CBB v Law Society of Singapore

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 29 January 2021
• Neutral Citation: [2021] SGCA 6
• Year: 2021
• Docket Number: Civil Appeal No 43 of 2020
• Published date: 03 February 2021
• Hearing Date: 01 December 2020
• Plaintiff Counsel: Jamal Siddique Peer, Leong Woon Ho and Chia Wan Lu (Shook Lin & Bok LLP)
• Defendant Counsel: Tan Wee Kheng Kenneth Michael SC (Kenneth Tan Partnership) (Instructed counsel), Lim Tat and Kang Hui Lin Jasmin (Aequitas Law LLP)
• Court: Court of Appeal (Singapore)
• Citation: [2021] SGCA 6
• Subject Matter: Mandatory order,Civil Procedure,Costs,Administrative Law,Remedies

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

The appellant complained to the respondent in respect of a lawyer (“Mr L”) and, in particular, Mr L’s conduct in assisting the appellant’s mother to establish a trust and to carry out certain work. That work was relevant to mental capacity proceedings that culminated in our decision in Re BKR [2015] 4 SLR 81 (“Re BKR”). Because certain aspects of the appellant’s complaint pertained to matters that arose more than six years prior to the date of the complaint, by virtue of s 85(4A) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”), the Council of the Law Society (“the Council”) was required to seek the leave of court under s 85(4C)(a) of the LPA before it acted on the complaint. The Council decided that it would not seek such leave and provided two reasons for that decision not to seek leave, namely that (a) the complaint was made by the appellant in his personal capacity and not as a client; and (b) the events in the complaint were time-barred.

Dissatisfied with the Council’s decision, the appellant commenced Originating Summons No 1382 of 2018 (“OS 1382”), seeking to set aside that decision and an order directing the Council to make the necessary application to the court for leave to advance the complaint. The matter was heard by a High Court Judge (“the Judge”) who held on 3 January 2020, having examined the Council’s reasons, that it had acted irrationally. As to the Council’s first stated reason, the fact that the complaint was made by the applicant in his personal capacity was not a relevant consideration when deciding whether leave should be sought under s 85(4C)(a) of the LPA. This was so because the disciplinary framework in Part VII of the LPA exists in order to maintain the high standards and good reputation of the legal profession: see CBB v Law Society of Singapore [2019] SGHC 293 at [84]. The material issue centred on the nature of the conduct in question rather than the precise capacity in which the complainant had acted. As to the Council’s second stated reason, the fact that the time limit in question had been exceeded could not be the only relevant consideration in deciding whether to apply to the court for permission to act. That fact, after all, was what made it necessary to apply for such permission. The Judge considered that the Council had failed to take into account relevant factors in refusing to seek leave since it wholly neglected to consider the merits of the appellant’s claim: at [85]. The Judge accordingly quashed the Council’s decision. The Judge, however, declined to make an order requiring the Council to bring the necessary application to the court. Instead, he made an order directing the Council to reconsider its decision. Finally, the Judge made no order as to costs.

Before us, the appellant appealed against the latter part of the Judge’s decision and sought, instead, a mandatory order compelling the Council to apply for leave pursuant to s 85(4C)(a) of the LPA. Section 85(4C)(a) of the LPA states that “[t]he Council may, with the leave of the court … refer a complaint of the conduct of a regulated legal practitioner to the Chairman of the Inquiry Panel under subsection (1A) after the expiration of the period referred to in subsection (4A)”. The appellant also appealed against the Judge’s decision not to make any order as to costs. We allowed the appeal in respect of the mandatory order but dismissed it in respect of the Judge’s disposal on costs. We now set out our grounds. We begin by setting out the relevant background.

Facts

Certain aspects of Mr L’s precise involvement in setting up the trust and effecting the transfer of assets belonging to the appellant’s mother can be gleaned from our judgment in Re BKR as well as the first instance decision in AUR and another v AUT and others [2012] SGDC 489. We do not propose to rehearse the details here; nor do we set out in any detail the correspondence that transpired between the appellant and the respondent following the appellant’s complaint, as this has been sufficiently set out in the Judge’s decision below. It may be noted that the present appeal was concerned only with the remedy that the Judge ordered after he found that the Council had acted irrationally. The latter finding was not contested before us. Relevant for our purposes was the fact that, almost eleven months after the Judge’s decision, the Council did not appear to have taken steps to reconsider its initial decision.

