"Costs are not meant to punish a failed civil action, but when a reasonable offer to settle was refused and the party refusing ended worse off than the terms offered, the other party should not have to bear the resulting costs that might have been saved." — Per Choo Han Teck J, Para 7
Case Information
- Citation: [2023] SGHC 56
- Court: IN THE GENERAL DIVISION OF THE HIGH COURT OF THE REPUBLIC OF SINGAPORE
- Date: 27 February 2023 and 10 March 2023
- Coram: Choo Han Teck J
- Case Number: Suit No 554 of 2019
- Area of Law: Civil procedure – Costs – Quantum
- Counsel for the Plaintiff: Clarence Tan Ming Yew and Low Hong Quan (Fervent Chambers LLC)
- Counsel for the Defendants: Mar Seow Hwei, Lee Qiu Li and Lydia Yeow Ye Xi (Dentons Rodyk & Davidson LLP)
- Judgment Length: Not stated in the extraction
Summary
This was a post-trial costs decision arising after the plaintiff’s claim had already been dismissed in full. The defendants sought indemnity costs on the basis that they had made an open offer to settle on 24 April 2020, that the plaintiff did not accept the offer, and that the plaintiff ultimately ended up worse off than the terms offered. The court accepted that there was no reason not to award indemnity costs under O 22A r 9(3) of the Rules of Court from 25 April 2020. (Para 1) (Para 2)
The court also had to determine the quantum of costs and disbursements. The defendants asked for costs of the action to be fixed at $625,500 and disbursements of $156,107.21, while the plaintiff argued for much lower figures and objected to costs for one summons. The judge fixed the overall costs at $600,000, including the costs of the summonses, and ordered disbursements as claimed. The judge noted that the disbursements were high, but explained that a large portion related to expert services and witness travel expenses. (Para 3) (Para 5) (Para 8) (Para 9) (Para 10)
In reaching that result, the court considered the plaintiff’s litigation conduct, including a major amendment shortly before trial and affidavits of crucial witnesses filed without leave, which caused the trial to be vacated and rescheduled. At the same time, the judge observed that the plaintiff was only the administrator of the deceased’s estate and that the action could proceed only on medical and legal advice, so the conduct could not simply be laid at the plaintiff’s door. The court therefore treated the matter as one where the ordinary costs consequences of a refused reasonable settlement offer should apply, absent strong reasons to depart from that approach. (Para 6) (Para 7)
Why did the court say indemnity costs were justified after the offer to settle was refused?
The central costs question was whether the defendants should receive indemnity costs after making an open offer to settle that the plaintiff did not accept. The court answered that question in the affirmative because the defendants had made a reasonable offer, the plaintiff refused it, and the plaintiff ultimately ended up worse off than the terms offered. The judge stated that, in such circumstances, the law allows the court, unless there are strong reasons otherwise, to order indemnity costs. (Para 1) (Para 2) (Para 7)
"In such circumstances, the law allows the court, unless for strong reasons otherwise, to order indemnity costs." — Per Choo Han Teck J, Para 7
The judge’s reasoning was anchored in the relationship between settlement conduct and costs consequences. The court did not treat costs as a punishment for losing a civil action; rather, it treated costs as a mechanism for allocating the financial consequences of litigation where a party declined a settlement opportunity that later proved better than the eventual outcome. The judge expressly stated that the defendants should not have to bear costs that might have been saved had the offer been accepted. (Para 7)
That approach led the court to conclude that indemnity costs were appropriate from 25 April 2020, the day after the offer to settle was made. The court therefore linked the costs order to the timing of the offer and the plaintiff’s refusal, rather than to the date of judgment alone. The result was a costs order that reflected the settlement history of the case and the fact that the plaintiff’s eventual position was worse than the settlement terms. (Para 2) (Para 7)
What were the key facts that mattered to the costs decision?
The defendants’ position was that they had jointly made an offer to settle on 24 April 2020. The offer was open, meaning it had no deadline for acceptance. The plaintiff did not accept it. Those facts mattered because they established the foundation for the defendants’ request for indemnity costs under the Rules of Court. (Para 1)
"Counsel for the defendants argued that the defendants had jointly made an offer to settle (“the OTS”) on 24 April 2020. It was an open OTS with no deadline for acceptance. The plaintiff did not accept the OTS." — Per Choo Han Teck J, Para 1
The later procedural history also mattered. The court noted that a major amendment was made to the claim a week before trial commenced, and affidavits of crucial witnesses were filed without leave. Those developments caused the trial to be vacated and rescheduled. The judge treated these events as relevant to the overall costs picture, because they increased the burden and expense of the litigation. (Para 6)
"It is true that a major amendment was made to the claim a week before the trial commenced. Affidavits of crucial witnesses were filed without leave. The trial had to be vacated and re-scheduled." — Per Choo Han Teck J, Para 6
The action ultimately ended on 13 October 2022 when the court dismissed the plaintiff’s claim entirely. That outcome was important because it meant the plaintiff had not merely failed to improve on the settlement offer; the plaintiff had done worse than the terms offered. The court expressly referred to that sequence when explaining why indemnity costs were justified. (Para 2) (Para 7)
"The action ended on 13 October 2022 upon my dismissal of the plaintiff’s claim entirely." — Per Choo Han Teck J, Para 2
How did the parties argue about the amount of costs and disbursements?
