CIVIL

LITIGATION
UPDATE
(2021) CLU 9

— December 2021 Issue 9

Civil Procedure

Evidence

Legal Profession

December 2021
by Jeffrey PINSLER

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INTRODUCTION
The following issues and cases are examined in this
update:
Civil Procedure
• Principles governing the involvement of a non-party in
an appeal:
– Golden Hill Capital Pte Ltd and others v Yihua
Lifestyle Technology Co, Ltd and another [2021]
SGCA 85
Evidence
• Whether witness statements to a law enforcement
authority are admissible in disciplinary and civil
proceedings:
– Law Society of Singapore v Shanmugam
Manohar [2021] SGHC 201
• Admissibility of similar fact evidence in civil cases
under sections 11(b), 14 and 15 of the Evidence Act
(Cap 97, 1997 Rev Ed):
– Jason Grendus v Stephen David Lynch and
others [2021] SGHC 191
Legal Profession
• Lawyer’s duties to the client in respect of information about fees, taxation of bills of
costs and related matters:
– Marisol Llenos Foley v Harry Elias Partnership LLP [2021] SGHC 188
• Disciplinary jurisdiction and substituted service in disciplinary proceedings:
– Law Society of Singapore v CNH [2021] SGHC 212

2
 CIVIL PROCEDURE
A Principles governing the
involvement of a non-party in an
appeal
KEY POINTS
(1) Whether a non-party who
participated in an action may be
involved in an appeal.
(2) Relationship between O 57 rr 3(6)
and 10(1) of the Rules of Court
(2014 Rev Ed) (“RoC 2014”).
(3) Meaning of “directly affected by the
appeal” in O 57 r 3(6) of RoC 2014.
(4) Nature of the court’s discretion to
direct service of appeal documents
on a non-party under O 57 r 10 of RoC
2014.
1 The relationship between O 57 rr 3(6)
and 10(1) of the Rules of Court (2014 Rev
Ed) (“RoC 2014”) has an important impact
on access to justice. A person or entity
who/which has been involved in the
proceedings below may not be a party, in
which case the question arises as to
whether the entity may be involved in the
appeal. Order 57 rr 3(6) and 10(1) of the
RoC 2014 respectively state:
3(6) The notice of appeal must be served
on all parties to the proceedings in the
Court below who are directly affected by
the appeal or their solicitors respectively
at the time of filing the notice of appeal;
and, subject to Rule 10, it shall not be
necessary to serve the notice on parties
not so affected.
10(1)The Court of Appeal may in any case
direct that the record of appeal or
supplemental record of appeal, the core
bundle, any supplemental core bundle
and the Cases be served on any party to
the proceedings in the Court below on
whom it has not been served, or on any
person not party to those proceedings.
[emphasis added]
2 In Golden Hill Capital Pte Ltd and
others v Yihua Lifestyle Technology Co, Ltd
and another [2021] SGCA 85 (“Golden Hill
3
Capital”) the entity concerned was
permitted to participate in the High Court
proceedings as a non-party. An appeal
was launched by one of the parties
without serving the notice of appeal on the
entity. The entity applied, inter alia, for the
notice of appeal to be struck out or for an
order that it be served with the appeal
documents. Rule 3(6) did not assist the
entity because that rule is concerned with
parties who would be directly affected by
the decision of the Court of Appeal.
Although the entity would be affected by
the outcome of the appeal, it was not a
party (even though it participated in the
proceedings below) (at [40]). The Court of
Appeal observed that the phrase “directly
affected by the appeal” in r 3(6) means
that the applicant’s “status and legal rights
would be affected by the substantive
decision in the appeal, without the
intervention of any intermediate agency”
(at [40], citing Rent Officer Service and
another, ex parte Muldoon [1996]
1 WLR 1103). For example, a third party
who provides an indemnity to the
defendant cannot be said to be “directly
affected by the appeal” because his legal
obligation to indemnify the defendant
would only arise “through the intervention
of the right of indemnity” (at [46], citing In
re Salmon; Priest v Uppleby (1889)
42 Ch D 351).
3 However, the court has the discretion
under O 57 r 10(1) to order that a non-party
be served with the appeal documents.
