Godfrey Gerald QC v UBS AG and Others

• Jurisdiction: Singapore
• Judge: V K Rajah JC
• Judgment Date: 27 August 2004
• Neutral Citation: [2004] SGHC 187
• Docket Number: Summons in Chambers No 3323 of (Civil Appeal No 114 of 2002)
• Date: 27 August 2004
• Year: 2004
• Published date: 02 September 2004
• Plaintiff Counsel: Lim Chor Pee (Chor Pee and Partners)
• Citation: [2004] SGHC 187
• Defendant Counsel: Laurence Goh (Laurence Goh Eng Yau and Co),Wilson Hue (Attorney-General's Chambers),Hri Kumar (Drew and Napier LLC)
• Court: High Court (Singapore)
• Subject Matter: Costs,Order 2 r 1, O 42 rr 8(1), 8(5) Rules of Court (Cap 322, R 5, 2004 Rev Ed),Court of appeal,Principles,Court clarifying own order after order pronounced,Unsuccessful application to admit Queen's Counsel,Whether court possessing inherent jurisdiction to clarify terms of order,Whether failure to do so resulting in nullity of extracted order,Courts and Jurisdiction,Whether Queen's Counsel or de facto applicant should bear costs,Whether court acting functus officio,Civil Procedure,Whether necessary to submit draft order to unrepresented party for approval first,Order 92 r 5 Rules of Court (Cap 322, R 5, 2004 Rev Ed),Draft order submitted to Registrar to be perfected,Section 21 Legal Profession Act (Cap 161, 2001 Rev Ed),Judgments and orders

27 August 2004

V K Rajah JC:

1 The applicant, Mr Anthony Wee Soon Kim (“Mr Wee”) is no stranger to court. He is a retired lawyer who has, in his personal capacity, battled a number of protracted and well-publicised jousts in court. This consequential application arises from one such matter; it seeks, in essence, to set aside an order made by the Court of Appeal, inter alia, on the ground that the court was functus officio when it clarified an earlier order.

2 In Originating Motion No 22 of 2002, an application was made by Mr Gerald Godfrey QC for admission as an advocate and solicitor of the Supreme Court for the sole purpose of appearing on behalf of Mr Wee in Suit No 834 of 2001 (“Suit 834”). That suit involved Mr Wee’s claim against UBS AG (“UBS”) for misrepresentation and other banking account related issues. Tay Yong Kwang J dismissed the application on the basis that the statutory criteria prescribed by s 21 of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“LPA”) had not been satisfied. Tay J also ordered Mr Wee to personally pay $5,000 in costs to UBS. The other parties to that application were, in accordance with s 21 of the LPA, the Attorney-General and The Law Society of Singapore. An appeal was subsequently filed against Tay J’s decision.

3 Mr Godfrey QC’s appeal came up for hearing on 17 March 2003. Mr Goh Aik Leng (“Mr Goh”), who had until then appeared for both Mr Godfrey and Mr Wee in their respective causes, applied for leave to discharge himself as counsel in Suit 834 and its related matters, including the subject appeal. Mr Goh informed the Court of Appeal that Mr Wee would argue the appeal “in person” (see Godfrey Gerald, Queen’s Counsel v UBS AG [2003] 2 SLR 306 at [10]). The court granted Mr Goh leave to discharge himself, and Mr Wee thereafter argued the appeal “in person”. The appeal was unsuccessful. Tay J’s decision was upheld in its entirety. On the issue of Mr Wee’s liability to pay the costs of Mr Godfrey QC’s unsuccessful application before Tay J, the Court of Appeal observed at [42] and [45]:

Mr Wee’s submission that UBS was not a party to the appellant’s application was patently incorrect. Indeed, UBS was one of the three respondents to this appeal. It is not unprecedented for the judge to order the applicant to pay costs to the respondents (see eg Re Reid James Robert QC [1997] 2 SLR 482; Re Gore Daniel Richard QC [1997] 2 SLR 478).

…

We found that there were ample grounds for the judge to order that Mr Wee be personally liable for costs. As in The Karting Club of Singapore v David Mak (Wee Soon Kim Anthony, Intervener), Mr Wee was responsible for initiating an unwarranted application.

