WLR and another v WLT and another and other matters [2024] SGHCF 20

Costs

Originating Summonses (Mental Capacity Act) Nos 2, 3, 4 and 5 of 2022 (“the Applications”) were commenced by three siblings (J, W and T) in respect of their mother, P, who suffers from severe Alzheimer's disease and lacks mental capacity. The Applications, commenced in 2021, were tussles to appoint a deputy for P (the “Deputyship Applications”), as well as an application commenced in June 2022 to revoke a Lasting Power of Attorney (“LPA”), executed in 2019 (the “LPA Revocation Application”). The consolidated Applications were heard on 10 April 2023. Judgment was handed down on 11 May 2023: see WLR and another v WLT and another and other matters [2023] 5 SLR 1372 (the “Judgment”). For ease of reference, I adopt the same abbreviations for the present dispute which concern the issue of costs.

Costs

The parties are in general agreement on the principles governing an award of costs in proceedings under the Mental Capacity Act 2008 (2020 Rev Ed) (“MCA”) and the Family Justice Rules 2014 (“FJR”), namely:

Costs

None of the parties submitted that costs should not follow the event. The essence of my orders was as follows:

Costs

I begin with the isolated issue in OSM 5, concerning the question whether P lacked mental capacity at the time the LPA was executed. That was separate from the Deputyship Applications. As T was successful in his application, costs should follow the event, and accordingly T is entitled to costs. Counsel for T, Ms Anna Oei, says that costs should be borne by the estate of P pursuant to r 190(1) of the FJR. Counsel for J, Ms Lim Lei Theng, prayed for no order as to costs. W, who was not a party to OSM 5, took no position.

Costs

The crux of the issue in OSM 5 is whether costs should be borne by J or by P’s estate. In this regard, J had proceeded to have P’s LPA executed despite Dr Adrian Wang’s observations in two consultations on 7 December 2018 and 10 January 2019 where he was of the opinion that P lacked the mental capacity to execute an LPA: Judgment at [55] to [60]. Although the revocation of the LPA undoubtedly benefitted P by revoking an LPA which did not meet the legal requirements under the MCA, OSM 5 could have been avoided entirely had J not unilaterally disregarded Dr Wang’s professional opinion. In the circumstances, J, and not the estate, should bear the costs of OSM 5.

Costs

I now consider the Deputyship Applications. Ms Oei in her written submissions suggests that “none of the [a]pplicants were entirely successful in their respective applications”. That observation is not incorrect, but the determination of the “event” for the purposes of costs goes beyond the formal labelling of the outcome of an application, to the substantive outcome in the proceedings: VVB v VVA [2022] 4 SLR 1181 at [13] to [15] (“VVB”). In these proceedings, the substantive outcome is that J and W have succeeded in their applications, while T’s application was entirely dismissed. In the circumstances, J and W should be entitled to costs of the Deputyship Applications.

Costs

Having decided the “event”, I address the first of two key issues — who ought to bear the costs of the Deputyship Applications. Ms Oei submits that the costs of the Deputyship Applications should be borne by P pursuant to r 190(1) of the FJR, which she says adopts the “mandatory form ‘shall’”. Counsel for W, Ms Hu Huimin, says that the costs of OSM 3 should be borne by P, but that her client is further entitled to costs from J and T for their opposition of W’s application. Ms Lim, on the other hand, submitted on behalf of J that T should bear the costs of OSM 2 and 4, while no order should be made as to W’s application.

Costs

The rationale behind r 190(1) of the FJR is that where proceedings are instituted under the MCA for the benefit of P, the party who acts in the best interests of P, as necessitated by s 3(5) of the MCA, should not have to unduly shoulder the costs of such legal proceedings.

Costs

As I had observed in the Judgment (at [51]), the truth in such matters involving long-standing familial disputes is often submerged in the murky past, where the available oral evidence tends to be self-serving. As I had also observed, the determination of P’s best interest can be resolved, without the need to consider personal grievances, by simply looking to who had been looking after P’s well-being all these years — which in this case, is J. In such situations, r 190(1) of the FJR is rightly departed from, for P should not have to bear the costs of proceedings in which her best interest, though eventually upheld by the court’s determination, is throughout the proceedings subjugated to the self-interests of applicants.