The parties were far apart on quantum. The defendants asked for costs of the action to be fixed at $625,500 and disbursements of $156,107.21. The plaintiff, by contrast, submitted that the appropriate costs for the trial should be $120,000, that $13,500 should be awarded for Summonses Nos 798, 835 and 837 of 2021, and that no costs should be awarded for Summons No 746 of 2021. The dispute was therefore not only about whether indemnity costs should be awarded, but also about how much the defendants should recover. (Para 3) (Para 5)
"The defendants are asking for costs of the action to be fixed at $625,500 and $156,107.21 for disbursements." — Per Choo Han Teck J, Para 3
"Counsel for the plaintiff submitted that the appropriate costs for the trial should be $120,000, and $13,500 for Summonses Nos 798, 835 and 837 of 2021. He submits that no costs should be awarded for Summons No 746 of 2021." — Per Choo Han Teck J, Para 5
The judge did not accept the plaintiff’s attempt to substantially reduce the defendants’ recoverable costs. Instead, the court fixed the overall costs at $600,000 and included the costs of the summonses within that figure. The court’s order was therefore closer to the defendants’ position than the plaintiff’s, though not at the exact amount sought by the defendants. (Para 8) (Para 10)
"I therefore exercise my discretion and order that the overall costs be fixed at $600,000 to include the costs of the summonses, on an indemnity basis, to be paid by the plaintiff to the defendants." — Per Choo Han Teck J, Para 8
Did the plaintiff’s litigation conduct affect the costs order?
The defendants invited the court to take the plaintiff’s conduct into account. The judge accepted that there had been conduct that increased the burden of the proceedings, including the late amendment and the filing of affidavits without leave, which forced the trial to be vacated and rescheduled. Those matters plainly formed part of the background to the costs application. (Para 6)
"Counsel for the defendants submitted that I ought to take the conduct of the plaintiff into account." — Per Choo Han Teck J, Para 6
At the same time, the court was careful not to overstate the plaintiff’s personal responsibility. The judge observed that the plaintiff was only the administrator of the deceased’s estate and that the action could proceed only on medical and legal advice. That observation tempered the extent to which the plaintiff’s conduct could be treated as blameworthy in a personal sense. The court therefore acknowledged the procedural difficulties without converting them into a punitive costs rationale. (Para 6)
"However, all that cannot be blamed on the plaintiff who is only the administrator of the deceased’ estate as the action could only proceed on medical and legal advice." — Per Choo Han Teck J, Para 6
The practical effect was that the court did not base its order on punishment. Instead, it relied on the ordinary costs consequences of a refused reasonable settlement offer, while still recognising that the litigation had been made more expensive by the way the case had been conducted. That balanced approach explains why the judge referred to the plaintiff’s conduct but still framed the decisive principle in terms of indemnity costs following refusal of a reasonable offer. (Para 6) (Para 7)
What legal principle did the court apply to the offer to settle?
The court’s legal principle was stated in direct terms: costs are not meant to punish a failed civil action, but where a reasonable offer to settle is refused and the refusing party ends up worse off than the terms offered, the other party should not have to bear the resulting costs that might have been saved. That principle was the foundation for the indemnity costs order. (Para 7)
"Costs are not meant to punish a failed civil action, but when a reasonable offer to settle was refused and the party refusing ended worse off than the terms offered, the other party should not have to bear the resulting costs that might have been saved." — Per Choo Han Teck J, Para 7
The judge then applied that principle to the facts before the court. The defendants had made an open offer to settle, the plaintiff did not accept it, and the plaintiff’s claim was later dismissed entirely. On that basis, the court saw no strong reason to depart from the ordinary consequence that indemnity costs should follow. The reasoning was concise but clear: the settlement offer was reasonable, the refusal proved disadvantageous, and the defendants should not be left to absorb the costs that the offer could have avoided. (Para 1) (Para 2) (Para 7)
This was not a case in which the court had to engage in a complex statutory interpretation exercise. Rather, the judge applied the costs framework to the litigation history and exercised discretion in a way that reflected the settlement dynamics. The result was an indemnity costs order from 25 April 2020, which aligned the costs consequences with the date after the offer was made. (Para 2) (Para 7)
How did the court assess the disbursements and expert-related expenses?
