Case Details
- Citation: [2025] SGHC 9
- Title: Tom Smith K.C.
- Court: High Court (General Division)
- Originating Application No: 1060 of 2024
- Related Appeals: Court of Appeal / Civil Appeal No 54 of 2024; Court of Appeal / Civil Appeal No 55 of 2024
- Judgment Date (hearing): 28 November 2024
- Judgment Date (decision): 16 January 2025
- Judge: Steven Chong JCA
- Applicant: Tom Smith KC (King’s Counsel of England)
- Applicant’s role sought: Ad hoc admission under s 15 of the Legal Profession Act 1966 (2020 Rev Ed) to act as instructed counsel for the appellant in CA 54 and CA 55
- Appellant in the underlying appeals: UT Singapore Services Pte Ltd (“UTSS”)
- Respondents in the underlying appeals: Hin Leong Trading (Pte) Ltd (“HLT”) and its joint and several liquidators, Mr Goh Thien Phong and Mr Chan Kheng Tek
- Legal area(s): Legal Profession; Admission of foreign counsel; Corporate insolvency and schemes of arrangement (context)
- Statutes Referenced: Legal Profession Act 1966 (2020 Rev Ed) (notably s 15(1)); Australian Corporations Act 2001; Companies Act; Companies Act 1985; Legal Profession Act 1966
- Cases Cited: Re Beloff Michael Jacob QC [2014] 3 SLR 424; Kassimatis, Theodoros KC v Attorney-General and another and another appeal [2024] 2 SLR 410
- Judgment length: 26 pages; 7,144 words
Summary
This decision concerns an application for the ad hoc admission of a foreign senior counsel, Tom Smith KC, to act in ongoing Court of Appeal proceedings. The High Court was asked to determine whether the statutory requirements for ad hoc admission under s 15(1) of the Legal Profession Act 1966 (“LPA”) were satisfied, and whether the court should exercise its discretion to admit the applicant for the purpose of representing the appellant in CA 54 and CA 55.
The court emphasised that the governing principle for such applications is “need”, which is a stringent standard going beyond mere desirability or convenience. Although the applicant argued that the appeals raised novel and complex issues of significant precedential value and public interest, the court focused on whether the appellant had demonstrated a reasonably conscientious search for competent local counsel and whether the existing local team was sufficiently competent to handle the issues on appeal.
Ultimately, the court declined to admit the foreign senior counsel. The decision clarifies that where the party remains represented by competent local counsel in the appellate stage, the threshold for displacing that representation with foreign counsel remains high, and the court will scrutinise whether the “need” requirement is genuinely met.
What Were the Facts of This Case?
The underlying litigation arose from the insolvency of Hin Leong Trading (Pte) Ltd (“HLT”), an oil trading company. UT Singapore Services Pte Ltd (“UTSS”), the appellant in the Court of Appeal proceedings, operated petroleum storage facilities. Between December 2018 and April 2020, HLT and UTSS entered into various Tankage and Storage Agreements and spot contracts under which UTSS leased tanks to HLT for the storage of petroleum products.
HLT was placed under interim judicial management on 27 April 2020 and subsequently under judicial management on 7 August 2020. On 5 February 2021, the judicial managers applied for HLT to be compulsorily wound up. On 8 March 2021, the court ordered HLT to be wound up and appointed Mr Goh Thien Phong and Mr Chan Kheng Tek as joint and several liquidators (the “Liquidators”).
When HLT entered judicial management, some of the oil purportedly belonging to HLT was stored across multiple locations, including UTSS’s tanks, tanks operated by Ocean Tankers (Pte) Ltd, and floating storage units (ships chartered by HLT and operated as floating storage units), as well as ships controlled by Ocean Tankers. Some of the oil attracted competing claims, leading to interpleader proceedings. Proceeds were obtained from the sale of cargo not subject to interpleader proceedings, referred to as the “Uninjuncted Proceeds”.
