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 of Decision: 14 November 2013
- Coram: Jordan Tan AR
- Case Number: Suit No 245 of 2009/W; NA 21 of 2012/V
- Tribunal/Court: High Court
- Plaintiff/Applicant: Li Siu Lun (“Mr Li”)
- Defendants/Respondents: Looi Kok Poh (“Dr Looi”) and another (Gleneagles Hospital)
- Legal Area: Damages (assessment of damages following interlocutory judgment)
- Procedural Posture: 2nd defendant consented to interlocutory judgment for conspiracy; proceedings concerned assessment of damages between Mr Li and Gleneagles
- Judicial Reasoning Focus: Whether certain legal costs could be recovered as damages in the same proceedings; consequences of consent interlocutory judgment on costs
- 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)
- Counsel for Defendants: Lek Siang Pheng, Audrey Chiang, June Hong (Rodyk & Davidson LLP)
- Judgment Length: 9 pages; 5,240 words
- Statutes Referenced: (as stated in extract) O 59 r 27 and O 59 r 3(5) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed Sing); O 27 r 2; Private Hospital and Medical Clinics Regulations (Regulation 12)
- Cases Cited: [2008] SGHC 143; [2013] SGHCR 27
Summary
This High Court decision concerns the assessment of damages after the 2nd defendant, Gleneagles Hospital (“Gleneagles”), consented to an interlocutory judgment in favour of Mr Li for the tort of conspiracy. The remaining dispute was not liability, but the scope of damages recoverable from Gleneagles, particularly whether Mr Li could recover as “damages” certain legal costs he incurred in the course of the litigation.
The court (Jordan Tan AR) held that the rule in Ganesan Carlose & Partners v Lee Siew Chun—which permits recovery of legal costs incurred in “other proceedings” necessitated by a defendant’s wrongdoing—did not extend to costs incurred within the same proceedings, including costs relating to interlocutory applications and the assessment process itself. The court emphasised that there is “no magic” in bifurcation: an assessment of damages is part of the same proceedings, not “other proceedings” for the purposes of the cognate rule.
In addition, the court treated a consent interlocutory judgment as determinative of costs allocation for the action between Mr Li and Gleneagles. Mr Li’s alternative attempt to recover costs under the “notice to admit facts” costs provision was also rejected because the consent interlocutory judgment did not alter the existing costs order for the interrogatory application.
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. His medical history in this case begins when he sought treatment from Dr Looi, who was operating a clinic at Gleneagles.
Mr Li consented to a single surgical procedure on 26 April 2006: “tenolysis of the right hand”. On the day of surgery, however, an additional procedure—“ulnar neurolysis and repair”—was performed. Critically, Mr Li’s consent form was altered to add the words “and ulnar neurolysis and repair” even though he had not consented to that additional surgery. After the procedure, Mr Li’s hand was in a worse condition; he could not even straighten his little finger.
Mr Li commenced legal action against both Dr Looi and Gleneagles. He did not know with certainty what had transpired at the time, but he suspected that the consent form had been doctored. Although he could not read English, he inferred that the consent form had been altered because of the additional words. To uncover the truth, he applied to court for a Gleneagles nurse, Ms Chew Soo San (“Ms Chew”), to answer questions through interrogatories. The defendants resisted the application, but Mr Li succeeded, and the truth emerged from Ms Chew’s answers.
The evidence showed that Ms Chew 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 to be entered against himself and the claim between Mr Li and Dr Looi was settled. Gleneagles, however, persisted in its defence. The court noted that Gleneagles had conducted an investigation after the surgery. An internal email dated 27 August 2007 from a Gleneagles Group Senior Manager, Mrs Ruth Quek, to other staff indicated that a report from Ms Chew was needed to clarify what happened and that Gleneagles had reported the case to its insurers. The court inferred that Gleneagles knew by the end of August 2007 that the consent form had been altered.
At trial, despite persisting in its defence earlier, Gleneagles consented in September 2011 to an interlocutory judgment being entered against it. The present proceedings were therefore confined to the assessment of damages between Mr Li and Gleneagles, with liability already determined by consent.
