H&C S Holdings Pte Ltd v Gabriel Law Corp [2018] SGHC 168

The applicant (“the Client”) seeks a declaration that six invoices issued to it by the respondent solicitors, Gabriel Law Corporation (“the Firm”), between 15 January 2014 and 28 September 2015 are not proper bills within the meaning of s 122 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”), and that it is thus under no liability to pay them. Alternatively, the Client seeks an order that the six invoices issued by the Firm be referred to the Registrar for taxation.

The six invoices in dispute (collectively, “the Disputed Invoices”) are set out below:

(a) An invoice, evidenced by an email from the Firm to the Client on 15 January 2014, for S$50,000 (“the 15 January Invoice”) and paid on 16 January 2014;

(b) Invoice number 15, dated 8 May 2014, for S$54,113.20 (“Invoice 15”) and paid on 19 June 2014;

(c) Invoice number 39, dated 28 October 2014, for S$107,809.47 (“Invoice 39”) and paid on 24 November 2014;

(d) Invoice number 46, dated 5 January 2015, for S$100,000.00 (“Invoice 46) and paid on 13 February 2015;

(e) Invoice number 54, dated 19 March 2015, for S$107,535.00 (“Invoice 54”) and satisfied by deduction against deposit monies and by a cheque; and

(f) Invoice number 86, dated 28 September 2015, for S$321,000.00 (“Invoice 86”) and satisfied (i) by retention of S$300,000 from the proceeds of an arbitral award obtained by the Firm for the Client; and (ii) by set-off of S$21,000 against Client monies held by the Firm.

It is also noted that of the Disputed Invoices, the first four were directly paid by cheques issued by the Client. The bulk of Invoice 54 and the whole of Invoice 86 was satisfied by the Firm making deductions from deposits held by the Firm and from judgment monies received on behalf of the Client. The details of the Disputed Invoices will be set out and examined later. For convenience, the remainder of this judgment is organised under the following headings:

(a) Background to the dispute.

(b) The relief sought.

(c) The applicable law: meaning of a proper bill.

(d) The applicable law: special circumstances.

(e) The Disputed Invoices.

(f) Conclusion.

Background to the dispute

Genesis of the dispute

The Client is a Singapore-incorporated company dealing with, amongst other things, the trading and sale of iron ore to buyers in the People’s Republic of China.

This dispute arose in the aftermath of various SIAC arbitrations in which the Client was involved. The Disputed Invoices were issued by the Firm to the Client solely in respect of the work it did for the Client in SIAC arbitration number 123 of 2010 (“SIAC 123”). The Client had commenced SIAC 123 on 25 June 2010 against Metalloyd Ltd (“Metalloyd”). The details of the dispute in SIAC 123 are irrelevant for the present purposes. Suffice to say that the award for SIAC 123 (“the 123 Award”) was eventually rendered on 2 January 2014 in favour of the Client.

Thereafter, the Client engaged the Firm on or about 15 January 2014 to enforce the 123 Award in Singapore and in the United Kingdom (“the 123 Award Enforcement Proceedings”). The 123 Award Enforcement Proceedings were effectively completed in September/October 2015 when the Firm received the sum of US$2.459 million from Metalloyd on behalf of the Client in full satisfaction of the 123 Award. The Disputed Invoices were rendered in connection with the 123 Award Enforcement Proceedings.

The Client also engaged the Firm as its solicitors for SIAC arbitration number 200 of 2013 (“SIAC 200”) and SIAC arbitration number 223 of 2013 (“SIAC 223”). Both SIAC 200 and SIAC 223 were matters in relation to a dispute between the Client and Mount Eastern Holdings Resources Co. Limited (“the Mount Eastern Matter”). The Mount Eastern Matter is unrelated to SIAC 123. It is noted that there was a period when the Firm was handling and doing work on the Mount Eastern Matter and SIAC 123 (including the 123 Award Enforcement Proceedings) at the same time.

On 8 January 2016, slightly over two years after the 123 Award was handed down, the Firm issued Invoice number 97 (“Invoice 97”) for work done in relation to the Mount Eastern Matter. Invoice 97 is not one of the Disputed Invoices. As Invoice 97 remained unpaid, the Firm took out OS 216/2016 on 4 March 2016 for Invoice number 97 to be taxed.

It was around this period that the Client realised that it was not able to account for a balance sum of US$172,670.56 held by the Firm. According to the Client’s records, this balance sum ought to have been held by the Firm for the Mount Eastern Matter. The Client then engaged its present solicitors, Rajah and Tann (“R&T”), on or about 15 March 2016, to begin looking into its past financial transactions with the Firm, including transactions relating to the Firm’s work in SIAC 123.

Eventually, by way of an email dated 5 May 2016, R&T sought the return of the balance sum of US$172,670.56. This was still in relation to the Mount Eastern Matter; there was no mention of SIAC 123. The next day, the Firm replied with an email containing a breakdown of the funds used for the Mount Eastern Matter. The Firm’s breakdown suggested that the balance sum ought to be S$71,364.58 instead of US$172,670.56.

Thereafter, on 9 May 2016, R&T emailed the Firm seeking an itemised breakdown of the Firm’s charges for the Disputed Invoices and the 123 Award Enforcement Proceedings. This led to a series of correspondences culminating in the bringing of this application, OS 931/2016, on 14 September 2016.

Whilst the present dispute before this court concerns invoices rendered for the 123 Award Enforcement Proceedings, I note that the Client’s current solicitors, R&T, were not engaged to conduct an “audit” of the invoices that were rendered by the Firm. Instead, R&T was engaged to represent the Client in respect of the Invoice 97 taxation application brought by the Firm (see [9] above). It was during the collation of the records on the various payments to the Firm that the Client started to have concerns over the invoices and sums paid for the 123 Award Enforcement Proceedings.

