CBB v Law Society of Singapore [2021] SGCA 6

Case Details

• Citation: [2021] SGCA 6
• Case Number: Civil Appeal No 43 of 2020
• Court: Court of Appeal of the Republic of Singapore
• Date of Decision: 29 January 2021
• Coram: Sundaresh Menon CJ; Andrew Phang Boon Leong JCA; Steven Chong JCA
• Parties: CBB (Appellant/Applicant) v Law Society of Singapore (Respondent)
• Legal Areas: Administrative Law — Remedies; Civil Procedure — Costs
• Procedural History: Appeal from High Court decisions in [2019] SGHC 293 and [2020] SGHC 56
• Judgment Length: 13 pages; 8,233 words
• Counsel for Appellant: Jamal Siddique Peer, Leong Woon Ho and Chia Wan Lu (Shook Lin & Bok LLP)
• Counsel for Respondent: Tan Wee Kheng Kenneth Michael SC (Kenneth Tan Partnership) (instructed counsel); Lim Tat and Kang Hui Lin Jasmin (Aequitas Law LLP)
• Key Statutory Provisions Referenced: Legal Profession Act (Cap 161, 2009 Rev Ed) — ss 85(4A), 85(4C)(a)
• Other Statutes Referenced (as per metadata): Administrative Law Act; Agricultural Marketing Act (including 1958); Commissioner of State Revenue under the Stamps Act; Companies Act (including 1985); Compensation Act
• Related/Contextual Decisions Mentioned: Re BKR [2015] 4 SLR 81; CBB v Law Society of Singapore [2019] SGHC 293; CBB v Law Society of Singapore [2020] SGHC 56

Summary

This appeal concerned the scope of remedial powers in Singapore judicial review, specifically whether the court should issue a mandatory order compelling a regulator to take a particular procedural step. The appellant, CBB, had complained to the Law Society of Singapore about the conduct of a lawyer (“Mr L”) in assisting the appellant’s mother to establish a trust and to carry out work relevant to mental capacity proceedings that culminated in Re BKR [2015] 4 SLR 81. Because parts of the complaint related to events more than six years old, the Law Society Council was required to seek leave of court before acting on the complaint under the Legal Profession Act (“LPA”). The Council declined to seek such leave, and the High Court quashed that decision as irrational.

On appeal, the Court of Appeal affirmed the general principle that courts do not normally mandate how a discretionary decision-maker should exercise its discretion; instead, the usual remedy is to quash and require reconsideration. However, the Court of Appeal accepted that there can be exceptions where the statutory scheme leaves only one legally permissible outcome. Applying that framework, the Court of Appeal allowed the appellant’s appeal in part by granting a mandatory order requiring the Council to apply for leave under s 85(4C)(a) of the LPA. The Court of Appeal, however, dismissed the appellant’s appeal against the High Court’s costs decision, holding that the costs outcome was not to be disturbed on the grounds advanced.

What Were the Facts of This Case?

The factual background is rooted in the appellant’s complaint about a lawyer’s conduct in relation to trust and asset-transfer arrangements involving the appellant’s mother. The Court of Appeal noted that the precise details of Mr L’s involvement could be gleaned from Re BKR [2015] 4 SLR 81 and from earlier proceedings, including AUR and another v AUT and others [2012] SGDC 489. While the underlying dispute involved complex private-law and capacity issues, the present case did not re-litigate those matters. Instead, it focused on the Law Society’s handling of the appellant’s regulatory complaint.

After the appellant lodged his complaint to the Law Society, the Council faced a statutory time-bar issue. Under the LPA, where a complaint concerns conduct that is older than the relevant period, the Council cannot simply proceed to refer the complaint for inquiry. The Council must first seek the leave of the court under s 85(4C)(a) of the LPA. In this case, the Council decided not to seek leave. It gave two reasons: first, that the complaint was made by the appellant in his personal capacity rather than as a client; and second, that the events were time-barred.

Dissatisfied, the appellant commenced Originating Summons No 1382 of 2018 (“OS 1382”) seeking to set aside the Council’s decision and to obtain an order directing the Council to make the necessary application for leave. The High Court examined the Council’s reasons and held that the Council had acted irrationally. In particular, the High Court found that the appellant’s personal capacity was not a relevant consideration for the leave decision under s 85(4C)(a), because the disciplinary framework in Part VII of the LPA exists to maintain the high standards and good reputation of the legal profession. The High Court also held that the time-bar could not be the only relevant consideration: the very fact that the limitation period had been exceeded is what triggers the need to apply for permission.

