1 On 2 June 2026, I dismissed the claimant’s claim against the second defendant in this action. I have given my reasons for doing so in Chong Jorina v Ritz Property Investimentos Imobiliarios Ltda [2026] SGHC 120 (“the Judgment”). This judgment deals with the costs of this action.

2 With the parties’ agreement, I have fixed the costs of this action without hearing oral arguments pursuant to my power under s 17B(1) of the Supreme Court of Judicature Act 1969 (2020 Rev Ed). ¹ I have therefore proceeded on the basis of the parties’ written submissions on costs and the costs schedules that they filed together with their written closing submissions for trial.

3 For the reasons set out in this judgment, I now order that the claimant pay to the second defendant the costs of and incidental to this action, such costs fixed in the total sum of $244,165.50. That sum comprises the costs of the action, which I have fixed at $215,000, together with disbursements and the costs of two interlocutory applications, both of which have been agreed between the parties. I have arrived at the figure of $215,000 for the costs of the action by applying the guidelines set out in Appendix G to the Supreme Court Practice Directions 2021 (“the Costs Guidelines”), adjusted by a limited departure from the Costs Guidelines to account for the unusual features of this case that affect the pre-trial costs.

4 Despite the claimant’s submissions, I have not deprived the second defendant of any part of her costs to account for: (a) the claimant’s overtures for settlement; and (b) certain negative aspects of the second defendant’s conduct. ²

5 The background to this action can be stated briefly.

6 The claimant’s case was that she advanced loans totalling over $1.6m to the first defendant between 12 June 2018 and 12 November 2019 in reliance on false representations for which the second defendant was liable in either fraudulent or negligent misrepresentation. ³ In addition, and on the same facts, she advanced an alternative claim against the second defendant in conspiracy. ⁴

7 I dismissed the claimant’s claims. I dismissed the claim in fraudulent misrepresentation for three principal reasons: (a) the representations were not made or, even if made, were not attributable to the second defendant; ⁵ (b) the claimant failed to prove the dishonest state of mind that fraudulent misrepresentation requires; ⁶ and (c) in any event, the claimant was not induced by, and did not rely on, the alleged representations. ⁷ I dismissed the claimant’s claim in negligence for the same reasons, and for the additional reason that no duty of care arose. ⁸ I did not have to deal with the claimant’s claim in conspiracy because she withdrew it in her written closing submissions. ⁹

8 In reaching those conclusions, I relied largely on the contemporaneous documents rather than on the oral evidence of the parties, because I found significant aspects of both parties’ evidence to be unsatisfactory. ¹⁰ The claimant shifted her position when she perceived it to be inconsistent with the documents and, at points, gave evidence that she knew to be untrue. ¹¹ The second defendant, for her part, was in certain respects an evasive witness who deflected the questions put to her. ¹² The unsatisfactory aspects of both parties’ evidence did not affect the outcome, which turned largely on the documents. ¹³

9 As in the principal judgment in this action, and for the same reason, I shall refer henceforth to the second defendant simply as “the defendant”.

10 The parties agree on three issues pertaining to costs. First, they agree that costs should follow the event and that the defendant is therefore entitled to recover the costs of the action from the claimant. ¹⁴ Second, they have agreed the defendant’s disbursements of the action in the sum of $20,494.90. ¹⁵ Finally, they have agreed in the total sum of $8,670.60 the costs and disbursements of two interlocutory applications, ordered to be in the cause. ¹⁶

11 In addition, although it is not agreed, they put forward the same figure of $50,000 for post-trial costs. ¹⁷

12 The difference between the parties lies in the pre-trial costs and trial costs. ¹⁸ The claimant says the costs for these two stages should be fixed in the total sum of $90,000. ¹⁹ The defendant says the costs of these stages should be fixed in the total sum of $220,000. ²⁰

13 The table below sets out the ranges set out in the Costs Guidelines for each stage in actions of this type, the parties’ contentions on each stage and the sums I have arrived at:

14 The claimant’s total offer of $90,000 for the defendant’s pre-trial and trial costs is substantially lower than the sum of $180,000 that she claimed in her own costs schedule as her costs of these two stages. ²³

15 Three issues arise for my decision. First, I must analyse the claimant’s preliminary argument that the quantum of the defendant’s claim amount to seeking an award of costs on the indemnity basis in substance if not in form. Second, I must assess what is the reasonable sum to award for pre-trial and trial costs, the only two stages that remain in contention. Third, I have to consider whether I should deprive the defendant of any part of her award of costs for any of the reasons advanced by the claimant.

