Results of First Application under New Regime for Ad Hoc Admission of Queens Counsel / Foreign Senior Counsel in Singapore Court Proceedings

One of the advantages that arbitration has over litigation is that parties in arbitration can choose to be represented by counsel of their choice, including Queen’s Counsel (QCs).

In April 2012, Singapore introduced amendments to its Legal Profession Act (Cap. 161) (“LPA”) to make it easier for parties to retain the services of QCs or foreign counsel holding an appointment of equivalent distinction to appear as counsel in Singapore court proceedings. The key difference between the pre-April 2012 regime (“the Old Regime”) and the post-April 2012 regime (“the New Regime”) is the removal of the threshold requirement for the court to be “satisfied that [the case] is of sufficient difficulty and complexity and having regard to the circumstances of the case“. This “sufficient difficulty and complexity requirement” has now been removed from section 15 of the LPA.

Under the New Regime, the test is as set out in section 15(1) of the LPA read with the Legal Profession (Ad Hoc Admissions) Notification 2012 (GN No S 132/2012) (the “Notification”), made pursuant to section 16(6A) of the LPA. Section 15 of the LPA provides,

“Ad hoc admissions

15.—(1) Notwithstanding anything to the contrary in this Act, the court may, for the purpose of any one case, admit to practise as an advocate and solicitor any person who —

(a) holds —

(i) Her Majesty’s Patent as Queen’s Counsel; or

(ii) any appointment of equivalent distinction of any jurisdiction;

(b) does not ordinarily reside in Singapore or Malaysia, but has come or intends to come to Singapore for the purpose of appearing in the case; and

(c) has special qualifications or experience for the purpose of the case.

(6A) The Chief Justice may, after consulting the Judges of the Supreme Court, by notification published in the Gazette, specify the matters that the court may consider when deciding whether to admit a person under this section.”

In turn, paragraph 3 of the Notification states as follows:

“Matters specified under section 15(6A) of Act

3. For the purposes of section 15(6A) of the Act, the court may consider the following matters, in addition to the matters specified in section 15(1) and (2) of the Act, when deciding whether to admit a person under section 15 of the Act for the purpose of any one case:

(a) the nature of the factual and legal issues involved in the case;

(b) the necessity for the services of a foreign senior counsel;

(c) the availability of any Senior Counsel or other advocate and solicitor with appropriate experience; and

(d) whether, having regard to the circumstances of the case, it is reasonable to admit a foreign senior counsel for the purpose of the case.”

(emphasis in bold)

The Singapore High Court recently issued its decision in Re Andrews Geraldine Mary QC [2012] SGHC 229, which is the first application for ad hoc admission of a QC under the New Regime. Interestingly, the last application under the Old Regime was filed only fairly recently (in 2011) and concerned the Astro-Lippo dispute in which Astro had applied to have their lead counsel in the arbitration admitted to argue the setting aside application filed by Lippo in court. A brief overview of the Astro-Lippo dispute along with the decision in Re Joseph David QC, [2011] SGHC 262 can be found here.

The Current Approach

In Re Andrews Geraldine Mary QC, the learned judge, the Honourable Justice of Appeal VK Rajah (“Rajah JA“), explained in detail the court’s decision and reasoning in allowing the application for Ms. Geraldine Mary Andrews QC to be admitted as an advocate and solicitor of Singapore for the purposes of representing the Plaintiff in Suit No 453 of 2009.

Rajah JA noted that with the removal of the “sufficient difficulty and complexity requirement“, the requirement in section 15(1)(c) is the new threshold which must be met before the court will consider the matters set out in paragraph 3 of the Notification. He held at paragraph [39] that,

“The s 15(1)(c) requirement sets a threshold which is met so long as there is evidence to show that the foreign senior counsel has special qualifications and/or experience which indicates that he or she will be able to expertly discharge his or her duties to the client and to the court ‘for the purpose’ of the case for which ad hoc admission is sought. For instance, where a case raises issues which require specialised knowledge of areas of law such as arbitration, insolvency or intellectual property, the foreign senior counsel should have the appropriate expertise in these areas of law.”

