Lock Han Chng Jonathan (Jonathan Luo Hancheng) v Goh Jessiline

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 31 December 2007
• Neutral Citation: [2007] SGCA 56
• Docket Number: Civil Appeal No 50 of 2007
• Date: 31 December 2007
• Published date: 13 May 2008
• Year: 2007
• Plaintiff Counsel: Joseph Chen Kok Siang and Joseph Tan Chin Aik (K Ravi Associates)
• Citation: [2007] SGCA 56
• Defendant Counsel: Madan Assomull and Vivian Chew Mong Fei (Assomull & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Referral to Law Society for inquiry,Whether court dispute resolution process contemplating that terms of court-mediated settlement would be embodied in court order,Professional conduct,Recording terms of settlement,Solicitor's exorbitant actions resulting in escalating costs,Legal Profession,District judge sitting as settlement judge in mediation meetings as part of court dispute resolution,Nature of counsel's duty to evaluate client's case,Courts and Jurisdiction,Whether settlement judge having power to make orders of court,Judges

31 December 2007

Chan Sek Keong CJ (delivering the grounds of decision of the court):

1 The present appeal arose out of a minor road traffic accident in which the respondent’s motor car hit the appellant’s motorcycle, causing damage to it. On 15 September 2005, the appellant, through his then solicitor, Mr Andrew J Hanam (“Mr H”) of Clifford Law Corporation, filed Magistrate’s Case No 21830 of 2005, seeking compensation of $375 from the respondent. As the respondent’s insurer (“NTUC Income”), which, incidentally, was also the appellant’s insurer, was not prepared to pay the appellant the amount claimed, the respondent entered appearance and her solicitor, Mr Madan Assomull (“Mr A”) of M/s Assomull & Partners, filed her defence.

2 On 24 October 2005, Mr H made a request to the Subordinate Courts that the dispute be settled by mediation through the court dispute resolution (“CDR”) process. From 11 November 2005, a series of mediation meetings were held at the Primary Dispute Resolution Centre (“PDRC”) (see [25] below) before a district judge (“the Settlement Judge”). On 31 March 2006, at the fourth of these meetings, the parties finally agreed to a settlement under which the appellant was to be paid $187.50 as compensation, with costs fixed at $1,000 as prescribed by Pt V of Appendix 2 of O 59 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) and reasonable disbursements to be taxed or agreed. It was also agreed that a notice of discontinuance would be filed within eight weeks (ie, by 26 May 2006). The Settlement Judge recorded the terms of settlement and, in his minute sheet, circled the printed words “Consent Judgement”.

3 On the same day (ie, 31 March 2006), Mr H wrote to Mr A with reference to “the recorded settlement” and asked for payment of $290.35 for disbursements, the particulars of which were given. The letter concluded:

As for disbursements, let us hear from you on our proposal by 7 April 2006 failing which we shall extract the Order of Court made on 31 March 2006 and proceed for taxation.

4 On 7 April 2006, Mr H forwarded a draft of the order of court made by the Settlement Judge on 31 March 2006 (“the Court Order”) to Mr A for the latter’s endorsement and return. On the same day, Mr A replied to query the claim of $290.35 for disbursements on the ground that Mr H had, in his previous letters, stated different amounts for disbursements, the lowest of which was $230. Mr A asked for time to seek his client’s instructions and concluded his letter thus:

As there is a recorded settlement, and the only outstanding issue is disbursements, it is most unnecessary for you to take out the Court Order. Further, your Court Order is in contradiction to the deadline of 7^th April 2006 which you set yourself.

5 It can be seen from the facts up to this point in the proceedings that, if NTUC Income (the effective payer of the compensation claimed) had offered the appellant a reasonable sum to compensate him for the damage to his motorcycle at the outset, it would not have become liable to pay $1,000 in court fees and also reasonable disbursements. Notwithstanding this, the parties’ solicitors were now reduced to a tussle over a sum of $60.35 (the difference between $290.35 and $230), which NTUC Income was either not prepared to pay or advised not to pay.

6 On 13 April 2006, Mr H sent a draft of the Court Order to the Registrar of the Subordinate Courts (“the Registrar”) for approval, stating that the draft had been sent to Mr A and that “2 clear days had lapsed and [Mr A] still had not replied”. This statement was incorrect as Mr A had replied on 7 April 2006 (see [4] above). It should also be noted that Mr H extracted the Court Order on 17 April 2006, about six weeks before the expiry of the deadline for filing the notice of discontinuance (which, as stated at [2] above, was 26 May 2006).

7 On 2 May 2006, Mr H issued Writ of Seizure and Sale No 2057 of 2006 (“the WSS”) in respect of the amount awarded under the Court Order (“the Settlement Sum”). On 5 May 2006, the parties’ solicitors attended taxation proceedings before a deputy registrar, who taxed the bill of costs filed by Mr H pursuant to the Court Order at $551.75, with goods and services tax (“GST”) of $12.50 for disbursements and allocatur fees of $110, amounting to $674.25 in total.