Dramatis personae

The key individuals in this dispute are the following:

(a) Mr Zhu Xiao Dong (“Mr Zhu”), who is from the People’s Republic of China, is the Client’s Deputy General Manager. Mr Zhu is the Client’s main representative in charge of the conduct of SIAC 123, including liaising with the Firm and dealing with the invoices raised by the Firm. Mr Zhu joined the Client in 2009 and was based in the Singapore office from 2009 to 2014. Mr Zhu relocated to the Client’s Shanghai Office in July 2014 but still works out of the Singapore office for about a week every two months or so. The evidence is that Mr Zhu was responsible for the trade(s) that were the subject-matter of the SIAC 123 arbitration. Although Mr Zhu was experienced in his line of work, he was unfamiliar with the Singapore legal system and the practices of international arbitration. Indeed, SIAC 123 was his first experience with litigation and the legal system in Singapore, and the Firm was the first law firm in Singapore that he had worked closely with. Due to his inexperience, Mr Zhu asserts that he left the running of SIAC 123 to the Firm and would stand guided by the Firm’s recommendations. Mr Zhu also takes the position that he was never informed of the Client’s right to send the bills for taxation.

(b) Mr Gabriel Wang Kaiyang (“Mr Wang”) is a former private banker who joined the Client in April 2011 as the special assistant to the Client’s Chairman. Mr Wang was also a director of the Client at the relevant time. Mr Wang was one of the Client’s bank signatories and signed the cheques that were issued in respect of the Disputed Invoices. Mr Wang conducted internal investigations of the Disputed Invoices between March and April 2016. That said, it is apparent that unlike Mr Zhu, Mr Wang did not personally handle SIAC 123 or the 123 Award Enforcement Proceedings.

(c) Ms Jessica Cao Ye (“Ms Cao”), the Client’s assistant finance manager from December 2014 to April 2016. Ms Cao provided two affidavits but was not cross-examined before me (see below at [16]).

(d) Mr Peter Gabriel (“Mr Gabriel”), the Managing Director of the Firm. Mr Gabriel acted for the Client in SIAC 123 and its related proceedings before the Singapore courts.

(e) Mr Nandwani Manoj Prakash, a director with the Firm.

Whilst this application was commenced by originating summons, leave was granted to the parties to cross-examine Mr Zhu (for the Client) and Mr Wang (for the Client), as well as Mr Gabriel (for the Firm). The cross examination was, however, to be limited to Invoice 86 and the circumstances surrounding an alleged oral agreement between the parties concerning payment and deduction of S$300,000 by way of a final payment for work done in connection with the 123 Award.

The general relationship between the Client and the Firm

Mr Zhu did give instructions to the Firm on issues arising in SIAC 123. These included issues in relation to the invoices raised by the Firm. That said, whilst the evidence could have been clearer, it appears that when invoices were presented to Mr Zhu, he would simply pass these to the Client’s accounting department for processing, approval and payment. Whilst Mr Zhu’s evidence is that he left the matter of the Firm’s fees or rate of fees to the Client (the Chairman and accounts department) it is apparent (for reasons set out immediately below) that Mr Zhu was not unconcerned or disinterested in the Firm’s fees.

There is no evidence before the court that any of the Client’s officers made a “positive” decision at the time when cheques were issued as to whether the fees charged by the Firm for any piece of work were reasonable and proper or were, on the contrary, objectionable as being excessive or without basis. Mr Zhu’s evidence is that whilst he was aware of the invoices (after all, he passed them to the accounting department for processing) he did not challenge or query the amount charged and generally assumed that the Firm would be charging fairly.

On the evidence before me, it appears that it was only when Invoice 97 for the Mount Eastern Matter was raised in January 2016 (see [9] above) that frictions started to surface. Initially these were concerned with the invoices and accounts for work done for the Mount Eastern Matter. As noted, it was during this exercise that the Client realised there were issues with the Disputed Invoices in respect of the 123 Award Enforcement Proceedings. The end result is the present application before this court.

The relief sought

The Client first seeks a declaration that it is not liable to pay the Disputed Invoices, as the Disputed Invoices are not proper bills within the meaning of s 122 of the LPA.

It is only in its alternative case that the Client seeks an order for the Disputed Invoices to be taxed.

Applicable law

Meaning of a proper bill

In the present case, the Client seeks a declaration that the Disputed Invoices are not proper bills in circumstances where (i) it has already paid in full on some of the invoices; and (ii) the amounts due under some of the invoices were satisfied by the Firm making deductions against the Client’s funds held by the Firm.

It is convenient to deal first with the issue of what constitutes a proper bill under the LPA before touching on matters relating to the fact of payment and/or satisfaction by deduction. A client who disputes the validity of the bill must seek a declaration that the bill is not a proper bill under the LPA. This is important since a dispute over the validity of a Bill is different from an application for taxation. As will be seen (infra [35]), once a client applies for taxation of a Bill, it will be too late to challenge the validity of the Bill as such.

I note, however, that O 59 of the Rules of Court applies to bills drawn for taxation, and that the Rules of Court do not address the requirements applicable to bills which are not drawn for taxation (see Ho Cheng Lay v Low Yong Sen [2009] 3 SLR(R) 206 (“Ho Cheng Lay”) at [13]). Nevertheless, the requirements in O 59 shed light on what solicitor-and-client bills, even if not drawn for taxation, should contain. In this regard, it is worth noting the following observations in Singapore Civil Procedure at para 59/24/2:

In Ho Cheng Lay, the plaintiff brought an application for certain bills to be taxed. However, in the course of submissions before Kan Ting Chiu J, the plaintiff’s solicitor sought to introduce an argument that his client was not liable to pay the disputed bills, as they were not proper bills under s 122 (at [10]). Kan J found that the plaintiff could not take this point after making an application for taxation alone, because by making such an application, the plaintiff had acknowledged that there were bills to be taxed (at [11]). Instead, the court considered the lack of detail in the bills which the plaintiff complained of as a factor in deciding whether to send the bill for taxation. Following the English Court of Appeal in Ralph Hume Garry (a firm) v Gwillim [2003] 1 WLR 510 (“Garry”), Kan J found that the skeletal bills that were presented by the defendant solicitor to the plaintiff fell short of the standard that was required.

