying matter in respect of which ad hoc admission was sought concerned Mr Sharma’s judicial review proceedings against the RC’s decision. The very nature of these proceedings clearly called for the application of administrative law principles and the Applicant was eminently skilled to do that. His curriculum vitae showed that he has, inter alia, had 24 years’ experience as a practitioner with eight of those years as a public law Queen’s Counsel, argued some 40 public law cases in the UK Supreme Court or House of Lords alone as well as cases in the Privy Council and the Hong Kong Court of Final Appeal, and also written a leading textbook on judicial review which has been cited with approval in a local case (see Yeap Wai Kong v Singapore Exchange Securities Trading Ltd [2012] 3 SLR 565 at [5]).
[48] On the other hand, counsel for the Law Society, Mr Daniel, urged this court to approach the requirement in s 15(1)(c) in a more nuanced manner. To be clear, Mr Daniel did not dispute that the underlying judicial review proceedings clearly fell within the general rubric of administrative law. His point, however, was that this ought not to mask the strong local flavour of the specific issues which appeared likely to arise in those proceedings. In his submission, a closer examination of the grounds on which the RC’s decision is sought to be challenged immediately reveals that Mr Sharma intends to place great reliance on a combination of local professional conduct rules, ethical principles, and procedural rules to make good his case. Yet, there was nothing to suggest that the Applicant had the relevant qualifications or experience to deal with these matters. His list of accolades in the general field of administrative law therefore rather “misses the point” as submitted by the Law Society.
[49] I mention for completeness that the Attorney-General did not make any specific submissions in respect of s 15(1)(c).
Analysis
[50] The cases makes it clear that, when considering s 15(1)(c) of the LPA, the court’s focus is on whether the foreign senior counsel’s qualifications and/or experience are “relevant” to the underlying issues and not on whether those issues are difficult or complex (see Re Geraldine Andrews at [39]; Re Beloff (CA) at [56]). In establishing whether such a linkage exists between the Applicant’s expertise and the underlying issues, one must necessarily identify those very issues to begin with. I find that the present case poses little difficulty in this respect. As I alluded to earlier at [20], the central issues arising in the underlying judicial review proceedings can readily be gleaned from the Applicant’s written opinion dated 19 June 2014. This is because the Applicant’s opinion sets out the specific grounds for challenging the RC’s decision and, in so doing, crystallises the issues for the court to consider not only at the substantive hearing for the quashing order, but also at the leave application stage where an arguable case or prima facie case of reasonable suspicion has to be made out (see Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 SLR 345 at [5]).
The local-centric nature of the underlying issues
[51] According to the Applicant’s opinion, there are three grounds for review which, in gist, are as follows:
(a) first, that the RC had erred in law by reasoning that objectively, excessive overcharging cannot constitute professional misconduct per se “in the absence of other impropriety”;
(b) second, that the RC had erred in law by rationalising the effective hourly rate claimed by Mr Yeo SC and Ms Ho on the basis of “all the solicitors involved” when there was no certificate to claim costs for more than two solicitors; and
(c) third, that the RC’s reasons for dismissing Limb 2 of the complaint against Mr Yeo SC were unsustainable in law – since it was not the function of the RC to make factual determinations such as Mr Yeo SC’s non-involvement in the matters complained of – and were also without any reasonable or proper evidential basis.
[52] I agree with Mr Daniel that each of these three grounds raises issues which are decidedly local in nature. It is clear to me that the person advocating to quash the RC’s decision based on these grounds will have to draw ineluctably from a distinctly local well of legal sources and, indeed, the Applicant’s own opinion confirms that this is precisely what he has done. What is striking about his opinion is its constant references to local case law and statutory instruments at each turn which, it should be added, have no apparent connection with administrative law. I shall elaborate upon this observation by examining each of the three proposed grounds for review in turn.
