Foo Diana v Woo Mui Chan [2025] SGHC 125

Costs

Every person is entitled to vindicate his or her rights in court and many do so robustly. But this entitlement is not open ended or without consequence. Litigants who conduct their case in an unreasonable manner may very well emerge victorious, only to find that their victory is Pyrrhic once it comes to the assessment of costs. It goes without saying that lawyers who accompany and guide their clients through the litigation process are under a duty to avoid such outcomes by assisting their clients with an honest and realistic evaluation of their case: see Rule 17(2)(e) of the Legal Profession (Professional Conduct) Rules 2015; Lock Han Chng Jonathan (Jonathan Luo Hancheng) v Goh Jessiline [2008] 2 SLR(R) 455 at [45]–[47].

Costs

The present case is one that is likely to result in a Pyrrhic victory for the plaintiff. This judgment deals with the costs of defamation proceedings brought by the plaintiff, an advocate and solicitor. The plaintiff seeks costs of the proceedings in the sum of $175,268.00 (including disbursements). I find the sum claimed unjustified and have awarded the plaintiff significantly lower costs on the Magistrate’s Court scale (see below at [34]). I set out my reasons in this judgment.

Costs

Following a trial, I found the defendant liable for defaming the plaintiff in respect of both statements: see Diana Foo (Liability). An assessment of damages hearing then followed, also before me. The plaintiff sought a sum of $300,000 in general damages and at least $50,000 in aggravated damages: Diana Foo v Woo Mui Chan [2025] SGHC 54 (“Diana Foo (Assessment)”) at [9]. I disagreed with the plaintiff and ultimately awarded her damages in the sum of $41,250; this comprised general damages of $33,000 and aggravated damages of $8,250: Diana Foo (Assessment) at [144]–[145]. Upon releasing my judgment in Diana Foo (Assessment), I directed the parties to file submissions on costs addressing a number of issues including whether there was any reason why costs should not be assessed on the Magistrate’s Court scale.

Costs

I have considered the submissions tendered by the parties and now turn to assessing the appropriate costs to be awarded.

Costs

Where a claim is commenced in the High Court but the damages awarded fall within the jurisdiction of the State Courts, the general practice is to award costs on the applicable State Courts scale: s 39(1) State Courts Act 1970 (2020 Rev Ed) (“SCA”); Cheong Ghim Fah and another v Murugian s/o Rangasamy [2004] 3 SLR(R) 193 (“Cheong Ghim Fah”) at [4]; Michael Vaz Lorrain v Singapore Rifle Association [2021] 1 SLR 513 at [51]–[52].

Costs

Only exceptions (a) and (d) are relevant to this case. The plaintiff submits that costs should be awarded on the High Court scale. She relies on the case of Shanmugam Kasiviswanathan v Lee Hsien Yang and another matter [2024] 5 SLR 194 (“Shanmugam”), where Justice Goh Yihan decided to assess costs on the High Court scale notwithstanding that a sum of $200,000 was awarded in damages (ie, within the District Court’s jurisdictional limit of $250,000). Justice Goh found that there was “sufficient reason” to bring the action in the High Court because it could reasonably be said that the claims would “raise an important question of law concerning the court’s power to grant injunctive relief in an application for judgment in default of a Notice of Intention under the Rules of Court 2021” (Shanmugam at [92]).

Costs

The plaintiff provided the following tabular breakdown of costs:

Costs

In her costs submissions, the defendant also attached a letter from a prisoner currently remanded in Changi Prison who apparently was a former client of the plaintiff and had “input” on the plaintiff. I have ignored this letter. Its contents are vague, the provenance unverified, and in any event the letter is entirely irrelevant to the issue of costs I am deciding.

Costs

I thus agree with the defendant that there was simply no basis for this action to have been commenced or prosecuted in the High Court. Accordingly, the plaintiff’s costs should be assessed on the Magistrate’s Court scale. In this regard, I reproduce here for convenience O 59, Appendix 2, Part IV, para (1) of the Rules of Court (2014 Rev Ed), from which I have obtained guidance in relation to the quantum of costs to be awarded:

Costs

I note that under s 39(4) SCA, the court has the discretion to award any part of the costs on the High Court scale if, inter alia, there was “sufficient reason” for bringing the action in the High Court. I decline to exercise this discretion and proceed on the basis that the costs of the entire proceedings, both the trial on liability and the assessment of damages hearing, are assessed on the Magistrate’s Court scale. The plaintiff’s decision to proceed in the High Court at the liability stage would also have been infected by the same misconceived notion that she was entitled to more than $250,000 in damages. Beyond what I have already canvassed and rejected above, there was no suggestion that this case concerned any special point of law or public interest that required determination by the High Court. Thus, proceeding in the High Court at the liability stage was also inappropriate and unreasonable, and those costs should not be recovered on the basis of the High Court scale.

