Zyfas Medical Co (sued as a firm) v Millen nium Pharmaceuticals, Inc and another [2026] SGHCR 9

Costs

This application raised an interesting but narrow issue: whether an assessment of the costs in respect of a bifurcated trial that dealt with issues of liability should be deferred pending the completion of assessment of damages proceedings that do not concern damages arising from any liability established in the bifurcated trial, but rather an inquiry into losses allegedly caused by an interim injunction that was subsequently set aside. The respondents took the view that guidance in Court of Appeal cases required that the assessment of costs proceedings should be deferred so that the Court conducting the assessment of costs is able to consider whether the costs claimed are proportionate to the “stake in the controversy”. As explained below, I rejected this argument because the Court of Appeal’s guidance did not apply to the present case. The assessment of damages proceedings in the present case related to a separate and distinct inquiry concerning the impact of an interim injunction, and not the substantive claims that were at stake at the liability trial.

Costs

The applicant, Zyfas Medical Co (“Zyfas”), filed HC/BC 11/2026 (“BC 11”) to assess the costs that it should be paid following its successful defence of patent infringement claims brought by Millennium Pharmaceuticals, Inc. and Johnson & Johnson Pte. Ltd. (collectively, the “Respondents”) in HC/S 817/2019 (“Suit 817”). The Respondents brought patent infringement claims against Zyfas following Zyfas’s registration of a product with the Health Sciences Authority.

Costs

The trial for Suit 817 was heard before Dedar Singh Gill J. Judgment was delivered in Suit 817 on 29 December 2023, dismissing the Respondents’ claims against Zyfas for patent infringement and awarding costs to Zyfas: see Millennium Pharmaceuticals, Inc and another v Zyfas Medical Co (sued as a firm) [2024] 5 SLR 1435 at [289] (“Millennium Pharmaceuticals”). The Court essentially found that one of the patents was invalid and the other had not been infringed.

Costs

Zyfas filed BC 11 on 29 January 2026 to seek an assessment of the costs and disbursements it was awarded in Millennium Pharmaceuticals. Zyfas seeks a total amount of S$1,027,867.46.

Costs

The Respondents relied primarily on the Court of Appeal’s decisions in Lin Jian Wei and another v Lim Eng Hock Peter [2011] 3 SLR 1052 (“Lin Jian Wei”) and Koh Sing Chong Freddie v Chan Cheng Wah Bernard and others and another appeal [2013] 4 SLR 629 (“Freddie Koh”). The Respondents argued that the assessment of the trial costs should be deferred until damages were assessed. They contended that the Registrar must be able to gauge the costs against the “stake in the controversy” and that proceeding to tax a S$1 million bill without knowing the value of the underlying claim would lead to a disproportionate assessment.

Costs

The Respondents further argued that there was a substantial likelihood that damages would be nominal or fall below S$250,000 (this being the District Court limit). The Respondents submitted that if such damages were awarded, that would impact the appropriate scale for the assessment of costs.

Costs

Zyfas argued that the Respondents’ application in SUM 503 was misconceived because the pending assessment of damages was a separate inquiry arising from the Respondents’ wrongful injunction and did not affect Zyfas’s entitlement to trial costs. Zyfas contended that the assessment of damages was a separate proceeding – a consequential matter arising from the Respondents’ unsuccessful interim relief – which did not affect Zyfas’s status as the successful party in the liability trial. Zyfas submitted that even nominal damages at the inquiry would not affect Zyfas’s entitlement to trial costs.

Costs

The Court of Appeal’s observation was made in the concluding paragraphs of the judgment where the Court observed that the quantum of damages that had been awarded in that case ($210,000) was lower than the amount of costs that the Court of Appeal eventually awarded (this being $250,000). The Court of Appeal noted that the Judge below was not aware that damages would be assessed at $210,000 because the Judge assessed costs before the Court of Appeal quantified the damages: see Lin Jian Wei at [82].

Costs

The observations in Lin Jian Wei were reiterated in Freddie Koh at [90]. The Court of Appeal noted that the plaintiffs in the court below raised bills of costs and sought to have them assessed without waiting for the assessment of damages. The Court of Appeal in Freddie Koh then referred to the views expressed in Lin Jian Wei. The Court of Appeal explained that the rationale for the practice of waiting until damages are assessed is that Appendix 1 to O 59 of the ROC 2014 required the court assessing the costs to have regard to the principle of proportionality, and the amount or value of any money or property that is involved. The Court of Appeal then emphasised that these provisions in Appendix 1 to O 59 of the ROC 2014 suggested there was an “incontrovertible link between the costs to be awarded and the judgment amount”. I set out Freddie Koh at [90] for reference:

Costs

The Court of Appeal’s observations in the two cases were made in the context of cases where the trial only established issues of liability, with damages to be assessed or agreed separately. In such cases, the Court would not be able to consider the proportionality of the work done and legal costs incurred for the liability phase. This is because the value of what was at stake at the liability phase would not be apparent until the assessment of damages has been completed.

Costs

Given these circumstances, there was no basis to wait for the assessment of damages proceedings to be completed before BC 11 proceeded. The assessment related to a separate and distinct inquiry that did not affect the proportionality analysis for the costs of defending the substantive patent infringement claims. The Court dealing with BC 11 was fully able to assess the proportionality of the amounts claimed in BC 11. The proportionality analysis would be done by comparing the work done for the trial to what was at stake at the trial – namely, the validity of the patents and whether the patents were infringed. This leads me to the following general principle: where the costs being taxed relate to concluded proceedings to establish legal rights whose value is not reflected in or contingent on a pending damages assessment, the Court may proceed with assessing the costs for the concluded proceedings without awaiting the assessment of damages. This approach is consistent with the general principle articulated in Lin Jian Wei and Freddie Koh.

Costs

I ordered the Respondents in BC 11 to pay Zyfas the costs of SUM 503 fixed at S$4,200, all in for the following reasons: