Time that the Government Proceedings Act is amended to include Protective Cost Orders

Comment first published on Mr M Ravi’s Facebook account

The latest amendment to the Government Proceedings Act ( GPA) will deter litigants from commencing actions against the government for fear of prohibitive costs.

In the Vellama’s by-election case, the State submitted $10,000 costs against her despite the fact that she was a part-time cleaner having a legitimate case before the court. I submitted that the court should make a Protective Cost Order. On a rare occasion, the Judge did not award any costs to the government on the basis that the case involved questions of public interest .

Mr M Ravi

However, Vellama undertook to pay security of costs of $20,000 to appeal to the court of appeal and eventually succeeded in getting the apex court to rule that by-elections are mandatory and not discretionary. Imagine if Vellama had not taken the risk, the PM would have had the power not to call a by-election like what he did in the 3 occasions when the seats became vacant prior to 2012.

It is time that the GPA is amended to include Protective Cost Orders (PCO) whereby in “public interest” cases brought by applicants who could satisfy the court that, among other things, they had no private interest in the outcome of the proceedings.

Their corresponding aim was to ensure that public bodies did not escape judicial review just because an applicant might be unable to meet the costs ordered “against” in the event of the application for judicial review being dismissed.

A PCO would thus limit the costs liabilities of an applicant where the court was of the view that the issues to be raised were of a wider public interest and that they should for that reason be heard.

Indeed, while the early case law established that PCOs could not issue where the applicant had a private interest in the outcome of the case, subsequent case law has since held that this need not always be so where the application still raises important points of public interest (Re Thompson’s Application [2010] NIQB 38). The emphasis, once more, has therefore been on tracking possible government illegality rather than allowing it go unchallenged.

PCO is available in several commonwealth countries including UK and South Africa.

I hope the Worker’s Party will take this up and seriously urge the government to consider PCO.

Mr M Ravi was addressing the tussle that Workers’ Party had with the Senior Minister of State for Law today and wrote that the Government Proceedings Act (GPA) should include Protective Cost Orders (PCO) that will limit the costs liabilities of an applicant raising issues for the public interest.

MPs from the Workers’ Party, Ms Sylvia Lim and Mr Low Thia Khiang took issue with Clause 9 in the Statues (Miscellaneous Amendments) Act 2016, which would see a change to Section 29(4) of the Government Proceedings Act (GPA). The two argued that the change would make it more prohibitive for individuals to enter into litigation against the Government.

Previously, the Act stated that: “In any such civil proceedings as are referred to in subsection (2) in which two legal officers appear as advocates and the court certifies for two counsel, costs shall be payable in respect of the services of both such legal officers.”

Clause 9 replaces the section with: “In any civil proceedings mentioned in subsection (2), costs are payable in respect of the services of more than two legal officers if the court so certifies.”

Ms Indranee Rajah, Senior Minister of State for Law defended the amendment and rebutted the two MPs by saying,  “I’ve said it before, once. I’ve said it before, twice. And I will now say it again a third time: It is not the intention of the Government to be using costs to intimidate anyone,” said the Senior Minister of State for Law.

“As I have indicated, when the Government has to defend a matter or pursue a matter, it will do so after having taken advice, doing so rationally, and doing so if it thinks it is the right course of action. That is the first thing when it comes to taken proceedings with respect to the amount of costs that the person may face, when a person brings proceedings against the Government, that person would, no doubt, be legally advised, and also have an indication of the amount of cost that would be incurred.

“And it should not be forgotten that if costs are to be awarded against that party, it does mean that that party, at the end of the day, ultimately failed against the Government, meaning that that case should not have been brought in the first place.”