Various factors may be considered for the
purpose of exercising this discretion such as
“the nature of the interest of the person to
be served, what contribution [he was]
likely to be able to make to the
achievement of justice, and what adverse
effect … the parties [would suffer] by the
intervener [ie, the non-party] being put into
the position of a party to the extent that
the notice of appeal was served on him”
(Golden Hill Capital at [50], citing
Hasselblad (GB) Limited v Kenneth
Orbinson (English Court of Appeal, 2 July
1984, unreported); Berg v Glentworth Bulb
Company Ltd (English Court of Appeal, applied these factors and decided that
30 September 1988, unreported)). In the entity ought to be allowed to
Golden Hill Capital, the Court of Appeal participate in the appeal (at [52]–[56]).

4
 EVIDENCE
A Whether witness statements to
a law enforcement authority are
admissible in disciplinary and civil
proceedings
KEY POINTS
(1) Does s 259(1) of the Criminal
Procedure Code have an impact on
disciplinary and civil proceedings?
(2) Legislative purposes of s 259(1) of the
Criminal Procedure Code.
(3) Limits on the use of information
obtained from witnesses.
1 Are police statements recorded
during a criminal investigation admissible in
disciplinary proceedings and/or other non-
criminal proceedings? This question was
faced by the Court of Three Judges (“CTJ”)
in Law Society of Singapore v Shanmugam
Manohar [2021] SGHC 201 (“Shanmugam”).
Section 259 of the Criminal Procedure
Code (Cap 68, 2012 Rev Ed) (“the CPC”)
governs the admissibility of statements
made by persons other than the accused
in criminal proceedings. It states:
259.—(1) Any statement made by a
person other than the accused in the
course of any investigation by any law
enforcement agency is inadmissible in
evidence, except where the statement —
(a) is admitted under section 147 of
the Evidence Act (Cap. 97);
(b) is used for the purpose of
impeaching his credit in the
manner provided in section 157
of the Evidence Act;
(c) is made admissible as evidence
in any criminal proceeding by
virtue of any other provisions in
this Code or the Evidence Act or
any other written law;
(d) is made in the course of an
identification parade; or
5
(e) falls within section 32(1)(a) of
the Evidence Act.
2 The CTJ concluded that s 259(1) is not
limited to criminal proceedings and may
be relied on for the purpose of admitting
statements in disciplinary and other non-
criminal proceedings where one of the
exceptions in paras (a) to (e) applies. First,
the breadth of general rule of
inadmissibility in the first part of s 259(1)
suggests a preference for the construction
that such evidence is inadmissible in all
proceedings unless otherwise provided
(at [62]).
3 Second, if s 259(1) is limited to criminal
proceedings, the exceptions in paras (a)
to (e) to the general rule of inadmissibility
would be rendered redundant. As
Sundaresh Menon CJ observed (at [67]):
In essence, the general rule would be
meaningless because the effect of the
s 259(1)(c) exception is that any witness
statement which is admissible in criminal
proceedings would effectively remain so
anyway. In other words, it denudes the
general exclusion of witness statements of
all its force so as to render the section as
a whole virtually superfluous. [emphasis in
original]
4 Third, the exceptions in s 259(1)(a), (b)
and (e) of the CPC are respectively
premised upon ss 147, 157 and 32(1)(a) of
the Evidence Act (Cap 97, 1997 Rev Ed)
(“the EA”). If s 259(1) of the CPC only
applies to criminal proceedings, the sole
effect of paras (a), (b) and (e) would be to
provide for the admissibility of witness
statements in criminal proceedings
pursuant to ss 147, 157 and 32(1)(a) of the
EA. However, para (c) already caters to
admissibility in these circumstances
through the phrase “any other provisions in
the … Evidence Act” (which presumably
ought to be read to include the sections of
the EA just mentioned). If s 259(1) is only
applicable to criminal proceedings,
paras (a), (b) and (e) would be redundant
in the light of para (c) (at [68–[69]). As the
learned Chief Justice stated (at [70]),
these difficulties do not arise if s 259(1) is
regarded as being applicable to all
proceedings:
If s 259 of the CPC was held to apply to all
proceedings, the rule in subsection (1)
would render witness statements
generally inadmissible in civil and/or
disciplinary proceedings, but in the
context of criminal proceedings only, the
s 259(1)(c) exception would be controlling
and could render such statements
admissible … . Further, in all proceedings,
the other specified exceptions in
subsections (1)(a), (b), (d) and (e) may
also apply to render a witness statement
admissible. [emphasis in original]
5 The CTJ also justified its interpretation
of s 259(1) on the basis of the specific
legislative purposes of s 259. One of these
purposes is the protection of accused
persons by ensuring that only reliable
evidence is relied upon by the court. As
statements admitted under s 259(1) are
hearsay (if admitted to prove the facts
they refer to), they are subject to the
controls in paras (a) to (e). Another
purpose is to promote the free and candid
disclosure of information by witnesses to
law enforcement agencies. The general
rule against the admissibility of such
statements addresses the concern that
witnesses may otherwise be discouraged
from coming forward to assist law
enforcement agencies.
