By Mr. Siva Balakrishnan
Commercial and Shipping Disputes Lawyer
Partner at Robert Wang & Woo LLP
The recent proposed reforms to the Singapore civil justice system, in particular scale costs, and solicitor-and-client (S&C) costs should be equal to party-and-party (P&P) costs for civil litigation work raise the fair play concept versus outsourcing of legal work to and competition with lawyers in low-cost jurisdictions.
For the benefit of lay persons, briefly, P&P costs are costs that the losing party will usually be ordered to pay the winning party as a partial reimbursement of the winning party’s lawyer’s charges; while S&C costs are the legal costs each party (i.e. claimant and defendant) are liable to pay to their own lawyer. So, the winning party can expect to recover its P&P costs which will cover part of the winning party’s S&C costs, thereby leaving the winning party out of pocket for the balance.
In support of the proposed reforms of scale costs, and S&C costs should be equal to P&P costs, it may be argued that there is the pressure to outsource legal work to and compete with lawyers in low-cost jurisdictions, whose hourly rates can be low in comparison to Singapore lawyers’ hourly rates.
However, this fails to take into consideration that unlike Singapore-qualified lawyers lawyers in low-cost jurisdictions, among other things, may not be admitted to the Singapore Bar, may not hold a valid practising certificate to advise on Singapore law, may not be subject to the Singapore Legal Profession (Professional Conduct) Rules, and may not have professional indemnity insurance to cover them in the event of a professional negligence lawsuit filed against them.
In short, businesses and lay persons who may want to opt for lawyers in low-cost jurisdictions may be taking a risk that the advice on Singapore law they receive may turn out to be wrong or not accurate with no recourse against such lawyers.
This is also why, although legal fees in Singapore may be less expensive than in England, a Singapore-qualified lawyer will decline to advise on English law unless the Singapore-qualified lawyer is also qualified in England & Wales as a barrister or solicitor and holds a valid practising certificate issued by the Bar Council and Bar Standards Board (England & Wales) or Solicitors Regulation Authority (England & Wales). Otherwise, it will be a race to lawyers in low-cost jurisdictions.
While Australia, Canada, India, Malaysia, New Zealand, Singapore, the United Kingdom, and other nations may have similar laws as they are all common law jurisdictions, this does not detract from the fact that each of these jurisdictions have their own admission, practising, and professional conduct rules for their respective legal professions.
Coming from a common law country (X) may give a lawyer qualified in that country (X) knowledge of another common law country’s (Y) laws or how the courts of another common law country (Y) may or may not interpret and apply its laws, but it does not give that lawyer a license or right to advise on or practise another common law country’s (Y) laws unless he/she complies with the admission, practising, and professional conduct rules of that country’s (Y) legal profession.
This is called Fair Play in any common law jurisdiction, and for that matter, civil law jurisdiction.
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