Ivanishvili, Bidzina and others v Credit Suisse Trust L td [2023] SGHC(I) 14

Costs

There are three main issues with which it is necessary to deal. The first issue is the quantification of the amount payable by the defendant in accordance with Model 1B by reason of the finding that the defendant’s breach occurred on 30 March 2008, rather than 31 December 2007 as contended by the plaintiffs. The second is the issue of costs of the proceedings. The third is the issue of whether a declaration ought to be made that the Deed of Amendment and Restatement is void and/or unenforceable.

Costs

The parties have reached agreement in respect of some costs of the proceedings and, in respect of the costs on which they were unable to reach agreement they have filed written submissions on 18 July 2023 (in chief) and 1 August 2023 (in reply), with a round of supplementary written submissions on 22 August 2023 (the defendant) and 29 August 2023 (the plaintiffs).

Costs

There is no issue between the parties that as the plaintiffs prevailed in the Suit, they should be awarded costs in accordance with the principle that costs should follow the event. However, there is an issue as to the amount of any discount that might be applied to the award of costs by reason of various matters that are discussed below.

Costs

The approach to be adopted in the determination of costs of these proceedings is gleaned from the recent decisions of the Court of Appeal in Senda International Capital Ltd v Kiri Industries Ltd [2023] 1 SLR 96 (“Senda”) and of the Singapore International Commercial Court (“SICC”) in Lao Holdings NV v Government of the Lao People’s Democratic Republic and another matter [2022] SGHC(I) 6 (“Lao Holdings”).

Costs

In accordance with O 110 r 46 of the Rules of Court 2014 (the “Rules”), unless otherwise ordered by the Court, the defendant is required to pay to the plaintiffs their “reasonable costs” of the proceedings.

Costs

The process for the determination is “an open-ended inquiry” in which the Court will have “due regard to the specific facts of the case at hand”, the complexity of the issues, the amount of costs claimed and the nature and extent of the differences between the parties in respect of their positions on costs: Senda at [70] and [100].

Costs

It is expected that in discharging their obligations to show that the costs as claimed are “reasonable costs”, the plaintiffs will provide a breakdown of the claimed costs to enable the Court to properly assess whether those costs are reasonable. That breakdown would typically include the costs in terms of the number of hours claimed; by whom the services were provided in relation to the hours claimed with their levels of seniority and hourly rates; and some explanation as to the type of work in respect of which those hours were spent: Senda at [73]. Such information will usually also include the detail of the post-qualification experience of the professionals providing the legal services and/or expert services, and their respective charge-out rates. In some circumstances, where it is helpful, such information could be broken down into the stages of the litigation: Lao Holdings at [113].

Costs

Once the successful party has provided the appropriate information in support of the claim for their reasonable costs, the evidential burden shifts to the unsuccessful party to show that the claimed costs are not reasonable costs. In this regard the Court of Appeal observed that the “best evidence” that the unsuccessful party can adduce will often be information as to the costs that it had correspondingly incurred for the matter: Senda at [75].

Costs

The Singapore International Commercial Court Practice Directions (the “Practice Directions”), which apply to these proceedings, record at para 152(4) that the Court may require parties to provide a costs schedule to be submitted with closing submissions. The Practice Directions include Form 24 as a “sample costs schedule” which is divided into seven areas of work (Commencement of Proceedings/Pleadings, CMC/Interlocutory hearing(s), Disclosure, Affidavits, Expert Evidence, Preparation for hearing(s) and Attending hearing(s)) with sections for recording the description of the nature of the work, the hours worked, the hourly rates, the total hours worked and the total amounts of costs incurred in those areas.

Costs

The parties were not required to provide a Form 24 costs schedule with their closing submissions in these proceedings. Nor were the parties required to provide a Form 24 with their submissions on costs. However, as will be seen from the discussion below, the plaintiffs filed a costs schedule in a Form 24 format as an annexure to their reply submissions on costs dated 1 August 2023. That is what prompted the further round of written submissions referred to at [11] above.

Costs

The parties have agreed that costs for the work done from 25 August 2017 to 8 March 2021 prior to the proceedings being transferred to the SICC, should be awarded to the plaintiffs in the amount of S$85,000.

Costs

There were numerous interlocutory applications brought by way of Summons. The parties have agreed that the plaintiffs should be awarded costs and disbursements for these applications, bar two (see [23(c)] and [23(d)] below), in the amount of S$482,551.40.

Costs

The parties have also agreed that interest on costs be fixed as simple interest at 5.33% per annum and that post-judgment interest be fixed as simple interest at 5.33% per annum from the date of the Judgment, 26 May 2023, to the date of full payment. There is an issue in respect of the date from which interest should apply to costs, returned to at [25] below.

