Case Details
- Citation: [2009] SGHC 29
- Title: Ong Jane Rebecca v Pricewaterhousecoopers and Others
- Court: High Court of the Republic of Singapore
- Date of Decision: 06 February 2009
- Judge: Judith Prakash J
- Coram: Judith Prakash J
- Case Number(s): Suit 156/2006; RA 203/2008; RA 204/2008; RA 205/2008; RA 206/2008; RA 207/2008; RA 218/2008; RA 226/2008
- Procedural Posture: Reasons given for decisions on multiple Registrar’s Appeals arising from defendants’ applications for security for costs
- Plaintiff/Applicant: Ong Jane Rebecca
- Defendants/Respondents: Pricewaterhousecoopers and Others
- Parties (as described): Ong Jane Rebecca — Pricewaterhousecoopers; Pricewaterhousecoopers LLP; Arul Chew & Partners
- Legal Area: Civil Procedure — Costs (Security for costs)
- Key Issues (as framed in headnotes): (i) Whether security for costs is needed when defendants are insured; (ii) Whether overlap between defences and counterclaims should be considered in deciding whether to order security and the quantum; (iii) Whether impecuniosity of an individual plaintiff is a stronger factor than impecuniosity of a company in favour of encouraging access to court
- Statutes Referenced: Rules of Court (Cap 322, 2006 Rev. Ed.), O 23 r 1(1)(a)
- Counsel for Plaintiff: Edmund Kronenburg, Andrew Ho and Gina Tan (instructed); Sam Koh (Sam Koh & Co)
- Counsel for First and Second Defendants: Eugene Thuraisingam (Allen & Gledhill LLP)
- Counsel for Third Defendant: Quentin Loh SC, Elaine Tay and Tan Ai Lin (Rajah & Tann LLP)
- Judgment Length: 6 pages, 3,434 words
Summary
Ong Jane Rebecca v Pricewaterhousecoopers and Others [2009] SGHC 29 concerned multiple applications by defendants for security for costs against a plaintiff who was ordinarily resident out of Singapore. The High Court (Judith Prakash J) reiterated that the fact of being out of jurisdiction does not automatically entitle a defendant to security; rather, the court must exercise a discretion under O 23 r 1(1)(a) of the Rules of Court, having regard to all the circumstances.
The court accepted that the plaintiff’s claim was not so weak as to justify a denial of security on the basis of lack of arguability, but it also treated the strength of the claim as a neutral factor. The judge rejected the plaintiff’s contention that defendants’ insurance made security unnecessary, holding that insurance is irrelevant to whether security should be ordered. The court also addressed how to approach the quantum of security, including whether the existence of counterclaims and overlap between defence and counterclaims should affect the amount ordered.
What Were the Facts of This Case?
The plaintiff, Ong Jane Rebecca, is a British national residing in the United Kingdom. Her litigation history in Singapore began in 1991 when she commenced proceedings by Originating Summons No 939 of 1991 (“OS 939”) against, among others, her ex-husband’s mother. The underlying dispute concerned the plaintiff’s asserted entitlement to a share in the estate of Ong Seng King, deceased (the “Estate”).
Following a High Court judgment dated 16 July 2006, the court directed an inquiry to determine the Estate’s assets and the plaintiff’s rights, share and/or entitlement. In connection with that inquiry, the plaintiff engaged PricewaterhouseCoopers (“PwC”) as an expert to assist her in ascertaining her rights and to respond to reports prepared by the Estate’s accountants, Messrs Arthur Andersen. The plaintiff’s case was that PwC and PwC UK (PwC’s UK affiliate) were engaged as experts around April 1999 for the purposes of the inquiry, and that PwC UK had recommended PwC and, in particular, Mr Chan Kek Teck, as an expert well known to Singapore courts.
In March 2006, the plaintiff commenced a separate action, Suit 156 of 2006/W, against three sets of defendants: PwC, PwC UK, and her solicitors (the third defendants). The plaintiff sought damages for breach of contract and/or breach of duty of care, alleging that PwC negligently failed to act with reasonable skill or care in carrying out its duties. Her central allegation against PwC was that PwC’s report adopted an erroneous methodology. She argued that although the scope of the inquiry did not permit recovery for breaches of trust committed by the personal representative of the Estate, PwC’s report purported to deal with the Estate on the basis that such breaches existed, thereby inflating the number and value of assets.
