Re Beloff Michael Jacob QC

• Jurisdiction: Singapore
• Judgment Date: 16 May 2014
• Date: 16 May 2014
• Docket Number: Civil Appeals Nos 68, 69, 70 and 71 of 2013
• Court: Court of Appeal (Singapore)

Re Beloff Michael Jacob QC

[2014] SGCA 25

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

Andrew Phang Boon Leong JA

Civil Appeals Nos 68, 69, 70 and 71 of 2013

Court of Appeal

Legal Profession—Admission—Ad hoc—Litigant seeking to set aside judgment of Court of Appeal on grounds that it was infected by lack of jurisdiction and breach of rules of natural justice—Whether Queen's Counsel should be admitted to represent this litigant—Section 15 Legal Profession Act (Cap 191, 2009 Rev Ed) and para 3 Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012)

The respondent in these four appeals was a Queen's Counsel (‘QC’) seeking ad hoc admission to practise as an advocate and solicitor in Singapore. His admission was sought for the purpose of representing nTan Corporate Advisory Pte Ltd (‘nTan’) in its application to set aside a judgment of the Court of Appeal (‘the CA’) which is reported as The Royal Bank of Scotland NV v TT International Ltd[2012] 4 SLR 1182 (‘the CA Judgment’), on the grounds that it was infected by lack of jurisdiction and breach of the rules of natural justice.

The CA Judgment arose out of a scheme of arrangement (‘the Scheme’) in respect of TT International Ltd (‘the Company’). The Company encountered financial difficulties in 2008 and against this backdrop it appointed nTan as its independent financial advisor. The Scheme was eventually proposed to the Company's creditors and a meeting was held for them to vote on whether or not to approve it. The ‘Scheme Manager’ was stated in the documents to be any or all of three persons each of whom was from nTan, including its owner Mr Nicky Tan. Following a number of procedural and other missteps which were the subject of a separate CA decision reported as The Royal Bank of Scotland NV v TT International Ltd[2012] 2 SLR 213, the Scheme was approved of by the Company's creditors and sanctioned by the CA. In sanctioning the Scheme the CA directed that all professional costs of the Scheme Manager's and the Company's professional advisors be taxed by the High Court.

More than a year after the CA sanctioned the Scheme, counsel for the Monitoring Committee overseeing the implementation of the Scheme wrote a letter to the CA. The letter was copied to counsel for the Scheme Manager and counsel for the Company. It alleged that the Monitoring Committee had only recently been informed that, under the professional fees arrangement between nTan and the Company, nTan was entitled not only to the time costs of its personnel but also a value-added fee (‘VAF’). The VAF was a success fee payable to nTan in the event that a scheme of arrangement was entered into by the Company's creditors and sanctioned by the courts. The amount of VAF which nTan stood to receive was directly proportional to the amount of debt owed by the Company to its creditors that was waived or otherwise rendered not payable under a scheme of arrangement. The Monitoring Committee took the view that the VAF might give rise to a possible conflict of interest and duty on nTan's part, and requested that the VAF be taxed by the High Court pursuant to the direction as to taxation of the professional costs of the Company's professional advisors given by the CA when it sanctioned the Scheme.

After counsel for the Scheme Manager responded to this letter, the CA wrote to counsel for the Scheme Manager, counsel for the Company and counsel for the Monitoring Committee directing that they address it on a number of factual matters by way of letter. The parties duly responded. Shortly after, the CA wrote to all three parties giving a number of directions and requesting that they address it further on several issues, some of fact and some of law, so as to assist it in determining whether the VAF should be subject to taxation. Once again parties duly responded by way of letter.

Months later, the CA released the CA Judgment. In it the CA found, inter alia, that the Scheme Manager had breached its duties to the Company's creditors by failing to inform them of the VAF. As a consequence the CA held that nTan was not entitled to the full amount of VAF and ordered instead that parties endeavour to reach agreement on what the quantum of nTan's professional fees ought properly to be, failing which the matter would fall to be assessed by the High Court. Dissatisfied with the CA's decision on the VAF, nTan filed summonses seeking to set aside the CA Judgment (‘the Setting-Aside Summonses’). nTan's position was that the CA had acted without jurisdiction and in breach of the rules of natural justice.