Although the High Court quashed the Council’s decision, it declined to grant a mandatory order requiring the Council to bring the application for leave. Instead, it ordered the Council to reconsider its decision. The appellant then appealed, seeking a mandatory order compelling the Council to apply for leave, and also challenged the High Court’s decision not to make an adverse costs order. The Court of Appeal’s task was therefore not to decide whether the underlying complaint had merit, but to determine the proper remedial response to the Council’s defective decision-making and to address the costs question.

What Were the Key Legal Issues?

The first key issue was remedial: whether, after quashing the Council’s irrational decision, the court should go further and issue a mandatory order directing the Council to apply for leave under s 85(4C)(a) of the LPA. This raised a deeper question about the relationship between judicial review remedies and the separation of powers—namely, whether a mandatory order would improperly displace the decision-maker’s discretion and effectively substitute the court’s view for that of the regulator.

The second key issue concerned costs in judicial review proceedings. The appellant argued that costs should follow the event, relying on the general rule in Vellama d/o Marie Muthu v Attorney-General [2013] 1 SLR 797 at [37]. He also contended that the countervailing principle in Baxendale-Walker v Law Society [2008] 1 WLR 426 (as accepted in Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279 at [24]) should not apply, given alleged ambiguities and lack of candour by the Law Society during the OS proceedings.

How Did the Court Analyse the Issues?

The Court of Appeal began by reaffirming the orthodox approach to remedies in judicial review. Where a court finds that the decision-making process is defective under traditional grounds of judicial review, it generally will not mandate the administrator to perform its duty in a particular manner. The rationale is that doing so would amount to the court making the decision rather than reviewing the decision-making process. The Court of Appeal cited authority emphasising that judicial review is concerned with process, not merits, and that courts must avoid undermining separation of powers.

In developing this point, the Court of Appeal relied on the classic principle articulated in R v Justices of Kingston (1902) 86 LTD 589, which was applied in Singapore in Re San Development Co’s Application [1971–1973] SLR(R) 203 and later in Borissik Svetlana v Urban Redevelopment Authority [2009] 4 SLR(R) 92. The principle is that mandamus should direct the performance of the duty, not the manner of performing it. The Court of Appeal observed that this principle applies with even greater force where the error relates to the exercise of discretion rather than the performance of a duty.

However, the Court of Appeal then addressed the narrower question posed by the appeal: whether the general rule against mandating a particular manner of exercising discretion admits exceptions. The Court of Appeal drew a conceptual distinction between administrative action that is imperative and that which is optional. Where Parliament confers discretionary powers, it is generally inappropriate for courts to mandate the exercise of those powers in a particular way. In such cases, quashing or prohibitory orders are typically more suitable, and if a mandatory order is issued, it should normally require reconsideration rather than predetermine the outcome.

Against this background, the Court of Appeal turned to the statutory language of s 85(4C)(a) of the LPA, which provides that the Council “may, with the leave of the court … refer a complaint” after the expiration of the relevant period. The word “may” indicates discretion, and the respondent argued that a mandatory order would fetter that discretion. The respondent further relied on the idea that reasonable decision-makers could reach different conclusions on the same facts without forfeiting their status as reasonable decision-makers, citing Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582 at [95].

In response, the appellant argued that although the general rule is reconsideration, the court can depart from it where only one legally permissible result exists. The appellant submitted that, properly construed, the Council had only one option: to apply for leave, taking into account (i) the length and reasons for delay, (ii) the seriousness of the alleged misconduct, and (iii) the merits of the complaint. The Court of Appeal accepted the legal framework that allows exceptions, but it did so by focusing on the effect of the Council’s defective reasoning and the statutory structure governing leave.

Although the Court of Appeal did not contest the High Court’s finding that the Council acted irrationally, it treated the remedial question as whether the Council’s discretion had been effectively narrowed by law. The Court of Appeal’s reasoning proceeded from the premise that the Council’s refusal to seek leave was not merely a matter of weight or emphasis among relevant factors; rather, it was based on irrelevant considerations and an impermissible approach to the time-bar. Once those errors were identified, the court considered whether the Council could lawfully maintain its refusal. The High Court had already held that the Council wholly neglected to consider the merits of the appellant’s claim. The Court of Appeal therefore treated the leave application as a procedural gateway that the Council was legally required to approach in a structured way, rather than as a step that could be avoided by relying exclusively on the fact of time-bar or the complainant’s personal capacity.

