CBX and another v CBZ and others

• Judge: Anselmo Reyes IJ
• Judgment Date: 08 October 2020
• Neutral Citation: [2020] SGHC(I) 21
• Citation: [2020] SGHC(I) 21
• Defendant Counsel: Francis Xavier SC, Disa Sim, David Isidore Tan Huang Loong, Kristin Ng (Rajah & Tann LLP)
• Published date: 10 October 2020
• Hearing Date: 09 September 2020
• Plaintiff Counsel: Alvin Yeo SC, Lin Weiqi Wendy, Chong Wan Yee Monica, Huang Meizhen Margaret, Kara Quek Tze-Min (WongPartnership LLP)
• Docket Number: Originating Summons No 1 of 2020
• Date: 08 October 2020
• Court: International Commercial Court (Singapore)
• Subject Matter: Costs,Civil Procedure

Anselmo Reyes IJ: Introduction

In CBX and another v CBZ and others [2020] SGHC(I) 17 dated 16 July 2020, I dismissed the Plaintiffs’ application to set aside two Phase II Partial Awards and the whole of a Costs Award. I now deal with the costs of the Plaintiffs’ abortive application. In this determination, I will use the abbreviations defined in my previous judgment. There is no dispute that, the Defendants having prevailed, they should have the costs of the Plaintiffs’ application. There is also no dispute that simple interest at 5.33% per annum should accrue on any costs awarded to the Defendants. The parties differ, however, over quantum.

This case was transferred from the High Court to the Singapore International Commercial Court (“SICC”) by the Deputy Registrar on 14 February 2020. When ordering the transfer, the Deputy Registrar reserved for the SICC’s determination the question of whether the costs guidelines in Appendix G of the Supreme Court Practice Directions (“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 parties’ dispute over quantum is essentially a debate on whether I should assess the Defendants’ pre- and post-transfer costs in accordance with Appendix G or with O 110 r 46(1) (“Rule 46”) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed). Rule 46 is the normal rule governing costs in SICC proceedings. It provides that, except where the SICC directs otherwise, in the ordinary course of events an unsuccessful party before the SICC should bear the “reasonable costs” of the successful party. The Defendants claim S$150,000 (all-in) as their reasonable costs. The Plaintiffs reply that such amount is exorbitant and the Defendants should be entitled to no more than S$35,000 (all-in) (if pre- and post-transfer costs are assessed by reference to Appendix G) or S$45,000 (all-in) (if pre-transfer costs are assessed under Appendix G and post-transfer costs are assessed on the basis of Rule 46). The Plaintiffs additionally contend that I should discount any costs awarded to the Defendants by 20%. The Plaintiffs say that this is because, following my judgment of 16 July 2020 and contrary to the order of the High Court dated 20 January 2020 (HC/ORC 559/202) (“ORC 559”), the Defendants publicly disclosed confidential details relating to this case, including details of the parties in the underlying arbitrations.

Discussion Preliminary matters

At the outset, two issues need to be determined.

First, there is the question of the 20% discount on account of the alleged breach of ORC 559. These proceedings are not the appropriate forum for dealing with any alleged infraction of ORC 559. In particular, ORC 559 permitted the parties to publish details about the relevant arbitrations where “such disclosure ... falls within an exception to the obligation of confidentiality in arbitration under Singapore law”. According to the Defendants, any disclosure that they made fell squarely within an exception to the obligation of confidentiality under Singapore’s arbitration law. This court has not investigated the circumstances of the relevant incident. If the Plaintiffs are of the view that there has been a breach of ORC 559 which needs to be sanctioned in some way, they should take out an appropriate summons for that purpose.