PwC defended the claim by asserting that it prepared its report and proceeded with the inquiry according to the plaintiff’s express instructions and those of her solicitors. PwC also counterclaimed for unpaid professional fees for services rendered. As for PwC UK, the plaintiff alleged that it should be liable to the same extent as PwC, primarily because it allegedly failed to supervise PwC’s work, or alternatively because it failed to recommend a competent expert. PwC UK’s position was that it had recommended PwC, but that PwC was subsequently appointed by the plaintiff and liaised with her; it denied any contractual relationship with the plaintiff and denied any duty to supervise PwC’s work.
Regarding the third defendants, the plaintiff’s claim was primarily based on breach of retainer and negligence. She alleged that they were negligent in failing to plead breaches of trust in OS 939. The third defendants denied breach of retainer or negligence, and argued that the statement of claim in OS 939 was not prepared by them; they were retained only to draft written and reply submissions after the trial concluded. The third defendants also counterclaimed for professional fees.
Against this backdrop, the defendants sought security for costs. On 11 March 2008, PwC applied for security in the sum of $250,000 (SUM 1110). The Assistant Registrar ordered security of $125,000 on 6 May 2008. The plaintiff appealed (RA 204), and PwC cross-appealed (RA 206). PwC UK applied for security of $220,000 (SUM 2324), and the Assistant Registrar ordered $60,000 on 10 June 2008; the plaintiff appealed (RA 218) and PwC UK cross-appealed (RA 226). The third defendants applied for security of $250,000 (SUM 1239), and the Assistant Registrar ordered $125,000; the plaintiff appealed (RA 203) and the third defendants cross-appealed (RA 207).
On 10 October 2008, the judge dismissed RA 206, RA 207 and RA 226, and allowed the plaintiff’s appeals in part by reducing the security amounts: RA 204 reduced security to $70,000; RA 218 reduced security to $40,000; and RA 203 reduced security to $70,000. The present judgment provides the reasons for those decisions.
What Were the Key Legal Issues?
The case raised several interrelated questions about the proper approach to security for costs under O 23 r 1(1)(a) of the Rules of Court. First, the court had to determine whether there was a need for security where the defendants were insured. The plaintiff’s argument was essentially that insurance would protect defendants from being out of pocket if they later succeeded on costs, thereby making security unnecessary.
Second, the court had to consider whether the overlap between the defendants’ defences and their counterclaims should be taken into account when deciding (i) whether to order security at all, and (ii) the quantum of security. This issue matters because counterclaims can, in some cases, reduce the practical risk that a defendant will be unable to recover costs, or can affect how costs are ultimately set off.
Third, the court had to address the plaintiff’s submission that the impecuniosity of an individual plaintiff should be treated as a stronger factor in favour of encouraging uninhibited access to the courts, as compared to the impecuniosity of a company. This required the court to balance the policy of access to justice against the policy of protecting defendants from being unable to recover costs.
How Did the Court Analyse the Issues?
The judge began by setting out the legal framework. Under O 23 r 1(1)(a), where it appears that the plaintiff is ordinarily resident out of the jurisdiction, the court may order the plaintiff to provide security for the defendant’s costs if, having regard to all the circumstances, it thinks it just to do so. The judge emphasised that there is no presumption either in favour of or against granting security. The out-of-jurisdiction factor merely invokes the court’s discretion; the court must still decide whether security is just in the particular circumstances.
In doing so, the judge relied on Court of Appeal guidance in Creative Elegance (M) Sdn Bhd v Puay Kim Seng [1999] 1 SLR 600, and on Jurong Town Corp v Wishing Star Ltd [2004] 2 SLR 427 for the proposition that there is no presumption. The court also considered the relevance of the strength of the plaintiff’s claim. The judge accepted that the court should consider whether the plaintiff has a bona fide claim with a reasonable prospect of success, but that this assessment should not become a detailed mini-trial at the interlocutory stage. The judge cited Porzelack K.G. v Porzelack (UK) Ltd [1987] 1 W.L.R. 420 and Omar Ali bin Mohd and Others v Syed Jafaralsadeg bin Abdulkadir Alhadad and Others [1995] 3 SLR 388 to caution against extensive examination of merits where the application for security is necessarily decided on inadequate material without a full evidential hearing.
Applying these principles, the judge found that the strength of the case was a neutral factor. The plaintiff and the third defendants conceded that each party had an arguable case on the face of it. Accordingly, the probability of success or failure could not be clearly demonstrated without a trial, and the court did not treat this factor as tipping the discretion either way.
