Legal News & Analysis – Asia Pacific – Singapore – Dispute Resolution

 

Introduction

Singapore has geared itself towards becoming an international hub for legal services, and in line with this, the legal sector has gone through some recent moves towards liberalisation. One of the areas that has traditionally been cordoned off for Singapore practitioners is litigation before the local Courts.

In Re Beloff Michael Jacob QC [2014] SGCA 25, the Court of Appeal has set out an analytical framework applicable to all cases in which ad hoc admission of foreign counsel is sought under section 15 of the Legal Profession Act (Cap. 161) (“LPA”) and considered the exercise of the Court’s discretion to allow foreign counsel to appear before the Court having regard to the factors stated in the Legal Profession (Ad Hoc Admissions) Notification 2012 (“Notification Factors”) and the circumstances of the case.
This case is also the first reported decision of the Court of Appeal which examined the ad hoc admission regime for foreign senior counsel after legislative amendments were made to section 15 of the LPA in 2012. The Court of Appeal found that the underlying rationale of the regime is that admission will only be allowed on the basis of need, and it will not be a free for all.

In this case, nTan Corporate Advisory Pte Ltd (“nTan”) sought to set aside an earlierCourt of Appeal decision concerning value-added fees for financial advisory servicesprovided by nTan. nTan also sought to have Mr. Beloff Michael Jacob QC, a UK Queen’sCounsel (“Beloff QC”), admitted on an ad hoc basis to represent it before the SingaporeCourts in the setting aside application. While the High Court had allowed the admissionof Beloff QC, the Court of Appeal reversed the High Court’s decision.

 

Brief Facts

nTan had been appointed by TT International Ltd (the “Company”) to act as independent financial advisor to the Company and its subsidiaries. nTan’s terms of engagement stipulated that the fees payable to nTan for its services comprised the time costs and an additional value-added fee (“VAF”) which would be payable in the event, inter alia, a scheme of arrangement was entered into by the Company’s creditors and approved by the Court.

A scheme of arrangement was proposed and eventually sanctioned by the Court of Appeal subject to alterations ordered by the Court of Appeal. One of these alternations to the scheme included changing the composition of the Monitoring Committee charged with overseeing the implementation of the scheme of arrangement to include, inter alia, DBS Bank Ltd, Habib Bank Limited and Oversea-Chinese Banking Corporation Limited (collectively, the “MC Members”).

During the course of the implementation of the scheme, the MC Members wrote to the Court of Appeal to seek clarification on whether nTan’s VAF should be subject to taxation in accordance with paragraph 8(j) of the Court of Appeal’s Brief Grounds of Decision dated 13 October 2010. This triggered a series of correspondence between Rajah & Tann LLP (for the MC Members), Allen & Gledhill LLP (for nTan), WongPartnership LLP (for the Company) and the Court of Appeal, which eventually culminated in the judgment of the Court of Appeal reported as The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd and another appeal [2012] 4 SLR 1182 (the “CA Judgment”).

Subsequent to the issuance of the CA Judgment, nTan applied to set aside the CA Judgment on grounds of want of jurisdiction and breach of natural justice. nTan also applied to have Beloff QC admitted on an ad hoc basis to represent it before the Singapore Courts. The application was opposed by the MC Members, the Company, the Attorney- General and the Law Society of Singapore.

Holding Of The High Court

The High Court allowed the admission of Beloff QC, finding that it was reasonable in all the circumstances to admit Beloff QC as:

(i) It would fulfill the legislative objective of allowing litigants to engage such counsel as would allow optimum advancement of their case;

 

(ii) There was wider public interest in developing local law on the Court of Appeal’s jurisdiction and powers;

(iii) There was potentially great value in the assistance of a QC who appeared as counsel and sat as a judge in multiple common law jurisdictions; and

(iv) It might be better to have foreign counsel handle delicate issues such as whether the Court of Appeal had handled the matter improperly.

Four sets of appeals were filed by the MC Members, the Company, the Attorney-General and the Law Society of Singapore respectively against the decision of the High Court.

Holding Of The Court Of Appeal

The Court of Appeal reversed the High Court’s decision, disallowing the application to have Beloff QC represent nTan.

