Denis Matthew Harte v Tan Hun Hoe and Another [2001] SGHC 19

Case Details

• Citation: [2001] SGHC 19
• Case Number: Suit 1691/1999
• Decision Date: 31 January 2001
• Court: High Court of Singapore
• Coram: Chan Seng Onn JC
• Judgment Delivered By: Chan Seng Onn JC
• Plaintiff(s): Denis Matthew Harte
• Defendant(s): Tan Hun Hoe (1st Defendant); Gleneagles Hospital Ltd (2nd Defendant)
• Counsel for Plaintiff: Raj Singam and Edmund Kronenburg (Drew & Napier)
• Counsel for 1st Defendant: Myint Soe, Mohamed Abdullah and Daniel Xu (Myint Soe Mohamed Yang & Selvaraj)
• Counsel for 2nd Defendant: Lek Siang Pheng, Vivienne Lim and Jamie Yup (Helen Yeo & Partners)
• Legal Areas: Civil Procedure; Costs; Medical Negligence
• Statutes Referenced: Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed); Rules of Court (1997 Rev Ed)
• Key Provisions: Supreme Court of Judicature Act, s 34(2), s 41(1); Rules of Court, Order 22A Rule 9, Order 22A Rule 10
• Disposition: Application for stay of execution dismissed; 1st defendant granted leave to appeal on costs; 1st defendant to pay plaintiff S$1,500 for the stay application costs.
• Reported Related Decisions: N/A

Summary

This judgment comprises the addendum grounds of decision concerning costs, leave to appeal, and a stay of execution, following the High Court's earlier finding in a medical negligence suit. The plaintiff, Mr Denis Matthew Harte, had sued Dr Tan Hun Hoe (1st defendant) and Gleneagles Hospital Limited (2nd defendant). The court had found Dr Tan negligent in his post-operative care, awarding Mr Harte approximately S$96,600 in damages, but dismissed the claim against the hospital.

The core of this addendum judgment addresses several critical procedural issues. First, the court considered whether to make a Bullock or Sanderson order for costs, requiring Dr Tan to pay the hospital's costs. The court declined, finding Mr Harte "plainly at fault" for joining the hospital, as the facts and law regarding the hospital's vicarious liability for an independent contractor were clear. Second, the court analysed the cost consequences of Dr Tan's offers to settle, which Mr Harte had rejected. Despite Dr Tan's offers exceeding the damages awarded, the court ruled that the punitive cost consequences under Order 22A Rule 9 of the Rules of Court did not apply because Dr Tan's offers failed to comply with the strict requirements of Order 22A Rule 10 for multi-defendant cases, particularly by not addressing the entire claim against all defendants or offering to pay the non-joining defendant's costs. The court, however, exercised its general discretion on costs, ultimately ordering Dr Tan to bear Mr Harte's post-offer costs related to the claim against him, finding Mr Harte's refusal of the non-conforming offer reasonable.

Third, the court granted Dr Tan leave to appeal on the issue of costs, acknowledging the "general importance" and "public advantage" of clarifying how Order 22A Rule 10 applies in complex multi-defendant scenarios where a defendant might find it "impossible" to make a conforming offer. Finally, Dr Tan's application for a stay of execution of the judgment sum, pending his appeal on costs, was dismissed. The court reiterated the high threshold for "special circumstances" required for a stay, finding that mere inconvenience of enforcing a judgment abroad or the possibility of the plaintiff's insolvency was insufficient without concrete evidence, especially given the plaintiff's financial standing.