Costs

In addition to an order that these agreed amounts be paid, the plaintiffs seek an order that the defendant pay their costs of S$6,741,421.98 made up of:

Costs

Although the parties have reached agreement on the interest rate to be applied to costs and the Judgment debt, they are at issue on the date from which interest should apply to costs. The plaintiffs contend that interest should apply to the agreed costs from the date on which the parties reached agreement and on contested costs from the date of the Court order. The defendant contends that the Court should make orders in respect of costs both agreed and not agreed, and that interest should apply to both from the date of the Court orders.

Costs

After the Judgment was delivered, the parties exchanged their proposals in respect of the costs orders they contended should be made.

Costs

On 20 June 2023, the plaintiffs’ solicitors, Drew & Napier LLC, sent a costs proposal to the defendant’s solicitors, Allen & Gledhill LLP, enclosing the plaintiffs’ “cost schedule” which, it was said, “sets out a breakdown of the costs incurred” by the plaintiffs in the proceedings (the “June Schedule”).

Costs

The June Schedule was divided into five sections: (I) Summary of the costs claimed; (II) Counsel’s Fees; (III) Interlocutory Applications; (IV) Quantum Experts’ Fees; and (V) Disbursements.

Costs

Section (II) identified each of the practitioners who provided legal services, their status (senior counsel, director or associate), their hourly rate, the hours worked, and the amount claimed in respect of those hours. The stages were divided into “Pre-Transfer Costs” up to 8 March 2021 and “Post-Transfer Costs” from 9 March 2021.

Costs

Pre-Transfer Costs were divided into costs incurred for commencement of proceedings and pleadings and costs incurred after the determination of the Court of Appeal proceedings in Ivanishvili, Bidzina and others v Credit Suisse Trust Ltd [2020] 2 SLR 638 (see [51] of the Judgment).

Costs

Post-Transfer Costs were divided into five stages and time periods:

Costs

Section (III) of the June Schedule included a description of the nature of each of the interlocutory applications and the outcome. As discussed earlier, the only costs of interlocutory matters for determination are in respect of SUM 11 and SUM 49.

Costs

Section (IV) of the June Schedule included claims for the Quantum Experts’ Fees set out in a similar manner to the costs of the legal practitioners. The stages into which the provision of services for the experts were divided are:

Costs

On 4 July 2023, the defendant’s solicitors provided the plaintiffs’ solicitors with a costs counter-proposal in the form of a “Schedule” which included discussion of the category of costs, the amount claimed by the plaintiffs, the defendant’s comments on the plaintiffs’ proposed claim and the counter-proposal amount (the “4 July Schedule”).

Costs

In the sections of the 4 July Schedule dealing with Post Transfer Costs and Quantum Experts’ Fees, the defendant recorded that “[w]ithout a narration of work done”, it was difficult for it to “form a view on the reasonableness of the amount claimed”. The defendant enquired whether the plaintiffs’ solicitors would provide such “a narration of the work done for each time period”.

Costs

On 7 July 2023 the plaintiffs’ solicitors responded to the 4 July Schedule (the “7 July Schedule”). In respect of Post-Transfer Costs, the plaintiffs’ solicitors advised that although they could not understand why the defendant required a narration of the work done, further information in respect of the legal services was provided as follows:

Costs

Although there was further correspondence between the parties’ solicitors and further agreement on some matters, the parties proceeded to file their written submissions on costs with an agreement that the Court would determine the question of costs without an oral hearing.

Costs

In their written submissions in chief the plaintiffs provided the supporting invoices for the claim for costs in respect of the Quantum Experts’ Fees, which included descriptions of the nature of the services that the experts provided.

Costs

Notwithstanding the provision of this additional material, the defendant complained that the plaintiffs had failed to provide adequate information upon which the Court could determine whether the plaintiffs’ costs were reasonable.

Costs

The parties’ submissions developed over time and became finely focused after the plaintiffs filed their detailed information in the Form 24 format and there was the further round of written submissions. The earlier submissions up to 1 August 2023 (the “earlier submissions”) addressed the costs as they were divided into five time periods. Whereas the later submissions on 22 and 29 August 2023 (the “later submissions”) addressed the costs detailed in the Form 24 format.

Costs

The plaintiffs seek costs from 9 March 2021 to 17 February 2023 in the amount of S$4,330,028.73. The defendant submitted that the plaintiffs’ costs for this period should be fixed at S$3.5m.

