JBB v JBA

• Jurisdiction: Singapore
• Judge: Debbie Ong JC
• Judgment Date: 29 July 2015
• Neutral Citation: [2015] SGHCF 6
• Plaintiff Counsel: Mahadevan Lukshumayeh (S T Chelvan & Company)
• Docket Number: District Court Appeal from the Family Courts No [X]
• Date: 29 July 2015
• Hearing Date: 14 April 2015,06 July 2015,10 April 2015
• Subject Matter: Civil Procedure-Costs in matrimonial proceedings
• Published date: 07 August 2015
• Citation: [2015] SGHCF 6
• Defendant Counsel: Sandra Segeram Mahendra (Segeram & Co)
• Court: High Court (Singapore)
• Year: 2015

Debbie Ong JC: Introduction

This matter concerned costs in matrimonial proceedings. I had earlier dismissed the husband’s appeal against the grant of an interim judgment of divorce. I decided to reserve judgment on the issue of costs as the submissions on it were relatively substantial and both sides had argued their respective cases rather passionately. Having considered the matter, on 6 July 2015, I awarded costs of the appeal fixed at $2,000, inclusive of disbursements, to the wife. I now give the reasons for my decision as well as my views on the issue of costs in matrimonial proceedings.

Background facts

The parties were married in Singapore on 17 November 1994. In October 2012, the wife (“the Wife”) commenced divorce proceedings based on the fact that the parties had lived apart for a continuous period of at least four years immediately preceding the filing of the writ (see s 95(3)(e) of the Women’s Charter (Cap 353, 2009 Rev Ed)). This was challenged by the husband (“the Husband”), and in May 2013, the Wife amended her writ to rely on the fact that the Husband had behaved in such a way that she could not reasonably be expected to live with him (see s 95(3)(b) of the Women’s Charter). The Husband filed a defence to contest the Wife’s case.

The hearing lasted a number of days and in October 2014, the district judge (“the District Judge”) granted an interim judgment of divorce and ordered that parties bear their own costs. The Husband appealed against the decision of the District Judge in granting the interim judgment of divorce. I dismissed the appeal.

I proceeded to hear submissions on costs. The parties’ respective submissions can be summarised as follows: the Wife contended that costs should follow the event and there is no reason why there should be a different approach in matrimonial cases, while the Husband argued that there should generally be no order as to costs in matrimonial cases. I reserved judgment to mull over the issue. Having done so, I ordered the Husband to pay the Wife costs of the appeal fixed at $2,000, inclusive of disbursements. The Wife had asked for costs of the hearing below, but I did not disturb the District Judge’s order on costs. I will explain the reasons for my decision below, but before that, I think it would be helpful to state my views on the court’s discretion in the awarding of costs in matrimonial proceedings.

The law on award of costs Costs in general

The award of costs is a matter in the court’s discretion. The broad discretion of the courts in relation to costs was reiterated by the Court of Appeal in Aurol Anthony Sabastian v Sembcorp Marine Ltd [2013] 2 SLR 246 (“Aurol”) (at [103]–[104]): 103 … The power to award costs is fundamentally and essentially one that is discretionary. Even though the general principle is for costs to follow the event, the overriding concern of the court must be to exercise its discretion to achieve the fairest allocation of costs ... 104 The court has a very wide discretion in determining what the fairest allocation of costs is and in this regard it is not confined to considering the particular outcome of the litigation. ...

In BMG v BMH [2014] SGHC 112 (“BMG”), Choo Han Teck J observed that although the principle that “costs follow the event” is “uncontroversial as a general guiding principle, it is wholly misleading to extend it to one where ‘costs must always follow the event’” given that the matter of costs is “first and foremost, within the discretion of the court” (at [9]).

The rationale underlying the general principle that costs should follow the event has been explained in recent cases. In the decision of the Court of Appeal in Maryani Sadeli v Arjun Permanand Samtani and another and other appeals [2015] 1 SLR 496, Andrew Phang Boon Leong JA observed (at [30] and [32]): 30 One fundamental aspect of our scheme of costs recovery is a cost-shifting rule which dictates that the successful litigant is ordinarily indemnified by the losing party for the legal costs incurred as between the successful party and his solicitor. This is commonly referred to as the principle that costs should generally follow the event ...

…

32 The Judge explained that this was a result of the policy considerations which inform the indemnity principle. As the Judge aptly observed, “while compensation is the immediate effect of applying the indemnity principle, the ultimate policy of the indemnity principle is rooted not in compensation but in enhancing access to justice” …. We also agree with the Judge’s elaboration on two further (albeit “subordinate”) policies of our law on costs which centre on the need to achieve finality in litigation as well as the need to suppress parasitic litigation (at [179]–[182] and [183] of the Judgment, respectively).

