5 S.Ac.L.J.
Taxation of Party and Party Costs in Civil Proceedings
309
TAXATION OF PARTY AND PARTY COSTS
IN CIVIL PROCEEDINGS
1.
INTRODUCTION
The taxation of party and party (P/P) costs in civil proceedings is governed
by Order 59 of the Rules of Supreme Court1 and Orders 56 and 57 of the
Subordinate Courts Rules2. This Paper will discuss the general principles of
taxation of P/P costs, taxation review as well as the review of Registrar’s
certificate by Judge in Chambers.
2.
TAXATION OF PARTY AND PARTY BILLS OF COSTS –
GENERAL PRINCIPLES
2.1
The Basis Of Taxation
Under the Rules, there are only 2 bases of taxation3 – the standard basis and
the indemnity basis.
Unless the court orders otherwise, P/P bills are taxed on the standard basis4.
In fact, where the court makes an order for costs without indicating the basis
of taxation or an order that costs be taxed on any basis other than the
standard basis or indemnity basis, the costs shall be taxed on the standard
basis5.
On the taxation of costs on the standard basis, there shall be allowed a
reasonable amount in respect of all costs reasonably incurred. Any doubts
which the Registrar may have as to whether the costs were reasonably
incurred or were reasonable in amount shall be resolved in favour of the
paying party6. The burden is on the party whose bill it is to prove that the
costs and/or their amounts are reasonable.
In other words, the Registrar will apply a 2-stage test as follows:
(1) whether the types of costs in question were reasonably incurred such
that, in principle, they were recoverable from the paying party; and
1.
2.
3.
4.
5.
6.
1990 Edition.
1993 Edition.
Under the pre-1 February 1992 Rules of Supreme Court and the pre-1 April 1992 Subordinate
Courts Rules, there were 4 statutory bases (1) party and party basis (2) solicitor and client basis
(3) common fund basis and (4) trust fund basis. At common law, there was also the indemnity
basis created by EMI Records Ltd v. Ian Cameron Wallace Ltd [1983] Ch 59.
Order 59 Rule 27(1) of the Rules of Supreme Court and Rule 26(1) of Orders 56 and 57 of the
Subordinate Courts Rules,
Order 59 Rule 27(4) of the Rules of Supreme Court and Rule 26(4) of Orders 56 and 57 of the
Subordinate Courts Rules.
Order 59 Rule 27(2) of the Rules of Supreme Court and Rule 26(2) of Orders 56 and 57 of the
Subordinate Courts Rules.
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(2) if “yes”, what would be a reasonable quantification of the costs in
question.
The court making the order for taxation may, if it appears appropriate, order
the P/P costs to be taxed on the indemnity basis7. On the taxation of costs
on the indemnity basis, all costs shall be allowed except in so far as they
are of an unreasonable amount or have been unreasonably incurred. Any
doubts which the Registrar may have as to whether the costs were reasonably
incurred or were reasonable in amount shall be resolved in favour of the
receivingparty 8 . The burden is on the paying party to prove that the incurring
of the costs and/or the amounts are unreasonable.
The correct viewpoint to be taken in considering whether any step was
reasonable or unreasonable is that of a sensible solicitor considering what,
in the light of his then knowledge, was reasonable in the interest of his
client9.
For litigants in person, on the taxation of costs, there may be allowed such
costs as would reasonably compensate the litigant for the time expended by
him, together with all expenses reasonably incurred10.
Taxation of P/P costs may be for the following:
1.
costs of an action or interlocutory application;
2.
costs of an appeal; or
3.
costs thrown away due to the vacating of the hearing date (trial,
assessment of damages or any interlocutory application).
I will proceed to deal with the general principles applicable to each type of
P/P taxation.
2.2
Costs Of An Action Or Interlocutory Application
The following general principles are applicable to the taxation of the costs
of an action or interlocutory application.
2.2.1 Where Parties Settled Before The Hearing
Very often, the parties settle the matters just before the hearing. The first
issue that arises is whether, in principle, it would follow that whatever items
Order 59 Rule 27(1) of the Rules of Supreme Court and Rule 26(1) of Orders 56 and 57 of the
Subordinate Courts Rules.
8. Order 59 Rule 27(3) of the Rules of Supreme Court and Rule 26(3) of Orders 56 and 57 of the
Subordinate Courts Rules.
9. Francis v. Francis and Dicker son [1955] 3 All ER 836.
10. Rule 18A of Order 59 of the Rules of Supreme Court as well as Orders 56 and 57 of the
Subordinate Courts Rules.
7.
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Taxation of Party and Party Costs in Civil Proceedings
311
that were originally pleaded in the statement of claim as special damages
would no longer be recoverable as disbursements in the P/P taxation if the
parties entered into a global settlement for the claim. It is submitted that such
items would in fact cease to be recoverable11.
The second issue is whether the party entitled to taxed costs should be
awarded the costs of “getting-up” (ie the legal research and the general
preparation for the hearing) when there was no hearing12.
In Re Kana Moona Syed AbuBakar decd13, Aitken J held that “the true test
to apply is not whether or not an issue had proceeded to trial, but whether
or not a solicitor and advocate has acted reasonably and properly in getting
up his client’s case in readiness for a trial”.
In Lee Bang v. Nadzri 14 , Maclntyre J adopted Aitken J’s statement of the law
and held that15:
“The principle established by this ruling is that where the proceedings
in an action have reached a stage where a hearing in open court is
inevitable the legal advisers of the parties are entitled to be in readiness
for the hearing and must be compensated for the work done irrespective
of whether there was actually a hearing in open court or not.”
As such, it is submitted that, in determining whether “getting-up” should be
included in the taxed costs, the stage at which the parties settled the matters
must be of paramount consideration. If it was settled at a very late stage such
11. This is based on the reasoning in Chai Chung Ching Chester & Ors v. Diversy (Far East) Pte
Ltd [1991] 3 MLJ 444. In that case, the parties entered into a settlement agreement where, for
the consideration of $400000, the plaintiffs agreed to release the defendant from “all claims,
demands and liabilities of whatsoever nature and whensoever arising or incurred up to and
inclusive of the date (of the agreement) including but not limited to the claim in the suit.” In
the plaintiffs’ bill of costs, they added 2 sums of professional fees which were paid to third
parties. These sums were expressly pleaded and particularized in the statement of claim as
special damages. The High Court held that, on a proper construction of the agreement, the
settlement agreement released the defendant from all claims that were pleaded in the action, as
such, the disputed items were not recoverable as costs in the action. The appeal to the Court
of Appeal vide CA 52/91 was dismissed. See Diversey (Far East) Pte Ltd v. Chai Chung Ching
Chester & Ors [1993] 1 SLR 535.
12. Where parties were entitled to taxed costs before 1 February 1992 in the Supreme Court and
before 1 April 1992 in the Subordinate Courts, the taxation was under the old Rules and the old
bills of costs required all items of costs claimed to be listed. The most contentious item is that
of “getting-up” for trial, hearing or appeal, which generally consist of the work done in considering
the facts and law; attending on and corresponding with client; interviewing and corresponding
with witnesses; perusing pleadings, affidavits and other relevant documents; the general care
and conduct of the proceedings etc. Under the new Rules, the item of “getting-up” does not exist
by itself. However, as “getting-up” is subsumed into the costs for section 1 of the bill, the
general principles regarding the item of “getting-up”, as established in the cases interpreting the
old Rules, are still relevant under the new Rules.
13. [1940] MLJ 4.
14. [1965] 2 MLJ 186.
15. Ibid at page 188.
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that the party entitled to taxed costs would have already been fully prepared
for the hearing, then in principle, a substantial part of, or even the full
“getting-up”, should be allowed.
It would be instructive to note the following cases.
In Jendol v. Ng Beng Chan16, Wee J (as he then was) held that the successful
party in that case was entitled to “getting-up” fee even though the case had
not been set down for trial. In that case, the defendant made payment into
court 2 days after the defence was filed, in satisfaction of the plaintiffs’ fatal
accident claim. The court held that the “getting-up” fee was clearly justified
on the ground that in a “running down” case, if a solicitor has to decide
whether the amount paid into court should be accepted, he has to go into the
questions of liability and quantum, and this necessitates some “getting-up”17
It would also be useful to note Thorne Ag.CJ’s comments in The State of
Selangor v. Kepong Dredging Co Ltd18, where His Lordship held:
“In my view, this item (getting-up) cannot be charged until the case has
proceeded to such a stage that the plaintiffs’ advisers know what are the
issues of fact and law to be debated at the trial. Usually, that stage will
not be reached until the pleadings had been closed.” (emphasis mine)
However, in Lee Bang v. Nadzri 19 , the court conceded that in certain cases,
an issue for trial may be present irrespective of whether the defendant enters
an appearance, delivers his defence or even admits liability. For example, in
an action for personal injury, even if the defendant failed to enter an appearance such that an interlocutory judgment could be entered, the amount of
damages is still in issue, thus necessitating “getting-up”.
In fact, Choor Singh J went even further in Starlite Ceramic Industry Ltd v.
Hiap Huat Pottery20, holding that, in principle, there may well be cases in
which “getting-up” done before the issue of the writ may be allowed21. A
similar view was taken in Frankenburg v. Famous Lasky Film Service Ltd22,
where the English Court of Appeal held that the allowance of costs before
the issue of writ was a matter within the discretion of the Registrar, whose
duty was to consider all the facts of the case and to allow all such costs as
in his opinion had been properly incurred before the action was brought, in
obtaining materials which would be useful to the plaintiff at the trial. It is
submitted that, in determining whether it was reasonable to “get-up” the case
16.
17.
18.
19.
20.
21.
HC Suit No. 1574/61, unreported.
See Starlite Ceramic Industry Ltd v. Hiap Huat Pottery [1973] 1 MLJ 146 at page 149.
[1932] MLJ 181.
Ibid footnote no. 14 at page 188.
[1973] 1 MLJ 146, at page 149.
His Lordship opined that one example of such a case would be a libel action, where it would
be unthinkable for a responsible solicitor to issue a writ without doing his “getting-up”.
22. [1931] 1 Ch 428.
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Taxation of Party and Party Costs in Civil Proceedings
313
before the issue of the writ, it would be important to consider the nature of
the action, in that, the more complex the case, the easier it would be to so
justify.
2.2.2 Where The “Getting-Up” For Certain Issues Were Not Used
In United Malayan Banking Corporation Berhad v. Goodhope Realty (Private)
Limited & Ors23, the defendants did “getting-up” for 5 issues which they
identified as being relevant. Only 2 issues were really canvassed at the
hearing. During taxation, the plaintiff contended that the defendants were
only entitled to the costs of the issues that were canvassed at the hearing. On
review, Karthigesu J held24:
“...a defendant has to prepare his case in anticipation of what he might
expect to meet from the plaintiffs arising from the pleadings or in this
case from the reliefs claimed in the Originating Summons and the
affidavits[.]...The getting-up should be based on what is regarded as
reasonable preparation to meet the other side’s case and should not be
limited to how much of the getting-up is in fact used. After all it is the
plaintiff in a case who has the conduct of the proceedings and to a
certain extent controls its progress at the hearing.” (emphasis mine).
