Re Millar Gavin James QC

JurisdictionSingapore
JudgeTay Yong Kwang J
Judgment Date17 October 2007
Neutral Citation[2007] SGHC 178
Docket NumberOriginating Summons No 1197 of 2007
Date17 October 2007
Published date26 December 2007
Year2007
Plaintiff CounselDavinder Singh SC and Jaikanth Shankar (Drew & Napier LLC),Peter Cuthbert Low (Peter Low Partnership)
Citation[2007] SGHC 178
Defendant CounselAndrew Ong (Rajah and Tann),Jeffrey Chan and Leonard Goh (Attorney-General's Chambers)
CourtHigh Court (Singapore)
Subject MatterAdmission,Section 21 Legal Profession Act (Cap 161, 2001 Rev Ed),Three-stage test for admission of Queen's Counsel,Whether Queen's Counsel possessing special qualifications or experience for purpose of case,Legal Profession,Whether case containing issues of fact and/or law of sufficient difficulty and complexity,Principle of equality of arms,Whether circumstances of case warranting court's exercise of discretion in favour of admission,Ad hoc admission of Queen's Counsel

17 October 2007

Tay Yong Kwang J :

Introduction

1 This application is the second one taken out by Mr Gavin James Millar QC (“the QC”) to be admitted as an advocate and solicitor of the Supreme Court of Singapore in order to be the leading counsel for Review Publishing Company Limited, a Hong Kong company which publishes the Far Eastern Economic Review (“FEER”), and Mr Hugo Restall, the editor of FEER and author of an article entitled “Singapore’s ‘Martyr’, Chee Soon Juan” in the July/August 2006 issue of the FEER, who are the defendants in two libel suits in the High Court commenced against them by Mr Lee Hsien Loong, the Prime Minister of Singapore, and Mr Lee Kuan Yew, the Minister Mentor of Singapore. The two libel suits are Suit No. 539 of 2006 and Suit No. 540 of 2006. A summary of the two libel suits appears in the judgment of Tan Lee Meng J (“Tan J”) in the QC’s first application (Originating Summons No. 621 of 2007) reported in Re Millar Gavin James QC [2007] 3 SLR 349.

2 The QC’s first application for admission was in relation to both the libel suits as well as two appeals before the Court of Appeal concerning the jurisdiction of the High Court to hear the two libel suits. On the jurisdiction appeals, Tan J found that the QC did not satisfy the three-part test for admission under s 21 of the Legal Profession Act (Cap 161, 2001 Rev Ed). In so far as the libel suits were concerned, Tan J was of the view that, while the QC had the requisite expertise in defamation actions, the libel suits did not, on the evidence presented by the defendants, raise sufficiently difficult and complex issues of law and/or fact to warrant the admission of the QC. Tan J also found that the defendants had failed to show that they were unable to have local counsel represent them. He held that a client’s preference for a QC was not a factor to be considered when evaluating whether a QC ought to be admitted for a particular case. Accordingly, Tan J dismissed the first application and refused admission.

3 The defendants’ appeal against Tan J’s decision not to admit the QC was heard and dismissed by the Court of Appeal in July this year. While no written judgment was given by the Court of Appeal, all parties before me agreed that the Court of Appeal was of the view that the first application to admit the QC for the libel suits was premature as the defendants had not even filed their Defences yet and that the Court of Appeal left the door open for the defendants to re-apply after the Defences have been filed.

The present application

4 Since the decision of the Court of Appeal, the defendants have filed their Defences on 10 August 2007 and amended them on 27 August 2007. Each of the Defences contains 33 paragraphs of averments and runs to more than 50 pages but they raise substantially the same issues in both actions. The plaintiffs have filed their Replies without prejudice to their contention that the Defences failed to disclose any defence and without prejudice to their right to apply for summary judgment and/or to strike out the Defences. On 30 August 2007, the plaintiffs filed their applications to determine the natural and ordinary meaning of the words complained of as being defamatory and for summary judgment on the basis that the defendants had no defence to the claims. Alternatively, the plaintiffs sought to strike out substantial portions of the Defences filed. Each of the plaintiffs has filed an affidavit in support of these applications, with the exhibits annexed thereto running to some 400 pages. These applications have been scheduled to be heard on 25 October 2007.

