BLG and another v BLI and others

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu SJ
• Judgment Date: 12 April 2018
• Neutral Citation: [2018] SGHC 86
• Court: High Court (Singapore)
• Docket Number: Bill of Costs No 189 of 2016 (Summons No 5386 of 2017)
• Published date: 26 January 2019
• Year: 2018
• Hearing Date: 27 November 2017
• Plaintiff Counsel: Edmund Eng, Jamal Siddique Peer and Cheryl Chong (Shook Lin & Bok LLP)
• Defendant Counsel: Kelvin Poon Kin Mun and Alyssa Leong (Rajah & Tann Singapore LLP),Lee Hwee Yenn Amanda (Tan Kok Quan Partnership)
• Subject Matter: Legal Profession,Bill of Costs
• Citation: [2018] SGHC 86

Lai Siu Chiu SJ: Introduction

This review under Bill of Costs No 189 of 2016 relates all the way back to Originating Summons (Family) No 71 of 2011 (“the OS”). In the OS, two sisters namely BLG and BLH (“the applicants”) applied to the State Courts for a declaration pursuant to s 20 of the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“the MCA application”) that their sister BLK (“the third respondent”) was unable to make decisions for herself relating to her property and affairs, and to appoint the applicants as deputies to act in relation to the third respondent’s property and affairs.

The MCA application was opposed by the third respondent well as by BLI (“the first respondent”) who is the third respondent’s younger daughter and by BLJ (“the second respondent”) who is the husband of the first respondent. Henceforth the first and second respondents will be referred to collectively as “the first two respondents”.

The State Courts found that the third respondent lacked capacity and granted the MCA Application (see the decision of the senior district judge (“Senior District Judge”) dated 11 December 2012 at [2012] SGDC 489).

Dissatisfied with the decision of the Senior District Judge, all three respondents appealed to the High Court in Registrars’ Appeals Nos 223 of 2012 and 224 of 2012 (“the RAs”). The RAs were heard by this court and allowed, and the decision of the court below was set aside (see Re BKR [2013] 4 SLR 1257) (“Re BKR”).

The applicants appealed to the Court of Appeal against the decision of this court in Civil Appeal No 27 of 2014. The appeal was allowed (see Re BKR [2015] 4 SLR 81) with costs reserved. Subsequently, the Court of Appeal heard parties on costs. On 24 November 2015, the Court of Appeal made the following costs orders:¹ The first two respondents would be liable to pay the costs (taxed on an indemnity basis, unless indicated otherwise), in relation to the appeal and all proceedings below, including: costs to the applicants to be taxed on an indemnity basis if not agreed; costs to the third respondent, including: solicitor-and-client costs between the third respondent and WongPartnership LLP to be determined after taxation of bill(s) of costs filed and/or to be filed by WongPartnership LLP and subject to any further directions by the Court; costs and expenses of the Public Trustee, acting as the third respondent’s litigation representative; and costs of the Public Trustee’s solicitors, Tan Kok Quan Partnership, to be determined after taxation on a solicitor-and-client basis of the bill of costs to be filed by Tan Kok Quan Partnership, if not agreed.

In compliance with the above order of the Court of Appeal, the applicants’ solicitors prepared a bill of costs (“Original Bill of Costs”) which included the following proceedings:² the OS; the RAs; Originating Summons No 959 of 2013 (applicants’ application for leave to appeal to the Court of Appeal); Civil Appeal No 27 of 2014 (“CA 27/2014”); Summons No 2971 of 2011 (applicants’ application for service out of jurisdiction on the first two respondents in Hong Kong); Summons No 19006 of 2011 (the third respondent’s application to withdraw monies from her bank accounts for living, legal and medical expenses); and Registrar’s Appeal No 13 of 2012 (the third respondent’s appeal against the Senior District Judge’s decision making no order on Summons No 19006 of 2011). I should add that the bill of costs that was taxed was an amended bill (“Amended Bill of Costs”) dated 11 May 2017 for which the total costs figure for Section 1 in the Amended Bill, $3.53m³ (rounded down), was less than the figure of $4.67m in the Original Bill.⁴

After a lengthy hearing spread over three months and six days in 2017, the Senior Assistant Registrar (“SAR”) reduced the applicants’ costs in Section 1 of the Amended Bill of Costs from $3,530,226.65 to $878,600.00 and Section 3 disbursements from $665,165.39 to $663,430.46.⁵ The total costs claimed by the applicants for Sections 1 and 3 amounted to $4,194,392.04 and the total amount allowed was $1,542,030.46.⁶ A claim was made under Section 2 for $20,066.67, but no costs were awarded.⁷

Both parties were dissatisfied with the SAR’s taxation of the Amended Bill of Costs. Consequently, the applicants filed Summons No 3183 of 2017 for review of Sections 1 and 2 costs while the first two respondents filed Summons No 3184 of 2017 for review of Section 3 costs. Before both taxation reviews could take place, the applicants filed Summons No 5386 of 2017 (“the applicants’ summons”) on 22 November 2017 praying for the following orders:

That the [first and second respondents] do produce to the Honourable Court and the [applicants] a document (or documents, if such a single document is not available) setting out a breakdown of the total number of hours spent by each of their lawyers arising from or in connection with the following proceedings, or from which such breakdown of the total number of hours may be derived and/or calculated

in relation to the proceedings set out in [6(a) to (g)].