Second, there is a difference between the parties on the proper construction of the Deputy Registrar’s order of 14 February 2020. The Defendants read the order as leaving it to me 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 parties. The Plaintiffs, on the other hand, compare the order with the equivalent order made in BYL and another v BYN [2020] SGHC(I) 12 (“BYL v BYN (Costs)”). The order there left it for the SICC to decide whether Appendix G “should continue to apply to the assessment of costs in respect of all proceedings in and arising from [the Plaintiffs’ setting aside application] after its transfer to the [SICC]” [emphasis added]. In BYL v BYN (Costs), I observed (at [4]) that the Deputy Registrar had gone out of his way to insert the word “all” before “proceedings”. I inferred from the use of “all” that the Deputy Registrar was “leaving it to me to determine ... if ... the Appendix G regime should continue to apply to all or any part of the proceedings in or arising from the Plaintiffs’ application”. The Plaintiffs latch onto the absence of the word “all” in the order in this case. They argue that, in consequence, the Deputy Registrar has only left it to me to determine whether post-transfer (as opposed to pre-transfer) costs should be assessed by reference to Appendix G or Rule 46. The Plaintiffs say that, by the order here, Appendix G should be used in the assessment of pre-transfer costs. The Plaintiffs support their argument by stressing that, during a pre-trial conference on 11 February 2020 (the “PTC”), the Plaintiffs stated that, if the case was to be transferred, they wanted Appendix G to continue to apply.

I am not persuaded of the correctness of the Plaintiffs’ reading of the transfer order in this case. I accept that the absence of the word “all” in the order introduces an element of ambiguity, so that the Plaintiffs’ reading of the Deputy Registrar’s order is a plausible construction. But, on balance, it seems to me that the effect which the Deputy Registrar intended by the order here is precisely the same as that identified in BYL v BYN (Costs). The inclusion of the word “all” in the transfer order in BYL v BYN (Costs) made the meaning of that direction clear. But it does not follow that the omission of the word “all” here (which may conceivably have been inadvertent) implies that the Deputy Registrar envisaged a different outcome. Evaluated against what happened at the pre-transfer stage of these proceedings, the Plaintiffs’ conclusion strikes me as tenuous. This is because at the PTC, in response to what the Plaintiffs expressed about their wishes in respect of the applicability of Appendix G, the Defendants submitted that “with the change in procedure [due to the transfer from the High Court to the SICC], lack of strict application to costs guidelines comes with it as well”. There was accordingly disagreement between the parties on the applicability of Appendix G to the assessment of all, some or none of the entire costs of these proceedings due to the transfer to the SICC.

There is nothing to indicate that, by his transfer order, the Deputy Registrar favoured the Plaintiffs’ view as opposed to that of the Defendants. This is hardly surprising. Given the sharp difference between the parties on the cost implications of a transfer, the Deputy Registrar would more logically and naturally have left the matter to me as the SICC judge assigned to hear the case to determine the question. In other words, seen in its factual context, the transfer order here did not decide whether Appendix G should apply to pre- or post-transfer costs or both, but left it to me to determine the appropriate scope for the application of Appendix G pre- and post-transfer. In any given case (not necessarily just a case relating to an arbitral award), where a party manages to persuade the registrar hearing a transfer application to direct that Appendix G is to apply in whole or part to the costs of the proceedings notwithstanding a transfer, the registrar will make this clear in his or her transfer order. A recent example (albeit not in respect of proceedings relating to an arbitral award) was the transfer order mentioned in Sheila Kazzaz and another v Standard Chartered Bank and others [2020] SGHC(I) 19 (at [9]). There the registrar unambiguously directed that “Appendix G shall continue to be relevant to the assessment of costs in respect of all proceedings in and arising from this suit after its transfer to the SICC”.

In their respective submissions, both parties refer to what I said in BYL v BYN (Costs) (at [18]):

[I]n the circumstances of this case, I doubt that Appendix G can be of real assistance even as a rough-and-ready guide on the appropriate magnitude of costs. There are two reasons for this. First, as the Defendant points out, in contrast to what was highlighted in BXS v BXT (Costs) at [14], there has been no understanding or concern among the parties...