5 In the present application for admission, the QC sought to represent the defendants in the libel suits for all purposes henceforth. If this was not permitted by the court, he would like at least to represent the defendants in the plaintiffs’ applications set out at [4] above.

The defendants’ arguments

6 It was accepted that s 21 of the Legal Profession Act contained a three-stage test in which the court considers whether the QC in question:

(a) has demonstrated that the case in which he seeks admission contains issues of fact and/or law of sufficient difficulty and complexity to require elucidation by a QC;

(b) has persuaded the court that the circumstances of the particular case warrant the court’s exercise of discretion in favour of admission;

(c) has satisfied the court that he is a suitable candidate for admission in that he possesses special qualifications or experience for the purpose of the case.

As Tan J had already held that the QC had special qualifications or experience for the libel suits, the defendants’ submissions centred on the other aspects of the above test.

7 The defendants submitted that there was no requirement that the requisite difficulty and complexity must pertain to the law as opposed to the facts (relying on Re Godfrey Gerald QC [2003] 2 SLR 306 at [15]) and that where there was a dearth of local expertise in a given area, even a moderately difficult or complex case may warrant the admission of QC (citing Re Platts-Mills Mark Fortescue QC [2006] 1 SLR 510 at [15]). The defendants acknowledged that the second stage of the test involved a balancing exercise, with the ability and availability of local counsel being only one of the factors to be placed on the scales. The court may also consider admitting QC in a case where, on grounds of self-interest or acquaintanceship, in view of the size of our jurisdiction and population, no local counsel ought to or is willing to take the case (Price Arthur Leolin v AG & Ors [1992] 2 SLR 972 at 977).

8 The defendants also argued that the court should take into account the need for a level playing field between the parties to the defamation suits. They submitted that Singapore, as a member state of the United Nations, was bound by the United Nations Charter to respect the standards laid down in the Universal Declaration of Human Rights, article 10 of which provides:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and any criminal charge against him.

The principle of equality of arms, it was submitted, was a fundamental part of any fair trial guarantee. In a defamation case of any complexity or difficulty, therefore, it was likely that this principle would be breached where there was disparity between the respective levels of legal representation. Two cases from the European Court of Human Rights were cited in support of this proposition (De Haes and Gijsels v Belgium (1997) 25 HRR 1 and Steel and Morris v United Kingdom (2005) 41 EHRR 22).

9 The defendants further argued that s 21 of the Legal Profession Act did not allow the court to consider admission for only part of a case. The relevant consideration in the section was whether the case was of sufficient complexity and not whether particular parts of it were so. The admission of QC was for the purpose of any one case and not any part of any one case. Section 21(7) supports this contention because it provides for the registrar to issue a certificate to practise specifying in it “the case” in which the QC is permitted to appear. Section 21(10), which states that “case” includes any interlocutory or appeal proceedings connected with a case, was intended simply to emphasize that admission under s 21(1) would entitle the QC to appear in relevant interlocutory and appeal proceedings in addition to the trial. The selective approach by the Court of Appeal in Price Arthur Leolin v AG & Ors (see [7]) could not therefore be reconciled with the plain words of s 21 and would inject inefficiency and unnecessary costs into the proceedings because of the need to repeatedly interrupt the progress of the proceedings with applications for piecemeal ad hoc admission of a QC. Recognising that the challenge to the construction given by the Court of Appeal in the said case would have to be pursued before that court, the defendants reserved their right to do so while maintaining their stand that the libel suits fully justified the admission of the QC for the entire case or, if not, at least for the said interlocutory proceedings taken out by the plaintiffs.

