Lam Hwa Engineering & Trading Pte Ltd v Yang Qiang

• Jurisdiction: Singapore
• Judgment Date: 14 January 2014
• Date: 14 January 2014
• Docket Number: Civil Appeal No 73 of 2013
• Court: Court of Appeal (Singapore)

Lam Hwa Engineering & Trading Pte Ltd

Plaintiff

and

Yang Qiang

Defendant

[2014] SGCA 3

Sundaresh Menon CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 73 of 2013

Court of Appeal

Civil Procedure—Costs—Taxation—Successful litigant claiming for travel expenses incurred for trial as part of disbursements—Whether travel expenses incurred for trial recoverable as part of disbursements in bill of costs—Order 59 r 27 (2) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Legal Profession—Professional conduct—Counsel pursuing unmeritorious appeal—Counsel's duty to evaluate client's case—Proportionality in litigation

The respondent, a Chinese foreign worker employed by the appellant, was injured in the course of his work. He commenced an action against the appellant seeking compensation. In the meantime, as the respondent was unable to work and maintain his Singapore work pass, he returned to China. He later flew back to Singapore for the purpose of attending and giving evidence at the trial. On the very first day of the trial, the parties reached a settlement. The appellant agreed to bear 80% liability. Final judgment was entered against the appellant for damages of $75,000, and costs and disbursements to be agreed or taxed.

The parties later agreed on the costs due to the respondent but they were unable to agree on the disbursements. The appellant took issue with the respondent's claim for travel expenses of $1,208. Out of this, a sum of $1,113 was for the respondent's return air tickets for travel between Shanghai and Singapore and the remainder of $95 was for land transport expenses incurred in China to travel to and from the airport. The appellant did not dispute that the itemised amounts were reasonable. The appellant's case was that it was not obliged to pay these expenses as a matter of legal principle. The respondent eventually filed an application for the taxation of the disbursements.

The taxing registrar at first instance held that such expenses were not claimable. This decision was reversed by the District Judge upon the respondent's appeal. The appellant pursued the matter to the High Court which dismissed the appeal and affirmed the District Judge's decision that the travel expenses were claimable. The appellant sought and obtained leave to pursue a further appeal to the Court of Appeal.

Held, dismissing the appeal:

(1) The first port of call should have been O 59 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘the ROC’) as the key piece of subsidiary legislation governing all matters of civil procedure, including (and especially) costs: at [19] .

(2) If the legal framework in O 59 of the ROC as interpreted in Lin Jian Wei v Lim Eng Hock Peter[2011] 3 SLR 1052 had been properly considered, it would have been obvious that the matter was entirely straightforward. The respondent, injured by the appellant's tort, could not remain in Singapore. He had to return to China; and subsequently had to return to Singapore for the trial where he was both the plaintiff and a key witness. Moreover, it was the appellant that had caused the proceedings to continue until the very first day of the trial when it decided to settle. This resulted in the obvious need for the respondent to fly back to Singapore in anticipation of the trial which he had every reason to think would be proceeded with. In all the circumstances, there was absolutely no doubt that the travel expenses incurred by the respondent were both reasonable and reasonably incurred. The quantum of these expenses was proportionate when considered on an item-by-item basis as well as in the aggregate. There was simply no reason at all why the travel expenses should not be allowed under O 59 of the ROC: at [22] .

(3) Serious consideration might have been given to what relevance the 19th century English case of The London Scottish Benefit Society v Chorley, Crawford and Chester(1884) 13 QBD 872 (‘London Scottish’), and the 17th century commentary of Lord Coke quoted therein, could possibly have to the law of Singapore in the 21st century in relation to an issue governed by a legislative provision: at [24] .

(4) Had the selected portion of London Scottish been carefully read against its contextual backdrop, it should have been evident that the word ‘travel’ in Bowen LJ's citation of Lord Coke's commentary was very likely the result of a transcribing or recording error. The issue in London Scottish was whether a solicitor who successfully defended an action in person was entitled to the same costs as he would have been if he had employed a solicitor to represent him. Travel expenses were never in issue in the case. Furthermore, it made no sense to speak of ‘travel and loss of time’ in the same breath. Travel expenses, being out-of-pocket expenses, are of a wholly different category from recovery for loss of time: at [25] .

(5) That the word ‘travel’ was in fact meant to be ‘trouble’ would have been apparent on a close and complete reading of London Scottish:at [26] and [27] .