Costs

The plaintiffs claimed that they reduced their actual Post-Transfer Costs of S$4,811,143.03 by 10% to their claimed amount of S$4,330,028.73. This reduction was said to be in recognition of and/or to account for the difference between their claim that the defendant was in breach of its duty to them from 2007 and the finding that the defendant was in breach as at 30 March 2008.

Costs

Although the plaintiffs claimed that the actual Post-Transfer Costs incurred by them were S$4,811,143.03, it appears that the actual costs were more than S$5m. The amounts claimed in the five stages in the earlier submissions totalled S$5,514,260.13 and the amounts claimed in the Form 24 format also in the earlier submissions totalled S$5,316,260.13. The plaintiffs explained that this difference arose because discounts were provided to them by their solicitors, and they were not claiming these amounts.

Costs

The difference between S$5,514,260.13 and S$4,330,028.73 is in the order of a 21.5% reduction. The difference between S$5,316,260 and S$4,330,028.73 is in the order of an 18.5% reduction. Irrespective of these matters the plaintiffs have maintained their claim for Post-Transfer Costs at the reduced amount of S$4,330,028.73.

Costs

The defendant originally contended that in the absence of appropriate information, it was not possible to determine whether the plaintiffs’ costs were reasonable costs or whether they had been properly and sensibly incurred. Accordingly, it submitted that the Post-Transfer Costs should be awarded in the amount of $3m and subsequently $3.5 million. After the provision of the information in the Form 24 format, it maintained its submission that the Post-Transfer Costs should be awarded in the amount of $3.5m.

Costs

In Senda (see [17] above), the Court of Appeal did not prescribe that the unsuccessful party would provide information about its costs as the “best evidence” in every case. Rather the Court of Appeal referred to it as “often” being the best evidence. It will obviously be necessary to assess each case on its own facts and circumstances. If it is probable that such information may assist in the determination of the reasonableness of the successful party’s claimed costs and an unsuccessful party decides not to provide it, then the Court may be more comfortable in determining that the successful party’s claimed costs are reasonable.

Costs

The provision of the detailed information in the Form 24 format by the plaintiffs on 1 August 2023 shifted the onus onto the defendant to demonstrate that the costs as claimed are unreasonable. One of the ways of demonstrating that unreasonableness is the disclosure of its own costs. Although the defendant provided detail of its Quantum Experts’ Fees, referred to at [148] below, it proffered and maintained an explanation that it would not be “meaningful” to provide information of its legal costs as a comparison with the plaintiffs’ legal costs, because of “the significant asymmetry in the preparatory work for trial”.

Costs

Symmetry is not a pre-requisite to the comparison of the costs incurred by the respective parties. The fact that a party is responding to affidavit evidence does not exclude the costs incurred in doing so from comparison with the costs incurred in the preparation of the affidavits to which they respond. It will all depend on the circumstances of the case and the analysis of the work that was done by each party.

Costs

The so-called inability to “leverage off the work of witnesses in the Bermuda Proceedings” is also not an impediment to the comparative exercise upon which a Court may embark if both parties provide the detail of their costs. It would be a matter to be taken into account in the exercise.

Costs

The submission that the defendant spent “significantly more time on discovery” suggests that its costs may be higher than the plaintiffs’ costs for this work. The plaintiffs emphasise that the defendant has not put forward any material to suggest that its costs incurred in providing discovery were significantly lower than the plaintiffs’ costs. Either way, these matters are not an impediment to the comparative exercise but rather are matters to be taken into account when making the comparison.

Costs

It may be reasonably inferred from the absence of any information about the defendant’s costs that its costs are probably higher than the plaintiffs’ costs. Even if the defendant formed the view, as it did, that there was “significant asymmetry”, that should not have prevented it from disclosing the quantum and providing the explanations in respect of the differences. However, it has chosen to complain about the plaintiffs’ level of costs without permitting any comparison with its own costs.

Costs

In the circumstances it is probable that the information in respect of the costs incurred by the defendant may have assisted the Court in determining the reasonableness of the plaintiffs’ costs. The absence of the provision of this information is a matter that is to be taken into account in assessing whether the plaintiffs’ costs are reasonable.

Costs

The defendant does not criticise the nature of the information provided in the Form 24 format but submits that it demonstrates that many individual components of the plaintiffs’ costs are “unreasonable and unjustified”. It indicated that it did not intend to adopt a “granular approach” to reduce the amounts claimed for each “discrete item of work”. Rather it maintained its contention in its earlier submissions that a 25% discount is appropriate to reflect: (a) those parts of the plaintiffs’ cases on which they did not prevail; and (b) the numerous items of work in Form 24 “where the costs incurred are plainly disproportionate”.