In Garry, Ward LJ laid down the following principles to be applied in deciding whether a proper bill had been presented (at [32]):

Flowing from these principles, Ward LJ concluded that whether a solicitor’s bill is sufficiently particularised as to be a proper bill complying with the UK Solicitors Act 1974 (c 47) (UK) (“the 1974 UK Act”) “will vary from case to case” (at [70]) The client can show that the bill is not proper if the bill does not have a “sufficient narrative” to allow the client to identify what he is being charged for, and if “[the client] does not have sufficient knowledge from other documents in his possession or from what he has been told reasonably to take advice whether or not to apply for that bill to be taxed”. Ward LJ added (at [70]):

The decision in Garry concerned the question of whether a solicitor’s bill is “a bill bona fide complying with [the 1974 UK Act]” within the meaning of s 69 of that statute, which is the English equivalent of s 118(3) of the LPA. Although the case concerned a different statutory provision, its statement of the level of particularisation and itemisation required of a solicitor’s bill has been accepted by our courts in the context of s 122 of the LPA (see Ho Cheng Lay ([33] supra) at [16], Sports Connection Pte Ltd v Asia Law Corp and another [2010] 4 SLR 590 (“Sports Connection”) at [42] and Kosui Singapore Pte Ltd v Thangavelu [2015] 5 SLR 722 at [89]).

These then are the principles this court will apply when deciding whether the Disputed Invoices are “proper” bills under the LPA.

“Special circumstances” under s 122 of the LPA

In the event that this court finds that the Disputed Invoices are proper bills under the LPA, the question that arises is whether the Client is entitled to have the bills sent for taxation under s 120.

Leaving aside the time-limit disqualification, it is noted that a question has also arisen as to whether the payment disqualification is applicable. The payment disqualification is based on (i) payment by the Client of certain invoices by cheques; and (ii) deduction by the Firm of certain amounts from monies held in the Firm’s client account by way of deposit and/or from the proceeds of the 123 Award.

The Client’s position was that it was not aware of the specific deductions at the time when they were made. It was only later (in some cases very much later) that they were provided with accounts, in the sense of invoices, to explain how the funds had been used. The Client alleges that it was never asked if it consented, and that it did not consent, to the Firm making deductions from its moneys held in the Firm’s client account in this manner.

In addition, on one occasion the Firm also deducted or retained the sum of S$300,000 from the 123 Award monies which they had received from Metalloyd in the SIAC 123 arbitration. Once again, leaving aside the details, which are disputed, the Client’s basic position is that this deduction was improper and done without their consent. Accordingly, it is argued that they did not “pay” this amount so as to trigger the payment disqualification under s 122.

For example, in Kosui ([38] supra), a total of eight bills were paid by deductions from the client’s deposit held by the law firm. Whilst there was a dispute as to whether the law firm had obtained the client’s approval to make the deduction for the last bill, it was common ground that, for the purposes of the application for leave to tax, all the bills were to be treated as having been paid (see Kosui at [20]). The court in Kosui did not have to consider the question of what constitutes payment by the client such as to trigger the payment disqualification. In the case at hand, however, it is not common ground that all the bills were paid by the Client. Instead, as will be examined in more detail later, the Client’s basic position is that many of the “payments” were unilateral deductions made without its consent.

There is no strict rule as to what constitutes special circumstances within the meaning of s 122 of the LPA. It is for the court to decide on the facts of every case whether there are special circumstances which make it right to refer the solicitor’s bill for taxation (Kosui at [61]). As summarised by the court in Kosui at [61], some of the instances in which special circumstances justifying taxation were proven include:

(a) Prolonged negotiation over fees between solicitor and client after which the client applies for taxation (see Wee Harry Lee v Haw Par Brothers International Ltd [1979–1980] SLR(R) 603 at [14]).

(b) A disciplinary committee’s finding that the solicitor has in fact overcharged (see Ho Cheng Lay ([26] supra) at [5]).

(c) An impecunious client who requires time to secure a grant of legal aid in order to apply under s 120 of the LPA for an order of taxation of a delivered bill of costs (see Ho Cheng Lay at [6]).

(d) A bill which fails to provide sufficient information, even when supplemented by what is subjectively known to the client, to enable the client to take an informed decision on whether to seek taxation (see Ho Cheng Lay at [17]).

(e) The fact that the solicitor, without his client’s knowledge or consent, appropriated funds belonging in equity to the client in order to pay the bill (see Ho Cheng Lay at [23]).

(f) Duress, pressure or fraud by the solicitor (see Sports Connection, ([38] supra) at [35], citing In re Hirst & Capes [1908] 1 KB 982 at 996.

The list of special circumstances set out above is not exhaustive. As helpfully explained by Vinodh Coomaraswamy J in Kosui at [62]–[63], what counts as special circumstances in any given case will depend on how the facts in that case justify referring the bill to taxation even though one or both of the disqualifying events under s 122 has already set in:

What is worth noting from this passage is the principle that each disqualifying event serves a distinct underlying purpose, and that the facts cited as “special circumstances” must, “in some rational way”, excuse the applicant’s conduct in allowing that disqualifying event to set in.

The requirement that the client apply for taxation within 12 months of the bill’s delivery serves the same purpose as a limitation period (Kosui at [64]). In other words, it is intended to “prevent stale claims, to relieve a potential defendant of the uncertainty of a potential claim against [him] and to remove the injustice of increasing difficulties of proof as time goes by” (Kosui at [64], citing Teh Siew Hua v Tan Kim Chiong [2010] 4 SLR 123 at [25] per Steven Chong J (as he then was), citing Mummery LJ in Ridgeway Motors (Isleworth) Ltd v ALTS Ltd [2005] 1 WLR 2871 at [31]).

As for the requirement that the client should apply to tax the bill before he pays it, this serves to discourage the client from approbating and reprobating and upholds the solicitor’s interest in security of receipt for his fees (Kosui at [64]).