16 I take these three issues in turn.

17 The claimant raises a preliminary argument. ²⁴ She submits that the defendant’s claim for costs exceeds the maxima in the Costs Guidelines by more than a third. She submits also that the courts assess costs on the indemnity basis by adding about one-third to costs assessed on the standard basis: Inter-Pacific Petroleum Pte Ltd (in liquidation) v Goh Jin Hian [2024] SGHC 178 at [383]. From these two premises, she concludes that the defendant is seeking an award of costs on the indemnity basis in all but name without having established any basis for such an award.

18 The claimant’s two premises are correct, but her conclusion does not follow from those premises. When assessing costs, the court’s task is to award to the successful party a reasonable amount for costs reasonably incurred. That is so regardless of whether costs are being assessed and awarded on the standard basis or on the indemnity basis. The two bases of assessment differ in one respect only: the burden of proof in establishing reasonableness, whether as to the reasonableness of incurring the costs or as to the reasonableness of the quantum of the costs incurred. When costs are assessed on the standard basis, all doubts as to reasonableness are resolved against the successful party and in favour of the unsuccessful party in the action: O 21 r 22(2) of the Rules of Court 2021 (“the Rules”). When costs are assessed on the indemnity basis, the burden of proof is reversed: all doubts are resolved in favour of the successful party and against the unsuccessful party in the action: O 21 r 22(3) of the Rules. The conventional one-third uplift on standard costs to arrive at indemnity costs is merely a rule of thumb used to quantify the practical effect of that shift in the burden of proof. It is adopted to spare the parties and the court the time, cost and inconvenience of a detailed, item-by-item assessment of indemnity costs.

19 The one-third uplift therefore measures the difference between standard costs for a particular case and indemnity costs for the same case. A comparison between a successful party’s claim for costs and the maxima in the Costs Guidelines raises no point of principle. The maxima in the Costs Guidelines set the maxima for the assessment of standard costs in the ordinary case. Where a departure from the Costs Guidelines is justified (see [25] below), the figure that the court arrives at remains nevertheless an assessment of standard costs. That is so even if that figure happens to exceed the maxima in the Costs Guidelines by one-third or more. That happenstance does not mean that the court is being asked to award indemnity costs in substance, even if not in form.

20 Adding an uplift of one-third to convert an award of costs assessed on the standard basis into an award of costs assessed on the indemnity basis is a separate and conceptually distinct step in the assessment process. The defendant does not invite me to take that separate step.

21 I now assess the standard costs of this action on each of the two stages that remain in contention. Before that, I set out the general principles applicable to assessing costs to be awarded, whatever the stage.

22 Costs are in the court’s discretion: O 21 r 2(1) of the Rules. In exercising that discretion, I must have regard to the matters listed in O 21 r 2(2) of the Rules. These matters include the complexity of the action, the skill and time required of the solicitors, the conduct of the parties and the principle of proportionality.

23 It is correct in principle for the court to take the Costs Guidelines as its starting point in assessing costs: Senda International Capital Ltd v Kiri Industries Ltd [2023] 1 SLR 96 (“Senda”) at [47]–[50]; Kotagaralahalli Peddappaiah Nagaraja v Moussa Salem [2023] SGHC 68 (“Kotagaralahalli”) at [45]–[51]. But it would be wrong in principle to take the Costs Guidelines as the ending point in assessing costs. The Costs Guidelines, as their name suggests, are merely guidelines. They are neither a tariff nor a ceiling. The Costs Guidelines say as much at para 3:

24 Having said that, the utility of the Costs Guidelines lies in setting parties’ expectations ex ante as to costs and in aiding parties ex post in negotiating and reaching agreement on costs. That utility would be defeated if the court were to depart too readily from the Costs Guidelines.