Karthigesu J held further that in determining the issues that the defendants
had to meet, it would also be appropriate to look at the authorities included
in the plaintiff’s bundle of authorities.
As regards the reverse situation where the successful plaintiffs did “gettingup” for several issues that they identified as being relevant, but actually
canvassed only some of the issues at the hearing, it is submitted that the
above principle should be equally applicable25.
2.2.3 Where The Successful Party Actually Failed On Some Issues
Very often, a successful party may have actually failed on some of the issues
that were raised in the proceedings, but the trial judge did not expressly order
that the successful party be awarded only a certain fraction of the taxed
costs26. In such a case, the question which arises is whether the successful
23. High Court Originating Summons No. 1130/86, unreported.
24. At pages 6 and 7 of the judgment.
25. The reason is that a plaintiff, in prosecuting his claim, should be entitled to consider all possible
causes of action. Quite often, it is the judge who declines to hear the arguments pertaining to
the rest of the issues, after being satisfied that the plaintiff’s first cause of action succeeds. In
such a case, it would be unfair not to allow the plaintiff to recover the “getting-up” for the rest
of the issues, unless those issues were irrelevant and unnecessary.
26. This can be done pursuant to Rule 9(4)(a) of Order 59 of the Rules of Supreme Court and Rule
9(3)(a) of Orders 56 and 57 of the Subordinate Courts Rules. For an example of such an order,
see Diversey (Far East) Pte Ltd v. Chester Chai Chung Ching & Ors [1993] 1 SLR 542, where
the Court of Appeal awarded the appellants only half of the costs of the appeal as they did not
totally succeed in their submission.
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party would be entitled to the full costs of the proceedings, including the
“getting-up” on the issues that failed27. There are 3 possible views.
First, the successful party would not be entitled to the costs of the “gettingup” for the issues that he lost, as costs follow the event.
Secondly, the successful party would be entitled to his full “getting-up”,
including the “getting-up” for the issues that failed. This is because, in the
absence of an order expressly depriving the successful party of his costs on
the failed issues, it must be assumed that the trial judge had intended to
award full costs28. Moreover, in an adversarial system, the burden is on the
paying party to argue that only a fraction of the taxed costs should have been
awarded in view of the failed issues.
Lastly, the successful party would be entitled to the costs of the “getting-up”
for the issues that failed, provided that, considering the circumstances and
nature of the case, it was fair and reasonable for those issues to be raised29.
In other words, there is no hard and fast rule. Each case must be considered
on its own facts30.
It is submitted that the last view is the best amongst the 3 views, as it is the
fairest and is also consistent with the basis of taxation31.
27. According to the writer’s research, there are no reported local cases on point.
28. Such an assumption may well prove to be wrong as it seems that many trial judges do not
address their minds to this problem when they order costs.
29. This principle was applied by the learned Registrar in Subordinate Courts Bills of Costs 18626/92, where the paying party was the plaintiff in an action for possession of certain properties.
On appeal to KS Rajah JC, though the defendants lost on the issue of ownership of the properties,
they were held to be entitled to an equity to be assessed, and costs of the appeal (with no
apportionment) were awarded to the defendants. On taxation, the learned Registrar held that,
although the defendants failed on the issue of ownership, under the circumstances, it was fair
and reasonable for them to have defended the plaintiff’s claim to ownership. As such, the
learned Registrar held that the defendants were entitled to the full costs, including the “gettingup” on the ownership issue which they lost.
30. Some authority for this view may be found in Blank v. Footman, Pretty, & Co (1888) 39 Ch
678 which actually dealt with the trial judge’s discretion as to costs when the successful party
actually failed on some issues raised. Nevertheless, it is indicative of the way the Registrar
should approach the taxation of such a case. In that case, the defendant raised 7 defences but
succeeded in only one. The learned Judge allowed costs of 6 issues and the reason was as
follows:
“the defendant is entitled to put his back against the wall and fight from every available point
of advantage. I think it would be extremely hard on defendants if as a rule they were told at
the end of the trial, `You have beaten the plaintiff, but because you have raised some points on
which you have not succeeded you shall not have all the costs of the action’[.]...On the other
hand, it is a useful rule that where there is a distinct issue on which the generally successful
party has failed and that issue has really no immediate connection with those upon which the
party had succeeded, then he ought not to have the costs of that issue which presumptively ought
never to have been raised.” (at page 685).
31. The writer understands that there is some opposition to the third view. Proponents of the second
view opine that it would be unfair for the successful party to be put in any uncertainty as to his
entitlement to full costs. Moreover, the Registrar is duty-bound to tax the bill in accordance with
the order of court, and it is not the Registrar’s duty to embark upon an enquiry as to how the
trial judge decided each issue that was raised in the hearing.
5 S.Ac.L.J.
2.2.4
Taxation of Party and Party Costs in Civil Proceedings
315
Where The Plaintiff Was Contributorily Negligent
Very often, the plaintiffs in runner actions are held to be contributorily
negligent, but the trial judge did not order fractional costs to be awarded.
Presently, there seems to be some uncertainty regarding the taxation of such
cases. The problem is best illustrated by way of an example.
For instance, the damages suffered by the plaintiff were assessed at $50000.
The plaintiff was held to be 40% contributorily negligent, and thus, he
recovered only $30000. The plaintiff will argue that the work done for the
action must be based on the assessed amount of $50000, and cites a previous
bill where $12000 had been awarded for section 1 in a similar action where
the plaintiff succeeded in a claim of $50000. On the other hand, the defendant
will argue that, for purposes of quantification of costs, the work done for the
action must be based on $30000, which was the amount the plaintiff finally
recovered, and cites a precedent where $9000 was awarded for section 1 in
a similar action where the plaintiff succeeded in a claim of $30000. In such
a case, there are 2 ways to tax the bill of costs.
First, the Registrar may tax the bill as if the plaintiff had been awarded
$50000, as that would represent the actual amount of work done by the
plaintiff. Thereafter, as costs follow the event, the plaintiff is only entitled to
recover a proportion of the taxed costs, such proportion being identical to
that for which he had succeeded against the defendant. As such, if the Registrar
was minded to award $12000 as taxed costs for a claim of $50000, the
plaintiff will only be allowed to recover $720032.
Secondly, the Registrar should proceed to tax the bill based on the work
done for a $30000 claim. Thereafter, the Registrar should increase the taxed
costs according to the additional work done by the plaintiff’s solicitors as
regards the damages that were not recovered because of contributory
negligence. As such, assuming that the Registrar was minded to award taxed
costs of $9000 and $12000 for a $30000 claim and $50000 claim respectively,
in this case, the Registrar should award a figure which exceeds $9000 but
definitely less than $12000.
It is submitted that the second approach is better33.
However, if fractional costs were ordered by the court as a result of the
plaintiff’s contributory negligence, then the first approach would be correct,
as the trial judge had clearly intended to deprive the plaintiff of his full costs
in view of the defendant’s success in arguing contributory negligence.
32. Which is 60% of $12000.
33. The first approach, though simple, presumes that the trial judge had intended the plaintiff to
recover costs in the same proportion as the claim. In the absence of an express order of court,
it may be conceptually wrong to presume so.
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2.2.5 Costs Of Multiple Actions Involving The Same Issues
Sometimes, a plaintiff takes out several suits against different defendants, all
of which concern the same or similar nature of action. Due to their similarity,
the actions, which are not consolidated, are usually heard together, and in
practice, only one or two of those actions are proceeded on, with the rest to
be bound by the outcome of the hearing for those which proceeded.
In such a case, there is a question as to how the several bills should be taxed,
and in particular, whether a higher quantum should be awarded in the bills
of costs for the actions that actually proceeded, or should the Registrar
disregard that fact and tax the bills equally. It is submitted that the answer
depends on who was the successful party entitled to taxed costs, whether
different firms of solicitors were instructed by the different defendants and
whether the different defendant solicitors worked together in the matters
concerned. Assuming that the “getting-up” done by and against each
defendant were largely similar, it is submitted that the law is as follows:
(1) if all the defendants were represented by the same firm of solicitors, it
would seem that the bills of costs, whether presented by the plaintiff or
defendants, should be taxed equally. The appropriate global sum that
should be awarded to the successful party for all the work done in
relation to the different actions should be ascertained first, and this
global sum should then be divided by the number of actions, and
appropriate figures be awarded accordingly34;
(2) if the defendants were successful and they were represented by different
firms of solicitors who did not work together on the matters concerned,
then, in principle, each bill should be taxed on its own, as if the plaintiff
had only sued one defendant35. However, a slightly higher quantum
should be awarded in the bills of costs for the actions that actually
proceeded36;
34. This was applied by the learned Registrar in the defendants’ Bills of Costs 1862-6/92 and 20582062/92 in MC Suits 5678-62/90. The reason is that the defendants’ solicitors’ “getting-up”
were not for any particular action, and the defendants themselves would expect to be rendered
the same Solicitor and Client (S/C) bill. To award a higher quantum for the actions that proceeded
would result in a situation where the defendants’ solicitors would be hard put to explain to their
clients why some of them would be paying less costs than the others. This situation would not
be so difficult if the defendants won, but would really cause a lot of problems for the defendants’
solicitors if the defendants had lost.
35. This is because each firm of solicitors would have done their own “getting-up”, and it would
not be fair that the value of their work be reduced just because other firms had done the same
“getting-up”, as the defendants in a multiple action are not obliged to engage the same firm of
solicitors. In other words, the plaintiff would have to pay for several sets of costs of “gettingup”.
36. Such a difference is made so as to recognise the fact that the solicitors for these actions had
faced the vicissitudes of a hearing, while the rest simply waited for the outcome.
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Taxation of Party and Party Costs in Civil Proceedings
317
(3) if the successful defendants were represented by different firms of
solicitors who had worked together on the matters concerned, then the
global sum approach as in cases where the defendants were represented
by the same firm of solicitors, would be appropriate37; and
(4) if the defendants were represented by different firms of solicitors and
the defendants had to pay costs, then, whether or not the different firms
had worked together on the matters concerned, the global sum approach
would be appropriate in assessing the quantum of costs to be awarded
to the plaintiff for each action. As such, all the defendants would have
to pay the same quantum of costs38.
However, if the plaintiff’s case against one of the defendants was more
complex than the others, resulting in that particular defendant and the plaintiff
having to do substantially more “getting-up” in that case, compared to the
cases against the other defendants, it is submitted that the following principles
would be applicable:
(1) if all the defendants were represented by the same firm of solicitors, it
would seem that the bills of costs, whether presented by the plaintiff or
the defendants, should not be taxed equally. The appropriate global
sum that should be awarded to the successful party for all the work
done in relation to the different actions should be ascertained first.