If that threshold is met, the courts must then assess all the matters listed in paragraph 3 of the Notification (see paragraph [44]). The High Court held that,

“The 2012 Amendment is not intended to lead to a “free for all”, and in assessing applications for ad hoc admission, the courts are required to conduct a judicious balancing of the competing interests in the particular case at hand within the framework of the matters specified in para[graph] 3 of the Notification.”

However, the High Court also cautioned that the layout of paragraph 3 of the Notification indicated that no one factor had primacy over the others, or that all 4 criteria had to be satisfied before an applicant would be admitted (see paragraph [45]). Instead the court has to “carefully evaluate these matters in the exercise of its discretion to grant or reject the application“. This discretion was “substantial, although not unfettered“.

(a) the nature of the factual and legal issues involved in the case

The court will identify and apply its mind to the factual and legal issues which parties raise in their pleadings. Procedural or evidential complexities, insofar as they affect or influence the resolution of the factual and legal issues, may also be considered. Rajah JA noted that such procedural and evidential issues could in certain cases “overshadow the factual or legal issues and consequently be decisive of the entire dispute” (see paragraph [47]).

The complexity of the legal fight is no longer the benchmark for determining whether a foreign senior counsel ought to be admitted pursuant to the “sufficient difficulty and complexity requirement“. Accordingly,

if the issues are novel and concern an area of law in which the decision can have significant precedential value, or if there is considerable public interest in the outcome, such as in the areas of corporate governance or finance, the courts may be more likely to grant an application for ad hoc admission even if the matter does not involve particularly complex legal or factual issues” (see paragraph [48]).

(b) the necessity for the services of a foreign senior counsel

Rajah JA considered that the phrase “necessity” in paragraph 3(b) of the Notification should be read broadly and in a commonsensical manner to include all matters which indicate that the services of a foreign senior counsel are needed by the litigant for the proper conduct of his/her case.

Another relevant factor is the non-availability of local counsel (or Senior Counsel) or if they are not available at short notice. The court held that “the fewer the number of local counsel with appropriate experience, the more “necessary” it becomes for the services of a foreign senior counsel” (see paragraph [52]).

(c) the availability of any Senior Counsel or other advocate and solicitor with appropriate experience.

To satisfy this factor, the litigant has to take reasonable steps to ascertain the availability of Senior Counsel or other local counsel with appropriate experience (see paragraph [55]).

However, Rajah JA rejected the Law Society’s proposal that it would be sufficient for the litigant to ascertain the availability of Senior Counsel in just the larger law firms only in cases where a litigant seeks to appoint counsel to act against a bank or large corporate entity (see paragraph [56]).  He considered that the identity of the litigating parties was not determinative as “it would prize form over substance” (see paragraph [56]). In this respect, he noted that even though the parties in this case were all individuals, the sums at stake were not paltry. Furthermore, there was also the fact that the big four law firms in Singapore had all declined to represent the plaintiff or were conflicted out of representing him by virtue of the defendants.

The learned judge further held at paragraph [57] that in deciding whether the litigant had in fact taken reasonable steps to secure Senior Counsel or other local counsel with appropriate experience, the court should consider, amongst other factors,

“…the number of Senior Counsel or other local counsel who have the appropriate experience to deal with the issues in the underlying case, the steps taken (if any) by the litigant to instruct such Senior Counsel or local counsel and the reasons (if any) why those steps were unsuccessful. Where a litigant has taken reasonable steps to instruct Senior Counsel or other local counsel with appropriate experience, this will generally be a factor in his favour for the court to consider. Where a litigant has in fact previously instructed Senior Counsel or other local counsel with appropriate experience at an earlier stage of the same proceedings but where the counsel instructed has since ceased to act for the litigant, this may a fortiori count as a factor in the litigant’s favour”.

 (d) Whether, having regard to the circumstances of the case, it is reasonable to admit a foreign senior counsel for the purpose of the case

The Law Society and the AG had intended for paragraph 3(d) of the Notification to be a catch-all provision (see paragraph [58]).