Costs

The court is a trier of fact and, in so far as intention is concerned, it can only draw inferences based on the objective evidence before it. In my view, the contrast between W on the one hand, and J and T on the other, neatly illustrates how r 190(1) of the FJR should be applied. It is clear that W’s application, OSM 3, is motivated predominantly by the best interest of P. The grant of OSM 3 and the costs thereof should be rightly borne by P pursuant to r 190(1) of the FJR.

Costs

From the way that J and T advanced their cases, they seemed to have laboured under the impression that it was not unreasonable for them to defend their personal points of view, which, they must be made to realise, are subjective and may not be reasonable after all. More is required: VVB at [23], following the Court of Appeal’s decision in Chan Choy Lin v Chua Che Teck [1995] 3 SLR(R) 310 at [22]). I agree with the view of Debbie Ong J (as she then was) in VVB at [26] that “awarding costs in fact signals that adversarial stances are not acceptable in a family justice system that adopts therapeutic justice”, a system that seeks to heal and not to wound.

Costs

For the above reasons, I am of the view that the costs of OSM 2 and OSM 4, should be borne by T and not by P. For completeness, I address counsel for W’s contention that W should be also entitled to costs from J and T in respect of OSM 3 because of their invalid objections. The fact that J and T had objected to OSM 3, however, does not deserve costs being ordered against them personally. The question is whether their objection was made in such a manner which unnecessarily protracted the proceedings such as to make it unfair for W’s legal costs incurred in OSM 3 to be borne by P. In this regard, flowing from my finding that W was always at the periphery of the litigation, I am not of the view that J and T’s objection to OSM 3 had unduly complicated proceedings. If anything, their objection was simply a necessary corollary of the positions which they sought to advance by their own applications in OSM 2 and OSM 4, for which the appropriate costs orders would be made in favour of W in fixing costs for those applications.

Costs

Finally, I turn to the quantum of costs for the Deputyship Applications. I begin with OSM 3, for which I have decided that P should bear the costs. W submits that a sum of $35,000 is appropriate, relying on the need to review the objections of J and T. In view of my decision above (at [15]) that these matters are best addressed when determining the quantum of costs for OSM 2 and OSM 4, I am of the view that a sum of $20,000 inclusive of disbursements is reasonable in the circumstances to be paid by P’s estate to W.

Costs

Turning to OSM 2 and OSM 4, I am of the view that a single costs order as between J and T would be appropriate given that the submissions filed and evidence adduced show that they are very much cross-applications along the same lines of contention. Ms Lim submits that costs should be fixed at $100,000 all in to be paid by T to J, while Ms Oei submits that no order be made as to costs between T and J.

Costs

Flowing from my holding on the “event” in respect of the Deputyship Applications (at [7]) I am unable to agree with Ms Oei that no order should be made as to costs. That said, I find that $100,000 is excessive considering that physical cross-examination was, rightly, dispensed with, and parties generally ran symmetrical cases. In the circumstances, I am of the view that a sum of $40,000 to be paid by T to J is reasonable for the costs of OSM 2 and OSM 4 as between J and T.

Costs

Lastly, I accept that costs were incurred by W in defending against OSM 4, for which P’s estate should not have to bear the costs. Ms Hu says that a sum of $25,000 is appropriate, while Ms Oei urged me to fix costs at $7,500. W’s costs of defending OSM 4 should not be lower than the costs of the LPA Revocation Application, which is factually and procedurally less complex than OSM 4. However, I do not think $25,000 as submitted by Ms Hu is appropriate either. In the circumstances, it would be fair for costs of $12,000 to be paid by T to W, and I so order.

Costs

In summary, I make the following costs orders:

Costs

No order is made as to the costs of this hearing for the determination of the costs of the Applications.