6 Furthermore, a person who is
questioned by a law enforcement
authority pursuant to s 22 of the CPC is
legally bound to “state truly what he knows
of the facts and circumstances of the
case, except that he need not say
anything that might expose him to
a criminal charge, penalty or forfeiture”. If
he does not state what he knows, he would
be criminally liable under s 179 of the Penal
Code (Cap 224, 2008 Rev Ed). Therefore, if
s 259 of the CPC applies only to criminal
proceedings, a witness would not have the
necessary protection against the use of his
police statements in disciplinary and civil
cases. As the learned Chief Justice put it
(at [97]), “[h]aving conferred a coercive
power upon law enforcement agencies
for the specific purpose of investigating
criminal offences under s 22 of the CPC,
6
the legislature has gone on in s 259 to set
out how the information obtained can be
used in subsequent proceedings”. It would
not be principled to allow statements
obtained by legal compulsion to be
casually used in disciplinary and civil cases.
Hence, another purpose of s 259 “is to
place limits on the use of information
obtained from witnesses pursuant to the
exercise of coercive police powers” (see
Shanmugam, at [97] and [98]). The CTJ
also considered that the general legislative
purpose of the CPC is consistent with its
broad interpretation of s 259(1) (see
[100]–[110]).
B Admissibility of similar fact
evidence in civil cases under ss 11(b),
14 and 15 of the Evidence Act
KEY POINTS
(1) Admissibility of similar fact evidence
in civil cases.
(2) Applicability of ss 14 and 15 of the
Evidence Act to acts which occurred
after the circumstances which gave
rise to the cause of action.
(3) Re-appraisal of s 11(b) of the
Evidence Act as an admissibility
provision for similar fact evidence.
Introduction
1 The admissibility of similar fact
evidence (“SFE”) in civil cases is a topic
which has generated different judicial
views over the decades. Sections 14 and
15 of the Evidence Act (Cap 97, 1997 Rev
Ed) (“the EA”) admit SFE to prove state of
mind. Section 11(b) of the EA has been
regarded (except for the latest case to be
discussed here: Jason Grendus v Stephen
David Lynch and others [2021] SGHC 191
(“Grendus”)) as the admissibility provision
for SFE regarding proof of the commission
of the wrongful act (the actus reus in
criminal cases). Sections 14, 15 and 11(b)
do not distinguish between the admissibility
of SFE in civil and criminal cases. While the
distinction was not contemplated at the
time that the EA was introduced in 1893,
the common law has since differentiated
between the principles which apply in civil
and criminal cases.
2 The rationale for the common law
approach is that, in criminal cases, the
concern is with the prejudice that may be
occasioned by the admission of such
evidence. Hence, the condition for
admissibility is that the probative value of
SFE must override its prejudicial effect. In
civil cases, the apprehension is not with
prejudicial effect (there is no issue of a
wrongful conviction and unjustified
punishment) but with unfairness that might
be occasioned to the party against whom
the evidence is admitted. The common
law test for civil cases is whether the
evidence is logically probative (clearly
relevant) measured against fairness to the
party facing such evidence. In Singapore,
the common law test for admissibility of SFE
in civil cases has been accepted in some
cases but not in others (including
Grendus).
Scope of s 11(b) of the Evidence Act
3 In Grendus, the plaintiff alleged that
he had been induced to purchase
investments through fraudulent
negligent representations (an allegation of
conspiracy to defraud was also made)
and suffered financial loss. He called a
witness (“X”) to testify that he had been
defrauded in similar circumstances. The
court cited the proposition in Hin Hup Bus
Service (a firm) v Tay Chwee Hiang and
another [2006] 4 SLR(R) 723 (“Hin Hup”)
at [40] that “[t]he principles relating to
similar fact evidence in criminal cases are
equally applicable to civil cases”. As will be
shown, this proposition does not represent
judicial observations made in other
Singapore cases (see para B7 below).
