Chapter 35 - Costs Flashcards
COSTS
Overview
1) Meaning of costs
2) Main issues on costs
3) Order to costs
4) Entitlement to costs
5) Costs for interlocutory proceedings
6) Assessment for quantum of costs
7) Costs for several parties
8) Costs against non-party
COSTS
Meaning of costs
1) O.59, r.1(1):
- Costs is the sum of money that the (losing) party is ordered to pay the (winning) party as compensation for the expenses that the latter incurred as a result of the litigation.
2) Bangkok Bank Bhd v Chuan Kee Co Sdn Bhd:
- The sum which one litigant pays to another litigant to compensate the latter for the expense which he has incurred in the litigation.
COSTS
Main issues on costs
1) Who is entitled to costs
2) How is quantum of costs to be assessed
ORDER TO COSTS
Overview
1) General rule
2) Discretion of the court
ORDER TO COSTS
General rule
O.59, r.3(1):
- No party is entitled to costs unless order by the Court.
- An order for costs is not as of right but subject to the court’s discretion
ORDER TO COSTS
Discretion of the court
1) O.59, r.3:
Costs to follow event.
2) O.59, r.8:
Special matters for consideration when exercising discretion.
3) O.59, r.16:
Basis of assessment of costs.
4) Exercise of discretion - Yukilan Manufacturing Sdn Bhd & Anor v Dato’ Wong Gek Meng:
- The discretion to grant costs must be exercised judicially and according to the rules of reason and justice.
- It must not be motivated by private opinion, nor benevolence, nor sympathy;
- The discretion to grant costs must, by necessity, be justifiable.
- O.59, r.8 sets out some of the factors may be taken into account.
ENTITLEMENT TO COSTS
Overview
1) General rule
2) Exception - circumstances dictate
3) Exception - misconduct or neglect
4) Examples of misconduct or neglect
ENTITLEMENT TO COSTS
General rule
O.59, r.3(2):
- costs follow the event (the loser pays the winner’s costs and is left to bear his own costs)
ENTITLEMENT TO COSTS
Exception - circumstances dictate
O.59, r.3(2):
- It appears to Court that circumstances dictates otherwise.
ENTITLEMENT TO COSTS
Exception - misconduct or neglect
O.59, r.5:
- A successful party may be deprived of his costs or part of it when there is misconduct or neglect.
EXAMPLES OF MISCONDUCT OR NEGLECT
Overview
1) Bitter fight
2) Illegal contract
3) Point not raised below
4) Relevant authorities missed out
5) Retrospective effect of new law amendment
6) Non-cooperative appellant
7) Costs by A&S personally
EXAMPLES OF MISCONDUCT OR NEGLECT
Bitter fight
Chan Choy Ling v Chua Che Tek:
- The disputes had developed into a protracted and bitter fight and the parties had gone before the High Court on several occasions with the actual hearing occupying a period of two to three days.
- Therefore, the judge made no order as to costs & the order is upheld on appeal.
EXAMPLES OF MISCONDUCT OR NEGLECT
Illegal contract
Cheng Mun Siah v Tan Nam Su:
- the whole of the transaction is illegal and as both parties to the transaction have contravened some of the provisions of the Act, the court cannot be called upon to assist either one or the other of the parties with regard to the agreement in question.
- There will be no order as to costs since both parties have offended against the law.
EXAMPLES OF MISCONDUCT OR NEGLECT
Point not raised below
Anna Jong Yu Hiong v Government of Sarawak:
Ref. Hussey v Horne-Payne:
- “As our decision in favour of the defendant turns upon a point not raised by him in the court below, I agree with what the Master of the Rolls has said as to the costs.’
- In this appeal the appellant was only partly successful & that is another good reason for disallowing the costs of this appeal.
EXAMPLES OF MISCONDUCT OR NEGLECT
Relevant authorities missed out
Re Syed Ahmad Hood Alsagoff:
As the relevant authorities which have determined this appeal were not cited to the learned Judge — nor indeed was any point made concerning the principles enunciated in them, the court ruled that there would be no order as to costs either here or below.
EXAMPLES OF MISCONDUCT OR NEGLECT
Retrospective of new law amendment
Petroliam Nasional Bhd & Anor v Cheah Kam Chiew:
- The result of amendment was that when the application was heard, P no longer had a cause of action.
