Case Details
- Citation: [2013] SGHCR 27
- Title: Li Siu Lun v Looi Kok Poh and another
- Court: High Court of the Republic of Singapore
- Date: 14 November 2013
- Judges: Jordan Tan AR
- Coram: Jordan Tan AR
- Case Number: Suit No 245 of 2009/W (NA 21 of 2012/V)
- Tribunal/Court: High Court
- Decision: Judgment reserved; decision delivered on 14 November 2013
- Plaintiff/Applicant: Li Siu Lun (“Mr Li”)
- Defendant/Respondent: Looi Kok Poh and another
- Defendants’ roles: 1st Defendant: Dr Looi Kok Poh; 2nd Defendant: Gleneagles Hospital (“Gleneagles”)
- Legal Area: Damages (assessment following interlocutory judgment)
- Procedural posture: Interlocutory judgment entered by consent against Gleneagles for tort of conspiracy; assessment of damages between Mr Li and Gleneagles
- Key counsel for plaintiff: Roderick Edward Martin SC, Eugene Nai, Ooi Jian Yuan (Martin & Partners); instructed by Tan-Goh Song Gek Alice (A C Fergusson Law Corporation)
- Key counsel for defendants: Lek Siang Pheng, Audrey Chiang, June Hong (Rodyk & Davidson LLP)
- Statutes Referenced: (as stated in the extract) Rules of Court (Cap 322, R 5, 2006 Rev Ed Sing) including O 59 r 27 and O 59 r 3(5); O 27 r 2; Private Hospital and Medical Clinics Regulations (including Regulation 12)
- Cases Cited: [2008] SGHC 143; [2013] SGHCR 27
- Judgment length: 9 pages, 5,240 words
Summary
Li Siu Lun v Looi Kok Poh and another [2013] SGHCR 27 is a High Court decision on the assessment of damages following an interlocutory judgment entered by consent. The plaintiff, Mr Li, sued both Dr Looi and Gleneagles Hospital after an unauthorised alteration of a surgical consent form resulted in an additional procedure being performed. While the claim against Dr Looi was settled, the proceedings continued against Gleneagles for damages in relation to the tort of conspiracy.
The court (Jordan Tan AR) rejected Mr Li’s attempt to recover, as damages, substantial legal costs incurred in the same action and in related procedural steps. In particular, the court held that the “other proceedings” rule in Ganesan Carlose & Partners v Lee Siew Chun [1995] 1 SLR(R) 358 did not apply to costs incurred within the same proceedings, even where the damages assessment was bifurcated. The court also treated the parties’ consent interlocutory judgment as determinative of costs, extinguishing alternative arguments for recovering costs under the Rules of Court.
What Were the Facts of This Case?
Mr Li is a British citizen resident in Hong Kong. He speaks no English and gave evidence in Cantonese with the assistance of an interpreter. He is self-employed and trades in property and stocks. In 2006, he sought medical treatment from Dr Looi, who was operating a clinic at Gleneagles Hospital. Mr Li consented to a single surgical procedure: “tenolysis of the right hand”.
On 26 April 2006, however, the surgery performed included an additional procedure: “ulnar neurolysis and repair”. Mr Li’s consent form was also altered to add the words “and ulnar neurolysis and repair”, despite the fact that he had not given consent to that additional surgery. After the operation, Mr Li’s hand was in a worse condition; notably, he could not even straighten his little finger.
Mr Li brought an action against Dr Looi and Gleneagles. At the time of filing, he did not know with certainty what had transpired, but he suspected that the consent form had been doctored. Although he could not read English, he inferred that the document had been altered because of the additional words. To uncover the truth, he applied to the court for a Gleneagles nurse, Ms Chew Soo San (“Ms Chew”), to answer questions through interrogatories. The defendants resisted this application, but Mr Li succeeded and the truth emerged from Ms Chew’s answers.