4 In Grendus, Andre Maniam JC
considered ss 15, 14 and 11(b) of the EA
sequentially. Section 15, “which requires a
series of similar occurrences”, did not
operate because X was giving evidence
of a single incident. Furthermore, as X’s
evidence of being cheated occurred after
the occasion on which the plaintiff was
allegedly cheated, there was no evidence
of a pre-existing plan or design to cheat
people at the time that the plaintiff was
allegedly cheated (at [236]). The learned
judge also regarded subsequent conduct
“as generally being of lower probative
value than prior conduct” [emphasis in
original] for the purpose of s 15 (at [237]).
And, in any event, X’s evidence could not
be admitted under ss 14 or 15 (which
concern proof of state of mind) to prove
an act of cheating (at [237]). Section 14
did not apply because X’s evidence
concerned the defendants’ “general
disposition or a tendency to do the act in
question” and was not specific to the
matter before the court (at [231]).
5 Regarding s 11(b) of the EA, Maniam
JC concluded that this provision is
concerned with proof of facts that are
directly connected to the facts in issue in
the case. As similar fact evidence pertains
to unconnected facts, it is not admissible
under s 11(b). Because X’s evidence of
what occurred to him (alleged cheating
on a different occasion) was separate and
independent of the facts in issue, s 11(b)
could not be relied upon. The learned
or judge’s observations on s 11(b) show that it
is not meant to admit similar fact evidence
(a view that the author respectfully agrees
with: see “Revisiting Similar Fact Evidence
in Criminal and Civil Cases and Proposals
for Reform (2021) 33 SAcLJ 531 (“article”)).
In The “Bunga Melati 5” [2015] SGHC 190,
at [100], Prakash J (as she then was)
expressed “uncertainty over whether
s 11(b) of the [EA] allows for the admission
of similar fact evidence to prove actus
reus”. However, there are now conflicting
authorities on the scope of s 11(b). For
example, SFE was admitted under s 11(b)
to prove actus reus in Lee Kwang Peng v
Public Prosecutor and another appeal
[1997] 2 SLR(R) 569 and Public Prosecutor v
Gurbajant Singh s/o Najar Singh [1998]
SGHC 285. Clarification by the High Court’s
Appellate Division or the Court of Appeal
would be very welcome on this issue when
the next opportunity arises.
7
Standard(s) of admissibility of similar
fact evidence in civil and criminal
cases
6 Grendus also raises the question of
whether the same standard for
admissibility should be applied to civil and
criminal cases. The rationale for having
separate standards is considered in
paras A1 and A2 above. In Grendus, the
court agreed with the holding in Hin Hup
Bus Service (a firm) v Tay Chwee Hiang
and another [2006] 4 SLR(R) 723 that the
same standard applies to both civil and
criminal cases; ie, the evidence is
admissible if its probative value outweighs
its prejudicial effect.
7 The view held in Hin Hup and
Grendus may be compared with the
different approach of the High Court in
Rockline Ltd & Ors v Anil Thadani and Ors
8
[2009] SGHC 209 (“Rockline”) and Liu Tsu
Kun and another v Tan Eu Jin and others
[2017] SGHC 241 (“Liu Tsu Kun”). In both
Rockline (at [2]) and Liu Tsu Kun (at [70]),
the respective judges endorsed
Lord Denning’s pronouncement in Mood
Music Publishing v De Wolfe [1976] Ch 119
at 127 that “[in] civil cases the courts will
admit evidence of similar facts if it is
logically probative, that is, if it is logically
relevant in determining the matter which is
in issue: provided that it is not oppressive or
unfair to the other side”. This is the common
law position as mentioned in para B2
above. These authorities are analysed in
the article referred to in para B5 above.
Here again, clarification by the High
Court’s Appellate Division or the Court of
Appeal would be very welcome on this
issue when the next opportunity arises.
 LEGAL PROFESSION
A Lawyer’s duties to the client in
respect of information about fees,
taxation of bills of costs and related
matters
KEY POINTS
(1) Informing the client about his or her
right to tax costs.
(2) Terms of the letter of engagement
between lawyer and client.
(3) Special circumstances justifying an
order for taxation.
(4) Lawyers ought to consent to taxation
of their bills of costs when it is
appropriate to do so.
(5) Rule 17(3)(c) of the Legal Profession
(Professional Conduct) Rules 2015
and estimates of costs.