In this respect, the issue of so-called equality of arms i.e. parties should have commensurate legal advocates, was now a relevant consideration. This had not been the case under the previous regime (see paragraph [59] and [60]). The court recognised that,

there may sometimes, depending on the particular factual matrix of a case, be ‘a world of difference between having the assistance of leading counsel behind the scenes in formulating written submissions, and having the advantage of their presence in court to argue the case’, especially in a trial which turns on findings of fact” (see paragraph [60]).

Nevertheless, equality of arms “[wa]s just a means to an end” and ought not to be accorded too much weight in cases where the lack of equality would not make a difference to the end result e.g. where the issues were simple (see paragraph [61]). Furthermore, the courts will not want to disadvantage litigants who are unable to afford expensive counsel. Accordingly, this will be a relevant consideration in situations where it is the party with deeper pockets who first seeks to admit foreign senior counsel (see paragraph [62]).

General Principles for Ad Hoc Admissions

Rajah JA held at paragraph [63] that the courts:

“should always adopt a holistic (and not a formulaic) approach when assessing the facts of a particular case and deciding what weight to attribute to any given factor in the context of that case…[and that] the decision-maker should consider all the obligatory relevant considerations and should not attribute manifestly excessive or manifestly inadequate weight to any of them”.

The overarching concern of the courts is to strike a balance between a number of public policy interests. These include: (a) nurturing the local Bar; (b) allowing litigants to engage counsel of their choice to advance their case as well as possible; and (c) ensuring the proper and timely administration of justice (see paragraph [66]).

Interestingly, the court stressed that the competence of local counsel did not preclude the necessity of admitting (skilled) foreign senior counsel. Rajah JA held at paragraph [67] that,

“the mere fact that there are available local counsel who can, having regard to the issues raised, competently put forward a litigant’s case will not necessarily mean that there is no necessity for the services of a foreign senior counsel because all the other circumstances of the case will also have to be considered. Competent representation is one aspect of the equation; skilled representation is another. One factor which may be highly pertinent is the degree of imbalance between opposing counsel in the underlying case in terms of skill, knowledge and available resources”.

Finally, the court also stressed that with the New Regime in place, the previous cases on ad hoc admission were now only of limited relevance (see paragraph [65]).

Other factors to consider

Interestingly, Rajah JA observed that the following factors were also relevant in considering whether to allow an application for ad hoc admission of a QC or foreign senior counsel:

  • Lack of documentary evidence resulting in the need for robust cross-examination and strong advocacy skills, were all factors in favour of granting the application (see paragraph [73]).
  • Whether there are any legal issues in respect of which cross-examination and argument by experienced counsel with a strong grounding in the relevant areas of contract law and commercial law would likely benefit the litigant plaintiff as well as the court (see paragraph [74]).
  • The court noted the busy schedules of leading local commercial counsel and considered that they would therefore typically be less willing to take on a case for a one-off client who is an individual (see paragraph [75]).
  • The court also noted that the case’s complex procedural history and problematic statement of claim would be unappealing to experienced local counsel who would have preferred to have control of the case and its pleadings from their inception (see paragraph [75]).
  • The Plaintiff had already incurred the so-called getting up expense for three different sets of local counsel, all of whom would not or could not represent him at trial. Accordingly, refusing the admission of the QC would mean more delay and expense for another local counsel to be brought on the file and brought up to speed in time for trial (see paragraph [81]).
  • As submitted by the Law Society and the Attorney-General, a litigant is not automatically entitled to foreign senior counsel representation merely because the other side is represented by a local senior counsel (see paragraph [83]).
  • In contrast, the applicant QC had herself drafted the second proposed amendment to the Statement of Claim which had been accepted by the Singapore Court of Appeal. Her familiarity with the facts and case history would therefore result in costs and time savings (see paragraph [86]).

It is also noteworthy that Rajah JA made repeated criticisms of the poor formulation of the plaintiff’s claim at the outset in his Statement of Claim. In particular, references to without prejudice communications were made and his inconsistent and alternative claims were improperly formulated. This resulted in two separate striking out applications, two trips to the Court of Appeal and, ultimately, unnecessary delay of over 2 years.

