JWR Pte Ltd v Syn Kok Kay (trading as Patrick Chin Syn & Co) [2019] SGHC 253

Background

The applicant is a company incorporated in Singapore. Its Managing Director is Chen Walter Roland (“Chen”), a retired surgeon.

The respondent is a practising solicitor who is the sole proprietor of the Firm.

The applicant was the plaintiff in Suit No 896 of 2012 and was represented by Edmond Pereira (“Mr Pereira”) of Edmond Pereira Law Corporation (“EPLC”). That suit was struck out.

The applicant was dissatisfied with the services of Mr Pereira and it brought Suit No 992 of 2015 (“S 992/2015”) against Mr Pereira and EPLC for professional negligence. Its claim was for $8.9bn, revised from the original figure of $3.9bn. The applicant engaged the respondent to act for it and the respondent took over the matter on 14 December 2015. S 992/2015 went on trial and was heard over three days in March 2019 and was dismissed on 28 May 2019. The applicant has since appealed against the decision in S 992/2015. The respondent is not acting for the applicant in the appeal.

The respondent issued Invoices 1 to 34 in the table below for acting for the applicant in S 992/2015. Invoice 35 was issued on 13 June 2019 for the sum of $150,000. This was an interim payment for work relating to the appeal of the decision in S 992/2015. This was not paid by the applicant. The details of the Invoices are as follows:

Most of the Invoices, except Invoices 1, 8, 10, 27 and 28 (marked with an asterisk or a caret), are only a page with the letterhead of the Firm, followed by a file reference number, date, bill number, and “To” field. The body of the Invoices takes the following standard form:

The Invoices are for the respondent’s professional services and these were not itemised except Invoices 33 and 34, which contained professional fees (not itemised) of $30,000 and $10,000 respectively, and itemised disbursements of $12,407.80 and $11,682 respectively. At the bottom of each of the Invoices there was a standard “IMPORTANT NOTES” section, Note 2 of which states “This is a short form bill and our rights are reserved to render to a revised full form bill or account if required”.

The applicant did not produce a copy of the Invoices marked with an asterisk. Instead, it tendered unnumbered official receipts from the Firm. These have the Firm’s letterhead, a file reference number, the date, the words “Re HC/S 992/2015”, and the words “Received from [the Firm] the sum of [amount] being payment of [bill number]”, followed by the amount in figures, a cheque number and the Firm’s seal. Nor did the applicant produce a copy of Invoice 27, marked with a caret. It tendered a cheque stub for the sum of $30,000 matching that invoice number.

The parties’ cases

The applicant’s case

The applicant only seeks orders for taxation for Invoices 1 to 34. It is not pursuing Invoice 35 as the respondent has confirmed, through written submissions and again at the hearing, that he is not claiming Invoice 35 (which is an interim fee of $150,000 for the appeal against the decision in S 992/2015 and has not been paid by the applicant) as he no longer acts for the applicant.

On this basis, the applicant seeks the following reliefs:

(a) a declaration that Invoices 1 to 34 are not proper “bills of costs” within the meaning of s 122 of the LPA such that the two disqualifying events to an order for taxation in s 122 do not apply to Invoices 1 to 34;

(b) an order for the respondent to deliver, within 14 days of the making of the order, a bill of costs for taxation covering work done under Invoices 1 to 34; and

(c) an order for taxation of all bills of costs.

In prayer 5 of OS 989/2019, the applicant also seeks an order that the respondent deliver certain documents pertaining to S 992/2015 (“the Documents”) within 14 days, subject to any lien the respondent may have:

(a) all correspondence relating to S 992/2015;

(b) the defendant’s three bundles of documents in S 992/2015;

(c) the defendant’s document marked “D1” in S 992/2015, being the alleged last page of the handwritten attendance note of 8 October 2012;

(d) all certified transcripts, notes of evidence, grounds of decision, or notes of arguments in the respondent’s possession; and

(e) softcopy trial transcripts for S 992/2015, by way of CD-Rom.

The respondent’s case

(a) was aware that the respondent would not be rendering itemised bills and that the bills were for progress payments of S 992/2015;

(b) knew the amount that the respondent had billed it;

(c) had paid Invoices 1 to 34 promptly without reservation; and

(d) was prepared to pay the respondent $2m if the appeal was successful.

Regarding the last point, the respondent tendered a letter from Chen to him, dated 20 June 2019, which provided as follows:

My decision

I shall first address the non-contentious issues, namely prayer 5 of OS 989/2019 and Invoice 35.

Prayer 5

In prayer 5 of OS 989/2019, the applicant seeks the delivery of the Documents by the respondent. This can be disposed of quickly. At the hearing, the respondent’s counsel confirmed, after seeking an adjournment to take instructions from his client, that the respondent would deliver the Documents that he had. The applicant’s counsel said that the applicant undertook to pay the photocopying fees and that delivery of the Documents was subject to the usual lien. Accordingly, by consent, I granted an order in terms for prayer 5 of OS 989/2019.

