Mah Kiat Seng v Attorney-General and others [2023] SGHC 52

Sushant Shukla

Case Details

Citation: [2023] SGHC 52
Court: General Division of the High Court of the Republic of Singapore
Decision Date: 3 March 2023
Coram: Philip Jeyaretnam J
Case Number: Suit No 256 of 2020
Hearing Date(s): 27 February 2023
Plaintiff: Mah Kiat Seng
Defendants: Attorney-General (1st Defendant); Mohamed Rosli (2nd Defendant); Tan Thiam Chin Lawrence (3rd Defendant)
Counsel for Respondent: Sarah Shi and Chin Wan Yew, Rachel (Attorney-General’s Chambers)
Practice Areas: Civil Procedure; Costs; Litigant in Person

In Mah Kiat Seng v Attorney-General and others [2023] SGHC 52, the High Court addressed the complex and relatively under-explored principles governing the assessment of costs for a litigant in person (LIP) who achieves partial success in a multi-defendant action. This costs judgment followed the substantive liability decision in [2023] SGHC 14, where the plaintiff, Mah Kiat Seng, succeeded in claims of unlawful apprehension against a police officer and an unlawful search against the Singapore Police Force (SPF), but failed in a claim of assault against another officer.

The primary doctrinal contribution of this judgment lies in its articulation of a two-step methodology for quantifying LIP costs under Order 59 Rule 18A of the Rules of Court (Cap 332, R 5, 2014 Rev Ed). Jeyaretnam J rejected the adoption of the English Civil Procedure Rules (CPR) approach, which utilizes a fixed hourly rate and a two-thirds cap. Instead, the Court held that LIP costs should be assessed by estimating the reasonable time expended and applying a compensatory hourly rate that excludes the profit margin typically earned by legal practitioners. The Court determined that a one-third deduction from the standard Magistrate’s Court scale for junior solicitors was appropriate to account for this absent profit element.

Furthermore, the judgment clarifies the "incidence of costs" in cases involving multiple defendants represented by the same counsel. The Court rejected the plaintiff’s "thesis" argument—which posited that success on the core theme of the case (wrongful arrest) should entitle him to costs for the entire action. Instead, the Court maintained that costs must follow the event for each distinct claim and defendant. This resulted in a nuanced outcome where the plaintiff was awarded costs for his successful claims but was ordered to pay substantial costs for his unsuccessful ones, leading to a net balance in favor of the defendants. The decision serves as a critical reminder of the financial risks inherent in pursuing broad, multi-faceted claims against public officials where only a fraction of the allegations are ultimately sustained.

Timeline of Events

2020: Mah Kiat Seng commences Suit No 256 of 2020 by way of Writ of Summons against the Attorney-General and two police officers.
16 January 2023: Philip Jeyaretnam J delivers the liability judgment in [2023] SGHC 14, finding the 2nd Defendant liable for unlawful apprehension and the SPF liable for an unlawful search. The claim of assault against the 3rd Defendant is dismissed.
23 February 2023: The Plaintiff (Mah Kiat Seng) and the 1st to 3rd Defendants file their respective Costs Submissions.
27 February 2023: The Court hears parties on the incidence and quantum of costs.
3 March 2023: The High Court delivers the costs judgment in [2023] SGHC 52, quantifying the costs payable to and by the Plaintiff.

What Were the Facts of This Case?

The underlying dispute in Suit No 256 of 2020 involved a series of claims brought by Mah Kiat Seng, acting as a litigant in person, against the Attorney-General (representing the Singapore Police Force), Mohamed Rosli (a police officer), and Tan Thiam Chin Lawrence (another police officer). The litigation arose from an incident involving Mah’s interaction with the police, which led to his apprehension and a subsequent search of his person and belongings.

In the liability phase of the proceedings, the Court examined three primary categories of claims. First, Mah alleged that his apprehension by Mohamed Rosli was unlawful. Second, he claimed that the search conducted on his person and his bag by the SPF was unauthorized and unlawful. Third, he alleged that he had been assaulted by Tan Thiam Chin Lawrence during the course of these events. The defendants, represented by the Attorney-General’s Chambers (AGC), contested all allegations, maintaining that the officers acted within their legal powers and that no assault occurred.