25 A departure from the Costs Guidelines must therefore be justified, either by the inherent complexity of the litigation or by the inadequacy of the Costs Guidelines to yield an appropriate figure: Kotagaralahalli at [54].

26 The range in the Costs Guidelines for pre-trial costs in a tort action is $25,000 to $70,000. The defendant claims $110,000 for pre-trial costs. ²⁵ That claim represents a substantial departure of $40,000 from the Costs Guidelines. The claimant submits that no departure from the Costs Guidelines is warranted and that the sum of $55,000 is reasonable. ²⁶

27 I accept that there are three features of this action that add the complexity that warrants a departure from the Costs Guidelines, but only a limited departure. These three features are: (a) the volume of the documentary material; (b) two specific legal complexities; and (c) the three causes of action that the claimant advanced on her pleadings.

28 I accept the defendant’s submission that a departure from the Costs Guidelines is warranted by the volume of the documentary material. ²⁷ The agreed bundle and supplementary agreed bundles ran to over 16 volumes and about 9,000 pages. The core bundle ran to over 3,500 pages. The defendant’s bundles of interlocutory affidavits ran to over 1,500 pages.

29 I do not accept the claimant’s submission that the documents were voluminous only in form and not in substance. ²⁸ It is true that the agreed bundles and supplementary agreed bundles held fewer than 280 distinct documents, ²⁹ that the text of the affidavits of evidence in chief came to only a little over 150 pages and that the pleadings were relatively brief, especially when compared to a complex commercial dispute. ³⁰ In my view, the volume of documents was high in substance, not just form. The events in issue spanned a decade. The WhatsApp messages in issue spanned several years. ³¹ Answering the case pleaded against her required the defendant to trace the flow of funds through the documents relating to several bank accounts. ³²

30 I also do not accept the claimant’s submission that her proposal of $55,000 for the defendant’s pre-trial work is reasonable and proportionate, at least in part, because it was claimant’s counsel – and not defendant’s counsel – who expended the time and labour necessary to compile the agreed bundle of documents, the agreed bundle of pleadings and the bundle of affidavits of evidence in chief. ³³ That is undoubtedly true. It is the claimant, like all claimants, who had the carriage of the action. But the pre-trial costs being assessed now are costs that the defendant’s legal team incurred in reviewing and analysing the volume of documentary material in this action, not in compiling it.

31 I therefore accept that the volume of the documentary material justifies a departure from the Costs Guidelines.

32  My finding that the action was not, taken as a whole, factually complex (see [41] below) does not mean that it did not raise aspects that were legally complex. In my view, a departure from the Costs Guidelines is warranted because the defendant had to address a novel question of law and because the defendant had to address the claimant’s alternative cause of action in conspiracy.

33 The novel question of law that the defendant had to address was whether a statement purely as to the future is actionable in negligence. ³⁴ I directed the parties to address this question at a judge’s case conference.

34 In my view, it was reasonable for the defendant to consider that the court would have to deal with the question in determining the issues arising from the claims and the defences. It was therefore reasonable for the defendant to have undertaken research to deal with the question, not least because the court directed her to do so.

35 I do not accept the claimant’s submission that the law on this question is settled or covered by a single authority. ³⁵ Addressing this question reasonably required substantial research. ³⁶

36 The reasonableness of incurring these costs is not undermined by the fact that I did not ultimately have to express a view on this novel question of law because I dismissed the claim in negligence for other reasons. ³⁷ The reasonableness of incurring costs is assessed prospectively, at the time the costs are incurred, and not retrospectively, with the benefit of the hindsight available at the time the costs are assessed. At the time these costs were incurred, the defendant could not have known that a resolution of this novel question of law would prove unnecessary for my decision.