[55] Finally, as regards the third ground for review, it appears that the thrust of the challenge here is that the RC had fundamentally misunderstood its role. The argument, essentially, is that the RC should not have made a determination as to Mr Yeo SC’s involvement (or lack thereof) in the matters complained of when that was not the purpose for which it was designed; it was not a fact-finding body. From the way in which this third argument proceeds, it is clear that it is fundamentally premised on a firm understanding of the RC’s role to begin with. That, in turn, requires an intimate knowledge of the wider schema for disciplinary proceedings as laid out in our very own LPA. This is because the RC does not stand in isolation and thus cannot be approached as such. The RC sits as part of a longer chain of decision-making bodies and so its role and functions can only be properly appreciated in the light of its relationship with these related bodies. Furthermore, it goes without saying that a proper grasp of the local case law interpreting the relevant LPA provisions in this context will also be required in order to advance the necessary arguments. Finally, one would also be expected to turn to local secondary material – such as the Parliamentary debates preceding the creation of the RC by the enactment of the Legal Profession (Amendment) Act 2001 (Act 35 of 2001) (see Singapore Parliamentary Debates, Official Report (5 October 2001) vol 73 at cols 2195–2213) – in order to gain a better appreciation of the impetus behind the RC’s introduction into the then existing disciplinary scheme.
[56] As stated earlier, the aforementioned grounds for review will not only have to be considered at the substantive hearing for the quashing order but also at the leave stage (ie, OS 593/2014). In this connection, it should be mentioned that there are two further issues which the court hearing the leave application will have to take into account.
[57] The first is one which I have already sketched in some detail above, viz, Mr Sharma’s locus standi to apply for judicial review against the RC’s decision. As I have suggested, this appears to raise the rather interesting issue of who can make a complaint to the Law Society. In resolving this issue, however, I am again left in no doubt that one’s knowledge of domestic law necessarily comes to the fore. As I have pointed out at [29] above, the starting point for this analysis should be s 85 of the LPA. And as Mr Vergis’ own approach to this issue at [32] shows, that is not the only provision which will have to be scrutinised. It is clear that other provisions in the LPA on the relevant checks and balances against the possibility of floodgates may well also be brought into play.
[58] The remaining question to be determined at the leave application stage is whether the RC’s decision is susceptible to judicial review. This issue arises because the Law Society takes the position that the RC’s decisions are not reviewable. While Mr Daniel stated in his written submissions that he did “not wish to delve too deeply” into the substantive arguments on this subject – since he recognised that the appropriate forum for raising these arguments would be at the leave application hearing – it is clear from the broad outline of his arguments that he principally relies on three exclusively local sources of material. The first is the LPA and the disciplinary proceedings framework contained therein. Mr Daniel points, for example, to the fact that the LPA is silent on whether the RC’s decisions can be reviewed and also to existing provisions such as s 96, which carve out specific avenues for a dissatisfied complainant to further pursue his complaint. It is argued that these aspects of the disciplinary framework, among others, do suggest that the RC’s decisions are not reviewable. Second, Mr Daniel also relies on certain views expressed by the Minister for Law during the second reading of the Legal Profession (Amendment) Bill 2008 (Bill 16 of 2008) to show that, in enacting s 91A of the LPA, Parliament intended to limit the judicial review of decisions made under the LPA more generally. Finally, Mr Daniel also points to several local authorities which he says supports the non-reviewability of the RC’s decisions.
[59] Let me be clear that I am in no way endorsing the soundness of Mr Daniel’s arguments. By canvassing his arguments in this context, I have simply sought to show that the Law Society does not seek to establish the non-reviewability of the RC’s decision through the quintessentially administrative law inquiry into either the source or nature of the RC’s powers. There therefore appears to be no need for Mr Sharma to go down that road in arguing that the RC’s decisions are reviewable. I do not say that the principles of administrative law are therefore completely irrelevant. Administrative law principles are indeed relevant, but it should be recognised that they are relevant only in so far as they put the matter of reviewability in issue at the leave stage. Once the court begins to address its mind to this issue, however, administrative law principles recede into the background. This is because it appears from the way in which the Law Society seeks to argue its case that the inquiry will then gravitate towards an analysis of whether Parliament intended to exclude judicial review of decisions by the RC. Discerning Parliament’s intention in turn requires one to look inescapably to various sources of material which, as I again stress, are wholly local in origin. In the event that the court determines that Parliament did not intend to exclude judicial review, then the objection should accordingly fall away.
