WHAT is the price of obtaining justice through the courts of our country?
Every litigant knows that he needs a lawyer to guide him through the maze of legal procedures to access judicial justice.
He also knows he has to pay substantial fees to the lawyer at every stage of the proceedings – first hearing, appeal, further appeal. The expenses, however, do not stop there. If he loses the case, he will usually be ordered to pay “costs” to the winning party, again at each stage of the litigation process. The law gives this power to the judge.
Our Federal Court has explained this power in this manner: “The question of costs to be awarded in any particular case depends on the discretion of the judge. The discretion is a judicial discretion and must be exercised according to settled principles. There must be sufficient material for the judge to exercise his discretion so that it will not appear to be exercised arbitrarily or capriciously.” – Karpal Singh v Menteri Hal Ehwal Dalam Negeri & Ors (OS No.24-94-1989) Mallal’s Digest 4th edn, Vol (1) 2007 Re-Issue.
An order for costs may take many different forms:
a) losing party to pay the winning party’s costs ( the most usual order);
b) “no order of costs” (each party to pay their own costs); or
c) winning party to pay losing party’s costs (where the conduct of the winner is oppressive).
The discretion may be applied in a variety of ways when the litigant is applying for a temporary injunction to stop a public authority or any other party from carrying out certain projects or activities injuring public rights, pending the outcome of a suit seeking a permanent injunction.
If the interim application is dismissed, it may be dismissed “with costs” i.e. they are required to pay the defendant’s costs of the interim application. But the judge does have the discretion to suspend the question of costs until the outcome of the main suit, because it would be premature to decide the issue of costs at the interim stage: the applicant who fails to get a temporary injunction may succeed in getting a permanent injunction after the full trial.
However, when it comes to public interest litigation, such as cases involving human rights or environmental protection, the courts have often adopted a sympathetic approach towards the unsuccessful plaintiff/applicant with regard to the order on costs.
In recent years, whenever public interest litigants apply for judicial review against a public authority and lose the application (as is often the case), the judges have often made no order on costs at all stages on the ground that it is a case of public interest. These judges deserve to be commended. One judge went to the extent of saying that “all Malaysians have an entrenched right to litigate their grievances in court whenever there is a perceived breach of the Federal Constitution by the legislature” and that “all Malaysians have a duty to protect our Constitution.” – David Wong Dak Wah J in Robert Linggi v The Government of Malaysia (2001) High Court at Kota Kinabalu.) So, unsuccessful applicants for judicial review in aid of environmental protection against any party must not be punished with an order to pay costs unless the litigation is vexatious.
Some other courts in Commonwealth countries with legal systems similar to ours have mitigated the plight of the poor litigant in public interest litigation by ordering a special category of costs called “Protective Cost Order” (PCO) to reduce his burden for adversarial costs or to exempt him totally.
This procedure has been adopted in Britain, Australia, South Africa and Canada. Canadian courts have adopted the most sympathetic attitude to public interest litigants to give them better access to justice. A special area of public interest litigation has also received particular attention from the UN Economic Commission for Europe in the field of litigation involving environmental issues.
The Canadian Supreme Court distinguished public law litigation from private litigation and advised that there is a public interest in the elucidation of public law. Following from that, judges must take a more liberal approach on costs. – Corner House Research v The Secretary of State for Trade and Industry (2004) EWCA Civ 192.
Environmental cases have figured prominently in public interest litigation. The Canadian Supreme Court has given a group of public interest litigants an interim costs order in advance to cover their legal fees and expenses for the upcoming trial because the plaintiff litigants could not afford the expenses of a trial. The court ordered the Minister of Forests to pay the plaintiffs’ legal fees and expenses in advance before any trial. – British Columbia (Minister of Forests) v Okanangan Indian Band 2003 SCC 71.
Such a scenario is unimaginable in Malaysia but we do pray that our judges will not discourage public interest litigants with a Punitive Costs Order and that they will assist them with a Protective Costs Order.