31 August 2020
Sheila Kazzaz and another v Standard Chartered Bank and others  SGHC(I) 19Singapore International Commercial Court — Suit No 4 of 2018
Decision of Anselmo Reyes IJ:
Outcome: The Court orders the plaintiffs to bear the defendants’ legal fees of S$1,100,000 and disbursements of S$113,177.12, £178,672.23, AED88,844.73, and US$4,336.83, with simple interest at 5.33% per annum to run on all such amounts from the date of the judgment until payment by the plaintiffs.
1 The Court had previously dismissed the plaintiffs’ claims against the defendants, and the Court of Appeal subsequently dismissed the plaintiffs’ appeal. Thereafter, the Court restored the assessment of costs of the action and directed that such costs be determined based on the parties’ written submissions. As the defendants prevailed, they were entitled to costs, but the dispute arose as to quantum.
2 The defendants claimed (a) legal fees of S$1.1m, and (b) disbursements of S$113,177.12, £178,672.23, AED88,844.73, and US$4,336.83. In support of their claim, the defendants relied on an indemnity clause (“Clause 14.1”) contained in the client agreements with the plaintiffs. On the other hand, the plaintiffs argued that the defendants were entitled to no more than legal fees of S$382,800 (or alternatively S$512,400 if costs were to be ordered on an indemnity basis) and disbursements of S$86,672.57, £90,538.02, AED88,844.73, and US$4,336.83. Specifically, the plaintiffs argued that (a) Clause 14.1 did not cover the present action; (b) Appendix G of the Supreme Court Practice Directions (“Appendix G”) should be accorded significant weight in the Court’s assessment of costs; (c) the defendants did not succeed in every argument advanced at trial; and (d) costs reserved in interlocutory applications should be set-off against amounts payable to the defendants.
The Court’s decision
3 Clause 14.1 covered the situation where, as was the case here, the defendants were sued by a client in respect of circumstances leading up to the taking up of services. Under Clause 14.1, the plaintiffs had agreed to compensate the defendants on a “full indemnity basis” for “all Losses which [the Defendants] may suffer as a result of or in connection with the operation or provision of the Account(s), Facilities, Transactions and Services whether incurred directly or indirectly”. The present action concerned the plaintiffs’ complaints about the way in which the defendants operated the plaintiffs’ Accounts, Facilities, and Transactions. On its terms, Clause 14.1 did not distinguish between services and advice rendered by the defendants before or after the plaintiffs took up a banking product or entered into a particular transaction. It therefore applied where the defendants had incurred losses in the form of legal expenses and disbursements as a result of defending themselves against the plaintiffs’ wrongful allegations about the way in which the defendants’ went about providing their advice and services: at  and .
4 With regard to the $1.1m claimed by the defendants, the fact that Clause 14.1 entitled the defendants to a “full indemnity”, as well as the complexities arising from (a) the need to deal with questions of Dubai International Financial Centre (“DIFC”) law and (b) the fact that the plaintiffs’ allegations spanned events and issues involving multiple jurisdictions, justified a departure from the S$512,400 posited by Appendix G. In addition, throughout the trial and until just before the initial round of closing submissions, the plaintiffs maintained that the defendants were liable for fraudulent misrepresentation and exerting undue influence, despite the Court’s earlier finding that there was “no evidence whatsoever that the Defendants, whether individually or collectively, had acted in a fraudulent manner or had exerted undue influence on either of the Plaintiffs”. Given that their reputations were at stake, it was unsurprising that the defendants vigorously defended themselves and thereby incurred much more in legal fees than the standard levels envisaged by Appendix G. Notwithstanding the Registrar’s direction during the transfer of the action to the SICC that “Appendix G shall continue to be relevant to the assessment of costs … after its transfer to the SICC”, this was one such situation where applying Order 110 r 46(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) led to significantly greater costs being awarded than would be the case by applying Appendix G: at , , ,  and .
5 In respect of disbursements, the Court was not persuaded by the plaintiffs’ arguments that (a) the photocopying and printing of 214,524 pages was excessive; (b) the witnesses spoke English and had no need for interpretation or translation services; (c) the expert’s reports were short; and (d) the amount charged for the expert’s travel and attendance at trial was too high given that this evidence did not feature in the judgment. The assumption that the defendants would only make single copies of documents was unrealistic, particularly given the number of defendants and lawyers involved. There was also material requiring translation by the defendants from Arabic into English. The defendants’ expert not only completed his own report but also reviewed the plaintiffs’ expert report. Taken in the round, the disbursements claimed were reasonable: at , ,  and .
6 The Court was unable to accept the plaintiffs’ contention that, because the defendants did not succeed on every argument, they should be deprived of some of their costs. While the defendants did not succeed on every sub-issue before the Court, the defendants prevailed in relation to every misrepresentation, breach of the common law duty of care, and breach of DIFC regulatory law alleged by the plaintiffs. Determining the incidence of costs was not a mechanical exercise of adding up the arguments on which a party had succeeded and awarding that party a percentage of its costs by reference to the proportion that its successful arguments bore on the totality of arguments. The attribution of costs hinged instead on the Court stepping back and considering overall whether one party had clearly succeeded. This was in keeping with the rule that costs should normally follow the event: at .
7 In respect of reserved costs of certain interlocutory applications, the Court agreed with the plaintiffs that no order as to costs should be given in relation to the plaintiffs’ application for specific discovery, which was allowed in part. However, the Court disagreed that the plaintiffs should be entitled to costs in their application to amend the Statement of Claim and the Reply. The plaintiffs were seeking the Court’s indulgence and would ordinarily have had to pay the costs occasioned by their amendment. Since the defendants resisted the amendment, it was appropriate to make no order as to costs. As to the costs of the defendants’ application to strike out parts of the plaintiffs’ expert report, the Court had made no order so that the impugned parts of the report could be canvassed at the trial. The costs of this application were thus to be treated as being in the cause. Accordingly, there was nothing to be set-off against the defendants’ costs: at  and .
8 Although the defendants had sought for “an order that the Plaintiffs not be allowed to bring any other action or claim in respect of the same subject-matter as the Withdrawn Claims (whether in Singapore or any other jurisdiction)”, it was not appropriate for the Court to make this order because it was unclear how such an order could be enforced by the plaintiffs who were not resident in Singapore. If such a claim were to be brought by the plaintiffs in the future before some court, it would be for that forum to determine whether the claim was barred by laches or constituted an abuse of process: at .
This summary is provided to assist in the understanding of the Court’s judgment. 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 judgment.
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