Legal Profession

• Citation: (2003) 4 SAL Ann Rev 354
• Author: TAN YOCK LIN BSc (London), Dip Econ Devt, BA, BCL (Oxford), Professor, Faculty of Law, National University of Singapore
• Published date: 01 December 2003
• Date: 01 December 2003

Introduction

18.1 Even as the year of review drew to a close, the legal profession found itself facing challenging responsibilities when a spate of defalcations forced it to reconsider its rules of professional conduct. These defalcations were not reflected in the year”s crop of professional misconduct cases; a mere two cases were reported. However, both were only too rich in dramas and surprises and if none pushed the envelope forward, both revealed the propositions of professional disciplinary law in entirely fresh perspectives. Cases on ad hoc admissions continued apace and, as is so typical these days, none was successful. Another noteworthy case served faintly to remind legal practitioners of the perils of representing lender and surety in related transactions, when the borrower and surety are husband and wife. It will certainly not be the last word on the subject.

Ad hoc admissions

18.2 Among watchers of the legal skies, few have not marvelled at the speed and intensity with which established notions are challenged, revised, and even turned upside down. Our legal age may perhaps go down as the age of innovation. Law making now proceeds at a furious pace and it is increasingly hard to keep abreast of developments in common law, let alone statute law. Arising out of this, the pressure to secure ad hoc admission, so that the latest views in leading common law jurisdictions may be canvassed, will not quickly abate. In the last review, for instance, four cases on ad hoc admission were noted and in three of them, the developing law of defamation, and in the fourth, the developing law of restitution, were the alleged subjects of difficulty and complexity.

18.3 Judged by numbers, the case law in 2003 was not inferior. The alleged subjects of difficulty ranged from the law of private banking to canon law. In the first of these four cases, Re Godfrey Gerald QC[2003] 1 SLR 461, representation by the applicant was sought for his alleged expertise in the law of private banking. The application arose out of a Mr Wee”s dissatisfaction with the financial advice he had got from his bankers. Finding his large Malaysian Ringgit holdings under peril of loss, he had sought and acted under the financial advice of the bank. Afterwards he found himself worse off

because as interest rates on Ringgit deposits shot up, he would have done considerably better had he stuck to his holdings and done nothing at all. He instituted an action against the bank alleging, among other things, misrepresentation of the strategy, which he had adopted under advice, and after two short-lived representations by local Senior Counsel, became a litigant in person. Afflicted with an ailing condition and failing health, he proved unable to keep up with the trial schedule and commitments and the result was that his case had been in active litigation for a while when application was made by the applicant to represent him.

18.4 Rejecting the application, the judgment of Tay Yong Kwang JC (as he then was) followed the classic three-stage test of ad hoc admission. Was there a point of difficulty and complexity requiring elucidation by a Queen”s Counsel (‘QC’)? Denying that there was, the learned judicial commissioner saw nothing so difficult and complex about the points raised that they could not be resolved by an extension or a refinement of the existing law. Assuming the first-stage requirement was met, should the court exercise the discretion to admit? He held that there was no shortage of Senior Counsel whom Wee could engage to represent him. Finally, did the applicant possess special qualifications for the purposes of the case? He held that impressive though his credentials were, the applicant had no special expertise and experience in the law of banking. The result was that Wee failed to secure representation by the applicant.

18.5 Against this rejection, the applicant appealed but before the appeal was heard, Tay Yong Kwang J (as he had become) received a second application to admit Mr Richard de Lacy QC for Mr Wee in his suit against the bank. In this second application, reported in Re De Lacy Richard QC[2003] 4 SLR 23, the applicant essentially renewed the argument that the main suit raised difficult and complex issues requiring elucidation by a QC. In the view of the court, there was a short answer to this. The point could not be revisited unless there had been a material change in the facts of the case; but there had been no material change in the circumstances of the main suit. (This was in agreement with the decision in Re Lee Chu Ming Martin QC[2002] 4 SLR 929, reviewed in (2002) 3 Ann Rev 324 at para 18.12.) Even if it was permissible to re-visit the first-stage test, the facts and legal issues were not of sufficient difficulty and complexity to warrant elucidation by a QC.