(6) It was thus evident from the contextual analysis of London Scottish that contrary to what the appellant's counsel, Mr Niru Pillai (‘Mr Pillai’), claimed, this case did not lay down a general principle of law precluding the recovery of a successful litigant's travel expenses: at [28] .

(7) Even if there was an authority that happened to have disallowed the recovery of a successful litigant's travel expenses, there was no basis at all for elevating such a decision (which would have been decided on its facts) into a normative principle of law of general application: at [29] .

(8) Mr Pillai's submissions on the dictum in Rajabali Jumabhoy v Ameerali RJumabhoy[1998] 2 SLR (R) 576 (‘Jumabhoy’) seemed to have arisen from a non-contextual and selective reading of that passage. The facts in Jumabhoy had nothing at all to do with the issue raised by the appellant: at [30] .

(9) The appellant's argument that where a plaintiff partially succeeds in his claim, justice and considerations of proportionality require that as a general rule, only a corresponding proportion of his disbursements should be recoverable, was a complete non-starter. The final judgment entered into with the parties' consent expressly stated that the appellant was to pay the respondent the latter's costs and disbursements to be agreed or taxed. It did not then lie in the appellant's mouth to argue that it should only be liable to pay 80% of the respondent's costs and disbursements just because it had accepted 80% liability: at [31] .

(10) Although proportionality was not defined under the ROC, it was clear that it did not envisage an exact ratio or apportionment. What the concept of proportionality was really concerned with was that the litigation was conducted in a manner which bore some correlation to the amount or nature of the claim: at [32] .

(11) The issue of costs was fundamentally a matter of assessment based on the entire myriad of relevant facts and circumstances. It was not, and could never be, a precise science. To lay down a general rule that costs had to be mathematically and precisely pegged to the final apportionment of liability, would fail to ensure justice in each case: at [33] .

(12) The appellant's appeal was dismissed with the respondent's costs of the proceedings here and in the High Court be borne by Mr Pillai's law firm on an indemnity basis: at [43] .

[Observation: There were three aspects to the manner in which the appellant's case was conducted which concerned the court. First, the court could not see how it could reasonably have been thought to be advisable to pursue an appeal to it given the amount at stake. Second, if the appellant had reasonably felt that there might be a point to pursue, it was incumbent on it, in light of the disproportionate cost of bringing any appeal, to closely and carefully review the merits in the light of the two written judgments and be satisfied that there was considerable force in its position before filing and pursuing the appeal with vigour to this court. Thirdly, the amount of material that was advanced in the course of the appeal again had to be proportionate in the light of what was at stake: at [35] .

The grant of leave to appeal by a lower court merely provided the opportunity to pursue a matter further. It did not displace the solicitor's duty to undertake a proper assessment as to proportionality under r 40 of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed). Neither did it displace counsel's duty to the administration of justice to see if it would really be in the overall interests of justice to proceed further: at [40] .

The fact that Mr Pillai had secured his client's undertaking not to pursue costs against the respondent if it succeeded in the present appeal did not carry much mitigating weight at all. The fact remained that the respondent would be out of pocket to some degree even if he succeeded and had been unnecessarily put to a great deal of trouble and expense for an unmeritorious appeal which should not have been brought. This is to say nothing of the waste of finite judicial time and resources: at [41] .]

Lin Jian Wei v Lim Eng Hock Peter [2011] 3 SLR 1052 (refd)

Lock Han Chng Jonathan v Goh Jessiline [2008] 2 SLR (R) 455; [2008] 2 SLR 455 (refd)

London Scottish Benefit Society, The v Chorley, Crawford and Chester (1884) 13 QBD 872 (distd)

Rajabali Jumabhoy v Ameerali RJumabhoy [1998] 2 SLR (R) 576; [1998] 2 SLR 489 (distd)

Yang Qiang v Lam Hwa Engineering & Trading Pte Ltd [2012] SGDC 31 (refd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 59 r 1 (1) , O 59 r 2 (2) , O 59 r 27 (2) , O 59 Appendix 1 para 1 (2) (consd) ;O 35 r 1, O 38 r 22

Rules of Court (Amendment No 3) Rules 2010 (S 504/2010)

Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) r 40

Civil Procedure Rules 1998 (SI 1998 No 3132) (UK) r 44.3...