Case Details
- Citation: [2022] SGHC 4
- Title: Yong Khong Yoong Mark and others v Ting Choon Meng and another
- Court: High Court of the Republic of Singapore (General Division)
- Date of Decision: 12 January 2022
- Judge: Tan Siong Thye J
- Suit No: 1140 of 2018
- Summons No: 5465 of 2021
- Procedural Posture: Post-judgment application concerning costs (certificates of counsel and basis of taxation)
- Plaintiffs/Applicants: Yong Khong Yoong Mark; Emily Hwang Mei Chen; Medivice Investment Limited (and others as indicated in the suit)
- Defendants/Respondents: Ting Choon Meng; Chua Ngak Hwee (and another as indicated in the suit)
- Legal Area: Civil Procedure — Costs
- Statutes Referenced: Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) — in particular O 59 r 19 and O 59 r 27(4)
- Key Prior Judgment: Yong Khong Yoong Mark and others v Ting Choon Meng and another [2021] SGHC 246 (“the Judgment”)
- Length of Judgment: 10 pages; 2,022 words
- Counsel: Plaintiffs: Nair Suresh Sukumaran and Bhatt Chantik Jayesh (PK Wong & Nair LLC). Defendants: Khan Nazim, Kuan Chu Ching and Kunal Haresh Mirpuri (UniLegal LLC).
Summary
This High Court decision concerns a post-judgment costs application arising from a civil suit that had already been decided on 29 October 2021. After the court ordered that the plaintiffs pay costs to the defendants “to be taxed if not agreed”, the defendants brought Summons No 5465 of 2021 seeking (among other things) certificates under O 59 r 19 of the Rules of Court to allow costs for more than two solicitors (“three counsel” or, alternatively, “two counsel”), a direction that costs be fixed in lieu of taxation, and an order that costs be taxed on an indemnity basis.
Tan Siong Thye J dismissed the defendants’ application in full. The court held that there were no exceptional circumstances justifying a Certificate of Three Counsel. The trial, though lengthy (more than 19 days), was not of the kind of exceptional length and complexity that would make the use of more than two solicitors reasonably necessary for the adequate presentation of the case. The court also declined to grant a Certificate of Two Counsel, reasoning that the factual and legal issues—fraudulent misrepresentation and conspiracy to defraud—were not extraordinary in a way that would warrant a departure from the usual costs framework.
On the basis of taxation, the court further held that costs should be taxed on the standard basis. Because the earlier costs order did not indicate any special basis other than “to be taxed if not agreed”, the default position under O 59 r 27(4) applied. The court found no exceptional reasons to award indemnity costs, rejecting the defendants’ allegations that the plaintiffs advanced a baseless case, gave inconsistent testimony, or made disparaging character allegations. In short, the decision reinforces that certificates for more than two solicitors and indemnity costs are exceptional remedies requiring concrete justification.
What Were the Facts of This Case?
The underlying dispute between the parties culminated in a substantive judgment delivered on 29 October 2021. In that earlier decision, the court dismissed the plaintiffs’ case and ordered that the plaintiffs pay costs to the defendants, to be taxed if not agreed. The present judgment does not revisit the merits of the plaintiffs’ claims; instead, it addresses the defendants’ subsequent costs-related application, which was brought after the plaintiffs’ case had been rejected.
Following the 29 October 2021 judgment, the defendants sought to recover costs associated with the attendance and “get up” of more than two solicitors. This is a procedural and costs mechanism under O 59 r 19 of the ROC, which generally restricts such costs unless the court certifies that the use of more than two solicitors was reasonably necessary. The defendants therefore applied for a Certificate of Three Counsel, or alternatively a Certificate of Two Counsel, depending on the court’s assessment of whether the case warranted more than the usual number of solicitors.
In addition to the certificates, the defendants sought a direction that the court fix costs in lieu of taxation, and they also sought indemnity costs. Indemnity costs are not the norm; they are awarded only in exceptional circumstances, typically where a party’s conduct is sufficiently unreasonable or where there is evidence of dishonesty or other conduct that justifies a departure from the standard costs approach.
At the hearing on 29 October 2021, the judge had already indicated the basis for the costs order. Immediately thereafter, the defendants made an oral application for costs of two solicitors. The plaintiffs appealed against the substantive judgment, but the defendants did not appeal against the costs order itself. Instead, the defendants proceeded with the present application to determine the appropriate certificates and the basis of taxation.
What Were the Key Legal Issues?
The first key issue was whether the defendants were entitled to a Certificate of Three Counsel under O 59 r 19(1) of the ROC. The court had to determine whether the case involved exceptional circumstances such that the services of more than two solicitors were reasonably necessary for the adequate presentation of the case. This required the court to apply the statutory framework and the factors set out in Appendix 1 to O 59, as well as the interpretive guidance in prior authorities.