- The High Court struck-out the suit but awarded costs to P.
- The Supreme Court dismissed D’s appeal to have the costs awarded to him.
EXAMPLES OF MISCONDUCT OR NEGLECT
Non-cooperative appellant
Chen Chow Lek v Tan Yew Lai:
- FC allowed the appeal but ordered that the appellant pay costs to the respondent.
- The court is of the view that had the appellant been cooperative this case would not have come to court & the respondent would probably not have started the civil suit.
- The litigation has been completely unnecessary and could have been avoided but for the appellant’s attitude.
- The costs of the proceedings before the court & in the court below should be borne by the appellant and the deposit should go to the respondent on account of taxed costs.
EXAMPLES OF MISCONDUCT OR NEGLECT
Costs by A&S personally
1) The law - O.59, r.6:
- solicitor may be liable personally for costs
2) Karpal Singh v Atip bin Ali:
- Happens when costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default;
- OTF, the civil suit filed by the plaintiff was “conspicuously unmaintainable” & this was a proper case where the learned judge ought to have exercised his discretion and ordered that the costs of the proceedings be paid by Karam Singh, the lawyer, personally.
COSTS FOR INTERLOCUTORY PROCEEDINGS
Overview
1) The law
2) Costs in the cause
COSTS FOR INTERLOCUTORY PROCEEDINGS
The law
1) O.59, r.1(3):
- The party whose in favour of interlocutory proceeding is made will be entitled to the costs in interlocutory proceedings, whatever outcome of the proceedings.
2) O.59, r.20:
- Costs for interlocutory applications in Subordinate Courts.
3) O.59, r.21:
- Costs for interlocutory applications in High Courts.
COSTS FOR INTERLOCUTORY PROCEEDINGS
Costs in the cause - law & scope
1) The law - O.59, r.7:
- Costs may be ordered at any stage of the proceedings;
- Any costs ordered shall be paid at the conclusion of proceedings;
- Unless court orders otherwise.
2) Scope of O.59, r.7 - Ko Ko Ma Pony Horse Centre v Rasa Sayang Beach Hotel Bhd:
General rule:
- Unless otherwise ordered, interlocutory costs is only payable at the conclusion of the proceedings.
Exception:
- Costs for interlocutory applications may be ordered to be paid forthwith when the party against whom the order is made is guilty of oppressive or unreasonable conduct.
COSTS FOR INTERLOCUTORY PROCEEDINGS
Costs in the cause - meaning
Stratford & Son v Lindley (No. 2):
- “Costs in the cause” means that the costs of those interlocutory proceedings are to be awarded according to the final award of costs in the action.
- If the plaintiff wins and gets an order for his costs, he gets those interlocutory costs as part of his costs of the action against the defendant.
- Vice versa, if the defendant wins and gets an order for his costs, he gets those interlocutory costs as part of his costs of the action against the plaintiff.
- if the plaintiff wins, he gets the costs of the interlocutory proceedings; - but, if he loses, he does not have to pay the other side’s costs of them.
- “Plaintiff’s costs in any event” means that, no matter who wins or loses when the case is decided, the plaintiff is to have the costs of those interlocutory proceedings.
- “Plaintiff’s costs” means that the plaintiff is to have the costs of the interlocutory proceedings without waiting for a decision.
ASSESSMENT FOR QUANTUM OF COSTS
Overview
1) General principles
2) Standard basis for assessment - getting-up
4) Standard basis for assessment - Disbursement reasonably incurred
5) Alternative basis for assessment - party & party basis
6) Alternative basis for assessment - common fund basis
7) Alternative basis for assessment - trustee basis
8) Alternative basis for assessment - Solicitor & own client basis
9) Alternative basis for assessment - indemnity basis
ASSESSMENT FOR QUANTUM OF COSTS
General principles
- The quantum of costs is at the court’s discretion;
- Two things that the court will consider:
1) Getting-up under O.59, r.16; and
2) Disbursements reasonably incurred.
- The court will allow what it considers to be a reasonable amount;
- Any doubts as what is “reasonable” is to be resolved in favour of the paying party.