Thus, in Kosui (at [65]), Coomaraswamy J gave the example of a client who does not pay his solicitor’s bill but allows the 12-month period to elapse. In this example, the client is likely able to satisfy the court that it is right to refer the bill to taxation if he can show that he failed to apply in time because he was engaged in prolonged negotiations with the solicitor over the bill. In contrast, if a client pays his solicitor’s bill and then applies to tax it within the 12-month period, it would be immaterial for the client to show that he paid the bill after a period of prolonged negotiations with the solicitor. This is because those negotiations do not explain the relevant disqualifying event: that the bill has been paid. The client must instead show special circumstances excusing his decision to pay the bill. As earlier stated (Kosui at [64]), there must be a rational connection between the special circumstances and the disqualifying event which is in play. Coomaraswamy J also held that if both disqualifying events are in play, then the special circumstances advanced must have a rational connection to both events (Kosui at [65]).

At the same time, it must be recognised that taxation proceedings serve a very limited and distinct purpose. According to The Law of Advocates and Solicitors ( [27] supra) at pp 708–709:

This is consistent with what the Court of Three Judges had to say about taxation proceedings in Law Society of Singapore v Andre Ravindran Saravanapavan Arul [2011] 4 SLR 1184 (“Andre Ravindran”) at [32]: that “[t]axation provides the best means for an aggrieved client to determine what the proper fee is for the actual work done by his lawyer” [emphasis added].

Further, as stated in Kosui ([38] supra) at [57], a well-founded complaint of overcharging lodged with the Law Society undoubtedly carries serious disciplinary and reputational consequences for a solicitor, but the Law Society disciplinary procedure does not serve the goal of rectifying the consequences of overcharging for the client. Only taxation under s 120 of the LPA can yield for the client a refund or a remission of overcharged fees.

Before I turn to consider each of the Disputed Invoices in detail, I underscore some points on “special circumstances” in respect of: (i) the scenarios under which a dispute may arise between a solicitor and client over monies held by the solicitor for the client and fees due to the solicitor; (ii) allegations of overcharging; (iii) breach of the legal professional rules; and (iv) making an improper deduction from a client’s account.

Disputes over deposits, client’s monies and fees

Allegations of overcharging

Reference has already been made to the issue of whether the court can have regard to allegations of overcharging. Whilst it is rightly said that taxation provides the best way of determining what the solicitor is entitled to claim as fees, overcharging is a matter that is best raised and addressed prior to payment and/or expiration of the 12-month period under s 122. Once a disqualification event has set in, it cannot be assumed that the law should lean in favour of granting leave where overcharging is raised. In some cases, the allegation may be nothing more than a bare complaint or an expression of regret for having paid a fee now felt to be on the “high side.” When a client alleges “overcharging” against his lawyer, it should be borne in mind that legal fees charged for work can and will vary between lawyers and firms. Viewing the issue through the lens of reasonableness, it is likely that there will always be a band of reasonableness into which a fee will fit. Just because the client feels he has paid on the high side does not necessarily mean that he has been overcharged. Indeed, as pointed out in Andre Ravindran ([54] supra) at [32]–[33], where a client takes the view that there is overcharging, the bill should be taxed by the court first before a complaint is made to the Law Society.

Breach of legal professional rules

It is clear from the Kosui case ([38] supra) that there is a sharp distinction between the procedure for resolving a complaint of professional misconduct and the procedure for resolving a fee dispute. For example, just because the lawyer was guilty of some professional misconduct (such as misapplication of client’s deposit against fees) does not mean that the fees were excessive or unreasonable. Indeed, as Kosui’s case points out, a client who accepts the fee is reasonable but is objecting to the misapplication of the client deposit is unlikely to establish special circumstances. As Coomaraswamy J states (at [66]), in such a situation, the special circumstance advanced has nothing to do with the object of taxation.

On the other hand, if the client’s case is that he had been deceived by the lawyer into paying the bill because he had been told the work was done by a senior lawyer with specialist knowledge of the area of dispute when in fact all the work was done by an unsupervised junior lawyer with only 1-year post-qualification experience, such a client may well be able to establish special circumstances. Quite apart from professional misconduct, in such a scenario, the rationale of applying the disqualification to discourage the client from approbating and reprobating will likely rapidly fade away.

Misapplying client’s deposit against fees

The Disputed Invoices

The 15 January Invoice

There is some dispute over whether this email is a bill that is capable of being taxed. I shall return to this point shortly. The next day, the Client deposited S$50,000 in the Firm’s client account by a cheque dated 16 January 2014.

After the S$50,000 was deposited on 16 January 2014, it appears that the Client never got an account from the Firm on how the funds deposited were used. It was only when R&T came into the picture more than two years later, in the midst of the exchange of correspondences between R&T and the Firm, that the Firm provided such an account, by way of a letter dated 23 May 2016. It was also only through this exercise that the Client realised that a balance of S$14,522.63 of its monies was held by the Firm for over 2 years.

For convenience, I reproduce the account provided on 23 May 2016 in respect of the use of this S$50,000 deposit:

The Firm has since returned to the Client this balance sum on 1 July 2016.

Subsequently, when asked for the supporting documents to justify the disbursements from the S$50,000, the Firm produced the following list of documents by email on 26 July 2016:

(a) four bills from English solicitors in respect of the registration of an arbitration award, for work done between:

(i) 1 June 2014 to 31 October 2014, amounting to £3,368.03 (Bill No. 15/243, dated 31 October 2014);

(ii) 1 November 2014 to 23 December 2014, amounting to £9,801.79 (Bill No. 15/305, dated 31 December 2014);

(iii) 1 January 2015 to 30 January 2015, amounting to £9,440.75 (Bill No. 15/355, dated 30 January 2015); and

(iv) 1 February 2015 to 27 February 2015, amounting to £7,089.18 (Bill No. 15/381, dated 27 February 2015).

(b) three sets of Singapore-London return flight tickets from:

(i) 15 January 2014 to 4 February 2014, amounting to S$8,067.50;

(ii) 28 September 2014 to 7 October 2014, amounting to S$8,885.80; and

(iii) 5 February 2015 to 19 February 2015, amounting to S$7,679.10.

