Re Beloff Michael Jacob QC

JurisdictionSingapore
CourtHigh Court (Singapore)
Judgment Date17 September 2013
Date17 September 2013
Docket NumberOriginating Summons No 1096 of 2012

High Court

Judith Prakash J

Originating Summons No 1096 of 2012

Re Beloff Michael Jacob QC

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

Lee Eng Beng SC, Low Poh Ling, Raelene Su-Lin Pereira and Jonathan Lee (Rajah & Tann LLP) for the monitoring committee

Chan Hock Keng and Foo Xian Yao (Wong Partnership LLP) for the respondent in Civil Appeals Nos 44 and 47 of 2010

Jeffrey Chan SC, Dominic Zou and Clement Chen for the Attorney-General

Christopher Anand Daniel and Harjean Kaur (Advocatus Law LLP) for the Law Society.

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 [2013] 3 SLR 66 (refd)

Econ Corp Ltd, Re [2004] 2 SLR (R) 264; [2004] 2 SLR 264 (refd)

Joseph David QC, Re [2012] 1 SLR 791 (refd)

Marplan Pte Ltd v AG [2013] 3 SLR 201 (refd)

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

Royal Bank of Scotland NV, The v TT International Ltd [2012] 2 SLR 213 (refd)

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

Companies Act (Cap 50, 2006 Rev Ed) ss 210, 210 (1) , 210 (4)

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

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)

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

Legal Profession—Admission—Ad hoc—Whether Queen's Counsel should be admitted in case concerning limits of Court of Appeal's jurisdiction and powers

The applicant, Mr Michael Jacob Beloff QC (‘Mr Beloff QC’) applied to be admitted on an ad hoc basis pursuant to s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed, as amended in 2012) to practise as an advocate and solicitor for the purpose of representing n Tan Corporate Advisory Pte Ltd (‘NCA’), which was appointed by TT International Ltd (‘the Company’) as its independent financial adviser. The Company subsequently applied for and received approval from the High Court to summon a meeting of its creditors to consider a proposed scheme of arrangement (‘the Scheme’). Under the Scheme, the proposed Scheme Manager would be an employee of NCA. The Scheme was sanctioned by the High Court. Two creditors appealed against the sanction and their appeal was allowed by the Court of Appeal which ordered a fresh meeting of creditors be held in accordance with certain terms. A judgment containing the Court of Appeal's full grounds of decision was released later (‘the First Judgment’). After the requisite votes were secured at the fresh meeting, the Court of Appeal sanctioned the Scheme.

It later transpired that professional fees payable to NCA, including a value added fee (‘VAF’), were not covered by the Scheme and were payable by the Company in priority to the amounts owing to the creditors. The Court of Appeal was informed of this issue a few days before the release of the First Judgment by the solicitors for the creditors who comprised the monitoring committee. Correspondence on the fees issue between the Court of Appeal and the solicitors for the monitoring committee, the Company and the Scheme Manager continued for more than three months. Subsequently, the Court of Appeal released another judgment (‘the Second Judgment’) directing the Scheme Manager, NCA, the Company and the monitoring committee to try and reach an agreement as to the proper amount of professional fees which should be awarded to NCA for its efforts in reviving the Company.

After receiving advice from Mr Beloff QC, NCA filed summonses seeking leave to intervene and an order that the Second Judgment be set aside (‘the Summonses’). The present application for Mr Beloff QC to be admitted to argue the Summonses was opposed by the creditors comprising the monitoring committee, the Company, the Law Society and the Attorney-General.

Held, granting the application:

(1) When the court considered a challenge to its own jurisdiction or whether any of its decisions could be impugned because of an alleged breach of natural justice, it did not mean that the challenge fell within the category of administrative law or that the court's consideration was in the nature of ‘judicial review’ within the commonly understood meaning of that term. The Second Judgment was a judicial decision and not the decision of an executive agency or an inferior tribunal. Nor was it made by an administrator acting in an executive capacity: at [24] .

(2) The court had to identify and apply its mind to the legal and factual issues which had been raised in the underlying case for which admission was sought. Some of the points to be considered in this regard were whether the issues were novel (even if not complicated and difficult); whether there were procedural complexities in the underlying case; whether the underlying case would be of significant precedential value; whether there would be public interest in that the case would involve the development of Singapore law; and whether the integrity of the litigant was impugned by the litigation: at [28] .

(3) The issues raised by NCA in the Summonses involved questions of law and procedure which were fairly complex and required depth of knowledge and subtlety of approach if they were going to be adequately explored and presented. In any case, under the new regime, complexity was not the be-all and end-all. The issues did not have to be extremely complex but simply of a nature which the court considered would benefit from the expertise of knowledgeable and experienced counsel. The issues in the Summonses met that standard: at [37] .

(4) The criterion of the necessity for foreign counsel was to be taken ‘broadly’ and in a ‘common-sense manner’. It was for the court to consider what was necessary. Although the law firm advising NCA included at least two counsel who could have handled the Summonses, their capability had to be in conjunction with the experience and expertise of Mr Beloff QC, who had more than 45 years of legal practice and experience, having appeared as counsel in apex courts around the world, in addition to extensive judicial experience: at [38] to [47] .