Introduction
1 Understandably, some (if not many)
lawyers and law practices are anxious
about the possibility of “taxation” of a
solicitor and client bill of costs when it is
disputed by the client. The cases show that
lawyers have not always been as
forthcoming with information as they
should be when a client raises a question
about an item or an amount in the bill. This
is particularly the case when it comes to
the lawyer’s duty to inform the client of his
right to have the bill taxed. Rule 17(5) of
the Legal Profession (Professional Conduct)
Rules 2015 (“LPPCR”) states:
If a client of a legal practitioner disputes or
raises a query about a bill of the legal
practitioner in a matter (whether or not
contentious), the legal practitioner must
inform the client in writing of the client’s
right to apply to the court to have the bill
taxed or to review any fee agreement,
unless the legal practitioner believes that
the client knows, or reasonably ought to
know, of that right.
9
Content of the letter of engagement
2 This right of the client to apply for
taxation of the bill must be clearly
communicated to the client. See Law
Society of Singapore v Andre Ravindran
Saravanapavan Arul [2011] 4 SLR 1184
at [33]; the Law Society’s Practice
Directions and Guidance Notes (2018/
2019), Guidance Note 7.1.1. A brief or
passing reference to the taxation process
in the letter of engagement without
explanation is not sufficient, as Philip
Jeyaretnam JC observed in Marisol Llenos
Foley v Harry Elias Partnership LLP [2021]
SGHC 188 (“Marisol”) at [43]. Indeed, most
laymen (if they have not been involved in
previous litigation) would not understand
the meaning of “taxation” in the context of
solicitor and client costs. As the learned
judge stated in Marisol, this word is
“legalese” (at [35]) and “an arcane word,
that few lay clients understand” (at [24]).
In Marisol, the client stated in her affidavit
that she thought the word concerned
“taxation by the tax authorities”
(the relevant parts of the affidavit are set
out at [39]).
3 Furthermore, most clients reasonably
assume that their lawyers would be fair
and committed to their interests. A brief
reference to “tax” or “taxation” which is
obscured by multiple terms in a long letter
of engagement (in Marisol, it was
clause 40), and a possible dispute with the
law practice over fees, would not normally
be at the forefront of the client’s mind in
the absence of full information and a clear
explanation. And even if the clause in the
letter of engagement does provide the
necessary information and explanation of
the client’s right of taxation, the lawyer
must abide by the terms of r 17(5) of the
LP(PC)R (set out in para A1 above) when
the issue is raised by the client, and it is
apparent that the client is not aware of the
right. The phrase “unless the legal
practitioner believes” in r 17(5) must be
read objectively so that the test is whether
a reasonable legal practitioner would
have believed that the client “knows, or
reasonably ought to know” of the right in
the same circumstances.
4 In Marisol, the General Division of the
High Court meticulously considered the
letter of engagement and the law
practice’s approach to the client and
found that it had not complied with the
requirements of r 17(5). Jeyaretnam JC
commented on the purposes of an
engagement letter as follows (at [6]):
An engagement letter provides the
lawyer with the opportunity to fulfil their
duties concerning information about
costs. Naturally, when a lawyer takes this
opportunity, this serves the subsidiary
purpose of protecting them should the
client subsequently complain about the
lawyer’s fees. However, the tail of
protecting the lawyer from unfair
complaints must not wag the dog of
treating the client fairly. This reversal of
priorities, unfortunately, seems to have
animated the drafting of [the Law
Practice’s] engagement letter. [emphasis
added]
5 In Marisol, the engagement letter
included the following clause:
At your request, we may provide an
estimate of our fees as an indication of our
likely charges for handling your matter,
based on the information known to us at
the time the estimate is given. An estimate
may be revised and is not binding upon
us. Any indication of a likely fee is an
estimate only and may change as matters
progress and the extent of the work
becomes apparent or you change the
scope of your instructions.
6 In the learned judge’s view, this
wording was “awkward” and could be
interpreted as an attempt to restrict the
obligation in r 17(3)(d) of the LP(PC)R,
which requires the lawyer to “ensure that
the actual amounts of the fees … do not
vary substantially from the estimates …
unless the client has been informed in
writing of any changed circumstances” (at
[30]). Jeyaretnam JC observed (at [30]):
“… it is not open to a legal practitioner to
limit the operation of the LP(PC)R through
the engagement letter; rather the
engagement letter should be one of the
means by which the legal practitioner
10
complies with [his or her] professional
obligations”.
7 The schedule of estimated fees that is
normally appended to the engagement
letter is only meaningful if it is sufficiently
specific to the client’s matter. In Marisol,
the schedule appeared to be general in
nature and lacked a notation to relate
what would be relevant to the client’s
engagement (at [31]).
