Gabriel Law Corp v H&C S Holdings Pte Ltd

• Jurisdiction: Singapore
• Judge: Andre Maniam JC
• Judgment Date: 06 November 2020
• Neutral Citation: [2020] SGHC 238
• Year: 2020
• Docket Number: Bill of Costs No 18 of 2020 (Summonses Nos 2879 and 2880 of 2020)
• Published date: 11 November 2020
• Hearing Date: 19 August 2020
• Plaintiff Counsel: Peter Gabriel, Nandwani Manoj Prakash and Charlotte Loh (Gabriel Law Corporation)
• Defendant Counsel: Vellayappan Balasubramaniyam, Davis Tan Yong Chuan and Quek Yi Liang Daniel (Rajah & Tann Singapore LLP)
• Court: High Court (Singapore)
• Citation: [2020] SGHC 238
• Subject Matter: Civil Procedure,Costs,Taxation

Andre Maniam JC: Introduction

This case concerns a taxation of costs as between solicitor and client. The applicant (“the Law Firm”) successfully represented the respondent (“the Client”) in an arbitration (“SIAC 123”), and thereafter in court: resisting the opposing party’s application to set aside the award, by HC/OS 304/2014 (“OS 304”); and obtaining an order that the arbitration award be enforced as a judgment, by HC/SUM 1942/2014 (“SUM 1942”) in OS 304.

The Law Firm also instructed solicitors in the United Kingdom (“the UK”) who successfully applied in 2014 Folio 1276 (“Folio 1276”) to enforce the award in the UK, and thereafter (with Queen’s Counsel) successfully resisted the opposing party’s application in Folio 1276 for a stay of execution of the UK judgment based on the award.

In SIAC 123, the Client was awarded the principal sum of US$1,900,000, and pre-award interest of US$84,391.67. The arbitrator also awarded $355,000 in costs (inclusive of $65,000 in disbursements) to the Client; the Law Firm billed the Client the same amount, and payment was received from the opposing party. Those fees and disbursements were thus not in issue between the Law Firm and the Client.

What was in issue was the post-award work. The Law Firm had billed the Client $450,000 in professional fees, plus disbursements and applicable Goods and Services Tax (“GST”). The disbursements included the bills rendered by the UK solicitors (inclusive of counsel’s fees), in the total sum of £59,665.17 (equivalent to $123,736.33).

The above figures do not include the Law Firm’s Invoice 39 dated 28 October 2014 for $100,000 in fees which, together with disbursements and GST, totalled $107,809.47. Although that was titled “Originating Summons No. 304 of 2014” and “Arbitration No. 123 of 2010”, the Law Firm said this was a mistake and the bill was meant for another arbitration matter. I shall return to this later.

Taxation

The Law Firm obtained payment of all these bills, but thereafter the Client commenced proceedings by Originating Summons No 931 of 2016 (“OS 931”) for a declaration that the bills were not proper bills, and in the alternative, that they be referred to the Registrar for taxation. The court gave the client leave to tax Invoice 39, as well as Invoice 86 which was for $321,000 ($300,000 in professional fees plus GST). Both parties appealed to the Court of Appeal but thereafter settled on the basis that all the “bills” in issue in OS 931 would be submitted to taxation. Those “bills” included an e-mail of 15 January 2014 requesting a $50,000 deposit, Invoice 46 for $100,000 in disbursements, and: Invoice 15 for $54,113.20 (of which $50,000 was for professional fees); Invoice 39 for $107,809.47 (of which $100,000 was for professional fees); Invoice 54 for $107,535 (of which $100,000 was for professional fees); and Invoice 86 for $321,000 (of which $300,000 was for professional fees).

At the taxation, the Law Firm sought the following:

S/N	Description	Amount
1	Section 1 costs (ie, professional fees)	$838,942.83
	(a) Singapore proceedings, ie, OS 304	$150,000
(b) Time spent and work done in respect of the UK proceedings	$478,600
(c) Correspondence relating to the UK proceedings	$60,342.83
(d) Refreshing upon the antecedent proceedings in SIAC 123 and OS 304 in the course of Folio 1276	$150,000
2	Section 2 costs (ie, costs of taxation)	$5,000
3	Section 3 costs (ie, disbursements)	$152,729.85
TOTAL	$996,672.68

By correspondence just prior to the hearing before me, the Law Firm stated that there was a calculation error in item 1(c) above. That figure of $60,342.83 had various components, one of which was a figure of $35,430 which was presented as the value of time spent by lead counsel, Mr Peter Gabriel, on correspondence with the UK solicitors. That was for some 2,126 minutes (not from timesheets – there were none – but this time figure was reconstructed for the purposes of taxation). I was informed that this ought to have been 8,362 minutes, which in dollar terms would be $139,366.66 at Mr Gabriel’s rate of $1,000 per hour. Thus corrected, $164,279.49 would be claimed under item 1(c) (“correspondence relating to the UK proceedings”), and the total claimed would be $1,100,609.34 (of which $942,879.49 would be for professional fees).

