Grassland Express & Tours Pte Ltd and another v M Priyatharsini and others [2022] SGHC(A) 28

Costs

On 24 February 2022, the Judge gave interlocutory judgment on liability in favour of the Customers with damages to be assessed (including damages in relation to the Companies’ contractual liability to all the Customers for failing to provide the transportation service with reasonable care) and costs to be heard separately in R Manokaran and others v Chuah Ah Leng and others and another suit [2022] SGHC 39 (the “Main Judgment”).

Costs

The Judge also directed parties to file submissions on costs by 3 March 2022 by way of correspondence from the Court over eLitigation. Notably, the first paragraph of that correspondence referred to “the Judgment dated 24 February 2022”. On 28 February 2022, the Customers requested an extension of time of a week to file such submissions which the Judge granted on 1 March 2022. The Companies filed their submissions on costs on 9 March 2022 and the Customers filed their submissions on the same on 10 March 2022. On 16 March 2022, the Judge made orders on costs and disbursements against the Companies in respect of each of the two Suits by way of correspondence from the Court (the “Costs Orders”). Thereafter, on 17 March 2022, the Judge directed parties to write in by 21 March 2022 “if there are any objections to the Court having made the orders on costs and disbursements by way of the letter dated 16 March 2022”.

Costs

On 25 March 2022, the Companies filed a Notice of Appeal to the Court of Appeal. That was also procedurally deficient for three reasons. First, it was filed out of time as 24 March 2022 was the last day for filing an appeal. However, when filing the Notice of Appeal, counsel for the Companies indicated that an extension of time was not required. Second, it was filed to the Court of Appeal instead of the Appellate Division of the High Court. Third, there was no accompanying Certificate for Security for Costs.

Costs

The Customers contend that because NA 39 refers only to the decision of the Judge on 16 March 2022, it is an appeal against the Costs Orders only. As such, it may be filed only with the court’s permission to do so. If the Companies wished to appeal against the Main Judgment on liability, which was pronounced on 24 February 2022, they might do so only if an extension of time to appeal was obtained. As neither permission to appeal against the Costs Orders nor an extension of time to appeal against the Main Judgment was sought, NA 39 should be struck out.

Costs

The Companies contend that NA 39 was “against the whole of” the Judge’s decision in respect of liability and costs. Such appeal was filed within time as the relevant time began running only when the Judge had resolved all issues, including costs. As such, the relevant time only ran from 16 March 2022 when the Costs Orders were made. SUM 15 should accordingly be dismissed.

Costs

The first issue that arises before us is whether NA 39 is an appeal against the Costs Orders only such that permission to appeal is required. If that is so, then it must be struck out as permission has not been obtained. But, if it is against the Main Judgment in addition to the Costs Orders, then a second issue arises as to whether it is filed out of time.

Costs

The Customers argue that the Companies have “mischievously and inaccurately” sought to characterise NA 39 as an appeal against the Judge’s decision on liability and costs and, in so doing, have filed it as a “backdoor appeal” against the Judge’s decision on liability (ie, the Main Judgment). The significance of the Customers’ argument, as alluded to above, is that pursuant to s 29A of the Supreme Court Judicature Act 1969 (2020 Rev Ed) (“SCJA”) read with para 3(f) of the Fifth Schedule to the SCJA (the “Fifth Schedule”), permission of the appellate court is required:

Costs

The Companies do not dispute that an appeal which is confined to costs may be filed only with the permission of the appellate court. What they contend, however, was that the scope of the appeal in NA 39 is against the “whole decision with regard to the judgment which was delivered” by the Judge “in chambers” and not against the decision on costs only. Hence, they do not need permission to file the appeal.

Costs

The Companies rely on three arguments. First, that NA 39 is “against the whole judgment of” the Judge. Second, the judgment “extracted by [the Customers] dated 16 March 2022 deals with the issue of liability and costs”. Third, the trial was a “bifurcated” one “on the issue of liability and costs and not as alleged by the [Customers] only on the issue of costs”. The Companies also submit that it would be “odd” if they had to file two separate notices of appeal “which would only incur more costs” and “also waste the resources” of the appellate court.