10 The factual issues arising on any fact-based interlocutory application by the plaintiffs were liable to be both complex and difficult. A great deal of factual material has been pleaded in the libel suits and the plaintiffs would be seeking to dismiss the Defences in their entirety and to obtain summary judgment. The material would have to be mastered and presented to the court by defence counsel. The factual issues would extend the plaintiffs’ pleading and discovery obligations. The plaintiffs’ interlocutory applications were therefore significantly more important than most other interlocutory applications.

11 The libel suits, viewed as a whole, contained legal and/or factual issues that were sufficiently difficult and complex for the purposes of s 21. Besides the usual averments relating to the meaning of the words complained of and the defences of justification, fair comment and qualified privilege, the defendants were also relying on the newly enunciated defences of the Reynolds privilege and of neutral reportage. Mr Peter Cuthbert Low (counsel for the defendants and the QC), in his affidavit of 16 August 2007, filed in support of this application to admit the QC, explained these last two defences as follows:

22(5) … The publication of the article containing the words complained of served the public interest as a serious contribution to the discussion of Singapore governance and politics, published reasonably and with editorial and journalistic responsibility (“Reynolds” privilege). This defence was identified by the House of Lords in Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127. In Reynolds the House of Lords recognised the considerable importance of press...

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3 cases
  • Review Publishing Company Ltd v Lee Hsien Loong
    • Singapore
    • Court of Appeal (Singapore)
    • 7 Octubre 2009
    ...(R) 465; [1999] 4 SLR 529 (folld) Millar Gavin James QC, Re [2007] 3 SLR (R) 349; [2007] 3 SLR 349 (refd) Millar Gavin James QC, Re [2008] 1 SLR (R) 297; [2008] 1 SLR 297 (refd) Mitchell v Sprott [2002] 1 NZLR 766 (refd) Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (refd) Mosley v News Group......
  • Re Rogers, Heather QC
    • Singapore
    • High Court (Singapore)
    • 8 Julio 2015
    ...party is represented by a senior counsel. Such a situation would lead, in the words of Tay Yong Kwang J in Re Millar Gavin James QC [2008] 1 SLR(R) 297 at [41], to “absurd consequences”. I agreed with Mr Daniel that the case of Re Andrews, where the “equality of arms” argument was accepted,......
  • Re Rogers, Heather QC
    • Singapore
    • High Court (Singapore)
    • 8 Julio 2015
    ...party is represented by a senior counsel. Such a situation would lead, in the words of Tay Yong Kwang J in Re Millar Gavin James QC [2008] 1 SLR(R) 297 at [41], to “absurd consequences”. I agreed with Mr Daniel that the case of Re Andrews, where the “equality of arms” argument was accepted,......
3 books & journal articles
  • Legal Profession
    • Singapore
    • Singapore Academy of Law Annual Review No. 2008, December 2008
    • 1 Diciembre 2008
    ...repealed the Judicial Committee Act (Cap 148, 1985 Rev Ed) more than a decade ago.’ Ad hoc admission again 19.2 Re Millar Gavin James QC [2008] 1 SLR 297 was a second application by Mr Gavin Millar QC for ad hoc admission. This application also failed. The first unsuccessful application, re......
  • Administrative and Constitutional Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2007, December 2007
    • 1 Diciembre 2007
    ...14 1.72 It is worth noting that there is increasing resort to human rights law to ground a legal argument, as in Re Millar Gavin James QC[2008] 1 SLR 297. The principle of equality of arms as ‘a fundamental part of any fair trial guarantee’ was put forth and Art 10 of the Universal Declarat......
  • THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AT 60
    • Singapore
    • Singapore Academy of Law Journal No. 2009, December 2009
    • 1 Diciembre 2009
    ...of Singapore Public Law”[2008] Sing JLS 264. 116 ILDC 479 (Bangladesh, 2001). 117 [1994] 3 SLR 662. 118 Re Millar Gavin James QC [2008] 1 SLR 297. 119“The principle of equality of arms, it was submitted, was a fundamental part of any fair trial guarantee. In a defamation case of any complex......

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