So what if you’re a Queen’s Counsel?

Dec 19, 2016 12.05PM |
 

by Suhaile Md

QUEEN’s Counsels (QC) may be some of the best lawyers in the world, but our Senior Counsels (SC) are no less. So the only time QCs, a title awarded to top lawyers in the United Kingdom and some Commonwealth states, will be admitted here, is when the case requires specialist skills that are beyond the grasp of existing talent in Singapore, said the High Court last month.

This was in response to law firm Rajah and Tann’s application to bring in a QC to argue a US$129 million (S$185 million) arbitration award, reported The Straits Times (ST) last Monday (Dec 12).

But foreign counsels were not always restricted in Singapore. The restrictions only came into effect after the Legal Professions Act (LPA) was amended in 1991. The change was made because there was an increasing trend of QCs being used for cases that could have been done by local lawyers. This impeded the growth of local legal experts.

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Said then Law Minister S. Jayakumar in Parliament: “They [QCs] are obviously to be admitted for cases of complexity or difficulty where the needed skills or experience or the specialist knowledge is not readily available here.”

So the current stand of the High Court is consistent with the original intent of the amended LPA in 1991.

After the bill was passed in 1991, the number of QCs admitted halved to about 20 per year, according to an ST report in 1995. Between 1980 and 1990, an average of 40 QCs were admitted per year. ST reported that a total of 410 applications for QCs were made throughout the 1980s.

In October 1996, the criteria for QCs were further tightened for criminal cases. The aim was to eventually phase out QCs in criminal cases once there were enough Senior Counsels, Singapore’s version of the QC. In 1997, the Senior Counsel (SC) scheme took effect – 12 SCs were appointed. Today, there are 76 SCs.

A spokesperson for the Law Society said that there were a total of 17 applications for QCs in the past four years. It’s not clear how many were approved though. But QCs are usually brought in for commercial disputes with the occasional civil case, like defamation.

Here are some of the more well-known cases, in the past 25 years, for which applications for QC were made.

 

Defamation, QC approved

Then Prime Minister Goh Chok Tong, and 10 other People’s Action Party (PAP) members sued Workers’ Party Chief J. B. Jeyaretnam. They alleged that Mr Jeyaretnam, during an election rally on Jan 1, 1997, used words that painted them as dishonest without any proof.

Mr Jeyaretnam had argued for a QC, who specialised in defamationon the basis of the complexity of the case. Complexities included determining what Mr Jeyaretnam’s words actually meant, whether the audience knew to whom his words were directed at, and if he could even be held responsible for the publication of what he said when he was not the one responsible for publishing it.

The court agreed that the case was complex enough, and so approved the application for a QC to represent Mr Jeyaretnam in court.

Mr Goh won the suit. He was awarded $100,000 in damages, and Mr Jeyaretnam had to pay full costs as well. The other 10 PAP leaders agreed to be bound by the Judge’s findings that Mr Jeyaretnam words during the rally were defamatory. If they sought further damages, they would have to prove Mr Jeyaretnam was referring to them at the rally.

 

Defamation, QC rejected

Fast forward to 2014 when blogger Mr Roy Ngerng was sued for defamation by Prime Minister Lee Hsien Loong. Mr Ngerng’s blog post alleged that the Mr Lee had criminally misappropriated monies from the Central Provident Fund. He eventually took it down and apologised after Mr Lee’s lawyer sent a letter, only to repost the same allegations in videos and other online posts. The court ruled that Mr Ngerng had defamed Mr Lee and so Mr Ngerng was required to pay damages.

Mr Ngerng then applied for a QC to represent him in the High Court hearing that would decide the damages he owed to Mr Lee. Mr Ngerng’s lawyer argued that it was the first time a blogger was being sued, and so it required a specialist to argue the case.

The Court rejected his application. Said Justice Steven Chong: “The fact that this was the first time that a blogger has been sued by a public leader might invite significant media attention, but that did not mean that the decision was of significant legal import.”