Costs

On the facts of the present case, it is clear that two different decisions were rendered on two different dates. The first is the Main Judgment, which was pronounced on 24 February 2022, in respect of the Companies’ liability. The second is the Costs Orders which were made on 16 March 2022.

Costs

The Customers, as the successful parties, only extracted a single judgment in respect of liability and costs in each of the Suits without mentioning the two different dates. The extracted judgment in each of the Suits was the same in all material aspects, save for the respective sums of moneys reflected therein:

Costs

Where there are multiple decisions rendered on different dates in relation to the same case (eg, the first on liability and the second on costs), the extracted judgment ought to reflect accurately each of the dates on which the respective decisions were made. If the Customers wished to extract the Main Judgment and the Costs Orders in one judgment together, and assuming that this was permissible, it was incumbent upon them to correctly reflect the “Date of Judgment” in respect of liability as 24 February 2022 and the “Date of Order” in respect of costs as 16 March 2022. If that was not permissible, then two orders for each of the Suits should have been extracted.

Costs

The Customers’ error, however, does not and cannot change the relevant date for the purposes of determining the time within which a notice of appeal may be filed. Nor may the Companies rely upon the Customers’ error to argue that NA 39 ought to be construed as an appeal against the Main Judgment as well as the Costs Orders. We return to this point at [23] below.

Costs

Whether NA 39 is an appeal against the Costs Orders only (as the Customers contend) or against the Main Judgment in addition to the Costs Orders (as the Companies contend) is a matter of construction. In our view, none of the three arguments by the Companies, mentioned above, advanced their case. We address each in turn.

Costs

First, the phrase “against the whole of the decision” in NA 39 in itself is ambiguous and is insufficient to determine whether the appeal is against the Judge’s decision in respect of liability in addition to costs or costs only. Further, the phrase “against the whole of the decision” is not to be read in isolation. It is to be read in its proper context – which, in this case, is the Judge’s decision “given on 16-03-2022”. In this regard, it is clear based on the Court’s correspondence dated 16 March 2022, that the Judge’s decisions in each of the Suits on that date related to costs only. Read in totality, NA 39 is an appeal against the whole of the Judge’s decision on costs only (ie, on every aspect of the Costs Orders) but not on the Judge’s decision in respect of liability.

Costs

Third, the fact that the trial was bifurcated does not change the foregoing analysis. The Companies’ submission on this point is misconceived as the Customers are not, contrary to their submission, alleging that the trial itself was on the issue of costs only. Rather, the pertinent issue is what decision of the Judge was appealed against in NA 39.

Costs

We make one final point in respect of the Companies’ submission that filing two separate notices of appeal (ie, the first against the Main Judgment and the second against the Costs Orders) would result in unnecessary costs. This argument is also unpersuasive. This Court had recently given guidance on this point in Ser Kim Koi v GTMS Construction Pte Ltd and others [2021] 1 SLR 1319. In particular, where a judgment on costs was issued within the time for filing an appeal against the judgment on liability, a party should file a single notice of appeal in respect of both judgments against liability and costs (at [12]). The Court of Appeal in The “Luna” and another appeal [2021] 2 SLR 1054 likewise confirmed that the correct procedure is that where a costs decision is delivered before a notice of appeal has been filed in respect of the substantive decision, the appellant should file a single notice of appeal against both the substantive decision and the costs decision (at [103]). Naturally, the notice of appeal must be appropriately worded to refer to both decisions and the appropriate dates thereof.

Costs

That is precisely the case here, where the Costs Orders were made both (a) before a notice of appeal was filed and (b) prior to the expiry of the period limited for filing a notice of appeal against the Main Judgment. Had the Companies followed the correct procedure, permission to appeal would not be required since the Notice of Appeal would relate to both the Main Judgment and the Costs Orders and thus it could not be said that the “only issue in the appeal relates to costs” under para 3(f) of the Fifth Schedule. Such procedure would thus not result in any unnecessary costs and ensure that appeals are appropriately filed within time. Yet, this was not done here.