8 Concerning the consequences of
non-payment of bills, the engagement
letter warned the client: “[i]f you do not
pay the bill(s) rendered in accordance
with the agreement herein, we are at
liberty to stop work on your matter(s) and
to discharge ourselves from further acting
for you. Rights may be lost if this happens,
and we accept no liability for such loss.” In
the learned judge’s view, this was
improper (at [33]):
While it is right to inform clients that non-
payment may result in discharge, it is not
right to warn of rights being lost as a result
and for which the law firm will not be
liable. This is language that seems
designed to deter clients from questioning
bills before paying them. It also overlooks
the obligation under [the LP(PC)R] r 26(6)
to take reasonable care to avoid
foreseeable harm to the client when
withdrawing from representing them,
including where bills have not been paid.
In fact, it could be said to be misleading of
what the client’s rights are.
9 The impropriety was exacerbated by
the following text in the engagement letter
concerning taxation: “[n]otwithstanding
that you may be able to apply to tax our
bill pursuant to the provisions of the Legal
Profession Act, you agree that any disputes
on our bills shall be resolved by referring
such disputes to the Law Society of
Singapore for mediation/arbitration under
Cost Dispute Resolve” (at [34]).
10 The learned judge gave three reasons
why this approach is not acceptable. First,
because the word “tax” is legal
nomenclature (see para A2 above) it
needs to be explained: “One would
expect the use of the word to be followed
immediately with an explanation in plain
English, along the lines that taxation is a
procedure available to the client by which
the court would review the bill to
determine whether it is fair and
reasonable” (at [35]).
11 Second, although mediation under
the Law Society’s Cost Dispute Resolve
scheme should rightly be mentioned and
offered to the client, this should be
presented only as an option: “A law firm
should not ordinarily seek at the time of
engagement to replace the client’s right
to taxation of bills with an alternative
process for dispute resolution. To the extent
an engagement letter seeks to replace the
right to taxation, this would be subject to
the court’s scrutiny for fairness and
reasonableness, given the fundamental
principles that lawyers must act in the best
interests of their clients and charge fairly for
work done” (at [36]).
12 Third, the client should be “clearly
informed that it is possible to pay a bill and
reserve the right to have it taxed” (at [37]).
The judge expressed the rationale of these
points as follows (at [38]):
A client is not expected to engage
another law firm to review the
engagement letter of the chosen law firm.
The client, especially a lay client seeing a
lawyer for the first time, is entitled to rely on
the lawyer’s duty to act in their best
interests. It is a relationship of trust and
confidence, and that extends to how fees
are estimated and how the client’s rights
are explained in the process of entry into
the engagement. An engagement letter
that fulfils the spirit of the [LP(PC)R] should
include a meaningful estimate of fees, the
basis on which fees will be charged and a
clear explanation of a client’s right to tax
bills.
Non-compliance with r 17(5) of the
Legal Profession (Professional Conduct)
Rules 2015
13 The terms of r 7(5) are set out in
para A1 above. In Marisol, the client
claimed that she did not know about her
right to taxation (she did not understand
the word “tax” in the letter of
engagement: see para A2 above). The
court accepted her evidence. The court
11
also found that when the client raised
queries about the bills, the law practice did
not inform her of her right of taxation (at
[42]). As the law practice “had only made
a passing reference to taxation in their
engagement letter and had never
explained this right to her, there was no
reason for the [lawyers concerned] to
believe that [the client] knew or ought to
have known of her right to tax the bills” (at
[43]). The court held that as the client
neither knew nor ought to have known of
her right to tax the bills (despite her
enquiries), the law practice had failed to
comply with r 17(5).
Order of taxation made because
‘special circumstances’ existed
14 Section 120(1) of the Legal Profession
Act (Cap 161, 2009 Rev Ed) (“the LPA”)
entitles a client to apply for taxation “within
12 months from the delivery of the bill”.
After the expiry of this period, or if the bill
has been paid, the court may only make
an order for taxation if it is satisfied that
“special circumstances” exist (see s 122 of
the LPA). In Marisol, as the applicant
applied for taxation of four invoices which
she had already paid, s 122 applied. As
was observed in Kosui Singapore Pte Ltd v
Thangavelu [2015] 5 SLR 722 (“Kosui”) at
[63], the client would succeed in obtaining
an order for taxation if he or she can show
how the “special circumstances” explain
and excuse his or her conduct in allowing
the disqualifying event to set in (in Marisol,
this was the client’s payment of the bills
without reserving her right to tax them)
(also see Marisol at [44]). Lawyers should
be aware that the expression “special
circumstances” is to be construed broadly
in the interest of the client. This is because
s 122 “is not intended to allow or
encourage solicitors to take advantage of
ignorant or unsuspecting clients” (Kosui
at [67]; Marisol at [25]).
