CJM and others v CJT

• Jurisdiction: Singapore
• Judge: Anselmo Reyes IJ
• Judgment Date: 27 August 2021
• Neutral Citation: [2021] SGHC(I) 9
• Year: 2021
• Docket Number: Originating Summons No 5 of 2021
• Published date: 02 September 2021
• Hearing Date: 13 July 2021,07 June 2021,21 April 2021
• Plaintiff Counsel: Francis Xavier s/o Subramaniam Xavier Augustine, Chia Xin Ran Alina and Gani Hui Ying Tracy (Rajah & Tann Singapore LLP)
• Defendant Counsel: Vergis S Abraham, Asiyah binte Ahmad Arif and Zhuo Jiaxiang (Providence Law Asia LLC)
• Citation: [2021] SGHC(I) 9
• Court: International Commercial Court (Singapore)
• Subject Matter: Civil Procedure,Costs

Anselmo Reyes IJ: Introduction

In CJM and others v CJT [2021] SGHC(I) 4 I dismissed the plaintiffs’ application to set aside an arbitral award (including a Summons to amend the Originating Summons filed by the plaintiffs). At the end of my judgment, I directed that the parties file written submissions on costs. This is my decision on costs.

Having prevailed, the defendant contends that the plaintiffs should be ordered to pay costs of S$85,000 (all-in) to the defendant as follows: (a) costs of S$25,000 prior to the transfer of the matter to the SICC (“pre-transfer costs”); (b) costs of S$45,000 following the transfer of the matter to the SICC (“post-transfer costs”); and (c) disbursements of S$15,000 (of which S$10,958.40 was paid to an expert providing an opinion on foreign law). The plaintiffs do not dispute that, having lost, they are liable to pay costs to the defendant. Nor do the plaintiffs dispute the S$15,000 claimed for disbursements. There is also no dispute that the costs scale in O 59 of the Rules of Court (2014 Rev Ed) (“ROC”) and Appendix G (“Appendix G”) of the Supreme Court Practice Directions are relevant to pre-transfer costs. The parties further agree that, as to post-transfer costs, the defendant is entitled to its “reasonable costs” in accordance with O 110 r 46 ROC, the general rule governing costs before the SICC. Where the parties disagree is on the quantum of costs. The plaintiffs say that pre-transfer costs of S$5,000 should suffice and post-transfer costs should be no more than S$20,000. There is accordingly a difference of S$45,000 between the parties.

Pre-transfer costs

Appendix G gives a guideline of S$12,000 per day for contentious originating summonses not involving cross-examination. But Appendix G allows the court a discretion to depart from that guideline when appropriate in the circumstances of the case.

The defendant submits that I should deviate from the guideline. The defendant argues that such step is justified because its Singapore counsel was not involved in the underlying consolidated arbitration. Instead, the defendant’s Singapore counsel had to take full instructions on the matter. Counsel had to review voluminous supporting documents when preparing their client’s factual affidavit in opposition and a responsive affidavit on foreign law. In so doing, counsel had to liaise with the foreign lawyers who were involved in the arbitration on the defendant’s behalf. The defendant notes that the arbitration took nearly 3 years. The defendant also points out that the award issued by the tribunal was almost 700 pages long and the affidavit in support of the plaintiffs’ setting aside application was 4,170 pages in length. The plaintiffs additionally submitted a 51-page affidavit on foreign law on which the defendant had to obtain instructions and file its own expert evidence. As a result, the defendant breaks down its pre-transfer costs as follows: (a) taking instructions from the client, reviewing cause papers and supporting documents: S$9,800; (b) assisting with the preparation of reply affidavits: S$31,600; and (c) cost of foreign counsel advising on foreign law issues and assisting with procuring and preparing a foreign law opinion: S$92,500. The defendant says that there is no duplication in respect of the costs claimed for Singapore and foreign counsel.

The plaintiffs counter that there is no reason to depart from Appendix G and, in any event, S$25,000 for pre-transfer costs is excessive. The plaintiffs agree that it filed “a voluminous record” in support of its application. But they claim that “this is commonplace for setting aside applications as the parties would put on record the entire underlying arbitration record for good order". The plaintiffs accept that, in accordance with the Court of Appeal’s decision in CBX and another v CBZ and others [2021] SGCA(I) 4, a voluminous record is a factor that may be considered in deciding whether to give an up-lift on pre-transfer costs, but it is not a reason for disregarding Appendix G completely. The plaintiffs point out that the text...