Re Beloff Michael Jacob QC

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
Judgment Date16 May 2014
Docket NumberCivil Appeals Nos 68, 69, 70 and 71 of 2013
Date16 May 2014

Court of Appeal

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

Andrew Phang Boon Leong JA

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

Re Beloff Michael Jacob QC

Aurill Kam, Cheryl Siew, Alexander Sim and Jurena Chan (Attorney-General's Chambers) for the appellant in CA 68/2013

Lee Eng Beng SC, Low Poh Ling, Raelene Su-Lin Pereira and Jonathan Lee Zhongwei (Rajah & Tann LLP) for the appellants in CA 69/2013

Christopher Anand Daniel and Harjean Kaur (Advocatus Law LLP) for the appellant in CA 70/2013

Chan Hock Keng, Ong Pei Chin and Lawrence Foo (Wong Partnership LLP) for the appellant in CA 71/2013

Edwin Tong, Kenneth Lim, Peh Aik Hin and Tan Kai Liang (Allen & Gledhill LLP) for the respondent.

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 [2003] 2 SLR (R) 306; [2003] 2 SLR 306 (refd)

Lord Goldsmith Peter Henry PC QC, Re [2013] 4 SLR 921 (refd)

MCST Plan No 301 v Lee Tat Development Pte Ltd [2011] 1 SLR 998 (refd)

Oriental Insurance Co Ltd, The v Reliance National Asia Re Pte Ltd [2008] 3 SLR (R) 121; [2008] 3 SLR 121 (refd)

Royal Bank of Scotland NV, The v TT International Ltd [2012] 4 SLR 1182 (refd)

Vishva Apurva, The [1992] 1 SLR (R) 912; [1992] 2 SLR 175 (refd)

Companies Act (Cap 50, 2006 Rev Ed) ss 210, 210 (3) , 210 (4)

Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint) Art 93

Legal Profession Act (Cap 161, 2009 Rev Ed) s 15 (1) (c) (consd) ;ss 15, 15 (1) , 15 (1) (a) , 15 (1) (b) , 15 (2) , 15 (6 A)

Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012) para 3 (consd)

Legal Profession (Admission) Rules 2011 (S 244/2011) r 32 (1) (consd) ;r 32

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

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...

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10 cases
  • Re Rogers, Heather QC
    • Singapore
    • High Court (Singapore)
    • 8 July 2015
    ...matter, I dismissed the application and delivered brief oral grounds. The decision of the Court of Appeal in Re Beloff Michael Jacob QC [2014] 3 SLR 424 (“Re Beloff”) introduced a great deal of analytical clarity to this area of the law. However, it was still my observation that there were ......
  • Re Michael Fordham QC
    • Singapore
    • High Court (Singapore)
    • 5 November 2014
    ...QC [2013] 4 SLR 921 (“Re Lord Goldsmith”), Re Beloff Michael Jacob QC [2013] 4 SLR 849 (“Re Beloff (HC)”) and Re Beloff Michael Jacob QC [2014] 3 SLR 424 (“Re Beloff (CA)”). The first four cases in this quintet were decisions of the High Court while the fifth was handed down by the Court of......
  • Re Wordsworth, Samuel Sherratt QC
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    • 29 August 2016
    ...AQZ v ARA [2015] 2 SLR 972 (refd) Beloff Michael Jacob QC, Re [2000] 1 SLR(R) 943; [2000] 2 SLR 782 (refd) Beloff Michael Jacob QC, Re [2014] 3 SLR 424 (folld) Caplan Jonathan Michael QC, Re [2013] 3 SLR 66 (folld) Fordham, Michael QC, Re [2015] 1 SLR 272 (folld) Joseph David QC, Re [2012] ......
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    ...Jeyapal, Evans NgandAilene Chou (Attorney-General's Chambers) for the Attorney-General. Case(s) referred to Beloff Michael Jacob QC, Re [2014] 3 SLR 424 (folld) BSL, Re [2018] SGHC 207 (folld) Caplan Jonathan Michael QC, Re [2013] 3 SLR 66 (folld) Harish Salve, Re [2018] 1 SLR 345 (distd) J......
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