Larpin, Christian Alfred and another v Kaikhushru Shiavax Nargolwala and another
Jurisdiction | Singapore |
Court | International Commercial Court (Singapore) |
Judge | Roger Giles IJ |
Judgment Date | 25 April 2022 |
Neutral Citation | [2022] SGHC(I) 7 |
Citation | [2022] SGHC(I) 7 |
Docket Number | Suit No 3 of 2020 |
Hearing Date | 29 March 2022,10 March 2022,02 March 2022,25 April 2022 |
Plaintiff Counsel | Christopher Anand Daniel, Harjean Kaur, Keith Valentine Lee Jia Jin (Advocatus Law LLP) |
Defendant Counsel | Ramesh Kumar s/o Ramasamy, Natalie Ng and Edmond Lim Tian Zhong (Allen & Gledhill LLP) |
Subject Matter | Civil Procedure,Costs,Principles,Indemnity costs |
Published date | 30 April 2022 |
The judgment on the substantive issues in these proceedings,
The proceedings were dismissed, and the Main Judgment concluded (at [218]):
By letter dated 2 March 2022, the defendants applied for an additional order “that the Defendants shall be entitled to party-and-party costs on the indemnity basis (as opposed the usual standard basis) for work done on the matter from 29 March 2021”.
The defendants’ reasons were set out in the letter. The principal reason was that the defendants had, by Calderbank letters dated 6 July 2020 and 29 March 2021, given the plaintiffs the opportunity to discontinue the proceedings on a “no order as to costs” basis, but the plaintiffs had not responded to either letter. The date of 29 March 2021 in the proposed order was evidently taken as the date of the second of these letters. To the Calderbank letters the plaintiffs added the submissions, in summary:
The application was opposed by the plaintiffs in a letter dated 10 March 2022. The plaintiffs first submitted that indemnity costs do not apply in Singapore International Commercial Court (“SICC”) proceedings, referring to
The defendants’ letter of 2 March 2022 had not addressed indemnity costs under the SICC costs regime. By a further letter dated 29 March 2022, the defendants responded to the plaintiffs’ submission that indemnity costs did not apply. They maintained that the SICC had power to order costs on the indemnity basis, but submitted that if no order was made on the present application they should be allowed to rely on the Calderbank letters to seek a higher amount of costs “if and when the parties are before the Court to ask the Court to fix the quantum of costs to be paid by the Plaintiffs to the Defendants”.
Indemnity costs in the SICC?The first question is whether an order can be made that the defendants are entitled to costs on the indemnity basis. It should be noted that this is a transfer case, having been transferred from the High Court to the SICC on 2 April 2020. At the time of transfer it was ordered that O 110 r 46 of the Rules of Court (2014 Rev Ed) (“the Rules”), being the rule prescribing the costs regime in the SICC, is to apply to the assessment of costs in respect of the proceedings after their transfer. The possibility of an indemnity costs order in relation to the costs prior to 2 April 2020 may be put aside, since the order sought by the defendants is in relation to costs incurred after that date. (O 110 r 46 has since been replaced by O 22 of the Singapore International Commercial Court Rules 2021, which came into operation on 1 April 2022, but these proceedings remain subject to the Rules.)
The essential prescription is that in O 110 r 46(1) concerning proceedings in the SICC, with a mirror provision in r 46(2) concerning an appeal from the SICC to the Court of Appeal. It provides:
The distinction between costs on the standard basis and costs on the indemnity basis is found in O 59 of the Rules. O 59 r 27 deals with taxation of costs by the Registrar, and includes:
In O 59 r 1(1), it is provided that “standard basis” and “indemnity basis” have the same meaning assigned to them by rr 27(2) and 27(3), respectively.
Costs on the indemnity basis, therefore, does not mean that the receiving party recovers all their costs. On both bases, the receiving party recovers only their reasonable costs (reasonable in amount and in incurring): the distinction sounds in the resolution of doubt over reasonableness of amount or incurring. Costs on the standard basis and costs on the indemnity basis differ only in the burden of proof.
O 110 r 46(6) expressly provides that O 59 “does not apply to” proceedings in the SICC. Hence Vivian Ramsey IJ said, in
His Honour was not asked to order costs on the indemnity basis, but was asked to take account of an offer to settle, which under O 22A r 9 could bring an order for costs on that basis. In that connection, he said:
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Larpin, Christian Alfred and another v Kaikhushru Shiavax Nargolwala and another
...In a further judgment given on 25 April 2022, Larpin, Christian Alfred and another v Kaikhushru Shiavax Nargolwala and another [2022] SGHC(I) 7 (“the Indemnity Costs Judgment”), the defendants’ application for an order that the costs be on the indemnity basis from a particular date was dism......