Re BSL

• Jurisdiction: Singapore
• Judge: Steven Chong JA
• Judgment Date: 20 September 2018
• Neutral Citation: [2018] SGHC 207
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 732 of 2018
• Year: 2018
• Published date: 25 September 2018
• Hearing Date: 18 September 2018
• Plaintiff Counsel: Koh Swee Yen, Goh Wei Wei, Quek Yi Zhi Joel and Anand Tiwari (WongPartnership LLP)
• Defendant Counsel: Thio Shen Yi SC and Md Noor E Adnaan (TSMP Law Corporation),Jeyendran Jeyapal, Debra Lam and Gordon Lim (Attorney-General's Chambers),and Christopher Anand Daniel, Harjean Kaur and Ang Si Yi (Advocatus Law LLP)
• Subject Matter: Legal Profession,Admission,Ad hoc
• Citation: [2018] SGHC 207

Steven Chong JA: Introduction

This is an application under s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) for the applicant, BSL (“the Applicant”), to be admitted to represent the plaintiff in High Court Originating Summons No 375 of 2018 (“OS 375”).

In OS 375, the plaintiff seeks to set aside an award rendered by an International Chamber of Commerce (“ICC”) tribunal in an arbitration seated in Singapore. The plaintiff’s case in OS 375 is that: (a) the arbitral tribunal breached the rules of natural justice by failing to consider the parties’ evidence and submissions; and (b) the plaintiff was unable to present its case in the arbitration.

The underlying dispute in the arbitration concerned the performance and termination of a contract between the parties in OS 375 for the construction of a gas pipeline management and communication system in another country. The Applicant had acted in the arbitration proceedings as lead counsel for the plaintiff in OS 375.

Overview of the ad hoc admissions regime

The court’s inquiry in an application under s 15 is a two-stage one (Re Beloff Michael Jacob QC [2014] 3 SLR 424 (“Re Beloff”) at [54]; Re Harish Salve and another appeal [2018] 1 SLR 345 (“Re Harish Salve”) at [12]–[13]). First, the court must be satisfied of the three mandatory requirements in s 15(1) of the LPA, which reads as follows:

Ad hoc admissions

15.—(1) Notwithstanding anything to the contrary in this Act, the court may, for the purpose of any one case, admit to practise as an advocate and solicitor any person who — (a) holds — (i) Her Majesty’s Patent as Queen’s Counsel; or (ii) any appointment of equivalent distinction of any jurisdiction; (b) does not ordinarily reside in Singapore or Malaysia, but has come or intends to come to Singapore for the purpose of appearing in the case; and (c) has special qualifications or experience for the purpose of the case.

If the mandatory requirements are satisfied, the court will go on to decide whether to exercise its discretion to admit the applicant, having regard to the matters specified in para 3 of the Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012) (“the Notification Matters”):

Matters specified under section 15(6A) of Act

3. For the purposes of section 15(6A) of the Act, the court may consider the following matters, in addition to the matters specified in section 15(1) and (2) of the Act, when deciding whether to admit a person under section 15 of the Act for the purpose of any one case: (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 is reasonable to admit a foreign senior counsel for the purpose of the case.

The touchstone for the admission regime under s 15 of the LPA is that foreign senior counsel should only be admitted on the basis of “need”, and not merely because admission would be “desirable or convenient or sought as a matter of choice” (Re Beloff at [42] and [65]).

Mandatory requirements

First, I deal with the mandatory requirements under s 15. It is undisputed that the Applicant satisfies the two formal requirements under s 15(1)(a) and (b) in that he is a Queen’s Counsel and is not ordinarily resident in Singapore or Malaysia. The first question which arises for the court’s determination is whether the Applicant has “special qualifications or experience for the purpose of this case” under s 15(1)(c) of the LPA.

The Applicant’s case in this regard is, broadly, twofold. He contends that he has “special qualifications and experience” on the basis of, first, his extensive experience in international commercial arbitration and, second, his familiarity with the factual and legal issues in the arbitration proceedings underlying OS 375 given his involvement as lead counsel in the arbitration.

The focus on the s 15(1)(c) inquiry is on the relevance of counsel’s qualifications and experience to the specific issues in the case at hand (Re Rogers, Heather QC [2015] 4 SLR 1064 (“Re Rogers”) at [17]; Re Fordham, Michael QC [2015] 1 SLR 272 (“Re Fordham”) at [50]). At the same time, the Court of Appeal recently cautioned in Re Harish Salve at [37] that the issues in question must not be framed too narrowly. As the Court stated, “[a]s long as an applicant’s curriculum vitae (“CV”) demonstrates that he has wide as well as deep expertise and experience in the area of law with which the court will be concerned, it should not matter that he has not previously dealt with the particular issue in dispute.”

It is contended in the Applicant’s submissions that there are novel and complex legal issues in OS 375 relating to whether a tribunal’s failure to consider the parties’ arguments and evidence at the oral hearing and the post-hearing submissions would amount to a breach of the rules of natural justice or a party’s right to present its case. The burden is upon the Applicant to show that he possesses special qualifications or experience with reference to the issues relating to breach of natural justice.

In contrast to Re Harish Salve, the expertise of the Applicant in the present case does not relate to any discrete legal issue but to a general body of law. I find it troubling that the Applicant’s submissions go no further than to refer to his general expertise in international commercial arbitration. This relates to a general field of legal practice and hardly meets the requirement of specificity. Nonetheless, at the hearing before me, Mr Thio Shen Yi SC, appearing for...