With respect to oil stored in UTSS’s tanks, some products were subject to court injunctions, while the remaining products were consolidated into 11 tanks (the “Filled Tanks”). The products in the Filled Tanks were sold by the Liquidators, and the proceeds formed part of the Uninjuncted Proceeds. UTSS terminated the Storage Agreements on 20 May 2020 on account of HLT’s insolvency and demanded, among other sums, S$26,673,150 as compensation for early termination. UTSS also asserted a lien over products in the Filled Tanks under the Storage Agreements and claimed entitlement to sale proceeds in satisfaction of its claims against HLT, and therefore entitlement to the Uninjuncted Proceeds. Financing banks also asserted security interests over the Uninjuncted Proceeds.
As the insolvency process progressed, the Liquidators sought directions on the validity of competing security interests. Summonses were filed on 31 August 2021 and 14 March 2022 regarding the alleged security interests of the financing banks and UTSS respectively, but these had not been heard at the time of the ad hoc admission application. On 17 May 2024, the Liquidators presented a proposed scheme of arrangement to HLT’s creditors. The scheme contemplated distributing US$80m of the Uninjuncted Proceeds (the “Scheme Consideration”) to HLT’s creditors.
The scheme divided creditors into two voting classes: (a) “Potential Secured Creditors” who asserted security interests over the Uninjuncted Proceeds, with the validity of those securities being the subject of interpleader proceedings and/or further summonses; and (b) “Unsecured Creditors” who did not assert security interests. The scheme provided that the Scheme Consideration would be distributed pari passu across both classes, and that Potential Secured Creditors would irrevocably and irreversibly waive any security interests they might have over the Uninjuncted Proceeds.
As of 6 June 2024, the Liquidators received in-principle approval from a majority in both classes and there were no objections. On 6 June 2024, the Liquidators applied for leave to convene a scheme meeting, and on 1 July 2024 the Judge granted the convening order. UTSS then applied to set aside the convening order, re-classify UTSS for voting purposes, reduce the scheme consideration by US$42.4m (reflecting the sum over which UTSS claimed security), and defer the scheme meeting. The Judge declined to defer the meeting but adjourned other prayers to be heard together with the sanction application.
The scheme meeting took place on 22 July 2024. The scheme was approved overwhelmingly: 95.7% of the Potential Secured Creditors (representing 98.7% in value) and 100% of the Unsecured Creditors (present and voting). UTSS was the only creditor to vote against the scheme. On 25 July 2024, the Liquidators applied to sanction the scheme. UTSS opposed. On 30 August 2024, the Judge sanctioned the scheme and dismissed UTSS’s remaining prayers. UTSS then filed notices of appeal in CA 55 and CA 54 on 17 September 2024.
When the appeals were heard at the Court of Appeal stage, UTSS was represented by Mr Nandakumar Ponniya and his team from Wong & Leow LLC. UTSS continued to be represented by that local team in the appeals. On 14 October 2024, the present ad hoc admission application was brought by Tom Smith KC to act as instructed counsel for UTSS in the appeals.
What Were the Key Legal Issues?
The High Court identified two principal issues. First, whether the mandatory requirements under s 15(1) of the LPA were satisfied. This required the court to assess whether the statutory threshold for admitting foreign senior counsel on an ad hoc basis was met, particularly the requirement of “need”.
Second, assuming the statutory requirements were satisfied, the court had to consider whether it should exercise its discretion to admit the applicant. This discretion is not automatic; it requires a careful evaluation of the circumstances, including whether the foreign counsel’s involvement is genuinely necessary for the proper determination of the appeal.
In addressing these issues, the court also had to grapple with the nature of the factual and legal questions in the appeals, and specifically whether the same lawyer who is competent to handle the issues at first instance would be any less competent on appeal merely because the party did not prevail below. This question was central to the court’s assessment of “need” in the appellate context.
How Did the Court Analyse the Issues?
The court began by framing the ad hoc admission regime under the LPA as a policy-driven mechanism that balances the interests of litigants against the broader objective of maintaining a robust local legal profession. It noted that Singapore’s approach has evolved, particularly after the Legal Profession (Amendment) Act 2012, which vested the courts with greater discretion in determining admission of foreign senior counsel. However, the court stressed that discretion does not dilute the rigour of the “need” requirement.