37 I accept the defendant’s submission that the claimant’s inclusion of the conspiracy claim in her pleaded case supports a departure from the Costs Guidelines. ³⁸ The conspiracy claim increased the legal complexity of the action and added to the defendant’s pre-trial burden. ³⁹ Although it is true that the conspiracy claim rested on precisely the same facts as the misrepresentation claims, the legal elements are considerably different. ⁴⁰ Advancing it therefore added to the legal complexity of this action and caused the defendant to incur reasonable pre-trial costs. ⁴¹

38 I accept also the defendant’s submission that the claimant’s decision to withdraw the conspiracy claim in her closing submissions came too late to have any material effect in reducing the defendant’s costs. ⁴² It was reasonable for the defendant to incur costs preparing to meet the conspiracy claim in addition to preparing to meet the claimant’s case in fraudulent and negligent misrepresentation. The claimant withdrew the conspiracy claim only in her closing submissions. Although the claimant did not pursue her conspiracy claim with any great enthusiasm even before formally withdrawing it, ⁴³ the claim was live on the pleadings throughout the pre-trial stage. The defendant could not, in preparing for trial, presume that the claimant’s lack of enthusiasm for the conspiracy claim would necessarily lead to withdrawal. It was therefore reasonable for the defendant to incur costs in preparing to meet the conspiracy claim until the claimant formally withdrew the claim in her closing submissions.

39 I must now quantify the departure from the Costs Guidelines for pre-trial costs.

40 The defendant’s case on quantum is that the pre-trial costs should be fixed in the sum of $110,000. ⁴⁴ I do not accept that this is a reasonable figure. It exceeds the departure from the Costs Guidelines that the additional features I have identified warrant.

41 I reject the defendant’s submission that this figure is reasonable because of the volume of the documents in this action. ⁴⁵ The voluminous documents did require the defendant to canvass the relevant facts in some detail (see [30] above). However, the fact-intensive nature of this action does not, without more, render the action factually complex so as to justify the significant departure from the Costs Guidelines that the defendant proposes. The case was not factually complex when looked at as a whole. This would have been apparent once the voluminous documents had been analysed in the pre-trial stage. The causes of action that the claimant advanced shared several common factual elements. The factual disputes on those elements were confined. The disputes centred on whether the representations were made, whether they were attributable to the defendant and whether the claimant had relied on them.

42 I reject the defendant’s submission that this figure is any more reasonable simply because the trial of this action was originally fixed for seven days and the pre-trial costs incurred were the pre-trial costs commensurate with a seven-day trial. ⁴⁶ The initial estimation that this action warranted a seven-day trial cannot justify fixing the pre-trial costs on the basis of a seven-day trial when the actual trial took only five days. The Costs Guidelines use the number of days of trial as a proxy for the complexity of an action – and therefore for the reasonable costs for a given stage of an action – only in relation to trial costs. For the pre-trial and post-trial stages, the Costs Guidelines give ranges in absolute terms, untethered to the number of days of trial. The fact that this action was originally fixed for seven days means simply that its complexity was overestimated ex ante. That overestimation is no indication of the action’s actual complexity when that is estimated, as I now do, ex post.

43 The claimant’s case on quantum is that the pre-trial costs should be fixed in the sum of $55,000. ⁴⁷ This sum represents no departure at all from the Costs Guidelines. I reject this submission for four reasons.

44 First, the claimant’s own costs schedule accepts that the complexity of this action warrants a departure from the Costs Guidelines for pre-trial costs. In her costs schedule, she proposed a figure of $85,000 for her pre-trial costs. ⁴⁸ If the claimant considers that a departure from the Costs Guidelines is reasonable for her own pre-trial costs, there is no basis for her submission that no such departure is reasonable for the defendant’s pre-trial costs. ⁴⁹

45 Indeed, I accept the defendant’s submission that her pre-trial costs exceeded the claimant’s. ⁵⁰ The defendant had to prepare three substantial affidavits of evidence in chief that were 727, 366 and 383 pages long. The claimant had to prepare only one. The defendant also had to prepare to cross-examine a witness whose affidavit of evidence in chief had been dispensed with. She had to review the interlocutory affidavits, the bank statements and the WhatsApp messages that featured in my findings. I therefore consider that the defendant is entitled to a departure from the Costs Guidelines for pre-trial costs at least equal to that which the claimant sought for herself.

46 Second, the claimant submits that the defendant’s pre-trial costs should be reduced under O 21 r 4 of the Rules on the basis of two complaints she makes about the defendant’s conduct. ⁵¹ Even assuming these complaints to be well-founded, their nature means that they would affect the overall costs of the action. I therefore deal with these complaints at [66]–[89] below, after I have assessed the defendant’s overall costs of this action.