Timeline of Events

1. Prior to proceedings: Gleneagles Hospital (2nd defendant) corresponded with Mr Harte (plaintiff), clarifying that Dr Tan (1st defendant) was an independent contractor and not its employee or agent, disabusing Mr Harte of any impression of vicarious liability.
2. Conclusion of trial: The High Court found Dr Tan negligent in his post-operative care and treatment of Mr Harte, assessing damages at approximately S$96,600. Mr Harte's claim against Gleneagles Hospital was dismissed.
3. 11 May 2000: Dr Tan made an offer to settle Mr Harte's claim for S$150,000.
4. 16 May 2000: Dr Tan served an increased offer to settle for S$300,000, which Mr Harte did not accept.
5. Post-trial decision: The court issued initial cost orders, directing Dr Tan to pay Mr Harte's costs (related to the claim against him) and Mr Harte to pay the hospital's costs. A cost certificate for two counsel was granted for all parties.
6. Application for leave to appeal on costs: Dr Tan applied for leave to appeal solely against the court's order on costs against him.
7. Grant of leave to appeal on costs: The court granted Dr Tan leave to appeal on costs, citing the general importance and public advantage of clarifying the application of Order 22A Rule 10.
8. Application for stay of execution: Dr Tan applied for a stay of execution of the judgment sum pending his appeal on costs.
9. Dismissal of stay of execution: The court dismissed Dr Tan's application for a stay of execution, fixing costs for the application at S$1,500 to be paid by Dr Tan to Mr Harte.

What Were the Facts of This Case?

The plaintiff, Mr Denis Matthew Harte, initiated a medical negligence lawsuit against the 1st defendant, Dr Tan Hun Hoe, and the 2nd defendant, Gleneagles Hospital Limited. Mr Harte alleged that Dr Tan was negligent and breached his duty of care and contractual duties during his treatment and operation for a fertility problem. The hospital was joined as a defendant on the premise that Dr Tan was its servant or agent, thereby making it vicariously liable for any negligence.

Following a lengthy trial, the High Court determined that Dr Tan was not negligent during Mr Harte's pre-operative consultation or when performing the bilateral varicocelectomy operation. However, the court found Dr Tan negligent in his post-operative care and treatment of Mr Harte. As a result of this negligence, damages were assessed at approximately S$96,600.

The claim against Gleneagles Hospital was dismissed. The court found that the hospital merely provided operating theatre, ward, and nursing facilities to Dr Tan, who was an independent contractor. The hospital had no control over the operation itself and could not be held jointly or vicariously liable for the independent surgeon's negligent acts. Prior to the commencement of proceedings, the hospital had already clarified its relationship with Dr Tan, stating he was not their employee or agent.

A significant factual aspect considered by the court, particularly in relation to costs, was the nature of Mr Harte's claim regarding Dr Tan's pre-operative and operative negligence. The court noted the "extraordinary scrotal swelling" following Dr Tan's surgery and the "disastrous results thereafter," which contrasted with a lack of pain or obvious scrotal bruising immediately after Mr Harte fell from a toilet seat while unconscious. This led the court to conclude that Mr Harte's claim of negligence in the pre-operative and operative stages, though ultimately unsuccessful, was not "unreasonable or clearly untenable" at the outset.

The judgment also detailed Dr Tan's attempts to settle the claim, including an initial offer of S$150,000 and a subsequent offer of S$300,000, both of which were rejected by Mr Harte. The damages ultimately awarded were substantially less than these offers, leading to a dispute over the application of adverse cost consequences under the Rules of Court.

What Were the Key Legal Issues?

This judgment, an addendum to the main trial decision, primarily addressed several procedural and costs-related issues arising from the initial findings:

• Costs in Multi-Defendant Litigation (Bullock and Sanderson Orders): Whether, and under what circumstances, the unsuccessful 1st defendant should be ordered to pay the successful 2nd defendant's costs, either directly (Sanderson order) or indirectly through the plaintiff (Bullock order), particularly when the plaintiff's claim against the 2nd defendant was dismissed.
• Validity and Consequences of Offers to Settle (Rules of Court, Order 22A Rules 9 & 10): Whether the 1st defendant's offers to settle complied with the strict requirements of Order 22A Rule 10 for multi-defendant cases, thereby triggering the adverse cost consequences under Order 22A Rule 9 against the plaintiff who recovered less than the offer, and how the court should exercise its discretion regarding non-conforming offers.
• Leave to Appeal on Costs: What principles should guide the court in granting leave to appeal where the only issue in the appeal relates to costs, especially when novel or important legal questions arise concerning the application of the Rules of Court.
• Stay of Execution Pending Appeal on Costs: What constitutes "special circumstances" sufficient to justify a stay of execution of the judgment sum, particularly when the appeal is solely on costs and the appellant seeks to secure potential cost recovery against the judgment sum.