Closely related was the alternative issue: if a Certificate of Three Counsel was not justified, whether the court should grant a Certificate of Two Counsel. While O 59 r 19 is framed around costs for “more than 2 solicitors”, the defendants’ alternative request indicates that they sought a more favourable costs outcome than the default position, and the court had to assess whether the case warranted any certification beyond the ordinary baseline.
The third issue concerned the basis of taxation: whether the court should order indemnity costs. The court had to consider the effect of the earlier costs order (“to be taxed if not agreed”) and the default rule in O 59 r 27(4), which provides that where the court does not specify the basis of taxation (or orders costs to be taxed on a basis other than standard or indemnity), costs are taxed on the standard basis. The court also had to decide whether the defendants had shown exceptional circumstances warranting indemnity costs.
How Did the Court Analyse the Issues?
On the certificate for three counsel, the court began with the text of O 59 r 19(1), which states that costs for getting up the case by and for attendance in court of more than two solicitors “shall not be allowed unless the Court so certifies”. The judge then referred to the “White Book” commentary, which articulates the practical test: whether the court would allow a certificate for more than two counsel depends on whether the services of more than two solicitors are reasonably necessary for the adequate presentation of the case. The commentary emphasises that such a certificate is exceptional and would typically be justified by a high degree of complexity of facts and/or law, many issues of fact and law, and a lengthy trial.
The court also relied on Appendix 1 to O 59, which lists factors to be considered when determining whether the use of more than two solicitors is reasonable. These factors include: the complexity and novelty of the questions involved; the skill, specialised knowledge, responsibility, and time and labour required; the number and importance of documents; the place and circumstances of the business transacted; the urgency and importance to the client; and, where money or property is involved, its amount or value. The judge further referenced the Court of Appeal’s guidance in Ng Eng Ghee and others v Mamata Kapildev Dave and others (Horizon Partners Pte Ltd, intervener) and another appeal [2009] 4 SLR(R) 155, which is commonly cited for the approach to certification under O 59.
Applying these principles, Tan Siong Thye J found that there were no exceptional circumstances warranting a Certificate of Three Counsel. First, although the trial took more than 19 days (including closing submissions), the judge held that the case was not exceptionally long and complex in the relevant sense. The court contrasted the present case with Raffles Town Club Pte Ltd v Lim Eng Hock Peter and others (Tung Yu-Lien Margaret and others, third parties) [2011] 1 SLR 582, which involved an 82-day trial and complex issues. In Raffles Town Club, the judge had found that more than two solicitors were reasonably necessary for adequate preparation and presentation, and a Certificate of Three Counsel was granted. By comparison, the present case was described as “a far cry” from that benchmark.
Second, the court addressed the defendants’ reliance on the volume of documents. The defendants pointed to more than 31 volumes of documents. The judge accepted that document volume is relevant, but emphasised that it does not automatically translate into exceptional complexity. The court again used Raffles Town Club as a comparator, where there were 300 volumes of bundles of documents. The judge therefore treated the document count in the present case as insufficient, on its own, to justify certification for three counsel.
Third, the judge compared the case to Parakou Shipping Pte Ltd (in liquidation) v Liu Cheng Chan and others [2017] SGHC 91. In Parakou, the trial took 14.5 days and involved 19 volumes of documents totalling 12,171 pages. The court in Parakou had held that while the case was complex, it was not of such a high degree of complexity as to warrant a certificate for costs for three solicitors. The judge in the present case found the factual and procedural profile closer to Parakou than to Raffles Town Club, reinforcing the conclusion that the threshold for three counsel was not met.
Fourth, the judge assessed the nature of the legal and factual issues. The court noted that there was significant overlap in the authorities cited by both sides in closing submissions. It observed that there was no real dispute on the law and that the dispute was confined within established authorities on misrepresentation and unlawful means conspiracy in Singapore. This reasoning is important: it suggests that where the legal framework is relatively settled and the dispute is not driven by novel or highly technical legal questions, the need for additional solicitors is less likely to be “reasonably necessary” in the exceptional sense required by O 59 r 19.
Fifth, the judge considered the quantum of the claim, which was S$5 million. While the amount in dispute is one of the factors in Appendix 1, the court held that S$5 million was not exceptionally large such that it would, by itself, justify a Certificate of Three Counsel. The overall assessment remained that the case did not reach the exceptional threshold.
On the alternative request for a Certificate of Two Counsel, the judge dismissed it for essentially the same reasons. The court reasoned that the factual and legal issues—fraudulent misrepresentation and conspiracy to defraud—were not extraordinary. The decision therefore indicates that certification is not a mechanical exercise based on the labels of the claims (fraud/conspiracy) or the number of solicitors involved, but rather a substantive assessment of whether the case’s complexity and demands justify additional legal resources.