Costs

The plaintiff was awarded damages amounting to $41,250. Since she did prevail on liability and to an extent on quantum, I am prepared to proceed on the basis that costs should follow the event but on the basis that the plaintiff is only entitled to costs on the Magistrate’s Court scale and not the High Court scale. Thus, costs would ordinarily fall somewhere within the range of $5,000 and $18,000 (see above at [22]). Having regard to the circumstances of this case, I consider that a base figure of $15,000 would be appropriate for costs of the trial on liability and the assessment of damages. That said, and in the exercise of the court’s discretion, I am prepared to allow an uplift of this amount to $25,000 in view of the following three factors.

Costs

First, although I have decided to assess and fix costs on the Magistrate’s Court scale, the fact remains that the proceedings were on the more complex end of the range. The trial on liability lasted for four days and the assessment of damages hearing lasted one day. This may have been partially due to how the plaintiff ran her case, but in my view it would be unduly harsh to stick rigidly to the Magistrate’s Court scale.

Costs

Second, the defendant’s conduct was also not beyond reproach. She had pursued a defence of justification which I had found was based on falsehoods: Diana Foo (Liability) at [35]–[38]. In this regard the defendant had also contributed to the complexity of the matter and the length of hearing by taking untenable positions. While I had awarded the plaintiff aggravated damages in Diana Foo (Assessment) on account of the defendant’s conduct, I do not think any issue of double counting arises – this is because aggravated damages serve to compensate the plaintiff for the enhanced hurt which she has suffered (Diana Foo (Assessment) at [121]), while costs serve to compensate her legal expenses.

Costs

Third, I think the defendant also bears some responsibility for the assessment of damages hearing proceeding in the High Court. By way of background, the defendant had previously applied to transfer the proceedings to the District Court in HC/SUM 2289/2022 (“SUM 2289”). At the time, I expressed my concerns over the lateness of the application which was made on the doorstep of the trial. Leave was granted for the defendant to withdraw SUM 2289 without prejudice to her right to file a fresh application for transfer after the trial on liability had concluded. This right was however not exercised. In a request made to the court dated 17 January 2024, plaintiff’s counsel stated that defendant’s counsel had consented to the plaintiff’s proposal that the assessment of damages hearing should also proceed before me. Accordingly, it would not be right to hold the plaintiff fully responsible for the additional costs incurred as a result of the matter continuing at the High Court. However, the burden nevertheless remains on the plaintiff to demonstrate that she was justified in starting and maintaining the proceedings in the High Court. The mere fact that the assessment of damages continued in the High Court cannot in and of itself provide that justification. Steps should have been immediately taken to transfer the proceedings upon realising that the “upper limit of recoverability falls within the subordinate courts’ jurisdiction”: Cheong Ghim Fah at [14]. Ultimately, the plaintiff has failed to persuade me that any justification existed for her decision to either start or continue the proceedings in the High Court.

Costs

Before I conclude, I feel compelled to make a final observation regarding the conduct of plaintiff’s counsel in this matter when it came to filing costs submissions.

Costs

Following the release of Diana Foo (Assessment) on 28 March 2025, the parties were directed to file and serve their costs submissions if they were unable to reach an agreement on costs for the action. In particular, the plaintiff’s costs submissions were due to be filed by 21 April 2025, the defendant’s costs submissions by 5 May 2025, and the plaintiff was given liberty to file reply submissions by 13 May 2025. Following the plaintiff’s first set of costs submissions, the defendant’s costs submissions were duly filed on 5 May 2025. 13 May 2025 came and went, and no reply submissions were filed by the plaintiff. After ten days of silence, on 23 May 2025 at about 10.30am, the court informed parties in writing that it would no longer entertain any further costs submissions as the deadline for the plaintiff’s reply submissions had long passed. Approximately 45 minutes later, plaintiff’s counsel filed the plaintiff’s reply submissions. Counsel for the plaintiff did not see it fit to provide any notice to the court as to whether or not the plaintiff intended to file reply submissions, even after the deadline imposed by the court had passed. When the reply submissions were finally filed, they were filed ten days late, and only after the court had indicated to the parties that it would no longer be considering any further submissions. Worse still, the submissions were filed with no apology or explanation from plaintiff’s counsel as to the reason for the delay, effectively rendering the court fait accompli. That remains the case to date. This state of affairs is regrettable and unacceptable. Needless to say, this is not conduct that this court expects from the Bar.

Costs

This was, from its inception, a straightforward defamation action involving the application of well-established legal principles. The plaintiff’s claim for damages was hopelessly (and unreasonably) optimistic and went far beyond what a well-advised litigant should have sought. To now seek costs in excess of $175,000 on the High Court scale, more than four times the amount of damages assessed, simply flies in the face of any measure of reasonableness or proportionality.

Costs

For the aforementioned reasons, I award costs of the entire action (including the assessment of damages) to the plaintiff but fix costs on the basis of a Magistrate’s Court action in the sum of $25,000 (excluding disbursements).