8 On 16 May 2006, Mr H wrote to Mr A enclosing the draft registrar’s certificate for the sum of $674.25. He demanded payment by 19 May 2006 and stated that, in the event of non-payment, he would proceed with enforcement.

9 On 16 May 2006, Mr A wrote to Mr H and enclosed a cheque for $1,187.50, which was expressed to be “full payment for damages and costs in the above matter”. It should be noted that this was an unconditional payment. On the same day, Mr H replied, noting that the payment did not cover the costs of the execution proceedings and threatening to proceed with execution to recover those costs if they were not paid by 18 May 2006.

10 On 17 May 2006, Mr A wrote to Mr H as follows:

We received both your letters only this morning and will write to our clients to make payment for the sums you have mentioned. Reasonable time must be given for our clients’ [sic] to effect payment. Since your letter was only received this morning the 19^th [of] May 2006 is not a reasonable deadline.

No figure has been given for the costs of execution. Therefore, it will not be possible for our clients’ [sic] to make payment in that regard. Any payment made for the execution proceeding is made under protest and pending any other action our clients’ [sic] may instruct us to take in this case.

As we informed you earlier, there can be no Order of Court for a recorded settlement for this purpose. This is NOT a Consent Judgment.

[underlining in original]

11 Mr H responded on 18 May 2006, enclosing a breakdown of the costs of the execution proceedings, which amounted to $800.80. He gave the respondent until 22 May 2006 to make “full payment [of] the taxed costs and the costs of execution”, and stated that he would proceed as he saw fit if payment was not forthcoming by that date.

12 On 23 May 2006, Mr A sent Mr H a further cheque for $1,475.05, being “the costs for taxed disbursements and costs of execution proceedings”, and stated that “[his] clients reserve[d] all their rights in this matter despite making payment”. After receiving this payment, Mr H forwarded a copy of the notice of discontinuance to Mr A.

13 As can be seen from the above facts, a tussle between the parties’ solicitors over $60.35 had, by that stage, increased the respondent’s expenses by an additional $1,475.05 without taking into account the fees which the parties would have to pay to their respective solicitors in the absence of an agreement to the contrary.

14 On 23 June 2006, the respondent filed Summons No 8949 of 2006 (“SUM 8949/06”) to set aside the WSS. At a hearing before a deputy registrar (“the Deputy Registrar”) on 8 August 2006, Mr A argued that the Court Order was not a consent order but a “recorded settlement”, and that the WSS had thus been improperly issued as writs of seizure and sale had to be based on a judgment or an order of the court. The Deputy Registrar adjourned the matter with these remarks:

It might be useful to have the point clarified with CDR [meaning, in this context, the PDRC], ie whether a settlement reached at CDR properly forms an Order of Court. That CDR Judges have the power to make orders is clear. Whether [the Settlement Judge] did so in this case is being disputed by the Defence.

15 On 28 August 2006, the respondent made an ex parte application in Summons No 12389 of 2006 (“SUM 12389/06”) to amend the prayers in SUM 8949/06 by including a prayer for the Court Order to be set aside. This was followed by an inter partes application by the respondent on 31 August 2006, via Summons No 12650 of 2006 (“SUM 12650/06”), to amend SUM 8949/06 in the same manner.

16 The parties appeared before District Judge Rahim Jalil, sitting in the PDRC, on 1 September 2006 for a determination of the issue of whether an order of court had been made on 31 March 2006. The district judge adjourned the matter until 11 September 2006, when he confirmed that an order of court had been issued. The parties next appeared before the Deputy Registrar on 12 September 2006 and updated him on the PDRC’s clarification. The Deputy Registrar thereupon heard all three summonses (viz, SUM 8949/06, SUM 12389/06 and SUM 12650/06) and dismissed all of them. The respondent appealed against the Deputy Registrar’s decision to a district judge in chambers; that appeal was dismissed on 20 October 2006. On 27 October 2006, the respondent applied (in the Subordinate Courts) for leave to appeal to the High Court in respect of the district judge’s decision of 20 October 2006 (“the District Judge’s decision”). Leave was refused on 8 November 2006.

17 On 16 November 2006, the respondent filed Originating Summons No 2141 of 2006 (“OS 2141/06”) in the High Court for leave to appeal to the High Court against the District Judge’s decision. In the supporting affidavit for that application, it was argued that there was a serious and important issue to be decided, viz, the question of whether a district judge acting as a mediator under the CDR process (hereinafter referred to as a “CDR settlement judge”) had the jurisdiction or power to make a court order binding the parties following a settlement reached via CDR (“court-mediated settlement”). Leave to appeal was granted.

18 The substantive appeal against the District Judge’s decision, which was Registrar’s Appeal from the Subordinate Courts No 17 of 2007 (“RAS 17/07”), was heard on 4 April 2007, and written grounds were issued on 27 April 2007: see Lock Han Chng Jonathan v Goh Jessiline [2007] 3 SLR 51. The judge (“the Judge”) allowed the respondent’s appeal and reversed the District Judge’s decision on the ground that, when a court-mediated settlement had been reached, a...