“Justice Pillai directed both parties to submit their findings on whether there are exceptions to the general rule that the losing party pays the winning party in such cases. The justice further instructed both counsels to research Australia, New Zealand and United Kingdom judicial precedents to learn if there are common law principals developed towards such an exception.”
(See TRE article at http://www.tremeritus.com/2012/10/08/ag-seeks-costs-against-mdm-vellama/)
Presumably the Justice has reserved judgment, as the hearing was supposed to have taken place on 16th October and as yet there has been no news on his ruling. Perhaps I’m too fussy, but the TRE editor who wrote the above paragraph does not appreciate the difference between “principal” (as in main or major) and “principle”
While we wait with abated breath for Pillai’s judgment, for those who crave instant gratification, I can tell you now what is the UK and Canadian position. Anyone can do the research by simply Googling protective cost order (“PCO”) and viola you have access to legal research from the First World of which Singapore is not yet a part in spite of all the empty boasts from you know who.
The general rule at common law is stated rather colourfully as “costs follow the event”. That is, the successful party can expect a costs award in its favour. The question is how different First World jurisdictions have modified this rule when it comes to public interest litigation.
Small NGOs given a leg up by Eccentric White Men in wigs made of Horse Hair
The leading English decision on PCOs is Corner House Research v Secretary of State for Trade & Industry [2005] EWCA Civ 192. Corner House Research, an anti-corruption group, sought to challenge new regulations issued by the Export Credit and Guarantee Department (ECGD), on the basis that the new guidelines had been prepared with inadequate public consultation (as required by the ECGD’s own policy). Corner House could not risk being liable for the defendant’s costs if their action failed. They therefore made an application for a PCO, seeking protection on the basis that if they lost, there would be no order for costs against them, but if they were successful, they would recover their costs from the defendant. At first instance, Davis J refused to grant a PCO. Corner House appealed successfully to the Court of Appeal.
Lord Phillips stated:
“We would therefore restate the governing principles in these terms:
1. A PCO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:
i) The issues raised are of general public importance;
ii) The public interest requires that those issues should be resolved;
iii) The applicant has no private interest in the outcome of the case;
iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;
v) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
2. If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.
3. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.”
So it seems in Madam V’s by-election case, all the requirements are satisfied and Pillai may grant a PCO. That is, if he decides to follow the enlightened men in wigs made of horse hair who have adapted the rules of common law to suit modern conditions in their First World country.
Lord Phillip went on to list the types of PCOs that had been made:
1) A case where the claimant’s lawyers were acting pro bono and the effect of the PCO was to prescribe in advance that there would be no order as to costs in the substantive proceedings whatever the outcome (Rufugee Legal Centre v Secretary of State for the Home Department (2004) 136 LGERA 365);
2) A case where the claimants were expecting to have their reasonable costs reimbursed in full if they won, but sought an order capping (at GBP 25,000) their maximum liability for costs if they lost (Campaign for Nuclear Disarmament v Prime Minister & Others [2002] E’NHC 2723 (Admin));
3) A case similar to (2) except that the claimants sought an order to the effect that there would be no order as to costs if they lost (R v Lord Chancellor ex parte Child Poverty Action Group (1998) EWHC Admin 151);
4) The Corner House case itself where the claimants are bringing the proceedings with the benefit of a conditional fee agreement (“CFA”), which is otherwise identical to (3). This last example is not applicable to Singapore as CFAs are illegal here.
Finally, the Court of Appeal observed that it anticipated the rules set out in Corner House would be formalised and placed in the Civil Procedure Rules in the future. This has not yet occurred, but has not prevented the English courts from continuing to serve the interests of justice by awarding PCOs in deserving cases.
Tree Cutting Red Indians and the Magnanimous Supreme Court of Mapleland
In Canada, for appropriate cases, the courts are prepared to go further. British Columbia (Minister of Forest) v Okanagan Indian Band [2003] SCC 71 concerns a dispute over Aboriginal logging rights. The Okanagan Indian Band were in a long-standing native title dispute with the government of British Columbia. They took to logging in the area claimed. The Ministry of Forests sought an injunction restraining the logging, which was met by an assertion of native title. The Band sought an interim costs order requiring the Crown to pay their legal fees and disbursement UPFRONT prior to any trial. Before the Supreme Court of Canada, the Band succeeded and the Minister was ordered to pay the opposite party’s costs to allow the litigation to proceed.