[original emphasis in italics, emphasis added in bold italics]

The explanation by Vinodh Coomaraswamy J in Then Khek Koon and another v Arjun Permanand Samtani and another and other suits [2014] 1 SLR 245 (“Then Khek Koon”) for the rationale of the principle is also illuminating (at [155]–[156]): 155 The indemnity principle makes the vindicated winner whole for the costs of what he has shown, by the court’s judgment, to be unmeritorious litigation. It therefore serves to compensate the winner, rather than to punish the loser for his original wrongdoing…. 156 In that sense, it could be said that the indemnity principle achieves the same compensatory function as an award of compensation under the substantive law. But while compensation is the immediate effect of applying the indemnity principle, the ultimate policy of the indemnity principle is rooted not in compensation but in enhancing access to justice. The indemnity principle facilitates a meritorious litigant’s pursuit of justice by ensuring retrospectively that he attains justice at his opponent’s expense rather than his own. …

Thus, costs are generally ordered to follow the event because a successful party has had to institute proceedings in order to obtain what he deserved. Since the other party’s conduct necessitated the litigation, it is fair that he bears the costs of the litigation.

Costs in matrimonial proceedings under the Family Justice Rules 2014 (S 813/2014) (“FJR”)

The Family Justice Courts (which comprises the Family Division of the High Court, the Family Courts and the Youth Courts (see s 3 of the Family Justice Act 2014 (Act 27 of 2014)) have the “full power” to determine the issue of costs, which is a matter in the discretion of the court, subject to the “express provisions of any written law and of [the FJR]” (see r 851(2) of the FJR). In this regard, r 852(2) of the FJR states that costs should “follow the event” except where the court considers that “in the circumstances of the case some other order should be made as to the whole or any part of the costs”. The FJR further stipulates other considerations that the courts ought to take into account when awarding costs, including: any payment of money into court and the amount of such payment (see r 854(a) of the FJR); the conduct of all the parties, including conduct before and during the proceedings (see r 854(b) of the FJR); the parties’ conduct in relation to any attempt at resolving the cause or matter by mediation or any other means of dispute resolution (see r 854(c) of the FJR); the extent to which the parties have followed any relevant pre-action protocol or practice directions (see r 854(d) of the FJR; see, in particular, paras 20(8), 38(1)(b), 88(5), 90(8)(e), 90(10), 90(12)(f), 112 and 125(10) of the Family Justice Courts Practice Directions 2015); the party’s failure to establish any claim or issue which he has raised in any proceedings, and has thereby unnecessarily or unreasonably protracted, or added to the costs or complexity of, those proceedings (see r 856 of the FJR); and anything done or omission made unreasonably or improperly by or on behalf of any party (see r 857 of the FJR). I note that these considerations are matters that relate to the conduct of the parties in the legal proceedings.

Two Court of Appeal decisions in the nineties on costs in matrimonial proceedings

There have been a number of cases where the issue of costs in matrimonial proceedings was discussed. Two notable Court of Appeal decisions in the 1990s have given guidance to the issue. In Shi Fang v Koh Pee Huat [1996] 1 SLR(R) 906 (“Shi Fang”), the wife was granted a decree nisi on the ground that the marriage had irretrievably broken down owing to the husband’s desertion. The Court of Appeal explained that there was no reason why the wife should not be entitled to the full costs of the hearing of the divorce petition, and as the hearing of the ancillary matters was a continuation or part of the hearing of the divorce petition, the wife should also be entitled to the costs of such proceedings (at [56]).

In Tham Khai Meng v Nam Wen Jet Bernadette [1997] 1 SLR(R) 336 (“Bernadette”), the wife was granted a decree nisi on the ground that the marriage had irretrievably broken down due to the adultery committed by the husband. The wife’s petition based on the husband’s unreasonable behaviour, the husband’s cross-petition based on the wife’s unreasonable behaviour and the wife’s supplemental petition based on the husband’s adultery, were contested when it came on for hearing. On the day of the hearing itself, the husband agreed not to contest the supplemental petition and withdrew his cross-petition. A decree nisi was accordingly granted on the wife’s supplemental petition based on the husband’s admitted adultery with costs awarded to the wife. The Court of Appeal explained (at [49]–[50]): 49 .... The wife was granted the decree nisi on the ground that the marriage had irretrievably broken down owing to adultery committed by the husband. In granting the decree nisi the court below awarded to the wife...