1 This review under Bill of Costs No 189 of 2016 relates all the way back to Originating Summons (Family) No 71 of 2011 (“the OS”). In the OS, two sisters namely BLG and BLH (“the applicants”) applied to the State Courts for a declaration pursuant to s 20 of the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“the MCA application”) that their sister BLK (“the third respondent”) was unable to make decisions for herself relating to her property and affairs, and to appoint the applicants as deputies to act in relation to the third respondent’s property and affairs.

2 The MCA application was opposed by the third respondent well as by BLI (“the first respondent”) who is the third respondent’s younger daughter and by BLJ (“the second respondent”) who is the husband of the first respondent. Henceforth the first and second respondents will be referred to collectively as “the first two respondents”.

3 The State Courts found that the third respondent lacked capacity and granted the MCA Application (see the decision of the senior district judge (“Senior District Judge”) dated 11 December 2012 at [2012] SGDC 489).

4 Dissatisfied with the decision of the Senior District Judge, all three respondents appealed to the High Court in Registrars’ Appeals Nos 223 of 2012 and 224 of 2012 (“the RAs”). The RAs were heard by this court and allowed, and the decision of the court below was set aside (see Re BKR [2013] 4 SLR 1257) (“Re BKR”).

5 The applicants appealed to the Court of Appeal against the decision of this court in Civil Appeal No 27 of 2014. The appeal was allowed (see Re BKR [2015] 4 SLR 81) with costs reserved. Subsequently, the Court of Appeal heard parties on costs. On 24 November 2015, the Court of Appeal made the following costs orders: ¹

(a) The first two respondents would be liable to pay the costs (taxed on an indemnity basis, unless indicated otherwise), in relation to the appeal and all proceedings below, including:

(i) costs to the applicants to be taxed on an indemnity basis if not agreed;

(ii) costs to the third respondent, including:

(A) solicitor-and-client costs between the third respondent and WongPartnership LLP to be determined after taxation of bill(s) of costs filed and/or to be filed by WongPartnership LLP and subject to any further directions by the Court;

(B) costs and expenses of the Public Trustee, acting as the third respondent’s litigation representative; and

(C) costs of the Public Trustee’s solicitors, Tan Kok Quan Partnership, to be determined after taxation on a solicitor-and-client basis of the bill of costs to be filed by Tan Kok Quan Partnership, if not agreed.

6 In compliance with the above order of the Court of Appeal, the applicants’ solicitors prepared a bill of costs (“Original Bill of Costs”) which included the following proceedings: ²

(a) the OS;

(b) the RAs;

(c) Originating Summons No 959 of 2013 (applicants’ application for leave to appeal to the Court of Appeal);

(d) Civil Appeal No 27 of 2014 (“CA 27/2014”);

(e) Summons No 2971 of 2011 (applicants’ application for service out of jurisdiction on the first two respondents in Hong Kong);

(f) Summons No 19006 of 2011 (the third respondent’s application to withdraw monies from her bank accounts for living, legal and medical expenses); and

(g) Registrar’s Appeal No 13 of 2012 (the third respondent’s appeal against the Senior District Judge’s decision making no order on Summons No 19006 of 2011).

I should add that the bill of costs that was taxed was an amended bill (“Amended Bill of Costs”) dated 11 May 2017 for which the total costs figure for Section 1 in the Amended Bill, $3.53m ³ (rounded down), was less than the figure of $4.67m in the Original Bill. ⁴

7 After a lengthy hearing spread over three months and six days in 2017, the Senior Assistant Registrar (“SAR”) reduced the applicants’ costs in Section 1 of the Amended Bill of Costs from $3,530,226.65 to $878,600.00 and Section 3 disbursements from $665,165.39 to $663,430.46. ⁵ The total costs claimed by the applicants for Sections 1 and 3 amounted to $4,194,392.04 and the total amount allowed was $1,542,030.46. ⁶ A claim was made under Section 2 for $20,066.67, but no costs were awarded. ⁷

8 Both parties were dissatisfied with the SAR’s taxation of the Amended Bill of Costs. Consequently, the applicants filed Summons No 3183 of 2017 for review of Sections 1 and 2 costs while the first two respondents filed Summons No 3184 of 2017 for review of Section 3 costs. Before both taxation reviews could take place, the applicants filed Summons No 5386 of 2017 (“the applicants’ summons”) on 22 November 2017 praying for the following orders:

in relation to the proceedings set out in [6(a) to (g)].