This global sum should then be apportioned amongst the different actions,
such that a higher quantum of costs would be awarded to or against the
defendant who had the more complex case39, with the rest of the bills
being taxed equally40;
(2) if the defendants were successful and they were represented by different
firms of solicitors who did not work together on the matters concerned,
then, in principle, each bill should be taxed on its own, as if the plaintiff
had only sued one defendant. However, a higher quantum should be
awarded in the bills of costs for the action that actually proceeded and
the defendant who had to do more “getting-up”41;
37. So that the overlap in the “getting-up” could be reflected.
38. To do otherwise would result in penalising the defendant(s) who were unfortunate enough to be
picked by the trial judge as the test case for which the rest of the actions would stand or fall
accordingly.
39. The reason is two-fold. First, if the plaintiff was the successful party presenting the bill, to tax
all the bills equally would mean that the costs of the additional “getting-up” done by the plaintiff
solely for the action against the defendant with the more complex case would have to be borne
by the other defendants too. This would not be fair to them. Secondly, if the defendants were
the successful party presenting the bills, to tax the bills equally would be unfair to the defendant
with the more complex case because it is highly probable that the S/C bill rendered to that
particular defendant would be higher than the other defendants in view of the additional “getting-up” done for that particular case.
40. The difference between the bill rendered to or against the defendant who had the more complex
case and those bills rendered to or against the other defendants would depend on the amount
of additional “getting-up” done just for the more complex case.
41. Of course, the more complex case might also have been the action that actually proceeded for
hearing. Indeed, it is likely to be so.
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(3) if the successful defendants were represented by different firms of
solicitors who had worked together on the matters concerned, then the
global sum approach as in cases where the defendants were represented
by the same firm of solicitors, would be appropriate; and
(4) if the defendants were represented by different firms of solicitors and
the defendants had to pay costs, then, whether or not the different firms
had worked together on the matters concerned, the global sum approach
would be appropriate in assessing the quantum of costs to be awarded
to the plaintiff for each action. In apportioning the global costs amongst
the defendants, the defendant with the more complex case would have
to pay a higher quantum of costs than the others, who would be paying
the same amount of costs. This is to reflect the fact that the plaintiff had
done more work vis-a-vis that defendant.
2.2.6 Where The Action Included Third Party Proceedings
In Bill of Costs 2104/9242, the plaintiffs’ action was dismissed with costs.
The defendant’s bill included work done and disbursements incurred in relation
to a Third Party Notice that was not served as the Third Party had fled the
jurisdiction, on the ground that such work was “costs in the cause”. The
learned Registrar held that in principle, such costs cannot be recovered from
the plaintiff unless the court had so specifically ordered, as such work would
only be “costs in the cause” in the action vis-a-vis the defendant and the
Third Party 43.
2.2.7 Where The Action Included A Counterclaim
It is submitted that there are 4 possibilities as follows.
First, the plaintiff may have been successful in his claim and was awarded
his costs, but unsuccessful in defending the counterclaim and had to pay
costs. Here, the plaintiff would be able to recover the costs of the claim,
including costs which are common to the claim and the counterclaim. The
defendant would not be able to recover common costs, but only those costs
attributable to the counterclaim44.
Secondly, the plaintiff may have failed in his claim and was ordered to pay
costs, but was successful in defending the counterclaim and was awarded
42. In MC Suit 13111/89, unreported.
43. The learned Registrar rejected the defendant’s argument that the plaintiffs should be liable as
the costs were incurred due to the plaintiffs’ fault in wrongfully commencing the action against
the defendant.
44. See Butterworths Costs Service paragraph A151. Thus, where the plaintiff’s claim was admitted
and there was no issue at the trial with reference to it but the whole trial was devoted to the
defendant’s counterclaim, the plaintiff is entitled, not to the general costs of the action, but only
to such costs as are reasonably incurred up to and including the setting down for trial.
5 S.Ac.L.J.
Taxation of Party and Party Costs in Civil Proceedings
319
costs. It is submitted that the defendant should be the party entitled to recover
the costs which are common to the claim and the counterclaim, and the
plaintiff will only be able to recover the costs attributable to the counterclaim45.
Thirdly, the plaintiff was successful in his claim and awarded costs and the
defendant’s counterclaim was also dismissed with costs. In such a case, the
costs of the claim should be taxed first, and in determining the costs of the
counterclaim, it must be noted that the unsuccessful defendant should only
be called upon to pay the amount by which the costs of the original action
had been increased46. This would depend on the type of claim and counterclaim
in question47.
Lastly, the plaintiff could have failed in both the claim and the counterclaim
and was ordered to pay costs of both sets of proceedings. It is submitted that
the approach just discussed would be equally applicable.
2.2.8 Where The Action Involved 2 Or More Defendants
The following principles are applicable if a single action involved 2 or more
defendants.
First, if a plaintiff obtained judgment with costs against 2 or more defendants,
he is entitled to turn to any of the defendants for his full taxed costs. It is
not open to any of the defendants to say that he is only proportionally liable
for the plaintiff’s taxed costs48. The exception to this rule arises only when
there is a separate defence for a particular defendant which is, and can only
be, a defence for that particular defendant, in which case, such costs incurred
by the plaintiff in dealing with that separate defence can only be recovered
against that particular defendant alone. This principle will apply even though
there is no specific direction to that effect49.
Secondly, if a plaintiff sued 2 or more defendants but succeeded against one
only, although the plaintiff will be able to recover the costs incurred in
45. This is based on the reasoning that the claim is usually seen as the main action. As such, the
party who was successful in the claim should be the one entitled to recover the common costs.
46. A.E. Beavis v. Foo Chee Fong (1938) 7 MLJ 129, following Medway Oil & Storage Co Ltd v.
Continental Contractors Ltd [1929] AC 88.
47. It should be noted that there are cases where the claim and the counterclaim are such that, if
the claim succeeds, then the counterclaim must accordingly fail. In such cases, it would probably
be right to conclude that the amount by which the costs of the original action had been increased
would be minimal. An example would be an accident claim, where the defendant filed a
counterclaim alleging that it was the plaintiff who was negligent. Here, once the court accepts
that the plaintiff’s claim succeeds, it must follow that the defendant’s counterclaim fails
accordingly.
48. Haji Abdullah v. Hua Hong & Anor [1969] 1 MLJ 28. In this case, one of the 2 defendants
failed to enter an appearance. The Court held that the defendant who defended the action must
pay the full taxed costs of the plaintiff, not merely half the taxed costs.
49. Stumm v. Dixon & Co and Knight (1889) 22 QBD 529 cited in Haji Abdullah v. Hua Hong &
Anor [1969] 1 MLJ 28, at page 29.
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common, he would not be allowed to recover the extra costs incurred by
joining the other defendant(s) unless the judgment specifically so provided50.
The successful defendant, if he was separately represented, would be able to
recover his full costs. However, if the successful and unsuccessful defendants
had retained the same firm of solicitors, then, in the absence of any agreement
between the defendants as to the incidence of costs, the successful defendant
would be entitled to recover only half the general or common costs of defence,
plus the full amount of any costs incurred exclusively on his behalf51.
Thirdly, where a plaintiff discontinued the action against one or more
defendant and succeeded against the others, he cannot recover the costs
thrown away in joining the defendants52.
Finally, if the defendants were separately represented by different firms of
solicitors and the action was dismissed with costs, then, in principle, more
than one set of costs may be awarded, unless the court ordered otherwise53.
However, if it was obvious that the different defendant solicitors had worked
together from the very outset, presumably and understandably, to save time,
effort and energy, such that each counsel did not on his own pursue the
“getting-up” wholly, then it would be necessary to reflect the element of
overlap accordingly54.
2.2.9 Where The Proceedings Involved 2 Or More Plaintiffs
The proper rule is that co-plaintiffs must act together, and without the leave
of the court, they are not entitled to separate representation. Unless severance
was ordered by the court, a Registrar had no power to allow more than one
set of costs55.
If a solicitor has acted for 2 plaintiffs and only one was successful in the
action, that successful plaintiff would be able to recover only those costs
solely attributable to himself and half the common costs56.
2.2.10 Where Proceedings In Other Jurisdiction Were Involved
In order to be recoverable, the costs must be costs of or arising out of any
proceedings in the Singapore High Court, District Court or Magistrates’
50. See Butterworths Costs Service paragraph A144.
51. Beaumont v. Senior [1903] 1 KB 282.
52. Paragraph 62/A4/120 at page 1131 of The Supreme Court Practice, 1993 Edition. See also
Stumm v. Dixon & Co and Knight (1889) 22 QBD 529 at 533 and Badische Anilein and Soda
Fabrik v. Hickson [1906] AC 419.
53. This is because a plaintiff who initiates an action against more than one defendant cannot
prevent the defendants from being separately represented because there is always a possibility
of conflict of interest: Lim Heng Hoo v. Tan Hock Hai [1976] 2 MLJ 159.
54. Welltrade Middle East Ltd & Anor v. PJ Wakelin & Anor [1984] 1 MLJ lxiv. The appeal against
the Registrar’s decision was dismissed by Wee CJ.
55. Paragraph 62/A4/121 at page 1132 of The Supreme Court Practice, 1993 Edition.
56. See Butterworths Costs Service paragraph A146.
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Taxation of Party and Party Costs in Civil Proceedings
321
Court, or proceedings before an arbitrator or umpire or before a tribunal or
other body constituted under any written law, not being proceedings in the
High Court57. As such, the costs of legal proceedings in other jurisdiction
cannot be recovered in the taxation of costs of proceedings in our courts.
In United Overseas Bank Ltd v. Low Ah Teh also known as Raymond Low 58,
the plaintiff bank commenced proceedings against 2 guarantors on a “joint
and several” guarantee. As one of them was resident in Hong Kong, separate
proceedings were commenced in Singapore and Hong Kong. Judgment was
obtained in both cases. The plaintiff bank then sought to recover the costs
of the Hong Kong proceedings from the defendant in Singapore, relying on
a clause in the guarantee which allows recovery of all costs and expenses
incurred by the bank in enforcing payment of the monies guaranteed. The
court held that the Hong Kong costs were not costs of or incidental to the
Singapore proceedings for which the bill was being drawn up. As a result,
those costs were disallowed.
2.2.11 Where Queen’s Counsels Were Retained
In Jeyaretnam Joshua Benjamin v. Lee Kuan Yew59, the Court of Appeal
alluded to the following principles in taxation of proceedings where Queen’s
Counsels (QCs) were retained:
(1) the costs of briefing the QC and taking advice from him, over the
telephone, at a time which is close to the trial, is recoverable in P/P
taxation;
(2) a reasonable period will be allowed for the QC to be in Singapore to
take instructions and prepare the case for trial; and
(3) there might well be cases where the fee of a “junior counsel” is or
should be justifiably more than that of a “senior counsel”. However, it
must be a very rare and exceptional instance, particularly when the
senior counsel instructed is a QC. Generally, where a QC has been
briefed on a matter and appears at a hearing, the load on the solicitor
in charge of the matter is considerably reduced and he has a less onerous
role to play60.
