Deepak Sharma v Law Society of Singapore

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA,Judith Prakash JA,Tay Yong Kwang JA
• Judgment Date: 13 July 2017
• Neutral Citation: [2017] SGCA 43
• Published date: 20 July 2017
• Date: 13 July 2017
• Year: 2017
• Hearing Date: 04 May 2017
• Plaintiff Counsel: Abraham S Vergis and Danny Quah (Providence Law Asia LLC)
• Defendant Counsel: Christopher Anand Daniel and Harjean Kaur (Advocatus Law LLP),Khoo Boo Jin, Sivakumar Ramasamy and Jamie Pang (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 43
• Docket Number: Civil Appeal No 82 of 2016

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

This is our judgment on costs following our dismissal of an appeal against a decision of the High Court which rejected an application by Mr Deepak Sharma (“the Appellant”) for judicial review. The Appellant had sought a quashing order against a decision of a review committee of the Law Society of Singapore (“the Respondent”) on the basis that the review committee’s decision to dismiss the Appellant’s complaint against two lawyers contained errors of law and other deficiencies. The Attorney-General (“the AG”) intervened from the genesis of the proceedings after the Appellant served his ex parte originating summons and supporting documents on the AG as required under O 53 r 1(3) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the Rules of Court”). The AG continued to participate in the proceedings, making both written and oral submissions on various matters, until the dismissal of the appeal. Having arrived at the close of the proceedings, the AG now seeks his costs both here and below from the Appellant.

The AG’s claim against the Appellant for costs raises a novel and difficult question of principle. When the AG intervenes in an application for judicial review that does not involve the Government and/or does not seek to challenge any governmental action or decision (referred to hereafter as “private judicial review”), can the AG subsequently seek an award of costs in his favour as a matter of principle, and if so, in what circumstances and against whom? The answer to this question requires an examination of the role and function of the AG in proceedings of this nature, considered in the light of the general principles and justifications for making an award of party-and-party costs as well as the relevant statutory background.

In our judgment, the principled way forward is to apply a calibrated approach that takes into account the nature and importance of the public function that the AG discharges when he intervenes to make submissions in private judicial review proceedings, but ensures at the same time that liability to pay costs is attributed and apportioned in a fair and controlled manner. It should not be forgotten that the AG’s intervention in the public interest takes place in the context of a private dispute that is personal to the parties, where the mounting costs of litigation are never far from mind.

Background facts

The facts of the dispute between the Appellant and the Respondent are set out comprehensively in the judgment of the High Court (Deepak Sharma v Law Society of Singapore [2016] 4 SLR 192 (“the Judgment (HC)”)) and our decision on appeal (Deepak Sharma v Law Society of Singapore [2017] 1 SLR 862 (“the Judgment (CA)”)). We do not propose to recount the background to the dispute in full, but will describe only those facts and findings that are necessary to provide context to this judgment on costs, which is to be read together with those earlier judgments. For consistency, we will use the same short-form references that we used in the Judgment (CA).

The Appellant’s complaint and the decision thereon

In 2010, a disciplinary committee of the Singapore Medical Council (“the SMC”) commenced disciplinary proceedings against Dr Lim Mey Lee Susan (“Dr Lim”), who is the Appellant’s wife. The disciplinary committee recused itself upon an unopposed application by Dr Lim’s counsel, and the SMC subsequently decided to appoint a second disciplinary committee. Dr Lim filed an application for leave to apply for a quashing order against the SMC’s decision, as well as an application for a declaration that the SMC had no legal right to adduce certain confidential medical records in evidence. The second application was eventually withdrawn and the first was dismissed by the High Court. Dr Lim appealed against the dismissal of the first application, but her appeal was unsuccessful.

The SMC’s lawyers, WongPartnership LLP (“WP”), then sought costs against Dr Lim for her two failed applications and the single unsuccessful appeal. The SMC’s bills of costs were taxed down by an assistant registrar and the SMC applied for a taxation review. During the taxation review, the SMC’s lawyers reduced the SMC’s claim for costs by a substantial amount, explaining that the reduction was necessary to take into account an overlap between lawyers and re-getting up by new lawyers who later joined the team. In the result, the High Court judge (“the Judge”) increased the costs awarded to the SMC from the amount allowed by the assistant registrar.