“Need” was treated as the key undergirding principle. The court relied on the reasoning in Re Beloff Michael Jacob QC, where the standard was described as stringent and not satisfied by mere preference, desirability, or convenience. In other words, the applicant must show more than that foreign counsel would be helpful; the applicant must demonstrate that foreign senior counsel is required for the fair and proper conduct of the proceedings.
Turning to the first issue, the court examined whether the requirements under s 15(1) were satisfied. The applicant argued that the appeals involved novel, complex, and difficult issues, with significant precedential value and public interest. The applicant also submitted that his specialist input on the English scheme of arrangement regime would provide substantial assistance. The court, however, treated these assertions as insufficient unless they translated into a demonstrable need in the specific circumstances of the case.
In assessing “need”, the court placed significant weight on the fact that UTSS was already represented by competent local counsel in the appeals. The court observed that the question was not whether the foreign counsel was capable, but whether the appellant had shown that the foreign counsel’s involvement was necessary notwithstanding the existing representation. The court therefore considered whether the local team was sufficiently competent to address the identical issues on appeal.
The court concluded that UTSS’s current counsel was sufficiently competent to represent UTSS in the appeals. This conclusion was not merely a general assessment of competence; it was tied to the nature of the issues and the fact that the local team had been handling the matter through the relevant stages. The court’s reasoning reflects a practical approach: where local counsel can competently conduct the appeal, the “need” for foreign counsel is harder to establish.
Additionally, the court considered whether UTSS had made a reasonably conscientious search for local counsel. The court found that UTSS had not demonstrated such a search. This point is important because it connects the “need” requirement to litigant conduct: if a party seeks foreign counsel without first exhausting or seriously exploring competent local representation, the court is likely to view the request as driven by convenience rather than necessity.
On the second issue—discretion—the court’s analysis reinforced the same themes. Even if the applicant could point to complexity or public interest, the court would still ask whether admitting foreign counsel was justified in the circumstances. The court’s approach indicates that the discretionary stage is not a mere formality; it is where the court evaluates the practical implications of admission, including the impact on the local bar and the integrity of the admission framework.
Finally, the court addressed the “identical issues on appeal” point that motivated the application. The court’s reasoning suggests that a party should not assume that appellate advocacy requires a different level of expertise from that required at first instance, particularly when the same local counsel is already capable of addressing the issues. The fact that UTSS did not prevail below did not, by itself, establish a need for foreign senior counsel on appeal.
What Was the Outcome?
The court dismissed the application for ad hoc admission of Tom Smith KC. The practical effect is that UTSS would continue to be represented by its existing local counsel in CA 54 and CA 55, without the addition of the foreign senior counsel as instructed counsel.
In doing so, the court reaffirmed that the “need” standard under s 15(1) of the LPA is stringent and that courts will scrutinise whether the party has genuinely demonstrated necessity, including whether there has been a reasonably conscientious search for competent local representation.
Why Does This Case Matter?
This case is significant for practitioners because it provides a clear, application-focused articulation of how Singapore courts approach ad hoc admission of foreign senior counsel in appellate proceedings. While the 2012 Amendment increased judicial discretion, the decision underscores that discretion is exercised within a structured framework anchored by the “need” requirement.
For litigants and counsel, the decision highlights that complexity, novelty, and public interest—while relevant—are not automatically sufficient to establish “need” when local counsel is already competent and actively representing the party. The court’s emphasis on the availability and competence of local counsel means that foreign counsel applications should be supported by concrete evidence rather than general assertions about difficulty or prestige.
For law students and researchers, the case also illustrates how courts evaluate the conduct of the party seeking admission. The finding that UTSS had not shown a reasonably conscientious search for local counsel demonstrates that “need” is assessed not only by the subject matter of the appeal but also by the procedural and practical steps taken before seeking foreign representation.
Legislation Referenced
- Legal Profession Act 1966 (2020 Rev Ed), s 15(1)
- Legal Profession Act 1966 (general)
- Companies Act
- Companies Act 1985
- Australian Corporations Act 2001
Cases Cited
- Re Beloff Michael Jacob QC [2014] 3 SLR 424
- Kassimatis, Theodoros KC v Attorney-General and another and another appeal [2024] 2 SLR 410
Source Documents
This article analyses [2025] SGHC 9 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.