Deepak Sharma v Law Society of Singapore

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 16 March 2017
• Neutral Citation: [2017] SGCA 18
• Plaintiff Counsel: Abraham S Vergis and Danny Quah (Providence Law Asia LLC)
• Date: 16 March 2017
• Docket Number: Civil Appeal No 82 of 2016
• Hearing Date: 18 January 2017
• Subject Matter: Judicial review,Disciplinary proceedings,Administrative Law
• Published date: 06 April 2017
• Defendant Counsel: Khoo Boo Jin and Sivakumar Ramasamy (Attorney-General's Chambers),Christopher Anand Daniel and Harjean Kaur (Advocatus Law LLP)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 18
• Year: 2017

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

This is an appeal against the decision of the High Court judge (“the Judge”) in Deepak Sharma v Law Society of Singapore [2016] 4 SLR 192 (“the Judgment”), dismissing an application for judicial review. The appellant sought a quashing order against the decision of a review committee, constituted under s 85(6) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”), to dismiss in part a complaint made by the appellant against two lawyers. The complaint was, in essence, that the lawyers had made grossly excessive claims for party and party costs against the appellant’s wife. The appellant claimed that the review committee had made errors of law in dismissing the complaint and sought judicial review on that basis.

The appeal raises the novel issue of whether, and to what extent, lawyers owe ethical duties in advancing claims on behalf of their clients for party and party costs. The issue is thrown into sharp relief by the facts of the case, where the party and party costs claimed by the lawyers in question were substantially reduced on taxation and, indeed, partly as a result of the lawyers’ own admission that they had erroneously included certain duplicated costs in their bills of costs. It is an inquiry that necessitates an inevitable and important comparison to the ethical obligations owed by lawyers in charging fees for solicitor and client costs. The question that confronts the court in the present case is as follows: when, if ever, can a finding of professional misconduct properly be drawn solely from the fact that there has been a significant reduction on taxation of party and party costs? It is, needless to say, an important question given the frequency with which lawyers’ claims for party and party costs are reduced – sometimes very significantly so – on taxation.

It is also worth noting that this is the first case in which judicial review of a decision of a review committee has been sought. Before the Judge, questions were raised regarding the susceptibility of such decisions to judicial review and whether there is a requirement of locus standi to be satisfied by persons wishing to make complaints against lawyers to the Law Society of Singapore, the respondent in this case. But these are not questions that are on appeal before this court and are therefore best left for another day.

We will now explain our decision, beginning with the facts.

Factual background

The appellant, Deepak Sharma (“the Appellant”), is the husband of Dr Lim Mey Lee Susan (“Dr Lim”). The respondent is the Law Society of Singapore (“the Respondent”).

The disciplinary proceedings

It is appropriate to begin, by way of background to this appeal, with the disciplinary proceedings that were commenced by the Singapore Medical Council (“the SMC”) against Dr Lim. Those proceedings have come before the courts on more than one occasion upon Dr Lim’s application, and the present appeal represents the most recent episode in this series of litigation.

On 3 December 2007, the Ministry of Health of Singapore sent a letter of complaint against Dr Lim to the chairman of the SMC’s Complaints Panel. The complaint concerned certain invoices that Dr Lim had issued to one of her patients, who was a member of the royal family of Brunei. Upon review of the complaint, a Complaints Committee ordered on 17 November 2008 that a formal inquiry should be held by a Disciplinary Committee. A total of 94 charges were proffered against Dr Lim. In the majority of those charges, Dr Lim was alleged to have invoiced the patient medical fees that were far in excess of and disproportionate to the services that she and her medical team rendered.

On 29 July 2010, after several days of hearing, the disciplinary committee recused itself upon an unopposed application for such recusal by Dr Lim’s counsel. The SMC appointed a second disciplinary committee on 14 September 2010. Unhappy with the SMC’s decision to recommence the disciplinary proceedings, Dr Lim filed Originating Summons No 1252 of 2010 (“OS 1252/2010”) for leave to apply for a quashing order against the SMC’s decision to appoint a second disciplinary committee and a prohibiting order to prevent the SMC from taking further similar steps. Dr Lim also filed Originating Summons No 1131 of 2010 (“OS 1131/2010”), seeking a declaration that the SMC had no legal right, for the purpose of the disciplinary proceedings against her, to adduce in evidence the confidential medical records of the patient without the consent of the patient or her next-of-kin.

The applications were heard by Philip Pillai J. During the hearing, counsel for Dr Lim withdrew OS 1131/2010, leaving only OS 1252/2010 in contention. On 26 May 2011, Pillai J dismissed OS 1252/2010 (see Lim Mey Lee Susan v Singapore Medical Council [2011] 4 SLR 156). Dr Lim filed Civil Appeal No 80 of 2011 (“CA 80/2011”) against Pillai J’s decision on 24 June 2011. This court heard the appeal on 10 November 2011 and dismissed it on 30 November 2011 (see Lim Mey Lee Susan v Singapore Medical Council [2012] 1 SLR 701).