The parties’ cases

The appellant mounted two submissions on appeal. First, he accepted that as a general rule, where a decision is set aside, the matter should be placed before the designated decision-maker for reconsideration. As against such an order, a mandatory order requiring the decision-maker to perform its duty in a particular manner would tend to have the effect of displacing the decision-maker altogether. However, he argued that this may nonetheless be warranted where in truth, there is only one result that is legally open to the decision-maker on the proper construction of the statute conferring the decision-making power or discretion. He asserted that in this case, the only proper decision legally open to the Council was to apply for the court’s leave under s 85(4C)(a) of the LPA, having regard to: (a) the length of and reasons for delay in bringing the complaint; (b) the serious and egregious nature of Mr L’s conduct; and (c) the meritorious nature of the appellant’s complaint. Second, the appellant argued that costs should be awarded in his favour. The appellant relied on the general rule established in Vellama d/o Marie Muthu v Attorney-General [2013] 1 SLR 797 at [37] that costs in judicial review proceedings follow the event. He further contended against the applicability of the countervailing principle established in Baxendale-Walker v Law Society [2008] 1 WLR 426 (“Baxendale-Walker”) and accepted in Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279 (“Top Ten”) at [24] that no costs should be ordered against a public body carrying out a public regulatory function. In arguing for a departure from the Baxendale-Walker principle, the appellant cited: (a) the respondent’s ambiguous responses to the appellant’s complaint; (b) the respondent’s lack of candour during OS 1382 that necessitated the anticipation of an array of arguments; and (c) the public interest inherent in his own application which ultimately was directed at the protection of vulnerable and elderly clients.

The respondent disagreed with these submissions. Reaffirming the principle that judicial review is concerned with the decision-making process rather than the merits of a decision, the respondent argued that a mandatory order directing the Council to apply for leave would unduly fetter the discretionary power conferred upon it by Parliament, especially since s 85(4C)(a) of the LPA states that “the Council may, with the leave of the court … refer a complaint” (emphasis added). The respondent cited a number of cases in which the court, having found the decision-making process to be defective in some way, had remedied this by making a mandatory order compelling the decision-maker to reconsider the relevant decision. Although the respondent accepted that factors such as the merits of the complaint were relevant to the Council’s decision under s 85(4C)(a) of the LPA, it contended that “two reasonable persons could quite ‘perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable’”: Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582 at [95]. With regard to costs, the respondent argued that: (a) the appellant had failed in many of his claims and assertions and obtained only a narrow order in OS 1382; and (b) the respondent should not, under the Baxendale-Walker principle, be subject to an adverse costs order when such costs are incurred in the course of performing its public function.

Whether a mandatory order should be granted directing the Council to apply for leave pursuant to s 85(4C)(a) of the LPA

It is clear, and this much was not disputed, that where a court finds that the process by which a decision was reached was defective under any of the traditional grounds of judicial review, it will not generally mandate the performance of the administrator’s duty in a particular manner. Otherwise, by doing so it would, in truth, be a decision of the court rather than that of the designated decision-maker and that might undermine not only the separation of powers, but also the sacrosanct principle that the court, in judicial review proceedings, reviews an administrator’s decision-making process rather than the merits of the decision: City Development Ltd v Chief Assessor [2008] 4 SLR(R) 150 at [9] and Borissik Svetlana v Urban Redevelopment Authority [2009] 4 SLR(R) 92 (“Borissik”) at [42]–[43]. We affirm the wisdom of the observation set out in R v Justices of Kingston (1902) 86 LTD 589 (“Justices of Kingston”) (applied in Re San Development Co’s Application [1971-1973] SLR(R) 203 (“Re San Development”) at [15] and Borissik at [21]), that:

… it is an important matter which should be thoroughly understood, that this court does not by mandamus direct justices or any public body or anyone else upon whom a duty is cast, how and in what manner they are to perform their duty. I think also that even where the facts are all admitted, so that in the particular circumstances of the particular case – there happens to be but one way of performing that duty still the mandamus goes to perform the duty and not to perform it in a particular way.

The principle articulated in Justices of Kingston might even be said to apply with greater force in cases such as the present one where the error in the decision-making process pertains to the exercise...