CBX and another v CBZ and others

• Jurisdiction: Singapore
• Judge: Judith Prakash JCA
• Judgment Date: 21 June 2021
• Neutral Citation: [2021] SGCA(I) 4
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 197 of 2020
• Published date: 23 June 2021
• Year: 2021
• Hearing Date: 05 February 2021
• Plaintiff Counsel: Lin Weiqi Wendy, Chong Wan Yee Monica (Zhang Wanyu), Huang Meizhen Margaret and Kara Quek Tze-Min (WongPartnership LLP)
• Defendant Counsel: Francis Xavier s/o Subramaniam Xavier Augustine SC, Sim Jek Sok Disa, David Isidore Tan Huang Loong, Kristin Ng Wei Ting and Tay Bok Chong Alvin (Rajah & Tann Singapore LLP)
• Subject Matter: Civil Procedure,Costs - SICC,Principles
• Citation: [2021] SGCA(I) 4

Judith Prakash JCA (delivering the judgment of the court): Introduction

This judgment deals with the subject of the costs regime that applies when a matter filed in the High Court of Singapore (now the General Division of the High Court) is, in the course of the proceedings, transferred to the Singapore International Commercial Court (“SICC”) and dealt with there until its conclusion.

Background

The originating action was HC/OS 1388/2019 which was filed in the High Court on 5 November 2019. It was an application by parties whom we shall refer to as “the Buyers” to set aside parts of two Partial Awards and a consolidated Costs Award (collectively, “the Awards”) rendered against them in two ICC arbitrations. The Awards had been rendered in favour of parties whom we shall refer to as “the Sellers”. The Sellers were named as respondents in HC/OS 1388/2019.

On 14 February 2020, the High Court, on its own motion, ordered that the setting aside proceedings were to be transferred to the SICC. The orders made by the learned Deputy Registrar at the time of the transfer included the following: (3) The issue 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 proceedings in and arising from HC/OS 1388/2019, after its transfer to the Singapore International Commercial Court, is reserved to the Singapore International Commercial Court. We will refer to this order as the “Appendix G order”. The Appendix G order was made in the presence of the parties at a pre-trial conference (“transfer PTC”) held to inform them of the intention to transfer the proceedings to the SICC.

The proceedings were then re-designated as SIC/OS 1/2020. At the time of the transfer, parties had already filed their first round of affidavits. Thereafter, four further affidavits were filed and both parties put in written submissions before proceeding to the hearing. The proceedings were heard before the learned International Judge (“the Judge”) over several hours on the morning of 15 June 2020 and his decision, CBX and another v CBZ and others [2020] 5 SLR 184 (“the Merits Judgment”), was delivered on 16 July 2020.

In the Merits Judgment, the Judge found in favour of the Sellers and gave his reasons for dismissing the Buyers’ setting aside applications in respect of all three Awards. He also ordered the parties to submit agreed directions for determining the costs (incidence and quantum) of the setting aside proceedings. This was duly done and there was a subsequent hearing on costs which led to another judgment, CBX and another v CBZ and others [2021] 3 SLR 10 (“the Costs Judgment”), which was delivered on 8 October 2020. By the Costs Judgment, the Buyers were ordered to pay the Sellers costs of $150,000 all-in (ie, inclusive of disbursements) with interest at 5.33% per annum from the date of the Costs Judgment. The basis of the award of costs was that as the Sellers had prevailed in the setting aside applications, they should have the costs of those applications. The principles on which the amount was assessed have been questioned in this appeal.

The appeals

The Buyers appealed against both judgments. CA/CA 136/2020 (“CA 136”) was their appeal against the Merits Judgment whilst this appeal, CA/CA 197/2020 (“CA 197”), is the appeal lodged against the Costs Judgment. The appeals were heard together by this Court. Our decision on the merits is contained in CBX and another v CBZ and others [2021] SGCA(I) 3 issued on 21 June 2021. For the reasons given in that judgment, we concluded that the Merits Judgment should be reversed and that the Awards should be set aside. Thus, the Buyers are the successful parties in CA 136.

As the basis on which the Costs Judgment was made no longer holds, that means that this appeal should also succeed and the costs order made by the Judge should be set aside accordingly. But, in this case, we do not think it sufficient to part with CA 197 on that basis. It was mounted by the Buyers on the premise that the Judge had erred in principle in his award of costs and that, therefore, even if CA 136 were to fail, there was a basis for this Court to interfere with the assessment of the Sellers’ costs and substantially reduce the amount granted. Written submissions were filed in CA 197 by both parties. Having studied them and the Costs Judgment, we are of the view that we should deal with the substance of CA 197 and express our views on the assessment of costs in a case that is transferred from the High Court to the SICC.

