Lam Hwa Engineering & Trading Pte Ltd v Yang Qiang

Sundaresh Menon CJ (delivering the grounds of decision of the court):

[2] It was held by the taxing registrar at first instance that such expenses were not claimable. This decision was reversed by the District Judge (“DJ”) upon the respondent’s appeal. The appellant pursued the matter to the High Court which dismissed the appeal and affirmed the DJ’s decision that the travel expenses were claimable. Not content, the appellant sought and obtained leave to pursue a further appeal to us.

The DJ drew a distinction between travelling to attend court in Singapore and attendance in court and concluded that Jumabhoy did not preclude the former (see the GD at [17]–[18]).

[8] The DJ also considered and distinguished two other cases relied on by the appellant. He explained that in his previous unreported decision in DC 3227/2008, he had disallowed the plaintiff’s claim for his air fare from Australia to Singapore because the plaintiff was a Singaporean and there was no indication that he was permanently residing in Australia (see the GD at [30]–[31]). He also rejected the appellant’s reliance on The London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 (“London Scottish”), as that case involved the issue of whether a lawyer acting in person should be compensated in respect of his own time spent on the matter as if he had engaged a lawyer (see the GD at [32]).

[11] The High Court Judge (“the Judge”) dismissed the appellant’s appeal. Her decision is reported at Lam Hwa Engineering & Trading Pte Ltd v Yang Qiang [2013] 2 SLR 524 (“the Judgment”).

[12] The first ground advanced by the appellant before the Judge was that the combined effect of O 35 r 1 and O 38 r 22 of the ROC precluded a litigant but not a witness from recovering travel expenses. These two provisions read as follows:

The appellant submitted that a litigant who does not attend court runs the risk that his action (or defence) may be dismissed entirely pursuant to O 35 r 1. On this basis, it was submitted that a litigant has an obligation to attend court and any travel expenses incurred simply to meet this obligation should not be recoverable. The appellant also submitted that whereas a witness is entitled to be paid reasonable costs for his court attendance (on the basis of O 38 r 22), a litigant has no similar entitlement.

[13] The Judge rejected these arguments. She held, contrary to the appellant's submissions, that O 35 r 1 of the ROC did not make it mandatory for a litigant to attend court in person because he could always instruct counsel to appear on his behalf (see the Judgment at [19]). Even if O 35 r 1 did compel a litigant-in-person to appear in court, it just did not follow that his travel expenses would therefore not be recoverable (see the Judgment at [20]). Furthermore, O 38 r 22 merely stipulated the rights and duties of a witness as against the litigant who had subpoenaed him to attend court; it was not a provision that had any bearing on the question of the entitlement of the parties to a matter that was being litigated to claim disbursements against one another (see the Judgment at [20]).

[17] Before us, the appellant contended, in the main, that:

(a) the travel expenses of a litigant qua a litigant are not recoverable as a matter of principle pursuant to the rule purportedly laid down in London Scottish;

(b) no distinction should be drawn between the capacity of the litigant as a party and as a witness. Such travel expenses are therefore not recoverable whether or not the litigant is also going to appear as a witness; and

(c) where a plaintiff partially succeeds in his claim, justice and considerations of proportionality require that as a general rule, only a corresponding proportion of his disbursements should be recoverable.

[18] In response, the respondent submitted that:

(a) the travel expenses of a litigant are recoverable in principle because the rule in London Scottish has no application;

(b) there is case law support for the proposition that the travel expenses of a litigant qua a witness are recoverable; and

(c) the overriding consideration for claims for disbursements is that of reasonableness, not proportionality.

[22] We note that Lin Jian Wei was (one of the many cases) cited by Mr Pillai in his submissions. However, it appears that several points arising from that case were not picked up. If the legal framework in O 59 of the ROC as interpreted in Lin Jian Wei had been properly considered, it would have been obvious that the matter was entirely straightforward. The respondent, injured by the appellant’s tort, could not remain in Singapore. He had to return to China; and subsequently had to return to Singapore for the trial where he was both the plaintiff and a key witness. Moreover, it was the appellant that had caused the proceedings to continue until the very first day of the trial when it decided to settle. This resulted in the obvious need for the respondent to fly back to Singapore in anticipation of the trial which he had every reason to think would be proceeded with. In all the circumstances, we had absolutely no doubt that the travel expenses incurred by the respondent were both reasonable and reasonably incurred. The quantum of these expenses was proportionate when considered on an item by item basis as well as in the aggregate. There was simply no reason at all why the travel expenses should not be allowed under O 59 of the ROC.

