TWM v TWN

• Jurisdiction: Singapore
• Judge: Lo Wai Ping
• Judgment Date: 04 November 2019
• Neutral Citation: [2019] SGFC 117
• Court: Family Court (Singapore)
• Docket Number: Divorce No. 3281 of 2016, RAS Nos. 38 of 2019
• Year: 2019
• Published date: 13 November 2019
• Hearing Date: 01 August 2019
• Plaintiff Counsel: Mr Alfred Dodwell (Dodwell & Co LLC)
• Defendant Counsel: Mr Lee Ee Yang with Ms Charis Wong (Covenant Chambers LLC)
• Subject Matter: Family law,Breach of Legal Profession (Professional Conduct) Rules,Inherent jurisdiction - Restraining law firm and solicitor from acting for the Wife
• Citation: [2019] SGFC 117

District Judge Lo Wai Ping:

By way of summons, FC/SUM 2285/2019, the Plaintiff applied for the law firm representing the Defendant (the “Law Firm”) in the divorce proceedings commenced under FC/D 3281/2016 (“Divorce Proceedings”) to be enjoined from further acting for the Defendant in the proceedings (“Restraining Application”). The Plaintiff also applied for X, a solicitor with the Law Firm having conduct of the Divorce Proceedings (the “Defendant Counsel”) to be enjoined from further acting for the Defendant. After hearing the parties, I dismissed the Restraining Application. I set out below the reasons for my decision.

The Restraining Application

The thrust of the Plaintiff’s complaint under the Restraining Application was that the Defendant Counsel had filed an affidavit dated 8 May 2019 (“DC Affidavit”) in reply to the Plaintiff’s supporting affidavit filed on 26 April 2019 (“Plaintiff’s Affidavit”) for the Plaintiff’s application in summons FC/SUM 1428/2019 (“SUM 1428”).

SUM 1428 was the Plaintiff’s application that I be recused from any further hearing of the Divorce Proceedings (the “Recusal Application”). The Recusal Application was dismissed and there was no appeal by the Plaintiff against my dismissal of the Recusal Application. It should be noted that the Defendant did not file any affidavit for the Recusal Application.

The Plaintiff’s case was that by the Defendant Counsel’s act in filing the DC Affidavit, the Defendant Counsel had breached Rule 11(3) of the Legal Profession (Professional Conduct) Rules 2015 (“PCR”) and accordingly both the Defendant Counsel and the Law Firm should be enjoined from further acting for the Defendant in the Divorce Proceedings. Rule 11(3) of the PCR is reproduced below: “11(3) In any case where it is known or it appears that a legal practitioner will be required to give evidence which is material to the determination of any contested issue before a court or tribunal — (a) the legal practitioner — (i) must not accept instructions from any party to that case; and (ii) must, if the legal practitioner was acting for any party to that case, discharge himself or herself, or, where the legal practitioner has represented that party in any proceedings relating to that case, apply to be discharged, from acting further for that party; but (b) the law practice in which the legal practitioner practises, or a member of that law practice, may represent or continue to represent any party to that case, unless doing so would prejudice the administration of justice.”

In addition, the Plaintiff submitted that there were special or exceptional circumstances warranting the Court’s intervention and restraint of the Defendant Counsel and the Law Firm from further acting for the Defendant in the Divorce Proceedings.

At the outset, it should be noted that the Plaintiff was not a former client or a former prospective client of the Law Firm. It should also be noted that the basis relied upon by the Plaintiff for the Restraining Application did not involve any issue relating to breach of confidence or any potential disclosure of confidential information on the part of the Defendant Counsel or the Law Firm. There was also no allegation by the Plaintiff of any other breach of duty or any other breach of law by the Defendant Counsel, whether arising from the filing of the DC Affidavit or otherwise. The only alleged wrongful act of the Defendant Counsel in filing the DC Affidavit was the breach of Rule 11(3) of the PCR.

Alleged breach of PCR

In Harsha Rajkumar Mirpuri (Mrs) née Subita Shewakram Samtani v Shanti Shewakram Samtani Mrs Shanti Haresh Chugani [2018] SGHC 155 (“Harsha’s Case”), a case concerning an application for an injunction to restrain a law firm from acting for a party to the proceedings due to the alleged breach of certain provisions of the PCR, the High Court stated the following: “24 It is clear, therefore, that the court is not the proper forum for the determination of whether a given provision in the PCR has been breached, and that to apply the PCR in the injunctive context is effectively to invite the court to make or attempt to make such a determination, which is inappropriate. In my judgment, the PCR are a code of professional ethics which is enforced by a regulatory body, in this case, the Law Society, through disciplinary proceedings against legal practitioners in Singapore. The PCR are not, and were never intended to be, a set of rules governing when a private party might in civil proceedings obtain an injunction to restrain a law firm from acting for the opposing party.”

In the present case, the Plaintiff was asking this court to enjoin the Defendant Counsel and the Law Firm from further acting for the Defendant in the Divorce Proceedings based on the alleged breach of Rule 11(3) of the PCR by the Defendant Counsel. In this regard, the Plaintiff was actually asking this court to make a determination that the Defendant Counsel, in filing the DC Affidavit, had breached Rule 11(3) of the PCR. As was pointed out by the High Court in Harsha’s Case at paragraph [24], this was inappropriate as the court was not the proper forum for the determination and investigations of breaches of the PCR and “… [t]he PCR are not, and were never intended to be, a set of rules governing when a private party might in civil proceedings obtain an injunction to restrain a law firm from acting for the opposing party.”

Court’s inherent jurisdiction to supervise and regulate the conduct of its officers

I then considered the Plaintiff’s submission that there were special or exceptional circumstances in this case which warranted this court’s intervention and restraint of the Defendant Counsel and the Law Firm from continuing to act for the Defendant in the Divorce Proceedings. In support of his submission on this point, counsel for the Plaintiff referred to the High Court’s decision in Then Khek Khoon and another v Arjun Permanand Samtani and another [2012] SGHC 17 (“Then Khek Khoon”).

In Then Khek Khoon, the High Court had to deal with the issue whether it had inherent jurisdiction to hear an application by one defendant for an injunction to restrain the plaintiff’s...