Ghows LLC v Amber Compounding Pharmacy Pte. Ltd. and another

• Jurisdiction: Singapore
• Judge: Kelly Ho
• Judgment Date: 15 June 2023
• Neutral Citation: [2023] SGMC 43
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate’s Court Originating Application No. 13 of 2023 (Summons No. 1367 of 2023)
• Hearing Date: 23 May 2023
• Citation: [2023] SGMC 43
• Year: 2023
• Plaintiff Counsel: Ian Chiang (Ghows LLC)
• Defendant Counsel: First and Second defendants in person.
• Subject Matter: Civil Procedure,Corporate self-representation
• Published date: 23 August 2023

Deputy Registrar Kelly Ho:

Why do natural persons have an almost absolute right to self-representation but companies are required to be legally represented? There appears to be no good answer. Perhaps this explains the gradual relaxation of the requirement over the years — the current iteration of the provision for corporate self-representation (“CSR”) in O 4 r 3(3) of Rules of Court 2021 (“ROC 2021”) is the most liberal yet. As there are no reported decisions on O 4 r 3(3) and considerable differences between O 4 r 3(3) and its predecessor, this is an opportune time to consider the appropriate approach for such applications.

Background

The Claimant, a law firm, had previously represented the Defendants, two local companies, in a High Court suit, HC/S 164/2018. Following the Defendants’ failure to pay a portion of the Claimant’s legal fees, the latter applied for taxation of solicitor-and-client costs in HC/BC 107/2022 (“BC 107”). When the Defendants refused to pay the sums ordered, the Claimant commenced the proceedings in MC/OA 13/2023 (“OA 13”) to enforce the Registrar’s Certificate in BC 107.

The Defendants filed the present summons under O 4 r 3(3) seeking permission for their officers, Samuel Sudesh Thaddaeus (“Mr Thaddaeus”) and Jayne Wee Shir Li (“Ms Wee”) (collectively, “the Representatives”), to act for them in OA 13. Mr Thaddaeus is a director of the Second Defendant while Ms Wee is a director of both Defendants. The Claimant opposed the application. After hearing parties, I reserved judgment. Having considered the submissions and legal principles, I permit Ms Wee and Mr Thaddaeus to represent the First Defendant and the Second Defendant, respectively.

Issues to be determined

The following issues arise in this application: whether the new O 4 r 3(3) reflects a more permissive attitude towards CSR (Issue 1); whether the court should consider the factors in Bulk Trading SA v Pevensey Pte Ltd and another [2015] 1 SLR 538 (“Bulk Trading”) in assessing an O 4 r 3(3) application (Issue 2); whether the Defendants’ application should be allowed (Issue 3); and whether conditions should be imposed (Issue 4).

The law on corporate self-representation The default rule is that companies require legal representation

Order 4 r 3(1)(b) of the ROC 2021 provides that any entity with the capacity to sue or be sued “must be represented by a solicitor in proceedings”. The rationale for this rule is not clear. Bulk Trading is the seminal case on the principles relating to CSR under the old Rules of Court 2014 (Cap 322, R 5, 2014 Rev Ed) (“ROC 2014”). Steven Chong J (as he then was) considered several historical reasons for the rule and was not persuaded by any of them (see Bulk Trading at [26]–[33]). Chong J doubted the need for such a restriction as “it is not immediately apparent that the distinction between litigants in person and corporate litigants remains justifiable” (at [34]).

Be that as it may, the obligation for companies to engage counsel remains part of our civil law landscape. The opportunity for its removal arose during the enactment of ROC 2021 but was passed on.

The court has the discretion to permit corporate self-representation

The rule against CSR is not absolute. Order 4 r 3(3) provides the court with the discretion to allow an officer of an applicant company to act on its behalf if certain conditions are satisfied: (3) For the purposes of section 34(1)(ea) of the Legal Profession Act, the Court may, on an application by a company …, give permission for an officer of the company … to act on behalf of the company … in any relevant matter or proceeding to which the company … is a party, if the Court is satisfied that — (a) the officer has been duly authorised by the company … to act on behalf of the company … in that matter or proceeding; and (b) the officer has sufficient executive or administrative capacity or is a proper person to represent the company … in that matter or proceeding.