How Did the Court Analyse the Issues?

The court meticulously analysed the issues, drawing upon established legal principles and the specific provisions of the Rules of Court.

Bullock and Sanderson Orders: The court began by defining Bullock and Sanderson orders, citing the White Book 1999 Edn Vol 1, para 62/B/124. It clarified that such orders are not limited to claims made strictly in the alternative, but the principal consideration is whether it would be fair and reasonable for the unsuccessful defendant to bear the successful defendant's costs. However, the usual order is for the plaintiff to pay the costs of the defendant found not liable, as the plaintiff is prima facie responsible for joining them. The court referenced Mulready v Bell Ltd [1953] 2 All ER 215, which held that such orders are inappropriate for independent causes of action, and Mohd bin Sapri v Soil-Build (Pte) Ltd and another appeal [1996] 2 SLR 505, which stated that these orders are not for uncertainty of law but for factual uncertainty. The court listed five relevant factors, including the ascertainability of facts, the reasonableness of joining multiple defendants, whether the unsuccessful defendant tried to shift blame, the distinctness of claims, and the likelihood of insolvency. Applying these, the court found Mr Harte "plainly at fault" for joining the hospital, as the facts and law regarding the hospital's non-vicarious liability were reasonably clear from the outset, and Dr Tan had not attempted to shift blame. Consequently, the court refused to make either a Bullock or Sanderson order, directing costs to follow the event for the claim against the hospital. It further clarified that Dr Tan was to pay Mr Harte's costs only in relation to the claim against him, excluding costs related to the agency and vicarious liability issues against the hospital.

Validity and Consequences of Offers to Settle: The court considered Dr Tan's offers to settle (S$150,000 and S$300,000) which Mr Harte had rejected, despite recovering only S$96,600. The court examined Order 22A Rule 9(3) of the Rules of Court, which prescribes adverse cost consequences for a plaintiff who fails to obtain a judgment more favourable than a defendant's offer. However, the court focused on Order 22A Rule 10, which sets out specific conditions for offers in multi-defendant cases, particularly where defendants are alleged to be jointly or jointly and severally liable. Rule 10(b)(i) requires an offer to settle the plaintiff's claim against all defendants and to pay the costs of any non-joining defendant. The court held that Rule 10 applies based on the allegation of joint liability in the statement of claim, not on whether such liability is ultimately proven. It found Mr Harte's allegation of joint liability against Dr Tan and the hospital, though ultimately unsuccessful, was not "fanciful." Since Dr Tan's offer did not satisfy the requirements of Rule 10(b)(i) or (ii) (as it did not settle the claim against the hospital or offer to pay its costs), the punitive cost consequences of Rule 9 did not apply. The court acknowledged Dr Tan's argument that it was "impossible" for him to make a conforming offer by paying the hospital's costs when he believed the hospital was wrongly joined, but maintained that Rule 10's ambit was plain. Nonetheless, the court retained a wide discretion under Order 59 Rule 2(2) to consider the non-conforming offer as a "Calderbank offer." After weighing ten factors, including the reasonableness of Mr Harte's claim and his refusal of the non-conforming offer, the court exercised its discretion in favour of Mr Harte, ordering Dr Tan to bear Mr Harte's post-offer costs related to the claim against him.