In Tay Beng Chuan v. Official Receiver and Liquidator of Kie Hock Skipping
(1971) Pte Ltd61, the learned Registrar held as follows:
57. Rule 2 of Order 59 of the Rules of Supreme Court and Orders 56 and 57 of the Subordinate
Courts Rules.
58. Bill of Costs 861/85 in High Court Suit 1294/84.
59. [1993] 1 SLR 185.
60. In that case, the paying party appealed against the decision of the Judge in Chambers who
dismissed the appeal against the learned Senior Assistant Registrar’s decision in awarding
“getting-up” of $136170.30 and $160000 to the QC and the junior counsel respectively. The
appeal was allowed by the Court of Appeal and the latter sum was reduced to $90000.
61. [1988] 3 MLJ viii. The decision was affirmed on appeal by Chao Hick Tin JC (as he then was).
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(1) a QC’s airfare is allowable in principle as the QC needs to travel to
Singapore. However, the successful party is only entitled to recover the
costs of a Business-class return ticket, as First-class travel is a luxury
which ought not to be borne by the paying party62; and
(2) the QC’s fees which were paid by the successful party to their QC
cannot be recovered as a disbursement item, as it would have already
been part of the “getting-up” for the hearing. To allow recovery would
be tantamount to letting one party decide the value of the “getting-up”.
2.2.12 Where Costs Were Incurred After Stay Of Proceedings
An order in an action for stay of proceedings does not necessarily mean that
all activities should be stayed. Therefore, if one of the parties during a stay
incurs costs for some useful purpose, and afterwards become entitled to his
costs of the action, the costs incurred during the stay may be allowed. It is
a matter within the Registrar’s discretion to say whether the costs so incurred
were incurred prematurely, and thus unreasonably, or whether the outlay was
advisable and useful for the purpose of the litigation still liable to take
place63.
2.2.13 Where One Of The Parties Was Represented By A Legal Officer Of
The State
In any civil proceedings before any court in which a legal officer64 appears
as an advocate under the provisions of the Government Proceedings Act65,
and costs are awarded to or against the Attorney-General, or to and against
the party on whose behalf such legal officer appears, such costs shall include
such items, including fees for drawing, for getting up the case and for
attendances, as would be included within the meaning of the word “costs”
in any written law if an advocate and solicitor of the Supreme Court had
62. It should be noted that this case was decided under the old Rules where the basis of P/P taxation
was “necessary or proper for the attainment of justice”. It is open to argument that, under the
new basis of taxation, the case may well be decided differently.
63. Societe Anonyme v. Merchants Marine [1928] 1 KB 750, followed in Scheff v. Columbia
Pictures Corp. Ltd [1938] 4 All ER 318.
64. Section 2(2) of the Government Proceedings Act, Cap 121, 1985 Edition, Singapore Statutes,
defines “legal officer” to include “a law officer and a legally qualified member of the AttorneyGeneral’s Chambers”. In turn, “law officer” is also defined in the same subsection to mean “the
Attorney-General and the Solicitor-General”.
65. Section 24(1) of the Government Proceedings Act, Cap 121, 1985 Edition, Singapore Statutes,
provides that “Notwithstanding the provisions of any written law, in any civil proceedings by
or against the Government a legal officer may appear as advocate on behalf of the Government
and may make and do all appearances, acts and applications in respect of such proceedings on
behalf of the Government”. See also subsections (2), (3) and (4) of Section 24 of the said Act.
5 S.Ac.L.J.
Taxation of Party and Party Costs in Civil Proceedings
323
appeared66. Such costs shall be in accordance with any scale of fees prescribed
from time to time to be chargeable by advocate and solicitor and may be
taxed in accordance with any written law for the time being in force for the
taxation of the fees and costs of such advocate and solicitor67.
As such, a bill rendered by a party represented by a legal officer of the State
can include profit costs68.
2.2.14
Where The Successful Party Was Represented By A Legal Officer
Of A Commercial Undertaking
If the party entitled to taxed costs was represented by a salaried legal officer
of a commercial undertaking, who does not practise in order to earn profits,
it is submitted that the Registrar should still proceed on the same basis as if
the litigant had been represented by a solicitor in private practice, assessing
the reasonable and fair amount having regard to all the circumstances of the
case and the principle that the taxed costs should not be more than an
indemnity to the party against the expenses to which he was put in the
litigation69.
As such, the bill can include profit costs.
66. Section 29(2) of the Government Proceedings Act, Cap 121, 1985 Edition, Singapore Statutes.
Section 130 of the Legal Profession Act, Cap 161, 1990 Edition, Singapore Statutes, similarly
provides that “Nothing in this Act shall affect the right, which is hereby declared, of the
Government when represented by any of such persons as are mentioned in section 29(2)(a) to
recover costs awarded to it in or respecting any cause or matter, and in any such cause or
matter the costs of the Government shall be taxed in accordance with any rules for the time
being in force for the taxation of the fees and costs of advocates and solicitors as if an advocate
and solicitor of the Supreme Court who is not in the service of the Government had appeared
on behalf of the Government.” In turn Section 29(2)(a) of the same Act refers to “the AttorneyGeneral, the Solicitor-General, State Counsel, Deputy Public Prosecutors and qualified persons
appointed temporarily to perform the duties of those persons to appear and plead on behalf of
the Government in those courts;”.
67. Section 29(3) of the Government Proceedings Act, Cap 121, 1985 Edition, Singapore Statutes.
Section 29(5) of the same Act provides that “Costs awarded in accordance with this section to
a party for whom any of the legal officers referred to in subsection (2) appears as advocate
shall, when recovered, be paid into the Consolidated Fund”.
68. The English position is similar. In Re Eastwood (deceased) [1975] 1 Ch 112, CA, costs were
incurred by the Attorney-General as the 11th defendant to an Originating Summons for the
construction of a will involving charitable gifts. The bill included profit costs. This item was
disallowed by the Taxing Master and Brightman J on review. However, the Attorney-General’s
appeal was allowed by the English Court of Appeal. The Court of Appeal conceded that “there
may be special cases in which it appears reasonably plain that the principle of indemnity will
be infringed if the method of taxation appropriate to an independent solicitor’s bill is entirely
applied: but it would be impracticable and wrong in all cases of an employed legal officer, to
require a total exposition and breakdown of the activities and expenses of the department with
a view to ensuring that the principle is not infringed, and it is doubtful to say the least, whether
by any method certainty on the point could be reached” (at page 132).
69. Re Eastwood (deceased) [1975] 1 Ch 112. Although that case involved a salaried legal officer
representing the Attorney-General, it was clear that the principle enunciated by the Court of
Appeal applied even to salaried legal officers of a commercial undertaking. See also footnote
68.
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2.2.15 Costs Of The Successful Party’s Attendance In Court
A party attending to give evidence is entitled to his expenses incurred70. In
fact, even if the successful party did not give evidence, it is submitted that
he should still be allowed the costs of his attendance as it would be reasonable
for him to so attend, since he has a personal interest in the outcome of the
hearing and his presence would allow the solicitor to take any instructions
at that crucial stage, including any last-minute offer of settlement71.
2.2.16 Where Parties Incurred Travelling Expenses
If the circumstances were such that the successful party had to incur expenses
travelling to another country to gather evidence, the travelling expenses ie
airfare, airport tax, accommodation etc, will, in principle, be recoverable as
disbursements72.
Conversely, it is submitted that, if the successful party was resident outside
jurisdiction, but had to incur expenses to travel into jurisdiction for the
proceedings, the airfare, accommodation etc will also be recoverable.
2.2.17 Attendance Fees Of Witnesses
The following principles would be relevant in determining whether the costs
of the attendance of witnesses are recoverable:
(1)
whether or not there was an order made under Order 38 Rule 4 of
the Rules of Supreme Court or Subordinate Courts Rules73 limiting
the number of expert witnesses, it is for the Registrar to determine
whether the calling of any expert witness was reasonable. An order
under that Rule ought not to be regarded as fettering the Registrar’s
discretion or as indicating that the view of the court was that the
70. Davey v. Durrant (1858) 24 Beav 493 cited at paragraph 62/A4/148 at page 1135 of The
Supreme Court Practice, 1993 Edition.
71. The old Order 56 Rule 47 of the Subordinate Courts Rules, provides that “Where on the hearing
of any proceedings a person attends Court as a witness of fact, or as a witness to produce a
document, or as a party to the proceedings, he may be allowed as compensation for loss of time
such sums as the Court thinks fit, not exceeding the sum prescribed by Appendix 2...”. Although
this Rule has been repealed, there is no reason why the position should be altered, since the new
Rules are meant to be more generous. It should be noted that there was no equivalent provision
in Order 59 of the old Rules of Supreme Court or Order 57 of the old Subordinate Courts Rules.
72. See Welltrade Middle East Ltd & Anor v. PJ Wakelin & Ors [1984] 1 MLJ lxiv. In that case,
one of the defendants travelled to London to consult the Deputy Managing Director of the
plaintiff who alone had knowledge of what was going on in Singapore, such knowledge being
required to resist the continuation of the plaintiffs’ injunction. The learned Registrar held that
the travelling expenses were justified as the defendant cannot be expected to put all the lengthy
information on telex and certainly not by telephone. That defendant had no choice but to travel
overseas.
73. Which provides that “The Court may, at or before the trial of any action, order that the number
of medical or other expert witnesses who may be called at the trial shall be limited as specified
by the order”.
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Taxation of Party and Party Costs in Civil Proceedings
325
calling of the number of witnesses mentioned in such order was
necessarily to be regarded as reasonable74;
(2)
where the ordinary witness is a housewife who performs domestic
duties and does not follow a gainful employment, she is still entitled
to more than the amount of her disbursements and should receive a
fee of more than a nominal sum, though not necessarily a substantial
fee75;
(3)
where the ordinary witness was unemployed at the time of the hearing,
it is submitted that, in principle, he would only be entitled to travelling expenses; and
(4)
if the evidence of a foreign witness is material, such that it would be
reasonable to bring the witness into jurisdiction for the hearing, then,
in addition to the attendance fees and travelling expenses discussed
above, the party entitled to taxed costs would be allowed to claim the
airfare, airport tax and hotel accommodation for the duration for
which the witness gave evidence76.
2.2.18 Whether Expenses Yet To Be Disbursed At The Time Of Taxation
Can Be Recovered
Occasionally, the party entitled to taxed costs may include, in the bill of
costs, items of expenses that have yet to be disbursed at the time of taxation.
In such a case, the distinction between the incurring of the liability to pay
as opposed to the act of actual payment would be important.
