Perry, Tamar and another v Esculier, Bonnet Servane Michele Thais and another [2022] SGHC(I) 13

Costs

This judgment on costs concerns my decision in Perry, Tamar and another v Esculier, Bonnet Servane Michele Thais and another [2022] SGHC(I) 10 (the “Substantive Judgment”) which was handed down on 15 July 2022. Unless otherwise stated, I shall adopt the abbreviations used therein.

Costs

At the end of the Substantive Judgment (see [204]), I directed that the Plaintiffs should pay the Defendants’ costs of this action and that the parties should seek to agree an order as to costs. If the Plaintiffs wished to contest the matter, they were to write in within seven days of the Substantive Judgment, and, thereafter, file written submissions within 21 days.

Costs

On 22 July 2022, the Plaintiffs wrote in to the court. They accepted that the appropriate order was that they should pay those costs, but they disputed that the Defendants were entitled to their full costs owing, inter alia, to the Defendants’ alleged conduct at trial and their raising of irrelevant issues. On 18 August 2022, the parties’ written submissions were filed and they agree that I should resolve the dispute between them on the basis of written submissions and dispense with the need for an oral hearing.

Costs

Although the parties are in substantial agreement as to the correct approach to be taken in assessing costs under O 110 r 46 of the Rules of Court (2014 Rev Ed) (the “ROC”), they are unable to agree on the quantum. The Defendants’ solicitor-and-client bill of costs amounts to S$940,000 in costs together with S$293,065.60 in disbursements. The Plaintiffs do not dispute that these were the expenses incurred by the Defendants but contend that in the circumstances of this case an award of S$600,000 (all-in) would be the reasonable and proper sum to award.

Costs

When this action was transferred to the Singapore International Commercial Court (the “SICC”) on 19 June 2020 it was ordered that the costs were to be assessed in accordance with O 110 r 46 of the ROC. This was following written submissions by the parties including a letter from the Plaintiffs’ solicitors dated 5 June 2020, paragraph 2 of which acknowledged that under that Rule the unsuccessful party should pay the reasonable costs of the successful party. It went on to state that whereas in assessing pre-transfer costs the costs guidelines at Appendix G of the Supreme Court Practice Directions (“Appendix G”) applicable to the assessment of costs under O 59 of the ROC were likely to be taken into account, it would not in general be appropriate to place any material weight on Appendix G in relation to post-transfer costs. This position is not maintained in the Plaintiffs’ written submissions before me now, which also raise several other considerations which I am invited to take into account.

Costs

The Plaintiffs submit that as matters turned out in this case, regard should be had to Appendix G and that, additionally, the award of costs should be reduced to take into account:

Costs

The Plaintiffs also emphasise that the international issues that arose turned out to be ones which the High Court “would have been capable of dealing with”. This is not the test. All the judges of the High Court are also judges of the SICC. It is not a question of capability but of suitability. In order to place any significant weight upon Appendix G, the court must be satisfied that the case in question is a “run of the mill” commercial case suitable for resolution in the High Court. In such circumstances, it may be that it would be appropriate to compensate the successful party on the basis of the Appendix G scale, which it is acknowledged may well not compensate the successful party for its reasonably incurred costs.

Costs

I therefore reject the submission that this case was akin to a “run of the mill” commercial case and therefore do not consider it to be a case where it would be appropriate to place weight upon Appendix G in assessing reasonable costs.

Costs

I do accept, however, as the Plaintiffs submit, that one factor that the court should take into account is the value of the claim and that care should be taken to ensure that a successful party has not spent more on the case than its value merits. Proportionality is a close relation to reasonableness but proportionality in relation to the value of the claim is not the only aspect of proportionality that has to be considered. Reasonableness has to be considered in the round and this will include proportionality in relation to the issues that arise for decision. Where difficult questions of law or fact arise, it may well be reasonable to incur greater costs in relation to a case of a given value than would be the case in relation to a straightforward case of similar value. There is no mathematical test that can be applied and little help will generally be obtained from comparing the sums awarded by way of costs in one case with those in another.

Costs

In the present case, costs were likely to be higher than in a straightforward case. The issues involved meant that it was necessary to adduce evidence of foreign law and it was reasonable to instruct co-counsel to address the novel legal propositions. Costs, excluding disbursements, of less than S$1 million do not seem to me on the facts of this case to be disproportionate to the overall claim of some S$10 million. It is to be noted that the Plaintiffs’ estimated costs in their costs schedule dated 12 April 2022 excluding disbursements were some S$1.7 million. Whilst I accept that the reasonableness of one party’s’ expenditure cannot necessarily be judged against another’s, in this case it does provide a measure of support for the submission that expenditure of less than S$1 million was not disproportionate to the value of the claim.

Costs

This was a self-standing issue on which the Plaintiffs succeeded (see the Substantive Judgment at [186]–[191]). It is appropriate that there should be a deduction from the costs payable to the Defendants to take this into account. However, the Defendants did not act unreasonably in putting the Plaintiffs to proof of the issue and, overall, the time taken in dealing with this issue was not great when compared to the other issues. I consider that a deduction of 10% would be appropriate.

Costs

The Plaintiffs are correct to assert that the fact that a party has incurred solicitor-and-client costs of a given sum does not mean that that sum is “reasonable”. There will generally be aspects of those costs which on closer inspection would not be considered reasonable as would be identified in a conventional full assessment of costs. It is right that I should take that factor into account in reaching a final conclusion and the matters which the Plaintiffs’ list in paragraph 13 of their written submissions are illustrative of such matters:

Costs

The Defendants are entitled to be paid the disbursements claimed in the sum of S$293,065.60. The claim for costs is S$940,000, which should first be reduced by 10% (ie, S$94,000) because of the issue relating to the JL Transfer. I have further concluded that this figure of S$846,000 should be reduced to S$800,000 to take into account overall reasonableness. The Plaintiffs shall therefore pay the sum of S$1,093,065.60 by way of costs and disbursements.