[60] With these observations in mind, I return to the question at hand: does the Applicant have special qualifications or experience for the purpose of the case? Evidently not. While the Applicant is clearly well-versed in the principles of judicial review, that does not inexorably mean that he is well-placed to argue all kinds of judicial review proceedings. The potential issues arising in those proceedings have to be looked at closely and, having done so, I am in no doubt that it attracts an abundance of local content. I have not, however, been pointed to any, much less special, qualifications and/or experience which the Applicant may have in dealing with these domestic sources of law. Putting it bluntly, it is simply not clear what the Applicant can bring to the table given the highly local-centric nature of the issues arising at both the leave application stage and at the substantive hearing for the quashing order.
The Applicant’s statement
[61] Before moving on, I make one final point to underscore the position which I have reached. This concerns the observation which I made in my introductory remarks (at [5]) that the Applicant had filed a statement in support of the present application containing the following paragraph:
[62] This amply shows that, by the Applicant’s own candid assessment, he did not meet all the necessary requirements to be admitted under s 15 of the LPA (which is mistakenly referred to as the Legal Practitioners Ordinance above). While it is true that the Applicant may not have explicitly identified subsection (1)(c) as the requirement that was unsatisfied, I do not see how he could possibly have been referring to anything else when this statement was made. The Applicant clearly had no difficulties satisfying the formal mandatory requirements in ss 15(1)(a) and (b). He was obviously referring to satisfying requirements under s 15 which are personal to him. He could not possibly be referring to the remaining issues raised by the “special reason” requirement in s 15(2) and the factors in the Notification since these are matters which are not for the Applicant to satisfy and were in fact dealt with in a separate affidavit affirmed by Mr Sharma in support of the same application. I am further fortified in my view that the Applicant must have had s 15(1)(c) in his contemplation because a procedural practice has developed whereby the foreign senior counsel seeking ad hoc admission will typically make an affidavit affirming those matters within his personal knowledge, and this will particularly involve him having to state whether he can expertly discharge his duties in the case at hand. The following observation by Rajah JA in Re Caplan at [22] appears to be the genesis for this practice:
[63] Accordingly, I have no doubt that the Applicant must have been addressing his mind to the specific requirement in s 15(1)(c) when his statement was made. The contents of his statement could only have related to matters within his own personal knowledge and that quite clearly does not extend beyond the requirements in ss 15(1)(a)–(c). When this is coupled with my earlier observation that the Applicant had no difficulties satisfying the formal mandatory requirements in sub-ss (1)(a) and (1)(b), one can fairly surmise that the Applicant must have specifically identified and concluded that sub-s (1)(c) was a hurdle to his application. This, however, leaves the possibility that the Applicant may have simply made a careless mistake in stating that he did not fulfil all the requirements in s 15 when he actually meant to say that he did. I am not convinced of this. This is because the presence of the word “notwithstanding” at the beginning of his statement (see [61] above) could not have been a typographical error which was inserted unthinkingly. The Applicant was clearly acknowledging through his statement that he did not satisfy all the requirements in s 15 of the LPA but was nevertheless hoping to obtain special dispensation from the court to be so admitted. The Applicant has not, in any event, suggested that the first statement was mistakenly made. All things considered, then, it appears safe to say that my conclusion in respect of 15(1)(c) is well aligned with that of the Applicant himself. The Applicant’s assessment that he did not satisfy all the requirements under s 15 of the LPA is, after all, in line with his own opinion that the three grounds of review are all local-centric in nature.
[64] I mention, for completeness, that the Applicant did file a second statement with amendments to his first. The relevant portion is extracted here as follows:
[65] It is clear that the overall effect of these amendments, significantly, was to convey the exact opposite of what the Applicant’s first statement stated. It appears that, now, the Applicant did satisfy all the requirements under s 15 of the LPA. However, this second statement was not without its problems. As has already been mentioned, this second statement was filed without leave of court just two days before the hearing. The filing of the second statement was also not brought to the court’s attention by Mr Vergis during the hearing. This procedural irregularity (the filing of the second statement without leave) was instead raised by Mr Daniel during his oral submissions. There was, in any event, no explanation provided whatsoever for the obvious change in position or why the Applicant had earlier stated that the requirements under s 15 were not met. These aspects of the second statement were clearly unsatisfactory and thus I was not minded to take it into account.
Whether there is a “special reason”
[66] Having found that the Applicant does not satisfy the mandatory requirement in s 15(1)(c) of the LPA, there is strictly no need to continue with the analysis. Nevertheless, I shall proceed to do so in the event that I am mistaken. In this part of the judgment, I consider whether there is a “special reason” to admit the Applicant pursuant to s 15(2) of the LPA read with r 32(1) of the Admission Rules. This issue arises because there is no dispute that the Applicant is seeking to be admitted for a case falling within one of the three statutorily ring-fenced areas of legal practice, viz, administrative law.
The applicable principles
[67] Before setting out the parties’ respective arguments, it is useful to begin with several propositions concerning the “special reason” requirement which have emerged from the recent decisions.
[68] First, it is clear that the term “special reason” is one that is incapable of precise definition. In fact, it is neither necessary nor desirable to attempt to define it. This point was well made by Rajah JA in Re Lord Goldsmith at [48]:
[69] The focus is therefore on the particular circumstances of each case and this leads to the second point about the “special reason” requirement – those circumstances must be exceptional in nature (see Re Caplan at [54]; Re Lord Goldsmith at [48]). In this regard, Rajah JA has further clarified that there is no sound policy reason to confine what can constitute exceptional circumstances only to those cases which raise “macro” considerations (ie, considerations which transcended the specifics of any individual case) (see Re Caplan at [54]). While that is likely to be the norm in practice, a case could well manifest exceptionality even though only the private interests of an individual, or issues pertaining solely to him, are involved (see Re Caplan at [54]; Re Lord Goldsmith at [46]).
[70] The two propositions mentioned thus far have been concerned with the “special reason” requirement standing on its own. The third, however, has to do with its place within the broader analytical framework for ad hoc admissions. It is noted that there was, at one point, a preference for an approach known as the “twin key” approach which regarded the “special reason” requirement as one of two keys (see Re Caplan at [48]; Re Lord Goldsmith at [40]). The other key represented the composite list of factors in para 3 of the Notification and both had to be turned successfully in order to unlock the door to ad hoc admission. Importantly, the “twin key” approach did not prescribe a sequence for turning the keys. However, it should be clear from the analytical framework set out at [44] above that the Court of Appeal in Re Beloff (CA) has since taken a slightly different view. In this regard, the Court of Appeal has unambiguously stated (at [50]) that the “special reason” requirement is in the nature of a mandatory threshold requirement that “must be met before turning to the other considerations” [emphasis added]. Nevertheless, it should be stressed that the fact that the “special reason” requirement and the Notification factors now clearly occupy distinct stages of the overall inquiry does not mean that they are entirely separate and distinct from one another – they are still linked. The court must, accordingly, “have regard to the individual considerations in the context of how they relate to or affect one another” (see Re Beloff (CA) at [55]). Putting it in another way, one must avoid viewing the “special reason” requirement and the Notification factors in their individual silos. Such an approach necessarily overlooks their possible interactions with one another and thus might lead to an impoverished analysis.
The parties’ arguments
