1 The appellant in this appeal was the defendant in FC/OSM 270/2020 (“the OSM”). The respondent was the plaintiff in the OSM who sought, amongst other prayers, that “the Court revokes the appointment of [the appellant] as donee of [the donor (“P”)] under Lasting Power of Attorney No. LPA 30097NU20 dated 26 June 2020”.

2 The District Judge (“DJ”) provided the following snapshot of the background in his Grounds of Decision (“GD”) at [1]–[4]:

3 The DJ ordered that “the [appellant] was to pay costs to the [respondent] and that the quantum, if not agreed by the parties, was to be taxed” (GD at [28]). It was this decision on costs that the appellant appealed against. The DJ provided the following context and reasons in respect of the order on costs (GD at [15]):

4 Thus, one of the key reasons for ordering costs against the appellant despite the appellant disclaiming the appointment as donee was that the appellant “contested the matter aggressively right until almost the very end”. By this, it is apparent that the DJ considered the conduct of the parties in his determination of the question of costs, rather than focusing only on the “label” of the outcome (see [12]–[15] below).

5 The appellant appealed on the following grounds:

(a) The DJ erred in finding that the appellant ought to bear costs because she “threw in the towel” and “disclaimed her appointment” prior to the hearing;

(b) The DJ erred in finding that the appellant ought to bear costs because she had “aggressively contested” the application;

(c) The DJ erred in finding that the parties’ in-principle agreement regarding costs “cut both ways”; and

(d) Costs, if any, should be borne by the estate.

The appellant clarified at the hearing that in the alternative, if costs were awarded, that costs be fixed instead of taxed.

6 The appellant acknowledged that costs were in the discretion of the court. Specifically, in respect of the present case, s 40(1) of the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”) provides that: “Subject to the Family Justice Rules, the costs of and incidental to all proceedings in the court are in its discretion.”

7 Rule 852(2) of the Family Justice Rules 2014 (“FJR”) provides:

8 Rule 854 of the FJR provides that:

9 Costs are generally ordered to follow the event because a successful party has had to institute proceedings in order to obtain what he deserved (r 852(2) of the FJR). Since the other party’s conduct necessitated the litigation, it is fair that he bears the costs of the litigation (see JBB v JBA [2015] 5 SLR 153 (“JBB”) at [9]).

10 Rule 854 of the FJR (see [8] above) directs the court exercising its discretion as to costs to take into account the conduct of the parties. Indeed, “[it] is the conduct of the parties in the proceedings which will have greater relevance in the court’s exercise of discretion in determining costs (see also rr 854, 856 and 857 of the FJR)” (JBB at [33]).

11 The appellant submitted:

12 The High Court in UTOC Engineering Pte Ltd v ASK Singapore Pte Ltd [2016] 5 SLR 83 (“UTOC Engineering”) has observed (at [10]):

13 This insightful reminder that “[t]he basis for ordering costs is not whether the application is labelled as dismissed or withdrawn but whether it is in the interest of justice that the respondent be compensated for the costs incurred in relation to the application” is important (UTOC Engineering at [10]). Labelling an outcome may assist the court in considering all the appropriate factors in its exercise of discretion, but it should not cause one to miss the woods for the trees.

14 Had the matter been adjudicated, and the respondent successful in the litigation, this outcome would be the “event” referred to in r 852 of the FJR. However, if the same outcome is reached not by full adjudication but by the appellant’s voluntary act, is such an outcome the “event” intended in r 852?

15 In the present case, the substantive outcome was that the appellant was no longer the donee – this was what the respondent had sought in his application. He had also sought to be appointed the deputy for P. The respondent had to institute proceedings and might not have achieved this outcome had he not pursued the summons to that very point when the appellant voluntarily resigned as the donee of the LPA. One could say analogously that for the purposes of determining costs, this outcome is the closest to what the “event” was, and thus as costs follow the event, the respondent should be awarded costs. It is clear that the conduct of the parties is crucially relevant in the determination of costs. As the DJ said, his decision “might perhaps have been a different situation if the Defendant, at the very beginning, had chosen to concede in order to avoid an acrimonious contest” (GD at [15]). The mode of reaching the outcome is highly relevant – whether by full court adjudication, mutual agreement, the appellant resigning voluntarily very soon at the initial stages, or resigning only after many months of adversarial exchanges.

16 It is important to note that this was not a case of the parties “settling” or “resolving” their dispute through negotiations resulting in agreed terms that can be incorporated into a consent order. Often, such settlements would include the agreement on the issue of costs – this in itself indicates that costs can be payable even in compromise situations, and that the matter of costs itself is an issue over which parties negotiate in attempting settlement.

17 In the present case, the DJ stated that the potential agreement on $8,000 for costs “fell through” (GD at [9(a)]) and it was confirmed at the hearing that the parties did not reach an agreement on any draft consent order.

18 It was understandable why the DJ described the present case as one where the appellant threw in the towel at the doorstep of the hearing (GD at [9(d)]).

19 The appellant submitted that she could not be faulted for merely taking all necessary steps to defend the action, particularly when all the appellant was seeking to do was to protect P’s wishes as set forth in the LPA, and not for any personal gain. She asserted that she and her counsel were also simultaneously trying hard to settle the matter amicably in negotiations and that her decision to resign was primarily motivated by a genuine desire to deal with the respondent’s aggressive litigation tactics in a way that de-escalated the acrimony.

20 The appellant further submitted that:

The appellant’s counsel submitted at the hearing that the adoption of “Therapeutic Justice” in family proceedings supported this submission.

