Legal Profession

Citation(2002) 3 SAL Ann Rev 324
AuthorTAN YOCK LIN BSc (Lond), Dip Econ Devt, BA, BCL (Oxon), Professor, Faculty of Law, National University of Singapore
Publication Date01 December 2002
Date01 December 2002
Introduction

18.1 The law of the legal profession may be classified narrowly as confined to the regulatory and disciplinary aspects of the legal profession or broadly so as to include aspects of the general law of torts, contracts, trusts and evidence as they apply to an advocate and solicitor in his dealings with a client and third parties on behalf of a client. A broad classification is justified on the ground that the general law as it is applied to an advocate and solicitor is not merely modified in degree but frequently also more or less in kind. On that broad classification, we can count twelve cases on the legal profession reported in 2002 which figure in this rapid overview.

Ad hoc admission

18.2 Ad hoc admissions of Queen”s Counsel (“QC”) dominated the litigation in the year of review. Everybody knows that the three-stage test by which to decide whether the admission succeeds is firmly ensconced but, as the cases reported show, questions of application at all stages were agitated.

18.3 The first stage which requires that there be a point of law or fact or mixed fact and law of sufficient difficulty and complexity to require elucidation by a QC is the most concrete. Either there is or there is not a point of difficulty and complexity. Affirmation or rejection of this must be precise and exact and, consequently, over-generalisation of the case for admission on this score is usually fatal to the intended admission. Like Re Howe Martin Russell Thomas QC[2001] 3 SLR 575 which was reported last year and reviewed in (2001) 2 SAL Ann Rev 338 at paras 18.7—18.8, Re Nicholas William Henric QC[2002] 2 SLR 296 was an effective illustration of this shortcoming. In the primary litigation, Chee Soon Juan was the defendant alleged to have defamed the Prime Minister of Singapore, Goh Chok Tong, and the Senior Minister, Lee Kuan Yew, in the hustings. The defendant desired to be represented by Nicholas QC and Martin Lee QC and swore an affidavit in support of the applications for ad hoc admission which stated in general terms that:

“The cases are extremely complex defamation matters, involving factual and legal issues of publication and republication; qualified privilege,

contextual truth, comment and justification; there are also counterclaims in defamation and third party claims.”

It was held that these were bald assertions which did not enable the court to be satisfied that there were difficult and complex issues of fact and law in the primary litigation. The mere fact that there were counterclaims against the Senior Minister and third party claims against certain publishers might complicate matters in adding to the length of the case but did not, without more, excite points of difficulty and complexity. (The point about the applicant being the person who should provide the affidavit was not taken here but was taken in the case discussed finally below, viz, Re Lee Chu Ming Martin QC[2002] 4 SLR 929.)

18.4 By no means to be overlooked, there was an allusion to the need at the second stage to balance difficulty and complexity of law or fact on the one hand against availability of local representation on the other. Let us recall that the second stage is where the court may refuse the applicant ad hoc admission if the applicant is unable to persuade the court that the circumstances of the case warrant his admission. The theory that there is a balancing to be done predicates that there is a range of difficulty and complexity once the threshold is passed as well as a range of conditions of availability of local representation. Both predicates are reasonable although there is some difference in the way the courts perceive them. In Price Arthur Leolin v Attorney-General[1992] 2 SLR 972 at 977, Yong Pung How CJ said:

“The court has to balance the long-term need to foster a strong and independent Bar in our own jurisdiction against the individual justice of each case which may demand that a particularly specialised and skilled Queen”s Counsel be permitted to assist the court.”

However, the balance as Chan Sek Keong J (as he then was) perceived it in Re Oliver David Keightley Rideal QC[1992] 2 SLR 400, is between laying a strong foundation for the development of the local Bar and freedom of choice of counsel.