If at the time of taxation, the party entitled to taxed costs has not even
incurred the liability to pay the item of expense, then, it is submitted that,
he should not be entitled to recover the expense77.
However, if at the time of taxation, the party whose bill it is had already
incurred the liability to pay the expenses, but has yet to make actual payment
to the party entitled to receive the disbursements78, it is submitted that such
74. Attwell v. Ministry of Public Building and Works [1969] 1 WLR 1074.
75. Reed v. Gray [1952] Ch 337. In that case, the witness was the wife of the plaintiff. The court
held that there is no reason for thinking that a wife who is engaged in domestic duties and the
bringing up of her children is entitled to absolutely nothing because she cannot prove that she
did in fact hire the services of a baby-sitter on the relevant days.
76. Which, it is submitted, will reasonably be at least 1 day preceding the hearing as it would be
unrealistic to expect the witness to arrive on the morning of the hearing itself, and include the
day after the witness had completed his testimony as, again, it would be unrealistic to expect
the witness to return to his country immediately upon the completion of his evidence.
77. The reason is that there is no certainty the expense will be incurred by the party entitled to taxed
costs. In view of the principle of indemnity, it would probably be wrong to award such yet to
be incurred expenses, even if it was almost inevitable that they would have to be incurred. The
solution in such cases lies in the successful party making sure that such expenses were in fact
incurred before filing the bill of costs for taxation.
78. Usually, it would be the attendance fees of some of the witnesses who were present for the
hearing.
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anticipated disbursements should still be recoverable in taxation, provided
that (1) there is a valid reason to explain why the actual payment has not
been made (2) there is no possibility of the party entitled to receive the
disbursements waiving his entitlement79 and (3) there is no uncertainty about
the quantum involved80. Nevertheless, it would seem that the Registrar will
be very slow in allowing such anticipated disbursements81.
2.2.19
Where The Public Trustee Was Involved82
The Public Trustee imposes an administrative fee for the work done in
relation to the plaintiffs’ compensation monies83. In addition, the plaintiff
would have to incur expenses vis-a-vis the Public Trustee, in the form of
photocopying, transport etc.
Until sometime in April 1993, the practice was that the plaintiff has to
personally bear the costs of the administrative fee84. However, it is now clear
that, in principle, the administrative fee imposed by the Public Trustee is
recoverable as part of the P/P disbursements85. The new practice is in
79. If there is a waiver, the party entitled to taxed costs will profit from the litigation, which would
be wrong in view of the principle of indemnity.
80. If there is any uncertainty, then the doubt must be resolved in favour of the paying party.
81. It should be noted that in Braga v. Braga (1949) 15 MLJ 161, the court indicated that a
disbursement which had not yet been made at the time of the taxation would not be recoverable
as “it would be contrary to all precepts of taxation and also contrary to public policy to allow
on taxation disbursements which have not been made and are not vouched...I do not understand
an application for an adjournment in order to make a disbursement, particularly when a formal
document is presented which, in effect, states that such disbursement had already been made.”
In that case, the Registrar demanded a receipt for a particular item of disbursement. The taxation
was then adjourned as the party entitled to taxed costs was unable to produce it. On the next
hearing, a receipt was produced dated the preceding day. It then transpired that the item claimed
as disbursement had not yet been disbursed at the date of taxation. The court disallowed that
item. However, as that case was decided primarily on Order 62 Rule 40 of the old Rules which
read “The Registrar shall require vouchers for all disbursements over ten dollars”, it is highly
likely that the position under the new Rules would be different as there are no provisions
equivalent to the old Order 62 Rule 40.
82. The Public Trustee, by virtue of Section 6 of the Motor Vehicle (Third-Party Risks and Compensation) Act, Cap 189, 1985 Edition, Singapore Statutes, holds the compensation monies on
trust for the plaintiff. Although not required by the law, as a practice, the Public Trustee is
involved in the taxation of solicitor and client bills under Section 18(3) of that Act, which
provides that any costs payable to an advocate and solicitor acting in respect of a claim arising
from a traffic accident shall be taxed.
83. The scale fees are as follows:
1. $100 – where general damages do not exceed $1000
2. $300 – where general damages exceed $1000 but do not exceed $10000
3. $500 – where general damages exceed $10000.
84. The reason for the old practice is unclear. Arguably, it was because the involvement of the
Public Trustee is, strictly speaking, not “necessary or proper for the attainment of justice” under
the old Rules in the sense that, even if the office of the Public Trustee does not exist, the
plaintiff will still be able to succeed in his action, which is based on the tort of negligence. The
Public Trustee’s involvement is merely consequential.
85. See for example Subordinate Courts Bill of Costs 1536/93.
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Taxation of Party and Party Costs in Civil Proceedings
327
accordance with the new bases of taxation, as the administrative fee is clearly
reasonably incurred because the involvement of the Public Trustee is dictated
by statute and the parties cannot exclude his involvement86.
As regards the costs of the work done and expenses incurred by the plaintiff’s
solicitor vis-a-vis the Public Trustee, the present practice requires the plaintiff’s
solicitor to recover them in the S/C bill, which would mean that the plaintiff
has to personally bear such costs. It is submitted that the reasoning above
applies equally. Thus, such costs and expenses should also be recoverable in
P/P taxation.
2.3
Costs Of An Appeal
There is a distinction between a bill for the costs of the appeal hearing only,
as against one for the appeal hearing and the hearing at first instance.
2.3.1 Bill For Appeal Hearing Only
If the bill of costs to be taxed is only for the appeal hearing, it will fall within
one of the following 3 situations.
First, the successful party may have been awarded costs at first instance87.
In such a case, it is important to ascertain whether there were additional
“getting-up” done for the appeal hearing. If there was none88, it is submitted
that the party entitled to taxed costs would only receive (1) costs of the
attendance at the appeal hearing and (2) a refresher fee for the “getting-up”89.
Whether the quantum of costs awarded at first instance was too high or too
low is altogether irrelevant. The party entitled to taxed costs cannot ask for
higher costs on the basis that the costs awarded at first instance was too low,
neither can the paying party ask for lower costs to be awarded on the ground
that they had been ordered to pay a very high quantum of costs at first
instance90. However, if there were additional “getting-up” done for the appeal,
this will be taken into account in the determination of costs of the appeal.
86. This view is not problem-free as the Public Trustee deducts the administrative fee only at the
time of payment out to the plaintiff. This gives rise to the problem of anticipated disbursements
discussed above.
87. This usually arises in cases where the party entitled to taxed costs won at first instance, and the
paying party appealed and also lost the appeal.
88. This is likely to arise in appeals against Order 14 decisions and interlocutory orders as they are
by way of re-hearing. Usually, all the arguments submitted at first instance would be repeated
at the appeal hearing. Additional arguments may, however, have been submitted at the appeal.
89. This is to avoid awarding 2 sets of costs for the same “getting-up”. The costs awarded should
be a proportion of the costs at first instance. See Koalim Pte Ltd v. Far Eastern Bank Ltd &
Anor [1981] 2 MLJ iv.
90. This is because the parties must be taken to be satisfied with the amount of costs awarded at
first instance. If either party was not so satisfied, they should have requested for further arguments
on the issue of costs.
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Secondly, the party entitled to taxed costs may have been made to pay costs
at the first instance hearing91. In such a case, it is submitted that the party
entitled to taxed costs would receive (1) the costs of the attendance at the
appeal hearing and (2) the costs of the “getting-up”92. Whether the order as
to costs at the first instance was correct is altogether irrelevant. The party
entitled to taxed costs cannot ask for higher costs for the appeal so as to
compensate them for the costs they had paid at first instance, even if they
were of the opinion that they were wrongly ordered to pay costs at the first
hearing93. It is possible, though not necessary, that the costs of the appeal
may exceed the costs at first instance94.
Thirdly, the party entitled to taxed costs did not pay or receive costs for the
hearing at first instance. In such a case, the party entitled to taxed costs
would receive (1) costs of the attendance at the appeal hearing and (2) the
costs of the “getting-up”, even if the entire “getting-up” was a mere
regurgitation of the work done for the hearing at first instance95. However,
the work done strictly for the hearing at first instance would be irrelevant96.
2.3.2
Bill For Appeal Hearing And The Hearing At First Instance
If the bill of costs to be taxed is for the appeal hearing and the hearing at
first instance, it will fall within one of the following 2 situations97.
First, the party entitled to taxed costs may not have received or paid costs
for the hearing at first instance. In such a case, it is submitted that the party
entitled to taxed costs would receive (1) costs of the attendance at the appeal
91. This may arise, for example, in cases where the defendant’s application to set aside the default
judgment on merits was allowed by the Registrar hearing the summons in chambers, with costs
awarded to the plaintiff. The plaintiff, being dissatisfied with the Registrar’s decision, appealed
to a Judge in chambers, who dismissed the appeal with costs to be taxed.
92. It would not merely be a refresher fee as the successful party was not entitled to the costs of
the “getting-up” at the first instance.
93. It is for that party to ask for further arguments as to costs if he was dissatisfied with having to
pay costs at first instance.
94. This is because the breakdown of the costs of the appeal and the costs of the hearing at first
instance is quite similar, in that they would generally consist of the costs of attendance and
“getting-up”. For the costs at first instance, costs thrown away may also be included.
95. In Subordinate Courts Bills of Costs 2058-62/92, the paying party submitted that the successful
party was only entitled to the costs of additional “getting-up”. It was argued that the successful
party should not be allowed to recover costs of “getting-up” for the appeal if the “getting-up”
was identical to that for the hearing at first instance, in that the original “getting-up” was simply
regurgitated to the appellate judge, because to allow recovery would be tantamount to awarding
costs of the hearing at first instance as well. At most, there should be a refresher fee. This was
rejected by the learned Registrar.
96. For example, the drawing up of affidavits in preparation of the hearing at first instance. However,
the costs of perusing such affidavits in preparation of the appeal hearing would be recoverable.
97. Unlike the case where the bill was for the appeal hearing only, there are only 2 possibilities here
as the order that the successful party be entitled to taxed costs of the appeal hearing and the
hearing at first instance would have meant that the successful party was not awarded costs at
first instance.
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Taxation of Party and Party Costs in Civil Proceedings
329
hearing and the hearing at first instance (2) the costs of the “getting-up” and
(3) a refresher fee for the appeal hearing to reflect the overlap in the “gettingup” for both hearings98.
Secondly, the successful party may have been made to pay costs at the first
instance99. It is submitted that, in such a case, the taxation should proceed as
per the first situation above, plus the amount of costs paid by that party in
the hearing at first instance100.
2.4
“Costs
Thrown Away”
Where proceedings or any part of them have been ineffective or have been
subsequently set aside, the party in whose favour the order for “costs thrown
away” is made shall be entitled to his costs of those proceedings or that part
of the proceedings in respect of which it is made101.
In the taxation of costs thrown away due to the vacating of the hearing date,
one of the most important questions is whether the “costs thrown away”
includes the costs of the “getting-up”. There are 2 possible situations.
