Perry, Tamar v Esculier, Bonnet Servane Michele Thais

• Jurisdiction: Singapore
• Judge: Simon Thorley IJ
• Judgment Date: 29 August 2022
• Court: High Court (Singapore)
• Docket Number: Suit No 4 of 2020

Perry, Tamar and another

and

Esculier, Bonnet Servane Michele Thais and another

[2022] SGHC(I) 13

Simon Thorley IJ

Suit No 4 of 2020

Singapore International Commercial Court

Civil Procedure — Costs — Principles — Successful defendants seeking costs in Singapore International Commercial Court — Whether case was “run of the mill” commercial case — Whether Appendix G Supreme Court Practice Directions should be taken into account — Whether costs proportionate to value of claim — Whether costs reasonable

Held, making orders as to costs:

(1) In respect of whether regard should be had to Appendix G, the plaintiffs had – earlier in the proceedings – taken the position that such reference should not be made. They accepted that their position at this stage was a departure from their earlier position and sought to argue that, as the case turned out, it was no more complex than a “run of the mill” commercial case suitable for resolution in the General Division of the High Court. This was not accepted. The case involved a novel issue of whether the victim of a Ponzi scheme could seek redress from another victim. There were prior proceedings in Hong Kong and Switzerland, and the plaintiffs had also earlier contended that this was an “offshore” case which enabled them to instruct Queen's Counsel. In the round, this clearly could not be classified as a “run of the mill” commercial case and, therefore, it was not appropriate to have regard to Appendix G: at [9] to [14].

(2) As regards proportionality, the defendants' costs of less than S$1m without disbursements in respect of a S$10m claim was not disproportionate. This was supported by the fact the plaintiffs' own costs schedule showed that they had themselves incurred some S$1.7m in costs: at [15] to [17].

(3) As regards the issue in respect of which the plaintiffs were successful in the main proceedings, abbreviated the “JL Transfer issue” (see the Substantive Judgment at [186]–[191]), a 10% reduction in costs was appropriate: at [18].

(4) In respect of the points which the defendants did not admit, the plaintiffs' primary complaint was that the defendants did not admit the existence of the Ponzi scheme. It was not unreasonable for the defendants to have put the plaintiffs to proof of this issue. No reduction was therefore appropriate. The other unadmitted points were of a minor character which were to be taken into account when considering overall “reasonableness”: at [19] and [20].

(5) Some trial dates were wasted as a result of the COVID-19 pandemic, but this was just part of the vicissitudes of litigation for which the defendants could not be blamed. Thus, no reduction was applied: at [21].

(6) Finally, as regards overall reasonableness, a reduction was appropriate based on the defendants' non-admission of certain minor points. For example, the fact that proceedings took place in Hong Kong and Switzerland, and the fact that the first defendant was in receipt of funds transferred from one of the companies associated with the alleged Ponzi scheme: at [22].

(7) The defendants submitted that their disbursements were S$293,065.60 and they were entitled to recover this in full. Their claim for costs was S$940,000 which was to be reduced first by 10% to account for the issue in respect of which they failed. The reduced sum of S$846,000 was further adjusted downwards to S$800,000 to account for overall reasonableness. The total order was thus for S$1,093,065.60: at [23].

Case(s) referred to

CBX v CBZ [2022] 1 SLR 88 (refd)

Kiri Industries Ltd v Senda International Capital Ltd [2022] 3 SLR 174 (refd)

Lao Holdings NV v Government of the Lao People's Democratic Republic [2022] SGHC(I) 6 (refd)

Perry, Tamar v Esculier, Bonnet Servane Michele Thais [2020] 5 SLR 245, SICC (refd)

Perry, Tamar v Esculier, Bonnet Servane Michele Thais [2022] 4 SLR 243, SICC (refd)

Facts

This concerned the issue of costs arising from the substantive decision handed down on 15 July 2022, Perry, Tamar v Esculier, Bonnet Servane Michele Thais[2022] 4 SLR 243 (the “Substantive Judgment”). Seven issues had been determined in the Substantive Judgment, including a counterclaim brought by the defendants. Six of those issues concerned the plaintiffs' claim, and they were unsuccessful on all but one issue, which was not itself sufficient for their claim to succeed. The defendants, by contrast, were successful in their counterclaim, which was the seventh issue.

The parties did not make submissions on costs prior to the Substantive Judgment. It was thus directed that the normal order would be that the plaintiffs should pay the defendants' costs. If the plaintiffs wished to contest this, they were to write in to the court with reasons, and, thereafter, file written submissions. The plaintiffs wrote in on 22 July 2022 accepting that the appropriate order was that they should pay the defendants' costs. However, they disputed that the defendants were entitled to their full costs for various reasons. On 18 August 2022, written submissions were filed and the parties agreed that the court should resolve the dispute without an oral hearing.

As a starting point, the plaintiffs submitted that regard ought to be had to Appendix G of the...