In the context of Singapore’s by-election case, this would be equivalent to ordering the PAP government to pay Madam V’s legal fees UPFRONT so that she can hire counsel to challenge the Prime Minister’s assertion that he has absolute discretion as to whether or not to call a by-election! Generous indeed.
Delivering the majority judgment in the Okanagan Band case, LeBel J observed:
“The present appeal raises the question of how the principles governing interim costs operate in combination with the special considerations that come into play in cases of public importance. In cases of this nature, as I have indicated above, the more usual purposes of costs awards are often superseded by other policy objectives, notably that of ensuring that ordinary citizens will have access to the courts to determine their constitutional rights and other issues of broad social significance. Furthermore, it is often inherent in the nature of cases of this kind that the issues to be determined are of significance not only to the parties but to the broader community, and as a result the public interest is served by a proper resolution of those issues. In both these respects, public law cases as a class can be distinguished from ordinary civil disputes.”
His Honour then set out three criteria for whether an interim costs award should be made in a public interest case:
1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial. In short, the litigation would be unable to proceed if the order were not made.
2. The claim to be adjudicated is prima facie meritorious: that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.
3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.
Will the Judges of the Supreme Court of Sinkieland be as Enlightened?
I think not. Me thinks they are content to leave us to suffer the effects of having Third World judicial principles and standards while the government controlled media keeps claiming we are a First World country, but let’s see how it goes …
PS: Whenever I use “First World” and “Singapore” together in conversations with Singaporean friends and relatives, it is usually met with the reprieve “My Foot” :*:
Rumpole of the Bailey
* Rumpole is the main character in a British TV series about an ageing London barrister who defends any and all clients (see http://en.wikipedia.org/wiki/Rumpole_of_the_Bailey for more info). The author, who is an NUS law grad living and working abroad, chose this moniker to encourage an interest in legal issues because it does not just affect lawyers and their clients. The everyday layman needs to be informed of his rights and obligations and in the context of the “Little Red Dot” to avoid being talked down to or misled by their highly paid Ministers, including those that don’t have any portfolio, or civil servants with bad attitude and poor knowledge of the laws which they are supposed to be enforcing.
(See TRE article at http://www.tremeritus.com/2012/10/08/ag-seeks-costs-against-mdm-vellama/)
Presumably the Justice has reserved judgment, as the hearing was supposed to have taken place on 16th October and as yet there has been no news on his ruling. Perhaps I’m too fussy, but the TRE editor who wrote the above paragraph does not appreciate the difference between “principal” (as in main or major) and “principle”
While we wait with abated breath for Pillai’s judgment, for those who crave instant gratification, I can tell you now what is the UK and Canadian position. Anyone can do the research by simply Googling protective cost order (“PCO”) and viola you have access to legal research from the First World of which Singapore is not yet a part in spite of all the empty boasts from you know who.
The general rule at common law is stated rather colourfully as “costs follow the event”. That is, the successful party can expect a costs award in its favour. The question is how different First World jurisdictions have modified this rule when it comes to public interest litigation.
Small NGOs given a leg up by Eccentric White Men in wigs made of Horse Hair
The leading English decision on PCOs is Corner House Research v Secretary of State for Trade & Industry [2005] EWCA Civ 192. Corner House Research, an anti-corruption group, sought to challenge new regulations issued by the Export Credit and Guarantee Department (ECGD), on the basis that the new guidelines had been prepared with inadequate public consultation (as required by the ECGD’s own policy). Corner House could not risk being liable for the defendant’s costs if their action failed. They therefore made an application for a PCO, seeking protection on the basis that if they lost, there would be no order for costs against them, but if they were successful, they would recover their costs from the defendant. At first instance, Davis J refused to grant a PCO. Corner House appealed successfully to the Court of Appeal.
Lord Phillips stated:
“We would therefore restate the governing principles in these terms:
1. A PCO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:
i) The issues raised are of general public importance;
ii) The public interest requires that those issues should be resolved;
iii) The applicant has no private interest in the outcome of the case;
iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;
v) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
2. If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.
3. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.”