Leave to Appeal on Costs: Dr Tan sought leave to appeal solely on costs under Section 34(2) of the Supreme Court of Judicature Act. The court applied the principles from Lee Kuan Yew v Tang Liang Hong & Anor [1997] 3 SLR 489, which allow leave if there is a prima facie error, a question of general importance decided for the first time, or a question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage. The court granted leave, relying on the "general importance" or "public advantage" limbs. It acknowledged the "compelling force" in Dr Tan's argument regarding the practical difficulties of making a conforming offer under Rule 10 in multi-defendant cases, and the need for "beneficial guidance" from the Court of Appeal on how defendants can protect their cost position in such complex situations.

Stay of Execution Pending Appeal on Costs: Dr Tan applied for a stay of execution of the S$96,660 judgment sum pending his appeal on costs, arguing that a successful appeal might result in costs exceeding the judgment sum, which he would then seek to set off. The court, citing Section 41(1) of the Supreme Court of Judicature Act and cases like Lee Sian Hee v Oh Kheng Soon [1992] 1 SLR 77, reiterated that an appeal does not automatically operate as a stay. A stay is granted only if "special circumstances" are shown, demonstrating that the judgment sum, if paid, is unlikely to be recoverable, rendering the appeal nugatory. The court emphasised that "special circumstances" must relate to the enforcement of the judgment, not its validity, and that mere likelihood of success on appeal or the involvement of a large sum is insufficient. Dr Tan's arguments of Mr Harte being a US national and the inconvenience of foreign enforcement were deemed insufficient. The court noted Mr Harte's financial standing (successful commodity trader, US$77,800 p.a. salary, house in the US) and found no evidence of insolvency or intent to abscond. Concluding that no "special circumstances" existed, the court dismissed the application for a stay of execution.

What Was the Outcome?

The High Court dismissed the 1st defendant's application for a stay of execution of the judgment sum. The court also granted the 1st defendant leave to appeal on the issue of costs, acknowledging the significant legal questions raised regarding the application of the Rules of Court on offers to settle in multi-defendant cases.

The costs for the stay application were fixed at S$1,500, to be paid by the 1st defendant to the plaintiff. The earlier cost orders made at the conclusion of the trial, as clarified in this addendum, remained in effect: the 1st defendant was to pay the plaintiff's costs (limited to the claim against the 1st defendant), and the plaintiff was to pay the 2nd defendant's costs.

67. In the circumstances, I dismissed the application for a stay of execution. I also fixed the costs for this application at $1,500, to be paid by the 1st defendant to the plaintiff.

Why Does This Case Matter?

This case is a significant authority for practising lawyers in Singapore, particularly concerning civil procedure, costs, and the strategic implications of offers to settle in multi-defendant litigation. Its primary contribution lies in clarifying the stringent requirements of Order 22A Rule 10 of the Rules of Court for offers to settle. The judgment unequivocally establishes that for a defendant's offer to trigger the adverse cost consequences of Order 22A Rule 9 in a multi-defendant action where joint or joint and several liability is alleged, the offer must address the plaintiff's entire claim against all defendants and offer to pay the costs of any non-joining defendant. An offer that fails to meet these conditions is deemed "non-conforming" and will not automatically attract the punitive cost regime of Rule 9, instead being treated as a "Calderbank offer" subject to the court's general discretion on costs under Order 59 Rule 2(2).

The decision also provides a comprehensive framework for the court's exercise of discretion in awarding costs, particularly when dealing with non-conforming offers. It outlines ten factors for consideration, emphasising the reasonableness of the plaintiff's conduct in rejecting such an offer. Furthermore, the case reinforces the well-established principles governing Bullock and Sanderson orders, highlighting that such orders are generally inappropriate where the plaintiff's uncertainty in joining a defendant stems from legal rather than factual ambiguity, or where the unsuccessful defendant did not actively contribute to the need to join the successful defendant by shifting blame.