47 Third, the claimant relies in part on there having been only three solicitors on the defendant’s team. ⁵² It is true that, under O 21 r 2(2)(e) of the Rules, the number of solicitors on the successful party’s team is a factor in the exercise of the court’s general discretion on costs. But that factor is of little weight in and of itself, particularly on a party-and-party assessment. By far the greater weight ought to be attached to the court’s overall assessment of the complexity of the matter as compared to the headcount of the successful party’s legal team. An award of pre-trial costs should not penalise a successful party for its legal team’s efficiency or productivity. Nor should it reward a successful party for its legal team’s overstaffing.

48 Finally, the claimant relies in part on her genuine interest in bringing her claims and having her day in Court to ventilate her grievances. ⁵³ Be that as it may, costs follow the event, no matter how reasonable the successful party may have been in commencing or defending an action. And this factor has no bearing on the quantum of the defendant’s costs. That quantum is determined by the compensatory aim of the indemnity principle (see [73]–[74] below).

49 For these reasons, I consider that the defendant is entitled to an award that equals the claimant’s quantification of her own pre-trial costs in her costs schedule. As I have mentioned, she quantified those costs at $85,000. ⁵⁴

50 I therefore fix the pre-trial costs in the sum of $85,000.

51 The range in the Costs Guidelines for trial costs in an action like this is $6,000 to $16,000 a day. The trial of this action took five days. The award for trial costs under the Costs Guidelines is therefore between $30,000 and $80,000.

52 The claimant offers only $7,000 a day for a total of $35,000 for trial costs. ⁵⁵ She says the trial lasted only five days, three of which were taken up by her counsel cross-examining the defendant’s witnesses. ⁵⁶ Further, much of the two days spent cross-examining the defendant was lengthened by the defendant’s evasiveness and failure to comply with certain disclosure orders. ⁵⁷

53 The defendant seeks an award of $22,000 a day for a total of $110,000 for trial costs. ⁵⁸ This represents a departure of $6,000 a day from the Costs Guidelines. She says the departure is warranted by the volume of the documentary material, the lengthy affidavits of evidence in chief and the multiple issues explored in cross-examination. ⁵⁹ She also points out that the cross-examination produced the findings that decided the case in her favour and that the claimant’s counsel wasted time in re-examination. ⁶⁰

54 I reject the claimant’s figure of $7,000 a day. Even if I were to accept the claimant’s complaints of the defendant’s conduct (see [52] above), $7,000 is far too low and unreasonably undervalues the work reasonably necessary to conduct the trial of this action. It also falls below the $10,000 a day that the claimant sought for her own costs per day of trial in her costs schedule. ⁶¹

55 Nor can I accept the defendant’s justification for a departure from the Costs Guidelines. The volume of the documentary material, the length of the affidavits of evidence in chief and the multiple issues explored in cross-examination are met by the departure from the Costs Guidelines that I have already allowed for the pre-trial costs. Once the necessary work was done pre-trial to identify the key documents amongst the volume of documents, to draft the affidavits of evidence in chief for the defendant’s witnesses and to structure and develop the cross-examination of the claimant’s witnesses, all that was left for trial was to execute on that preparation. There is no basis for these factors to continue to warrant a second departure from the Costs Guidelines for the trial costs.

56 A departure is not warranted merely because the cross-examination produced the material necessary for the decisive findings in my judgment. Every cross-examination in every trial ought to be conducted to produce the material necessary for the decisive findings by the court. That factor ought to be present in every well-conducted trial. It cannot therefore be a reason for a departure from the Costs Guidelines.

57 Finally, no departure from the Costs Guidelines is warranted by the length or nature of the claimant’s re-examination. ⁶² To the extent that the re-examination was unnecessary or unnecessarily protracted, that factor is reflected in the multiplier of five days of trial. It would be wrong in principle to increase the per-day multiplicand beyond the Costs Guidelines to reflect the same factor. It would also be wrong in principle to do so in order to punish or discipline the claimant for the improper purpose of the re-examination. ⁶³ The primary function of an award of costs is to compensate the successful party, not to punish or to discipline the unsuccessful party (see [73]–[74] below).

