Case Summaries

CBX and another v CBZ and others (Case Summary)

8 October 2020

Case summary

Singapore International Commercial Court Originating Summons No 1 of 2020

CBX and another v CBZ and others [2020] SGHC(I) 21

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Decision of Anselmo Reyes IJ:

Outcome: SICC orders the Plaintiffs to pay the Defendants’ costs of S$150,000 (all-in), plus simple interest thereon at 5.33% per annum from the date of the judgment until payment by the plaintiffs.

Background

1. In CBX and another v CBZ and others [2020] SGHC(I) 17 dated 16 July 2020, the court dismissed the Plaintiffs’ application to set aside parts of two Partial Awards dated 5 June 2019 and the whole of a Final Award (Costs) dated 9 August 2019. The present matter concerned the costs of the Plaintiffs’ abortive application. It was common ground that (a) the Defendants having prevailed, they should have the costs of the Plaintiffs’ application; and (b) simple interest at 5.33% per annum should accrue on any costs awarded to the Defendants. The parties differed, however, in respect of the quantum of the costs to be awarded.

 

2. This case had been transferred from the High Court to the Singapore International Commercial Court (“SICC”) pursuant to an order by the Deputy Registrar on 14 February 2020 (the “transfer order”). When ordering the transfer, the Deputy Registrar reserved for the SICC’s determination the question of whether Appendix G “should continue to apply to the assessment of costs in respect of proceedings in and arising from [the Plaintiffs’ application], after its transfer to the [SICC]”. The parties’ dispute over quantum was essentially a dispute whether the court should assess the Defendants’ pre- and post-transfer costs in accordance with the costs guidelines in Appendix G of the Supreme Court Practice Directions (“Appendix G”), or with O 110 r 46(1) (“Rule 46”) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed).

 

3. The Defendants contended that the transfer order had left it to the court to determine the extent to which, following transfer to the SICC, Appendix G should (if at all) continue to apply to pre- and post-transfer costs incurred by the parties. That being the case, they submitted that the court should apply Rule 46 in preference to Appendix G, and claimed S$150,000 (all-in) as their “reasonable costs” under the aforesaid rule.

 

4. The Plaintiffs argued that such amount was exorbitant. They submitted that the Deputy Registrar’s transfer order had only left it to the court to determine whether post-transfer (as opposed to pre-transfer) costs should be assessed by reference to Appendix G or Rule 46. The Plaintiffs claimed that by the transfer order, Appendix G should be used in the assessment of pre-transfer costs. On this basis, it was said that the Defendants were entitled to no more than:

  • S$35,000 (all-in), if pre- and post-transfer costs were assessed by reference to Appendix G; or
  • S$45,000 (all-in), if pre-transfer costs were assessed under Appendix G and post-transfer costs are assessed on the basis of Rule 46.

5. The Plaintiffs also asked the court to discount any costs awarded to the Defendants by 20%. This was on the basis that following the court’s judgment of 16 July 2020 and contrary to an order of the High Court dated 20 January 2020 (“Order”), the Defendants allegedly publicly disclosed confidential details relating to this case, including details of the parties in the underlying arbitrations.

 

The court’s decision

6. The court made the two preliminary findings. First, these proceedings were not the appropriate forum for dealing with any alleged infraction of the Order. The court had not investigated the circumstances of the relevant incident. If the Plaintiffs were of the view that there had been a breach of the Order which needed to be sanctioned, they should take out an appropriate summons for that purpose (at [4]).

 

7. Second, as to the proper interpretation of the transfer order, the court held the following:

  • Seen in its factual context, the transfer order did not decide whether Appendix G should apply to pre- or post-transfer costs or both, but left it to the court to determine the appropriate scope for the application of Appendix G pre- and post-transfer (at [7]).
  • The Plaintiffs had stressed that during a pre-trial conference, they had stated that, if the case was to be transferred to the SICC, they wanted Appendix G to continue to apply to the assessment of costs. Where both parties agree that Appendix G is to apply post-transfer, the SICC could give weight to such mutual understanding consistently with the principle of party autonomy in international commercial contracts. But different considerations applied when only the party seeking recourse against an award intimates its concerns as to Appendix G continuing to apply. In the present case, a unilateral statement by the party applying to set aside an award that it would like Appendix G to continue to apply post-transfer could hardly constitute an understanding or concern among the parties that there should be no difference in the way that costs would be taxed as a result of the transfer (at [9]-[11]).
  • At a transfer hearing, the party seeking to set aside an award may certainly express its concern that Appendix G should continue to apply post-transfer. But it will need to give cogent reasons for such a state of affairs. Otherwise, the applicable costs regime (whether Appendix G, Rule 46 or some combination of both) will likely be left to the SICC judge hearing the application. Thereafter, in the normal course of events, once a case has been transferred to the SICC, parties should expect that as a matter of principle, in the absence of compelling justification to the contrary, the SICC will assess the entire costs of a setting aside application (or analogous proceedings relating to an arbitral award) on the basis of Rule 46. However, even where Rule 46 applied, it did not necessarily mean the SICC would pay no heed to Appendix G when assessing costs. In many situations, Appendix G could serve as a useful reality test or starting point against which to evaluate whether costs are or are not reasonable within the terms of Rule 46. Appendix G would only be of little or no assistance where the circumstances of a case are such that Appendix G cannot sensibly be said to have a realistic bearing on what the parties might reasonably be expected to spend to advance or safeguard their positions (at [11]-[12]).

8. The court then assessed the Defendants’ “reasonable costs” under Rule 46, and compared it with the figure obtained by applying Appendix G. The Defendants had quantified their actual total costs at S$394,195.10 (which was discounted by their legal representatives to S$335,065.84), and their disbursements at US$8,715.15 and S$11,633.23. Given the circumstances of the case, the court was satisfied that the costs of S$150,000 being sought by the Defendants were reasonable (at [13]-[16]).

9. The court was prepared to accept that if Appendix G was applied to pre- and post-transfer costs, the Defendants would be entitled to a maximum amount of S$35,000 (all-in). Comparing this to the S$150,000 (all-in) that the court had accepted as the Defendants’ reasonable costs, the question was whether there was any compelling reason to bring the figure of S$150,000 closer in line to S$35,000. The court did not think there was any such reason. The present case was not one where Appendix G could serve as a useful guide on the level of reasonable costs. The court thus ordered the Plaintiffs to pay the Defendants’ costs of S$150,000 (all-in). Simple interest at 5.33% per annum was to run on the amount of S$150,000 from the date of the judgment until payment by the Plaintiffs (at [20]-[21]).

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.