Invoice 35

Before I deal with the central issues in OS 989/2019 concerning the Invoices I would like to have Invoice 35 out of the way. As mentioned above, this invoice for $150,000 was an interim payment for the appeal lodged against the decision in S 992/2015 for which the respondent quoted to the applicant a sum of $350,000. As the respondent is not representing the applicant for the appeal he will not claim from the applicant for Invoice 35.

Other Invoices

Thus, the court now only has to deal with the remaining 34 Invoices and the following issues:

(a) Are Invoices 1 to 34 bills of costs under s 122 of the LPA?

(b) If so, are there special circumstances that justify the court making an order for taxation notwithstanding that more than 12 months have passed from the delivery of these Invoices and the fact that the applicant had made payment?

Are Invoices 1 to 34 “bills of costs” under s 122 of the LPA?

On the issue of ascertaining whether the presumption is rebutted, detailed guidance was given in Ralph Hume Garry (a firm) v Gwillim [2003] 1 WLR 510 (“Ralph Hume Garry”), cited in H&C S Holdings at [36] and Ho Cheng Lay v Low Yong Sen [2009] 3 SLR(R) 206 (“Ho Cheng Lay”) at [13]–[16]:

I find that the applicant has rebutted the presumption that Invoices 1 to 34 are bona fide bills under s 118(3) of the LPA for the following reasons.

Secondly, I find that the applicant did not have any information that would have enabled him to take advice on whether or not to go for taxation. That the applicant lacked such information is apparent from how it felt the need to raise the issue of absence of itemisation, not once but twice. The first time was on 19 June 2017 by way of a letter to the respondent, which stated:

S No

Description and or Bill No

Amount due

Description Cheque No

Date of Payment

Receipt Number

Stage of Proceedings

1

$10,000

Deposit DBS 000155

24/4/2016

Appearance, Amendment No 1 WOS n SOC

2

$25,000

DBS 000163

16/6/2016

SUM

3

$20,000

DBS 000171

15/8/2016

SUM

4.

$50,000

UOB 561034

5/10/2016

SFC

5.

$4,500

UOB 561035

5/10/2016

Costs for SFC

6

1757/2016

$25,000

UOB 561036

7/10/2016

FNBP & Reply to Defence

7

1767/2016

$20,000

UOB 561039

1/12/2016

? Application ADR

8

$25,000

UOB561040

13/1/2017

? LOD

9

$25,000

UOB 561041

17/2/2017

?

10

$25,000

UOB 561043

24/3/2017

?

11

$25,000

UOB 561046

18/4/2017

?

12

$30,000

UOB 561048

15/5/2017

? Specific Dis

13

PCS/1800/2017

$30,000

UOB 561050

19/9/2017

? Specific Dis

SFC/costs subtotal

$54,500

Subtotal Fees

$260,000

Total:

$314,500

It is evident from this letter that the applicant did not know what it was being billed for. Chen was guessing what work had been done by the respondent regarding the various bills which had no itemisation. The abject lack of knowledge necessitated him writing this letter to seek for information or confirmation on the applicant’s behalf. This is reflected in the numerous question marks and blank spaces in the table set out in his letter above. In paragraph 5 of the letter, Chen categorically requested that the respondent provide “detailed itemisation / statement of your professional fees, disbursements and monies held under the SFC, and copy of receipts of payments made and received by you”. The respondent did not reply to this letter. Nevertheless, the applicant had little choice but to continue paying the respondent promptly if it wished the respondent to continue representing it.

The applicant again sought for itemisation of its solicitor’s bills from the respondent in its letter dated 15 March 2018. Chen asked the respondent at paragraph 3 to “please explain the basis for the progressive interim bills”. At the fourth bullet point of the same paragraph, Chen requested the respondent for itemisation: “We will require a detailed itemised Bill subsequently”. This met with the respondent’s terse response, by email on 13 April 2018, as follows:

Not only did the respondent not explain his charges or provide an itemised bill, he blithely proceeded to forward a further bill for payment. It is regrettable that the respondent chose to respond in this way and exercised his discretionary rights in the standard form “IMPORTANT NOTES” section, Note 2 on each of the Firm’s own Invoices, which stated that the Invoice was a short form bill and the Firm reserved its rights to render a full form bill or account if required.

The respondent alleges that the applicant knew the amount the respondent was going to bill it for the work to be rendered. I accept that the applicant knew the quantum of each of Invoices 1 to 34 (otherwise it could not have made payment). But the real concern is whether the client knew the breakdown of what it was paying for, in order to determine whether the charges are reasonable. The complete lack of itemisation here means that the applicant would not know if, for instance, there was any double-billing, mistaken billings for work that was not done or whether the applicant had been overcharged. It is clear and I do not think the respondent can gainsay that the applicant did not have sufficient or any information for the work that the respondent billed. This is apparent from the correspondence with the respondent, where Chen set out a table with numerous incomplete entries and question marks alongside his exhortation that the respondent provide itemised bills.