(c) hotel stays from:

(i) 25 January 2014 to 29 January 2014, amounting to S$1,509.56;

(ii) 5 February 2015 to 7 February 2015, amounting to £259.00; and

(iii) 9 February 2015 to 10 February 2015, amounting to £419.00; and

(d) a 4 October 2014 restaurant bill from the Hilton London Green Park hotel amounting to £101.00.

Paradoxically, on its part, the Firm says that the Client had intentionally mischaracterised the 15 January 2014 email as an “invoice” so as to persuade the court that there is a bill capable of being taxed. The Firm argues that this email was merely an email for disbursements and not an invoice per se. The Firm also says that the Client was well aware that Mr Gabriel would be travelling to London in or around September to October 2014 to instruct English solicitors in registering the arbitration award. It bases this claim on an email it had sent to the Client on 24 September 2014. Thus, it says that the Client had made a false allegation that it was not informed of Mr Gabriel’s trip to London. The Firm does not make any submissions on the rest of the disbursements.

I pause to note that Singapore Civil Procedure states (at para 59/24/3) that the ambit of “disbursements” is not defined in the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (nor, indeed, in the LPA). That said, in Ong Jane Rebecca v Lim Lie Hoa & Ors [2008] 3 SLR(R) 189 at [11], the High Court held that the word “disbursements” was wide enough to include loans or debts properly incurred by a party for the purposes of the litigation, provided that it is proven that these loans or debts are due and payable and would be paid after taxation.

For example, suppose that in a similar (but hypothetical) case, a solicitor had withdrawn the bulk of the funds represented by a S$50,000 deposit to reimburse himself for first class air travel to and from London such as to exhaust the deposit. If the client is not informed of this expenditure, he would not have been in the position to challenge the expense as being unreasonable and excessive. The fact that the client may have been generally aware that the solicitor was going to visit legal professionals in the UK to consult on the matter does not mean that he has consented to the expenditure in question in the example that I have set out.

Returning to the case before me, the Firm then adduced supporting documents to justify its disbursements from the deposit. In the case of travelling expenses to London, I note that Mr Gabriel made three trips over the following periods: (i) 15 January 2014 to 4 February 2014; (ii) 28 September 2014 to 7 October 2014; and (iii) 5 February 2015 to 19 February 2015 (see [75(b)] above).

I accordingly need not consider whether special circumstances arose within the meaning of s 122.

Invoice 15

On 1 April 2014, Metalloyd took out Originating Summons 304 of 2014 (“OS 304/2014”) in the Singapore Courts to set aside the 123 Award. By an email dated 15 April 2014 and addressed to Mr Zhu, the Firm informed Mr Zhu that it had drafted a reply affidavit in response to Metalloyd’s setting aside application. This email also informed Mr Zhu that the Firm had drafted a summons and supporting affidavit for the Client’s own application to enforce the 123 Award in Singapore. The email ended by asking whether Mr Zhu could attend at the Firm’s office the next day to affirm both affidavits.

On 17 April 2014, the Client took out Summons 1942 of 2014 (“SUM 1942”) in OS 304/2014 seeking leave to enforce the 123 Award against Metalloyd in Singapore.

Invoice 15 for S$54,113.20, dated 8 May 2014, was issued to the Client through a 9 May 2014 email from the Firm. Invoice 15 was titled “RE: ORIGINATING SUMMONS 304 OF 2014”, and provided that sums were payable:

Mr Zhu subsequently replied in an email on 9 June 2014 asking for details of the work done under Invoice 15 so that he could provide an account to the Client’s financial department. The email was sent to Ms Erin Marie, Mr Gabriel’s secretary at the time, in the following terms:

On the same day, the Firm replied in two separate emails. First, Ms Marie replied explaining that Invoice 15 was for work done in OS 304/2014:

Mr Gabriel himself then followed up with an email about half an hour later explaining that Invoice 15 was for the interim fees in respect of work done in resisting OS 304/2014 as well as commencing SUM 1942:

There is no evidence of any reply from Mr Zhu after this. Invoice 15 was duly paid on 19 June 2014 by cheque. Both disqualifying events under s 122 of the LPA are accordingly in play.

It appears there are three planks to the Client’s case on Invoice 15:

(a) First, there was no itemisation, particularisation or breakdown of Invoice 15 to explain what work was done, who did the work, and what rate was applied. Without these particulars, the Client could not have formed a view as to whether to have the bill taxed.

(b) Secondly, and in any event, the Client was unaware of its right to have the bill taxed.

(c) Thirdly, Mr Zhu was inexperienced in matters of legal costing and had no sense of whether the Firm’s charges were reasonable. He did not challenge or query the Firm’s charges because he trusted it to charge a reasonable and fair amount.

Again, whilst the Client does dispute its liability to pay under Invoice 15 (on the basis that it is not a proper bill), it appears that the main submission before me is that there are special circumstances justifying sending Invoice 15 for taxation.

To show that those arguments constitute special circumstances justifying an order for taxation, the Client must show how they have a rational connection to both the expiration of the 12-month period as well as the payment of the bill itself.

I have set out above the description of Invoice 15, the circumstances surrounding its issuance, as well as the two emails from Ms Marie and Mr Gabriel dated 9 June 2014 explaining what Invoice 15 was for.

It bears repeating that there is no hard-and-fast rule as to what constitutes sufficient particularisation. What may be a sufficient bill on the facts of one case may not be a sufficient bill on the facts of another. At the end of the day, the question is whether the client, armed with the knowledge that he has, would know enough by looking at the narrative in the bill, so that he can arrive at an informed view of whether to apply for taxation if he disputes the reasonability of the charges in the bill (see [37] above).

In this context, I note that r 17(5) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“the LP(PC)R”) states that if a client disputes or raises a query about a bill of the legal practitioner in a matter, the legal practitioner must inform the client in writing of the client’s right to apply to the court to have the bill taxed or to review any fee agreement, unless the legal practitioner believes that the client knows or reasonably ought to know of that right.

