DBX and another v DBZ

• Jurisdiction: Singapore
• Judge: Roger Giles IJ
• Judgment Date: 08 February 2024
• Neutral Citation: [2024] SGHC(I) 5
• Court: International Commercial Court (Singapore)
• Docket Number: Originating Application No 10 of 2023
• Hearing Date: 19 January 2023
• Citation: [2024] SGHC(I) 5
• Year: 2024
• Plaintiff Counsel: Ang Cheng Ann Alfonso and James Ch'ng Chin Leong (A.Ang, Seah & Hoe)
• Defendant Counsel: Chong Wan Yee Monica, Leau Jun Li and Foo Hsien Weng (WongPartnership LLP)
• Subject Matter: Arbitration,Costs
• Published date: 14 February 2024

Roger Giles IJ: Introduction

Judgment in these proceedings was given on 15 November 2023: DBX and another v DBZ [2023] SGHC(I) 18. The Applicants were ordered to pay the Respondent’s costs. The parties were unable to agree on the amount of the costs. I have received the Respondent’s written submissions on costs and the Applicants’ submissions in reply. This is the determination of the amount of the costs.

When the proceedings were transferred to the Singapore International Commercial Court (“the SICC”), the learned Deputy Registrar directed that the costs regime under O 21 of the Rules of Court 2021 (“the ROC”) and Appendix G to the Supreme Court Practice Directions 2021 (“the Costs Guidelines”) should apply to the assessment of pre-transfer costs, and the costs regime under O 22 of the Singapore International Commercial Court Rules 2021 (“the SICC Rules”) should apply to the assessment of post-transfer costs.

The Respondent claims: (a) costs of $187,000, made up of $65,000 for pre-transfer costs, $115,000 for post- transfer costs and $7,000 for preparation of the costs submissions; and (b) disbursements of $7,709.38 and HKD151,978.26, the latter amount being the costs of instructing its Hong Kong law expert, Mr Stephen Tisdall. The Applicants respond with amounts of $16,288 for pre-transfer costs and $45,000 for post-transfer costs; they do not take issue with the amount of $7,000 for preparation of the costs submissions nor the amounts for disbursements.

Pre-transfer costs

There is substantial agreement on the basis for assessment of the pre-transfer costs.

The successful party is entitled to “a reasonable amount in respect of all costs reasonably incurred” (O 21 r 22(2) of the ROC). Whether costs were reasonably incurred is assessed objectively by considering whether the costs were incurred in a way corresponding to the level of effort that is generally accepted as being likely to be expended for the particular type of work in question; whether costs are a reasonable amount is also assessed objectively by considering whether the overall amount corresponds to the level of costs generally accepted as being likely to be incurred for the particular type of dispute: Senda International Capital Ltd v Kiri Industries Ltd [2023] 1 SLR 96 (“Senda”) at [50]. The objective standard is because costs awarded under O 21 of the ROC are assessed “at such a level as would enable a litigant with reasonable merits to pursue justice”, so that the level of recoverable costs in each case is “shaped by the normative question of what ought to be the amount of costs a successful party can recover for the particular work done in the context of the dispute in question, irrespective of the level of costs the successful party may have actually incurred in the legal proceedings” [emphasis in original] (Senda at [47]).

In its assessment of pre-transfer costs, the court is guided by the factors in O 21 r 2(2) of the ROC, and by costs precedents and the Costs Guidelines; the regard to costs precedents tends to awarding the same levels of costs in similar or comparable cases, while the Costs Guidelines represent the level of fees which members of the public and the legal profession would generally accept as reasonable (Senda at [48]–[49]). But these are guides only, and the court may depart from the Costs Guidelines or apply an uplift if, guided by the factors in O 21 r 2(2), the circumstances of the case so warrant (Senda at [14]; CBX and another v CBZ and others [2022] 1 SLR 88 at [28] and [34]).

The indicative range in the Costs Guidelines for a full day arbitration Originating Application is $13,000 to $40,000.

Without saying what figure within the range it takes as the starting point, the Respondent submits that an uplift is warranted. The Respondent’s submissions are extensive, and I summarise their principal points. The matter was complex (two awards, four discrete setting aside grounds, the need for foreign law evidence, and a novel question of whether the corrections postponed the commencement of the three month period); it was factually detailed (over 500 pages of exhibits to the Applicants’ affidavits, and many more materials necessitated in the Respondent’s opposition to the application); the complexity was compounded by the Applicants’ unreasonable conduct of the application in a number of respects; the Respondent had to expend substantial time, with a team of four counsel, to meet the complex and detailed application with its own extensive materials, its actual time and time costs being over 140 hours and $86,492.50 in total; and finally, an uplift giving the amount of $65,000 is proportionate to the award debt at stake, which is...