What Were the Key Legal Issues?
The first key issue was whether Mr Li could recover, as damages, legal costs incurred for an interlocutory application to compel interrogatories from Ms Chew, and related costs ordered against him. Mr Li relied on the principle in Ganesan Carlose & Partners v Lee Siew Chun that a plaintiff may recover legal costs incurred in “other proceedings” necessitated by the defendant’s wrongdoing.
Closely connected to this was the question of whether the assessment of damages proceedings (and the interlocutory applications within the action) could be characterised as “other proceedings” for the purpose of the Ganesan Carlose rule. Mr Li argued that because the proceedings were bifurcated, the damages assessment should be treated as separate from the liability determination, thereby bringing it within the “other proceedings” concept.
The second key issue concerned Mr Li’s attempt to recover legal costs incurred in proceedings against Dr Looi. Mr Li sought to ground this head of damages 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 duties relating to proper medical records. Gleneagles argued that this claim was not properly pleaded, but the court accepted that it had been pleaded. The remaining question was whether legal costs incurred in the present proceedings could be recovered as damages on that basis.
Finally, the court had to consider the effect of a consent interlocutory judgment on costs. The interlocutory judgment between Mr Li and Gleneagles included terms that liability had been established and that damages would be assessed, with costs awarded to Mr Li. The court needed to determine whether this consent order precluded Mr Li from re-litigating or re-characterising costs already dealt with in the interlocutory judgment.
How Did the Court Analyse the Issues?
The court began by addressing Mr Li’s claim for damages representing 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 legal costs he had been ordered to pay her. His reliance on Ganesan Carlose was central: he argued that because Gleneagles’ wrongdoing necessitated the interrogatories application, the costs should be recoverable as damages.
Jordan Tan AR rejected this. The court agreed with Gleneagles that the Ganesan Carlose rule applies only to legal costs incurred in “other proceedings”. The rationale for the limitation, as explained by the Court of Appeal in Ganesan Carlose, is that costs of proceedings before the court seized of the matter are for that court to decide as part of the ordinary costs regime. It is therefore unnecessary—and conceptually inappropriate—to treat such costs as damages. The court’s reasoning reflects a structural distinction in civil procedure: costs are generally recoverable through costs orders, not through damages claims, unless the law recognises an exception for costs in separate proceedings.
Mr Li attempted to circumvent this by arguing that the damages assessment proceedings should be construed as “other proceedings”. The court found this contention untenable. It held that an assessment of damages is “very much a part of the proceedings” on the determination of liability. The bifurcation of proceedings does not transform the assessment stage into separate proceedings. The court underscored that there is “no magic” in bifurcation: the procedural splitting of issues does not change the underlying character of the proceedings for the purpose of the Ganesan Carlose rule.
In support of this conclusion, the court pointed to the Court of Appeal’s express reference in Ganesan Carlose to the taking up of a “subsequent action” for costs in other proceedings. The court also noted that developments in the common law world have been mixed regarding the cognate rule, including discussions in McGregor on Damages. However, the court considered that such broader comparative discussion was not necessary for the decision because the issue before it was straightforward: the costs sought were costs within the same action, not costs incurred in a separate subsequent action.
Having determined that Ganesan Carlose was inapplicable, the court then considered the specific costs order relating to the interrogatories application. While the costs decision had been made before the full truth emerged from Ms Chew’s interrogatory answers, the court indicated that any revisiting of that costs order would be within the province of the trial judge. In other words, the proper procedural route for challenging or adjusting costs orders is through the costs regime, not by reclassifying the costs as damages.
The court then addressed the consent interlocutory judgment. The interlocutory judgment recorded that Gleneagles was liable for its nurse adding the additional words to the consent form and supplying the amended form without informing Mr Li, and that Mr Li’s damages be assessed, with costs awarded to him. The court held that it was clear from the terms of the consent judgment that the parties had agreed that costs of the action between Gleneagles and Mr Li would be paid by Gleneagles to Mr Li, with costs assessed on a standard basis under the Rules of Court. Because the Ganesan Carlose rule did not apply, Mr Li had to abide by the consent interlocutory judgment, which was determinative of the costs issue for the action.