15 In Marisol, Jeyaretnam JC held that as
the client did not know of her right (this
information was not properly conveyed by
engagement letter and by the law
practice), this was a “special
circumstance” that justified the court
granting an order for taxation
(at [44]–[45]). Other special circumstances
existed as well, including the failure of the
law practice to comply with r 17(5) of the
LP(PC)R, the anxiety suffered by the client
as a result of not being provided with the
relevant information, and the lack of
particulars in the bills concerning the work
done to date and how each bill related to
the anticipated overall bill, whether by
reference to an original estimate or
a revised estimate (at [46]). Regarding this
last point, it is important that the client who
receives a bill should be able to
understand clearly whether the original
estimate remains valid. Additional
information on this issue may have to be
provided in the cover letter (see [47]).
Lawyers ought to consent to taxation
16 Section 120(3) of the LPA states:
“In any case where a solicitor and his client
consent to taxation of a solicitor’s bill, the
Registrar may proceed to tax the bill
notwithstanding that there is no order
therefor.” This provision contemplates the
lawyer agreeing to the taxation of his bill of
costs even if it has been paid. Lawyers
should be gracious to their clients and
consent to taxation when it is reasonable
to do so. As Jeyaretnam JC observed in
Marisol at [48]: “Lawyers facing questions
from clients over their bills should not only
inform them of the right to taxation, but as
a matter of fairness and prudence also
offer to have them taxed.” The learned
judge cited (at [48]) Chan Sek Keong CJ’s
exhortation in Law Society of Singapore v
Andre Ravindran Saravanapavan Arul
[2011] 4 SLR 1184 at [33]:
All solicitors should act on the basis that
they can have their bills of costs taxed
under the law, and they must remember
that many clients do not know this.
Accordingly, they have an obligation to
inform their clients of this option, and they
12
fail or omit to do so at their peril. A solicitor
who offers to have his bill of costs taxed is,
in our view, unlikely to have the frame of
mind or intention to overcharge his client.
Rule 17(3)(c) and estimated fees and
costs
17 Rule 17(3)(c) of the LP(PC)R states that
the lawyer must: “to the extent reasonably
practicable and if requested by the client,
provide the client with estimates of the
fees and other payments [referred to in (a)
and (b) of r 17(3)]”.
18 In Marisol, Jeyaretnam JC said of this
paragraph (at [21]):
The wording of PCR r 17(3)(c) is a little
infelicitous, as it could be read to require a
request from the client for an estimate
before it can be said that the lawyer must
give one. Such a restrictive reading does
not fit with the principles that a lawyer
must facilitate access to justice and must
charge fairly. At a practical level, there
can be few if any consumers of services
who would not want to know in advance
their estimated expense, and the
absence of such information undermines
consumer choice of service provider. As I
do not have to decide whether this rule
should be interpreted more broadly for
the purpose of this application, I do not
reach a final view. What I would observe is
that if a lawyer provides an estimate this
must be done in a way that is meaningful,
and if an estimate is provided it must be
matched unless circumstances change
and the client is duly notified of the revised
estimate under PCR r 17(3)(d).
[Rule 17(3)(d) is referred to in para A6
above.]
19 It is hoped that r 17(3)(c) will be
amended to reflect the points made by
the learned judge. Meanwhile, lawyers
must carefully assess their obligations
under that paragraph in the light of what is
stated above.
B Disciplinary jurisdiction and
substituted service in disciplinary
proceedings
KEY POINTS
(1) Nature of the court’s disciplinary
jurisdiction.
(2) Disciplinary proceedings and in
personam actions distinguished.
(3) Applicability of s 16(2) of the the
Supreme Court of Judicature Act as
the source of the court’s disciplinary
jurisdiction.
(4) Substituted service in disciplinary
proceedings.
1 This year, two important judgments of
the Court of Three Judges (“CTJ”) and the
Court of Appeal have clarified the nature
of the court’s disciplinary jurisdiction and
the distinction between that jurisdiction
and the court’s jurisdiction over civil claims
in personam. The cases are Law Society of
Singapore v CNH [2021] SGHC 212 (“CNH”)
and Iskandar bin Rahmat v Law Society of
Singapore [2021] SGCA 1 (“Iskandar”).
