Legal Profession

• Author: TAN Yock Lin BSc (London), Dip Econ Devt, BA, BCL (Oxford); Professor, Faculty of Law, National University of Singapore.
• Date: 01 December 2008
• Published date: 01 December 2008

Introduction

19.1 Of the seven reported cases reviewed in this chapter, the greater majority was concerned with matters of disciplinary law. In them, there was also to be found considered and authoritative pronouncements as to whether illegally obtained evidence is adducible in the courts of law, as well as in the disciplinary tribunal and court of three judges. These pronouncements would no doubt be highlighted in the Evidence chapter of this review but they were important enough to be noticed in this chapter as well. Further, in one disciplinary case, it appeared that an application for reinstatement was dealt with more leniently than in the cases reviewed last year. It was necessary in this review to locate this case in the context of Knight Glenn Jeyasingam v Law Society of Singapore[2007] 3 SLR 704 by comparing the approach to re-admission recommended in Bolton v Law Society[1994] 1 WLR 512. The non-disciplinary cases comprised a mixed assortment. There was in one a tussle for 60-odd dollars in what was a simple road accident dispute, providing a dramatic setting for the Court of Appeal to issue a strongly worded judicial warning about the role of an advocate and solicitor in case management. In another striking case, the presumption of undue influence was applied to the solicitor who acted for parties to transactions in which the opposite party was the solicitor”s wife. Last but not least, a decision on ad hoc admission continued the recent trend of exacting scrutiny of the requirements, with the court pronouncing that the provisions for ad hoc admission are transitional, and not meant to be a permanent edifice. ‘We are’ said the court, ‘steadily progressing towards the day when this provision can and should be deleted, just like Parliament repealed the Judicial Committee Act (Cap 148, 1985 Rev Ed) more than a decade ago.’

Ad hoc admission again

19.2 Re Millar Gavin James QC [2008] 1 SLR 297 was a second application by Mr Gavin Millar QC for ad hoc admission. This application also failed. The first unsuccessful application, reviewed in (2007) 8 SAL Ann Rev 344 at 344—345, para 19.2, was only partially rejected on appeal. The Court of Appeal had apparently (as counsel agreed) decided that the application for representation in the libel

action, as opposed to the jurisdictional appeal, was premature as the defences to the libel action had yet to be filed. Taking this cue from the Court of Appeal, Mr Millar QC filed the second application, after defences had been filed to the libel action. The applicant”s eminence in the field of defamation law was, as in the first premature application, not in question. So the arguments focused on the application of the first and second stages of the three-stage test for ad hoc admission in the light of some new issues which surfaced at the second application. One was that the plaintiffs were applying for an interlocutory determination of the natural and ordinary meaning of the words complained of as being defamatory and for summary judgment on the basis that the defendants had no defence to the claims (alternatively, that substantial portions of the defences filed should be struck out). Opposing the application, the plaintiffs contended that it again was premature since if the plaintiffs should succeed, there would be no trial and the only remaining issue would be one of damages. This highly technical argument made scant impression on Tay Yong Kwang J who preferred to approach the contention in substance than form. His decision was that interlocutory cases in which the determination would have the practical effect of putting an end to the action must be considered and decided on the same basis as any application for representation in the action. This makes a lot of sense since an application for representation on an interlocutory matter the determination of which would be final in the sense of effectively disposing of the action could hardly be premature and ought to be considered on the same footing as representation by a Queen”s Counsel in the action. [Such actions are not rare. For an example of other interlocutory matters where the grant or refusal of an interim injunction would effectively dispose of the action, see NWL Ltd v Woods[1979] IRLR 478.]

19.3 On a more general note, the learned judge observed (Re Millar Gavin James QC[2008] 1 SLR 297 at [45]) that it would ‘technically [be] possible for Queen”s Counsel to be admitted for limited purposes within a case, although such applications would be rare. For instance, he could be admitted only for the purposes of appearing in summary judgment proceedings, or only for the open court trial or only in appeal proceedings after the trial in a case has concluded.’ No further explanation was given as to why admission for limited purposes within a case would be rare. Indeed, the observation would appear to contradict another observation that the learned judge made, namely, that in some cases, it would not be necessary to admit a Queen”s Counsel if it was sufficient for him to assume an advisory role without being admitted. Both observations would serve to diminish further the scope and availability of ad hoc admission and would seem to pull in the same direction, reflecting the basic attitude that ad hoc admission is a transitional procedure and could in due course be a thing of the past.

