A construction company which lost its appeal against a worker’s $1,900 wage claim has been ordered by the High Court to pay $6,000 in legal costs meant for the law firm representing the worker on a pro bono basis.

The case is significant for pro bono work, as it is the first reported case where the court has directly ruled on the availability of legal costs to pro bono lawyers and provided clarity on the issue.

Judicial Commissioner Debbie Ong said there is “no reason” why the losing party should not be ordered to pay costs, just because the winning party lacked money and was represented by a lawyer on a pro bono basis.

She made clear in oral judgment grounds released last week that the payout was not tantamount to champerty – where a client pays his lawyer only if he wins a case.

In this case – a dispute over unpaid wages between SATS Construction and Bangladeshi worker Islam Md Ohidul – the Labour Court had ordered SATS to pay $1,931.13 to the worker last year.

SATS then appealed to the High Court, which dismissed the appeal in January, but the judge ordered a further hearing on whether costs were payable to a winning party where the lawyer acted pro bono.

TSMP Law Corporation lawyer Melvin Chan argued for the worker that if the plaintiff – SATS in this case – had won, a costs order can be made against pro bono-aided defendants.

But in this case, if the plaintiff cannot be ordered to pay costs when it loses, it would be an open invitation to the plaintiff to ” try its luck” in appealing against the Labour Court decision, he said.

SATS was defended by lawyer Dhanwant Singh.

Judicial Commissioner Ong said the courts have a discretion to award costs. “In the present case, there is nothing on the facts that warrants a departure from the general principle that the defendant, as the successful party, ought to be awarded costs,” she said.

Citing a 2013 judgment by a Court of Three Judges, she said the prohibition against champerty did not apply in this case where the impecunious defendant would not have been able to afford a lawyer.

“It is indeed honourable for a lawyer to give his services pro bono, knowing that if the party he represents is unsuccessful, or if costs are not awarded in favour of that party, he will not be paid.”

The pro bono lawyer has put in substantial time and effort, she said. “There is no windfall for the client, who will not keep the cost sums ordered. There is no prejudice to the opposing losing party who would have had to pay costs to the winning party in non-pro bono situations.”

In legal aid cases, costs recovered by the legally aided person on winning a case would go to the Legal Aid Bureau, she noted.

She said the policy and principle behind legal aid and pro bono work are similar – they are meant to enhance access to justice and “it is fair for the providers of such services to be paid for the work they had done, by virtue of cost orders”.

TSMP is donating the costs awarded to the Humanitarian Organisation for Migration Economics, a group dedicated to addressing migrant workers’ concerns

This article was first published on May 3, 2016.
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