Subsequently, nTan applied to have the respondent admitted on an ad hoc basis under s 15 (1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘the LPA’) to represent it in the Setting-Aside Summonses. This application was opposed by the Attorney-General, the Law Society of Singapore, the Company and three banks purporting to act on behalf of the Monitoring Committee. The judge at first instance allowed the respondent's admission. Four separate appeals against this decision were brought by all the parties who had opposed the application at first instance. Civil Appeals Nos 68, 69, 70 and 71 of 2013 were, respectively, the Attorney-General's, the banks', the Law Society's and the Company's appeals.

Held, allowing the appeals and setting aside the ad hoc admission of the respondent:

(1) The broad proposition underlying the current ad hoc admissions regime under s 15 (1) of the LPA was that foreign senior counsel would be admitted only on the basis of ‘need’, and it was not to be a free-for-all. ‘Need’ connoted a fairly stringent standard not satisfied merely by showing that admission was desirable or convenient or sought as a matter of choice. Rather, it suggested that the litigant seeking admission of foreign senior counsel would be prejudiced if the application were not allowed, and that this prejudice would be of an appropriately significant degree: at [40] to [43] .

(2) The architecture of the ad hoc admissions regime was as follows. The court had first to apply its mind to certain mandatory requirements. It had to consider whether the foreign senior counsel had ‘special qualifications or experience for the purpose of the case’ as mandated by s 15 (1) (c) of the LPA. It had to determine whether the case raised issues that fell within the ambit of specified areas of legal practice - criminal law, constitutional and administrative law, and family law - which would require a ‘special reason’ for admission under s 15 (2) of the LPA read with r 32 (1) of the Legal Profession (Admission) Rules 2011 (S 244/2011). If any of these mandatory requirements were not met the admission application had to fail and the question of discretion did not arise: at [50] to [54] .

(3) On the other hand, if the mandatory requirements were met, the court had then to exercise its discretion by considering the four matters set out in para 3 of the Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012) (‘the Notification’). Following from the proposition summarised in (1), this discretion had to be exercised in accordance with the broad principle that foreign senior counsel should be admitted only on the basis of ‘need’. These four matters were not to be regarded as discrete and unconnected matters to be assessed and evaluated separately, but as matters related to or affecting one another. The first three Notification matters approach the question of whether the case calls for engagement of foreign senior counsel from three different vantage points. The fourth Notification matter, that of reasonableness in all the circumstances, should be seen not as a catch-all provision but as laying down the ultimate question for the court, ie, whether there was good and sufficient reason to admit foreign senior counsel for the purpose of the case in question: at [54] , [55] and [59] to [65] .

(4) The Setting-Aside Summonses raised three interweaving issues. First, insolvency, specifically schemes of arrangement; second, the court's jurisdiction; and third, whether the CA Judgment was made contrary to the rules of natural justice. None of these issues touched on constitutional and administrative law, criminal law or family law, hence no ‘special reason’ was required to be shown in the present case: at [69] to [73] .

(5) The respondent met the requirement in s 15 (1) (c) of the LPA of having ‘special qualifications or experience’ for the purpose of the Setting-Aside Summonses. This was so even though the respondent did not have particular expertise in insolvency law and local legislation governing the court's jurisdiction, and even though the respondent's experience as a judge in multiple jurisdictions did not make him any more qualified to address questions of jurisdiction and natural justice. What was in the respondent's favour was that he had expertise in the area of administrative and public law. Since principles might be drawn from this area of law which would aid in the resolution of the issue of natural justice in the Setting-Aside Summonses, the respondent's expertise was relevant to that issue and on this narrow basis the s 15 (1) (c) threshold was crossed: at [74] to [77] .

(6) The mandatory requirements having been met in the present case, the four Notification matters had to be considered. As to the first, that of the nature of the factual and legal issues, the issues involved did not give rise to unusual complexity or difficulty even if they were not commonly encountered. As to the third Notification matter, that of the availability of local counsel, nTan had all along been represented by one of Singapore's largest and most prominent law firms. In the light of these two considerations, and in the absence of any suggestion that nTan would suffer substantial prejudice if the respondent were not admitted, nTan could not be said to ‘need’ the services of foreign senior counsel to conduct its...