Re De Lacy Richard QC

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 13 March 2003
• Neutral Citation: [2003] SGHC 55
• Docket Number: Originating Motion No 4 of 2003
• Date: 13 March 2003
• Published date: 07 October 2003
• Year: 2003
• Plaintiff Counsel: Mark Goh Aik Leng (Goh Aik Leng & Partners)
• Citation: [2003] SGHC 55
• Defendant Counsel: Laurence Goh Eng Yau (Laurence Goh Eng Yau & Co.),Wilson Hue (Attorney-General's Chambers),Davinder Singh SC and Hri Kumar (Drew & Napier)
• Court: High Court (Singapore)
• Subject Matter: First stage test s 21 Legal Profession Act,Whether test can be re-argued after court rejected earlier application under same section,Civil Procedure,Principles,Legal Profession Act (Cap 161, 2001 Rev Ed) s 2,Payment of costs by non-party to application,Ad hoc,Costs,Legal Profession Act (Cap 161, 2001 Rev Ed) s 21,No material change in facts,Admission,Whether circumstances justified exercise of judicial discretion in applicant's favour,Legal Profession,Whether litigant can be ordered to pay costs,Second stage test s 21 Legal Profession Act,Whether litigant in main suit non-party to application to admit Queen's Counsel

Introduction

1 This Originating Motion seeks an order that Richard de Lacy, Queen’s Counsel (QC) be admitted to practise as an advocate and solicitor of the Supreme Court of Singapore for the purpose of appearing on behalf of Anthony Wee soon Kim, the Plaintiff in High Court Suit No. 834 of 2001. Anthony Wee is a 72 year old retired lawyer with a serious heart condition complicated by diabetes and renal failure. The Defendant in that action is UBS AG, an international private bank carrying on business in Singapore. The trial of that action has commenced but was adjourned due to Anthony Wee’s health problems.

Originating Motion No. 22 of 2002 (“The First Application”)

2 The present application is the second application for the admission of QC to represent Anthony Wee in the said suit. The first application was Originating Motion No. 22 of 2002 in respect of Gerald Godfrey QC. I heard that application on 15 October 2002 and dismissed it with costs fixed at $5,000 to be paid by Anthony Wee to UBS AG. The facts relating to the dispute between Anthony Wee and UBS AG and the circumstances leading to the first application for admission of QC are set out in my grounds of decision dated 2 November 2002 in that Originating Motion. I dismissed the first application as I was of the view that it failed all three stages of the test in section 21 Legal Profession Act explained in Re Caplan Jonathan Michael QC [1998] 1 SLR 432. In summary, I held as follows in the first application:

(1) the facts and the legal issues in the action were not of sufficient difficulty and complexity to warrant the admission of QC;

(2) Anthony Wee’s unjustifiable stance which caused him to be without legal representation in the course of trial did not warrant the court exercising its discretion in his favour; and

(3) despite the QC’s very impressive achievements and ability, his qualifications and experience did not quite meet the requirements of the action before the court.

Anthony Wee has lodged an appeal against the above decision in Civil Appeal No. 114 of 2002. The appeal is scheduled to be heard by the Court of Appeal next Monday, 17 March 2003.

The Present Application

3 This Originating Motion was scheduled to be heard on 6 March 2003 but was refixed for hearing one week later at the request of Anthony Wee who stated in his letter of 3 March 2003 that his solicitor, Mark Goh Aik Leng, was out of the country on urgent business and would not be back until 10 March 2003. When hearing commenced this morning, Mark Goh applied for special leave to allow Anthony Wee, who was present in court, to address the court, to be followed by a summing up by his counsel. He explained that this case was extremely important to the Plaintiff and it would be better for the Plaintiff to address the court personally. As Mark Goh was still on record as the Plaintiff’s solicitor, I refused such leave. Mark Goh then requested to speak to Anthony Wee in court and I allowed him to do so. After conferring privately with his client, Mark Goh informed me that since Anthony Wee insisted on addressing the court himself, he had no choice but to apply to be discharged as his solicitor. Bearing in mind the history of the proceedings at trial (which I dealt with at some length in my earlier decision), I refused the application. Parties should not be permitted to engage in a continuum of appointing, discharging and then re-appointing their solicitors at their whim during the course of proceedings. Mark Goh then indicated he would have to read the submissions prepared by Anthony Wee and written in the first person. He proceeded to do so.

Anthony Wee’s Arguments

4 The present application, like the first one, is supported by an affidavit by Mark Goh Aik Leng. After succinctly describing the action as one in which Anthony Wee is “seeking remedies in respect of the Defendant’s obligations to advise on foreign exchange trades carried out by its employees”, Mark Goh repeats essentially the same matters listed out in his affidavit in the first application. This time, however, no allegations are made against the lawyers who have acted for Anthony Wee in the recent past. The affidavit concludes in the following manner:

“44. In view of his age, the Plaintiff engaged the services of M/s Goh Aik Leng and Partners to assist as he was unable to undertake the conduct of his case without the assistance of a practising advocate and solicitor.