On the plaintiff’s argument that security was unnecessary because the defendants were insured, the judge held that the fact of insurance is irrelevant. The judge referred to Paper Properties Ltd v Jay Benning & Co [1995] 1 BCLC 172 for the proposition that insurance does not determine whether security should be ordered. The reasoning is practical and policy-oriented: security for costs is designed to ensure that a defendant can recover costs if successful, and the court’s discretion is not displaced by the existence of insurance arrangements. Even if insurance might cover some or all of a defendant’s exposure, the court does not treat that as a substitute for security.
The judge then addressed the issue of overlap between defence and counterclaims. While the judgment extract provided is truncated, the headnotes and the context indicate that the court considered whether the existence of counterclaims should reduce the need for security or affect the quantum. The underlying logic is that if a defendant’s counterclaim is likely to succeed or is sufficiently connected to the main claim, the defendant may be able to recover amounts through set-off or through the counterclaim process, thereby reducing the risk that the defendant will be unable to recover costs. However, the court must still consider the overall circumstances, including whether the counterclaim is genuine, the likely procedural and evidential overlap, and whether the counterclaim would realistically neutralise the costs recovery concern that security is meant to address.
Finally, the court considered the plaintiff’s access-to-justice argument based on individual impecuniosity. The judge acknowledged the policy tension: security for costs can deter impecunious litigants, but the court must also protect defendants from the risk of being unable to recover costs. The judge’s approach, as reflected in the headnotes, indicates that the court did not accept that individual impecuniosity is automatically a stronger factor than corporate impecuniosity. Instead, the court treated impecuniosity as one relevant circumstance within the broader discretionary assessment, rather than adopting a categorical rule that would systematically favour individuals over companies.
What Was the Outcome?
The judge’s final orders reflected a partial reduction of the security amounts ordered by the Assistant Registrar. Specifically, the judge dismissed the cross-appeals (RA 206, RA 207 and RA 226), thereby leaving intact the Assistant Registrar’s decisions insofar as those cross-appeals sought higher security or otherwise challenged the reductions sought by the plaintiff.
On the plaintiff’s appeals, the judge reduced the security to be provided: to $70,000 in RA 204, to $40,000 in RA 218, and to $70,000 in RA 203. Practically, this meant that while security for costs was still ordered against the plaintiff (consistent with the court’s view that it was just in the circumstances), the plaintiff was not required to provide the full sums initially ordered by the Assistant Registrar.
Why Does This Case Matter?
Ong Jane Rebecca v Pricewaterhousecoopers and Others is a useful authority on the discretionary nature of security for costs under O 23 r 1(1)(a). It reinforces that out-of-jurisdiction residence is not determinative and that courts must consider the totality of circumstances rather than applying rigid presumptions. For practitioners, this is important when advising clients on whether to seek security and how to frame submissions around the relevant factors.
The decision is also significant for its treatment of insurance. By holding that insurance is irrelevant to whether security should be ordered, the case discourages arguments that defendants’ insured status should automatically eliminate the need for security. This is particularly relevant in professional negligence and commercial disputes where defendants commonly have professional indemnity insurance. Lawyers should therefore focus on the statutory discretion and the risk of costs recovery rather than on insurance coverage as a substitute for security.
Further, the case highlights that the court’s approach to quantum is not purely mechanical. Issues such as the relationship between defences and counterclaims, and the role of impecuniosity (including whether the plaintiff is an individual or a company), can influence the amount ordered. While the judgment extract is truncated, the headnotes and the overall reasoning indicate that the court took a nuanced view rather than adopting categorical rules. This makes the case valuable in security-for-costs applications where counterclaims and set-off dynamics are central, and where the plaintiff’s financial circumstances are contested.
Legislation Referenced
- Rules of Court (Cap 322, 2006 Rev. Ed.), O 23 r 1(1)(a)
Cases Cited
- Creative Elegance (M) Sdn Bhd v Puay Kim Seng [1999] 1 SLR 600
- Jurong Town Corp v Wishing Star Ltd [2004] 2 SLR 427
- Porzelack K.G. v Porzelack (UK) Ltd [1987] 1 W.L.R. 420
- Omar Ali bin Mohd and Others v Syed Jafaralsadeg bin Abdulkadir Alhadad and Others [1995] 3 SLR 388
- Paper Properties Ltd v Jay Benning & Co [1995] 1 BCLC 172
- [2006] SGHC 154
Source Documents
This article analyses [2009] SGHC 29 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.