The applicable costs regimes

Before we go on to discuss the decision of the Judge and the challenges mounted against it, a brief word about the applicable costs regimes. Costs in civil proceedings in the High Court are governed by O 59 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”), while costs in proceedings in the SICC are governed by O 110 r 46 (“Rule 46”) of the ROC. Further, there are “Guidelines for Party-and-Party Costs Awards in the Supreme Court of Singapore” which are intended to provide a general indication on the quantum and methodology of party-and-party costs awards in specified types of proceedings in the Supreme Court. The Costs Guidelines, also known as “Appendix G”, set out a range of possible costs that may be awarded in respect of different matters that come before the courts. Of particular relevance here is that Appendix G indicates that where there is a contentious originating summons heard in the High Court, the range of costs awarded would generally fall between $12,000 and $20,000 per hearing day depending on whether there is cross-examination or not and what type of transcription service is used. Whilst judges are not bound to apply the range and can move beyond it, often there is little reason to depart substantially from it.

A different approach is taken in SICC cases. As can be seen, Rule 46 is much less prescriptive – no numerical ranges are specified, instead, the general rule as laid down in Rule 46(1) is:

The successful party in any application or proceedings in the Court must pay the reasonable costs of the application or proceedings to the successful party, unless the Court orders otherwise.

Thus, the question of amount of costs that a successful party should recover is at large and the judge is tasked to determine what is “reasonable”, a determination which can be guided by many factors moving far beyond the type of proceeding, the number of hearing hours and the kind of transcription service employed (though these factors will also be relevant, of course). It would immediately be appreciated that when a case started in the High Court (and thereby subject to Appendix G in relation to costs) is transferred to the SICC, the costs implications of such transfer may be of concern to the parties to the action as the losing party may no longer be able to rely on Appendix G as of right to influence the quantum of costs awarded. The grounds and the challenge

The three issues raised by the Buyers in their appeal against the Costs Judgement are as follows: Whether the Judge erred in finding that Appendix G would not (at least) be applicable to costs incurred pre-transfer of proceedings to the SICC; Whether the Judge erred in entirely disregarding the guidance of Appendix G in assessing the reasonableness of costs incurred post-transfer to the SICC; and Whether the Judge erred in finding that the sum of $150,000 (all-in) was “reasonable” in the circumstances. The first two issues engage points of principle whilst the third relates to the exercise of the Judge’s discretion. Before we consider the first two issues, we will set out the Judge’s reasoning which led him to the conclusions that are now challenged.

The first point that the Judge dealt with was how Appendix G should apply to the proceedings after they were transferred to the SICC. Before him, the parties accepted that this issue was to be resolved by an interpretation of the Appendix G order. The text of the order is at [3] above. The Sellers read the Appendix G order as leaving it to the Judge to determine the extent to which, following transfer to the SICC, Appendix G should (if at all) continue to apply to pre- and post-transfer costs incurred by the party. The Buyers, however, compared the Appendix G order with an equivalent court order made in BYL and another v BYN [2020] 4 SLR 204 (“BYL (Costs)”), and submitted that because the order in BYL (Costs) referred to “costs in respect of all proceedings” and the Appendix G order here omitted the word “all”, the Deputy Registrar had only left it to the Judge to determine whether post-transfer (as opposed to pre-transfer) costs should be assessed by reference to Appendix G or Rule 46.

The Judge rejected the Buyers’ reading of the Appendix G order. While he accepted that the absence of the word “all” in the order introduced an element of ambiguity so that the Buyers’ reading of the Appendix G order was a “plausible construction”, it seemed to him that the effect which the Deputy Registrar intended by the Appendix G order was precisely the same as that identified in BYL (Costs). That decision said that it was for the SICC to decide whether Appendix G applied to both pre- and post-transfer costs. The Judge considered that the omission of the word “all” did not imply that the Deputy Registrar envisaged a different outcome in this case from that in BYL (Costs). Given that the parties had a sharp difference on the costs implications of a transfer when they appeared before the Deputy Registrar, the latter would more logically and naturally have left the matter to the Judge, as the SICC judge assigned to hear the case, to determine the question. He said (at [7] of the Costs Judgment) that “seen in its factual context” the Appendix G order did not decide whether Appendix G should apply to pre- or post-transfer costs or both but...