First, the order of court did not specifically include “getting-up” as part of
the “costs thrown away”. In such a case, it would seem that “getting-up”
may still be recoverable under certain circumstances.
In Choo Ah Kiat v. Ang Kim Hock 102, the learned Registrar held that “costs
thrown away” refer to costs that had been incurred and which must be
incurred again. As such, “getting-up” does not come within the meaning of
“costs thrown away” as it is not wasted nor must it be incurred again for the
next trial date103. Where “getting-up” was not expressly granted, it could not
be included in “costs thrown away”.
98. Although there were 2 separate hearings, the successful party is only entitled to one set of costs
for “getting-up” if the appeal hearing had merely been a regurgitation of the arguments submitted
at first instance (this being quite common in appeals against Order 14 decisions and interlocutory
orders). In such a case, for the appeal hearing itself, the successful party is only entitled to a
refresher fee. However, in the unlikely event that the “getting-up” for the appeal was totally
different from that for the hearing at first instance, then there would not be a refresher fee, as
the successful party would be entitled to the actual “getting-up” itself.
99. This commonly arise in cases where an appeal is allowed with costs.
100. This is because the paying party would be deemed to have been wrongly awarded costs at the
hearing at first instance. Thus, it would be correct to “refund” the costs paid by the party entitled
to taxed costs.
101. Rule 1(3) of Order 59 of the Rules of Supreme Court and Orders 56 and 57 of the Subordinate
Courts Rules.
102. [1983] 2 MLJ xciv.
103. The learned Registrar opined that although it is true that a counsel has to refresh his memory
as regards “getting-up” for the next trial date, this is certainly not “getting-up” again, as one
cannot imagine that the counsel, in refreshing his memory, would repeat exactly what he did for
his original “getting-up”.
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In other words, the successful party is only entitled to something akin to a
refresher fee, to compensate them for the necessity to refresh their memory
for the new hearing date (which could be weeks or even months away) and
the wasted expenses, like witnesses’ attendance fees, that have to be incurred
again.
It is submitted that the principle stated in Choo Ah Kiat v. Ang Kim Hock
is generally correct. However, in certain instances, “costs thrown away” can
include “getting-up” even though the court did not specify so. In determining
whether “costs thrown away” includes “getting-up”, the Registrar must
consider whether the reason leading to the vacating of the hearing date had
rendered the “getting-up”, or certain aspects of the “getting-up”, otiose or
“ineffective”104. If the answer is “yes”, then, in principle, “costs thrown
away” should include “getting-up”105. It is submitted that this view is
consistent with the definition of “costs thrown away” under the Rules.
One of the most common reasons for vacating the hearing date is a lastminute application by one of the parties to amend the pleadings to an extent
that the Judge decided the hearing cannot proceed without undue prejudice
to the other party. In such a case, whether “costs thrown away” should
include “getting-up” depends on whether the amendments were in substitution of, or in addition to, the original pleadings. If the amendments were in
substitution of the whole or part of the original pleadings such that the
“getting-up” done based on the original pleadings were rendered otiose or
ineffective, then “costs thrown away” should include those “getting-up”.
However, if the amendments to the pleadings merely added to the original
pleadings, then “costs thrown away” cannot include “getting-up” as it is
not wasted106.
104.The word “ineffective” is found in the definition of “costs thrown away” in the Rules.
105. This test was applied by the learned Registrar in Subordinate Courts Bill of Costs 1258/92,
unreported.
106.Per the learned Registrar in Bill of Costs 1258/92 in DC Suit No. 5157/88. In that case, which
was fixed for a 3-day trial, the defendant applied by way of summons-in-chambers to add 2
other defences of misrepresentation and the UK Unfair Contract Terms Act 1977. The original
defence to the plaintiffs’ claim for the price of goods sold and delivered was based on the
implied term of merchantability under the UK Sale of Goods Act 1979. The learned trial Judge
allowed the amendments and ordered the trial to be vacated. During taxation, the plaintiffs
submitted that they were entitled to the costs of the entire “getting-up”. The learned Registrar
held that the plaintiffs were not entitled to the “getting-up” item, but was only entitled to
something akin to a refresher fee, because conceptually, the additional defences were distinct
from the original defence, in that the defence of misrepresentation pertains to the pre-contractual
stage, while the implied term of merchantability under the UK Sale of Goods Act 1979 relates
to the performance of the contract, and finally, the question of unreasonable exclusion of
liability clauses under the UK Unfair Contract Terms Act 1977 looked at the consequences of
the contractual breach. As such, the plaintiffs’ getting-up done in relation to the defendants’
original defence were not wasted.
5 S.Ac.L.J.
Taxation of Party and Party Costs in Civil Proceedings
331
Secondly, the court’s order for “costs thrown away to be taxed” had
specifically included “getting-up”. In such a case, it is submitted that the
following 2 principles are relevant:
(1)
it is important to first ascertain whether the trial Judge had intended
to award the costs of the full “getting-up” regardless of whether the
“getting-up” could still be used at the next hearing date, or only such
“getting-up” that were wasted in the sense that they would no longer
be needed at the next hearing107. If need be, the parties should refer
the matter back to the trial Judge for clarification; and
(2)
if the trial judge had in fact intended to award the full “getting-up”,
then the bill must be taxed on that basis even if the trial judge was
wrong in ordering full “getting-up”, as the propriety of the order of
court is not a question for the Registrar to decide on taxation nor on
its review108.
3.
PARTY AND PARTY COSTS - QUANTIFICATION
It is important to note that although the civil jurisdiction of the District Court
and Magistrates’ Court to try any action founded on contract or tort are
limited to $100000 and $30000 respectively, the Registrar may award costs
in excess of the aforesaid figures109. Needless to say, there is no limit on the
costs that may be awarded in the High Court.
107. This was the approach taken by the learned Registrar in Subordinate Courts Bill of Costs 1258/
92 (see footnotes 105 and 106). In that case, the learned trial Judge ordered that “the trial be
vacated with costs thrown away including the costs of getting-up and the costs of the amendments to be paid by the Defendant to the Plaintiffs, such costs to be taxed and paid forthwith.”
The learned Registrar held that the learned trial Judge was concerned only with the “getting-up”
which were wasted, and as there was none in that case, the plaintiffs were not entitled to the
costs of “getting-up”.
108. See The New Zealand Insurance Co Ltd v. Ng Whye Keng [1978] 2 MLJ xxiv. In that case, the
trial Judge allowed the plaintiffs’ application to amend the statement of claim, subject to the
order that “the plaintiffs pay costs thrown away to be taxed, including getting-up fees”. During
taxation, the plaintiffs argued that the “getting-up” should be for the day only. The learned
Registrar rejected the argument and held “That may well be so [see Lyall v. Martinson (1877)
5 Ch D 780], but Mr Justice Choor Singh did explicitly order costs thrown away including
getting-up, and the propriety of His Lordship’s order is not a question for me to decide on
taxation nor on its review.”. In Subordinate Courts Bill of Costs 1258/92 (see footnotes 105,
106 and 107), the party entitled to “costs thrown away” relied on this case to argue that they
were entitled to full “getting-up”. However, the Registrar held that although the statement of law
in The New Zealand Insurance Co Ltd v. Ng Whye Keng is correct, that case only dealt with
the effect of the court’s order, but it does not preclude the Registrar from ascertaining what the
order was in the first place ie whether the trial judge had in fact intended to award full “gettingup” or only “getting-up” that were wasted.
109. The jurisdictional limitations under the Subordinate Courts Act, Cap 322, 1985 Edition, Singapore
Statutes, as amended recently, apply only to the action themselves, with no reference to the costs
that may be awarded by the Subordinate Courts. However, it would probably take an astonishingly
outstanding case to justify the costs actually exceeding $100000 and $30000 for a District Court
and Magistrates’ Court matter respectively.
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I will now proceed to discuss the general principles that are relevant in the
quantification of costs.
3.1
Section 1 Of The Bill Of Costs
The amount of costs to be allowed shall (subject to any order of court) be
in the discretion of the Registrar110.
In exercising his discretion, the Registrar shall have regard to all the relevant
circumstances, and in particular to111:
(a) the complexity of the item or of the cause or matter in which it arises
and the difficulty or novelty of the questions involved;
(b) the skill, specialised knowledge and responsibility required of, and the
time and labour expended by, the solicitor;
(c) the number and importance of the documents (however brief) prepared
or perused;
(d) the place and circumstances in which the business was transacted;
(e) the urgency and importance of the cause or matter to the client; and
(f)
where money or property is involved, its amount or value112.
In Jeyaretnam Joshua Benjamin v Lee Kuan Yew113, the Singapore Court of
Appeal highlighted the more important considerations as follows114:
“For the purpose of determining the quantum, it is necessary for us to
consider the issues raised, the complexity of such issues or any of them,
the length of trial and have regard to the amount of damages awarded
by the trial judge and other relevant circumstances referred to in r 1(2)
of Part X of Appendix 1.”115
In ascertaining the issues raised, the Registrar must, in addition to analysing
the pleadings, direct his mind to the judgment, if any, of the trial judge so
110. Rule 1(1) in Appendix 1 of Order 59 of the Rules of Supreme Court and Orders 56 and 57 of
the Subordinate Courts Rules. In United Malayan Banking Corporation Berhad v. Goodhope
Realty (Private) Limited & Ors High Court Originating Summons No. 1130/86, unreported,
Karthigesu J opined that the word “discretionary” in the context of the Appendix simply means
that there is no fixed amount or a range to be applied.
111. Rule 1(2) in Appendix 1 of Order 59 of the Rules of Supreme Court and Orders 56 and 57 of
the Subordinate Courts Rules. Appendix 1 shall apply to the taxation of all costs with regard
to contentious business: Order 59 Rule 31(1) of the Rules of Supreme Court and Rule 30(1) of
Orders 56 and 57 of the Subordinate Courts Rules.
112. In Tan Eng Kwee v. Junid bin Hj Abd Kadir & Anor [1989] 2 MLJ xiv, the learned Registrar
issued a timely reminder that, although percentage guidelines based on the amount awarded in
an accident claim with personal injuries are used in assessing “getting-up”, one cannot use such
guidelines without qualification. Else, startling amounts of costs would end up being awarded.
Each case must be taken on its own merits.
113. Ibid footnote no.59.
114. Ibid at page 194.
115. Rule 1(2) of Part X of Appendix 1 is now Rule 1(2) of Appendix 1 under the new Rules.
5 S.Ac.L.J.
Taxation of Party and Party Costs in Civil Proceedings
333
as to ascertain precisely what the issues were before the court, as issues
raised in the pleadings may not have been argued before the trial judge116.
