Singapore Medical Council v Shorvon Simon

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 09 May 2005
• Neutral Citation: [2005] SGHC 93
• Plaintiff Counsel: Melanie Ho and Chang Man Phing (Harry Elias Partnership)
• Published date: 10 May 2005
• Court: High Court (Singapore)
• Defendant Counsel: Myint Soe and Daniel Atticus Xu (MyintSoe and Selvaraj)
• Subject Matter: Civil Procedure,Costs,Taxation,Proceedings by Disciplinary Committee of Singapore Medical Council against research scientist,Research scientist ordered to pay costs and expenses of and incidental to disciplinary proceedings,Whether quantum of costs awarded by assistant registrar correct,Whether costs should be awarded on per-trial day basis,Professions,Medical profession and practice,Professional conduct,Whether costs should be awarded for work relating to advice at complaint stage,Whether costs of disciplinary proceedings to be taxed as if proceedings were trials

9 May 2005

Tay Yong Kwang J:

The taxation of costs

1 At the conclusion of an inquiry by the Disciplinary Committee of the Singapore Medical Council (“SMC”) against Prof Simon Shorvon (“the Professor”) under the provisions of the Medical Registration Act (Cap 174, 1998 Rev Ed) (“the Act”) in February 2004, the costs of the SMC were ordered to be taxed pursuant to ss 45(4) and 45(5) of the Act. These provisions state:

(4) A Disciplinary Committee may under subsection (2) order the registered medical practitioner concerned to pay to the Medical Council such sums as it thinks fit in respect of costs and expenses of and incidental to any proceedings before the Disciplinary Committee and, where, applicable, an Interim Orders Committee.

(5) The High Court shall have jurisdiction to tax such costs referred to in subsection (4) and any such order for costs made shall be enforceable as if it were ordered in connection with a civil action in the High Court.

The Disciplinary Committee ordered the Professor to pay the costs and expenses of and incidental to the proceedings, including the costs and expenses of the counsel for the SMC and the Legal Assessor.

2 On 15 February 2005, the SMC’s bill of costs was taxed by an assistant registrar (“the AR”). Both parties were dissatisfied with the AR’s decision and hence made the cross-applications before me seeking a review of her decision. The Professor sought a downward revision of the amount of $250,000 allowed under section 1 of the bill of costs and the amount of $50,100 allowed in respect of the Legal Assessor (Mr Chelva Rajah SC) under section 3 of the said bill while the SMC confined its application to a review of the said amount of $250,000.

3 On 30 March 2005, I heard and dismissed both cross-applications and ordered each party to bear its own costs for the review before me. At the conclusion of the hearing that day, Dr Myint Soe, counsel for the Professor, made an oral application for leave to appeal to the Court of Appeal as s 34 (2)( b) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) provides that no appeal shall be brought to the Court of Appeal where the only issue in the appeal relates to costs, except with the leave of the Court of Appeal or a judge. I informed Dr Myint Soe to make a formal application stating the grounds why such leave should be granted in this case.

The application for leave to appeal to the Court of Appeal

4 Counsel for the Professor subsequently filed an application for leave to appeal in respect of the amount of $250,000 only. However, the application was not placed before me. Instead, it was placed in the list of applications to be heard by a judge in chambers on a summons day. Order 56 r 3(1) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) provides:

A party applying for leave under section 34 of the Supreme Court of Judicature Act to appeal against an order made, or a judgment given, by a Judge must file his application —

(a) to the Judge within 7 days of the order or judgment; and

(b) in the event leave is refused by the Judge, to the Court of Appeal within 7 days of the refusal.

The parties should therefore have requested that the application for leave to appeal be heard by me.

5 The Professor’s application came on for hearing before Judith Prakash J on 18 April 2005 and leave to appeal was granted by the judge after hearing arguments on the merits by the parties. The procedural issue mentioned by me above did not appear to have been argued by the parties.

6 The appeal by the Professor is confined to the said amount of $250,000 only.

The facts

7 The Professor faced 30 charges of professional misconduct in the inquiry. They arose from the conduct of a research project known as “A Study of Haplotype Structure and SNPs Frequencies in Candidate Genes associated with Neurological Diseases and Drug Response: Biomedical Research Council (“BMRC”) for Neurological and Population Genetics” (“the project”). The project was funded with a grant of $10m over a five-year period. The Professor was the principal investigator of the project and it was his involvement in the conduct of the Parkinson’s disease portion of the project, where research was conducted on patients with that disease, that was relevant to the inquiry.