…

48. In particular, it should be pointed out that the law in regard to the fiduciary duties owed by a private banker to a client has undergone significant evolution in recent years. These changes have had to be made in order to keep pace with the changes in the banking industry and especially in the provision of private banking services. There is no local authority that definitively addresses these issues. It is a difficult and complex area of the law that pools the wisdom laid down in more than a century of decided cases from multiple jurisdictions and distils the same against the modern face of the banking industry.

49. In the circumstances, such factual matrix require considerable forensic ability on the part of any counsel for the Plaintiff.

50. Needless to say, neither the Plaintiff nor I with limited experience had that forensic ability in the somewhat difficult law in private banking and/or the ability to unravel the complex documents produced by Drew & Napier, which required at least eight (8) affidavits to explain (a) how taped telephone conversations were destroyed or “erased” and why only telephone conversations of Colin Koh and David Lim were recorded that flouted the Defendant’s General Compliance Manual and the Telephone Recording Procedures Directive Drew & Napier discovered under compulsion of law which it subsequently disclaimed as being irrelevant.

Attempts to appoint local senior counsels

51. After the unsuccessful application for the admission of Mr. Gerald Godfrey QC, I was instructed and did approach several local senior counsels intending for them to conduct this matter. All our attempts have been unsuccessful.

52. I approached Mr. Michael Khoo SC, but was told that Mr. Khoo would be engaged in another case and could not take on the case. Mr Alvin Yeo SC was also unable to accept the case as there might be a potential conflict of interests. We were also rejected by Mr. Kenneth Tan SC, for reasons of conflict of interests again.

Mr. Richard De Lacy QC

53. I annex hereto the curriculum vitae of Richard De Lacy, which I believe will demonstrate that he is amply qualified to conduct this case. Annexed hereto marked “GAL-6” is a copy thereof.”

5 The written submissions seek mainly to re-argue that the action between Anthony Wee and UBS AG was sufficiently difficult and complex to warrant the admission of QC. Where the second stage of the test for admission is concerned, Anthony Wee argues that as an experienced lawyer, he is fully conscious that one should never change horses in mid-stream. He denies any suggestion that he has been flippant in appointing and discharging his lawyers or that it was done for tactical reasons. He claims that his previous instructing solicitor, Thomas Sim, was unwilling to take his instructions and that he tried to resolve the differences without success. He exhibits a letter dated 13 June 2002 from his then counsel, Engelin Teh SC, which reads:

“I refer to your letter of 12 June 2002.

All my efforts to explain and improve the situation have only resulted in further accusations from you. I take particular objection to your remarks that the costs agreement that we have sent to you for your execution was to enable us ‘to print money at (your) expense’. Your remarks are insulting and unwarranted. You are not obliged to sign the costs agreement or to even engage us. In order not to further aggravate the situation, I will not respond to the matters raised in your letter at this stage.

I really do not see how my firm can continue to act for you in the light of the allegations which you are making against my firm. Please arrange for another firm of solicitors to take over the conduct of the matter as soon as possible. My firm will render all assistance necessary to get your new lawyers up to date on the matter.

As for costs, I will leave it to the Court to decide if we are entitled to the amounts billed.”

6 Anthony Wee also states that it is a fallacy “to assume that all Senior Counsel are familiar with or experienced with private banking dealing with foreign exchange trade contracts”. He submits that the “availability and ability” of local counsel is not the predominant factor for the second-stage test, relying on Re Beloff Michael Jacob QC [2000] 2 SLR 782. In performing its “balancing act”, he says, the court should have due regard to his age and his health and to the fact that he is not able to find a Senior Counsel to take over the case from Engelin Teh SC. He also states that the fact that the trial was only part-heard after three weeks and the voluminous documents involved belie the Defendant’s argument that the case is a simple one and that “it would not be unreasonable to infer (Davinder Singh SC) would not normally descend to lead in a case which is simple and uncomplicated”. If the admission of QC is refused, there would be “an unequal playing field pitting Mr (Mark) Goh against a giant, a role that Mr (Mark) Goh does not relish”.

7 Richard de Lacy QC’s curriculum vitae shows he was called to the English Bar in 1976 and became a QC in 2000. He practised at the Chancery Bar between 1978 and 1986 in various fields including banking. From 1986 to date, he practises “in the banking and commercial chambers of R. Neville Thomas QC in the fields of commercial law, especially banking and arbitration, professional negligence claims against accountants and solicitors, insolvency (corporate and individual), receiverships, company law, financial services law”. The banking litigation he was...