[71] The main thrust of Mr Vergis’ case was that Mr Sharma had taken conscientious steps to contact no less than 20 local SCs to assist him in either his complaint to the Law Society or his judicial review application. However, all of these SCs who were approached declined to render Mr Sharma an opinion, much less represent him for various reasons including possible conflict of interest. In Mr Vergis’ submission, the practical realities of this case could not be ignored as an important factor which contributed to the lukewarm responses received by Mr Sharma. Mr Yeo SC, it was stressed, is not only a prominent member of the legal fraternity but also of the wider public community. He is a Member of Parliament, a very senior local SC, and a leading figure in one of the largest law firms in Singapore (ie, Wong P); hence, he and his firm would have close professional and personal relationships with many of the leading lawyers and law practices in Singapore. Mr Vergis also added that it was necessary for Mr Sharma to have skilled representation by a local SC (or foreign equivalent) in this case because the three grounds on which judicial review were sought raised “serious matters”, although this was not elaborated upon in his written submissions. Further, he emphasised that this was the first time that a decision of the RC was being subjected to judicial review, thus the question of whether the RC’s decisions were even reviewable was a novel one.
[72] Both the Attorney-General and the Law Society proceeded on broadly the same footing that representation by a local SC or a foreign senior counsel was not necessary. In response to Mr Vergis’ argument on the reviewability of the RC’s decision, the Law Society’s position was that this did not raise a novel point of law because, for the same reasons as enumerated at [58] above, the legislature has already evinced an intention to exclude the RC’s decisions from judicial review. The Attorney-General’s submission on this point was that the novelty of an issue in itself does not translate into the need for representation by only a select pool of local SCs or foreign senior counsel. The complexity and difficulty of the issues involved also had to be weighed in the balance. In this respect, both the Attorney-General and the Law Society submitted that there was nothing to suggest that the issues raised by the judicial review proceedings were so complex or difficult that other local counsel (ie, non-SCs) would not be able to effectively represent Mr Sharma. Therefore, Mr Sharma could not cite the lack of availability of local SCs as a “special reason” for ad hoc admission when there was no basis for him to have restricted his search to only local SCs to begin with. There was a wider pool of competent local counsel from whom he could have sought assistance but, as it turned out, omitted to consider entirely. Moreover, there was also no explanation why Mr Vergis himself could not adequately represent Mr Sharma in his judicial review application given the competence which he displayed in the conduct of this application.
Analysis
Two preliminary observations
[73] I make two preliminary points regarding the parties’ submissions.
[74] First, it may readily be noticed that Mr Vergis’ submission essentially populates the “special reason” requirement with several of the Notification factors. The lack of availability of local counsel, nature of the underlying issues, and necessity for representation by foreign senior counsel are all factors which have been specifically enumerated in para 3 of the Notification (see [36] above). However, in the light of the Court of Appeal’s observation in Re Beloff (CA) that the inquiry into “special reason” is sequentially prior to and distinct from a consideration of the Notification factors, one might pause to query whether merging the analysis in this way is permissible. In my view, there is nothing objectionable per se with such an approach. As has already been pointed out, the Court of Appeal has impressed the importance of recognising that the different parts of the ad hoc admission framework are necessarily linked and not standalone requirements. Therefore, one can ordinarily expect “some degree of overlap” between the Notification factors and the “special reason” requirement (see Re Caplan at [49]). Indeed, I add that it would be unsound to insist on a “special reason” which is invariably different from the factors found in the Notification because that is akin to defining the “special reason” by exclusion.
[75] Second, it is also apparent that the crux of the parties’ dispute concerns the relevant pool of local counsel which Mr Sharma could reasonably have been expected to approach. Should he have approached only local SCs or was this too exclusive a pool? The answer to this question cannot be answered in a vacuum. This is because the pool of competent local counsel necessarily turns on a prior evaluation of the nature of the issues. The more the issues are complex or difficult, or novel, or of significant precedential value, “the smaller might be the pool of local advocates able and available to deal with the case at hand and the greater might be the need for the admission of foreign counsel” (see Re Beloff (CA) at [61]). With this in mind, I shall first consider Mr Vergis’ submission on the nature of the issues raised in the underlying proceedings.
The nature of the issues
