CBB v Law Society of Singapore [2020] SGHC 56

Costs

These are supplementary grounds of decision, giving reasons for my costs order in respect of CBB v The Law Society of Singapore [2019] SGHC 293 (“the main judgment”) arising from HC/OS 1382/2018 (“OS 1382”). The Applicant has appealed against part of the main judgment as well as my subsequent order that no costs are awarded. The facts, issues, holdings and findings for OS 1382 have been covered in the main judgment, and will not be repeated here.

Costs

The Applicant sought costs, but the Respondent resisted, primarily arguing that no costs should be ordered as it performs a regulatory function. Considering the outcome of the main judgment, the various points on which the Applicant did not succeed, as well as the public regulatory function performed by the Respondent, I did not consider it appropriate to order costs against the Respondent.

Costs

The Applicant sought costs of S$30,000 with disbursements of around S$8,000. It was argued that costs may be awarded in judicial review proceedings, relying on Vellama d/o Marie Muthu v Attorney-General [2013] 1 SLR 797 and the UK Supreme Court decision in Regina (Hunt) v North Somerset Council [2015] 1 WLR 3575. Even though the Respondent is a regulatory body, no statutory or regulatory authority is immune from an adverse cost order: Ang Pek San Lawrence v Singapore Medical Council [2015] 2 SLR 1179 (“Ang Pek San”).

Costs

The Applicant argued that the Council was not performing a regulatory function in deciding not to seek leave to refer the offending conduct. Instead, such conduct had been found to be unreasonable and a breach of its statutory obligations. Further, the Respondent was not performing a public function by defending the Council’s irrational decision. Even if it was, this was unreasonable and costs can still be ordered. The Respondent relied on Re Shankar Alan s/o Anant Kulkarni [2007] SLR (R) 95 and Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279 (“Top Ten”) to support these arguments. The Respondent also failed to give any meaningful reason for adopting the Council’s decision and deciding to resist OS 1382. An adverse costs order should be awarded to incentivise appropriate conduct and to discourage behaviour impeding administration of justice. The various cases cited by the Respondent were cited out of context and did not assist it.

Costs

The Respondent argued that no costs order should be made against it as the Council was performing a public function, as recognised in Top Ten, citing Baxendale-Walker v Law Society [2008] 1 WLR 426 (“Baxendale-Walker”). This was reiterated in Ang Pek San ([3] supra). Furthermore, the Applicant only succeeded in one of the many arguments put forward. The conduct of the Respondent in the present case was not of the nature or severity to displace the default position that an entity performing a public function should not be made to pay costs.

Costs

I concluded that it was not appropriate to order costs against the Respondent given the outcome of OS 1382, in which a number of points went against the Applicant, and the scope of the order ultimately granted was narrower than what the Applicant sought.

Costs

The parties disputed the applicability of Top Ten and the Baxendale-Walker principle to the present case, namely, that regulatory bodies should generally not be subject to adverse cost orders when performing public functions. However, regardless of whether I apply the general approach to costs or the Baxendale-Walker principle as synthesised by Ang Pek San, in the end, the same result is reached.

Costs

The general principle is that costs follow the event: O 59 R 3(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed).

Costs

Next, the Applicant had made several failed arguments relating to whether the complaint ran up against the limitation period specified under the Legal Profession Act (Cap 161, 2009 Rev Ed) (see main judgment at [42]–[62]), and relating to illegality and procedural impropriety in the Council’s decision (main judgment at [76], [90]). The Applicant argued that he could not be faulted for canvassing all relevant arguments as new points would generally not be allowed on appeal, citing Yong Kheng Leong and another v Panweld Trading Pte Ltd and another [2013] 1 SLR 173. That may be so, but it does not follow that an award for costs should be given if most of those points fail at first instance.

Costs

Given the limited scope of the order granted, and the lack of success on the other points, especially the limitation point which took up a substantial portion of the arguments, in my view, the fairest order was to leave parties to bear their own costs.

Costs

The guidance and synthesis given by the High Court in Ang Pek San ([3] supra) was useful and relevant as it considered and incorporated the principle in Baxendale-Walker ([8] supra) that regulatory bodies should generally not be subject to adverse cost orders when performing public functions. The Applicant argued that Baxendale-Walker was not applicable to judicial reviews, and was only pertinent to disciplinary challenges. I was not convinced that this would be so. It may be a matter of happenstance whether the challenge is made by judicial review or made under the relevant statute. In either situation, the challenge relates to the procedure or outcome of disciplinary proceedings carried out by the relevant body.

Costs

Nevertheless, I do accept that there may be judicial review cases in which costs may be ordered against a regulatory body. This requires consideration of various factors, as was laid down in Ang Pek San. There, the court analysed the significant precedents and found at [55] that:

Costs

That synthesis is applicable to the present case, with minor modifications, beyond the specific statutory and regulatory context in Ang Pek San. Applying a similar approach here would be justified since it is necessary to consider various factors such as the regulatory function of the Respondent, the prejudice or financial burden borne by the Applicant, as well as the outcome of the proceedings. Applying these factors, I find that no costs order should be made, for the same reasons as set out in the general approach above.

Costs

While I had found that the Respondent had committed Wednesbury irrationality or unreasonableness, this was not a finding that its conduct fell so short that costs should be ordered; Wednesbury unreasonableness is simply taking into account matters which should not have been taken into account, or failing to take into account matters which were relevant. It does not by itself impute abuse or contumeliousness. I noted the caution, as highlighted in Ang Pek San, that the standard of conduct need not be so poor as to amount to egregiousness. However, in the present case, Wednesbury irrationality or unreasonableness in itself is not conduct that requires a cost order to be made.

Costs

For these reasons, applying either or both the general approach and the synthesis in Ang Pek San, I concluded that no cost order should be made here.