8 The 30 charges were categorised into four main types. The 13 “best interest charges” involved 13 patients with their particular circumstances and alleged that the Professor had failed on various dates between September and December 2002 to safeguard the best interests and health of the patients and that he exposed them to unnecessary risks. The patients’ medication was omitted and/or modified for the purpose of “on-off” L-Dopa (or Levodopa, a drug used to treat patients with Parkinson’s disease) testing without a competent assessment made by the patients’ respective managing physicians or other clinically competent medical persons as to the patients’ suitability for the test and without having instituted proper safeguards.

9 The second set of charges alleged that the Professor failed to obtain the patients’ informed consent prior to carrying out the “on-off” L-Dopa testing. These fell within the category of the “informed consent charges”. The same 13 patients were involved.

10 The third set of charges alleged that the Professor failed to obtain ethics approval for the said testing that was carried out as part of the project. These two “ethics approval charges” concerned the Professor’s failure to obtain the requisite approval from the Tan Tock Seng Hospital Ethics Committee and the Singapore General Hospital Ethics Committee.

11 The final set of two “confidentiality charges” alleged that the Professor breached the patients’ rights to medical confidentiality by obtaining their medical data and records from the Tan Tock Seng Hospital and the Singapore General Hospital pharmacies without their consent and using such information for the project which was unconnected with the patients’ treatment.

12 From the outset of the inquiry, the Professor, through the UK Medical Protection Society, took the position that the SMC had no jurisdiction over him. He argued that he had resigned from the register of medical practitioners in Singapore and should no longer be on the said register when the complaint was made. The position of the SMC was that the misconduct took place while the Professor was still on the register. He did not attend the inquiry and was not represented during the proceedings. However, he requested that his earlier position on jurisdiction be made known to the Disciplinary Committee. Counsel for the SMC obliged and the submissions on the preliminary issue of jurisdiction took one and a half days, with the SMC having to present arguments from both sides on this issue. This was followed by the inquiry into the merits of the charges.

13 The Disciplinary Committee usually sat from about 2.00pm until the evening, sometimes up to 9.00pm. After a nine-day hearing, the Disciplinary Committee adjourned for three days to consider its decision. It then gave its decision, contained in a 22-page document, over an hour or so on the tenth day of the inquiry. For the first two sets of charges involving the 13 patients, the Disciplinary Committee ordered that the Professor be censured, that he give an undertaking and be fined $5,000 on each charge. It also ordered that his name be removed from the register of medical practitioners. For the remaining four charges, it ordered that the Professor be censured, that he give an undertaking and be fined $5,000 on each charge.

14 As a consequence of a subsequent ruling in respect of another medical practitioner by the court of three judges under the Act (Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151), the SMC then applied to court for the total fine imposed on the Professor to be reduced to $10,000.

15 At the taxation before the AR, the SMC claimed $450,000 as costs for work done for and during the inquiry but not including the taxation. The AR reduced this amount to $250,000. Counsel for the SMC urged me to allow the amount as claimed while counsel for the Professor submitted that no more than $108,000 should be allowed.

The decision of the court

16 In assessing the amount of costs to be awarded, the court has to consider all the circumstances of the case, including the factors spelt out in Appendix 1 of O 59 of the Rules of Court. These factors are:

(a) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved;

(b) the skill, specialised knowledge and responsibility required of, and the time and labour expended by, the solicitor;

(c) the number and importance of the documents (however brief) prepared or perused;

(d) the place and circumstances in which the business involved is transacted;

(e) the urgency and importance of the cause or matter to the client; and

(f) where money or property is involved, its amount or value.

17 A judge hearing an application for review of taxation of costs under O 59 rr 34 and 35 hears the matter de novo and is not fettered by the discretion exercised by the Registrar. The judge may substitute his discretion for that of the Registrar although, in making his decision, he should give due weight to the Registrar’s decision on the quantum that was allowed (Tan Boon Hai v Lee Ah Fong [2002] 1 SLR 10 at [31]). This decision of the Court of Appeal on what was then O 59 r 36 is not affected by the amendments made to the review of taxation procedure on 15 April 2002.

18 This case was the first one involving disciplinary proceedings against a research scientist as...