A question arises as to whether satisfying the conditions in O 4 r 3(3) would automatically allow a company to be self-represented. The use of the phrase “the Court may” suggests that the court can reject an application despite the conditions being fulfilled. This view is supported by the learned author of Jeffrey Pinsler, Singapore Civil Practice 2022 (LexisNexis, 2022) at para 12.40:

It is submitted that the discretion is not limited to the grounds in (a) and (b) because the words ‘the court may’ (as opposed to ‘the court shall’) in O 4 r 3(3) and (4) provide the court with the discretion to dismiss the application for representation by an officer if the court believes that the entity ought to be legally represented.

During the hearing of this summons, the Claimant’s counsel accepted that the twin conditions in O 4 r 3(3) are satisfied. However, he submitted that the Bulk Trading factors should apply, and the application should be rejected as the Representatives had repeatedly failed to comply with court directions and behaved unreasonably.¹

Issue 1: Whether O 4 r 3(3) reflects a more permissive attitude towards corporate self-representation The previous substantive requirement has been replaced by a formal one

Order 4 r 3(3) is appreciably distinct from its predecessor, O 1 r 9(2) of the ROC 2014. The main difference is the second condition in sub-paragraph (b) of both provisions. They are reproduced below for ease of comparison:

Representation by solicitor, etc. (O. 4, r. 3)	Construction of references to party, etc., in person (O. 1, r. 9)
(3) For the purposes of section 34(1)(ea) of the Legal Profession Act, the Court may, on an application by a company, variable capital company or limited liability partnership, give permission for an officer of the company, variable capital company or limited liability partnership to act on behalf of the company, variable capital company or limited liability partnership in any relevant matter or proceeding to which the company, variable capital company or limited liability partnership is a party, if the Court is satisfied that —	(2) For the purposes of section 34(1)(ea) of the Legal Profession Act (Cap. 161) and paragraph (1), the Court may, on an application by a company or a limited liability partnership, give leave for an officer of the company or limited liability partnership to act on behalf of the company or limited liability partnership in any relevant matter or proceeding to which the company or limited liability partnership is a party, if the Court is satisfied that —
(a) the officer has been duly authorised by the company, variable capital company or limited liability partnership to act on behalf of the company, variable capital company or limited liability partnership in that matter or proceeding; and	(a) the officer has been duly authorised by the company or limited liability partnership to act on behalf of the company or limited liability partnership in that matter or proceeding; and
(b) the officer has sufficient executive or administrative capacity or is a proper person to represent the company, variable capital company or limited liability partnership in that matter or proceeding.	(b) it is appropriate to give such leave in the circumstances of the case.

Under O 1 r 9(2)(b), the Court must be satisfied that CSR is appropriate in the circumstances of the case. This is a substantive condition encompassing wide-ranging considerations. On the other hand, O 4 r 3(3)(b) is limited to a formal consideration of the proposed representative’s capacity or suitability to represent the company. Hence, the replacement of O 1 r 9(2)(b) with O 4 r 3(3)(b) suggests a softening stance towards CSR.

The specific requirements of the supporting affidavit have been removed

Support for the above view can be found in the removal of O 1 r 9(4) of the ROC 2014. Order 1 r 9(4) specifies the requirements for the accompanying affidavit:

An application under paragraph (2) or (3) shall be supported by an affidavit — (a) stating — (i) the position or office in the company, limited liability partnership or unincorporated association held by the officer; (ii) the date on which, and the manner by which, the officer was authorised to act on behalf of the company, limited liability partnership or unincorporated association in that matter or proceeding; and (iii) the reasons why leave should be given for the officer to act on behalf of the company, limited liability partnership or unincorporated association in that matter or proceeding; (b) exhibiting a copy of any document of the company, limited liability partnership or unincorporated association by which the officer was authorised to act on behalf of the company, limited liability partnership or unincorporated association in that matter or proceeding; and (c) made by any other officer of the company, limited liability partnership or unincorporated association.

An affidavit is still required for an O 4 r 3(3) application (see O 3 r 5(1) of the ROC 2021). Order 3 r 5(7) of the ROC 2021 provides that an affidavit “must contain all necessary evidence in support of … the application”. As there are only two specific conditions set out in O 4 r 3(3), it appears that an applicant is merely required to provide evidence relating to them.

It is noteworthy that an applicant no longer needs to provide reasons why leave should be given, and the affidavit can now be made by the purported representative himself/herself. These greatly simplify O 4 r 3(3) applications and lowers the threshold for CSR.

The review committees intended to ease the restriction against corporate self-representation

The Civil Justice Commission (“CJC”) and the Civil Justice Review Committee (“CJRC”) were set up in 2015 and 2016 respectively to undertake a review of the civil justice system. The CJC’s main objective was to...