Nagaenthran a/l K Dharmalingam v Attorney-General and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 26 May 2022
• Neutral Citation: [2022] SGCA 44
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 61 of 2021 and Criminal Motion No 30 of 2021
• Published date: 01 June 2022
• Year: 2022
• Hearing Date: 25 May 2022
• Plaintiff Counsel: The appellant in CA/CA 61/2021 and applicant in CA/CM 30/2021 not in attendance and unrepresented
• Defendant Counsel: Wong Woon Kwong, Tan Wee Hao and Andre Chong (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Compensation and costs,Prosecution urging court to make costs order against defence counsel personally,Civil Procedure,Costs,Personal liability of solicitor for costs
• Citation: [2022] SGCA 44

Sundaresh Menon CJ (delivering the judgment of the court ex tempore): Introduction

On 29 March 2022, the Court of Appeal (“the CA”) dismissed both Civil Appeal No 61 of 2021 (“CA 61”) and Criminal Motion No 30 of 2021 (“CM 30”) in Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] SGCA 26 (“the Judgment”). In the Judgment at [70], the CA gave leave to the parties to raise by notice in writing any question of costs within seven days of the date of the Judgment. On 12 April 2022, the CA directed, among other things, that (a) the Attorney-General’s Chambers (“AGC”) was to file and serve its written submissions on costs by 26 April 2022, and (b) Ms L F Violet Netto (“Ms Netto”) and Mr Ravi s/o Madasamy (“Mr Ravi”) were to file and serve their reply written submissions on costs within two weeks from the filing and service of AGC’s submission on costs.

By way of its written submissions dated 26 April 2022, AGC sought personal costs orders against both Mr Ravi and Ms Netto as follows: In respect of CA 61, Mr Ravi and Ms Netto are to be jointly and severally liable for costs of $30,000; and In respect of CM 30, Mr Ravi and Ms Netto are to be jointly and severally liable for costs of $10,000.

On 12 May 2022, Mr Ravi filed a document entitled “Applicant’s Submissions on Costs”. On the same day, AGC stated that it had no objections to the late filing of Mr Ravi’s submissions. In the said document, Mr Ravi purported to submit, on behalf of Ms Netto and himself, that it is not just, in all the circumstances, to order personal costs against Ms Netto and him. Mr Ravi also stated that “a separate consideration should apply to [Ms Netto]”, though it is not clear what Mr Ravi meant by this. On 13 May 2022, we directed that (a) Ms Netto was to confirm that the submissions were filed on her behalf, and (b) Mr Ravi was to state the basis on which he purported to file the submissions on behalf of Ms Netto by 18 May 2022. On 18 May 2022, Ms Netto clarified by way of letter that the submissions were filed in Mr Ravi’s personal capacity and not on her behalf.

At the hearing before us today, Ms Netto appeared some ten minutes or so after we had started the proceedings. Shortly before the hearing, she had tendered a medical certificate which was not valid for excusing the subject of the certificate from attendance in court. This was issued yesterday but for unknown reasons was only advanced today. In any event, she made it clear she was not requesting an adjournment and said only that she was associating herself with Mr Ravi’s position.

Our decision

In our judgment, this is an appropriate case in which personal costs orders ought to be made against both Mr Ravi and Ms Netto.

We begin by setting out the legal principles pertaining to personal costs orders against counsel.

For CA 61, the relevant provision is O 59 r 8(1)(c) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”). This provision empowers the court to order costs against solicitors personally where costs have been incurred “unreasonably or improperly” in any proceedings or have been “wasted by failure to conduct proceedings with reasonable competence and expedition”. As summarised most recently by the CA in Munshi Rasal v Enlighten Furniture Decoration Co Pte Ltd [2021] 1 SLR 1277 (“Munshi Rasal”) at [17]:

… The applicable test in deciding whether to order costs against a solicitor personally is the three-step test set out by the English Court of Appeal in Ridehalgh v Horsefield [1994] Ch 205 at 231, which has been endorsed by this court in Tang Liang Hong v Lee Kuan Yew and another and other appeals [1997] 3 SLR(R) 576 at [71] and Ho Kon Kim v Lim Gek Kim Betsy and others and another appeal [2001] 3 SLR(R) 220 at [58]: (a) Has the legal representative of whom complaint is made acted improperly, unreasonably or negligently? (b) If so, did such conduct cause the applicant to incur unnecessary costs? (c) If so, is it in all the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs?

In relation to CM 30, the court hearing criminal proceedings has the power under s 357(1)(b) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) or its inherent powers to order that defence counsel pay costs directly to the Prosecution (see the decision of the CA in Abdul Kahar bin Othman v Public Prosecutor [2018] 2 SLR 1394 (“Abdul Kahar”) at [77]–[80]). In Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377 (“Syed Suhail”) at [16], [18]–[19] and [21], the CA found that the principles developed in the context of civil cases, which were outlined at [7] above, were of general application as well, with the ultimate question being whether it was just in all the circumstances to make such a personal costs order.

The approach to be taken to the words “improperly”, “unreasonably” and “negligently” is as follows (see Syed Suhail at [20], citing Ridehalgh v Horsefield [1994] Ch 205 at 232–233):

‘Improper’ … covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that....