58 The features that the defendant has identified do, however, establish that the inherent complexity of this action warrants an award for trial at the maximum stipulated in the Costs Guidelines. In my view, therefore, an award at the maximum of $16,000 per day under the Costs Guidelines for trial costs is a reasonable amount to reflect the work done for the defendant in executing on the pre-trial preparation during the five days of what was admittedly an intense and hard-fought trial. This yields an award of $80,000 for trial costs.

59 The range in the Costs Guidelines for post-trial costs in an action like this is up to $30,000. As I have noted, the parties’ written submissions meet at the same figure of $50,000 for post-trial costs. ⁶⁴

60 I fix the post-trial costs at $50,000. This represents a departure of $20,000 from the Costs Guidelines. It appears to be both parties’ case that a departure is warranted. I accept that. The departure is warranted by: (a) the range and content of the defendant’s written closing and reply submissions; (b) the costs of preparing those submissions; (c) the preparations for attending before me to present the closing submissions, including the refresher required by the three-month gap between the written closing submissions and the oral closing submissions; ⁶⁵ (d) the attendance before me to present the oral closing submissions; and (e) the written submissions on costs.

61 The claimant advances two reasons for depriving the defendant of part of her costs: (a) the claimant’s settlement overtures before trial; and (b) certain negative aspects of the defendant’s conduct.

62 I take these two reasons in turn.

63 The claimant’s first reason is her settlement overtures. She participated in a full-day mediation in April 2024 and in an exchange of settlement terms in October 2024 and again in April 2025. ⁶⁶ She says these overtures “represent genuine attempts…to settle” this action and deserve “due recognition” on the issue of costs, ⁶⁷ citing O 21 r 2(2)(a) and GTMS Construction Pte Ltd v Ser Kim Koi [2021] SGHC 33 at [23]. ⁶⁸

64 I give these overtures no weight. The content of the discussions at the mediation and of the settlement terms exchanged are not before me. I cannot therefore make any finding as to whether the defendant acted reasonably or unreasonably in not responding to these overtures and in not settling this action.

65 In any event, the claimant lost this action outright. It is a reasonable inference that any settlement overtures involved the defendant paying to the claimant a non-zero sum to settle this action. The defendant refused to do so, went to trial and won an unqualified vindication. If the overtures point anywhere at all on the issue of costs, they point in the defendant’s favour, not in the claimant’s favour. Whether the claimant was or was not genuine in making or participating in these settlement overtures is no longer to the point. Events have demonstrated that the defendant was correct, and therefore acted reasonably, in not responding to the probable contents of these overtures and in refusing to pay the claimant a non-zero sum to settle this action.

66 The claimant’s second reason for asking me to deprive the defendant of part of her costs is to account for two negative aspects of the defendant’s conduct. ⁶⁹ The first aspect is the unsatisfactory quality of the defendant’s evidence at trial. To support this reason, the claimant relies on my adverse findings against the defendant in the Judgment at [168]. ⁷⁰ The second aspect is the defendant’s alleged failure to comply with certain disclosure orders. To support this reason, the claimant points out that it was only after I twice ordered the defendant ⁷¹ to search her mobile telephone during her cross-examination that she did so and then belatedly produced 16 responsive screen captures. The claimant says that this failure consumed hours of cross-examination and was never satisfactorily explained. ⁷²

67 The defendant resists any reduction of her costs award on any ground. ⁷³ She characterises this aspect of the claimant’s submission as an application for a “Type I” costs order under the framework in Comfort Management Pte Ltd v OGSP Engineering Pte Ltd [2022] 5 SLR 525 (“Comfort Management”). She says that a Type I order is made sparingly, that she was the successful party and that my findings about her evidence did not change the result of the action. ⁷⁴

68 For the reasons that follow, I decline to make a Type I order on grounds of either aspect of the defendant’s conduct.

69 Under the analytical framework in Comfort Management, a Type I costs order is an order that deprives a successful party of all or part of her costs. A Type II costs order goes further than a Type I order and requires the successful party to pay all or part of the unsuccessful party’s costs (Comfort Management at [41]):

70 Comfort Management concerned the discretion to make a Type I order on the grounds that the successful party had raised and then failed on a discrete claim or issue. But the conceptual distinction between a Type I order and a Type II order turns on the conceptual nature of the order and not on the feature that triggers the order of either type.