For litigation practitioners, this case underscores the critical importance of meticulous compliance with procedural rules, especially when drafting offers to settle. Failure to adhere to Order 22A Rule 10 can negate the strategic advantages of a generous offer, leaving the offeror reliant on the court's discretion. It also serves as a cautionary tale for plaintiffs regarding the risks of joining defendants on tenuous grounds, as they may be held responsible for the successful defendant's costs. For transactional lawyers, while less directly relevant, the case indirectly reinforces the need for clear contractual delineation of roles (e.g., independent contractor vs. employee) to minimise the risk of vicarious liability claims. Finally, the judgment reiterates the high bar for obtaining a stay of execution pending appeal, particularly on costs, requiring concrete evidence of "special circumstances" beyond mere inconvenience or speculative financial risk.

Practice Pointers

• Strict Compliance with O.22A R.10 for Offers to Settle: When making an offer to settle in multi-defendant cases where joint or joint and several liability is alleged, ensure the offer strictly complies with Order 22A Rule 10. This means the offer must address the plaintiff's entire claim against all defendants and offer to pay the costs of any defendant who does not join in making the offer, to benefit from the automatic cost consequences of Order 22A Rule 9.
• Non-Conforming Offers as Calderbank Offers: Be aware that an offer to settle that does not strictly conform to Order 22A Rule 10 will be treated as a "Calderbank offer." In such instances, the court will exercise its general discretion on costs under Order 59 Rule 2(2), considering factors such as the reasonableness of the offer and the plaintiff's refusal. Prepare to argue these points comprehensively.
• Careful Assessment of Defendant Joinder: Plaintiffs should rigorously assess the legal and factual basis for joining multiple defendants. If a claim against a co-defendant is ultimately dismissed as unsustainable (e.g., a vicarious liability claim against a hospital for an independent contractor), the plaintiff will likely bear that defendant's costs and may not be able to recover them from the unsuccessful primary defendant.
• Arguments for Bullock/Sanderson Orders: To successfully argue for a Bullock or Sanderson order, demonstrate that the plaintiff's uncertainty in joining the successful defendant was primarily factual (e.g., due to blame-shifting by the unsuccessful defendant) rather than legal. Such orders are generally not granted for legal uncertainty.
• Seeking Leave to Appeal on Costs: If seeking leave to appeal solely on costs, frame the application around issues of "general importance" or "public advantage" that require clarification from a higher court, especially concerning novel or complex applications of procedural rules like Order 22A Rule 10.
• High Bar for Stay of Execution: To obtain a stay of execution pending an appeal, particularly on costs, provide concrete and compelling evidence of "special circumstances" that demonstrate the judgment sum, if paid, is unlikely to be recoverable, thereby rendering a successful appeal nugatory. Mere inconvenience of foreign enforcement or speculative financial risk is insufficient.
• Precision in Cost Orders: Ensure that cost orders in multi-defendant cases are drafted with precision, clearly delineating which party is responsible for costs related to specific claims or issues, especially when a plaintiff succeeds against one defendant but fails against another.

Subsequent Treatment

This High Court decision from 2001 provided important clarification on the then-relatively new Order 22A of the Rules of Court, particularly Rule 10 concerning offers to settle in multi-defendant cases. The court's detailed analysis of the strict requirements for a conforming offer and the consequences of non-compliance has served as a foundational interpretation for subsequent cases. The grant of leave to appeal on costs underscored the perceived novelty and importance of these issues at the time, suggesting that the questions raised regarding the "impossibility" of making a conforming offer in certain multi-defendant scenarios would likely have been addressed in later Court of Appeal decisions, further shaping the jurisprudence.

While specific subsequent Court of Appeal decisions directly arising from this case are not detailed within the judgment itself, the principles articulated here regarding the application of Order 22A Rule 10, the court's discretion over non-conforming offers, the criteria for Bullock/Sanderson orders, and the high threshold for granting a stay of execution, are well-established in Singaporean civil procedure. These principles have been consistently applied and refined in later cases, ensuring that practitioners understand the critical importance of strict compliance with procedural rules for offers to settle and the stringent requirements for obtaining discretionary relief such as a stay of execution.