Although the subsequent decision of the second disciplinary committee on the charges against Dr Lim and the related proceedings thereafter are not directly material for the present appeal, we note for completeness that the disciplinary tribunal convicted Dr Lim on all 94 charges on 21 June 2012. Dr Lim’s appeal against her conviction was dismissed by the High Court on 28 June 2013. The High Court’s decision is reported in Lim Mey Lee Susan v Singapore Medical Council [2013] 3 SLR 900 (“Susan Lim (2013)”). There were subsequent (and related) proceedings relating to the issue of costs (see Lim Mey Lee Susan v Singapore Medical Council [2015] SGHC 129, which decision was affirmed by this court in Lim Mey Lee Susan v Singapore Medical Council [2016] 2 SLR 933).

The costs hearings

On 19 April 2013, the SMC’s lawyers, WongPartnership LLP (“WP”), filed three bills of costs for taxation. These were Bills of Costs Nos 65, 66 and 72 of 2013 (respectively “BC 65/2013”, “BC 66/2013” and “BC 72/2013”; and collectively “Bills of Costs”). The costs claimed were in respect of OS 1131/2010, OS 1252/2010 and CA 80/2011. A total sum of $1,007,009.37 (excluding GST and disbursements) was sought.

At the taxation hearing, an assistant registrar taxed down the costs sought by the SMC to a total of $340,000 for all the Bills of Costs. Dissatisfied with the result, the SMC applied for a review of taxation. At the taxation review hearing on 12 August 2013 before the Judge, WP indicated that it was reducing the total sum claimed in the Bills of Costs to $720,000 (excluding GST and disbursements). This represented a reduction of $287,009.37 from the amount originally claimed. WP’s explanation for the reduction was that it “gave a discount of 20% on the time used because of overlap between lawyers. Then [WP] excluded re-getting up for new lawyers who joined the team”.

The Judge increased the amount allowed for BC 65/2013 by $30,000. The SMC was therefore permitted to recover a total of $370,000 in costs.

The complaint

On 23 January 2014, the Appellant sent a letter of complaint (“the Complaint”) to the Chairman of the Complaints Panel of the Respondent. The complaint was directed against two lawyers from WP, namely, Mr Yeo Khirn Hai Alvin SC (“Mr Yeo”) and Ms Ho Pei Shien Melanie (“Ms Ho”). In essence, the complaint was that Mr Yeo and Ms Ho were “charging bills of costs against [Dr Lim] which were clearly exorbitant and which … would amount to grossly improper conduct and/or conduct unbecoming as members of an honourable profession”. The Appellant claimed that the difference between the amount sought in the Bills of Costs and the amount that was finally awarded at the taxation review indicated that there was “gross overcharging”.

The Respondent replied in writing to the Complaint on 10 April 2014, informing the Appellant that a Review Committee (“the RC”) had been constituted to consider the complaint and that the RC had reached a decision. We will refer to the Respondent’s written reply conveying the RC’s decision and reasons as “the Decision Letter”. In brief, the RC determined that the Appellant’s complaint against Mr Yeo should be dismissed in its entirety as it was lacking in substance, but that part of the complaint against Ms Ho should be referred back to the Chairman of the Inquiry Panel to constitute an Inquiry Committee for further inquiry, with the remaining part of the complaint against Ms Ho to be dismissed for lack of substance.

The RC considered that there were two limbs to the Complaint, which it described at para 4 of the Decision Letter as follows: a) that the sums claimed by the Respondents were exorbitant and demonstrative of a persistent conduct of gross overcharging by the Respondents as well as improper and/or fraudulent conduct that was opportunistic, arbitrary, unconscionable and unjustified; and b) that the sums claimed were probably in excess of what was billed to, or could have been billed under arrangements with the Respondents’ client; i.e., the Singapore Medical Council (“SMC”) to which you assert that the claim for party and party costs were in excess of the actual sums billed, or that could be billed under arrangements agreed with the SMC and amounted to misconduct. For convenience, we will use the Judge’s references to “Limb 1” and “Limb 2” to refer to these respective parts of the Complaint.

In so far as Limb 1 of the Complaint was concerned, the Respondent (conveying the RC’s decision) stated as follows, at paras 9 and 14(a)(iii) of the Decision Letter: 9. In terms of the first limb of the complaint, to wit, the amounts claimed in the first bill of costs were excessive, the RC finds it apposite to note that taxation of bills is in itself, an adjudication process and a reduction by...