I found it odd that the Law Firm would ask to correct the reconstructed time figure, and correspondingly the “time costs” figure claimed, because the Law Firm had abandoned this analysis before the taxing registrar. The exchange on this as recorded by the taxing registrar is illuminating: AC: There are a few points I’d like to raise. Start off with those parts which RC touched on in relation to our timesheets.

Page 115 of BC. Item 20. 20 June 2014. Superficial reading would suggest that no lawyer will spend 90 minutes reading an invoice. It doesn’t make sense. We are not relying on this timesheet for these purposes.

Ct: So you are not relying on any of these timesheets at all? AC: No. Happy to explain how it came about but we are not relying on any of this. That’s why in our second submissions, we had gone through the number of pages etc. Ct: So I can ignore all of these timesheets? They are not supportive at all of your BC? AC: They were an attempt to provide explanation. We had an independent lawyer not involved in these proceedings to try to rationalise the time based on correspondence etc. But they do not reflect actual time spent because we don’t have contemporaneous timesheets. They are clearly a mistake.

The same goes for the other items that RC took Your Honour through, in the timesheets.

Ct: I will take it that your position is I can just ignore all of the timesheets? AC: Yes.

In the event, the taxing registrar allowed $230,000 under section 1 for professional fees: $120,000 for the Singapore proceedings, $60,000 for the UK proceedings, and $50,000 for the Law Firm’s role in overall strategy and coordination. Under section 2, $5,000 was allowed for costs of the taxation. Under section 3, the full sum of $152,729.85 was allowed for disbursements.

Taxation review

Both the Law Firm (by HC/SUM 2879/2020) and the Client (by HC/SUM 2880/2020) applied for a review. My decision on the taxation review follows.

Professional fees

As I mentioned above, no timesheets were kept by the Law Firm for this matter. Instead, for the purposes of taxation, the Law Firm sought to reconstruct what time may have been spent by: (a) looking at the correspondence; and (b) applying estimates based on factors such as the number of pages in a document, and assuming it took five minutes to read each page.

In Tommy Choo, Mark Go & Partners v Kuntjoro Wibawa and other matters [2015] SGHC 239 (“Tommy Choo”), the instructing solicitors had claimed $344,300 as section 1 costs. $127,500 was allowed on taxation, and that was reduced on review to $50,000. Under section 3, $944,310.80 was claimed, including $937,000 for counsel’s fees. On taxation, $480,000 was allowed as counsel’s fees, and that was reduced on review to $200,000. The law firm and counsel had not produced contemporaneous timesheets or attendance notes that accurately recorded the time they had spent on the case. As for the timesheets and fee note that counsel had produced, the court was not satisfied that they had been made contemporaneously and had doubts as to their reliability; moreover, they only stated the hours that had been spent on the case without any details of work done. The court concluded at [24] that “[i]n the absence of reliable, credible and contemporaneous documents that support and substantiate their claim, [the law firm and counsel] cannot expect the court to accept the large figures in their bills of cost”.

In the present case, the taxing registrar made similar observations:

… After the Respondent’s counsel pointed out issues with certain entries, the Applicant’s counsel had asked that the Court disregards these time entries. This means that there is no contemporaneous breakdown or timesheets before me to support any of the professional fees that the Applicant is claiming against the Respondent, save for the description of work done found in invoice no. 54 and the bits and pieces that can be made out from the English solicitors’ time entries. In the premises, I have no choice but to adopt a broad brush approach in assessing what would be reasonable Section 1 costs.

I adopted the same “broad brush” approach in assessing what reasonable costs would be, based on the material available before me.

Before considering the costs in their various components as well as in total, I shall consider the effect of the presumptions as to reasonableness and unreasonableness under O 59 r 28 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).

Presumptions as to reasonableness and unreasonableness in a solicitor-client taxation

The Law Firm had received the full amount billed in Invoices 15, 54 and 86 (which totalled $450,000 in professional fees for the post-award work). It contended that all these bills should be presumed to be reasonable.

In this regard, O 59 r 27(3) of the ROC provides as follows:

On a taxation on the indemnity basis, all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred and any doubts which the Registrar may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the receiving party; and in these Rules, the term “the indemnity basis”, in relation to the taxation of costs, shall be construed accordingly.

Order 59 r 28 then provides, in material part, as follows:

Costs payable to solicitor by his own client (O. 59, r. 28)

28.—(1) This Rule applies to...