Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd and Another

• Jurisdiction: Singapore
• Judge: Chan Sek Keong JC
• Judgment Date: 30 March 1988
• Neutral Citation: [1988] SGHC 28
• Docket Number: Originating Motion No 90 of 1987
• Date: 30 March 1988
• Published date: 19 September 2003
• Year: 1988
• Plaintiff Counsel: Wong Meng Meng and Sundaresh Menon (Shook Lin & Bok)
• Citation: [1988] SGHC 28
• Defendant Counsel: Warren Khoo,M Karthigesu and A Thambaiyah (Cooma Lau & Loh & M Karthigesu)
• Court: High Court (Singapore)
• Subject Matter: Foreign law firm,ss 29 & 30 Legal Profession Act (Cap 161),Whether permissible under Legal Profession Act,Conduct of arbitration,Admission,Representation by foreign law firm,American law firm intending to act as advocates and solicitors in arbitration proceedings,Arbitration,Legal Profession,Right to represent clients in arbitration proceedings in Singapore

This is an application by the applicants for the continuation of an interim injunction granted by this court on 18 August 1987 restraining Messrs Debevoise and Plimpton, a firm of New York attorneys (herein called `D & P`), or any partner or associate thereof from acting or appearing on behalf of the respondents in an arbitration in Singapore between the applicants and the respondents.

The following facts are not in dispute. The applicants, a company incorporated in Singapore, were the main contractors for the building project known as `The Gateway Project` which was a development along Beach Road of two multi- storey office blocks which were designed and laid out in such a manner as to give an architectural impression of a gateway into the island of Singapore. For reasons which do not concern us, the applicants stopped work in December 1984 as a result of which the disputes arising therefrom between the applicants and the employers have been referred to arbitration under the main contract.

The respondents were the sub-contractors for the construction of the curtain walls for the Gateway Project. Following the stoppage of work by the applicants, the respondents made claims against the applicants under the sub-contract. After a series of skirmishes between the parties in the High Court the disputes were referred to arbitration and one Douglas Smith, a Fellow of the Royal Institute of Chartered Surveyors and a Fellow of the Chartered Institute of Arbitrators, both of England, was on 9 April, 1987 appointed by the court as the sole arbitrator.

On 25 June 1987, the solicitors for the applicants received from D & P by facsimile transmission a letter also dated 25 June 1987 from D & P in New York to the arbitrator in London stating, inter alia, that they represented the respondents in the arbitration between the applicants and the respondents. On 1 July 1987, D & P informed the arbitrator that they were ready to attend a preliminary meeting at an early date and suggested London as the most satisfactory venue. In this letter, D & P stated that they were `acting as counsel for [both respondents]`. On 7 July 1987, D & P submitted under a covering letter the respondents` statement of claim. The covering letter was signed by two partners who described themselves as `counsel for claimants`. The cover page and the final page of the statement of claim each bears the description of D & P as `attorneys for claimants`. The arbitrator subsequently fixed the preliminary meeting to be held in Singapore, as the proper venue, on 20 August 1987. On 6 August 1987, D & P wrote to the arbitrator stating its intention to attend the preliminary meeting in Singapore as fixed by the arbitrator.

On 18 August 1987, the solicitors for the applicants commenced these proceedings and on the same day obtained ex parte an interim injunction restraining D & P from acting or appearing in the said arbitration on the ground that such representation or appearance at the arbitration in Singapore would contravene the Legal Profession Act (Cap 116). As a result of the injunction, D & P did not attend the preliminary meeting held in Singapore on 20 August 1987. It is, however, not disputed that they continue to represent the respondents as attorneys up to the present day in relation to the dispute between the applicants and the respondents in their capacity as attorneys.

The other matters which are common ground between the applicants and the respondents are as follows:

(1) D & P are American attorneys having an office in New York and have not been admitted as advocates and solicitors of the Supreme Court of Singapore.

(2) D & P are employed by the respondents as attorneys and counsel for the said arbitration.

(3) The arbitration clause (cl 22) in the sub-contract provides specifically that the arbitration be in accordance with the Arbitration Act of Singapore; the procedure of the arbitration is also governed by the law of Singapore and the arbitration is subject to the supervision of the courts of Singapore as provided by the Arbitration Act.