71 Comfort Management was decided under the Rules of Court 2014 (“the 2014 Rules”). The power to make a Type I order was then found in O 59 r 6A of the 2014 Rules (Comfort Management at [42]). Under the current Rules, the power to make a Type I order is found in O 21 r 4 of the Rules:

72 I begin with the principles applicable to the power to make a Type I order.

73 As a general rule, costs as between party and party are awarded to compensate the successful party for the costs it has incurred in vindicating its rights. Subject to the policy against inhibiting access to justice, an award of party and party costs is intended to indemnify the successful party by enabling her to recover a reasonable amount for costs reasonably incurred, no more and no less: Then Khek Koon v Arjun Permanand Samtani [2014] 1 SLR 245 at [156], endorsed on appeal in Maryani Sadeli v Arjun Permanand Samtani [2015] 1 SLR 496 at [31]–[32] (“Maryani Sadeli”).

74 Costs are not awarded to punish or discipline the unsuccessful party or to reward the successful party. The classic statement is that of Bramwell B in Harold v Smith (1860) 5 H&N 381 at 385: costs are “not imposed as a punishment on the party who pays them, nor given as a bonus to the party who receives them”. Costs are equally not withheld to punish or discipline the successful party or to reward the unsuccessful party. The touchstone at all times is reasonableness assessed within the context of the compensation that the indemnity principle dictates.

75 In my view, the discretion to make a Type I order under each limb of O 21 r 4 of the Rules ought generally to be exercised only to the extent that the successful party’s conduct falling within that limb has increased unreasonably the costs that the successful party has incurred and is seeking to recover from the unsuccessful party. I say that for two reasons.

76 First, a Type I order is a costs order, and the power to make all costs orders is modulated by the compensatory aim of the indemnity principle. Like all costs orders, the purpose of the discretion to make a Type I order is not to punish or discipline the successful party. A Type I order, once made, may have the same effect as punishment or discipline, in the sense that depriving a successful party of all or part of its costs has the effect of discouraging unreasonable conduct, either specifically by this successful party in future litigation or generally by other litigants who succeed in other litigation. But it has that effect only indirectly, by withholding any incentive to engage in conduct that comes within O 21 r 4 of the Rules, and not directly by punishing or disciplining the party who has engaged in that conduct.

77 Second, the power to make a Type I order is also modulated by the expressly permissive language of O 21 r 4 of the Rules. A Type I order is not obligatory once it is shown that the successful party’s conduct falls within one of the limbs of O 21 r 4 of the Rules. This rule provides only that the court may make a Type I order where one of its four limbs is engaged. It is true that only the first of these limbs – which is engaged when a successful party has raised a discrete issue unsuccessfully – expressly requires that the successful party should “thereby” have increased its costs. But the compensatory aim of the indemnity principle and the permissive nature of O 21 r 4 of the Rules carry that requirement through to the other three limbs of O 21 r 4.

78 In my view, therefore, the fact that a successful party falls within any limb of O 21 r 4 of the Rules does not in itself warrant a Type I order. The successful party must thereby have increased its costs unreasonably. That is what makes it unjust to require the unsuccessful party to bear those costs and warrants a reduction in the award of costs against the unsuccessful party.

79 The discretion under O 21 r 4 of the Rules is therefore not engaged unless the conduct of the successful party that falls within one of the limbs of that rule has caused the successful party to incur costs unreasonably, ie, to incur costs for which the unsuccessful party should not be obliged to compensate her.

80 I take the complaint about the defendant’s evidence first. The complaint brings this complaint under O 21 r 4(b) of the Rules. ⁷⁵ That limb addresses a party who has done or omitted to do anything unreasonably. In my view this complaint does not engage O 21 r 4(b) at all. The unreasonable conduct to which r 4(b) is directed is a successful party’s unreasonable conduct of the litigation. That much is clear from the three other limbs of O 21 r 4. They are all concerned with the way a party conducts the litigation: raising and losing on discrete issues, failing to consider amicable resolution and failing to comply with orders of the court.

