Wee Soon Kim Anthony v UBS AG

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 16 September 2002
• Neutral Citation: [2002] SGHC 213
• Docket Number: Suit No 834 of 2001
• Date: 16 September 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: Anthony Wee Soon Kim in person
• Citation: [2002] SGHC 213
• Defendant Counsel: Davinder Singh SC, Hri Kumar and Gary Low (Drew & Napier LLC)
• Court: High Court (Singapore)
• Subject Matter: Whether litigant in person could have practising lawyer present arguments for him as his friend,Whether within scope of "McKenzie friend",Administrative Law,Right to legal representation

Judgment

GROUNDS OF DECISION

1 The plaintiff was medically unfit to attend at a hearing before me. A practising lawyer came in his place with instructions to argue the matter for him. The lawyer did not come as the plaintiff’s counsel, but as his friend.

2. When the plaintiff commenced this action against the defendant bank a law corporation acted for him. The law corporation filed the cause papers and represented him in the interlocutory hearings and the first tranche of hearing between 26 February 2002 and 15 March 2002. The solicitor-client relationship did not last. On 15 June 2002 the plaintiff filed a notice that he was acting in person. Then on 8 July 2002, a law firm, Goh Aik Leng & Partners filed a notice that it had been appointed to act for him in place of the law corporation.

3. On 15 July 2002, an application by the defendant for interrogatories served by the plaintiff to be withdrawn came on for hearing. The plaintiff came to the hearing with Mr Goh Aik Leng and Mr Mohan Singh, a practising lawyer from another firm. At the outset, Mr Goh informed me that the plaintiff was still a litigant in person. Mr Goh described himself as the solicitor on record whose function was to file documents for the plaintiff and to accept service of documents on his behalf, while the plaintiff present arguments himself.

4. I was not persuaded that a party who has appointed counsel to act for him can consider himself to be a litigant in person and retain the right to argue his case himself. I stood down the matter for the plaintiff and Mr Goh to consider the matter. When the hearing resumed, they decided that the plaintiff would continue with the argument. Mr Goh withdrew as solicitor, but remained to assist the plaintiff while he presented the arguments himself.

5. On 22 July, the action came on for continued hearing scheduled to go on to 30 August 2002. However the plaintiff was not in court. Mr Goh appeared and informed me that the plaintiff was in hospital undergoing medical tests. Mr Mohan Singh was also present, and Mr Goh introduced him as the co-counsel of the plaintiff.¹ However Mr Mohan Singh was unsure whether he could be a co-counsel to a litigant in person, and wanted to give further thought to that.

6. Mr Goh raised the question of his own status again. He applied that he be accorded the right of audience as the plaintiff’s friend. He took pains to state that he was not claiming any right by himself as a "McKenzie friend" because he acknowledged on the authority of R v Leicester City Justices Ex parte Barrow [1991] 2 QB 260 that he cannot claim the right himself.² He submitted on the authority of that case that "(I)n the light of [the plaintiff’s] health and the complexity of the case, he is entitled to appoint me as his friend and he is also entitled to instruct me to speak on his behalf."³ and that the plaintiff had a choice to present his case himself, personally or to have a friend present it on his behalf.⁴

7. The application was adjourned for further hearing on 24 July. When hearing resumed, Mr Goh returned alone. He informed me that Mr Mohan Singh had withdrawn from further participation in the case. The arguments on Mr Goh’s right to argue the case on the plaintiff’s behalf continued. After hearing the submissions, I ruled that Mr Goh cannot present arguments for the plaintiff as his friend.⁵

8. The plaintiff now appeals against this order by a notice of appeal filed by Goh Aik Leng & Partners as his solicitors.

9. The McKenzie friend takes his name from the case McKenzie v McKenzie [1970] 3 All ER 1034. This was a divorce case heard in England. The husband Mr McKenzie was not represented by counsel, but Mr Hanger, an Australian barrister was in court with him. Mr Hanger had been attached to a firm of solicitors which acted for the husband previously, and he attended the hearing to assist him to conduct his case. However the trial judge did not allow him to do that.

10. The husband who was left to fend for himself in the hearing appealed to the Court of Appeal against the judge’s decision. The Court allowed the appeal. Davies LJ referred to Lord Tenterden’s statement in Collier v Hicks (1831) 2 B & Ad 663 that

Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice, but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justice.

and held that Mr Hanger should not have been excluded because

Mr Hanger was not there to take part in the proceedings in any sort of way. He was merely there to prompt and to make suggestions to the husband in the conduct of his case, the calling of his witnesses and, perhaps more importantly, on the very critical and difficult questions of fact in this case, to assist him by making suggestions as to the cross-examination of the wife and her witnesses.

11. Sachs LJ agreed with Davies LJ noting that

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