BYL and another v BYN

• Jurisdiction: Singapore
• Court: International Commercial Court (Singapore)
• Judge: Anselmo Reyes IJ
• Judgment Date: 11 May 2020
• Neutral Citation: [2020] SGHC(I) 12
• Citation: [2020] SGHC(I) 12
• Date: 11 May 2020
• Subject Matter: Arbitration,Costs
• Defendant Counsel: Thio Shen Yi SC, Niklas Wong and Kevin Elbert (TSMP Law Corporation)
• Published date: 15 May 2020
• Plaintiff Counsel: Davinder Singh SC, David Fong and Sivanathan Jheevanesh (Instructed), Kabir Singh and Tan Tian Yi (Cavenagh Law LLP)
• Docket Number: Originating Summons No 9 of 2019
• Hearing Date: 13 April 2020,17 February 2020

Anselmo Reyes IJ: Introduction

On 3 March 2020, by my judgment in BYL and another v BYN [2020] SGHC(I) 06, I dismissed the Plaintiffs’ application to set aside an International Chamber of Commerce (“ICC”) Partial Award dated 30 April 2019 (“ICC Award”) pursuant to an arbitration before the ICC (“ICC arbitration”). This is my judgment on the costs of the Plaintiffs’ abortive setting aside application. The parties agreed the following directions for the assessment of costs: Parties to submit their respective written submissions on costs, limited to 20 pages, within 14 days of the relevant court order. Parties to submit their reply submissions on costs, if any, limited to 10 pages, within 14 days thereafter. The issue of costs to be determined on the basis of the parties’ written submissions and without the attendance of solicitors and oral argument.

There is no dispute on the incidence of costs. The Defendant having prevailed, the Plaintiffs accept that they should pay the Defendant’s costs. But there is a wide divergence on quantum. The Plaintiffs say that the Defendant’s costs should be no more than S$15,000, while the Defendant says that their costs should be S$235,000 (inclusive of disbursements).

When the Deputy Registrar transferred the Plaintiffs’ setting aside application to the Singapore International Commercial Court (“SICC”) on 29 November 2019, he left open the question:

whether the High Court costs scale and Order 59 of the Rules of Court should continue to apply to the assessment of costs in respect of all proceedings in and arising from HC/OS 992/2019 [that is, the Plaintiffs’ setting aside application] after its transfer to the [SICC].

The direction recognises that the costs of civil proceedings in the High Court are assessed by reference to Order 59 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) and the Costs Guidelines in Appendix G of the Supreme Court Practice Directions (“Appendix G”), while costs before the SICC are assessed under ROC Order 110 rule 46. The latter regime requires that, unless the SICC otherwise orders, an unsuccessful party must pay the “reasonable costs” of the successful party (see CPIT Investments Ltd v Qilin World Capital Ltd and another [2018] 4 SLR 38 (“CPIT”), which provides guidance on applying the “reasonable costs” standard, especially in transfer cases). I read the Deputy Registrar’s direction as leaving the proper regime for assessing costs, whether pre- or post-transfer, to the SICC.

The Plaintiffs have submitted that, to the contrary, the Deputy Registrar’s direction means that I must assess pre-transfer costs in accordance with Appendix G and can only decide whether to apply Appendix G or ROC Order 110, rule 46 to post-transfer costs. I am unable to accept that reading of the Deputy Registrar’s direction. That is because the Deputy Registrar did not simply reserve to the SICC the question of “whether [Appendix G] should continue to apply to the assessment of costs in respect of proceedings in and arising from [the Plaintiffs’ application] after its transfer to the [SICC]”. The Deputy Registrar instead went out of his way to insert the word “all” before “proceedings”. From that, it seems to me evident that the Deputy was leaving it to me to determine, at an appropriate time after the transfer of the case to the SICC, if the Appendix G regime should continue to apply to all or any part of the proceedings in or arising from the Plaintiffs’ application.

Following the transfer of the Plaintiffs’ application to the SICC, a case management conference (“CMC”) took place before me on 20 January 2020. In its Proposed Case Management Plan (the “Defendant’s Plan”) submitted just before the CMC, the Defendant estimated its costs as at the time of the CMC to be US$72,000 (about S$103,680). It indicated that its overall costs inclusive of the substantive hearing of the Plaintiffs’ application would be in the region of US$250,000 (about S$360,000). By a letter dated 14 February 2020 (the “February letter”) to the SICC, the Plaintiffs’ solicitors in the ICC arbitration estimated that the Plaintiffs’ costs of the setting aside application would come to between S$800,000 and S$900,000 and that the Plaintiffs’ costs as at the CMC were between S$400,000 and S$500,000.

Discussion

The Plaintiffs submit that I should have regard to Appendix G in assessing what the Defendant’s reasonable costs should be. For a one day originating summons hearing, Appendix G specifies costs of S$15,000. The Defendant counters that I should ignore Appendix G, because the amount of S$15,000 is “excessively low given the circumstances of the case”.

The Defendant has broken down its claim for S$235,000 as follows: Fees of TSMP Law Corporation (“TSMP”) (the Defendant’s Singapore counsel): S$133,400. Fees of [BBB] (the Defendant’s counsel in the ICC arbitration): US$58,240 (about S$84,300). Fees of [AAA] (the Defendant’s Indian law counsel): INR78,650 (about S$l,500). Disbursements: approximately S$15,700.

I begin by assuming that the Defendant’s costs of the Plaintiffs’ setting aside application, whether pre- or post-transfer, are to be assessed by the “reasonable costs” standard in ROC Order 110, rule 46.

The Defendant justifies the claim for [BBB]’s fees by stressing that it was a central plank of the Plaintiffs’ application that the contacts between [BBB] and [N] ([BBB]’s lead counsel for the Defendant in the ICC arbitration) on the one hand and...