21 The DJ found that the appellant had aggressively contested the application and “was certainly not trying hard to settle the matter amicably” (GD at [21]–[22]). He provided his reasons by setting out the chronology of proceedings and appellant’s actions as follows (GD at [21]):

22 In Chan Choy Ling v Chua Che Teck [1995] 3 SLR(R) 310 (“Chan”), the Court of Appeal took into account the following conduct and approach of the parties and counsel in respect of how the case was conducted when determining the costs order (at [22]):

23 One could imagine that, from the subjective point of view of the parties in Chan, defending one’s position in itself is not unreasonable. Indeed, it is common in family proceedings for parties to feel that it is the other party who is being unreasonable and increasing acrimony. Yet, Chan’s case shows that more is expected from the parties. Each step or act taken by one party in court proceedings has an effect on how the other party reacts. The Court of Appeal has said in VDZ v VEA [2020] 2 SLR 858 that “a kind act begets a kind response while a nasty act inflames the other” (at [77]).

24 Therapeutic justice seeks to support parties in their journey of healing and moving forward by adopting a problem-solving approach instead of an adversarial one. The appellant submitted that:

25 It appears that in those months before the hearing was fixed in January 2021, numerous affidavits and applications were filed in this period of “contest” (see [21] above). I did not think that the DJ could be faulted in reaching the view that he did after considering the objective facts such as the filing of many affidavits and other applications, as well as an eleventh-hour adjournment of the hearing of the OSM on 11 January 2021. There may have been an early invitation to have a discussion, but without more clarity from both sides on what transpired, it was hard to see this early invitation as constituting best efforts at an amicable resolution, in light of the litigious actions from September 2020 onwards.

26 The approach taken by the appellant did not look like a problem-solving stance but an adversarial one – one that undermines therapeutic justice. For the purposes of costs, this approach taken during those months cannot be erased away just because the appellant decided much later to voluntarily resign from the appointment so that no further proceedings would be required. The appellant submitted that “the Family Courts should consider very carefully what signal it is sending by making a cost order against a party who is acting reasonably by offering to step aside from acting as a donee in a bid to avoid unnecessary litigation”. In the present case, awarding costs in fact signals that adversarial stances are not acceptable in a family justice system that adopts therapeutic justice.

27 I add a few more general remarks on the notion of therapeutic justice. Therapeutic justice is not about parties feeling happy and satisfied that they got whatever they sought in their present dispute. In fact, for both parties to obtain what each wanted in the first place is not practically possible without some compromise – the parties had, after all, a dispute that they simply could not resolve on their own. It would be a grave misperception of the therapeutic justice system if parties feel entitled to be “pandered to” during the court proceedings. Instead, a therapeutic justice system involves parties making what they may perceive to be “sacrifices” – letting go of what has hurt them deeply, refraining from doing “inflammatory” acts against the other party, compromising by giving in and cooperating with the other party in some issues, taking responsibility where required and finding the will to recast the future. Going through this part of the journey is not easy. In the Family Justice Courts Workplan 2018, In The Next Phase, I had said (Debbie Ong J, “Family Justice Courts: In The Next Phase”, speech at the Family Justice Courts Workplan 2018 (28 February 2018)):

Just as the surgical removal of a diseased organ is painful and a loss, the problem-solving process takes effort and some sacrifices. But healing will come after the pain. It is that new positive future in the long term that is of great gain to the parties in this therapeutic justice system.

28 The notion of therapeutic justice operates within the framework of the law and does not prevail over the law. Judges apply the law and legal principles, in a system that is non-adversarial and conducive to problem-solving. Our family law is rich in legal principles and jurisprudence that promote therapeutic outcomes, and all legal actors in the family justice system would do well to apply the law to achieve therapeutic justice for our families.

29 The appellant submitted that the respondent had sought an order that the appellant pay him a total sum of $66,249.06 on the High Court scale. The appellant’s offer was to resign as donee and pay the respondent a sum of $8,000 without prejudice to the appellant’s position that the LPA was valid, and the respondent was not in fact entitled to ask for costs. She suggested this was not far off from the respondent’s starting offer of $16,329.06. The appellant submitted that the sizeable difference between what was sought initially and subsequently showed that it was unfair for the DJ to have characterised the failure to adhere to the costs agreed as cutting “both ways”.

30 I did not see how this submission would assist her case. The DJ had said that (GD at [9(a)]):

31 In the present case, the DJ stated that the potential agreement on $8,000 for costs “fell through”. The appellant’s counsel confirmed at the hearing that the parties did not reach an agreement on the draft consent order. This was consistent with [15]–[18] above, where I have noted that this was a case where the respondent was prepared to pursue the application in court and it was the appellant who still resigned as donee even when there was no agreement on costs.

32 The appellant submitted that costs, if any, should be borne by P’s estate. The DJ had explained (GD at [9(d)]):

33 The appellant submitted that the DJ was in error because:

34 The respondent’s application was to remove the appellant as donee in order to protect P’s interests, and this was ultimately in substance the outcome in this case. Thus, I did not think that the DJ was in error in holding that the appellant was not conducting legal proceedings for the benefit of P such that P’s estate ought to bear the costs.

35 HCF/RAS 17/2021 was dismissed – I affirmed that costs shall be paid by the appellant to the respondent. However, I accepted the appellant’s alternative submission for costs to be fixed instead of taxed. Taxation will incur more costs and time, while fixing costs can equally achieve a fair outcome for costs in the circumstances of this case.

36 As the DJ was in the best position to assess how the matter proceeded, he was well placed to determine the fixed costs. I ordered that costs were to be fixed by the DJ. The Registry will give directions to the parties in respect of this.