9 The applicants’ summons was heard and dismissed by this court on 27 November 2017. The applicants are dissatisfied with the dismissal and have, with this court’s leave, filed an appeal (in Civil Appeal No 32 of 2018) against my decision.

10 At the hearing, the court inquired of the applicants’ counsel (“Mr Eng”) his reason(s) for wanting to see the solicitor-and-client charges rendered by the first two respondents’ solicitors. He informed the court that it was necessary and relevant for the taxation review(s) of the Amended Bill of Costs. In support of his arguments, Mr Eng cited O 59 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) (“the Rules of Court”) for the non-exhaustive factors the court must take into account in the multifactorial approach to be taken in taxation. He also relied 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 Likpin International Ltd v Swiber Holdings Ltd and another [2016] 4 SLR 1079 (“Likpin International”) as well as the High Court’s decision in Singapore Medical Council v Lim Mey Lee Susan [2015] SGHC 129 (“Susan Lim”).

11 To a further question from the court, Mr Eng clarified that he did not require to see the solicitors’ bill(s) of the first two respondents; he only wanted a breakdown of the hours their solicitors said they spent on the proceedings. Mr Eng complained that while the applicants had complied with the requisite Supreme Court Practice Directions (“the PD”) and filed a costs schedule before the Court of Appeal hearing, the first and second respondents had failed to do so in regard to the proceedings listed at [6] (save for CA 27/2014). Consequently, the court did not have a comparative schedule of costs to assist in the taxation and/or review of the Amended Bill of Costs.

12 Counsel for the first two respondents (“Mr Poon”) in opposing the applicants’ summons pointed out that apart from the first two respondents’ solicitor-and-client bills, there were two other objective comparators the applicants had recourse to, namely Appendix G of O 59 and the costs schedule that the applicants’ solicitors had themselves filed for CA 27/2014.

13 Mr Poon pointed out that at the taxation below, the applicants initially gave no breakdown of the hours spent by the applicants’ solicitors or the tasks for the charges billed to enable the court to ascertain how the figure in the Amended Bill of Costs could have increased almost six-fold from the figure in their costs schedule. He submitted that the applicants’ summons was a strategy to distract from the key question at stake – why was there such a vast discrepancy between the figure the applicants informed the Court of Appeal was their costs ($606,000) and the figure finally presented in the Amended Bill of Costs ($3,530,226.65)?

14 Mr Poon informed the court that the applicants had made the same request to the SAR pursuant to O 59 r 13(d) of the Rules of Court. The SAR declined to order the first two respondents’ solicitors to produce their solicitors-and-client bills. ⁸ The SAR further declined the request of counsel for the applicants that the court draw an adverse inference against the first two respondents’ solicitors for refusing to produce their solicitor-and-client charges. As the applicants have not appealed against the SAR’s decision in this regard, Mr Poon cited O 59 r 35(1) of the Rules of Court (and the Court of Appeal’s decision in Lassiter Ann Masters v To Keng Lam (alias Toh Jeanette) [2004] 2 SLR (R) 392) to support his contention that the applicants cannot now file the applicants’ summons to circumvent their omission to appeal. Order 59 r 35(1) states:

15 Mr Poon explained that Justice Woo Bih Li’s decision in Susan Lim was issued before the PD on costs scheduling came into effect. (This submission is incorrect – the costs scheduling provisions in paragraphs 99A and 99B took effect on 15 July 2014 by way of Amendment No. 3 of 2014 to the PD while Justice Woo’s decision was dated 13 May 2015). As for the omission to file a costs schedule on the first two respondents’ behalf save for CA 27/2014, Mr Poon stated it was not necessary to do so as, just before the hearing of CA 27/2014, another PD was issued stating parties were only required to file the costs schedule pertaining to CA 27/2014 and nothing else.

