[- Application by way of Originating Summons for wide-ranging discovery in Law Society Disciplinary proceedings – application refused – appeal to Court of Appeal dismissed on grounds: (1) that a proper policy choice had been made against a general discovery obligation in such proceedings; and (2) that the High Court lacked jurisdiction to entertain the Originating Summons; alternatively, that the application was barred by Art. 84C of the Brunei Constitution (“Art 84C”) and/or s.6A of the Specific Relief Act (Cap. 109) as amended (“s.6A”)
– The Law Society’s approach to Rule 9 revisited by the Court; without in any way undermining Art. 84C and/or s.6A, or giving a declaration or other relief which the Court of Appeal is not entitled to do, the Court expressed real concern as to the Law Society’s interpretation of Rule 9 of the Legal Profession (Disciplinary Committee Proceedings) Rules (“Rule 9” and “the Rules”), namely, that it was not required to disclose (in addition to documents on which it intended to rely) documents in its possession, custody or control (if any) which might reasonably be considered capable of undermining its case or of assisting the case of the other party in those proceedings – the Court favoured the contrary view, to the effect that Rule 9 extended to and encompassed an obligation on the Law Society to disclose documents in its possession, custody or control which might reasonably be considered capable of undermining its case or of assisting the case of the practitioner in disciplinary proceedings – McCarthy v Visitors to the Inns of Court & Anor. [2013] EWHC 3253; [2015] EWCA Civ 12 furnished cogent persuasive authority supportive of of the Court’s view
– Though the remedy of judicial review is barred, a party dissatisfied with disclosure by the Law Society in disciplinary proceedings is not without recourse to the Court by way of a variety of statutory routes, for instance, paragraphs 61 and 62 of the Legal Profession (Law Society of Brunei Darussalam) Order (S42/2003, as amended) (“the Order”), paragraph 55(2)(b) of the Order and (where applicable) paragraph 71 of the Order – these statutory routes envisage recourse to the Court without undermining the bar on judicial review – to the extent that it suggested otherwise, Lt. Col. (Rtd.) Hj. Harif Bin Hj. Ibrahim v The Council of the Law Society Brunei Darussalam (High Court of Brunei Darussalam) (Originating Summons No. 14 of 2023) disapproved; Ong Jin Huat v The Law Society of Brunei Darussalam (Court of Appeal of Brunei Darussalam) (Civil Appeal No. 8 of 2022) preferred.
– Furthermore Rule 12 (of the Rules) was not to be overlooked, providing for the Law Society Disciplinary Committee or its Chairman to give directions, inter alia, with regard to disclosure
– While the Court of Appeal (given the bar on judicial review) is not entitled to grant relief by way of a declaration or injunction, the Court was not powerless, in the short term, to craft a roadmap capable of adoption by the Appellant and the Law Society (if so minded) in their own best interests – the possibility discussed of the Appellant making a confined application for discovery (limited to documents in the Law Society’s possession, custody or control which might reasonably be considered capable of undermining its case or of assisting the case of the Appellant) pursuant to Rule 12 and for the Disciplinary Committee or its Chairman to consider it – the Court was confident that the Law Society, when exercising its public function in disciplinary proceedings would wish to act with, at the least, elementary fairness – the Law Society would further have well in mind the roles of the Chief Justice and the Supreme Court and would be alert to the Court’s reluctance to lend its support to any enforcement process in the event of doubts as to the fairness of the procedure
– For the long-term, the Court urged that action should be taken to remedy the unsatisfactory state of affairs concerning Rule 9 – such action could include guidance to be given by the Law Society as to the interpretation of Rule 9 in line with the Court’s view, alternatively consideration should be given to amending Rule 9 to give effect to and embed the Court’s view as to its true meaning and ambit.]