There were a few other reasons.

First, the assessment of damages was a straightforward task that local experts are qualified to deal with. It did not require foreign expertise. Second, Singapore has its own set of legal principles in the context of defamation and political culture – something a British QC may not necessarily be sensitive to.

Finally, with regards to the idea that Mr Ngerng needed a foreign lawyer to match the calibre of the lawyer representing Mr Lee, Justice Chong said that the “the touchstone for admission [of a QC] is ‘need'”, and not an “equality of arms” on both sides.

 

Patent, QC approved

In 1999, Singapore Airlines (SIA) and British Airways (BA) got into a tiff over the patent rights to first-class sleeper-style seats. BA first sent a lawyer’s letter to SIA alleging that SIA’s new first-class seats infringed the patent rights of BA’s design. SIA responded by suing BA for making groundless claims of patent infringement. BA countered by suing SIA for patent infringement. Both SIA and BA applied for a QC each.

Said BA’s lawyer: “The development of Singapore’s patent law is still in its infancy, and it would assist the court tremendously to have specialist counsel present the technical evidence, elucidate on what the law and practice is in the United Kingdom, and to guide the court in coming to its decision.”

Chief Justice Yong Pung How approved the applications since there were no objections from the Attorney-General as well as the Law Society. Furthermore, it seems the court agreed the case was sufficiently complex or approval would not have been granted.

Both SIA and BA eventually dropped the lawsuits, choosing instead to compete in the marketplace. There was no payment from either side.

 

Patent, QC rejected

Interestingly, in 2005, the request for a QC for a patent case was first approved by the High Court, only to be overturned by the Court of Appeal.

ThumbDrive manufacturer Trek 2000 alleged that its patent for its thumb drive was infringed upon by four companies. Trek 2000 won the suit in the High Court but three of the four companies appealed the decision and also, applied for a QC. The High Court approved the QC application, over-ruling the objections of the Law Society and Trek 2000’s lawyers. Their objections were basically about the lack of complexity of the case and that there were sufficient lawyers in Singapore to handle it.

Addressing the objections, Justice Judith Prakash had said that the “occasional admission in the right case is not going to damage the development of the local Bar, but will enhance its independence and competence.” She added that patent law was explored to a greater depth overseas and “foreign counsel who have spent many years specialising in patent law, can… be of great assistance to our local courts as they strive to develop patent law in Singapore.”

Trek 2000, backed by the Law Society, successfully appealed the High Courts decision to allow the rival companies to have a QC. The Court of Appeal agreed that the case was not complex enough. Furthermore, it could set off a trend where more QCs are brought in when there is no real need for them.

Trek 2000 won its lawsuit. The four rival companies were ordered by the court to stop selling the thumb drives. The damages and costs awarded to Trek 2000 is unclear.

 

Moving forward

In 2012 however, the LPA was amended to broaden the scope for QCs to be allowed in Singapore courts.

In proposing the amendment, Minister for Law K Shanmugam said that many SCs were from large firms that serviced many big corporate clients. As a result, SCs were unable or unwilling to take up any case against large corporate bodies leading to a lack of access to senior lawyers. The amendment was proposed to address this.

The courts have more discretion now. The high complexity of a case as a pre-requisite to approve QCs have been removed. Instead, the courts will consider if the foreign counsel is the equivalent of an SC and whether the counsel has special qualifications or experience relevant to the case.

The courts may also consider the nature of the factual and legal issues, the necessity for the services of a foreign legal counsel, the availability of local senior counsel and whether it is reasonable to admit foreign senior counsel for the case. You can read more here.

The use of foreign counsels however, will most likely be declined, unless there’s a special reason to allow them in cases involving constitutional law and administrative law, criminal law, and family law. This is because the legal principles in these areas are unique to Singapore and it’s doubtful that a foreign counsel can contribute more than a local counsel can.

 

Featured image State Courts of Singapore prior to renovations by Chensiyuan. (CC BY-SA 4.0).

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