Sports Connection Pte Ltd v Deuter Sports Gmbh and Another
| Jurisdiction | Singapore |
| Judge | Paul Tan AR |
| Judgment Date | 30 May 2007 |
| Neutral Citation | [2007] SGHC 89 |
| Court | High Court (Singapore) |
| Year | 2007 |
| Published date | 04 June 2007 |
| Plaintiff Counsel | Shahiran Anis Bin Mohamed Ibrahim and B Rajasekharan (Asia Law) |
| Defendant Counsel | Aqbal Singh and Josephine Chong (Unilegal) |
| Citation | [2007] SGHC 89 |
| 30 May 2007 |
Judgment Reserved |
Assistant Registrar Mr Paul Tan:
1 When a plaintiff makes an allegation against one of two co-defendants, which he now seeks to withdraw by an amendment to his pleadings, may the other co-defendant seek costs thrown away as a result of the amendment? In my judgment, he may. Because of the paucity of literature and case law on this point, I set out my reasons for arriving at this conclusion.
The legal landscape on amendment of pleadings
2 Under O 25 r 5 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”), amendments to pleadings may be allowed at any stage of the proceedings. This underscores a fundamental interest in the law to ensure that the rights of combating parties are not defeated by mere technicality and that their disputes are adjudicated only after each side has been given every opportunity to put in issue any matter they believe to be pertinent and relevant to the resolution of their legal conflict at trial. The Court of Appeal emphasised this principle in Wright Norman v Oversea-Chinese Banking Corp Ltd
[A]t the end of the day, the most important question which the court must ask itself is, are the ends of justice served by allowing the proposed amendment. Pleadings should not be used as a means to punish a party for his errors or the errors of his solicitors. All relevant issues should be investigated...
3 Even when amendments to pleadings are taken out extremely late in the day, such as after a trial on the merits of the original pleadings, leave may still be given to effect those amendments: Wishing Star Ltd v Jurong Town Corp
If a gladiator, having arrived at the coliseum with just a sword, and finding his opponent more heavily armed, asks for leave to increase his with a shield, or an extra blade, should his request be allowed? Should he be told that he was a professional, and ought therefore, stand by his choice of weapons; and if his predicament was of his own making, that is, in forgetfulness, ought he be assisted? To arm him better might have made it a more even fight, but would that have been fair to the other warrior who had come prepared? On the other hand, should we be so absorbed in the examination of the gladiators’ weapons that we forget the fight, or misdirect ourselves as to the issue – fairly armed or fairly fought?
4 In many cases, this question posits a false dichotomy – for fairly armed usually means fairly fought. But there are circumstances when a choice has to be made; and it is clear that the courts lean on the side of allowing a party to amend his pleadings because there is an overriding concern in obtaining a substantively fair result. As practitioners of the law know, cases often evolve in response to, inter alia, new evidence that comes to light and a party should not be prevented from putting forward his best case in such a scenario.
5 Yet, there comes a point when the insistence that an amendment should be regarded as a mere formality begins to wear thin; when a substantively just result may be compromised if the amendment is allowed. This is especially so when the party opposing the amendment will suffer “irreparable prejudice” (see, Anthony Wee Soon Kim v UBS AG
6 Whether or not prejudice is caused depends on the facts of each case; but it is established that “there is no injustice to the other party if he can be compensated by appropriate orders as to costs”: see, Ketteman v Hansel Properties [1987] AC 189 at 212, cited in Wright Norman at [26], 520. As such, when amendments are brought sufficiently early and before trial (such as in the present application before me), it is not unusual to find that the responding party to the application for leave to amend will have no serious objection to the application; and that the real battleground will be in respect of the costs to be awarded.