4 The Court of Appeal concluded (at [46]) by ordering that in so far as the dismissed appeal was concerned there be “… costs to all three respondents” and that “the usual consequential orders follow”. The minutes of the Court of Appeal did not expressly state that Mr Wee was to be personally liable for the costs of appeal. That aspect of the order is now the genesis of the subject application.

5 Soon after the appeal was dismissed, the respondents to this application, namely UBS, the Attorney-General and The Law Society of Singapore sought to perfect the order of the Court of Appeal. Their solicitors collectively took the position that as Mr Goh had discharged himself, the provisions of O 42 r (8)(5) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) (“RSC”) applied to the approval process apropos the draft Order of Court. This sub-rule stipulates that the draft shall be submitted to the Registrar if the other party has no solicitor. In the circumstances, the draft Order of Court was accordingly submitted to the Registrar for approval without being dispatched by the respondents’ solicitors to Mr Goh, Mr Godfrey QC or Mr Wee for their scrutiny. The Registrar duly approved the draft order as submitted. The engrossed Order of Court reads:

IT IS ORDERED that:-

1. Messrs Goh Aik Leng & Partners be granted leave to discharge as Solicitors for the Appellant.

AND IT IS FURTHER ORDERED that:

2. The Appeal be dismissed with costs to the 1^st, 2^nd and 3^rd Respondents to be paid by Anthony Wee Soon Kim, the Plaintiff in Suit No. 834 of 2001.

3. The sum of $10,000.00 (with interest, if any) deposited by the Appellant as security for the Respondents’ costs be paid out in three equal proportions to:-

1. Drew & Napier LLC, Solicitors for the 1st Respondent;
2. The Attorney-General, the 2nd Respondent; and
3. The Law Society of Singapore, the 3rd Respondent,

to account of their costs.

6 On or about 22 April 2003, the Attorney General’s Chambers (“AGC”) wrote to Mr Wee with a view to resolving the quantum of costs payable by him in lieu of taxation. This proved to be the proverbial red flag inciting Mr Wee to spring into action upon receipt of this proposal. He strenuously maintained that the Court of Appeal had not made an order asking him to bear the costs personally; any costs payable to the respondents were due from Mr Godfrey QC, not him. He further complained bitterly that the respondents, and in particular UBS’s solicitors, had not complied with the express procedure prescribed by the RSC for the approval of draft orders of court.

7 The Registrar of the Supreme Court was drawn into this contretemps when the AGC, on 15 April 2004, sought the Court of Appeal’s clarification about the purport of the disputed order. The Court of Appeal, in turn, directed the Registrar to obtain the views of the parties in writing before it “clarifie[d] the matter”. Upon considering the duly expressed views of all the parties, the Court of Appeal declared through the Registrar, on 6 May 2004, “that the order the Court made that day was that Mr Anthony Wee was to pay the costs of the appeal personally” [emphasis added]. It bears mention that Mr Wee, in expressing his views in writing, had expressly contended that the Court of Appeal would be functus officio if it sought to clarify the position. The Court of Appeal by proceeding to clarify the position despite such an objection must be taken to have implicitly disagreed with his views.

8 Mr Wee then filed this application to set aside the order of the Court of Appeal. His present counsel made two principal arguments. First, it was contended that the procedure for extracting the Order of Court employed by the respondents was incorrect. Second, it was argued that the Court of Appeal was functus officio when it purportedly “clarified” the purport of its earlier order. Mr Wee’s counsel maintained dubiously that as a result, Mr Godfrey QC and not Mr Wee should bear the costs of the unsuccessful appeal. I dismissed the application without hesitation and thereafter, turned down a request for further arguments. Mr Wee now appeals against my decision.

9 It is critical to elucidate, at the outset, the peculiar characteristics of an ad hoc application to admit Queen’s Counsel pursuant to s 21 of the LPA. The applicant is nominally the Queen’s Counsel who seeks admission to practice as an advocate or solicitor. A fundamental feature of a s 21 LPA admission is that the ad hoc admission is exclusively for “the purpose of any one case” [emphasis added]. This is to be distinguished from an admission of an advocate and...