The High Court also noted the tenacious (albeit misplaced) attempts by the defendant to resist the second proposed amendments to the Statement of Claim. Collectively, these two failings (poor pleadings on the part of the plaintiff and misplaced attempts on the part of the defendant to resist the second proposed amendments to the Statement of Claim) prevented the case from being resolved in good time.

Rajah JA took the view that in the circumstances, the admission of the QC in this case would lead to time and costs savings.

As an aside, this case demonstrates how poor pleadings can compromise a party’s case and result in delay and ultimately, increased legal costs. In this instance, it initially resulted in the plaintiff’s claim being entirely struck out and was only restored after multiple visits to the court and a  resulting two year delay.

Pleadings are similarly important in arbitration too. In a previous post, we discussed the case of PT Prima International Development v Kempinski Hotels SA and other appeals, [2012] SGCA 35. The Singapore Court of Appeal reversed the decisions of the Singapore High Court. The High Court had set aside certain arbitration awards on the basis that the Arbitrator had decided issues that had not been formally pleaded, thereby acting beyond the scope of his authority. The importance of carefully drafted pleadings cannot be overstated. They help parties to avoid prejudicing their claim (or a defence). They also help parties to avoid incurring unnecessary delay and costs.

Ad-Hoc Admission for Singapore Court proceedings relating to International Arbitration Cases

While the decision in Re Andrews Geraldine Mary QC does not directly relate to arbitration, it is still significant and has precedent value because it is the first application under the new ad hoc admission scheme for Queen’s Counsel or foreign counsel holding an appointment of equivalent distinction.

Even though Re Joseph David QC was decided under the Old Regime, it appears that the 2012 amendments to the LPA reinforce the points and arguments made in that case. In particular, the AG did not object to the application, but had in fact tendered written submissions strongly in favour of the admission of the QC on the basid that this would enhance the attractiveness of Singapore as an international arbitration hub.

“[The Attorney-General] does not see any reason, from the point of view of the Public Interest, to object to the Applicant being admitted on an ad hoc basis for the forthcoming hearing. Indeed, admitting the Applicant for this purpose will be consistent with the many amendments that have been made to our laws in order to enhance the attractiveness of Singapore as a venue for international commercial arbitrations. It is an assurance to Parties who arbitrate in Singapore that their lead counsel in the arbitration proceeding can, provided he has sufficient expertise and experience to assist a Singapore Court, appear on their behalf when the same matter or matters arising therefrom is subsequently considered by a Court in Singapore”.

However, Rajah JA who had also determined the application in Re Joseph David, also stressed that,

“…this does not mean that in future every application involving the same Queen’s Counsel who has been the lead counsel in the arbitration proceedings below will be favourably viewed. Not only must the legal issues be of sufficient difficulty and complexity, the Court must also be convinced that the issues argued are inextricably linked to the arbitration proceedings and that there will be a real benefit in having the same counsel assist the Court. A matter centric approach that pays particular attention to the sufficiency of complexity and difficulty of the issues raised will have to be adopted”.

He further observed at paragraph [60],

This decision, however, ought not to be interpreted as signalling that the Court is presently disposed to liberally reinterpret the existing statutory constrictions governing the ad hoc admission of Queen’s Counsel. This would not be permissible as case law emanating from the Court of Appeal has authoritatively determined that ad hoc admissions in ordinary circumstances under the current legislative architecture will be rare. The fact that no Queen’s Counsel has been permitted to appear here since leave was granted in Originating Motion No 38 of 2004, some seven years ago, says it all. Given the settled nature of such caselaw and its provenance, legislative intervention will be necessary should it now be considered that the public interests require a reappraisal of the current tightly restricted position“.

In light of Re David Joseph QC, the 2012 amendments to the LPA and in particular the decision taken by parliament to remove the “sufficient difficulty and complexity requirement“, it is likely that the Singapore courts will adopt a more liberal regime and approach for the admission of foreign senior counsel in respect of Singapore court proceedings relating to and/or in support of Singapore international arbitration.

About Shaun Lee

International Dispute Resolution and Arbitration lawyer. Fellow of the Chartered Institute of Arbitration. Panel of Arbitrators and Panelist for DNDR at the KLRCA.
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