What is an appropriate order as to costs
7 In a majority of cases where amendments are made before the commencement of trial, the most appropriate order should be to reserve costs to the trial judge. This means that the responding party will get costs of and occasioned by the amendment at the end of the trial unless for some reason, the trial judge decides otherwise. Such an order gives the trial judge the widest latitude to make an appropriate cost order, taking into account all the circumstances leading up to and during the trial. It is within this contextual matrix that the conduct and success of the respective parties, as well as the extent and reasonableness of both the amendment and the consequential expenses incurred by the responding party are best assessed. However, as with all cost orders, the Assistant Registrar or Judge hearing the application to amend retains an overall discretion to adjust costs in order to reflect the true state of affairs between the parties. In this regard, the Court of Appeal has held that (see Soon Peng Yam and another (trustees of the Chinese Swimming Club) v Maimon bte Ahmad (administratrix of Sukinah bte Haji Hassan, deceased)
The power to award costs is fundamentally and essentially a discretionary power. Even though the general principle is for the substantially successful party to receive his costs, the overriding concern of the court must be to exercise its discretion to achieve the fairest allocation of costs.
8 Thus, where amendments are relatively minor, parties often accept that costs should be in the cause. Another example of when reserving costs to the trial judge may be inappropriate is where parts of a statement of claim or defence are being deleted and withdrawn from trial. In such a situation, the respondent has chalked up expenses as a result of getting up and preparing for trial on the issues pleaded by the amending party, which have now been rendered otiose as a consequence of the proposed amendment. Because these issues are not proceeding to trial, and the trial judge will not be able to make any cost orders in respect of these matters, it would be apposite for the Assistant Registrar or the Judge hearing the application to, among others, order, if not, fix costs thrown away. This conclusion is easy enough to reach in a bilateral fight – one plaintiff against one defendant. Any allegation that either party makes of the other has to be defended. As a corollary, any allegation that is subsequently withdrawn will naturally mean that the responding party would have incurred expenses in mounting a defence that is no longer necessary. These expenses are clearly compensable.
9 But where there are multiple parties, and where a plaintiff makes an allegation that was always only against one co-defendant but not the other, and he now seeks to withdraw that allegation, is the other co-defendant nonetheless entitled to costs thrown away?
10 In my view, there is no reason in principle why the answer should be in the negative. If indeed the second co-defendant was put to work as a result of the original pleadings, any change in the plaintiff’s pleadings that would render the expenses incurred no longer of utility should also be compensated. This takes into account the legal and practical reality that the fates of co-defendants are often intertwined and that even though an allegation is made against only one of them, the other co-defendant will have to keep himself apprised of the developments in the other’s case. This is especially so when the claim against both defendants arises from substantially the same facts or where an allegation has an incidental impact on both defendants, such as where there is a charge of collusion or agreement.
11 In order to ascertain whether costs thrown away are justified, two questions should be asked. First, have costs, in fact, been thrown away? And second, are the costs claimed to have been thrown away reasonable in the circumstances?
12 The first question is a rather obvious one. If the expenses involved in preparing to defend the allegations that are now being deleted are not wasted because the preparation continues to be of utility in one way or another, costs thrown away should not be ordered. This reasoning was adopted in Choo Ah Kiat v Ang Kim Hock [1983] 2 MLJ xciv, albeit in the context of costs thrown away as a consequence of an adjournment (at xcv):
[The defendant’s counsel’s] ‘getting up’ is not wasted nor must it be incurred over again for the next trial date. Getting-up is always for the trial. If the trial is adjourned wherein is ‘getting up’ wasted? True, counsel has to refresh his memory as regards ‘getting up’ for the next trial date but this is certainly not ‘getting up’ again. I do not imagine counsel, in refreshing his memory, would repeat exactly wheat he did for his original ‘getting up’.
[emphasis added]
13 The second criterion, while seemingly straightforward, is somewhat more complex and takes on special significance in cases involving multiple parties. The basic premise is that costs claimed must always be reasonable. This is made explicit under the taxing provisions of O 59 rr 27(2) and (3) of the Rules, which state that:
(2) On a taxation of costs on the standard basis, there shall be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the Registrar may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the paying party; and in these Rules, the term “the standard basis”, in relation to the taxation of costs, shall be construed accordingly.
(3) On a taxation on the...
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