Costs

It is appropriate to address the information within the framework of the Form 24 format and the parties’ later submissions in relation to it but keeping in mind the parties’ earlier submissions relevant to the topics under discussion. The only matter with which it is unnecessary to deal is the plaintiffs’ costs of attending the trial in September 2022 to which there is no objection by the defendant.

Costs

The first category of costs addressed by the defendant were those in relation to Pleadings. The total amount claimed by the plaintiffs in respect of Pleadings is S$251,426.50. The defendant addressed three items totalling $143,326.28 without any suggestion as to the reduction that should be applied to them individually.

Costs

It should be remembered that until just before the trial began in early September 2022, the defendant had put the plaintiffs to proof in respect of the frauds committed by Mr Lescaudron. It was necessary for the plaintiffs to review these rather lengthy materials carefully so that it could meet the challenge that the defendant had set it. In the circumstances, this does not present as a plainly disproportionate or unreasonable amount of costs. These costs are reasonable.

Costs

Although it is unnecessary to decide whether there was illogicality in the defendant’s claim, the plaintiffs’ submissions are clearly correct. The facts of this case spanned years from 2005 to at least 2015 with the necessity to analyse the investments and the defendant’s conduct as it dealt with or failed to deal with the Trust assets. The plaintiffs had to review the investments in the context of the defendant’s resistance to any recognition or admission of its breach of trust (until the tenth day of the trial). In the circumstances, this does not present as a plainly disproportionate or unreasonable amount of costs. These costs are reasonable.

Costs

The plaintiffs’ submissions on this item are persuasive. It is always dangerous to equate succinctness or economy of words in a final product with a lack of application or substantive effort. Clearly these were significant defences that the plaintiffs had to meet and deserved careful analysis and time for proper consideration. These costs are reasonable.

Costs

The next category of costs addressed by the defendant are the amounts claimed in respect of Case Management Conferences (“CMCs”).

Costs

The first item addressed by the defendant is in relation to a pre-trial conference on 9 March 2021 in the amount of S$12,136.81. It submitted that this claim should be excluded because it relates to Pre-Transfer Costs”.

Costs

The plaintiffs submitted that these costs are in respect of work which was done following the pre-trial conference on 9 March 2021, including the solicitors’ preparation and extraction of the Order of the Court, correspondence with the solicitors for the defendant and the plaintiffs in respect of same, and research on and advice to the plaintiffs on the consequences of the transfer of the Suit to the SICC. It was submitted that the plaintiffs are only claiming 16.67 hours for such work which, it was submitted, is “eminently reasonable”.

Costs

Clearly, these are not Pre-Transfer Costs and the plaintiffs are entitled to them.

Costs

The next item is the plaintiffs’ claim for S$130,812.71 in relation to the CMC on 27 April 2021 which the defendant claimed is “exorbitant”. It submitted that the bulk of the hearing was in respect of the plaintiffs’ appeal against 28 categories of particulars which they had been ordered to provide in HC/RA 46/2021 (“RA 46”). It was submitted that the costs of and incidental to that hearing have been agreed between the parties at S$8,000 (all-in) to be paid by the plaintiffs to the defendant. Accordingly, the defendant submitted that the plaintiffs should not be claiming costs for work done in respect of this Summons.

Costs

The defendant also submitted that the balance of the hearing was in respect of administrative matters with the main preparation work being in relation to the Case Management Bundle. It submitted that it was “inconceivable” that a total of 173.50 hours with costs of S$130,812.71 should have been properly incurred on a CMC.

Costs

The plaintiffs submitted that there is no basis for the defendant to claim that this amount of work or costs are “exorbitant”. It was submitted that the defendant’s contention that these costs relate to RA 46 is “completely baseless” as the plaintiffs had explained in the 20 June Schedule that such costs had been excluded.

Costs

One of the complexities to this claim was the need for exclusion of the costs relating to the appeal in respect of the particulars that had been ordered. In trying to assess the reasonableness of the claim the Court will obviously make a judgment having regard to numerous matters including the point in the litigation at which the CMC took place. The plaintiffs’ criticism of the defendant’s use of the term “administrative” is understandable but it is not an incorrect description of some of the work of a case management judge. It should not be understood that this means that the work is unimportant or without significant consequences for clients which in many instances requires careful advice from their legal representatives. However, the difference in nomenclature between “administrative” and “case management” does not really assist in the assessment of the reasonableness of the claimed costs.

Costs

The amount in question is certainly higher than the claims for the other CMCs in the Form 24 and prima facie may present as disproportionate. However, as has been said, the costs incurred by the defendant have not been proffered for a comparison and the basic comparison with other CMCs may not be apt. The description of what had to be done and what was done in respect of the preparation and settling of the Case Management Bundle for the CMC and the consideration of the process of preparation for trial and advising thereon at that stage of the litigation was obviously very important.

