Perry, Tamar and another v Esculier, Bonnet Servane Michele Thais and another

• Judge: Simon Thorley IJ
• Judgment Date: 29 August 2022
• Neutral Citation: [2022] SGHC(I) 13
• Citation: [2022] SGHC(I) 13
• Court: International Commercial Court (Singapore)
• Published date: 01 September 2022
• Docket Number: Suit No 4 of 2020
• Plaintiff Counsel: Paul Chaisty QC (instructed), Yee Mun Howe Gerald and Koh Kuan Hong John Paul (Premier Law LLC)
• Defendant Counsel: Kam Su Cheun Aurill and Lim Rui Hsien Esther (Legal Clinic LLC), Colin Liew (Colin Liew LLC) (instructed co-counsel)
• Subject Matter: Civil Procedure,Costs
• Hearing Date: 18 August 2022

Simon Thorley IJ: Background

This judgment on costs concerns my decision in Perry, Tamar and another v Esculier, Bonnet Servane Michele Thais and another [2022] SGHC(I) 10 (the “Substantive Judgment”) which was handed down on 15 July 2022. Unless otherwise stated, I shall adopt the abbreviations used therein.

At the end of the Substantive Judgment (see [204]), I directed that the Plaintiffs should pay the Defendants’ costs of this action and that the parties should seek to agree an order as to costs. If the Plaintiffs wished to contest the matter, they were to write in within seven days of the Substantive Judgment, and, thereafter, file written submissions within 21 days.

On 22 July 2022, the Plaintiffs wrote in to the court. They accepted that the appropriate order was that they should pay those costs, but they disputed that the Defendants were entitled to their full costs owing, inter alia, to the Defendants’ alleged conduct at trial and their raising of irrelevant issues. On 18 August 2022, the parties’ written submissions were filed and they agree that I should resolve the dispute between them on the basis of written submissions and dispense with the need for an oral hearing.¹

Although the parties are in substantial agreement as to the correct approach to be taken in assessing costs under O 110 r 46 of the Rules of Court (2014 Rev Ed) (the “ROC”), they are unable to agree on the quantum. The Defendants’ solicitor-and-client bill of costs amounts to S$940,000 in costs together with S$293,065.60 in disbursements. The Plaintiffs do not dispute that these were the expenses incurred by the Defendants but contend that in the circumstances of this case an award of S$600,000 (all-in) would be the reasonable and proper sum to award.

When this action was transferred to the Singapore International Commercial Court (the “SICC”) on 19 June 2020 it was ordered that the costs were to be assessed in accordance with O 110 r 46 of the ROC. This was following written submissions by the parties including a letter from the Plaintiffs’ solicitors dated 5 June 2020, paragraph 2 of which acknowledged that under that Rule the unsuccessful party should pay the reasonable costs of the successful party. It went on to state that whereas in assessing pre-transfer costs the costs guidelines at Appendix G of the Supreme Court Practice Directions (“Appendix G”) applicable to the assessment of costs under O 59 of the ROC were likely to be taken into account, it would not in general be appropriate to place any material weight on Appendix G in relation to post-transfer costs. This position is not maintained in the Plaintiffs’ written submissions before me now, which also raise several other considerations which I am invited to take into account.

The parties’ contentions

In their written submissions, the Plaintiffs, relying primarily on the decision in Lao Holdings NV v Government of the Lao People’s Democratic Republic [2022] SGHC(I) 6 (“Lao Holdings”) at [76]–[85], contend as follows:² 7. The SICC and Singapore Court of Appeal have established the principles concerning costs before the SICC: 7.1. The starting point in assessing SICC costs are the costs incurred by the successful party (S&C costs). 7.2. The costs actually incurred are then subject to attenuation for reasonableness. 7.3. “Reasonableness” is assessed in line with the SICC Practice Directions, which essentially makes provision for the principle of proportionality (broadly speaking, the proportion between the claim amount and costs allowed). 7.4. This approach does not pave the way for S&C costs. 7.5. There is nothing to preclude the SICC from taking account of [Appendix G] when assessing reasonable costs under O 110 r 46 of the ROC. 7.6. The burden lies on the party asserting the use of Appendix G to show that the work which was carried out in the SICC is no different from the “usual run of similar cases [in the Singapore High Court]”. 7.7. The relevance given to Appendix G in assessing post-transfer costs will depend on the circumstances of each case. While it is not appropriate to use Appendix G as a starting point in assessing SICC costs, the guidelines remain relevant, and depending on the facts of each case, may be appropriate to adjust costs downwards.

[footnotes omitted]

For their part, the Defendants accept that the test is one of reasonableness and submit:³ 4. The SICC has made clear that, ordinarily (see [Lao Holdings]): (a) the overriding and primary policy in the SICC is to compensate the successful party, as far as it is reasonable, for costs incurred in the pursuit of a claim or maintenance of a defence that is meritorious (Lao Holdings at [75]); (b) the starting point, therefore, in assessing costs in the SICC must be the costs actually incurred by the successful party, ie the costs payable by the successful party to its solicitors, and its experts or consultants where relevant, which is then subject to a single attenuation for “reasonableness”, with “reasonableness” assessed in line with the considerations laid out in the SICC Practice Directions (Lao Holdings at [83]–[84]); and (c) it would generally be inappropriate to use Appendix G of the Supreme Court Practice Directions 2013 … in quantifying costs in the SICC, as that is contrary to the principles on which O 110, r 46 is grounded (Lao Holdings at [85]).

[footnotes omitted]

Considerations to be taken into account

The Plaintiffs submit that as matters turned out in this case, regard should be had to Appendix G and that, additionally, the award of costs should be reduced to take into account: that the Defendants’ costs schedule was disproportionate to the value of the claim; that the Defendants were unsuccessful on the JL Transfer issue; that the Defendants refused to admit numerous uncontentious points of the Plaintiffs’ case; and that there were wasted trial dates.

Appendix G

The Plaintiffs acknowledge that their submission in relation to Appendix G is inconsistent with the stance that they had taken at the time of transfer. In their...