16 It would be appropriate at this juncture to refer to the costs schedule of the applicants filed in compliance with paras 99A and 99B of the PD. The provisions state:

17 As set out at [10] of the SAR’s well-reasoned grounds of decision dated 27 June 2017 (which this court endorses), there were huge discrepancies between the figures in the costs schedule filed by the applicants and the amounts for the same items in the Amended Bill of Costs. This can be seen from the table below:

18 It is a truism that the purpose of costs scheduling is to restrain a litigant from claiming excessive costs when he wins a case. I can do no better at this stage than to quote certain passages from the very case cited by the applicants namely Likpin International. There, the Court of Appeal exhorted:

19 In awarding costs of $50,000 to the successful party, the Court of Appeal acknowledged that even costs of $45,000 would have been generous. However, because the losing party put a figure of $60,000 into its costs schedule, the Court of Appeal gave a higher award of costs. Here, the shoe is on the other foot. The applicants’ costs schedule was reasonably moderate. But they now want to depart drastically from those figures.

20 The court is mindful that the costs dealt with by the Court of Appeal in Likpin International was on a standard or party-and-party basis. The issue of indemnity costs, however, was the subject of appeal in Lin Jian Wei following the Court of Appeal’s earlier decision to award such costs in Lim Eng Hock Peter v Lin Jian Wei [2010] 45 SLR 331 to the successful plaintiff in his defamation suit against the two defendants. The appellate court’s decision was given in 2011 before the costs scheduling provisions came into effect. It was there held that besides the considerations listed in para 1(2) of Appendix 1 to O 59, the principle of proportionality must also apply regardless of whether taxation is on a standard or indemnity basis. The Court of Appeal said at [56]:

It seemed to this court (as to the court below) that the Amended Bill of Costs was out of all proportion to the work done by the applicants’ solicitors. This will be elaborated upon below.

21 At this juncture it would be appropriate to look at the guidelines in Appendix G of para 99B on Costs Guidelines. In Appendix G the following estimates were the party-and-party costs for:

22 The above figures are to be contrasted with the applicants’ figures in the Amended Bill of Costs at [17]:

Even if the court took into account that Appendix G applied to party-and-party and not indemnity costs, each and every item charged by the applicants (save for the third respondent’s appeal in RA 13 of 2012) was excessive. Similarly, even if one applies the conventional uplift of one-third on party-and-party costs for indemnity costs (per the Court of Appeal in Lin Jian Wei at [83]), which uplift the applicants adopted in the court below), the excess is still high. By comparison, the costs schedule prepared by the first two respondents for CA 27/2014 was $167,000/-, albeit on a party-and-party basis.

23 Before the SAR (at the hearing on 22 May 2017), counsel for the applicants (not Mr Eng) had inter alia submitted that: ⁹

(a) there were mistakes in the applicants’ costs schedule as the costs were understated; ¹⁰

(b) at the material time practitioners did not have much experience with costs schedules and CA 27/2014 was a test case; ¹¹

(c) their costs schedule was merely meant to be an estimate - its purpose was to give the court a rough and ready estimate so that if the Court of Appeal deemed it fit to order costs that day, the Court would have something to go on in making a costs order that day. The costs schedule was a forward looking estimate; ¹²

(d) if parties were bound by the costs schedule, then taxation would be rendered nugatory; ¹³

(e)  it was open to the court to deviate from the costs schedule. This was provided for in the PD itself; ¹⁴

(f)  the fact that this matter (ie, OSF 71/2011) was commenced in the State Courts should not affect costs and to say a lower amount should be allowed is wrong; that had already been taken into account in the disbursements; ¹⁵

(g) the first two respondents’ own estimate of their costs for CA 27/2014 was higher; ¹⁶ and

(h) once an uplift is added to account for indemnity costs, the highest daily tariff set out in Appendix G at [21] (for contested originating summons proceedings) should be even higher than $30,000. ¹⁷

24 Mr Poon (who appeared at the hearing) had informed the SAR that it was not his position that there can be no departure from the costs schedule that had been submitted. What was in issue before the court he said was the “magnitude of the discrepancy” between the applicants’ costs schedule and the Amended Bill of Costs. This court agrees. ¹⁸ Tellingly, there was no affidavit before the court to explain what the “mistake” in the applicants’ costs schedule was.