Iskandar was considered in a previous issue
of the Civil Litigation Update ((2021) CLU 3
(June 2021)), where it was shown that a
judge of the General Division of the High
Court who exercises disciplinary jurisdiction
under ss 95, 96 and 97 of the LPA acts
within the scope of the court’s civil
jurisdiction. As such, his decision is subject
to an appeal to the Court of Appeal
pursuant to s 29A(1)(a) of the Supreme
Court of Judicature Act (Cap 322,
2007 Rev Ed) (“the SCJA”) (now s 53(2)(a)
of the SCJA).
2 The significance of these two cases is
that the court’s disciplinary jurisdiction
under the LPA is part of its overall civil
jurisdiction. This civil jurisdiction is
exercisable under s 16(2) of the SCJA,
which addresses jurisdiction conferred by
any legislation (including the jurisdiction of
the CTJ pursuant to the LPA). While the
court’s in personam jurisdiction concerns
the determination of the rights and
obligations of parties between themselves,
the court’s disciplinary jurisdiction pertains
13
to the court’s supervisory control over
lawyers (by virtue of their status as officers
of the court) by scrutinising the propriety of
a solicitor’s conduct and imposing the
necessary sanctions when justified. A
further significant difference is that while
jurisdiction in personam is normally
grounded on service of the originating
process on the defendant pursuant to
s 16(1) of the SCJA, jurisdiction in
disciplinary cases stems from the LPA read
with s 16(2) of the SCJA. The purpose of
service in disciplinary cases is not to
establish jurisdiction but to notify the lawyer
of the disciplinary action and the
charge(s) against him. See CNH at [18].
3 In CNH, the respondent (who was
convicted of sexual offences committed
against a female colleague when he was
a legal associate), could not be located
for the purpose serving him with the papers
concerning the show cause proceedings
before the CTJ (the Law Society had
unsuccessfully attempted to effect
personal service on him on several
occasions). Prior to the show cause
proceedings, the disciplinary tribunal,
having been satisfied that the papers had
been duly served on the respondent
pursuant to r 6 of the Legal Profession
(Disciplinary Tribunal) Rules (2010 Rev Ed),
and had been brought to his knowledge
and attention, heard the case in his
absence. It found that the respondent’s
conduct established cause of sufficient
gravity for disciplinary action under
s 83(2)(h) of the LPA. The Law Society then
applied to the CTJ to effect substituted
service on the respondent.
4 In an action in personam, if the
defendant is out of Singapore at the time
that the originating process is issued, the
plaintiff is normally required to apply for
leave to serve the writ out of the jurisdiction
before applying for substituted service
(unless the court is satisfied that the
defendant is evading service) (see
Consistel Pte Ltd and another v Farooq
Nasir and another [2009] 3 SLR(R) 665
at [30], [32] and [35]). This holding does not
apply to disciplinary proceedings against
a lawyer who is not in Singapore. The
relevant provision concerning service in
respect of intended proceedings before
the CTJ is s 98(2) of the LPA: “If the
advocate and solicitor or regulated
foreign lawyer named in the application …
is believed to be outside Singapore, an
application may be made by summons in
the same proceedings for directions as to
service” [emphasis added].
5 Although there are no specific rules
which govern the modes of service that
might be directed by the court when the
lawyer concerned is out of the jurisdiction,
s 98(10) of the LPA states: “… in the
absence of any rule dealing with any point
of procedure or practice, the Rules of
Court may be followed as nearly as the
circumstances permit”. In CNH (at [24]),
this provision was characterised by the CTJ
as “a gap-filling provision that allows the
court to adapt from the Rules as needed
but does not mandate the strict
application of the Rules”. The effect of
s 98(2) read with s 98(10) is that the CTJ has
complete discretion to decide the mode
14
of service. As Sundaresh Menon CJ put it
(CNH at [26]):
Where a solicitor is believed to be outside
of Singapore, directions may be sought as
to how service may be effected, pursuant
to s 98(2) of the LPA, and in such
instances, the court need not be bound
by the strictures of the Rules. While the
Rules may be followed ‘as nearly as the
circumstances permit’, s 98(10) of the LPA
ultimately allows the court to retain the
necessary discretion to determine the
appropriate directions to be given in the
light of all the circumstances of each
particular case, and to balance the
interests of justice.
6 On the facts of CNH, an order for
substituted service was justified. The order
was for service of the documents to be
effected “by posting a copy of the same
together with a copy of the order for
substituted service on the front door of the
Premises and also by sending the same to
the respondent’s last known personal
email address” (at [29]).
Published by Academy Publishing
LawNet | Singapore Law Watch
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