Re Andrews Geraldine Mary QC

Judgment Date15 November 2012
Date15 November 2012
Docket NumberOriginating Summons No 589 of 2012
CourtHigh Court (Singapore)
Re Andrews Geraldine Mary QC

V K Rajah JA

Originating Summons No 589 of 2012

High Court

Legal Profession—Admission—Ad hoc—Amendment of Legal Profession Act (Cap 161, 2009 Rev Ed) (‘LPA’) with effect from 1 April 2012—Issuance of Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012) pursuant to amended LPA—Principles governing ad hoc admission of foreign senior counsel—Section 15 Legal Profession Act (Cap 161, 2009 Rev Ed) and para 3 Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012)—Legal Profession—Admission—Ad hoc—Plaintiff engaged local counsel who pleaded case unsatisfactorily—Applicant successfully assisting with reformulation of plaintiff's pleadings and drafting of submissions and arguments for Plaintiff's application to amend pleadings—Applicant having relevant qualifications and experience in contract and commercial law and skilled in cross-examination—Plaintiff unable to instruct local counsel of several law firms because they were in position of legal conflict—Relatively lower costs because Applicant would be instructed and supported only by Plaintiff's counsel—Busy schedules of leading local commercial counsel—Trial taking place very shortly—Senior Counsel from large local law firm representing defendants—Whether application for ad hoc admission should be granted

In May 2009, Ng Chee Weng (‘the Plaintiff’) commenced Suit No 453 of 2009 (‘Suit 453/2009’) against Bryan Lim Jit Ming (‘the First Defendant’) and Teo Soo Geok Josephine (collectively, ‘the Defendants’). The Plaintiff claimed that a portion of the dividends amounting to about $8.88 m declared by Sin Co Technologies Pte Ltd (‘the Company’) between 2003 and 2007 were due to him from the Defendants because they held certain shares in the Company on trust for him from April 2002 (‘the original cause of action’). The Plaintiff was then represented by Mr Peter Low (‘Mr Low’) while the Defendants were represented by Mr Cavinder Bull SC (‘Mr Bull’) from Drew & Napier LLC (‘D&N’).

In June 2009, the Defendants applied to strike out various paragraphs in the Plaintiff's statement of claim (‘SOC’) alleging that they disclosed ‘without prejudice’ communications. The SOC contained paragraphs which referred to settlement discussions but stopped short of alleging that a settlement agreement had been reached. The Defendants' application was allowed. On 31 July 2009, the Plaintiff appealed in Civil Appeal No 93 of 2009 (‘CA 93/2009’).

Sometime in February or March 2010, the Plaintiff discharged Mr Low and instructed Mr Narayanan Vijya Kumar (‘Mr Vijya’) from Vijay and Co. He intended for Mr Vijya to act only as his solicitor and to assist him in securing an able advocate. Mr Vijya instructed Mr Roderick Edward Martin (‘Mr Martin’) to prepare for and argue CA 93/2009. At the hearing of CA 93/2009, Mr Martin proposed an amendment to the SOC to plead a claim to enforce a settlement agreement as an alternative claim to the original cause of action (‘the First Proposed Amendment’). The Court of Appeal dismissed the Plaintiff's appeal in CA 93/2009 and disallowed the First Proposed Amendment. Subsequently it issued an addendum on 21 May 2010 stating, inter alia, that the dismissal did not preclude the Plaintiff from applying to make further amendments to the SOC.

Mr Martin declined to continue acting as the Plaintiff's counsel. The Plaintiff immediately tried to find a local senior counsel of commensurate experience in commercial disputes. Mr Vijya approached two leading law firms, Wong Partnership and Allen & Gledhill LLP, but they declined to act as they were conflicted. Finally, he secured the services of Prof Tan Cheng Han SC (‘Prof Tan’) who agreed to represent the Plaintiff only for the appeal.