In Diversey (Far East) Pte Ltd v. Chai Chung Ching Chester & Ors (No.2)117,
the Singapore Court of Appeal made the following observations as regards
the quantification of costs:
(1) it is difficult to see how the short length of affidavits could be an
accurate indicator of the amount of work involved. The brevity of the
affidavits could well have been due to the competence and extra effort
put in by counsel as opposed to a lack of “getting-up”118;
(2) in matters involving the application of injunction, the difference in time
periods available for the “getting-up” cannot be regarded as a helpful
consideration. What is relevant in determining the amount to be awarded
is the urgency of the application119;
(3) one has to recognise that even though no novel question of law may be
involved, the application of certain areas of law is nonetheless difficult.
Due regard must be given to this120; and
(4) although the successful party is entitled to the costs of “getting-up”
notwithstanding the fact that the matters were settled before the trial, in
the quantification of “getting-up”, one must not forget the pragmatic
consideration of the realities existent in a trial situation and a “no-trial”
situation. In the latter, there would be no need for “getting-up” during
a trial to meet the unexpected that may crop up in the course of the
proceedings121.
The following observations of VC George J in Canopee Investment Pte Ltd
v. Landmarks Holdings Bhd122 would also be instructive in the quantification
of costs:
116. Jeyaretnam Joshua Benjamin v. Lee Kuan Yew at page 192.
117. [1993] 1 SLR 542.
118. The Court of Appeal also held that it would not be suitable for the appellate court, at that stage,
to go into a minute and protracted examination of the affidavits to assess the amount of preparation
required for each affidavit.
119. In that case, the respondents argued that the appellants had 2 months to prepare their “gettingup”, compared to the 2 weeks available in Welltrade Middle East Ltd & Anor v. PJ Wakelin
& Ors [1984] 1 MLJ 1xiv. As such, the award in the latter case cannot be a relevant gauge as
to the quantum of the costs to be awarded. The Court of Appeal rejected this argument on the
ground that, considering the complicated facts and the exodus of the appellants’ employees, they
were under as much pressure as to time to safeguard their interest as were the defendants in the
Welltrade Middle East Ltd case.
120. The Diversey (Far East) Pte Ltd case involved the law of confidentiality regarding the duties
of ex-employees vis-a-vis the confidential information and trade secrets that they became aware
of in the course of their employment. Cases like Faccenda Chicken Ltd v. Fowler & Ors and
Cranleigh Precision Engineering Ltd were cited. The Court of Appeal held that the area of law
concerned was not novel, but conceded that the application of the law was nonetheless difficult.
121. This observation arose because in that case, the parties settled the matters 3 days before the trial.
122. [1990] 1 MLJ 292.
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(1) for the purpose of taxation, running down actions could be considered
to be the simplest of cases. For the more complicated cases and those
not as common place as running down actions, there should be a gradual
scaling upwards of the costs for “getting-up” from that starting point of
what should be awarded in a running down action; and
(2) where it is not possible to readily give a monetary value to the subject
matter of the action, what ought to be given in a running down action
could still provide a good guide. The Registrar should ask himself how
much more or less “getting-up” has to be done in that case than would
have been done in a running down action and use the answer as a guide
to adjust the quantum of the award.
It would be useful to keep in mind the Court of Appeal’s observation in
Diversey (Far East) Pte Ltd v. Chester Chai Chung Ching that “detailed
computation of the final figures awarded is neither required nor desired.
Rather, the figures finally reached should be based on a broad overview of
the matter.”123
As a parting shot, the parties must always remember that the quantum awarded
should be reasonable124.
3.2
Section 2 Of The Bill Of Costs
Generally, the party whose bill it is will be entitled to the costs of the
taxation proceedings125 which comprise of 3 distinct aspects, namely (1)
work done in drawing up the bill (2) the attendance before the Registrar and
(3) arguing the items of costs claimed.
In determining the costs to be awarded for section 2, the Registrar may take
into account any written offer by the paying party to pay a specific sum, such
offer being expressed to be “without prejudice except as to the costs of the
taxation”, provided that such an offer was made before the expiration of 7
days after the delivery to him of a copy of the bill of costs126.
In Chrulew v. Borm-Reid & Co127, the English court made the following
observations in relation to the English equivalent of our Rule 7A(2) and (3)
123. Ibid footnote no.117 at page 553.
124. See Order 59 Rules 27(2) of the Rules of Supreme Court Rule 26(2) of Orders 56 and 57 of
the Subordinate Courts Rules.
125. Rule 7A(1) of Order 59 of the Rules of Supreme Court and Orders 56 and 57 of the Subordinate
Courts Rules.
126. Rule 7A(2) and (3) of Order 59 of the Rules of Supreme Court and Orders 56 and 57 of the
Subordinate Courts Rules. Such an offer shall not be communicated to the Registrar until the
question of the costs of the taxation falls to be decided. In Platt v. GKN Kwickform Ltd [1992]
1 WLR 465, the court held that an offer made prior to the commencement of taxation proceedings
was not ineffective.
127. [1992] 1 All ER 953.
5 S.Ac.L.J.
Taxation of Party and Party Costs in Civil Proceedings
335
of Order 59 of the Rules of Supreme Court and Orders 56 and 57 of the
Subordinate Courts Rules128:
(1) there is a clear difference between such written offers in taxation and
ordinary litigation129 because in the former, prima facie, the party having
his bill taxed will be entitled to his costs, whereas in the latter, there is
no guarantee that the plaintiff (the party having his claim adjudicated)
would win and thus be entitled to the costs of the action;
(2) if the offer is not to be taken into account, there must be some
circumstances relating to that offer or taxation which make it one which
should be ignored. It may for example have been made too late.
Alternatively, there may have been a failure by the paying party to give
notice of some special objection which would enable the party whose
bill it is, to be aware of a reason which he would not otherwise appreciate
why his bill might be taxed down;
(3) the paying party is not bound in ordinary circumstances to give details
or a breakdown of how he reached that offer. As such, he cannot be
penalised for failing to provide the receiving party the breakdown which
was requested for the purpose of assessing the offer;
(4) the question that the Registrar should ask himself is whether the
receiving party should reasonably have accepted the offer, or put
slightly differently, whether there was something that happened on
the taxation which could not reasonably have been foreseen by the
successful party when considering the paying party’s offer;
(5) if the offer is not less than the taxed costs, and the successful party
ought reasonably to have accepted it, then the party whose bill it is
should merely be deprived of his costs of the taxation proceedings;
(6) only in circumstances in which the failure to accept the offer was very
unreasonable will the receiving party be ordered to pay the costs of the
taxation proceedings.
In considering the adequacy of the paying party’s offer, it is submitted that
the Registrar would have to add up (1) the costs awarded in the taxation (2)
the taxing fee that would have to be paid by the paying party at the date of
the offer130 and (3) the interest on the costs up to the date of the offer131.
128. Which is Order 62 Rule 27(3) and (4) of the English Rules of Supreme Court.
129. See Order 22A of the Rules of Supreme Court and the Subordinate Courts Rules which came
into effect on 1 July 1993.
130. Essentially, the paying party would only have to pay the withdrawal fees under Item 86 in
Appendix B of Order 91 of the Rules of Supreme Court and Item 67 in Schedule B of Order
78 of the Subordinate Courts Rules.
131. Bell v. Mahoney (unreported). See paragraph B826 of Butterworths Costs Service. In that case,
the defendant was ordered to pay the plaintiffs’ costs. The defendants made an offer to pay the
plaintiffs £50000 in satisfaction of their costs. Following a review of the decision by the taxing
master, the plaintiffs were awarded costs amounting to £46007.65.
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The Registrar’s discretion as to costs ought not to be fettered by any such
rule that a party who did not negotiate would in general be penalised, as a
successful party believing himself entitled to a particular sum is under no
obligation to accept anything less132.
Again, the quantum awarded must be reasonable133.
3.3
Section 3 Of The Bill Of Costs
Disbursements claimed under section 3 of the bill can be divided into 2
categories (1) court fees (ie stamp fees) and (2) disbursements other than
court fees.
As regards the recovery of court fees, the paying party can only object in
principle but not quantum, as the quantum is fixed in Appendix B of Order
91 of the Rules of Supreme Court and Schedule B of Order 78 of the
Subordinate Courts Rules.
However, for items of disbursements other than court fees, the paying party
may object in both principle and quantum.
One of the most contentious items of disbursements relates to the quantification of the attendance fees of the witnesses. The following principles would
be useful:
(1) an expert witness will normally be allowed fees for:
(a) qualifying himself to give evidence, which may involve a study of
documents; inspection of the locus in quo, or machinery, or goods
etc; the carrying out of experiments or the re-construction of incidents; and attendance upon the solicitor and/or other parties;
(b) his attendance in court and time spent travelling to and from; and
(c) for travelling and other expenses necessarily incurred134;
(2) a professional witness is allowed his fees on a scale consistent with his
standing in his profession, as well as travelling expenses135; and
(3) an ordinary witness will be allowed a fee to cover what he (or possibly
his employer) had lost in wages or salary whilst attending court, as well
as travelling expenses.
The fee on taxation at the date of the offer would have been £1152.50. The aggregate of the
2 sums is £47160.15. If interest up to the date of the offer is added, the total is increased to just
under £51000. The question is whether, in considering the adequacy of the offer, interest should
be included. In this instance, Vinelott J decided in the affirmative.
132. C and H Engineering (A Firm) v. K Klucznik and Sons Ltd The Times, March 26, 1992.
133. See Order 59 Rule 27(2) of the Rules of Supreme Court and Rule 26(2) of Orders 56 and 57
of the Subordinate Courts Rules.
134. Butterworths Costs Service paragraph B2327.
135. Butterworths Costs Service paragraph B2338.
5 S.Ac.L.J.
Taxation of Party and Party Costs in Civil Proceedings
337
Once again, the quantum awarded must be reasonable136.
4
TAXATION REVIEW
4.1
Application To The Registrar For Review
Any party to any taxation proceedings who is dissatisfied with the allowance
or disallowance in whole or in part of any item by the Registrar or with the
amount allowed by the Registrar in respect of any item, may, within 14 days
after that decision, apply to the Registrar to review his decision in respect of
that item by filing a Notice of Objections137.
On reviewing any decision in respect of any item, the Registrar may138:
(1) receive further evidence; and
(2) exercise all the powers which he might exercise on an original taxation
in respect of that item, including the power to award costs of the review
before him, such costs being fixed or to be taxed by him.
As regards the nature of a taxation review before the Registrar, the position
does not seem to be clear. There are 2 views.
First, a taxation review is in fact a taxation hearing de novo ie it amounts to
a second taxation. As such, the Registrar is at absolute liberty to conclude
that the costs taxed by him at first instance was on the high or low side, and
adjust the costs accordingly, notwithstanding the fact that the applicant for
review had simply objected to the quantum as being too high or too low in
the circumstances, without raising any new arguments or availing the Registrar
of any new facts that were not canvassed in the taxation hearing.
The second view is that a taxation review is not a taxation hearing de novo.