25 Before this court, Mr Eng was also unable to explain to any degree of conviction why his firm had departed so drastically from the costs schedule it had submitted to the appellate court before the hearing of CA 27/2014, albeit on a standard basis. Instead, he contended that a costs schedule was not the be all and end all in taxation. In answer to this submission, I refer again to the advice given to counsel by the Court of Appeal (at [15]) in Likpin International (supra [18]):

Surely some care must and should have been taken by the applicants’ solicitors in preparing their costs schedule. It cannot be that no consideration was given at all to the figures they put into the costs schedule or that no regard was paid to the guidelines set out in para 99B (see[16] above). It has to be borne in mind that the applicants well knew that their costs schedule would have an impact on them should they lose the appeal and be liable for costs to the respondents.

26 None of the factors proffered to the court below on behalf of the applicants could excuse their drastic departure from their costs schedule. Indeed, for them to submit that the court should accept their excuses (not reasons) in [23] and allow the applicants to depart from their costs schedule would make a mockery of paras 99A and 99B of the PD and render them otiose. Equally, it meant that there is no distinction being made between the jurisdictional limits of the State Courts vis-à-vis the High Court if there is no difference in costs structure between cases brought in the two courts (which counsel for the applicants sought to argue before the SAR). That cannot be right. Taking into account that the OS was commenced in the State Courts, a discount should have been applied to the Costs Guidance range of costs of $15,000–$20,000 (see Appendix G set out at [21] above) for contentious originating summons proceedings in the High Court.

27 However, the SAR (see [45] of his grounds of decision) gave the benefit of the doubt to the applicants pursuant to O 59 r 27(3) and did not apply any discount at all. Instead, the SAR accepted Mr Poon’s suggestion that a daily tariff of $20,000 for medical negligence trials was appropriate, taking into account that the hearing had a strong focus on expert medical evidence. In addition, the SAR gave an uplift of $3,000 to the daily tariff (at [51] of his decision) Using a multiplier of 30 for the number of trial days and the percentage tariffs to be applied for each hearing day set out in Part III(A)(i) of the Costs Guidelines for trials, he arrived at a figure of $485,000 (rounded up from $483,000) for the 30 days’ trial. The sum represented an uplift of 32.87% on the applicants’ figure of $365,000 in their costs schedule. This took into account the indemnity basis for the taxation. The allowed sum should be contrasted with the figure of $1,363,488.25 in the Amended Bill of Costs which is clearly excessive.

28 I had pointed out to Mr Eng at the hearing that if counsel for the applicants persisted in asking the same question 21 times of the third respondent within half an hour (as this court noted at [134] in Re BKR) the unnecessarily prolonged cross-examination would have been done at the expense of the first two respondents who now have to bear the charges. The Court of Appeal in Lin Jian Wei (at [69]) had cautioned against placing too emphasis on time-costing. The fact that the applicants’ lead counsel may have spent 8 hours cross-examining the third respondent should not automatically translate into an 8 hour time charge. Besides proportionality, the reasonableness principle applies to costs taxed on an indemnity basis.

29 Paragraph 99B(3) as set out at [16] above specifically states that solicitor-and-client costs do not come within the purview of the costs scheduling in the PD. That being the case, how can the applicants say that the bills rendered by the first and second respondents’ solicitors “may be relevant” (pursuant to O 24 r 1 and O 59 r 13(d) of the Rules of Court) for taxation/review of the Amended Bill of Costs?

30 Finally, it would be setting a dangerous precedent to allow one firm of solicitors to see the solicitor-and-client charges/bills of another firm for obvious reasons. 

31 Consequently, for the reasons given by the court below in not ordering the first two respondents to produce their solicitors’ bills and by this court, I dismissed the Applicants’ summons.