The liability judgment, [2023] SGHC 14, resulted in a mixed outcome. The Court found in favor of Mah regarding the unlawful apprehension by Rosli and the unlawful search by the SPF. However, the Court dismissed the assault claim against Tan, finding it to be without merit. Consequently, the procedural posture for the costs hearing was one of "split success." Mah had succeeded against the 2nd Defendant and the SPF (represented by the 1st Defendant) but had failed against the 3rd Defendant and on several other specific allegations within the broader SPF claim.

During the costs hearing, the parties’ positions were diametrically opposed. Mah argued that because he had succeeded on the "thesis" of his case—that he was wrongfully arrested—he should be treated as the overall successful party. He sought costs for the entire duration of the proceedings, including the time he spent preparing for the case as a litigant in person. He relied on his own estimation of the hundreds of hours expended on legal research, drafting, and attendance at hearings.

The Defendants, conversely, argued for a strict "costs follow the event" approach. They contended that while Mah was entitled to costs for the successful claim against Rosli, he should pay the costs of the 3rd Defendant (Tan), against whom he had failed entirely. Furthermore, they argued that the SPF had succeeded on the majority of the issues raised in the claim against it, notwithstanding the finding on the unlawful search. The Defendants also challenged the quantum of costs a litigant in person could recover, arguing for a conservative assessment of the hourly rate and the time reasonably spent.

The Court was thus required to navigate the lack of detailed statutory guidance on LIP costs in Singapore, the complexities of apportioning costs among jointly represented defendants, and the appropriate classification of the tort claims for the purpose of applying the Costs Guidelines.

What Were the Key Legal Issues?

The costs determination turned on three primary legal issues, each involving the interpretation of the Rules of Court and the application of judicial discretion in the context of self-represented litigation.

The Incidence of Costs in Multi-Defendant Actions: Whether the court should adopt a "global" approach based on the overall "thesis" of the plaintiff's case or a "claim-by-claim" approach where costs follow the event for each specific defendant and cause of action. This involved interpreting Order 59 Rule 3(2) and the principle that a successful party is generally entitled to costs.
The Principles of Assessing Costs for a Litigant in Person: How the court should quantify the "costs" of a person who is not a legal practitioner. This required an interpretation of Order 59 Rule 18A of the ROC 2014, specifically whether the court should adopt a fixed hourly rate (as in the UK) or a compensatory model based on the value of the litigant's time minus a professional profit margin.
Apportionment and Classification under Costs Guidelines: How to categorize a suit involving police powers and tortious claims (e.g., "Tort" vs. "Simple Tort") and how to apportion the total costs of joint representation between successful and unsuccessful defendants to avoid double-counting or over-compensation.

How Did the Court Analyse the Issues?

The Court’s analysis began with the incidence of costs. Jeyaretnam J addressed Mah’s "thesis" argument—that the core of the case was wrongful arrest and that his success on that core should dictate the costs of the entire suit. The Court rejected this, emphasizing that the "event" for the purpose of costs must be viewed in relation to each defendant. At [4], the Court noted that while Mah succeeded against Rosli, he "failed in his claim for assault against Tan." Therefore, the 3rd Defendant was the successful party in the claim against him and was entitled to his costs. Similarly, regarding the SPF, the Court found that while Mah succeeded on the search issue, the SPF succeeded on "many other issues," including the legality of the detention after the initial apprehension. The Court concluded that the SPF was "overall the successful party" in the claims against it, though Mah’s success on the search would be a mitigating factor in the quantum.