The applicants’ summons was heard and dismissed by this court on 27 November 2017. The applicants are dissatisfied with the dismissal and have, with this court’s leave, filed an appeal (in Civil Appeal No 32 of 2018) against my decision.

The submissions

At the hearing, the court inquired of the applicants’ counsel (“Mr Eng”) his reason(s) for wanting to see the solicitor-and-client charges rendered by the first two respondents’ solicitors. He informed the court that it was necessary and relevant for the taxation review(s) of the Amended Bill of Costs. In support of his arguments, Mr Eng cited O 59 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) (“the Rules of Court”) for the non-exhaustive factors the court must take into account in the multifactorial approach to be taken in taxation. He also relied on the Court of Appeal’s decisions in Lin Jian Wei and another v Lim Eng Hock Peter [2011] 3 SLR 1052 (“Lin Jian Wei”) and Likpin International Ltd v Swiber Holdings Ltd and another [2016] 4 SLR 1079 (“Likpin International”) as well as the High Court’s decision in Singapore Medical Council v Lim Mey Lee Susan [2015] SGHC 129 (“Susan Lim”).

To a further question from the court, Mr Eng clarified that he did not require to see the solicitors’ bill(s) of the first two respondents; he only wanted a breakdown of the hours their solicitors said they spent on the proceedings. Mr Eng complained that while the applicants had complied with the requisite Supreme Court Practice Directions (“the PD”) and filed a costs schedule before the Court of Appeal hearing, the first and second respondents had failed to do so in regard to the proceedings listed at [6] (save for CA 27/2014). Consequently, the court did not have a comparative schedule of costs to assist in the taxation and/or review of the Amended Bill of Costs.

Counsel for the first two respondents (“Mr Poon”) in opposing the applicants’ summons pointed out that apart from the first two respondents’ solicitor-and-client bills, there were two other objective comparators the applicants had recourse to, namely Appendix G of O 59 and the costs schedule that the applicants’ solicitors had themselves filed for CA 27/2014.

Mr Poon pointed out that at the taxation below, the applicants initially gave no breakdown of the hours spent by the applicants’ solicitors or the tasks for the charges billed to enable the court to ascertain how the figure in the Amended Bill of Costs could have increased almost six-fold from the figure in their costs schedule. He submitted that the applicants’ summons was a strategy to distract from the key question at stake – why was there such a vast discrepancy between the figure the applicants informed the Court of Appeal was their costs ($606,000) and the figure finally presented in the Amended Bill of Costs ($3,530,226.65)?

Mr Poon informed the court that the applicants had made the same request to the SAR pursuant to O 59 r 13(d) of the Rules of Court. The SAR declined to order the first two respondents’ solicitors to produce their solicitors-and-client bills.⁸ The SAR further declined the request of counsel for the applicants that the court draw an adverse inference against the first two respondents’ solicitors for refusing to produce their solicitor-and-client charges. As the applicants have not appealed against the SAR’s decision in this regard, Mr Poon cited O 59 r 35(1) of the Rules of Court (and the Court of Appeal’s decision in Lassiter Ann Masters v To Keng Lam (alias Toh Jeanette) [2004] 2 SLR (R) 392) to support his contention that the applicants cannot now file the applicants’ summons to circumvent their omission to appeal. Order 59 r 35(1) states:

Unless the Judge otherwise directs, no further evidence shall be received on the hearing of the review of the Registrar’s decision by the Judge, but except as aforesaid, on the hearing of the review, the Judge may exercise all such powers and discretion as are vested in the Registrar in relation to the subject-matter of the application.

Mr Poon explained that Justice Woo Bih Li’s decision in Susan Lim was issued before the PD on costs scheduling came into effect. (This submission is incorrect – the costs scheduling provisions in paragraphs 99A and 99B took effect on 15 July 2014 by way of Amendment No. 3 of 2014 to the PD while Justice Woo’s decision was dated 13 May 2015). As for the omission to file a costs schedule on the first two respondents’ behalf save for CA 27/2014, Mr Poon stated it was not necessary to do so as, just before the hearing of CA 27/2014, another PD was issued stating parties were only required to file the costs schedule pertaining to CA 27/2014 and nothing else.

The decision

It would be appropriate at this juncture to refer to the costs schedule of the applicants filed in compliance with paras 99A and 99B...