Lam Hwa Engineering & Trading Pte Ltd v Yang Qiang

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 20 February 2013
• Neutral Citation: [2013] SGHC 42
• Plaintiff Counsel: Niru Pillai (Global Law Alliance LLC)
• Docket Number: Registrar’s Appeal from Subordinate Courts No 32 of 2012
• Date: 20 February 2013
• Hearing Date: 27 November 2012
• Subject Matter: Civil Procedure,Costs
• Published date: 26 February 2013
• Citation: [2013] SGHC 42
• Defendant Counsel: Belinder Kaur Nijar (Hoh Law Corporation)
• Court: High Court (Singapore)
• Year: 2013

Lai Siu Chiu J: Introduction

This was an appeal against the decision of the District Judge (“the DJ”) in Yang Qiang v Lam Hwa Engineering & Trading Pte Ltd [2012] SGDC 31 (“the GD”). The sole issue which arose for my consideration in this appeal was whether the travel expenses of a successful litigant, for the purposes of trial in Singapore, are claimable as part of disbursements in a standard bill of costs.

Facts

Yang Qiang (“the Respondent”) was a foreign Chinese worker who instituted a personal injury claim against Lam Hwa Engineering & Trading Pte Ltd (“the Appellant”). However, on the first day of the trial, the action was settled between both parties, with a final judgment dated 25 July 2011 being entered against the Appellant by consent.

The Respondent duly filed a bill of costs (“the Bill”) on 21 October 2011 to be taxed by a Deputy Registrar of the Subordinate Courts (“the DR”) on a standard basis. On 18 November 2011, the DR certified that the Bill had been taxed and that section 3 of the Bill was disallowed. Section 3 of the Bill contained the Respondent’s claim for disbursements, which included: the Respondent’s return air tickets to Shanghai, totalling $1,113.00; and the Respondent’s expenses incurred in China to travel to and from the Pudong International Airport in Shanghai, totalling $95.00.

The Respondent subsequently sought a review before the DJ of the DR’s decision in disallowing his travel expenses. Both parties were represented by counsel at the various proceedings below.

Decision below

In reversing the DR’s decision (on 6 February 2012), the DJ, in the GD, held that the Respondent was entitled to recover his travel expenses within China and also his airfares to and from Singapore for the trial (see the GD at [13]).

The DJ referred to the decision of the Court of Appeal in Rajabali Jumabhoy and Others v Ameerali R Jumabhoy and Others [1998] 2 SLR(R) 576 (“Jumabhoy”), which the Appellant had relied on to support its case. According to the DJ, Jumabhoy merely stood for the proposition that “a party to an action in court is not entitled to claim for his attendance in court” (see the GD at [16]), but did not deal with the “entirely different proposition” as to whether the travel expenses to attend court in Singapore should be claimable (see the GD at [17]). Since the Court of Appeal did not deal with the latter issue, the DJ rejected the Appellant’s interpretation of Jumabhoy.

The DJ then held that the Appellant, being a tortfeasor, must take the consequences that flowed naturally from its negligence. One of the consequences was that the Respondent had to mount an action in Singapore, and therefore had to travel to and from Singapore. These expenses, according to the DJ, were “incurred only because the [Appellant] was liable to [the Respondent] for causing injury, in the first place” (see the GD at [20]). The DJ further elaborated that the Respondent was a foreign worker who, upon suffering the injury, was not able to continue working and therefore could not have stayed on in Singapore even if he had wanted to. The Respondent’s travel expenses were therefore “reasonably incurred” pursuant to O 59 r 27(2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”), which states: (2) On a taxation of costs on the standard basis, there shall be allowed a reasonable amount in respect of all costs reasonably incurred…

In the result, the DJ allowed the Respondent’s claim for travel expenses in the sum of $1,208.

The Appellant’s case

In its submissions before this Court, the Appellant relied on O 38 r 22 and O 35 r 1 of the Rules, which state:

Failure to appear by both parties or one of them (O. 35, r. 1) 1.—(1) If, when the trial of an action is called on, neither party appears, the Judge may dismiss the action or make any other order as he thinks fit.

(2) If, when the trial of an action is called on, one party does not appear, the Judge may proceed with the trial of the action or any counterclaim in the absence of that party, or may without trial give judgment or dismiss the action, or make any other order as he thinks fit.

…

Tender of expenses (O. 38, r. 22) 22. A witness shall not be compelled to attend on a subpoena unless a reasonable sum to cover his expenses of going to, remaining at, and returning from, Court is extended to him.