The most significant portion of the analysis concerned the quantum of costs for a litigant in person. The Court noted that Order 59 Rule 18A of the ROC 2014 allows a LIP to recover "costs" for the work done and expenses incurred. However, the rule does not specify an hourly rate. Mah had pointed to the English case of Campbell v Campbell [2016] EWHC 2237 (Ch), which references a fixed rate in the English CPR (currently £19 per hour) and a cap of two-thirds of what a lawyer would have been allowed. Jeyaretnam J distinguished this, stating at [8]:

"But that is a decision on certain provisions of the English Civil Procedure Rules, which are not found in our Rules of Court. In particular, our rules do not set an hourly rate for litigants in person."

Instead, the Court formulated a Two-Step Approach for Singapore:

Step 1: Estimating Reasonable Time Spent. The Court held that a LIP does not necessarily need to produce contemporaneous time sheets. At [13], the Court stated: "The court is able to use its own experience of litigation to estimate the reasonable time spent." For the successful claim against Rosli, the Court estimated that a junior lawyer would have spent 161 hours. Acknowledging that a LIP is less efficient, the Court applied a 2.0 multiplier, resulting in 322 hours of "reasonable time" for Mah.

Step 2: Determining the Hourly Rate. The Court sought a rate that was compensatory but excluded the profit margin inherent in a lawyer’s fee. The Court looked to the Magistrate’s Court scale for a solicitor with less than five years' experience, which is $100 per hour. Jeyaretnam J reasoned that approximately one-third of a lawyer’s hourly rate represents profit. Thus, a LIP should receive the remaining two-thirds. At [15], the Court calculated this as $66.66, which it then rounded down to $60 per hour to ensure proportionality, given that the damages awarded to Mah were only $20,000.

Regarding the costs payable by Mah to the Defendants, the Court had to classify the action. The Defendants argued it was a "Simple Tort," but the Court disagreed. At [19], Jeyaretnam J held that the case involved "the exercise of police powers and the liberty of the subject," making it a "Tort" case rather than a "Simple Tort." This classification led to a higher range of costs under the Guidelines ($35,000 to $50,000 for pre-trial work).

The Court then addressed apportionment. Since the AGC represented all three defendants jointly, the Court had to ensure the total award did not exceed the actual costs incurred. The Court estimated the total reasonable costs for the entire defense of all three defendants to be $170,000. Since the defense of Rosli (where Mah succeeded) and the defense of Tan/SPF (where the Defendants succeeded) were roughly equal in weight, the Court divided this total by half. This resulted in $85,000 being the costs attributable to the successful defense of Tan and the SPF. The Court explicitly avoided "double-counting" by ensuring that the costs awarded to the successful defendants did not include work done solely for the unsuccessful defendant (Rosli).

What Was the Outcome?

The Court issued a split costs order that accounted for the varying degrees of success across the different claims. The final orders were as follows:

Costs Awarded to Mah Kiat Seng: For his successful claim against the 2nd Defendant (Rosli), Mah was awarded costs of $19,320. This was calculated based on 322 estimated hours at an hourly rate of $60.
Costs Awarded to the Defendants: For the successful defense of the 3rd Defendant (Tan) and the partial success of the 1st Defendant (SPF), Mah was ordered to pay costs of $85,000.
Disbursements: The Court ordered that disbursements be taxed if not agreed.
Set-off: The Court directed that the costs be set off against each other. Furthermore, the Court allowed the net balance of costs owing to the defendants to be set off against the damages (and interest) previously awarded to Mah in the liability judgment.

The operative conclusion of the Court regarding the final balance was stated at [26]:

"As is apparent from this costs judgment, there is indeed a net balance of costs owing to the defendants against which the damages (and any accrued interest) may be duly set off."

This outcome meant that despite winning $20,000 in damages for unlawful apprehension, the plaintiff ended the litigation with a significant financial liability to the state, as the $85,000 in costs owed to the defendants far exceeded his own costs award and the damages combined. The Court noted that this was a consequence of the plaintiff choosing to pursue numerous unsuccessful and unmeritorious claims alongside his successful ones.

Why Does This Case Matter?

Mah Kiat Seng v Attorney-General [2023] SGHC 52 is a seminal decision for Singapore’s civil procedure, particularly regarding the treatment of litigants in person. Its significance can be analyzed across three dimensions.