Accordingly, the Court of Appeal concluded that the appropriate remedy was not merely reconsideration in the abstract, but a mandatory order requiring the Council to apply for leave. This outcome reflects the exception to the general rule: where the statutory scheme and the court’s findings on irrationality mean that only one legally open result exists, the court may issue a mandatory order to ensure that the decision-maker performs the duty in the only lawful way.

On costs, the Court of Appeal considered the appellant’s reliance on the “costs follow the event” principle and his attempt to distinguish the public-regulatory context. The appellant argued that the Law Society should not benefit from the countervailing principle that ordinarily protects public bodies performing regulatory functions from adverse costs orders. The Court of Appeal, however, dismissed the appeal on costs. While the Court of Appeal’s grounds in the truncated extract are not fully reproduced, the outcome indicates that the Court was not persuaded that the High Court’s costs decision was erroneous or that the circumstances justified departing from the established approach to costs in judicial review involving public regulatory bodies.

What Was the Outcome?

The Court of Appeal allowed the appellant’s appeal in part by granting a mandatory order requiring the Law Society Council to apply for leave under s 85(4C)(a) of the LPA. Practically, this meant that the Council could not simply reconsider its decision while maintaining the same flawed approach; it had to take the statutory step of seeking the court’s leave to refer the complaint for inquiry.

The Court of Appeal dismissed the appellant’s appeal against the High Court’s decision not to make an order as to costs. As a result, the costs position remained as determined by the High Court, and the appellant did not obtain the adverse costs order he sought against the Law Society.

Why Does This Case Matter?

CBB v Law Society of Singapore is significant for administrative law and judicial review practitioners because it clarifies the remedial boundary between quashing/reconsideration and mandatory orders. The case reaffirms the orthodox principle that courts generally do not dictate how discretionary powers should be exercised, thereby preserving separation of powers and respecting the institutional role of regulators. At the same time, it demonstrates that exceptions exist where the law leaves only one permissible outcome.

For regulators and lawyers advising them, the decision underscores that statutory time-bar and leave mechanisms are not mere formalities that can be bypassed by relying on irrelevant considerations. Where a regulator’s refusal to seek leave is based on improper reasoning—such as treating the complainant’s capacity as determinative or treating time-bar as the only consideration—the court may intervene with a mandatory order to ensure the statutory scheme is properly engaged.

For complainants and legal practitioners, the case provides a roadmap for seeking effective remedies. It shows that even where the court finds irrationality, the remedy will depend on whether the discretion has been narrowed to a single lawful result. It also illustrates the importance of costs strategy in judicial review: even where a public body’s decision is quashed, obtaining adverse costs may remain difficult due to established principles protecting public regulatory functions.

Legislation Referenced

• Administrative Law Act
• Agricultural Marketing Act (including 1958)
• Commissioner of State Revenue under the Stamps Act
• Commissioner of State Revenue under the Stamps Act 1958
• Companies Act
• Companies Act 1985
• Compensation Act
• Legal Profession Act (Cap 161, 2009 Rev Ed) — ss 85(4A), 85(4C)(a)

Cases Cited

• Re BKR [2015] 4 SLR 81
• CBB v Law Society of Singapore [2019] SGHC 293
• CBB v Law Society of Singapore [2020] SGHC 56
• AUR and another v AUT and others [2012] SGDC 489
• Vellama d/o Marie Muthu v Attorney-General [2013] 1 SLR 797
• Baxendale-Walker v Law Society [2008] 1 WLR 426
• Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279
• Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582
• City Development Ltd v Chief Assessor [2008] 4 SLR(R) 150
• Borissik Svetlana v Urban Redevelopment Authority [2009] 4 SLR(R) 92
• R v Justices of Kingston (1902) 86 LTD 589
• Re San Development Co’s Application [1971–1973] SLR(R) 203
• CBB v Law Society of Singapore [2021] SGCA 6

Source Documents

• Original Judgment (PDF) — Singapore Law Watch
• Archived Copy (PDF) — Litt Law CDN

This article analyses [2021] SGCA 6 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.