Costs

In conclusion, we agree with the Customers that NA 39 relates only to the Costs Orders made on 16 March 2022. That being so, it is uncontroversial that the Companies would require permission to appeal. Given that they have not obtained permission, this Court is not seised with the requisite jurisdiction to hear and determine the appeal.

Costs

The foregoing is sufficient to determine SUM 15. For completeness, we address the relevant time period within which one may file an appeal in view of the relatively new Rules of Court 2021 (the “Rules of Court 2021”). This part addresses the second issue which would arise if the Companies’ case was taken at its highest, which is that, NA 39 was against the Main Judgment in addition to the Costs Orders.

Costs

The Customers’ position is that NA 39 is a “backdoor appeal” against the Main Judgment as the Companies failed to appeal against the same within the prescribed time. Under both the Rules of Court (2014 Rev Ed) (the “Revoked ROC”) and the Rules of Court 2021, the applicable timeline for the filing of appeals is that such appeal is to be “filed and served within one month after” the “date on which the judgment or order appealed against was pronounced” [emphasis added]. Accordingly, the Companies should have filed any appeal against the Main Judgment by 24 March 2022; this was not done. Nor have the Companies filed any application for an extension of time to file the same. The Customers thus submit in the alternative, that even if NA 39 is an appeal against the Main Judgment and the Costs Orders, it should nonetheless be struck out on the basis that the appeal against the Main Judgment was filed out of time.

Costs

The Companies submit that time for filing the Notice of Appeal “does not start to run until the Judge has heard and determined all matters including costs”. In support of its submission, the Companies rely on O 19 r 4(1) of the Rules of Court 2021. Since the Judge only determined the issue of costs on 16 March 2022, “time runs from 16th March 2022, for any Notice of Appeal to be filed”.

Costs

As clearly stipulated in O 1 r 2(3)(b) of the Rules of Court 2021 (reproduced at [32] above), the relevant time that applies to a judgment or order made before 1 April 2022 (such as the Main Judgment and the Costs Orders in the Suits) is one month from the date of such judgment or order. Simply put, although O 19 r 4 of the Rules of Court 2021 came into operation on 1 April 2022 (ie, was in operation by the time NA 39 was filed), it does not apply to appeals against the Judge’s decisions in the present case. Accordingly, the time to appeal against the Main Judgment starts to run from 24 February 2022 and not 16 March 2022 as the Companies contend.

Costs

Therefore, even if NA 39 was against the Main Judgment in addition to the Costs Orders (as the Companies contend), it was filed out of time. The Companies thus required an extension of time to file the same. As no such extension of time was sought and obtained by the Companies, NA 39 ought to be struck out, even if it were the case – as the Companies contend – that the appeal was against both the Main Judgment and the Costs Orders.

Costs

The present state of affairs is unsatisfactory because counsel for the Companies failed to appreciate the applicable rules of civil procedure which, in our view, have been clearly set out in the Rules of Court 2021. Furthermore, at the CMC of 7 April 2022, counsel’s attention was brought to the specific point that 24 March 2022 was the last day for filing an appeal against the Main Judgment. Counsel for the Companies was specifically informed to consider whether to seek an extension of time to appeal. Yet he chose not to do so. It seems that this unfortunate state of affairs has arisen because of the intransigence of counsel for the Companies. In the circumstances, we reserve our judgment on costs. Parties are to file and serve written submissions (if any) on costs for SUM 15 and NA 39 within 14 days from the date of our judgment, limited to five pages. Counsel (and solicitors) for the Companies are to also address the question as to why costs should not be borne by him (and/or them) personally. As the Customers have already addressed costs in their earlier submissions, they should clarify within the same deadline whether they are filing and serving any further submission on costs.