18.5 Be that as it may, it would be wrong to suppose that all cases at the second stage necessarily entail a balancing. Even at the threshold level of difficulty, local representation may be unavailable for various reasons. For instance, in a country of small size, a profession of small size is inevitable, and when the number of first rank specialists in a particular field is very small, and conflict of interests reduces that number to virtually nothing, there will be no real question of balancing. This possibility was acknowledged in Price Arthur Leolin v Attorney-General although there is still to be an illustrative case. Re Nicholas William Henric QC was almost the first of its kind when the applicant implied that the politically inconvenient defence left the defendant

with no real local representation. The applicant, however, offered no proof to warrant the court embarking on a serious appraisal of the argument.

18.6 There may also be no question of balancing where the point to be decided is not only difficult and complex, but novel, and comparative perspectives are desirable in order that the decision to be made may benefit from the widest possible ventilation of pertinent views. Re Sher Jules QC[2002] 4 SLR 41 would best be explained in this way although, at first blush, the case seemed to illustrate another novel situation in which local representation might be irrelevant. The primary litigation concerned the recovery by a successor of the telecommunications regulatory authority of a sum of $388m which had been paid to SingTel as compensation for the withdrawal of monopoly rights from SingTel in order to pave the way to the entry of several other telecommunications operators in the Singapore market. The contentions were sharply divided. The regulatory agency claimed that the sum which was part of an overall figure of $1.5 billion represented an estimate of the taxes that would have been payable on the estimated loss of profits flowing from the withdrawal of monopoly rights over the period from 2000 to 2007. In fact and in law, no taxes were payable. Therefore, the sum had been paid under a mistake either of fact or of law and on either basis was recoverable in restitution. The recipient, SingTel, disputed both the facts and the law, relying particularly on the payment being a compromise and the contention that if there was any mistake of fact or law, it ceased to be operative upon payment as a compromise. In the secondary litigation, it was not in dispute that the issues of law which were raised were numerous and of an overlapping nature, and that the applicable laws straddled the fields of restitution and contract and were in a state of evolution. But the learned judge, as he said, had personally followed developments in the pertinent law with keen interest over 10 years and all seemed agreed that local Senior Counsel representing SingTel would be able to provide adequate representation in relation to the issues which were to be decided. The clinching argument, however, was that as the Government of Singapore was a substantial shareholder of SingTel, the prosecution of SingTel”s defence by a non-resident QC was necessary in order to assure international investors in SingTel that there would be no relaxation of the defence on account of any interest that the Government might have in the matter.

18.7 With respect, the clinching argument is not very convincing. Whether or not a QC is involved, counsel acts as instructed by his client and a QC no less than a Senior Counsel must act as instructed. The best test of assurance must, in any case, be in the actual prosecution of the defence and in the fact that the cross-examination record, the tenacity of the defence, and hence the nature of the instructions to counsel will be displayed for all to see. In the present view, there was a better explanation for the ad hoc admission of

Sher QC. The value to be gained by exposure to a comparative understanding of the issues, and their respective impact on commerce, provided a better and more successful explanation for the result in that case. Similar arguments have been successful in at least one constitutional case (see Louis Blom-Cooper v Attorney-General, Malaysia[1979] 1 MLJ 68) and constitutional cases are not the only cases in which comparative understanding may be useful in mapping out the direction in which the law should be nurtured. Where the developing law discloses a diversity of approaches and arguments, indicating that several choices are viable, each choice reflecting a particular trade-off between justice and certainty, and where the context of its intended application is delicate, involving as it does relationships between a regulator, a commercial operator and potentially the tax authorities, this is also where justice might better be done through a comparative understanding of the issues such as a suitably qualified QC might bring to the case. If this is correct, it follows that Re Sher Jules QC was defensible on already familiar grounds and established no new circumstance to be taken into account at the second stage.

18.8 It will already be evident that the second stage is usually more important than the third stage but the defamation suits against Chee Soon Juan furnished an unusual occasion in which the third stage appeared to be prominent. The application for admission of Stuart Littlemore, an Australian QC, (see Re Littlemore Stuart QC[2002] 1 SLR 296) for the defence of Chee Soon Juan in those suits in point of chronology was the first of three applications, with the case of Re Nicholas William Henric QC[2002] 2 SLR 296 following and Re Lee Chu Ming Martin QC[2002] 4 SLR...

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