(4) The sub-contract is also governed by the law of Singapore.

(5) The arbitration proceedings are now taking place in Singapore.

The case for the applicants is that D & P, by so acting for the respondents, have contravened, and by intending to so act in the arbitration proceedings will contravene, either s 29(1) or s 30(1) of the Legal Profession Act (the Act).

Counsel for the Law Society, who appeared by the leave of the court, supports the case for the applicants.

The case for the respondents is that the Act has no application to arbitration proceedings and that foreign lawyers and non-lawyers are not prohibited by the Act from representing parties to arbitration proceedings in Singapore.

In so far as D & P are concerned, it is not disputed that they would be providing one or more of the following services to the respondents in the arbitration proceedings, ie (i) advising the respondents on their rights and liabilities under the sub-contract; (ii) the drafting of such documents as may be required for the arbitration; (iii) leading evidence on behalf of respondents and cross-examining the applicants` witnesses; and (iv) making submissions on the law and on the facts before the arbitrator. It is also common ground that the purpose of this application is to obtain from this court a ruling to determine D & P`s status and also because the issue is one of public interest in the light of the government`s intention to promote Singapore as an international arbitration centre. For these reasons, the respondents have agreed to waive the requirement that the applicants prove that their private rights have been or will be infringed by the intended acts of D & P.

I now turn to ss 29 and 30 of the Act, the relevant parts of which read as follows:

29(1) Subject to this Part, no person shall practise as an advocate and solicitor or do any act as an advocate or a solicitor unless his name is on the roll and he has in force a practising certificate and a person who is not so qualified is referred to in this Act as an unauthorized person.

30(1) Any unauthorized person who:

(a) acts as an advocate or a solicitor or agent for any party to proceedings or as such advocate, solicitor or agent sues out any writ, summons or process, or commences, carries on, solicits or defends any action, suit or other proceeding in the name of any other person or in his own name in any of the courts in Singapore or draws or prepares any document or instrument relating to any proceeding in the courts in Singapore; or

(b) ...

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 or to imprisonment for a term not exceeding 6 months or to both.

(2) Without prejudice to the generality of subsection (1) any unauthorized person who either directly or indirectly:

(a) draws or prepares any document or instrument relating to any movable or immovable property or to any legal proceeding;

(b) takes instructions for or draws or prepares any papers on which to found or oppose a grant of probate or letters of administration;

(c) draws or prepares any document or instrument relating to the incorporation or formation of a limited company;

(d) on behalf of a claimant or person alleging himself to have a claim to a legal right writes, publishes or sends a letter or notice threatening legal proceedings other than a letter or notice that the matter will be handed to a solicitor for legal proceedings; or

(e) solicits the right to negotiate, or negotiates in any way for the settlement of, or settles, any claim arising out of personal injury or death founded upon a legal right or otherwise,

shall unless he proves that the act was not done for or in expectation of any fee, gain or reward be guilty of an offence under this subsection.` (Emphasis added.)

As s 31 is relevant in construing the meaning of s 30, it is reproduced in full below:

Section 30 does not extend to:

(a) the Attorney-General or the Solicitor-General or any other person acting under the authority of either of them;

(b) the Public Trustee, the Official Assignee, Assistant Public Trustees and Assistant Official Assignees acting in the course of their duties under any law relating to those offices;

(c) the Director of Legal Aid and Assistant Directors of Legal Aid acting in the course of their duties under the provisions of the Legal Aid and Advice Act;

(d) any other public officer drawing or preparing instruments in the course of his duty;

(e) any person acting personally for himself only in any matter or proceeding to which he is a party;

(f) any bona fide and full-time employee of an insurance company negotiating for the settlement of or settling a claim made or contemplated against any person or body corporate in cases where, the claim, arising out of personal injury or death, relates to a risk insured by that insurance company;

(g) any arbitrator or umpire lawfully acting under any written law relating to arbitration, settling or attempting to settle the dispute between the parties to the arbitration;

(h) any full-time member of the academic staff of the Faculty of Law of the National University of Singapore who is a qualified person rendering any...