Costs

Notwithstanding the possible prima facie presentation of the amount claimed by the plaintiffs being disproportionate, the explanations given by the plaintiffs and the lack of any comparative costs being provided by the defendant have dispelled that possible presentation. These costs have not been shown to be unreasonable.

Costs

The plaintiffs submitted that as the Court had informed the parties on 27 April 2021 of a hope that a consent order for mediation might be made on 17 June 2021, the plaintiffs had discussed that option both internally and with the defendant. The plaintiffs further submitted that prior to the CMC being vacated, the Amended Case Management Bundle was due to be filed on 8 June 2021 and they prepared amended drafts of the Agreed Case Memorandum and List of Issues which were sent to the defendant’s solicitors on 3 June 2021. In all those circumstances, the plaintiff submitted that these costs should be allowed.

Costs

The explanation given by the plaintiffs is accepted and the costs have not been shown to be unreasonable.

Costs

The defendant submitted that these claims are excessive and disproportionate for administrative hearings covering issues such as those timelines and discovery applications, bifurcation of proceedings and AIECs. This is said to be particularly so where the costs of the bifurcation application have already been dealt with in respect of SUM 32.

Costs

The defendant noted that the costs of other CMCs in the Form 24 are on average approximately S$15,000 to S$20,000. It submitted that if these are the reasonable costs, then the costs of the nine CMCs as claimed would be less than S$200,000. However, the plaintiffs have claimed a total of S$401,062.82, or 540.50 hours, for work done in relation to 11 CMCs, of which two were vacated.

Costs

The plaintiffs submitted that the defendant’s general submission in relation to the average cost of CMCs is “completely arbitrary”. It was also submitted that the defendant is not entitled to choose from the plaintiffs’ breakdown of costs in its Form 24 and claim that some of the costs are more reasonable than others simply because they fall within a range which the defendant is willing to pay. The plaintiffs submitted that the defendant has not explained why a range of approximately S$15,000 to S$20,000 is reasonable in circumstances where each CMC would deal with different matters, the preparatory work for which would not be the same. Some take longer than others, and there is simply no basis to assert that the same amount of costs would apply to each CMC.

Costs

As described earlier, the plaintiffs have submitted that it is inappropriate for the defendant to proceed in the manner that it has, having regard to the fact that it has failed to provide its own costs in the proceedings (other than those in relation to its experts). The plaintiffs submitted that the defendant must furnish its own time costs to justify its objections. They made a very powerful submission in relation to the defendant’s explanation for not providing those costs as follows (footnotes omitted):

Costs

In all the circumstances, the plaintiffs submitted that the defendant’s objections to the plaintiffs’ claimed costs for CMCs should be “wholly disregarded”.

Costs

Obviously from the analysis above the defendant’s submissions have not been wholly disregarded. However, in all the circumstances it is not possible to accept its submissions. It has not been shown that these costs are unreasonable. These costs are reasonable.

Costs

The next category of costs to which the defendant takes objection is in respect of disclosure. The plaintiffs claim the sum of S$107,199.74 for work done reviewing documents disclosed by the defendant and corresponding on specific discovery requests between 9 March 2021 and 30 June 2021.

Costs

The defendant recounted the history from the time it filed its List of Documents on 29 December 2020 to 9 March 2021, the date on which the order was made for the Suit to be transferred into the SICC. It was submitted that substantial time must have already been spent by the plaintiffs reviewing the disclosed documents and which are already accounted for as pre-transfer costs.

Costs

The plaintiffs reiterated the need for the defendant to disclose its own time costs in the absence of which it was submitted that the only reasonable inference the Court would draw is that the defendant incurred similar costs for disclosure in the Suit and that the plaintiffs’ claimed costs fall within an appropriate range.

Costs

The defendant submitted that it is not reasonable for the plaintiffs to expect the defendant to bear the costs of more than S$130,000 for 250 hours of work if the plaintiffs saw fit to instruct their Singapore lawyers to conduct “a duplicative review”. It was submitted that even after the plaintiffs’ purported review of the documents in the Bermuda Proceedings for relevance, they did not feature significantly in the Singapore proceedings.

Costs

With reference once again to the defendant’s failure to provide any evidence in relation to its own costs, the plaintiffs submitted that the defendant’s objections to these amounts should be disregarded.

Costs

This was a case not free from complexity in which the plaintiffs were put to proof of facts that one might have considered were otherwise obvious for admission, such as Mr Lescaudron’s fraud over the years. It was a case that was very hard fought requiring careful attention to the finest of detail in a complex web of conduct. The amount claimed by the plaintiffs for disclosure has not been shown to be unreasonable. These costs are reasonable.