In Australia, the Law Society of New South Wales and the Legal Services Commission of Queensland also require solicitors’ bills that are not lump sum bills to be itemised in detail to fulfil the requirements under their respective statutes and regulations:

(a) The Law Society of New South Wales states in its Costs Guide (7th Ed, 2015):

(b) The Legal Services Commission of Queensland states in its Explanatory Notes to the Regulatory Guide entitled “Itemised Bills” (2019 Ed, Version 3):

In the Regulatory Guide, the Legal Services Commission of Queensland gives the following guidance on the contents of an itemised bill as distilled from the case law:

I note that the guidelines reproduced above mostly focus on the requisite contents of an itemised bill that is delivered by a law firm on a client’s request (ie, in the exercise of the client’s right to ask for an itemised bill after receiving a lump sum bill). The practice of issuing a lump sum bill in the first instance before providing an itemised bill only on request is an accepted one in Singapore (see, eg, Lee Hiok Ping and others v Lee Hiok Woon and others [1988] 2 SLR(R) 326 (“Lee Hiok Ping”)). In this case, the respondent had categorically refused to provide an itemised bill (at [28] above) even when requested by the applicant. Thus the respondent’s case stands or falls based on whatever invoices or bills he presented at the first instance.

These cases may be very old but they are still relevant, and were cited by the English Court of Appeal in Ralph Hume Garry (at [23] above).

Do special circumstances exist that would warrant an order for taxation?

The relevant provisions of the LPA are as follows:

The categories of special circumstances are not exhaustive. In Kosui Singapore Pte Ltd v Thangavelu [2015] 5 SLR 722 (“Kosui”), the court summarised some examples in which bills were sent for taxation (at [61]):

What is important is that there must be a nexus between the alleged special circumstance and the particular disqualifying event, such that the special circumstance explains or justifies why indulgence should be granted. If both disqualifying events operate, then the special circumstances which the client advances must have a rational connection to both (Kosui at [65]):

I find that there are special circumstances that warrant the making of an order for taxation in this case, these being the lack of itemisation despite repeated requests by the applicant for details. I do not accept any of the arguments proffered by the respondent against this conclusion.

The respondent alleges that the applicant “was aware that the [r]espondent will not be rendering itemised bills” and had nevertheless “paid … promptly without reservation”. The applicant has indeed admitted that it “paid [Invoices 1 to 34] promptly”. But, in the first place, the onus should not unfailingly be on the client to take objection. As stated in H&C S Holdings at [125]:

Though expressed in the context where a firm was handling multiple active files for the same client, the call for clarity and accuracy applies equally to communications about different subsidiary matters within the same case.

Moreover, the payments in this case were made under protest or indication of unhappiness. I have set out above the undisputed facts, which are that the applicant had twice raised the issue of lack of itemisation. For this reason, this case is distinguishable from Kosui, where the court held that special circumstances were not made out despite the lack of itemisation. The applicant, Kosui, had engaged the respondent Mr Thangavelu’s then-firm to act for it. When Mr Thangavelu left for a new firm, Kosui appointed the new firm to act for it instead, on condition that a partner from the old firm remained on the case. This was done and the new firm eventually billed Kosui about $700,000 for eight bills dated between December 2010 and July 2011. There was no itemisation. About a year later, Kosui found that Mr Thangavelu had apportioned about $400,000 to the partner and $300,000 to himself. Kosui alleged overcharging and complained to the Law Society. Its complaints were dismissed. Subsequently, Kosui twice rejected Mr Thangavelu’s offers to have the bills taxed. But Kosui eventually commenced court proceedings praying that the bills be referred to taxation. By that time, the twin bars had come into play. In finding that there were no special circumstances, the court found that Kosui’s conduct in refusing to consent to taxation revealed that it was Kosui’s aim to assess if the fees charged by the new firm were reasonable. Its real complaint was that it disagreed with the allocation of fees between Mr Thangavelu and the partner from the old firm, but that could not be remedied by taxation.

The facts in Kosui’s case are materially different from this case. For instance, Mr Thangavelu twice offered the bills to be taxed and these were rejected. Pertinently for this case, in relation to the lack of itemisation the court found that there was objective evidence that Kosui was well aware of what the bills covered despite the lack of itemisation. As the court stated (at [92]):

Unlike Kosui’s case, there is no such objective evidence here.

