Case Summaries

Law Society of Singapore v Constance Margreat Paglar

SUPREME COURT OF SINGAPORE

5 February 2021

Case summary

Law Society of Singapore v Constance Margreat Paglar [2021] SGHC 27
Originating Summons No 6 of 2020

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Decision of the Court of Three Judges (delivered by Justice of the Court of Appeal Andrew Phang Boon Leong):

Outcome: The Court of Three Judges finds that there was no cause of sufficient gravity and remits the matter to the disciplinary tribunal for it to determine the appropriate order.

Pertinent and significant points of the judgment

  • Antecedents cannot be taken into account when determining liability in legal disciplinary proceedings.
  • The DT can take antecedents into account when determining the appropriate measure(s) to be imposed under s 93(1)(b) of the LPA, notwithstanding that there is no express provision in the LPA permitting the DT to do so.

Facts

1 The respondent was the sole proprietor of C Paglar & Co (“CPC”) at all material times.

2 On or around 5 October 2017, one Lim Beng Heng Bernard (“Mr Lim”) engaged CPC to claim damages for personal injuries he had sustained in a road traffic accident. CPC and India International Insurance Pte Ltd (“III”), the insurer of the motor vehicle involved in the accident, subsequently exchanged numerous settlement offers.

3 In particular, III had, on 7 June 2018, made a settlement offer of $3,281.35, which sum was inclusive of $1,605 in costs and disbursements (“the 7 June Proposal”). Mr Lim instructed the respondent to accept the 7 June Proposal on his behalf.

4 The respondent instead proceeded to make a settlement offer to III for a global sum of $4,000 on 21 June 2018 (“the 21 June Offer”) as she felt that III’s offer of costs and disbursements in the 7 June Proposal was too low. III then made a counter-offer of a global settlement sum of $3,800 (“the Final Offer”), which CPC accepted on 26 June 2018. Crucially, the respondent did not inform Mr Lim that she had made the 21 June Offer or that she had accepted the Final Offer.

5 Mr Lim noticed that the discharge voucher from CPC was for a sum of $3,800 instead of $3,281.35 per the 7 June Proposal. As he failed to receive any explanation of the settlement sum of $3,800, he subsequently filed a complaint against the respondent.

6 The original charges against the respondent alleged that she had, among other things, breached her duty of honesty under r 5(2)(a) of the Legal Profession (Professional Conduct Rules) 2015 (Cap 161, S 706/2015) (“PCR”). The charges were then amended and the single amended charge against the respondent alleged that she had breached r 5(2)(e) of the PCR, which requires a legal practitioner to “keep the client reasonably informed of the progress of the client’s matter”. The respondent pleaded guilty to the amended charge.

The decision of the disciplinary tribunal (“the DT”)

7 The DT found that there was cause of sufficient gravity for disciplinary action, notwithstanding that both the Law Society and the respondent were of the contrary view and had submitted that the DT ought to make an appropriate order under s 93(1)(b) of the Legal Profession Act (Cap 161, 2009 Rev Ed). Of note was the DT’s conclusion that, in failing to inform Mr Lim before making the 21 June Offer and accepting the Final Offer, the respondent had acted dishonestly and for her personal benefit.

8 As a result of a query by the DT, the Law Society revealed that the respondent had a recent antecedent of misconduct (“the Antecedent”). The DT indicated that it did not place any weight on the Antecedent in determining that there was cause of sufficient gravity, but invited this court to clarify if the DT could consider antecedents in “arriving at a decision and/or determining the appropriate sanction for the misconduct that is before the tribunal”.

The Court of Three Judges’ decision

Whether there was cause of sufficient gravity for disciplinary action

9 The Court of Three Judges (“the Court”) observed that the respondent had pleaded guilty to a charge that was substantially less serious than the original charges proferred against her. The amended charge concerned a breach of r 5(2)(e) of the PCR, ie, her failure to keep Mr Lim informed of the progress of the matter. In contrast, the gravamen of the original main charge (which alleged a breach of r 5(2)(a) of the PCR) was that she had acted dishonestly in her dealings with Mr Lim (at [30]).

10 The Court held that the DT had erred in finding that the respondent had acted deceitfully in order to benefit herself at Mr Lim’s expense. Even if she had indeed acted dishonestly, the amended charge, and even the Agreed Statement of Facts, contained no allegation of dishonest conduct whatsoever. It would be prejudicial to hold her liable for dishonest conduct which she had not been charged for (at [31] and [33]).

11 The amended charge only alleged that the respondent had failed to inform Mr Lim of the progress of the matter by: (a) failing to inform him when she negotiated a higher settlement sum with III; and (b) failing to explain the breakdown of the settlement sum to him. Having regard to the amended charge, the Court held that there was no cause of sufficient gravity. Nonetheless, as the amended charge was made out and involved more than a merely technical breach, the Court remitted the matter to the DT for it to determine the appropriate order to be made pursuant to s 93(1)(b) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) (at [30], [36] and [40]).

12 The Court reiterated that the Law Society’s duty to investigate complaints referred to it implied a concomitant duty to frame appropriate charges that adequately reflected the gravamen of the complaint, although the Law Society does of course retain the discretion to amend charges in appropriate circumstances after it has considered the relevant facts and law (at [39]).

Whether the DT is entitled to take antecedents into account

13 The Court held that antecedents were irrelevant when determining liability. At the liability stage, the inquiry was whether the specific misconduct alleged in that particular instance had been proven. Moreover, s 83(5) of the LPA permitted a court of 3 Judges to consider antecedents only for the purpose of sentencing, and there was no provision in the LPA that empowered the DT to give weight to antecedents at the liability stage (at [42]).

14 Under s 83(5) of the LPA, a court of 3 Judges could consider antecedents when determining what sanctions to impose under s 83(1) of the LPA. The Court held that the DT could also consider antecedents when determining the appropriate measure(s) to be imposed under s 93(1)(b) of the LPA, notwithstanding that there was no express provision akin to s 83(5) of the LPA. In deciding which limb of s 93(1)(b) of the LPA ought to apply, the DT would be engaged in the process of sentencing, and antecedents would be relevant at this particular stage of the proceedings. There was no principled reason why antecedents should only be relevant to sentencing before the court of 3 Judges but not before the DT (at [46] to [48]).

 

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

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