Legislation Referenced

• Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed): s 34(2), s 41(1)
• Rules of Court (1997 Rev Ed): Order 18 Rule 19, Order 22, Order 22A Rule 9, Order 22A Rule 9(3), Order 22A Rule 9(5), Order 22A Rule 10, Order 22A Rule 10(b), Order 22A Rule 10(b)(i), Order 22A Rule 10(b)(ii), Order 22A Rule 11, Order 57 Rule 15, Order 59 Rule 2(2), Order 59 Rule 3(2), Order 59 Rule 5

Cases Cited

• Sanderson v Blyth Theatre Co [1903] 2 KB 533, CA: Cited for defining a "Sanderson Order" where the unsuccessful defendant pays the successful defendant's costs directly.
• Bullock v London General Omnibus Co [1907] 1 KB 264, CA: Cited for defining a "Bullock Order" where the plaintiff pays the successful defendant's costs and recovers them from the unsuccessful defendant.
• Mulready v Bell Ltd [1953] 2 All ER 215: Cited for the proposition that Bullock or Sanderson orders are inappropriate where the plaintiff alleges independent causes of action against different defendants.
• Mohd bin Sapri v Soil-Build (Pte) Ltd and another appeal [1996] 2 SLR 505: Cited for the principle that Bullock or Sanderson orders are not made where the plaintiff's uncertainty is as to the law, rather than the facts.
• Poulton v Moore [1913] WN 349: Cited for the principle that Bullock or Sanderson orders are for factual uncertainty, not legal uncertainty, as the plaintiff must bear the consequence of his own choice of defendants.
• Donovan v Walters (1926) 135 LT 12: Cited for the principle that Bullock or Sanderson orders are inappropriate where the plaintiff's claims against the defendants are separate and distinct.
• Finlay v Railway Executive [1950] 2 All ER 969: Cited for the principle that a defendant paying money into court exceeding the sum awarded is generally regarded as the successful party and entitled to costs from the date of payment in.
• Calderbank v Calderbank [1975] 3 WLR 586: Cited as authority for non-conforming offers to settle being treated as "Calderbank offers" where the court retains discretion on costs.
• Buckle v Holmes [1926] 2 KB 125: Cited for the principle that leave to appeal may be granted where the question is of general importance and a decision from a higher court would be to the public advantage.
• Lee Kuan Yew v Tang Liang Hong & Anor [1997] 3 SLR 489: Cited for the three limbs upon which leave to appeal may be sought: prima facie error, question of general importance decided for the first time, or question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage.
• Lee Sian Hee v Oh Kheng Soon [1992] 1 SLR 77: Cited for the well-established principles governing the grant of a stay of execution, including that the court does not deprive a successful litigant of the fruits of litigation, but an appeal should not be rendered nugatory.
• Lee Kuan Yew v J B Jeyaratnam [1990] SLR 740: Cited for the principles governing the grant of a stay of execution.
• Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 2 SLR 233: Followed Lee Sian Hee on the principles for granting a stay of execution.
• Cathay Theatres Pte Ltd v LKM Investment Holdings Pte Ltd [2000] 1 SLR 701: Cited for the requirement that the court must examine the facts to determine if special circumstances exist to justify a stay of execution.
• Exim Sales Corporation v Dolly Enterprises Pte Ltd (15 May 1997 in S150/96): Cited for the proposition that the mere fact that the plaintiff is a foreign company is insufficient to justify a stay of execution.
• Wu Shu Chen v Raja Zainal Abidin bin Raja Hussin & Anor [1995] 3 MLJ 224: Cited for the principle that special circumstances for a stay of execution must be "something distinctive and out of the way."
• Eng Yam Construction Sdn Bhd v TAP Properties Sdn Bhd: Cited for the proposition that a large amount of money involved does not per se constitute a special circumstance for a stay of execution.

Source Documents

• Original Judgment (PDF) — Singapore Law Watch
• Archived Copy (PDF) — Litt Law CDN