CBB v Law Society of Singapore

• Judge: Aedit Abdullah J
• Judgment Date: 19 March 2020
• Neutral Citation: [2020] SGHC 56
• Citation: [2020] SGHC 56
• Defendant Counsel: Tan Wee Kheng Kenneth Michael SC (Kenneth Tan Partnership)
• Published date: 25 March 2020
• Hearing Date: 17 February 2020,15 July 2019
• Plaintiff Counsel: Sarjit Singh Gill SC, Jamal Siddique Peer, Leong Woon Ho and Suah Boon Choong (Shook Lin & Bok LLP)
• Docket Number: Originating Summons No 1382 of 2018
• Court: High Court (Singapore)
• Date: 19 March 2020
• Subject Matter: Costs,Civil Procedure

Aedit Abdullah J: Introduction

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.

The Applicant sought costs,¹ but the Respondent resisted, primarily arguing that no costs should be ordered as it performs a regulatory function.² 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.

Parties’ Arguments The Applicant’s Arguments

The Applicant sought costs of S$30,000 with disbursements of around S$8,000.³ 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 3575.⁴ 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”).⁵

It was held in the main judgment that the administrative decision made by the Council of the Law Society (“Council”) was irrational.⁶ The Applicant relied on this and argued that if the Council had been more prudent with their administrative decision, OS 1382 would not have been commenced.⁷

The Respondent’s ambiguity in its correspondence to the Applicant resulted in the Applicant having to make submission on many unnecessary issues, covering every possible permutation, when these issues could have been narrowed.⁸ Although the Applicant did not succeed on every point, the submissions had to be broad ranging because of the Respondent’s conduct.⁹ The Respondent had also objected to the rolling up of the leave and substantive stages, contrary to clear authority.¹⁰

The Applicant had acted with the public interest at heart, to ensure the investigation of improper conduct.¹¹ The application was pursued because of substantial lapses in the Council’s administrative decision making process, and the disregard it had for the statutory purposes of the disciplinary framework, namely, to maintain high standards and the good reputation of the legal profession.¹²

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.¹³ Further, the Respondent was not performing a public function by defending the Council’s irrational decision.¹⁴ 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 1382.¹⁵ An adverse costs order should be awarded to incentivise appropriate conduct and to discourage behaviour impeding administration of justice.¹⁶ The various cases cited by the Respondent were cited out of context and did not assist it.¹⁷

The Respondent’s Arguments

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”).¹⁸ This was reiterated in Ang Pek San ([3] supra).¹⁹ Furthermore, the Applicant only succeeded in one of the many arguments put forward.²⁰ 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.²¹

The Decision

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.

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.²² 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.

The general approach to 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).

However, in OS 1382, the event was not substantively against the Respondent or in favour of the Applicant. Instead, the main judgment merely granted an order to quash the Council’s decision not to apply for leave, and also an order for the Council to perform its duty. I did not order the Council to seek leave of court to refer the complaint to the Chairman of the Inquiry Panel. Hence, the result of the main judgment was for the complaint to be properly considered by the Council.

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...