(5) Although NCA had made no effort to engage a local Senior Counsel, that omission should not weigh too heavily against it here since many Senior Counsel had already been involved in the underlying case and very few Senior Counsel in Singapore have the breadth of experience of Mr Beloff QC. Another weighty factor was the nature of the case that NCA wished to make. The present case had complications, especially in relation to the allegation of improper fact-finding by the Court of Appeal. When pressing such arguments, NCA would naturally wish to be represented by counsel in whom they could have the greatest confidence because of his learning and experience in the relevant legal areas. Last but not least, this case concerned the jurisdiction and powers of the Court of Appeal, an area of law that is not often explored in the Singapore courts. In this regard, the experience of counsel who has appeared before and also sat as a judge, in different common law jurisdictions had the potential to add a great deal of value to the development of local law in this area: at [50] and [51] .

Judith Prakash J

Introduction

1 On 3 May 2013, I heard the application of Mr Michael Jacob Beloff QC (‘the Applicant’) to be admitted on an ad hoc basis pursuant to s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed, as amended in 2012) (‘the Act’) to practise as an advocate and solicitor in Singapore for the purpose of representing n Tan Corporate Advisory Pte Ltd (‘NCA’) in certain proceedings I will elaborate on below. This application met with strong opposition. On 17 May 2013, I allowed the application. The decision has been appealed against and I now give my grounds.

2 The principal order that I made reads as follows:

  1. 1. The Applicant be admitted on an ad hoc basis pursuant to section 15 of the Legal Profession Act (Cap. 161, 2009 Revised Edition) to practice as an advocate and solicitor in Singapore for the purposes of representing n Tan Corporate Advisory Pte Ltd (RC No. 200102926 R), the Other Party, in:

    1. (a) Summons No. 5682 of 2012/A;

    2. (b) Summons No. 6520 of 2012/K;

    3. (c) Summons No. 6475 of 2012/C; and

    4. (d) Summons No. 108 of 2013,

in Civil Appeal No. 44 of 2010/E and Civil Appeal No. 47 of 2010/S, and other ancillary proceedings which are directly related to or arise from the aforesaid summonses.

Background

3 The background to the application was somewhat complicated. In October 2008, NCA was appointed as the independent financial adviser of a Singapore incorporated company, TT International Ltd (‘the Company’), which was experiencing serious financial difficulties. The fees payable by the Company to NCA for its services, as set out in two engagement letters dated 28 October 2008 and 15 May 2009, included a value added fee (‘VAF’).

4 On 29 January 2009, the Company applied for and received approval from the court pursuant to s 210 (1) of the Companies Act (Cap 50, 2006 Rev Ed) (‘the COA’) to summon a meeting of its creditors to consider a proposed scheme of arrangement (‘the Scheme’). Meetings of the Company's creditors were held subsequently and, on 17 December 2009, the proposed Scheme manager (‘Scheme Manager’) reported that the Scheme had been passed by a majority of creditors representing 75.06% in value of the Company's debts. It should be noted that under the Scheme, the proposed Scheme Manager was Mr Nicky Tan and/or Mr Dan Yock Hian and/or Ms Lim Siew Soo who were all employees of NCA, Mr Nicky Tan being its chief executive officer.

5 The Company then applied for court sanction of the Scheme. The application which came on for hearing...

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4 cases
  • Re Michael Fordham QC
    • Singapore
    • High Court (Singapore)
    • 5 November 2014
    ...QC [2013] 3 SLR 66 (“Re Caplan”), Re Lord Goldsmith Peter Henry PC 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 decision......
  • Re Beloff Michael Jacob QC
    • Singapore
    • Court of Three Judges (Singapore)
    • 16 May 2014
    ...that we attend closely to the reasoning of the Judge at first instance. The Judge's decision is reported as Re Beloff Michael Jacob QC[2013] 4 SLR 849. As a preliminary matter the Judge held (at [24] - [26]) that the Setting-Aside Summonses did not involve constitutional and administrative ......
  • Re Michael Fordham QC
    • Singapore
    • High Court (Singapore)
    • 5 November 2014
    ...QC [2013] 3 SLR 66 (“Re Caplan”), Re Lord Goldsmith Peter Henry PC 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 decision......
  • Re Beloff Michael Jacob QC
    • Singapore
    • Court of Three Judges (Singapore)
    • 16 May 2014
    ...that we attend closely to the reasoning of the Judge at first instance. The Judge’s decision is reported as Re Beloff Michael Jacob QC [2013] 4 SLR 849. As a preliminary matter the Judge held (at [24]–[26]) that the Setting-Aside Summonses did not involve constitutional and administrative l......
1 books & journal articles
  • Legal Profession
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2013, December 2013
    • 1 December 2013
    ...stage: at [68]–[88]. The application was therefore allowed with no order as to costs. 21.26 Subsequently, in Re Beloff Michael Jacob QC[2013] 4 SLR 849, the applicant sought ad hoc admission for a case involving the jurisdiction and powers of the Court of Appeal. The application for ad hoc ......

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