81 In my view, O 21 r 4(b) of the Rules is not directed at the way a party, when she gives evidence at trial in her capacity as a witness, answers the questions put to her. The consequence of the unsatisfactory quality of a witness’s evidence lies ordinarily in the court’s unfavourable assessment of that evidence in the totality of the evidence at trial and its effect on the court’s ultimate decision. In an egregious case, the unsatisfactory quality of a witness’s evidence may have criminal consequences. It would be wrong in principle, in addition, to reflect any concern about the unsatisfactory quality of that evidence by reducing the costs award without regard to the compensatory aim of the indemnity principle.

82 The claimant’s complaint is that the defendant was an evasive witness who deflected questions and could not be brought to answer directly. That is a complaint about the defendant’s conduct as a witness, not about her conduct of the litigation. It does not in my view come within the scope of O 21 r 4(b) of the Rules. In M Asset Pte Ltd v Inngroup Pte Ltd [2021] SGCA 54 the Court of Appeal said this (at [25]): “We do not think costs should be used to punish a litigant’s or its witness’ conduct where there is no evidence that such conduct led to a longer trial or made the issues a lot more complex than originally expected, such that the other party’s costs estimate could be deemed to be an under-estimate.”

83 I do not exclude the possibility that a successful party’s conduct as a witness might, in another case, form part of her unreasonable conduct of the litigation overall. For example, a party may deliberately and dishonestly advance and persist in maintaining a case that she knows to be false. As part of that, she may give evidence at trial that is unsatisfactory (see Denis Matthew Harte v Tan Hun Hoe and another [2001] SGHC 19 at [41(o)]). But that is not the claimant’s complaint. Her complaint is about the unsatisfactory quality of the defendant’s evidence alone, not that that conduct is merely one dimension of dishonestly advancing a false case.

84 Finally, and in any event, even if I am wrong in the foregoing, I would decline to exercise my general discretion on costs under O 21 r 2 of the Rules to reduce the defendant’s award of costs to take into account the unsatisfactory quality of her evidence. One of the relevant circumstances in exercising the general discretion on costs is the conduct of both parties: O 21 r 2(2)(f) of the Rules. As I have noted, my reservations about the quality of the oral evidence were not one-sided. I found that both the defendant and the claimant were unsatisfactory witnesses but that the unsatisfactory nature of their evidence did not affect the outcome. ⁷⁶ In these circumstances it would not be just to single out the defendant for a Type I order, given that she has been completely vindicated.

85 The complaint about the defendant’s alleged non-compliance with the disclosure orders falls within the express terms of O 21 r 4(d) of the Rules. ⁷⁷

86 Even so, I find that this complaint fails. For the reasons I have given, the breach of an order of court is not in itself enough to warrant a Type I order. It would warrant such an order only if the breach had unreasonably increased the costs that the defendant (as the successful party) incurred and which the claimant (as the unsuccessful party) must now bear.

87 In my view, any breaches by the defendant of the disclosure orders did not have that effect. The cross-examination directed to the non-compliance with the orders, and to the defendant’s WhatsApp communications with Mr Lessa, went primarily to credibility. It did not assist in resolving the issues that I had to decide on the merits. I decided those issues largely on the contemporaneous documents. ⁷⁸

88 Further, the breaches did not materially increase the defendant’s costs. It was claimant’s counsel, not defendant’s counsel, who prepared and carried out the cross-examination in question. The costs of the lengthened cross-examination therefore fell on the claimant, not on the defendant. The effect of the cross-examination on the defendant’s costs was marginal. The effect of these breaches, if they were indeed breaches, was to increase the claimant’s costs, not the defendant’s costs.

89 It would therefore not be just to make anything other than the usual order that the defendant’s costs of this cross-examination form part of the costs that follow the event.

90 I therefore order the claimant to pay the defendant the costs of this action in the total sum of $244,165.50 comprising:

(a) the costs of the action fixed on the standard basis at $215,000;

(b) the disbursements of the action fixed by agreement at $20,494.90; and

(c) the costs of the interlocutory applications ordered to be in the cause fixed by agreement in the sum of $8,670.60.