Thus, unless the applicant for review could adduce additional arguments or
136. See Order 59 Rule 27(2) of the Rules of Supreme Court and Rule 26(2) of Orders 56 and 57
of the Subordinate Courts Rules.
137. Order 59 Rules 34(1) and (2) of the Rules of Supreme Court and Rules 33(1) and 33(2) of
Orders 56 and 57 of the Subordinate Courts Rules. The application may also be made within
“such other period as may be fixed by the Registrar”. The applicant for review must deliver
objections in writing specifying by a list, the items or parts of items the allowance or disallowance of which, or the amount allowed in respect of which, is objected to and stating concisely
the nature and grounds of the objection (see Order 59 Rule 34(3) of the Rules of Supreme Court
and Rule 33(3) of Orders 56 and 57 of the Subordinate Courts Rules). The other party may,
within 14 days of the delivery of the objections, deliver answers in writing to the objections
stating the grounds on which he will oppose the objections (see Order 59 Rule 34(4) of the
Rules of Supreme Court and Rule 33(4) of Orders 56 and 57 of the Subordinate Courts Rules).
If the party opposing the objections did not deliver any answers in writing, then the leave of
court is required before that party is entitled to be heard (see Order 59 Rule 35(2) of the Rules
of Supreme Court and Rule 34(2) of Orders 56 and 57 of the Subordinate Courts Rules).
138. Order 59 Rule 35(1) of the Rules of Supreme Court and Rule 34(1) of Orders 56 and 57 of the
Subordinate Courts Rules.
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facts that are relevant in the quantification of costs but for some reason, were
not canvassed at the taxation hearing, or show that the Registrar had erred
in principle or in quantum, the Registrar is not entitled to adjust the taxed
costs, even if he was of the opinion that the taxed costs was on the low or
high side139.
It is submitted that the first view is the correct view140.
4.2
Costs Of The Review
Although the costs of the review is in the discretion of the Registrar, it would
be instructive to keep in mind the comments of the Court of Appeal in
Jeyaretnam Joshua Benjamin v. Lee Kuan Yew141:
“We now come to the question of costs. There should be no order as
to costs before the senior assistant registrar on his review of taxation.
The reason is that on a taxation day a taxing officer normally has
numerous bills of costs for taxation. Owing to this heavy load and
through no fault of anyone, errors can occur on taxation. A review of
taxation which follows at the instance of the aggrieved party would
afford the taxing officer an opportunity to correct such errors.” (emphasis
mine).
139. This view was taken by the learned Registrar in High Court Bill of Costs 1470/92, unreported.
The learned Registrar opined that there is nothing in the Rules which says that the review
functions as a taxation de novo, and a party whose bill is taxed should not be made to suffer
a taxation twice, any more than a man could be hanged twice. First principles and common
sense dictates that the Registrar must be availed of some “hitherto unespousedfact or arguments
going to shew that his exercise of discretion in the first instance would have been different had
such fresh reasons been brought to his attention then, and that the award that would have been
made had such fact or arguments been adduced ab initio would have been in accordance with
the manner in which the party asking for review now submits it as ought to be” .
140. The reasons are as follows:
(1) Order 59 Rule 35(1) of the Rules of Supreme Court and Rule 34(1) of Orders 56 and 57
of the Subordinate Courts Rules provides that, on a review, the Registrar may exercise “all
the powers which he might exercise on an original taxation...”. The presence of the word
“original” is indicative of the review being a hearing de novo;
(2) In Jeyaretnam Joshua Benjamin v. Lee Kuan Yew [1993] 1 SLR 185, the Court of Appeal
held that a review affords a Registrar an opportunity to correct errors which may arise
through no fault of anyone but arose due to the heavy load on taxation days. This statement
of law seems to be wide enough to include the situation where the Registrar, upon a second
and closer look at the bill, opine that the taxed costs were in fact slightly too high or too
low, despite the absence of new arguments or facts, and any error of principle; and
(3) There are reported cases where the Registrar had adjusted the taxed costs on review, despite
the absence of new arguments or facts, and any error of principle. For example, in Tay Eng
Kwee v. Junid bin Hj Abd Kadir & Anor [1989] 2 MLJ xiv, the learned Registrar increased
the taxed costs from $7500 to $9500 upon review. No reasons were given for the increase.
In The “Eastern Progress” [1984] 1 MLJ 1xii, the learned Registrar decreased the taxed
costs from $11000 to $10000 “upon further consideration of the facts and the issues in
question” (at page Ixiv). In both cases, the appeal to Judge in Chambers was dismissed.
141. Ibid footnote no.59 at page 197.
5 S.Ac.L.J.
Taxation of Party and Party Costs in Civil Proceedings
339
As such, generally, there should be no order as to costs for the review if the
Registrar agrees with the applicant for review and adjusted the quantum
upon review. However, it is submitted that if the Registrar affirmed his
earlier decision and dismissed the review, then costs should be awarded
against the party who applied for the review142.
5.
REVIEW OF REGISTRAR’S CERTIFICATE BY JUDGE IN
CHAMBERS
Any party who is dissatisfied with the Registrar’s review may, within 14
days143 apply to a Judge for an order to review the taxation, provided that the
Registrar had, within 14 days after the review, been requested to state the
reasons for his decision144.
At the review, the Judge may exercise all such powers and discretion as are
vested in the Registrar in relation to the subject matter of the application145.
However, unless the Judge otherwise directs146:
(1) no further evidence shall be received; and
(2) no ground of objection shall be raised which was not raised on the
review before the Registrar.
As regards the principle to apply on a review by a Judge, the Court of
Appeal in Jeyaretnam Joshua Benjamin v. Lee Kuan Yew147 stated that it is
settled law that in regard both to the quantum and to the exercise of the
discretion vested in a taxing officer, the court will only interfere if such
discretion has been exercised on a wrong principle or the quantum allowed
is obviously wrong. Generally, the Judge will not interfere with the discretion
of a taxing officer upon a mere question of quantum if the taxing officer has
exercised his discretion after consideration of all the circumstances and if no
principle arises. However, the Court of Appeal conceded that there are
142. It is submitted that the Court of Appeal in Jeyaretnam Joshua Benjamin v. Lee Kuan Yew was
only addressing the situation where the aggrieved party was successful in the review. Where the
review was dismissed, it should be with costs, otherwise parties to taxation proceedings would
be encouraged to file for review as they have nothing to lose.
143. Or such longer time as the Registrar at the time when he signs the certificate or the Court at
any time, may allow. See Order 59 Rule 36(2) of the Rules of Supreme Court and Rule 35(2)
of Orders 56 and 57 of the Subordinate Courts Rules.
144. Order 59 Rule 36(1) of the Rules of Supreme Court and Rule 35(1) of Orders 56 and 57 of the
Subordinate Courts Rules. This 14-day period runs concurrent to the 14 days to file the review
before a Judge.
145. Order 59 Rule 36(4) of the Rules of Supreme Court and Rule 35(4) of Orders 56 and 57 of the
Subordinate Courts Rules.
146. Order 59 Rule 36(4) of the Rules of Supreme Court and Rule 35(4) of Orders 56 and 57 of the
Subordinate Courts Rules.
147. Ibid footnote no.59 at page 189. See also Re Kana Moona Syed Abubakar decd [1940] MLJ 4,
Chin Cham Sen v. Foo Chee Sang [1952] MLJ 99 at page 100, Malayan Trading Co v. Lee Pak
Yin [1941] MLJ 207 and Starlite Ceramic Industry Ltd v. Hiap Huat Pottery [1973] 1 MLJ 146.
340
Singapore Academy of Law Journal
(1993)
exceptional cases where the review Judge may interfere on mere quantum,
and this arises only when it is apparent from the size thereof that the taxing
master must have gone wrong in principle148.
The above principle was reiterated by the Court of Appeal in Diversey (Far
East) Pte Ltd v. Chai Chung Ching Chester & Ors (No.2)149. The Court of
Appeal rejected the Respondents’ argument that the review before the Judge
operates as a re-hearing and the Judge is entitled to exercise his discretion
in substitution of the discretion of the taxing Registrar in respect of the
amounts awarded150 and held that “the Judge should not interfere with the
Registrar’s decision unless there is an error of principle or some other material
error”151. The Court of Appeal observed152:
“The dicta of Aitken J in Re Kana Moona Syed Abubakar decd to the
effect that a judge would be justified in interfering where the registrar’s
decision was “an affront to reason and common sense” is, in our opinion,
too harsh a standard to apply. What is required is a broad overview of
the matter by the judge and if there is an error in principle or some
other material error, he may be justified in interfering with the decision
below.” 153 (emphasis mine)
As regards the costs of the review before the Judge, the Court of Appeal in
Jeyaretnam Joshua Benjamin v. Lee Kuan Yew154 stated that there is no
reason why the successful party should not be given his costs.
It should be noted that an appeal shall lie to a Judge of the High Court in
Chambers from the decision of the District Judge who reviewed the Registrar’s
certificate155.
148. Slingsby v. Attorney General [1918] P 236 cited as authority.
149. Ibid footnote no.117.
150.This argument was premised on the change of wordings in the Rules of Supreme Court. In the
1934 Rules, Order 62 Rules 73(1) and (2) which provided for the review by a Judge did not
specifically refer to the right to apply for review on the ground of dissatisfaction with the
“amount allowed”, and it also merely provided that the Judge may make such orders as he
thinks fit. However, the present Rules now provide expressly that an aggrieved party may apply
for review if he is dissatisfied with inter alia “the amount allowed”, and the Judge can now
exercise “all such powers and discretion as are vested in the Registrar” (see Order 59 Rules
36(1) and (4) of the Rules of Supreme Court and Rules 35(1) and (4) of Orders 56 and 57 of
the Subordinate Courts Rules). The Court of Appeal held that the wordings may have changed,
but in substance, the Rules provide for the same.
151. Ibid no. 117 at page 552.
152. Ibid.
153. However, the Court of Appeal did not elaborate on the circumstances that may amount to a
“material error”.
154. Ibid footnote no.59 at page 196.
155. Order 55 Rule 2 of the Subordinate Courts Rules.
5 S.Ac.L.J.
6.
Taxation of Party and Party Costs in Civil Proceedings
341
CONCLUSION
Due to the scarcity of appeals to Judge in Chambers, there is a dearth of
authorities on the taxation of costs. As such, many of the propositions
expounded are not supported by authorities. Nevertheless, the writer hopes
that the above discussion would be of some assistance to advocates and
solicitors who may have to present a bill of costs for taxation156.
LEE TECK LENG*
156. I am grateful to my colleagues who have helped me in the preparation of this Paper. I remain
solely responsible for all errors and omission.
* LL.B.(Hons.)(S’pore), Advocate and Solicitor Supreme Court of Singapore, Magistrate
Subordinate Courts. The views in this Paper are only the writer’s own views and they do not
in any way represent the views of the Supreme Court and Subordinate Courts Registry.