Costs

The next category in respect of which the defendant objects is the costs incurred by the plaintiffs in dealing with the expert evidence. The defendant claimed that the costs of S$164,305.30 for 253.5 hours for the work done between 9 March 2021 and 28 March 2021 are not reasonable or justified. The defendant submitted that the list of expert issues that was the subject of the claim is only five pages long and there is overlap because of the involvement of the plaintiffs’ experts in the Bermuda Proceedings.

Costs

The plaintiffs submitted again that the length of the final product is not always a good indicator of the work that was necessary to produce such a document. Again, the plaintiffs raise the fact that the defendant has not adduced any evidence of its own time costs in relation to the agreed list to show that its costs are significantly lower, with the compelling inference that the plaintiffs’ costs would fall within an appropriate range.

Costs

Finally on this topic, the defendant submitted that the amount claimed by the plaintiffs of S$23,885.30 for 33.17 hours of costs for dealing with the experts in relation to closing submissions, reply submissions and oral submissions was disproportionate when one reviews the amount claimed by the plaintiffs’ experts in that same period.

Costs

The plaintiffs submitted that the amount claimed does not solely relate to discussions with their experts. The defendant made a claim that there were wasted costs because the plaintiffs’ experts prepared a supplemental report. However, the plaintiffs have explained that those matters within that report were relevant to the plaintiffs’ preparation of their reply closing submissions and for the oral closing hearing on 16 and 17 February 2023.

Costs

Although the defendant suggested that some of the costs related to the experts dealing with the Settlement, the plaintiffs indicated that this was certainly not the case.

Costs

The expert issues were very significant and in parts difficult aspects of the proceedings. One of the experts even described the consideration of some aspects of the issues as requiring a “cold towel”. The work that had to be done to prepare this part of the case for the plaintiffs was clearly onerous, time consuming and very significant. It is simply not possible in the absence of any comparative exercise to determine that the costs claimed are other than reasonable. These costs are reasonable.

Costs

The next category of costs to which the defendant objects are the amounts claimed by the plaintiffs for affidavits and preparation for hearings.

Costs

The next aspect of this category in respect of which the defendant objects is the plaintiffs’ claim of S$80,038.39 for 131.83 hours of work for correspondence with the defendant and the plaintiffs in respect of the restated financial statements and issues with the plaintiffs’ disclosed documents. The defendant submitted that these costs are unreasonable, particularly because the issues with the plaintiffs’ disclosed documents arose from the plaintiffs’ failure to provide complete and proper listings and disclosure. The defendant highlighted missing and/or wrong attachments to correspondence and documents disclosed that did not match the descriptions provided in the lists.

Costs

The plaintiffs also emphasised that the defendant made 281 requests of the plaintiffs, excluding sub-requests. The work that had to be done for the plaintiffs to respond to those requests took close to two months and the plaintiffs were only able to respond on about 15 April 2022. The plaintiffs submitted that the defendant’s claim that they are not entitled to claim costs for such extensive work is unjustified and patently unreasonable.

Costs

The next item in this category about which the defendant complains is the plaintiffs’ claim for S$983,978.54 for 1379.99 hours of work over the period 29 March 2022 to 4 September 2022. The plaintiffs have divided that figure into two periods, 29 March 2022 to 8 June 2022, and then 9 June 2022 to 4 September 2022. The defendant submitted that it does not know how much time was spent on each component of trial preparation as described in the Form 24 or if the costs were incurred on witness meetings, preparation for cross-examination or consideration of documents and affidavits. It was submitted therefore that the defendant could not be satisfied that items were not being “doubly claimed”.

Costs

The plaintiffs’ response to these complaints is to suggest that the defendant could adduce evidence of its own time costs if it wished to dispute the plaintiffs’ Form 24 information. The plaintiffs also submitted that it was difficult to understand the suggestion that the plaintiffs may have “double-claimed” for costs incurred in this category. It was submitted that the Form 24 is clear in that the work identified dealt only with the preparation for trial. It was made clear that it was only concerned with witness meetings for the preparation of trial and should have been understood as the Form and the relevant footnote made clear.

Costs

The next item within this category in respect of which the defendant complains is in relation to closing submissions which the defendant claims are prima facie “excessive”. The defendant reiterated its submission that it is “plainly unreasonable” for the plaintiffs’ legal team to incur more costs for closing submissions than during the three-week hearing.