So it seems in Madam V’s by-election case, all the requirements are satisfied and Pillai may grant a PCO. That is, if he decides to follow the enlightened men in wigs made of horse hair who have adapted the rules of common law to suit modern conditions in their First World country.
Lord Phillip went on to list the types of PCOs that had been made:
1) A case where the claimant’s lawyers were acting pro bono and the effect of the PCO was to prescribe in advance that there would be no order as to costs in the substantive proceedings whatever the outcome (Rufugee Legal Centre v Secretary of State for the Home Department (2004) 136 LGERA 365);
2) A case where the claimants were expecting to have their reasonable costs reimbursed in full if they won, but sought an order capping (at GBP 25,000) their maximum liability for costs if they lost (Campaign for Nuclear Disarmament v Prime Minister & Others [2002] E’NHC 2723 (Admin));
3) A case similar to (2) except that the claimants sought an order to the effect that there would be no order as to costs if they lost (R v Lord Chancellor ex parte Child Poverty Action Group (1998) EWHC Admin 151);
4) The Corner House case itself where the claimants are bringing the proceedings with the benefit of a conditional fee agreement (“CFA”), which is otherwise identical to (3). This last example is not applicable to Singapore as CFAs are illegal here.
Finally, the Court of Appeal observed that it anticipated the rules set out in Corner House would be formalised and placed in the Civil Procedure Rules in the future. This has not yet occurred, but has not prevented the English courts from continuing to serve the interests of justice by awarding PCOs in deserving cases.
Tree Cutting Red Indians and the Magnanimous Supreme Court of Mapleland
In Canada, for appropriate cases, the courts are prepared to go further. British Columbia (Minister of Forest) v Okanagan Indian Band [2003] SCC 71 concerns a dispute over Aboriginal logging rights. The Okanagan Indian Band were in a long-standing native title dispute with the government of British Columbia. They took to logging in the area claimed. The Ministry of Forests sought an injunction restraining the logging, which was met by an assertion of native title. The Band sought an interim costs order requiring the Crown to pay their legal fees and disbursement UPFRONT prior to any trial. Before the Supreme Court of Canada, the Band succeeded and the Minister was ordered to pay the opposite party’s costs to allow the litigation to proceed.
In the context of Singapore’s by-election case, this would be equivalent to ordering the PAP government to pay Madam V’s legal fees UPFRONT so that she can hire counsel to challenge the Prime Minister’s assertion that he has absolute discretion as to whether or not to call a by-election! Generous indeed.
Delivering the majority judgment in the Okanagan Band case, LeBel J observed:
“The present appeal raises the question of how the principles governing interim costs operate in combination with the special considerations that come into play in cases of public importance. In cases of this nature, as I have indicated above, the more usual purposes of costs awards are often superseded by other policy objectives, notably that of ensuring that ordinary citizens will have access to the courts to determine their constitutional rights and other issues of broad social significance. Furthermore, it is often inherent in the nature of cases of this kind that the issues to be determined are of significance not only to the parties but to the broader community, and as a result the public interest is served by a proper resolution of those issues. In both these respects, public law cases as a class can be distinguished from ordinary civil disputes.”
His Honour then set out three criteria for whether an interim costs award should be made in a public interest case:
1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial. In short, the litigation would be unable to proceed if the order were not made.
2. The claim to be adjudicated is prima facie meritorious: that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.
3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.
Will the Judges of the Supreme Court of Sinkieland be as Enlightened?
I think not. Me thinks they are content to leave us to suffer the effects of having Third World judicial principles and standards while the government controlled media keeps claiming we are a First World country, but let’s see how it goes …
PS: Whenever I use “First World” and “Singapore” together in conversations with Singaporean friends and relatives, it is usually met with the reprieve “My Foot” :*:
Rumpole of the Bailey
* Rumpole is the main character in a British TV series about an ageing London barrister who defends any and all clients (see http://en.wikipedia.org/wiki/Rumpole_of_the_Bailey for more info). The author, who is an NUS law grad living and working abroad, chose this moniker to encourage an interest in legal issues because it does not just affect lawyers and their clients. The everyday layman needs to be informed of his rights and obligations and in the context of the “Little Red Dot” to avoid being talked down to or misled by their highly paid Ministers, including those that don’t have any portfolio, or civil servants with bad attitude and poor knowledge of the laws which they are supposed to be enforcing.
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