Ms Chew had altered the consent form without Mr Li’s knowledge, but she did so under Dr Looi’s instruction. In light of this, Dr Looi applied for judgment against himself and the claim between Mr Li and Dr Looi was settled. Gleneagles, however, continued to resist the suit. The evidence showed that Gleneagles conducted an internal investigation after the surgery. An internal email dated 27 August 2007 from a Gleneagles Group Senior Manager, Mrs Ruth Quek, to other staff referred to the amended consent form and indicated that a report was needed from Ms Chew on what exactly happened, and that the case had been reported to insurers. The court inferred that Gleneagles was aware by the end of August 2007 that the consent form had been altered, and certainly by the time the action was initiated.
What Were the Key Legal Issues?
The principal issues concerned the recoverability of legal costs as damages and the effect of a consent interlocutory judgment on costs. Mr Li sought damages for legal costs incurred in relation to (i) an application for interrogatories to be served on Ms Chew, and (ii) legal costs incurred in proceedings against Dr Looi. He also advanced arguments grounded in procedural rules and in an alleged breach of a common law right of access to medical records fortified by Regulation 12 of the Private Hospital and Medical Clinics Regulations.
Accordingly, the court had to decide whether legal costs incurred by the plaintiff in the same action (including costs of interlocutory steps such as interrogatories) could be claimed as damages, and whether the “other proceedings” principle in Ganesan Carlose permitted recovery where the costs were incurred within the same set of proceedings, albeit with bifurcation between liability and damages. A further issue was whether Mr Li could circumvent the consent interlocutory judgment’s costs disposition by invoking alternative procedural provisions in the Rules of Court.
How Did the Court Analyse the Issues?
The court began by addressing Mr Li’s claim for damages for legal costs incurred for the application to serve interrogatories on Ms Chew. Mr Li claimed $25,000 in legal costs for that application, plus $1,500 in costs ordered to be paid to Ms Chew. He relied on the principle in Ganesan Carlose & Partners v Lee Siew Chun [1995] 1 SLR(R) 358, which recognises that a plaintiff may claim legal costs incurred in other proceedings as damages where those costs were necessitated by the defendant’s wrongdoing.
Gleneagles argued that the Ganesan Carlose rule applies only to legal costs incurred in other proceedings, not to costs incurred in the proceedings before the court. The court agreed. It explained the rationale for the limitation: costs of the proceedings before the court are for the court seized of the matter to decide as part of the ordinary costs regime. Where costs are in issue, the court can determine them within the same action, and there is no need to characterise them as damages. The court also referred to the Court of Appeal’s explanation of the rationale in Ganesan Carlose at [19].
Mr Li attempted to recharacterise the damages assessment proceedings as “other proceedings” by pointing to language in Ganesan Carlose at [19], where the Court of Appeal described the need for a subsequent action to recover costs incurred in other proceedings. The court rejected the contention that bifurcation changes the character of the proceedings. It held that an assessment of damages is “very much a part of the proceedings on the determination of liability”, and that there is “no magic in bifurcation”. The court reasoned that if liability and damages are determined at trial without bifurcation, the costs would plainly be within the same proceedings; bifurcation should not transform them into “other proceedings” for the purpose of the rule.
The court further noted that Ganesan Carlose’s discussion of a “subsequent action” indicates that the costs recoverable under that principle are those incurred in a separate action. While it acknowledged that there are mixed developments in other common law jurisdictions regarding whether costs from previous proceedings can be recovered as damages in fresh proceedings, the court emphasised that such comparative discussion was not directly in issue. The court therefore limited its analysis to the controlling Singapore principle and the procedural posture before it.
Applying these principles, the court held that the costs of the interrogatories application were not recoverable as damages in the damages assessment proceedings. The court observed that the decision on costs for the interrogatories application had been made before the truth emerged from Ms Chew’s answers. While that might provide a reason for the trial judge to revisit the costs order, the court held that revisiting costs was within the trial judge’s province. It therefore declined to grant damages for those costs in the present assessment.
Mr Li advanced an alternative argument: that he could claim the legal costs for the interrogatories application under O 59 r 3(5) of the Rules of Court. That provision concerns costs consequences where a party refuses or neglects to admit a fact under a Notice to Admit Facts served under O 27 r 2. The court accepted that this could be a viable argument in principle. However, it held that the argument was “extinguished” by the parties’ decision to consent to the interlocutory judgment. The consent interlocutory judgment was clear in its disposal of costs of the action and made no alteration to the existing costs order for the interrogatory application. In other words, the consent order controlled, and the plaintiff could not use the procedural costs rule to reopen what the consent judgment had already settled.