[76] As earlier noted in the context of discussing s 15(1)(c) of the LPA, the central issues potentially arising in the underlying judicial review proceedings are entwined with the three grounds on which the RC’s decision is sought to be quashed (see [51] above). Quite apart from the fact that these issues are local-centric in nature, I also find that there is nothing particularly difficult or complex about them. However, before proceeding to illustrate how I came to this view, I pause to emphasise that I should not be mistaken as attributing determinative weight to or even prioritising the relative complexity or difficulty of a case in every application for ad hoc admission. Such an approach harkens back to the position prior to the 2012 Amendment and that would be most unfortunate given how the jurisprudence has since then wisely recognised the new emphasis under the current framework (see [42]–[43] above) and, consequently, developed along its own path. I stress that the complexity and difficulty of the underlying issues have only been accorded the attention which it has here because it is Mr Sharma’s case that a “special reason” exists on account of the lack of availability of local counsel to assist him in his judicial review application and that, as I have said in the preceding paragraph, is an inquiry that is inextricably dependent on the nature of the issues. Put simply, the “special reason” cited in support for this application has the effect of driving the analysis unavoidably towards an examination of the nature of the issues. The following observations which I make on the complexity and difficulty of the issues must therefore be understood with this important caveat in mind.
[77] The first of the proposed grounds for review rests solely on the proposition that objectively gross overcharging can constitute professional misconduct in and of itself. However, I do not see how it will require any intricate or sophisticated submissions to establish this. During the hearing, I quizzed Mr Vergis on the legal foundation for this proposition and he was able to immediately direct me to the decision in Susan Lim where the court had stated, in the context of considering a lawyer’s ethical duties at [51], that “the presence of … additional factors is unnecessary, and … overcharging can – in and of itself – constitute professional misconduct”. To be clear, I am not saying that the RC’s decision should be quashed in the light of this authority. The point which I am merely making is that the legal proposition sought to be established does not appear to be a particularly controversial one which, for example, has to be extracted from a long line of (perhaps conflicting) authorities. Further, Mr Vergis has demonstrated that he is well-acquainted with this proposition and more than capable of advancing it in the judicial review proceedings.
[78] The second ground for review also raises the rather straightforward issue of whether the RC was correct to take into account the work of all the solicitors involved when no certificate for more than two solicitors had been obtained by Wong P. It should be stressed that there are no factual disputes here. It is clear from the face of each of the three bills which were rendered that, indeed, no certificate for more than two solicitors had been issued. The only issue raised by this ground is one of law – was the RC correct to take into account the work of all the solicitors involved notwithstanding the procedural rule in O 59 r 19? Again, I fail to see how the resolution of this issue can attract much difficulty. It ostensibly turns on the application of a particular provision of the Rules of Court, and that is precisely the kind of question which arises in our courts every day.
[79] The third ground engages the legal issue of whether the RC had fundamentally misunderstood its own role in finding that Mr Yeo SC was not involved in the matters complained of. As I had stated earlier at [55], the arguments made pursuant to this ground will necessarily revolve around the relevant provisions in the LPA which set out the entire scheme for disciplinary proceedings against lawyers. This will primarily involve an exercise in statutory interpretation to ascertain the true role of the RC and, once more, I am not convinced that it will either be complex or difficult to undertake.

The judgment continues past this page. Read the rest at eLitigation.

Re Michael Fordham QC

Laws this judgment relies on

Grounds of decision

Introduction

Background facts

The proceedings between the SMC and Dr Lim

The claim for costs against Dr Lim

Mr Sharma’s complaint to the Law Society

Mr Sharma’s application for judicial review

The present application for ad hoc admission

Mr Sharma’s standing to complain to the Law Society

The analytical framework for ad hoc admissions

The present statutory framework

The relevance of earlier cases

The present analytical framework

Whether the Applicant has “special qualifications or experience for the purpose of the case”

The parties’ arguments

Analysis

The local-centric nature of the underlying issues

The Applicant’s statement

Whether there is a “special reason”

The applicable principles

The parties’ arguments

Analysis

Two preliminary observations

The nature of the issues