Following the taxation review, the Appellant sent a letter of complaint to the chairman of the Complaints Panel of the Respondent (ie, the Law Society of Singapore). The Appellant alleged that two of the SMC’s lawyers, Mr Yeo Khirn Hai Alvin SC (“Mr Yeo”) and Ms Ho Pei Shien Melanie (“Ms Ho”), were guilty of “gross overcharging” by submitting bills of costs which were “clearly exorbitant and which … would amount to grossly improper conduct and/or conduct unbecoming as members of an honourable profession”. A review committee (“the RC”) was constituted to consider the complaint. On 10 April 2014, the Respondent sent a letter (“the Decision Letter”) to the Appellant informing him of the RC’s decision. In summary, the RC dismissed the complaint against Mr Yeo in its entirety, but decided that part of the complaint against Ms Ho should be referred to the chairman of the Inquiry Panel to constitute an Inquiry Committee for further inquiry. The RC made two primary findings. First, it considered that “a reduction by the taxing master (Registrar or Judge of the Supreme Court) of the costs claimed[,] even if significant, would not amount to misconduct in the absence of improper or fraudulent claims”. As there was no improper or fraudulent conduct, there was no substance to the complaint that the excessive claim for costs in itself warranted a finding of misconduct. Second, the RC decided that the effective hourly rate reflected in the bills of costs was not excessive because “the amounts in the Bills of Costs reflect[ed] the work of all the solicitors involved”. It found that Mr Yeo was not involved in the preparation of the bills of costs, but that this part of the complaint against Ms Ho was not frivolous, vexatious, misconceived or lacking in substance, and that it would therefore refer this part of the complaint against Ms Ho to the chairman of the Inquiry Panel.

The Appellant’s application for judicial review

The Appellant filed an application for leave to commence judicial review proceedings, seeking to quash the RC’s decision and have his complaint considered by a freshly-constituted review committee. The Appellant raised three grounds in support of his application. First, the RC erred in law in concluding that professional misconduct through “gross overcharging” could not be established “in the absence of other impropriety”. Second, it erred in law in deciding that WP’s pursuit of the amounts in the bills of costs could not constitute misconduct given that they reflected the work of all the lawyers involved. Third, the RC should not have relied on WP’s purported clarification to find that Mr Yeo was not involved in drawing up the bills of costs or the taxation.

The AG intervened and participated in the hearing before the Judge (who also heard the taxation review (see [6] above)). The Judge decided two preliminary issues in favour of the Appellant. First, contrary to the Respondent’s argument in this regard, the RC’s decision was susceptible to judicial review. Second, the Appellant did not have to demonstrate that he had locus standi to make a complaint to the Respondent as there was no such requirement. The AG had argued that the Appellant must show that he had locus standi, which he did not possess: see the Judgment (HC) at [54]. The AG took the position that since the Appellant’s complaint concerned WP’s conduct in the taxation proceedings and the Appellant was a “stranger” to those proceedings (unlike Dr Lim herself), he was not in a position to make the complaint.

Notably, the Respondent was in agreement with the Appellant that no locus standi requirement existed: see the Judgment (HC) at [53]. This meant that the only party who took an objection to the standing of the Appellant was the AG. After considering the relevant provisions of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) and its legislative history, the Judge found that Parliament had intended that any person could make a complaint against a lawyer to the Respondent, and thus rejected the AG’s argument. We observe that the parties’ arguments on these two preliminary issues took up a considerable portion of the hearing before the Judge; indeed, the Judge devoted no fewer than 60 paragraphs of his written grounds to these matters: see the Judgment (HC) at [22]–[81].

In so far as the merits of the Appellant’s allegations against the RC’s decision were concerned, the Judge held that a significant reduction in costs on taxation, without more, would not ordinarily mean that there was gross over-claiming amounting to misconduct, although he accepted that there were certain cases where gross over-claiming alone could constitute misconduct: see the Judgment (HC) at [101]–[104]. He found at [110] that on a proper interpretation of the Decision Letter, the RC had not misstated the correct position in law. On the Appellant’s argument regarding the effective hourly rate of the SMC’s lawyers, the Judge held at [124] that what the RC had meant was that the amounts in WP’s bills of costs reflected not only the hours spent by Mr Yeo and Ms Ho, but also those expended by other lawyers involved in the matter. He explained at [125] that it was not a breach of O 59 r 19 of the Rules of Court (“O 59 r 19”) for a litigant’s bill of costs to contain the number of hours spent by each lawyer who...