Comment - LAWYER'S RESPONSIBILITY NOT TO PURSUE A CLAIM OR APPLICATION OR APPEAL FAVOURED BY THE CLIENT WHERE THE INTEREST OF THE ADMINISTRATION OF JUSTICE WILL BE COMPROMISED

Citation(2020) 32 SAcLJ 1219
Publication Date01 December 2020
AuthorJeffrey PINSLER SC LLB (Liverpool), LLM (Cambridge), LLD (Liverpool); Barrister (Middle Temple); Advocate and Solicitor (Singapore); Geoffrey Bartholomew Professor, Faculty of Law, National University of Singapore.
Date01 December 2020
I. Introduction

1 The recent judgment of the Court of Appeal in Singapore Shooting Association v Singapore Rifle Association1 (“SSA v SRA”) has again raised the responsibility of the lawyer to the administration of justice when conducting litigation. The adversarial culture in most common law countries can foment the belief that a client's desire to proceed with a claim, application or an appeal regardless of a potentially adverse or disproportionate outcome is sacrosanct leaving the lawyer with no say in the matter. This is a misconception that has been repeatedly exposed by the Singapore Court of Appeal in a series of cases.2 Furthermore, as will be shown, the rules of ethics clearly require the lawyer to exercise his own professional judgment in conducting a case in court in the light of his duty to uphold the interests of the administration of justice.

II. Impact of recent cases

2 SSA v SRA concerned a dispute over a resolution passed by the Singapore Shooting Association's (“SSA's”) Council purporting to suspend the Singapore Rifle Association's (“SRA's”) privileges at the National Shooting Centre. The SRA sought declarations relating to the validity of the resolution and brought a claim against the second to fourth appellants (“the individual defendants”) for conspiring to cause it damage by procuring the passage of that resolution. The Court of Appeal concluded that “the conspiracy claim ought not to have been part of the proceedings in the High Court”.3 Several reasons underlay this finding: the SRA was not authorised to bring the conspiracy claim pursuant to s 31(2) of the Charities Act;4 the claim was “ultimately ill-founded for lack of actionable loss or damage”;5 and, furthermore, “[m]ost strikingly, even if SRA had succeeded in the conspiracy claim, the most it stood to recover, on its best case, was a sum of $63,200, far below the threshold for a claim to be mounted in the High Court”.6 The Court of Appeal also observed that the conspiracy claim took up 11 days of hearing, involved five lawyers in the High Court and six lawyers in the Court of Appeal.7

3 In the circumstances, the Court of Appeal declared that the litigation was disproportionately conducted by the SRA.8 It reiterated its observations in Lam Hwa Engineering & Trading Pte Ltd v Yang Qiang9 (“Lam Hwa”) concerning the ethical duty of lawyers to undertake a proper risk-benefit evaluation at each stage of the proceedings pursuant to r 17(2)(e)(i) of the Legal Profession (Professional Conduct) Rules 201510 (“LP(PC)R 2015”). This provision states that a legal practitioner “must, in an appropriate case, together with his or her client … evaluate whether any consequence of a matter involving the client justifies the expense of, or the risk involved in, pursuing the matter”.11 Counsel for the

SRA had argued that the claim was justified because there was a concern about the proper governance of a charity and that the case “had to be brought on the principle of not allowing SSA to bully SRA”.12

4 Apart from the principle of proportionality, the Court of Appeal reiterated the point made in Lam Hwa that the lawyer must decide whether to conduct litigation if such litigation (in the case of Lam Hwa, whether a case ought to be appealed) would compromise the interest of the administration of justice:13

[I]t should not be forgotten that even if his client were prepared to take the matter to court and bear the expense of litigation, [counsel for SRA], as an officer of the court, nevertheless owed a higher duty to the court to assess whether it would be in the interests of the administration of justice to pursue the conspiracy claim: see Lam Hwa at [37]–[38]. It was not simply his client's money that was at stake; precious judicial time and resources also had to be expended on the claim, even though it was manifestly of insufficient value to be litigated in the High Court.

5 In Lam Hwa, the Court of Appeal stated concerning the decision to take a case on appeal:14

Even on the basis that [counsel] had undertaken the necessary evaluation with his client, he should have been alive to the fact that taking the matter further was likely to be incompatible with his higher duty to the court as an officer entrusted to assist it in the administration of justice.

6 These statements by the Court of Appeal in SSA v SRA and Lam Hwa leave no doubt that a lawyer must, as an officer of the court, not accede to his client's wishes to make a claim or application or pursue an appeal which cannot be justified in any real sense. Access to justice does not mean the untrammelled right to sue or to mount an appeal regardless of the merits of one's position but the right, reasonably based, to seek judicial relief. Indeed, access to justice is compromised when the legal system is unjustifiably used (for meritless claims and/or for the purpose of oppressing the opposing party or other ulterior purposes) because such an attitude deprives other litigants and would-be litigants of access to the court's resources.

7 A “reasonably based” claim, application or appeal might be defined as involving a case which has the potential of succeeding on the law and

facts. In this context, r 9(2)(h)(ii) of the LP(PC)R 2015 bars a lawyer from drafting “any originating process, pleading, affidavit, witness statement or notice or grounds of appeal containing any … contention which the legal practitioner does not consider to be reasonably and properly arguable”. In determining whether the lawyer has breached this rule, the court would apply the objective test of whether a reasonable lawyer in the actual lawyer's position would have considered the contention(s) to be reasonably and properly arguable. In certain circumstances, the lawyer would have to show compelling grounds to establish a reasonably and properly arguable case, as when the court below has provided a reasoned judgment and the appeal would be disproportionately costly. As the Court of Appeal put it in Lam Hwa: “it would have been incumbent on any solicitor contemplating a further appeal to examine the issue afresh and be reasonably and objectively satisfied that there were very strong grounds for an appeal and thus that the decision being appealed was clearly wrong so as to warrant proceeding further”.15

8 Moreover, the lawyer must always consider other litigation routes which may be more efficacious and less costly. In SSA v SRA, the Court of Appeal pointed out that the SRA could have applied for an injunction to restrain the SSA from acting on the resolution and interfering with the SRA's privileges: “This, it seems to us, would have been a far more cost-efficient approach than bringing what was ultimately a defective application to the High Court for declaratory relief.”16 Again, while the SRA made “lengthy submissions” in the High Court and the Court of Appeal concerning an implied term and its breach, “a far simpler alternative was available to SRA” on the terms of a particular clause of the agreement.17 The Court of Appeal went on to propound the essential principles of efficiency and economy in court proceedings:18

Although it is not for the courts to say how parties should run their cases, we think it only right to point out that where parties have the option of choosing between a shorter, simpler argument and a more convoluted and circuitous one, they ought to pursue the former instead of the latter. After all, one of the principles expressed in r 9 of the LPPCR is that a legal practitioner must conduct his case in a manner which maintains the efficiency of court proceedings. Thus, in Lam Hwa, we criticised counsel for having filed extensive submissions and multiple bundles for an extremely straightforward matter, and observed that doing so when the merits of the case did not require it would not only lead to

unnecessary costs for the client, but also amount to a breach of a solicitor's duty to the court.
III. Ethics rules in Singapore and Australia governing the lawyer's independent and professional judgment in conducting cases
A. Singapore

9 In Singapore, the lawyer's duty to exercise independent, professional judgment in the conduct of his case, which entails not pursuing meritless litigation, is clearly encompassed by the principles in rr 4(a)–4(c), 9(1)(a)–9(1)(b) and...

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