As mentioned above, the Court of Appeal found that the underlying rationale of the current ad hoc admission regime is that foreign counsel will only be admitted on the basis of “need”. This connotes a fairly stringent standard which is not satisfied merely by showing that admission is desirable or convenient or a matter of choice, but suggests that the litigant seeking admission of foreign counsel would suffer prejudice of an appropriately significant degree if admission was not allowed.

Analytical Framework For Admission

The Court of Appeal also considered and set out a useful analytical framework applicable to all cases in which ad hoc admission of foreign counsel is sought pursuant to section 15 of the LPA. To qualify for admission before the Singapore Court, the LPA provides that a QC or foreign counsel of equivalent distinction must satisfy the following mandatory requirements: (a) the formal requirements under Sections 15(1)(a) and (b) of the LPA, namely, that the applicant holds Her Majesty’s Patent as QC or any appointment of equivalent distinction and jurisdiction, and 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 (b) the requirement that foreign counsel has “special qualifications or experience” for the purpose of the case. Further, if the matter involves constitutional and administrative law, family law, or criminal law, it must be shown that there is “special reason” warranting the admission of foreign counsel.

In deciding whether ad hoc admission should be allowed, the Court should first consider and satisfy itself of these formal and mandatory requirements in section 15 (1) of the LPA; and if these requirements are met, followed by applying the considerations set out in the Notification Factors and exercising its discretion having regard to all circumstances of the case. The relevant Notification Factors to be considered by the Court in the exercise of its discretion are:

(i) The nature of the factual and legal issues involved, and whether they are complex, difficult or novel;

(ii) The necessity of the foreign counsel’s services;

(iii) The availability of any Singaporean Senior Counsel or other lawyers with appropriate experience; and

(iv) Whether it is reasonable to admit foreign counsel in light of all the circumstances of the case.

Application

The Court of Appeal held that Beloff QC met the formal mandatory requirements specified in sections 15(1)(a), (b) and (c) of the Legal Profession Act as he fulfilled the threshold requirement of “special qualifications or experience”, since he had much experience in public and administrative law. This was relevant to the issue of natural justice, which was one of the principal grounds of nTan’s setting aside application. The Court of Appeal also took the view that this was not a case which required “special reason” for admission of foreign counsel as the issues in the setting aside applications did not involve administrative or constitutional law.

However, the Court of Appeal found that the four Notification Factors were not satisfied in this case and held that:

(i) The case involved questions of insolvency, jurisdiction of the Court, and natural justice, none of which were particularly complex. Singapore counsel would be well capable, if not better suited, to deal with such issues.

(ii) nTan was ably represented by one of Singapore’s largest law firms.

(iii) Beloff QC’s ability to assist was overstated, as some of the issues were not within his area of expertise. Further, even if not admitted, he could still contribute to nTan’s written submissions.

(iv) It was also found that the High Court had made errors in the exercise of its discretion to admit Beloff QC, which included giving undue weight to the unfounded concern that local counsel would hesitate in making submissions to the effect that the Court of Appeal had acted improperly.

 

The Court of Appeal allowed the appeals and set aside the decision of the High Court to admit Beloff QC to represent nTan in its applications to set aside the CA Judgment.

Conclusion

The ad hoc admission framework for foreign counsel as it stands is less restrictive than before amendments to the LPA were made in 2012. However, it should be noted that the current system still focuses on the concept on necessity, and whether a foreign counsel is truly “needed” in the circumstances of the case.

The right to represent a litigant before the Courts of any country is almost always exclusively reserved for local legal practitioners of that jurisdiction. Singapore enjoys the advantage of a developed and robust legal system, and as such, the situations in which foreign counsel are allowed before the Singapore Courts are limited. Nonetheless, in the interest of ensuring fairness and justice for all litigants and the continued growth of local jurisprudence, the Courts will still admit foreign counsel in appropriate circumstances for deserving cases.

 

 

For further information, please contact:

 

Eng Beng SC, Partner, Rajah & Tann

[email protected]

Poh Ling Low, Partner, Rajah & Tann

[email protected]

Raelene Su-Lin Pereira, Partner, Rajah & Tann
[email protected]

Jonathan Lee, Rajah & Tann
[email protected]

 

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