Finally, on indemnity costs, the court applied O 59 r 27(4). Because the earlier costs order had been “to be taxed if not agreed” without specifying any basis other than standard or indemnity, the default rule required taxation on the standard basis. The judge then considered whether there were special or exceptional reasons to depart from that default. The court reiterated that indemnity costs are the exception rather than the norm and require justification, citing the “White Book” and the reasoning in Airtrust (Hong Kong) Ltd v PH Hydraulics & Engineering Pte Ltd [2016] 5 SLR 103.
The defendants argued that indemnity costs were warranted because: (a) the plaintiffs advanced a case they knew was completely baseless; (b) plaintiffs and witnesses took inconsistent positions and were untruthful; and (c) plaintiffs made disparaging allegations about the defendants’ character. The judge rejected these as insufficient to reach the exceptional threshold. The court distinguished the present case from GTMS Construction Pte Ltd v Ser Kim Koi (Chan Sau Yan (formerly trading as Chan Sau Yan Associates) and another, third parties [2021] SGHC 33), where indemnity costs had been ordered due to serious, unsupported fraud allegations and highly unreasonable and exaggerated claims, including new allegations raised during trial that were not set out in pleadings or AEICs.
In the present case, the judge noted that the plaintiffs amended their pleadings on two occasions but did so prior to the start of trial. The judge also concluded that the plaintiffs’ conduct did not amount to an abuse of process, did not show an intention to advance the action in bad faith, and was not “clearly without basis”. Accordingly, the court found no exceptional circumstances warranting indemnity costs and dismissed the application.
What Was the Outcome?
Tan Siong Thye J dismissed Summons No 5465 of 2021 in its entirety. The defendants’ requests for a Certificate of Three Counsel and, in the alternative, a Certificate of Two Counsel were refused. The court also declined to order indemnity costs and held that the costs should be taxed on the standard basis.
Practically, this means that the defendants would recover costs subject to standard taxation (or agreement between the parties), without the additional uplift associated with certificates for more solicitors, and without the enhanced recovery that indemnity costs can provide. The decision therefore preserves the default costs regime and underscores that exceptional costs outcomes require exceptional justification.
Why Does This Case Matter?
This decision is significant for practitioners because it clarifies the evidential and analytical threshold for certification under O 59 r 19. Even where a trial is lengthy and involves allegations of fraud and conspiracy, the court will still scrutinise whether the complexity and demands are truly exceptional and whether the additional solicitors were reasonably necessary for adequate presentation. The judgment’s comparisons with Raffles Town Club and Parakou show that courts will benchmark against prior cases where certification was granted, rather than treating document volume or claim quantum as determinative.
For costs practitioners, the case also illustrates how courts evaluate the “complexity” factor in a nuanced way. The judge’s focus on overlap in authorities and the absence of real dispute on the law suggests that certification may be less likely where the legal issues are settled and the dispute is primarily factual or confined within established doctrine. This is a useful guide for litigators when deciding staffing levels and when preparing submissions for certification.
On indemnity costs, the decision reinforces that allegations of inconsistency, untruthfulness, or disparaging character claims must be supported by conduct that rises to a high degree of unreasonableness. The court’s distinction from GTMS Construction demonstrates that indemnity costs are not a response to losing a case or to ordinary pleading amendments. Instead, they require a showing of exceptional circumstances, such as serious unsupported fraud allegations, unreasonable and exaggerated claims, or conduct that indicates dishonesty or abuse of process.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2014 Rev Ed) — Order 59 rule 19 (certificates for more than two solicitors)
- Rules of Court (Cap 322, R 5, 2014 Rev Ed) — Order 59 rule 27(4) (default basis of taxation where not specified)
- Rules of Court (Cap 322, R 5, 2014 Rev Ed) — Appendix 1 to Order 59 (factors for certification)
Cases Cited
- Yong Khong Yoong Mark and others v Ting Choon Meng and another [2021] SGHC 246
- Ng Eng Ghee and others v Mamata Kapildev Dave and others (Horizon Partners Pte Ltd, intervener) and another appeal [2009] 4 SLR(R) 155
- Raffles Town Club Pte Ltd v Lim Eng Hock Peter and others (Tung Yu-Lien Margaret and others, third parties) [2011] 1 SLR 582
- Parakou Shipping Pte Ltd (in liquidation) v Liu Cheng Chan and others [2017] SGHC 91
- Airtrust (Hong Kong) Ltd v PH Hydraulics & Engineering Pte Ltd [2016] 5 SLR 103
- GTMS Construction Pte Ltd v Ser Kim Koi (Chan Sau Yan (formerly trading as Chan Sau Yan Associates) and another, third parties) [2021] SGHC 33
Source Documents
This article analyses [2022] SGHC 4 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.