[23] Instead of focusing on the direct and, in our judgment, wholly straightforward application of the relevant law to the present facts, the courts that had to hear this matter before us appeared to have been side-tracked by Mr Pillai’s reliance on London Scottish. Mr Pillai claimed that the following extract from the judgment of Bowen LJ in that case laid down a general principle of law precluding the recovery of a successful litigant’s travel expenses (London Scottish at 876–877):

[24] Serious consideration might have been given to what relevance the 19 century English case of London Scottish, and the 17 century commentary of Lord Coke, could possibly have to the law of Singapore in the 21 century in relation to an issue governed by a legislative provision. Of course, old cases are not necessarily bound to be irrelevant. Certain legal principles are universal, and in that sense, perhaps also timeless. However, where the subject-matter concerned is ultimately shaped by prevailing policy considerations and societal conditions, archaic materials are often likely to be irrelevant. This is especially so where there are statutory provisions to address the very question.

[26] That the word “travel” was probably meant in fact to be “trouble” should have been apparent on a close and complete reading of London Scottish. In that case, the plaintiff’s counsel had referred to Lord Coke’s commentary in his argument. Notably, instead of “travel”, the word used was “trouble” (London Scottish at 872–873):

[27] In addition, Bowen LJ’s other comments, both before and after citing Lord Coke’s commentary, further support the view that he had in mind the “trouble” that a litigant takes to contest the case rather than the expenses of his “travel”, the latter standing alone in a single reference without any other context to support the conclusion that it, in fact, was the intended term (London Scottish at 876–877):

[28] It should thus have been evident from this contextual analysis of London Scottish that it could not fairly be advanced in support of the proposition that Mr Pillai was contending for; much less support the labour, expense and trouble involved in an appeal to this court where the subject-matter involved a sum of $1,208. If nothing else, our observations contained in the last three paragraphs might have the salutary effect of reminding lawyers of the dangers of relying on selective quotations from a case taken out of their context.

[34] It is evident that there was absolutely no merit in the appeal and we therefore dismissed it. We now set out some observations about the manner in which this case was conducted.

[36] Even if it was genuinely thought that there might be some legal merit in the appellant’s case, this did not displace Mr Pillai’s duty to conduct a proper risk-benefit evaluation at each significant stage of the proceedings. This important duty is enshrined in r 40 of the Legal Profession (Professional Conduct) Rules (Cap 161, R1, 2010 Rev Ed) (“PCR”), which expressly requires an advocate and solicitor in appropriate cases to “evaluate with a client whether the consequence of a matter justifies the expense or the risk involved”. This rule was previously put under the spotlight in Lock Han Chng Jonathan (Jonathan Luo Hancheng) v Goh Jessiline [2008] 2 SLR(R) 455 (“Jonathan Lock”) at [46]. In Jonathan Lock, the amount in dispute, which was about $60, escalated into a contest of wills between two solicitors, resulting in a waste of judicial time and unnecessary expenditure in terms of court fees and disbursements that exceeded $100,000 even before the hearing. We echo the sentiments that were expressed in Jonathan Lock. In the event, we accepted Mr Pillai’s assurance at the hearing that his “real” client, the insurer for the appellant, had been duly advised of the appropriate considerations and had nonetheless, with the benefit of such advice, instructed him to pursue the matter at each stage. However, we sound a note of caution for future reference: lawyers pursuing a similar course would be well-advised to have their advice to their clients and their clients’ instructions properly documented.

[39] Rule 55 of the PCR is apposite:

[40] We were aware that the appellant had been granted leave by the respective lower courts to appeal at each stage. This did little, in our judgment, to mitigate the solicitor’s conduct in this case. The grant of leave to appeal by a lower court merely provides the opportunity to pursue a matter further. It does not displace the solicitor’s duty to undertake a proper assessment as to proportionality under r 40 of the PCR (see [36] above). Neither does it displace counsel’s duty to the administration of justice to see if it would really be in the overall interests of justice to proceed further (see [37]–[38] above).

[44] We conclude with a reminder to members of the legal profession of their solemn duty to discharge their professional obligations to their clients and to the court conscientiously.