The Plaintiff also concurrently sought the advice of foreign senior counsel. Geraldine Mary Andrews QC (‘the Applicant’) accepted the Plaintiff's instructions and reformulated the pleadings. In August 2010, the Plaintiff applied for leave to amend his SOC again. The proposed amendment this time (‘the Second Proposed Amendment’) reversed the order of pleading the Plaintiff's causes of action. His primary claim now was that there was a settlement agreement and in the alternative, he claimed an entitlement to the dividends declared on the shares that the Defendants held on trust for him. Leave was denied by an assistant registrar and a High Court judge. The Plaintiff appealed to the Court of Appeal in Civil Appeal No 190 of 2010 (‘CA 190/2010’). Prof Tan represented the Plaintiff at the hearings before the High Court and the Court of Appeal. However, Prof Tan was only prepared to act for the Plaintiff for his application for leave to amend the SOC and could not participate further in the case because of his other commitments. The Applicant drafted the Plaintiff's submissions and arguments for these hearings in consultation with Prof Tan. The Court of Appeal allowed the Plaintiff's appeal in CA 190/2010.

On 21 June 2012, Mr Vijya applied for the ad hoc admission of the Applicant pursuant to s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘LPA’).

Section 15 of the LPA was amended with effect from 1 April 2012 (‘the 2012 Amendment’). The Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012) (‘the Notification’) issued by Chan Sek Keong CJ pursuant to s 15 (6 A) of the LPA set out various matters which the court ‘may consider’ in deciding whether to grant an ad hoc admission application under s 15 of the LPA. These matters were set out in para 3 of the Notification as follows: (a) the nature of the factual and legal issues involved in the case; (b) the necessity for the services of a foreign senior counsel; (c) the availability of any Senior Counsel or other advocate and solicitor with appropriate experience; and (d) whether, having regard to the circumstances of the case, it was reasonable to admit a foreign senior counsel for the purpose of the case.

Held, allowing the application:

(1) Section 15 (1) (c) of the LPA required applicants to have special qualifications or experience for the purpose of the case (‘the s 15 (1) (c) requirement’). The s 15 (1) (c) requirement mandated that the foreign senior counsel's qualifications and/or experience had to be relevant to the issues in the case. This was distinct from the question of whether those issues were difficult and complex. The s 15 (1) (c) threshold requirement was met where there was evidence showing that the foreign senior counsel had special qualifications and/or experience indicating that he/she would be able to expertly discharge his or her duties to the client and to the court ‘for the purpose’ of the case for which ad hoc admission was sought: at [38] and [39].

(2) The Applicant's qualifications and experience were relevant to Suit 453/2009, thus satisfying the s 15 (1) (c) requirement. She had extensive experience in dispute resolution in the courtroom and in arbitration, with a particular emphasis on commercial law: at [69].

(3) The architecture of the 2012 Amendment and the Notification plainly indicated that the courts were duty-bound to consider all the matters listed in para 3 of the Notification. The 2012 Amendment was not intended to lead to a ‘free for all’, and in assessing applications for ad hoc admission, the courts had to perform a judicious balancing of the competing interests in the case at hand within the framework of the matters specified in para 3 of the Notification. Such an interpretation of what para 3 of the Notification required would ensure consistency in assessing future ad hoc admission applications: at [44].

(4) The four criteria in para 3 of the Notification were schematically set out in a mode that did not indicate any particular precedence or that all four criteria had to be identically satisfied in every ad hoc admission application. Additionally, no particular weight had been assigned to any of these four criteria in assessing such an application nor had it been demanded that equal weight be assigned to each of these criteria. Paragraph 3 of the Notification did not set out a new rigid four-stage test. In considering an application for the ad hoc admission of foreign senior counsel, the court was obliged to carefully evaluate these matters in exercising its discretion whether to grant the application. The emphases to be placed on the matters identified in paras 3 (a)-3 (d) of the Notification would necessarily vary from case to case. The court would have a substantial, although not unfettered, discretion in assessing the merits of each ad hoc admission application: at [45].