The Appellant’s primary submission was that while a witness should be paid reasonable costs for his court attendance (based on O 38 r 22 of the Rules), a litigant is not entitled to the same. The Appellant submitted that if a litigant does not attend court, his action (or defence) risks being dismissed entirely pursuant to O 35 r 1 of the Rules. Since the travel expenses of the Respondent were incurred simply to meet his obligations to be in court for the trial, the Appellant submitted that such expenses should not be recoverable.

According to the Appellant, the DJ erred in his interpretation of Jumabhoy because there is no difference in principle for a litigant between the opportunity costs of attending court and the costs of travelling to court. The Appellant’s understanding of Jumabhoy is as follows: since the opportunity costs of a litigant’s court attendance are not recoverable, it follows that the travel expenses by a litigant to attend court should not be recoverable as well.

The Appellant also relied on various cases from other Commonwealth jurisdictions, which will be dealt with in detail below.

The Respondent’s case

The submissions of the Respondent, on the other hand, were grounded on the general notion that all reasonable disbursements incurred by a successful party should be recoverable. The Respondent submitted that if travel expenses are not allowed to be recovered, this would cause grave injustice as it would mean that poor, foreign plaintiffs (who have no choice but to commence legal proceedings in Singapore) would not be able to afford the travel expenses to pursue their claim.

In response to the Appellant’s reliance on the Rules to draw a distinction between a litigant and a witness, the Respondent submitted that O 38 r 22 is “not a proposition for drawing a distinction between a [litigant] and a witness”. According to the Respondent, O 38 r 22 merely provides for the recovery of a witness’s expenses, but does not state that a litigant to an action cannot claim the same as part of reasonable disbursements. The Respondent also claimed that “[i]n practice, parties have always been able to claim travel expenses as reasonable disbursements”.

The decision of this Court

Having reviewed the arguments and the authorities cited by the parties, I hold that the Respondent is not prohibited from claiming his travel expenses as part of “costs reasonably incurred” under O 59 r 27(2) of the Rules. It is important to note that the word “costs” in O 59 includes “disbursements” (see O 59 r 1(1)) and disbursements are required to be set out in a bill of costs as per O 59 r 24(1)(c) of the Rules.

I have come to this view having considered the legal position on the issue (as framed above at [1]) in Singapore and also in other Commonwealth jurisdictions, as I shall now explain.

The legal position in Singapore

While recognizing that there is no direct authority on this point, the Appellant sought to convince this Court that the law in Singapore prohibits the Respondent from recovering his travel expenses on two grounds: first, that O 38 r 22 and O 35 r 1 of the Rules should be read as allowing only a witness, but not a litigant, to recover travel expenses to court; and second, that such a result necessarily flows from the decision of the Court of Appeal in Jumabhoy.

I disagree with the Appellant on both grounds for the following reasons.

Firstly, contrary to the Appellant’s submission, O 35 r 1 of the Rules does not make it mandatory for a litigant to attend court in person because he could always instruct counsel to appear on his behalf. This is clearly stated in Singapore Civil Procedure 2013 (G P Selvam gen ed) (Sweet & Maxwell Asia, 2013) at para 35/1/2:

At the hearing of an action, the defendant is allowed to either appear in person or by counsel. Only if both the defendant and counsel are absent may a default judgment be entered against the defendant. Similarly, if the plaintiff is absent but his counsel is present when an action is called on for hearing, the court cannot just dismiss the action but must allow the plaintiff’s counsel to present his case and call witnesses if he has any in support.

[emphasis added]

The premise of the Appellant’s submission – that O 35 r 1 obliges the Respondent to travel to and appear in court – must therefore be qualified. More importantly, it does not follow logically that just because O 35 r 1 compels a litigant-in-person to appear in court, his travel expenses are therefore non-recoverable.

Secondly, O 38 r 22 of the Rules is a provision which stipulates the rights of a witness vis-à-vis the litigant who subpoenas him or her to attend court. It is part of O 38 of the Rules, which deals with how evidence is to be led in court in general. I therefore agree with the Respondent that O 38 r 22 is not a provision stipulating who amongst the parties in a courtroom are entitled to claim disbursements. The litigant who subpoenas the witness would be obliged, under O 38 r 22, to compensate the witness’s travel expenses; but the issue of whether the said litigant is entitled to then claim for and recover such expenses in a standard bill of costs is an entirely separate matter not governed by O 38 r 22 of the Rules.

Thirdly, I disagree with the Appellant’s interpretation of Jumabhoy. In Jumabhoy, the Court of Appeal held (at [5]) that the fourth respondent, who was not represented by counsel in the appeal, could not claim for the costs for attendance:

Although SIS was not represented by counsel...