First, it establishes a clear, compensatory framework for LIP costs. Prior to this case, there was significant uncertainty as to how a court should value the time of a non-lawyer. By rejecting the English CPR’s arbitrary fixed rate and instead linking LIP costs to the Magistrate’s Court scale (minus a one-third profit margin), Jeyaretnam J provided a principled basis for assessment. This "solicitor’s rate minus profit" model ensures that LIPs are compensated for the "opportunity cost" of their time and the effort expended, without being placed in a better position than a professional lawyer who must cover overheads and earn a living. It balances the need for access to justice with the reality that a LIP does not possess the same professional qualifications or overhead costs as a solicitor.

Second, the judgment reinforces the principle of proportionality in costs. The Court’s decision to round down the LIP rate from $66.66 to $60 was explicitly driven by the need to keep costs proportionate to the $20,000 damages award. This demonstrates that the "proportionality" requirement in Order 59 is not merely a secondary consideration but a primary tool for the court to adjust mathematical calculations to achieve a just result. Practitioners should note that even if a time-based calculation yields a certain figure, the court will "step back" to ensure the final number makes sense in the context of the claim’s value.

Third, the case provides a cautionary tale regarding the "incidence of costs" in complex litigation. Many litigants (and some practitioners) mistakenly believe that winning on a "core" issue makes them the "successful party" for the entire suit. This judgment clarifies that in the Singapore High Court, the "event" is often divisible. By treating the claims against Rosli, Tan, and the SPF as distinct "events," the Court ensured that the defendants were not penalized for the failure of one officer when the others were vindicated. For litigants, this highlights the extreme financial risk of "over-pleading" or joining multiple defendants without a solid evidentiary basis for each. Mah’s success on the unlawful apprehension claim was effectively "cannibalized" by the costs he incurred for the failed assault claim.

Finally, the classification of the suit as a "Tort" case rather than a "Simple Tort" case is significant for litigation involving public authorities. The Court recognized that cases involving the "liberty of the subject" and the "exercise of police powers" involve a level of legal and public interest complexity that transcends standard negligence or personal injury claims. This sets a precedent for higher costs recovery in civil rights and public law-adjacent litigation in the General Division.

Practice Pointers

For Litigants in Person: While the Court can estimate time based on experience, LIPs should still maintain detailed logs of work done. The 2.0 efficiency multiplier applied in this case is a guideline, not a rule, and the Court may be less generous if the LIP’s work is disorganized or redundant.
The "Profit Margin" Deduction: Practitioners and LIPs should expect a deduction of approximately 30% to 33% from standard solicitor rates when calculating LIP costs to account for the absence of professional profit and overheads.
Proportionality is Paramount: When the value of the claim is low (e.g., $20,000), the Court will use the Magistrate’s Court scale as a starting point even for High Court matters, and may further discount the rate to ensure costs do not disproportionately exceed the damages.
Apportionment Strategy: In multi-defendant cases with joint representation, counsel should clearly delineate work done for each defendant. The Court will apply a "fractional" approach to the total defense costs to determine what is payable by the plaintiff for failed claims.
Avoid the "Thesis" Trap: Do not rely on the argument that success on a central theme entitles a party to all costs. Each distinct cause of action and each defendant represents a separate "event" for the purpose of Order 59 Rule 3(2).
Classification Matters: In costs submissions, argue the "Tort" vs. "Simple Tort" distinction based on the complexity of the legal powers involved (e.g., statutory interpretation of police powers) rather than just the factual simplicity of the incident.

Subsequent Treatment

As a 2023 decision, [2023] SGHC 52 stands as a contemporary authority on the assessment of costs for litigants in person under the 2014 Rules of Court. It has been cited for its pragmatic "Two-Step" approach to LIP quantum and its refusal to import the English CPR's fixed-rate regime into Singapore law. It remains the leading reference for the "one-third profit deduction" principle in the General Division.