Afro-Asia Shipping Co (Pte) Ltd v Da Zhong Investment Pte Ltd and Others (No 2)

Judith Prakash J:

(a) The work undertaken by the plaintiffs in preparing to cross-examine Trevi’s witnesses was part of basic trial preparation and must have been completed long before Trevi’s election not to adduce evidence. There was no causal link between Trevi’s election and the plaintiffs’ preparatory work. Most counsel would commence preparing cross-examination questions after the exchange of the affidavits of evidence-in-chief. If that had happened in this case, the plaintiffs would have prepared for the cross-examination of Trevi’s witnesses in February 2002.

(b) The trial was set down originally for more than 20 days and parties must have expected to complete the entire trial within that period. As such, in any event, the plaintiffs must have been prepared for the cross-examination of Trevi’s witnesses by the date the trial started, which was 4 March 2002.

(c) Again, when the trial was rescheduled for another 15 days in September 2002, the plaintiffs must have been prepared by then to cross-examine Trevi’s witnesses.

(d) As preparing to cross-examine an opponent’s witnesses is a basic part of trial preparation, that preparation is very much part and parcel of the basic costs in any litigation that goes to trial and should not be used to penalise a defendant who elects to call no evidence.

(e) There is no causal link between the two. The preparation did not cause the election. As such there is no reason to penalise Trevi in costs for the plaintiffs’ preparation which was totally unrelated to the election.

[12] In the present instance, the trial took place in several tranches. As mentioned earlier, the plaintiffs closed their case on 10 April 2002. On 2 September 2002, the first to third defendants opened their joint defence. By 19 September 2002, when the case was adjourned part heard for the second time, it was clear that the first to third defendants were about to conclude their case and that the next tranche of the trial would deal with the evidence of Trevi and CKK. On 25 September 2002, Trevi filed an application to strike out the plaintiffs’ claim against them. I dismissed this application. The trial resumed on 13 January 2003 and the first to third defendants concluded their case the next day. At that stage, counsel for Trevi informed me that his client would be making a submission that there was no case to answer and consequently they were electing not to call any evidence. I rejected the submission of no case to answer but Trevi went on to elect not to call any evidence in any case. From the submissions that Trevi filed in the suit, it was clear that the main factor influencing their decision was the nature of the evidence given by the plaintiffs’ expert witness, Dr Pugh, and that given by a consultant engineer called by the first to third defendants, Dr Soh Kok Kee. Bearing in mind the period of time of more than three months between the end of the second tranche of the case (by which date all evidence from these two witnesses had been taken) and the start of the third tranche, Trevi could well have indicated their intended course of action to the plaintiffs before the latter had to pay hearing fees for the third set of dates. They did not do so and the plaintiffs were obliged to pay the hearing fees in order to get the new dates so that they could cross-examine Trevi’s witnesses. In these circumstances, I think Trevi should bear most of the hearing fees that the plaintiffs were not able to recover. I say “most” because a small portion of the time allocated for the third hearing would have been used to cross-examine CKK’s witnesses and therefore Trevi should not have to bear all the fees that were not recovered. I think it would be fair to make Trevi pay 85% of those fees.

[21] The principle applied in the Oksuzoglu case was implemented again by the English Court of Appeal in Swale Storage and Distribution Services Limited v Sittingbourne Paper Company Limited [The Times, 30 July 1998]. There, Buxton LJ, after repeating that principle, commented that the court in Oksuzoglu had entered upon a detailed reconstruction of the effect of the decision on liability and the effect on the different issues in what was a complicated medical negligence trial. He then went on to say:

[22] Drawing on those principles, in this case, the plaintiffs had claimed against all the defendants including CKK substantial damages for loss sustained by reason of physical damage to AA Building which encompassed cracks, soil settlement or subsidence, sinking of floors, tilting of the building and water seepage, amongst other complaints. Most of these allegations had been made against all the defendants without distinguishing between them and specifying the nature of the duty each of them owed the plaintiffs. The failure to distinguish between damage caused by CKK and that caused by the other defendants had resulted in CKK having to answer almost all of the allegations made by the plaintiffs. In the end, the only claim proved against CKK by the plaintiffs was the minor damage to the zinc roof. This was only one item out of the 100 items of damage that had been listed in Schedule A of the statement of claim. CKK submitted that in monetary terms, the amount that the plaintiffs were likely to recover from them would be less than one per cent of the original claim.