BYL and another v BYN

• Jurisdiction: Singapore
• Judge: Anselmo Reyes IJ
• Judgment Date: 11 May 2020
• Neutral Citation: [2020] SGHC(I) 12
• Docket Number: Originating Summons No 9 of 2019
• Date: 11 May 2020
• 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)
• Hearing Date: 13 April 2020,17 February 2020
• Defendant Counsel: Thio Shen Yi SC, Niklas Wong and Kevin Elbert (TSMP Law Corporation)
• Court: International Commercial Court (Singapore)
• Subject Matter: Arbitration,Costs

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 “SA” (the arbitrator whose conduct was called into question) on the other, gave rise to apparent bias vitiating the ICC Award. It was thus reasonable, according to the Defendant, to have instructed [BBB] to prepare [N]’s affidavit in the setting aside application. Duplication of work between [BBB] and TSMP (the Defendant adds) was kept to a minimum as TSMP’s role was primarily to advise on Singapore law aspects of the setting aside application. No further particulars of the amount claimed by way of [BBB]’s fees have been given. The Defendant justifies the claim for [AAA]’s fees on the basis that it was necessary to instruct Indian counsel to advise on the affidavit on Indian law (the “Indian law affidavit”) which the Plaintiffs adduced in support of their application. It was eventually decided that the Defendant would not file a responsive affidavit on Indian law, but that (the Defendant says) should not negate the reasonableness of having consulted [AAA]. No details of the disbursements claimed have been provided.

As far as [BBB]’s fees are concerned, I am prepared to accept that there was an attempt to minimise duplication of work on [N]’s affidavit between TSMP and [BBB]. However, what was required for [N]’s affidavit was a factual account of [BBB]’s and [N]’s dealings with SA during the period said to give rise to apparent bias. [BBB]’s fees of S$84,300 for producing a straightforward narrative of events from [N] seem to me excessive. Much of that narrative had in any event already been set out in answer to the Plaintiffs’ challenge to SA within the ICC arbitration. I would therefore only allow S$28,100 (one-third of S$84,300) for [BBB]’s fees. Although disbursements have not been itemised, I am prepared to accept that, in a transnational case involving parties and legal representatives in different jurisdictions (including Singapore and India), there are likely to be significant disbursements. But even then, in the absence of particulars, S$15,700 seems to me excessive. I would only allow a third of the sum claimed (S$5,300). On the charge for [AAA]’s advice in connection with the Indian law affidavit, I agree that it was reasonable to instruct [AAA] to comment on the Indian law affidavit and that the S$1,500 charged for so advising was reasonable.

That leaves the claim of S$133,400 for TSMP’s fees. There is unfortunately no breakdown of that figure. Nonetheless, in light of what has actually happened in these proceedings, some surmises can be made in an attempt to put that figure in perspective.

By the CMC, the parties’ affidavits for the substantive hearing in this matter had mostly been filed. [N]’s affidavit is dated 23 September 2019. The Plaintiffs’ Indian law affidavit is dated 5 December 2019. Therefore, [AAA] would have been consulted and its fee of S$1,500 incurred in December 2019 or January 2020 before the CMC. I gave leave at the CMC for the filing of a...