Mr Li advanced an alternative argument based on O 59 r 3(5) of the Rules of Court. That provision concerns the costs consequences where a party refuses or neglects to admit a fact under a Notice to Admit Facts. Mr Li argued that he could recover costs for proving the relevant facts. The court accepted that this argument might otherwise have been viable, but held it was extinguished by the parties’ decision to consent to the interlocutory judgment. The consent judgment disposed of costs of the action and did not alter the extant costs order for the interrogatory application. Thus, procedural consent operated as a bar to re-opening costs through a different legal route.
The court then turned to Mr Li’s claim for legal costs incurred in proceedings against Dr Looi. Mr Li sought $45,000 to $66,000, representing the difference between costs he had expended and costs he could recover as party-and-party costs against Dr Looi. He grounded this 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. The court accepted that the claim had been pleaded, citing the relevant paragraphs in the statement of claim.
However, the court again held that the costs sought were costs incurred in the present proceedings and therefore fell within the same conceptual limitation: costs incurred in the proceedings before the court are not recoverable as damages in those proceedings. The court reiterated that the issue of costs is for the trial judge, and in any event the consent interlocutory judgment already made provision for costs.
Although the extract ends before the court’s full treatment of compensatory damages, the reasoning visible in the portion provided demonstrates a consistent theme: the court maintained the boundary between damages and costs. It treated the procedural costs regime and the effect of consent orders as controlling, rather than allowing costs to be converted into damages through inventive characterisation.
What Was the Outcome?
The court dismissed Mr Li’s claim to recover, as damages, legal costs incurred for the application to serve interrogatories on Ms Chew, and the related costs he had been ordered to pay. The court held that the Ganesan Carlose exception for “other proceedings” did not apply because the interrogatories application and the damages assessment were part of the same proceedings, not separate subsequent proceedings.
Further, the court held that Mr Li could not circumvent the consent interlocutory judgment on costs by relying on O 59 r 3(5). The consent interlocutory judgment was determinative of costs allocation for the action between Mr Li and Gleneagles. The court also rejected Mr Li’s attempt to recover as damages the difference between his costs and party-and-party costs in proceedings against Dr Looi, again because the costs were not recoverable as damages within the same proceedings and the trial judge’s costs determination was the proper forum.
Why Does This Case Matter?
This case is practically significant for litigators because it draws a firm procedural boundary between “damages” and “costs”. The decision reinforces that, in Singapore civil litigation, legal costs incurred within the same action are generally recovered through costs orders rather than by re-characterising them as damages. This matters for plaintiffs seeking to expand recoverable sums after liability has been established, especially where the plaintiff has incurred substantial interlocutory costs to uncover evidence.
From a doctrinal perspective, the decision clarifies the scope of the Ganesan Carlose principle. The court’s reasoning that there is “no magic” in bifurcation is a useful interpretive point for cases involving split trials or staged proceedings. Practitioners should not assume that procedural segmentation automatically converts costs into “other proceedings” for the purpose of the cognate rule.
Finally, the decision highlights the legal effect of consent interlocutory judgments on costs. Where parties consent to a costs regime within an interlocutory order, subsequent attempts to re-open costs through alternative statutory mechanisms may fail. Lawyers should therefore carefully consider the drafting and implications of consent orders, particularly when interlocutory applications (such as interrogatories or notices to admit) have already generated costs consequences.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2006 Rev Ed Sing): O 59 r 27
- Rules of Court (Cap 322, R 5, 2006 Rev Ed Sing): O 59 r 3(5)
- Rules of Court (Cap 322, R 5, 2006 Rev Ed Sing): O 27 r 2
- Private Hospital and Medical Clinics Regulations: Regulation 12 (duty relating to 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.