In the present case, I accept that Mr Zhu and the Client were not aware and were not informed of the right of taxation. That said, I also accept that Mr Zhu did not indicate any concern over the bill such that r 17(5) was operative. In any case, even if I am wrong, a breach of the LP(PC)R does not on its own address the rationale of the special circumstances requirement for leave under s 122 of the LPA.

To begin with, in light of Ms Marie’s and Mr Gabriel’s emails explaining to Mr Zhu the charges under Invoice 15 for OS 304/2014, as well as his own involvement in affirming the affidavits in that application, I find that Mr Zhu must have had sufficient knowledge of the scope of work done by the Firm. And although Mr Zhu now says that he did not raise any issues with the Firm over its charges because he trusted that it would charge fairly, this is not sufficient for me to find that there are special circumstances under s 122 of the LPA.

To my mind, the italicised words show that Mr Zhu was not thinking so much about the reasonableness of the charges, as much as he was concerned with the administrative task of arranging for payment from the Client’s financial department, which apparently required him to know about the case for which Invoice 15 was issued.

In the circumstances, I find that Invoice 15 is a proper bill that the Client is liable to pay and which has been paid. I also find that there are no special circumstances justifying an order for Invoice 15 to be referred to taxation.

Invoice 39

On 28 October 2014, the Firm issued Invoice 39 for S$107,809.47 to the Client. The description of the work done in respect of Invoice 39 read as follows:

Invoice 39 purported to bill for work done by the Firm between the day subsequent to the date of the last invoice (Invoice 15) and the date of Invoice 39, namely, between 9 May 2014 and 28 October 2014.

Broadly speaking, the major billable work carried out by the Firm in respect of the 123 Award during this period were:

(a) preparing for and attending a 12 August 2014 hearing before Justice Steven Chong (as he then was), in which Metalloyd’s application to set aside the 123 Award in OS 304/2014 was dismissed pursuant to ORC 5434/2014, and the Client’s application for leave to enforce the 123 Award in SUM 1942/2014 was granted pursuant to ORC 5438/2014;

(b) instructing English solicitors on the enforcement proceedings in the UK in relation to the 123 Award; and

(c) taking out an application in 2014 Folio 1276, on or about 21 October 2014, for leave to enforce the 123 Award in England in the same manner as a Judgment of the English High Court.

Based on the events then taking place for OS 304/2014, the Client was advised by R&T, after the latter came on board in 2016 as described earlier (see [10] above), that there could not have been preparation of any AEICs, any opening statement, or any oral hearing to be held in November 2014, as was stated in Invoice 39. The Client accordingly took the position that it was billed for non-existent items.

It is crucial to note that in response, the Firm does not dispute that there was no work done for any of the stated items in Invoice 39 in relation to OS 304/2014. Instead, it takes the position that Invoice 39 was wrongly-titled. According to the Firm, Invoice 39 is supposed to bill for work done in relation to SIAC 200, a separate matter that the Firm was handling concurrently for the Client.

Mr Zhu was also in charge of SIAC 200 for the Client and had been giving evidence as a key witness in those proceedings. The Firm says that Mr Zhu, having given evidence as a witness in SIAC 200, ought to have known that the items set out in Invoice 39 were meant to be in relation to the proceedings in SIAC 200 instead of OS 304/2014. In other words, the Firm says Mr Zhu ought to have known that Invoice 39 was wrongly-titled.

The problem, however, is that the Firm only took the position that Invoice 39 was wrongly-titled, for the very first time, in a letter dated 27 September 2016. This was not just after the Client commenced this application on 14 September 2016, it was also more than four months after R&T’s initial email of 9 May 2016 requesting an itemised breakdown of the Firm’s charges for the Disputed Invoices.

But the Firm does not stop there. It goes on to say that because Mr Zhu knew that Invoice 39 was wrongly-titled, the Client was thus acting in bad faith and was in fact dishonest when it went on to say that the Firm may have charged for non-existent items in relation to OS 304/2014. I find the Firm’s position on this rather startling. Even if I were to assume for a moment that the Firm is correct insofar as Invoice 39 was indeed wrongly-titled, I did not think it supports the assertion that the Client was dishonest or acting in bad faith.

The question inevitably comes to mind: in respect of which matter, SIAC 200 or the 123 Award Enforcement Proceedings, is Invoice 39 (for the sum of S$107,809.47 and paid on 24 November 2014) charged, paid and attributed towards the Client, in the accounts between the parties?

If the sum is indeed accounted for as a sum paid for the 123 Award Enforcement Proceedings, it appears to follow that a similar amount remains due and owing in the accounts for SIAC 200. On the other hand, if the sum was properly attributed and accounted for by the Firm to SIAC 200 and was not charged to the accounts for the 123 Award Enforcement Proceedings, the titling error appears to be nothing more than that: an error that has no real consequence on the state of affairs between the parties aside from the confusion that has been caused.

Without knowing which set of proceedings (and what work) Invoice 39 was intended for, the Client would not be in a position to assess the reasonableness or otherwise of the fees sought. To say that Invoice 39 was wrongly-titled and to resist an application for its taxation by alleging that the Client was dishonest and acting in bad faith ignores the fact that it was the Firm which made the “error” in the first place.

I note also that in the present case, R&T, on behalf of the Client, did ask for an itemised breakdown of the Disputed Invoices (including Invoice 39) on 9 May 2016. The Firm only clarified on 27 September 2016 that there was a titling error for Invoice 39 (see [120] above).

This leaves the question of whether there are special circumstances justifying an order for the taxation of Invoice 39. Plainly, there are. Although the limitation period of 12 months has set in and Invoice 39 has been paid, the Client had gone out of pocket for non-existent work at least insofar as the 123 Award Enforcement Proceedings are concerned. The Firm was responsible for the confusion over the matter to which Invoice 39 related. Even if the Client might have queried Invoice 39 much earlier, the fact remains that any confusion was caused by the Firm itself. If, on taxation, it is established that Invoice 39 was in fact intended for work done in respect SIAC 200, the appropriate order and directions will have to be sought from the taxing registrar.

