In the world of litigation, the general rule is that “costs follow the event”—meaning the loser pays the winner’s legal bills. However, the courts possess wide discretionary power to deviate from this rule. Sometimes, a judge will issue “no order as to costs” (or order that each party bear their own costs).
But why would a court let a winning party go without compensation for their expenses? Based on recent Malaysian jurisprudence, here are the key scenarios where the court had directed “no order as to costs”.
1. Public Interest and Novel Constitutional Issues
When a case transcends a private dispute and touches on matters of significant public importance or novel points of law, courts often decline to award costs. The rationale is to encourage the ventilation of constitutional rights without the fear of a crushing financial penalty if the challenge fails.
- Case Reference: In Amir Hariri Abd Hadi v. PP [2025] 5 MLRA 395 FC, the Federal Court struck down a penal provision of the Peaceful Assembly Act 2012 as unconstitutional. Despite the applicant’s success, the court ruled it was public interest litigation and made no order as to costs.
- Case Reference: Similarly, in Siti Nur Ain Sulaiman v. Majlis Ugama Islam Dan Adat Resam Melayu Pahang & Anor [2026] 1 MLRA 826 CA, the Court of Appeal made no order as to costs due to the “public importance” of the religious status issues involved.
- Case Reference: This was also seen in Tamileswaaran Ravi Kumar v. SPR [2025] 6 MLRA 131 CA, where the court noted the case raised “novel constitutional issues” regarding the right to vote during the pandemic.
2. Both Parties Are at Fault
If the court finds that both the plaintiff and the defendant contributed to the legal mess or failed to assist the court properly, it may leave both sides to pay their own way.
- Case Reference: In Malayan Banking Bhd. v. Agencies Service Bureau Sdn. Bhd. [1982] CLJ (Rep) 217 FC, the Federal Court found that both parties were “at fault” for failing to draw the court’s attention to specific statutory powers. Because the history of the case showed mutual error, each party was ordered to bear its own costs.
3. The Application Has Become “Academic” or Redundant
If a procedural battle is rendered moot by a separate decision or a change in circumstances, the court may strike it off without a cost order.
- Case Reference: In Dato Chang Jong Yu v. Dato Seri Yong Tu Sang & Ors [2025] MLRHU 2743 HC, a stay application was struck off as academic because the substantive committal application had already been dismissed. Consequently, no order as to costs was made.
4. Financial Hardship or “No Fault” Situations
Equity plays a large role in costs. If a losing party is in a dire financial position or is suffering due to circumstances beyond their control, the court may show leniency.
- Case Reference: In Muhammad Amirul Umar v. Lembaga Tatatertib Kontinjen Johor & Anor [2025] MRHU 2549 HC, the court dismissed a judicial review with no order as to costs specifically because the applicants had “no job since their dismissal”.
- Case Reference: In Subramaniam Vellasamy v. Pentadbiran Tanah Daerah Klang & Anor [2025] MIRAU 297 CA, the court declined to order costs against unsuccessful appellants because “though no fault of theirs”, they had yet to receive their original land acquisition compensation.
5. “Neutralised” Success (Split Decisions)
When a party wins one battle but loses another in the same motion, the court often calls it a draw.
- Case Reference: In Fairview Schools Bhd v. Indrani a/p Rajaratnam (No 1) [1998] 1 MLJ 66 CA, the court made no order as to costs because a party’s success on the issue of security for costs was “neutralised by the failure of his application to strike out”.
- Case Reference: Similarly, in Girish Chandra Hemraj Shastri v. Jyoti Sharma [2025] MIRAU 354 CA, the court made no order as to costs because the appeal was allowed in part—the appellant won on one property issue but lost on another.
6. Legitimate Concerns and Good Faith
If a party resists an application not out of obstinacy, but because they are trying to comply with a complex law in good faith, the court may be sympathetic.
- Case Reference: In Choo Kok Hooi v. Lancar Borneo Sdn Bhd [2025] MLRHU 2309 HC, the court found it “just and equitable” to make no order as to costs for garnishee banks. The banks had resisted releasing funds due to a “legitimate concern for potential criminal liability” under anti-money laundering laws, rather than mere stubbornness.
The Takeaway: Getting a “no order as to costs” is essentially a judicial declaration of a “legal draw.” Whether it is due to the importance of the topic, the poverty of the parties, or the academic nature of the litigation, these cases prove that the “loser pays” rule is never written in stone.
Disclaimer: This post is for informational purposes only and does not constitute legal advice. Please consult a qualified lawyer for your specific legal needs.