19.4 As a matter of practice, it would likely be rare for a Queen”s Counsel to be admitted for limited purposes within the trial. Trials are seldom or hardly capable of being safely decomposed into discrete components, unlike the giving of advice on the law or the evidence which is more easily separated from the conduct and management of the trial in chronology as well as substance. However, the learned judge”s observation that ad hoc admission would be unnecessary when the Queen”s Counsel need only play a purely advisory role assumes that such a role would not amount to an unauthorised practice of law in Singapore. This assumption is not obvious. The practice-of-law provisions of the Legal Profession Act (Cap 161, 2001 Rev Ed), namely, those of s 33, could arguably restrict the possibilities of a Queen”s Counsel lawfully assuming such an advisory role in relation to proceedings before the courts in Singapore. This is because the construction of the element of acting as an advocate or solicitor is not the narrow one espoused in England where the words ‘act as a solicitor’ are limited to the doing of acts which only a solicitor may perform and/or the doing of acts by a person pretending or holding himself out to be a solicitor: see Piper Double Glazing Ltd v DC Contracts (1992) Ltd[1994] 1 WLR 777. In Singapore, however, a wider test is applied which is derived from the judgment of Cussen J in a Victoria case, Re Sanderson, ex p Law Institute of Victoria[1927] VLR 394 at 397, where he said: ‘What I do decide is that if a person does a thing usually done by a solicitor, and does it in such a way as to lead to the reasonable inference that he is a solicitor — if he combines professing to be a solicitor with action usually taken by a solicitor — I think he then does act as a solicitor.’ (See Turner East Asia Pte Ltd v Builders Federal (Hong Kong) Ltd[1988] SLR 1037.) The giving of advice by a Queen”s Counsel in connection with legal proceedings in Singapore is arguably an unauthorised practice of law since such giving of advice is a thing usually done by an advocate or solicitor unless by some stretch of reasoning it can be said that when the Queen”s Counsel is doing this at the behest of the solicitor on the record, he is not professing to be an advocate or solicitor.

19.5 Another new point raised by the applicant as a contention was that in defamation cases a principle of equality of arms should be recognised, although he probably conceded that there was no general principle to that effect. Without deciding specifically whether the qualification made for defamation was valid, the learned judge held on principle that ‘[i]f the defendants” arguments on equality of arms were correct, every case in court would need opposing lawyers of the same or nearly the same stature and seniority. That, in my opinion, would lead to absurd consequences’: Re Millar Gavin James QC[2008] 1 SLR 297 at [42]. Indeed, as explained in Re Godfrey Gerald QC[2003] 1 SLR 461, the High Court”s reference in Re Beloff Michael Jacob QC[2000] 2 SLR 782 to the principle of a level playing field was made only after the court had

arrived at the conclusion that the factual and legal matrix of the case was sufficiently complex and difficult to warrant the admission of a Queen”s Counsel on the plaintiff”s behalf. The reference, thus, did not mean that because the plaintiff was warranted in being represented by a Queen”s Counsel, therefore the defendant should also be placed on a similar footing. The application by the defendant”s Queen”s Counsel succeeded not by reason of the plaintiff”s successful application but because there was nothing to show that the proven complexity which warranted success for the plaintiff was not also true of the defendant”s application. Was there, however, any special consideration to warrant treating defamation cases differently? In the present view, the answer is in the negative. The ad hoc admission procedure is facultative, and far from one that imposes on the courts a positive obligation to ensure that there is litigational equality of opportunity. Indeed, if the court were, despite the absence of any positive obligation, to carve out an exception for defamation, why should it stop there and would it logically be possible to stop there?

Fiduciary duties

19.6 In Malayan Banking Bhd v Sivakolunthu Thirunavukarasu[2008] 1 SLR 149, the presumption of undue influence was held to be applicable to Mr Dass, a solicitor acting for vendors (the second to fourth defendants), who were selling to purchasers (the first and second defendants), as...