Costs

The costs to which objection is taken are the plaintiff’s claims for costs of S$496,747.52 or 745.83 hours, for work done in relation to the plaintiffs’ closing submissions dated 18 November 2022; S$306,232.86 or 391.33 hours for the work done in relation to the Reply Submissions dated 20 January 2023; and S$49,133.79 or 85.67 hours for work done in relation to the Agreed Chronology. In relation to this last-mentioned matter, the defendant submitted that it prepared the first draft of the Agreed Chronology after the plaintiffs declined to do so, despite having carriage of the Suit.

Costs

The plaintiffs submitted that the defendant’s comparison between the work in the five months post the hearing of evidence and the final oral submissions with the work done during the hearing is “illogical”. They submitted that it is entirely reasonable that the plaintiffs’ costs for post-trial or post-hearing work would be higher, given that it was done over a period of close to five months compared to the three weeks of the hearing. They emphasised the length of the written submissions and the need for the plaintiffs to review the defendant’s submissions and to reply to them.

Costs

The other matter to which the plaintiffs referred was the fact that they did not claim for the costs of their foreign counsel who assisted during the trial.

Costs

The plaintiffs took objection to the defendant’s suggestion that it declined to prepare the first draft of the Agreed Chronology. It was submitted that the plaintiffs’ solicitors simply asked the defendant’s solicitors when they would be providing the Draft Agreed Chronology. It was also submitted that the plaintiffs were at the same time preparing their own Draft Agreed Chronology and were able to suggest extensive amendments to the defendant’s document promptly on 8 November 2022. It was submitted that there is no reason that the plaintiffs should be disentitled from claiming the costs of their work done in this regard.

Costs

The final item in this category is the defendant’s complaint in respect of the plaintiffs’ claim for costs of S$482,115.93, or 595.50 hours, for what was described as “work done post-trial including in relation to NONAs, outstanding disclosure for Defendant and for oral closing hearing”. The defendant complains that this is more than 10% of the plaintiffs’ total claim for costs and it is unclear how such post-trial wrap-up work could be so extensive.

Costs

In any event, the plaintiffs submitted they are not claiming significant costs for reviewing the documents which the defendant produced at the end of the trial, nor are they claiming that the bulk of the work was preparing for the two days of oral closing submissions.

Costs

The plaintiffs submitted that the costs claimed in that regard are justified because the plaintiffs’ counsel had to review the parties’ closing submissions and documents afresh and consider the material issues and points to raise at the oral closing before the Court. They emphasised that it was not a matter of simply reading out what had been written in the parties’ closing submissions. It was submitted that the defendant’s approach of simply relying on the fact that written submissions had already been completed ignores the realities of litigation and the nature of oral submissions. The plaintiffs submitted that it is obvious that considerable additional preparatory work was done ahead of the oral closing submissions. They claim that the defendant’s objections to their claimed costs for affidavits and hearings are unsupported by evidence and should be wholly disregarded by the Court.

Costs

In the absence of the provision of its own costs for a comparative exercise, the defendant made the comparison of the costs incurred by the plaintiffs in the different time periods to suggest they are unreasonable. This was not a helpful exercise. The enormous amount of work that had to be done in this case for both the plaintiffs and the defendant to present their cases cogently to the Court was obvious. It is simply not possible in the circumstances to find that the plaintiffs’ costs for this aspect of the work were unreasonable. These costs present as reasonable.

Costs

The defendant submitted that a 25–30% discount on the plaintiffs’ actual costs is appropriate in the circumstances of: (a) the two important issues on which the plaintiffs did not prevail; and (b) disproportionately high quantification of costs claimed by the plaintiffs.

Costs

The defendant submitted that a reasonable amount of Post-Transfer Costs would therefore be S$3.5m, which was an increase of half a million on the defendant’s suggested amount of S$3m in its earlier submissions.

Costs

The plaintiffs will be awarded S$4,330,028.73 for Post-Transfer Costs.

Costs

The plaintiffs’ Quantum Experts’ Fees amount to S$2,382,893.25. The defendant has counter-proposed costs of S$1,750,000.

Costs

The defendant submitted that although it “incurred higher costs overall” for its experts than the plaintiffs’ experts “over the entire period”, the bulk of its costs were incurred in the preparation of the experts’ reports in the period from the end of February 2022 to the end of May 2022.

Costs

It was the comparison of the work done between 1 June and 26 September 2022 that was the basis for the defendant to submit that the plaintiffs’ expert fees were “exorbitant”. As can be seen from the tables above, the defendant’s costs were S$436,137.59 and the plaintiffs’ costs were S$1,108,525.38. The defendant submitted that this was about 2.5 times the cost of the defendant’s experts. If one simply applies the analysis that the defendant has adopted in respect of these fees, then the same could be said of the defendant’s experts’ fees in relation to the work done up to May 2022.