The defendants sought disbursements of $156,107.21, and the court accepted that the figure was high. The judge nevertheless explained that a large portion of the disbursements was attributable to payments for the services of experts. The court also noted that there were witness travel expenses. Those explanations mattered because they showed why the disbursements were substantial and why the court was prepared to allow them. (Para 3) (Para 9)
"The disbursements of $156,107.21 is high, but a large portion are for payments for the services of the experts." — Per Choo Han Teck J, Para 9
The judge further observed that the amount was undoubtedly very high, and from the evidence seen at trial, the deceased did not seem to be a wealthy person. That observation did not lead to a reduction in the disbursements, but it shows that the court was alive to the scale of the expenses and the underlying factual context. The court nevertheless ordered disbursements as claimed. (Para 10)
"The amount is undoubtedly very high, and from the evidence I have seen at trial, the deceased does not seem to be a wealthy person." — Per Choo Han Teck J, Para 10
In practical terms, the court distinguished between the size of the disbursements and their justification. The fact that the expenses were large did not, by itself, make them unrecoverable. Instead, the judge accepted that expert evidence and witness-related expenses were part of the litigation burden and should be borne by the plaintiff in light of the indemnity costs order. (Para 9) (Para 10)
Why did the court fix costs instead of leaving them to taxation?
The court exercised its discretion to fix the overall costs at $600,000, rather than leaving the matter to be taxed in the ordinary way. The judge expressly stated that the overall costs were fixed at that amount to include the costs of the summonses, and that the order was on an indemnity basis. This indicates that the court considered the matter suitable for a fixed costs order in the interests of finality and proportionality. (Para 8)
"I thus order that the plaintiff pay the defendants costs fixed at $600,000 and disbursements as claimed." — Per Choo Han Teck J, Para 10
The fixed sum was lower than the defendants’ requested $625,500, but it still substantially reflected the defendants’ position. The court also made clear that the summons costs were included in the fixed figure, which resolved the ancillary disputes about the various summonses. The result was a single, comprehensive costs order rather than a piecemeal assessment. (Para 3) (Para 8) (Para 10)
That approach is consistent with the judge’s broader reasoning. Once the court concluded that indemnity costs were justified because the plaintiff had refused a reasonable offer and ended up worse off, it was open to the court to fix the amount in a way that reflected the overall litigation history. The fixed order avoided further satellite disputes and brought the matter to a close. (Para 2) (Para 7) (Para 8)
What exactly did the court order at the end of the costs hearing?
The final order was straightforward. The plaintiff was ordered to pay the defendants’ costs fixed at $600,000 and disbursements as claimed. The court also made clear that the costs were to be on an indemnity basis. This was the operative outcome of the hearing and the practical consequence of the plaintiff’s refusal of the offer to settle. (Para 8) (Para 10)
"I therefore exercise my discretion and order that the overall costs be fixed at $600,000 to include the costs of the summonses, on an indemnity basis, to be paid by the plaintiff to the defendants." — Per Choo Han Teck J, Para 8
The court also stated that there was no reason not to award indemnity costs under O 22A r 9(3) of the Rules of Court from 25 April 2020. That statement tied the order to the procedural rule governing offers to settle and confirmed the date from which the indemnity basis would operate. (Para 2)
"There is no reason not to award indemnity costs under O 22A r 9(3) of the Rules of Court to the defendants from 25 April 2020." — Per Choo Han Teck J, Para 2
In addition, the court ordered disbursements as claimed. The judge’s comments on the size of the disbursements did not alter the outcome, because the court accepted the explanation that the bulk of the expenses related to experts and witness travel. The final order therefore resolved both the costs and disbursements questions in the defendants’ favour. (Para 9) (Para 10)
Why does this case matter for Singapore costs practice?
This case matters because it illustrates the practical effect of refusing a reasonable offer to settle. The court made clear that costs are not punitive, but that a party who refuses a reasonable settlement and later ends up worse off may be ordered to pay indemnity costs. For litigators, the case is a reminder that settlement strategy can have major costs consequences, especially where the eventual result is worse than the offer. (Para 7)
"Costs are not meant to punish a failed civil action, but when a reasonable offer to settle was refused and the party refusing ended worse off than the terms offered, the other party should not have to bear the resulting costs that might have been saved." — Per Choo Han Teck J, Para 7
The case also shows that the court may fix costs at a substantial sum where the litigation has been lengthy, procedurally burdensome, and expert-heavy. The judge accepted that the disbursements were high, but still allowed them because they were largely explained by expert services and witness travel. That is important in cases where the costs of proving or defending a claim are driven by technical evidence. (Para 9) (Para 10)
Finally, the decision demonstrates that the court can take a balanced view of a plaintiff’s conduct. Even where there are late amendments and procedural complications, the court may recognise that a personal representative is acting on medical and legal advice and should not automatically be treated as personally blameworthy. The case therefore combines a firm settlement-costs principle with a measured approach to the realities of estate litigation. (Para 6) (Para 7)
Cases Referred To
| Case Name | Citation | How Used | Key Proposition |
|---|---|---|---|
| Not answerable from the extraction | Not answerable | No cases are identified in the extraction | No case references are provided in the extracted text |
Legislation Referenced
Source Documents
This article analyses [2023] SGHC 56 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.