Invoice 46

Invoice 46 for the payment of S$100,000.00 was dated 5 January 2015 (see [2(d)] above), but it can be traced back to an email dated 9 December 2014 sent by Mr Gabriel to Mr Zhu. In that email, Mr Gabriel requested for the $100,000 in the following terms:

It is not disputed that the S$100,000 was paid for Invoice 46. Mr Zhu describes Invoice 46 as a deposit. At the time when Mr Gabriel first requested this deposit, the Client had already agreed to instruct Queen’s Counsel in England for the proceedings in Folio 1276. Eventually, after several reminders from the Firm, the Client paid for Invoice 46 by a cheque on or about 13 February 2015.

One month after the Client paid Invoice 46 by cheque, in an email dated 13 March 2015, the Firm provided Mr Zhu with a breakdown of how the S$100,000.00 deposit was put to use. The information provided in this email showed that on 10 March 2015, three days before the breakdown was provided to Mr Zhu, a total sum of S$55,271.82 was wired to the English solicitors to pay their bills in respect of work done in the enforcement proceedings in England. There was also a separate bank charge of S$98.97 deducted. In other words, the Firm drew down on the deposit to pay its disbursements before informing and obtaining the Client’s consent for doing so. Additionally, the Firm also clarified in a follow-up email on 13 March 2015 that the balance of S$44,629.21 was held in its office account.

The English solicitors’ bills which the Firm claimed the sum of S$55,271.82 went towards were bills numbers 15/305, 15/355, and 15/381. I note that these are the very same bills that the Firm, one year later, in response to R&T’s queries, provide together with a fourth English bill (15/243) to explain the usage of the sum of S$50,000 (see [75(a)] above), which was the deposit made in January 2014.

The English solicitors 4 bills total approximately £29,699.75. At current exchange rates this is about S$53,000. At the exchange rates prevailing around 1 January 2015 this is roughly equivalent to S$60,000–S$62,000.

The fact that the same English solicitors’ bills were referred to in the explanations for how the sums deposited by the Client in January 2014 (S$50,000) and January 2015 (S$100,000) were used does not necessarily mean there has been any double payment for the same disbursements. Nevertheless, it is not surprising that the Client now takes the position that it was not in the position to object to the use of the S$55,271.82 that was said to have been paid out of the S$100,000 deposit. After all, when it received the breakdown in respect of Invoice 46 on 13 March 2015, the Client had no idea that three of the same English bills would also be referenced as explanations for the use of the first S$50,000 deposit.

The S$100,000 paid for Invoice 46 is similar to the S$50,000 paid under the 15 January Invoice. The Client accepts that the S$100,000, paid on 13 February 2015, was meant as a deposit to be applied towards disbursements to be incurred. The chief complaint is that it ought to have been informed of any deductions before those deductions were made. If they had been informed, they would have been able to take a view as to whether they had any issues with the deduction.

The problem, however, is that there is no application to tax the 13 March 2015 bill. Whilst the matter of granting leave to tax 13 March 2015 invoice is not before me, it may be convenient if I set out some passing observations that may assist in the event the matter is taken further and Invoice 46 is found to be capable of being taxed.

Second, in regard of the 12-month limitation, the question to consider is whether, having seen the breakdown of disbursements provided in the Firm’s email of 13 March 2015, in circumstances where there is no evidence showing any disagreement from the Client with how the deposit was then put to use, the Client was justified in allowing more than 12 months to elapse. Looking at the facts and circumstances as a whole, it appears that even if one or more disqualifying events were applicable, special circumstances might be established to refer 13 March 2015 bill for taxation. The Client did not know that the first deposit of S$50,000 had also been used (at least in part) to meet the English solicitors’ bills. To be clear, I emphasise that the repeat quotation of the English solicitors’ bills does not mean that there was a case of deliberate double charging. The point is that there appears to be a good case for saying that the Client was not in the position whereby it could take an informed view on the reasonableness or otherwise of 13 March 2015 Bill and how the S$100,000 had been utilised.

On this I note in passing that in Kosui, the client also raised an argument that special circumstances existed with respect to two bills, on account of the fact the invoices contained exactly the same description of the work done and period covered by the bill. The court found at [99] that the point raised was a “technicality” and devoid of merit because the client had never previously made an assertion that this amounted to overcharging by double or overlapping billing. The allegation was an afterthought, especially given that the client accepted that the fees charged as a whole were reasonable. The concession that the fees charged were reasonable as a whole precluded any inference of overcharging. In the present case, the position is different. There is no concession by the Client that the total fees charged and “paid” for the 123 Award Enforcement Proceedings are reasonable. Further, the Client was not in the position to even note the possible overlap between the 15 January Invoice and Invoice 46 until 26 July 2016. That said, I stress the above comments are simply by way of passing observation.

Nevertheless, as noted already, issues relating to professional conduct and proper accounting have to answer the question of why the breach amounts to a special circumstance that excuses the client for allowing one or both of the disqualifying events under s 122 of the LPA to set in. Even if the S$44,629.21 should not have been placed in the Firm’s office account, it seems to me that that is a matter which does not address the taxation issue that is before this Court.

Invoice 54

Soon after Invoice 46 was issued and paid for, the Firm issued Invoice 54 for the payment of S$107,535.00 on 19 March 2015. This was also for work done in Folio 1276 for leave to enforce the 123 Award in England (see [116(c)] above).

Invoice 54 lists the following items covered by the bill:

(a) 3 meetings with English solicitors in London (each spanning several days);

(b) Correspondence with English solicitors, reviewing documents, witness statements, the draft consent order, the draft order of claims, response to queries as well as discussion over engagement of an English leading counsel.

The Firm applied the balance of S$44,629.21 in its office account after Invoice 46 was paid to partially satisfy Invoice 54. Whether the Client had agreed for the balance sum from Invoice 46 to be used in this manner is a matter of dispute between the parties. In any case, the remaining S$62,905.79 under Invoice 54 was fully satisfied by way of a cheque dated 12 May 2015.