18.6 Tay Yong Kwang J was less demanding about the second-stage requirement. If there were new materials before the court relevant to the exercise of the court”s discretion to admit an applicant, he would be ready to embark upon a fresh exercise of the discretion. The mere fact that only a short time has elapsed between the first and second applications would not be fatal. There was, however, no new material which might merit a fresh exercise of the

discretion. Perhaps as an after-thought, one factor was singled out as being, at any rate, against a favourable exercise of the discretion. This was that as the predicament in which Wee found himself was entirely of his own making, the court”s discretion should not be exercised in his favour in the circumstances. With respect, the point made is almost tabula rasa. The exercise of the discretion affects to find some passable compromise between the advantages which the applicant”s client perceives will be gained by the representation and the need to foster development of the local bar. If so, it should not matter that a litigant has created circumstances in which he has made it difficult for him to secure local representation. The section was never intended to be punitive or to present an occasion to deprecate such conduct; a punitive view would certainly not be in accord with the history of the section and its interpretation hitherto by the courts. In any case, the learned judge”s point would be obiter as Mr Wee”s second applicant also failed to secure admission.

18.7 In Godfrey Gerald QC v UBS AG[2003] 2 SLR 306, the Court of Appeal considered the appeal from the decision of Tay Yong Kwang JC in the first application noted earlier. The applicant articulated or framed seven issues which would arise in the main proceedings. These issues were described as difficult or complex, as they revolved around the ‘significant legal concepts’ of ‘foreign exchange contracts, spot rates, derivatives and loss limiting schemes’, all of which had ‘highly technical financial ramifications’. The Court of Appeal was firmly of the view that s 21 of the Legal Profession Act (Cap 161, 2001 Rev Ed) required proof that the issues were difficult and complex in the conjunctive sense. On the assumption that it was sufficient that they were either difficult or complex, the court was nevertheless not persuaded that the applicant”s case succeeded on the threshold requirement. Compared with the formulation of the issues at first instance, the formulation here was more particular but still too general for the court to discern where the difficulty or complexity in the case lay. As the court held at [18]:

If anything, the dispute appeared to be primarily a factual one that the High Court could determine on the basis of documents and witnesses” testimony and its evaluation of the evidence …

18.8 It might be noted, by way of comment, that the issues at the appellate level were not quite formulated as they had been at the application before Tay Yong Kwang JC. The law with respect to which the issues had then been formulated was the developing law of private banking. The applicant on appeal, however, would appear to have shifted to the more technical aspects of foreign exchange law. It is never too impressive when things like that happen, not the less so when the very rapid change in issues is offered as evidence of difficulty and complexity. The applicant”s failure to impress the Court of Appeal on the difficulty and complexity requirement stemmed in other words not so much from the greater precision with which the issues arising were

formulated but from the underlying shift in legal foundation. No wonder that the court did not think that anything other than factual issues was being raised or that the case would be tried on any significantly difficult legal theory.

18.9 Discerning judicial attitudes from one or two cases is a speculative exercise and sometimes dangerous but it would appear that compared with past cases, there may now be a little hardening towards ad hoc admissions which are founded solely on the presence of factual difficulties and complexities in the main proceedings. As already indicated in Re Howe Martin Russell Thomas QC[2001] 3 SLR 575, reviewed in (2001) 2 SAL Ann Rev 338 at para 18.8 it must be shown that the factual allegations would require particular skill and experience to expatiate and prove before the issues of fact can be said to be difficult and complex. The instant case furthermore would strongly suggest that issues of fact will not be regarded as difficult and complex by reason only that they are copious and tedious or that their proper appreciation and determination would require meticulous case management, painstaking exposition, and elucidation. As the trial judge had said, which the Court of Appeal endorsed, ‘A long story is not necessarily a complicated one.’

18.10 In this appeal which was argued by Wee himself, Wee also took issue with the trial judge”s exercise of discretion at the second stage. That exercise had of course been unfavourable to him. Before the Court of Appeal, however, it transpired...