(5) Paragraph 3 (a)of the Notification evinced an important shift in the law on ad hoc admission. Before the 2012 Amendment, it was essential for the applicant to satisfy the court that the issues in the underlying case were of ‘sufficient difficulty and complexity’. If not, the application would fail in limine and the court would not need to consider if the circumstances warranted an exercise of its discretion to admit the applicant. This threshold requirement had now been removed by the 2012 Amendment. Paragraph 3 (a) of the Notification required the court to identify and consider the factual and legal issues which had been raised by the parties' pleadings in the underlying case. This might also include a consideration of procedural or evidential complexities of the underlying case. While the court might be more inclined to grant an ad hoc admission application where the legal and/or factual issues were complicated and difficult, this was no longer the only perspective from which these issues should be viewed. Under para 3 (a) of the Notification, the court might also consider, inter alia, the novelty of the issues involved and the area of law in which these issues arise: at [46] to [49].

(6) Paragraph 3 (b)of the Notification should be read broadly and commonsensically to include all matters...

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15 cases
  • Re Beloff Michael Jacob QC
    • Singapore
    • Court of Appeal (Singapore)
    • 16 May 2014
    ...of the foreign counsel: at [87] .] Abidin Daver, The [1984] AC 398; [1984] 1 Lloyd's Rep 339 (refd) Andrews Geraldine Mary QC, Re [2013] 1 SLR 872 (refd) Bellenden v Satterthwaite [1948] 1 All ER 343 (refd) Caplan Jonathan Michael QC, Re [2013] 3 SLR 66 (refd) Godfrey Gerald QC v UBS AG [20......
  • Re Caplan Jonathan Michael QC
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    ...of foreign senior counsel. The application was therefore dismissed with the usual consequential orders. Andrews Geraldine Mary QC, Re [2013] 1 SLR 872 (refd) Caplan Jonathan Michael QC, Re [1997] 3 SLR (R) 404; [1998] 1 SLR 432 (distd) Charles Gray for admission as a barrister, Re an applic......
  • Re Lord Goldsmith Peter Henry PCQC
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    • High Court (Singapore)
    • 19 September 2013 Ms Barker SC's competency as co-counsel. However, this did not satisfy the statutory test: at [65] . Andrews Geraldine Mary QC, Re [2013] 1 SLR 872 (refd) Beloff Michael Jacob QC, Re [2000] 1 SLR (R) 943; [2000] 2 SLR 782 (refd) Caplan Jonathan Michael QC, Re [1997] 3 SLR (R) 404; [1998]......
  • Re Caplan Jonathan Michael QC
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    • High Court (Singapore)
    • 8 April 2013
    ...also explained to me in chambers after the hearing that he was influenced by the fact that the solicitor in Re Andrews Geraldine Mary QC [2013] 1 SLR 872 (“Re Geraldine Andrews”), Mr Narayanan Vijya Kumar (“Mr Vijya”), had filed the first affidavit in support of the ad hoc admission applica......
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2 books & journal articles
  • Legal Profession
    • Singapore
    • Singapore Academy of Law Annual Review No. 2015, December 2015
    • 1 December 2015
    ...not overly complex. The one significant case in which a Queen's Counsel was admitted in recent history was Re Andrews Geraldine Mary QC[2013] 1 SLR 872, where a Queen's Counsel was admitted to conduct a civil trial involving issues of an alleged settlement agreement, trust and company law. ......
  • Legal Profession
    • Singapore
    • Singapore Academy of Law Annual Review No. 2013, December 2013
    • 1 December 2013 conduct commercial cases since the Legal Profession Act was amended with effect from 1 April 2012. In Re Andrews Geraldine Mary QC[2013] 1 SLR 872, V K Rajah JA held that: (a) The court has the duty to consider all four factors specified in the Legal Profession (Ad Hoc Admissions) Notifi......

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