Costs

It is obvious that the defendant had to deal with consequential amendments to its defence by reason of the amendment to the Statement of Claim. The defendant claimed in its earlier submissions that the costs of those amendments far exceeded S$10,000, and “in all likelihood” would be “well in excess of the reasonable costs the plaintiffs are entitled to under SUM11”.

Costs

The defendant submitted that each party should bear their own costs, which was an adjustment from its position in the written submissions that were filed in 2022, which was for the sum of S$15,000 to be paid by the plaintiffs to the defendant.

Costs

The plaintiffs seek S$25,000, being an original claim of S$35,000 less an allowance of S$10,000 for the defendant’s costs thrown away by reason of the amendments.

Costs

In all the circumstances and doing the best one can in respect of these matters without finer detail of the costs, it is fair and reasonable that the defendant should pay the plaintiffs’ costs of S$15,000 in respect of SUM 11. There will be an order in those terms.

Costs

SUM 49 was a by consent administrative summons for directions which required the extraction of the order that reflected the parties’ consent. An order was made on 24 August 2022 that, by consent, the costs of SUM 49 were to be costs in the cause. The plaintiffs are seeking costs of S$3,500. The plaintiffs submitted that the parties corresponded extensively and then had one meeting between counsel touching upon the directions to be sought in SUM 49.

Costs

It appears that the parties may have expended more costs on dealing with the difference between them in respect of these costs than either party seeks. However, in all the circumstances, the reasonable costs of the plaintiffs in respect of SUM 49 will be awarded in the amount of S$3,500.

Costs

The award of interest is to compensate the party entitled to costs “for the time value of the costs that have been ordered until payment is made”. In Kiri Industries Ltd v Senda International Capital Ltd and another [2022] 3 SLR 174 at [120], the SICC observed as follows:

Costs

The parties have agreed to interest on costs being fixed as simple interest at the rate of 5.33% per annum but disagree on the date from which interest should start to run.

Costs

The plaintiffs’ position is that interest on the agreed costs should apply from the date of the parties’ agreement on costs until the date of full payment. Accordingly, the plaintiffs submitted that interest has already started accruing for the agreed items and amounts to S$82.87 per day to the date of payment. The plaintiffs submitted that interest on the contested costs that are determined by the Court should apply from the date of the Court’s order.

Costs

The defendant submitted that interest on both the agreed costs and the costs determined by the Court should run from the date of the Court’s order to the date of full payment.

Costs

The plaintiffs submitted that the simple fact that an order had been made directing the parties to record any agreed orders did not suggest that it was intended to depart from the “position in law” that interest on costs agreed between the parties should run from the date of the parties’ agreement. The plaintiffs also submitted that there was no certainty as to when an order on costs would be made, and therefore, if the defendant’s submission were to be accepted, when interest on the agreed costs would start to accrue. It was submitted that such an approach would be unfair to the plaintiffs.

Costs

The plaintiffs submitted that they should be appropriately compensated for the time value of the costs to which they are entitled, and that interest should run on the agreed costs from the date of agreement.

Costs

The direction to the parties was to bring in Short Minutes to reflect the findings in the Judgment and any other orders that are agreed between the parties. One matter that has been agreed is that the defendant is to pay the plaintiffs’ costs of some of the applications and other aspects of the proceedings in the amount of S$567,471.45. The other costs upon which the parties could not submit an agreed order are the contested costs that have been determined in the plaintiffs’ favour for the reasons outlined above.

Costs

Although the parties were able to agree on the interest rate, they asked the Court to determine the date from which interest should run on those agreed costs.

Costs

Order 59 rule 37 of the Rules does not apply to this determination and the SICC has complete discretion to award costs that are reasonable. It also has the same discretion to determine the date from which interest should accrue on costs that remain unpaid.

Costs

Notwithstanding the defendant’s submission that from a practical point of view it would be sensible to have interest accruing from one date (the date of the order of the Court) rather than numerous dates (the dates of the parties’ various agreements), this outcome would not be reasonable in the circumstances. The defendant has agreed to pay the plaintiffs costs which are amounts in respect of which they have been out of pocket for some time. The plaintiffs should be compensated from the date of those agreements and interest should accrue from the dates of the agreements to the date of full payment.

Costs

The respective dates of agreement for the various categories of costs are as follows:

Costs

An order will be made that interest is to accrue on the amount of agreed costs from the date of the respective agreements as to costs. Costs of S$1,500 in respect of SIC/SUM 21/2022 were ordered on 20 June 2022 and interest will accrue from that date.