The respondent argues that the quantum of fees ($1.36m for Invoices 1 to 34) is reasonable as the amount of the claim in S 992/2015 was $8.9bn. Furthermore, the applicant was prepared to pay the respondent $2m on a contingency fee basis if the appeal was successful. I accept that the quantum of fees may have some correlation to the amount of the claim, in the sense that, generally, high fees are commensurate with large claims and low fees with small claims. But considering the seriousness of the complete lack of itemisation in this case and the repeated exhortation by the applicant for itemisation of the respondent’s bills, the circumstances reveal a lack of fairness by the respondent to the applicant vis-à-vis billing for his professional services. The applicant was literally helpless and at the mercy of the respondent as the applicant had no clue what he was billed for. The applicant was never given any itemisation of its bills and when it requested for itemisation the respondent nonchalantly ignored it. The applicant trusted the respondent and paid whatever it was billed.

The respondent cited four cases to resist OS 989/2019. None of these assist him.

(a) Chor Pee & Partners v Wee Soon Kim Anthony [2005] 3 SLR(R) 433 was a High Court decision that was reversed on appeal. That reversal was not brought to my attention – a glaring omission on the part of the respondent’s counsel that was fortunately corrected by the applicant’s counsel. Turning then to the Court of Appeal decision in Wee Soon Kim Anthony v Chor Pee & Partners [2006] 1 SLR(R) 518, that case is an authority on s 111 of the LPA, which provides:

The Court of Appeal held at [26] that a client can enforce an oral agreement against a solicitor but not vice versa – to be enforceable against a client, there must be a written agreement with the client’s signature. Applied to this case, the email from the respondent at [28] above cannot be considered an enforceable agreement on costs under s 111 of the LPA as it is not signed by the client.

(b) The facts of Engelin Teh Practice LLC formerly known as Engelin Teh and Partners v Tan Sui Chuan [2006] SGDC 2 are entirely distinguishable from this case. There, the plaintiff law firm had sued the client for unpaid fees. At first instance, the plaintiff applied for summary judgment and the defendant was given unconditional leave to defend. The plaintiff appealed and the District Court allowed the appeal. Although the defendant alleged overcharging in his defence and stated that he wished to proceed for taxation in his affidavit, he had not gone for taxation and did not give any reasons for his delay of nearly two years after delivery of the bill. There were, therefore, no special circumstances that warranted an inquiry into the bill as a defence to the law firm’s claim.

(c) The facts of Koperasi Belia National Bhd v Dublee Holdings Sdn Bhd Civil Suit No C23–2772–86 are similarly distinguishable. A client had sought taxation of its lawyer’s bills after the Malaysian equivalent of the twin bars came into play. The court found that there were no special circumstances because the client had not stated in its affidavit any facts that might support that finding. This is not so for the present case, where Chen’s affidavit sets out ample first-hand and documentary evidence regarding the lack of itemisation.

(d) In Lee Hiok Ping, the court stated (at [28]) that “it is a fairly common practice in the profession for a solicitor to send a lump sum bill based upon a very rough estimate, without going too much into details”. But that statement is irrelevant for our purposes because it was made in a very different context. The issue there was whether a lawyer was entitled to withdraw the first bill and tender a second bill for a different sum after the client requested that the first bill be taxed. The observations of the court on this point is reproduced below:

Invoices 1 to 34 here have failed to fulfil the desired objective because they only informed the applicant to pay a certain sum for the respondent’s professional services. I would add that in this case, the absence of itemisation has a nexus to both of the twin bars. The applicant did not have any information to decide whether to apply for taxation within 12 months, given the impossibility of determining the reasonableness of the charges. The fact that the applicant paid also cannot be held against it, not merely because it alleges that it trusted its lawyer but – crucially – because it had asked about itemisation and registered its concerns and yet was rebuffed.

Will there be prejudice to the respondent if the application is allowed?

Finally, I would like to deal with the issue of whether the respondent will be prejudiced if Invoices 1 to 34 are taxed by the Registrar. Prejudice comes into the picture because, as stated in Ralph Hume Garry, the court must be alive to the possibility of late ambush by a client who wants to get out of paying his dues. This does not apply here as the applicant had promptly paid these Invoices.

The Invoices pertain to S 992/2015 and were issued progressively from 2015 to April 2019, excluding Invoice 35, which is the fee for the appeal and now not pursued by the respondent. This suit was dismissed by Aedit Abdullah J on 28 May 2019 after a three-day trial. As the respondent has records of all the efforts he put in for S 992/2015, there is no prejudice to him when it comes to taxation. The only possible risk of “prejudice” is that the Registrar may reduce the sums in Invoices 1 to 34. But that cannot be considered prejudice as it is speculative and would only arise if the Registrar reduces the sums in these Invoices.

Conclusion

It is tempting to caricature the applicant as a disgruntled client out for vengeance after the respondent had lost its case in S 992/2015. But it is ultimately speculative whether the applicant would have acted differently had the outcome been in its favour.