The court then turned to Mr Li’s second head of claim: damages for legal costs incurred in proceedings against Dr Looi. Mr Li sought $45,000 to $66,000, described as the difference between costs he had expended and the costs he might recover as party-and-party costs against Dr Looi. He attempted to ground this claim on an alleged breach of a common law right of access to medical records, fortified by Regulation 12 of the Private Hospital and Medical Clinics Regulations, which imposes a duty on hospitals to maintain proper medical records.
Gleneagles argued that this claim had not been pleaded. The court disagreed and found that the claim had been pleaded in the statement of claim (amendment no 5), including paragraphs 62 and 64(a). The court therefore accepted that the factual and legal basis was properly raised. However, even with pleading established, the court held that the plaintiff was still seeking damages for legal costs incurred in the present proceedings. For the same reasons as before, costs incurred in the same action were not recoverable as damages. The question of costs was within the trial judge’s remit, and the trial judge had already recorded a consent interlocutory judgment providing for costs.
Finally, the court addressed compensatory damages. The extract provided truncates the remainder of the judgment, but the reasoning up to that point makes clear that the court’s central approach was procedural and remedial: it treated the consent interlocutory judgment as governing costs and treated the plaintiff’s attempt to convert costs into damages as legally impermissible within the same action.
What Was the Outcome?
The court dismissed Mr Li’s claims for damages that were essentially legal-costs claims arising from procedural steps and from costs incurred in the same action. It held that the Ganesan Carlose principle did not apply because the costs were not incurred in “other proceedings”, and because bifurcation did not transform the damages assessment into a separate set of proceedings. The court also held that the consent interlocutory judgment was determinative of costs, extinguishing Mr Li’s alternative reliance on O 59 r 3(5).
Practically, this meant that Mr Li could not recover the claimed sums as damages in the damages assessment phase against Gleneagles. Instead, any adjustment to costs would have to be pursued within the framework of the trial judge’s costs orders and the consent interlocutory judgment already entered.
Why Does This Case Matter?
This decision is significant for litigators because it clarifies the boundary between (i) recoverable damages and (ii) recoverable costs within the same action. The court’s analysis reinforces that the “other proceedings” rule in Ganesan Carlose is not a general mechanism to repackage costs incurred during the litigation into damages. Where the costs are part of the proceedings before the court, the ordinary costs regime applies, and the court seized of the matter will determine costs.
For practitioners, the case also highlights the legal effect of consent interlocutory judgments on costs. Even where a plaintiff can identify a potentially relevant procedural costs provision (such as O 59 r 3(5)), a clear consent order disposing of costs may prevent later attempts to reframe or reopen the costs consequences. This is a cautionary tale for parties: consent orders can foreclose later remedial arguments, even if those arguments might otherwise be “viable”.
Finally, the court’s rejection of the “no magic in bifurcation” argument provides useful guidance in bifurcated proceedings. Plaintiffs and defendants should not assume that splitting liability and damages creates a new procedural category that changes the legal character of costs. The decision therefore supports predictability in costs recovery and encourages parties to address costs at the appropriate stage and before the appropriate forum.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2006 Rev Ed Sing): O 59 r 27 (standard basis of assessment of costs)
- Rules of Court (Cap 322, R 5, 2006 Rev Ed Sing): O 59 r 3(5) (costs consequences for refusal/neglect to admit facts under Notice to Admit Facts)
- Rules of Court (Cap 322, R 5, 2006 Rev Ed Sing): O 27 r 2 (Notice to Admit Facts)
- Private Hospital and Medical Clinics Regulations: Regulation 12 (duty to maintain proper medical records)
Cases Cited
- Ganesan Carlose & Partners v Lee Siew Chun [1995] 1 SLR(R) 358
- [2008] SGHC 143
- [2013] SGHCR 27
Source Documents
This article analyses [2013] SGHCR 27 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.