Additionally, I note that there was a balance of S$98.00 of the Client’s money held with the Firm arising out of extra bank charges. This was not known until after R&T started inquiring into the Client’s past transactions with the Firm for SIAC 123. The Firm stated in an email dated 23 May 2016 that it had “just discovered that there is a balance of S$98.00 being extra bank charges”. This money was returned to the Client on 1 July 2016.

Yet, a mere allegation of overcharging without more cannot amount to special circumstances. In this regard, it is worth quoting, in full, the remarks of Chong J in Sports Connection ([38] supra) at [37]:

The Client also raised the point that the sum of S$44,629.21 remaining in the Firm’s office account after payment of Invoice 46 was applied, without the Client’s knowledge and consent, to partially satisfy invoice 54 (see [151] above). Again, the Client does not explain, and I cannot see, how this can amount to special circumstances under s 122.

Invoice 86

Invoice 86 was dated 28 September 2015 and was thus meant to cover work done by the Firm between 20 March 2015 (ie, the day subsequent to the date of the last invoice) and 28 September 2015.

Following the success of the enforcement proceedings in England (ie, Folio 1276), the Firm received a sum of US$2,342,920.92 from Metalloyd in satisfaction of the 123 Award on 22 September 2015. The next day, Mr Zhu sent a message by SMS to Mr Gabriel asking whether the Firm had received the monies. Mr Gabriel replied confirming receipt of the same.

On 28 September 2015, the Firm retained US$210,649.90 (equivalent to S$300,000.00 at the time) out of the US$2,342,920.92 received from Metalloyd and remitted the remainder to the Client. Also on this day, the Firm issued Invoice 86 for S$321,000.00. According to Mr Gabriel, the sum retained was kept in the Firm’s client account. It had not yet been transferred to the Firm’s office account.

Evidently, Invoice 86 was the most significant invoice not just in terms of quantum, but also because of the substantial disputes of fact between the parties over the circumstances surrounding its issue and payment. On 18 May 2017, I ordered discovery and limited cross-examination for certain disputes of fact arising out of Invoice 86. In particular, I had ordered cross-examination on the following issues:

(a) Whether Mr Zhu had offered the sum of S$300,000.00 for the final bill as reflected subsequently in Invoice 86; and

(b) Whether there was an agreement reached between the Client and the Firm for the final bill of S$300,000.00.

The Firm points to Mr Gabriel’s email dated 6 October 2015 to the Client’s assistant finance manager at the time, Ms Cao, which states that the payment of S$300,000 was towards the payment of the Firm’s fees “as agreed” with Mr Zhu. Mr Zhu was copied in that email. Mr Zhu by this time was no longer based in the Client’s Singapore Office. He had returned to China and was now attached to and mainly working out of the Client’s office in China.

The Firm’s position is that if there had been no agreement, as the Client now says, Mr Zhu would have disputed the statement made that the S$300,000 was “as agreed” between the parties. Yet, Mr Zhu’s responses to the following questions in cross-examination were telling:

Whilst the Firm’s case is that there was an agreement reached for the final payment of S$300,000.00 at the meeting of 25 September 2015, I am of the view that the evidence does not support such a conclusion.

What Mr Zhu did know is that many invoices had already been submitted and paid by the Client, his employer, in respect of the 123 Award Enforcement Proceedings. Mr Zhu was undoubtedly pleased that SIAC 123 was finally concluded. He was now based in Shanghai, China. As with all the previous invoices, I find that in all probability he was not involved in discussions with the Firm on what was the appropriate fee to be charged.

Looking at the evidence as a whole, including the oral testimony, I find that Mr Zhu did not, on 25 September 2015, come to any agreement on behalf of his employer (the Client) for a final payment of S$300,000 to the Firm. To be sure, it appears that Mr Zhu was aware that a final invoice would be sent and that some figures may have been mentioned. Nevertheless, I am of the view that Mr Zhu did not make any agreement on behalf of the Client committing the Client to pay a final fee of S$300,000 (bearing in mind that there was no discussion at all of what work or disbursements remained outstanding at that date), and that this sum could be deducted from the arbitration award that had been obtained.

To be clear, it may well be that the question of a final invoice or bill was raised in the course of the meeting at the Firm’s office on 25 September 2015. Nevertheless, it is evident that any discussions would have been brief and lacking in detail (to say the least). Leaving aside any issue of Mr Zhu’s authority to enter into a fee agreement on behalf of the Client, I find that the failure of Mr Zhu to respond to the emails (in which he was copied) is at most “acquiescence” based on the past practice of the Firm making unilateral deductions from deposits or monies held by on behalf of the Client. It does not mean that he was agreeing that the S$300,000 was a reasonable sum. After all, he had no basis or detailed information by reference to which he could make an informed decision on what would be a reasonable final sum to close the accounts between the Client and the Firm for the 123 Award Enforcement Proceedings. It is also apparent from these series of emails that the Client’s accounting department was merely querying the basis of the deduction by the Firm (as opposed to its quantum), and that Mr Gabriel had not raised or discussed the matter directly with Mr Wang or the Client’s Chairman.

In short, I find that even if Mr Zhu should have emailed a response to the emails that he was copied on and referred to above (at [171]) (for example, by querying the reference to the agreement for S$300,000), this is not a case where the deduction and retention by the Firm constitutes a payment that equates to a clear case of approbation by the Client, which will then lead to reprobation if the Client now seeks and obtains leave to tax.

Indeed, the history of requests for deposits, deductions, invoicing and billing between the Firm and Client and the pockets of confusion that only came to light late in the day (as for example, the alleged error in the title of Invoice 39) are part of the backdrop against which I have come to the decision that leave to tax Invoice 86 should be granted in any event.

I also add that if Invoice 86 is the “final invoice” which looks back over the entirety of the 123 Award Enforcement Proceedings, it is hard to see how the reasonableness of Invoice 86 can be assessed in a meaningful manner without factoring in the prior invoices that were raised.

Conclusion

In summary, I grant leave to the Client to have the following invoices taxed: (i) Invoice 39 for S$107,809.47; (ii) Invoice 86 for S$321,000.