Cheng Shi Ying Cherissa v Khoo Chong Kiat and another [2025] SGHC 91

Costs

Under O 22A of the Rules of Court 2014, indemnity costs may be awarded when a reasonable offer to settle (as determined by the court) is refused and the plaintiff obtains judgment on terms not more favourable than the terms of the offer. Although O 22A has been removed from the Rules of Court 2021 (“ROC 2021”), that does not mean that offers to settle are now inconsequential. On the contrary, parties may make such offers if they believe that litigation can be resolved by the offer. How that may affect the court’s order on costs will be left to the court’s discretion depending on the facts of each case. This is seen from O 21 r 2 of the ROC 2021 which provides as follows:

Costs

An offer to settle may directly compel the opposing litigant, whether claimant or defendant, to seriously assess his case and, upon consultation with his solicitors on the financial cost of pursuing the claim to the end, weigh the costs of winning against the costs of losing. Thereafter, if he proceeds, the die is cast. But it should be borne in mind that the amount offered is not the same thing as the reasonableness of that offer. The latter depends on the merits of the claim as well as other factors that the court thinks relevant. If, for example, a $1m claim is eventually dismissed as being wholly unmeritorious, even a $10,000 offer by the defendant might have been reasonable despite being just 1% of the claimed sum. The present case involves other factors, as will be seen in the following paragraphs. So far as the offer to settle is concerned, it appears that the parties here were still in the process of negotiation. In cases where negotiations are protracted, parties ought to make their final offer clear not only in the amount to be settled, but that it is the final offer. It should be marked without prejudice as to the merits but an open offer as to costs.

Costs

The claimant here says that the defendants declined to mediate, were slow in providing information and documents (eg, medical records) and raised material matters belatedly, leading to wasted costs. The defendants say that they made multiple offers to settle, which were all rejected by the claimant who demanded “unreasonable sums that were plainly disproportionate to her alleged injuries”. The defendants also appointed a Senior Counsel as they thought that the claimant’s allegations would have “serious widespread repercussions on obstetric management in Singapore”. They refer to my costs order of $600,000 on an indemnity basis in Chia Soo Kiang (personal representative of the estate of Tan Yaw Lan, deceased) v Tan Tock Seng Hospital Pte Ltd and others [2023] SGHC 56 (“Chia Soo Kiang”). The defendants here want costs of $350,000 because they say that the claimant rejected the defendants’ offers to settle; that she was “not truthful about her condition” and “displayed no sincerity at all in reaching a settlement”.

Costs

I also do not think that the claimant’s conduct and the involvement of a Senior Counsel justify the defendants’ claim for costs of $350,000. I am of the view that the costs in this case should be within the mid-range under the guidelines set out in Appendix G of the Supreme Court Practice Directions 2021. A reasonable figure would be $60,000 for pre-trial work, $12,000 per day for trial and $20,000 for post-trial work. Since there were about five days of trial in total, the costs for trial are fixed at $60,000. The costs for the trial are therefore fixed at $152,600 (including GST). The costs of the bifurcation application in HC/SUM 209/2024 (“SUM 209”) are fixed at $8,720 (including GST). I make no orders as to costs for the claimant’s amendments to her statement of claim filed on 27 November 2024 as the amendments were minimal and the removal of her claims in relation to antenatal care was because of the defendants’ belated disclosure of her medical records in late 2024. This brings the total costs to $161,320 (including GST).

Costs

I thus order that the claimant pay the defendants costs fixed at $233,107.59 (including disbursements).