Case Details
- Citation: [2021] SGHC 38
- Title: BTN and another v BTP and another
- Court: High Court of the Republic of Singapore
- Date of Decision: 16 February 2021
- Coram: Belinda Ang Saw Ean JAD
- Case Number: Originating Summons No 683 of 2018 (“OS 683”)
- Procedural History (key dates): High Court dismissed OS 683 with costs on 16 September 2019; Court of Appeal dismissed the plaintiffs’ appeal on 23 October 2020; Court of Appeal awarded costs for the appeal fixed at $55,000 inclusive of disbursements on 3 November 2020
- Plaintiff/Applicant: BTN and another
- Defendant/Respondent: BTP and another
- Legal Areas: Arbitration — setting aside; Civil Procedure — costs (including indemnity costs)
- Judgment Type: Supplementary judgment on the quantum of costs for OS 683
- Parties (as referenced in the judgment): BTN — BTO — BTP — BTQ
- Counsel for Plaintiffs: Yeo Khirn Hai Alvin SC, Koh Swee Yen, Low Sze Hui, Jasmine (Liu Sihui) and Quek Yi Zhi, Joel (Guo Yizhi) (Wongpartnership LLP)
- Counsel for Defendants: Chew Kei-jin, Tan Silin, Stephanie (Chen Silin), Yeo Chuan Tat (Yang Quanda) and Tyne Lam (Ascendant Legal LLC)
- Judgment Length: 5 pages, 2,432 words
Summary
BTN and another v BTP and another [2021] SGHC 38 is a supplementary decision of the High Court dealing with the quantum of costs following the dismissal of an application to set aside a partial arbitral award. The court had previously dismissed OS 683 with costs on 16 September 2019, and the plaintiffs’ appeal was dismissed by the Court of Appeal on 23 October 2020. After the Court of Appeal fixed the appeal costs at $55,000 inclusive of disbursements, the defendants returned to the High Court to seek a determination of the costs for OS 683.
The central issue in this costs decision was whether the defendants could obtain indemnity costs (and therefore a higher quantum) for OS 683, despite the Court of Appeal having declined to disturb the original costs order below. The High Court held that it was impermissible for the defendants to relitigate the basis of costs—specifically, to switch from standard to indemnity costs—after the Court of Appeal had already refused indemnity costs. Substantively, the court also found that the defendants had not shown “exceptional circumstances” that would justify an indemnity costs order under Singapore principles.
What Were the Facts of This Case?
The litigation arose out of arbitration proceedings between the parties. The plaintiffs (BTN and another) brought OS 683 to set aside a partial arbitral award. The High Court dismissed OS 683 with costs on 16 September 2019. The decision dismissing OS 683 is reported as BTN and another v BTP and another [2020] 5 SLR 1250 (“HC Judgment”). The plaintiffs then appealed, but the Court of Appeal dismissed the appeal on 23 October 2020 (reported as BTN and another v BTP and another [2020] SGCA 105 (“CA Judgment”)).
Costs became a continuing point of contention. After the Court of Appeal’s decision, the defendants’ counsel applied to the High Court on 9 December 2020 to fix the quantum of costs for OS 683. The parties were unable to agree the quantum. The defendants submitted that the costs should be assessed at a significantly higher figure, and the plaintiffs responded with submissions supporting a lower figure consistent with the applicable costs framework.
A key procedural and conceptual feature of the case is that OS 683 had already been dismissed with costs. Unless the court orders otherwise, a dismissal with costs means that party-and-party costs are taxed on a standard basis. The defendants had attempted to persuade the Court of Appeal to order indemnity costs for OS 683, but the Court of Appeal declined. The High Court therefore treated the Court of Appeal’s refusal as binding, and the supplementary judgment focused on the quantum of costs on the standard basis, while explaining why the defendants’ attempt to seek indemnity costs could not be entertained.
In addition to the binding effect of the Court of Appeal’s costs ruling, the High Court addressed the defendants’ broader argument that Singapore should adopt a Hong Kong-style default rule: namely, that indemnity costs should ordinarily follow an unsuccessful challenge to an arbitral award unless special circumstances are shown. The court rejected that approach as inconsistent with Singapore’s costs principles under Order 59 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”), which require exceptional circumstances before indemnity costs may be ordered.
What Were the Key Legal Issues?
The first legal issue was whether the defendants could, at the stage of fixing quantum of costs, effectively re-open the basis on which costs were ordered—specifically, whether they could switch from standard to indemnity costs for OS 683. This issue was tightly linked to the effect of the Court of Appeal’s decision: the Court of Appeal had already declined to order indemnity costs and had left the costs order below undisturbed.
The second issue concerned the substantive threshold for indemnity costs in Singapore in the context of failed applications to set aside arbitral awards. The defendants argued that indemnity costs should be the default position in such cases, unless exceptional circumstances justify a departure. The plaintiffs argued that Singapore law does not treat unsuccessful arbitral challenges as a category of exceptional circumstances, and that the Costs Guidelines should apply.
Finally, the court had to determine the appropriate quantum of costs for OS 683 on the standard basis, including whether the costs guidelines should be followed and how the time and complexity of the proceedings should be reflected in the assessment.
How Did the Court Analyse the Issues?
The High Court began by clarifying the procedural limits imposed by the Court of Appeal’s decision. The court emphasised that the defendants’ attempt to seek indemnity costs was impermissible because the Court of Appeal had already refused indemnity costs for OS 683. In other words, the defendants could not use the quantum-fixing stage as a vehicle to relitigate the basis of costs. The court treated the Court of Appeal’s refusal as final and binding, meaning that the High Court could only determine the quantum of costs on the standard basis unless the Court of Appeal’s order left room for a different approach.
In explaining this, the court drew an important distinction between (i) changing the basis of costs (from standard to indemnity) and (ii) deciding not to follow the range of costs in the costs guidelines. The High Court stated that it was not open to the defendants to re-argue for a different basis of costs after the Court of Appeal had declined to disturb the costs order below. However, the defendants could still argue that the court should not follow the costs guidelines’ range—provided that the assessment remained on the standard basis. This distinction matters for practitioners because it delineates the scope of submissions at the quantum stage.
On the substantive question of indemnity costs, the court considered the defendants’ reliance on Hong Kong authorities. The defendants urged the court to adopt a Hong Kong approach under which indemnity costs are granted by default when an arbitral award is unsuccessfully challenged, unless special circumstances are shown. The High Court reviewed the Hong Kong reasoning in A v R [2010] 3 HKC 67 and its affirmation in Gao Haiyan and another v Keeneye Holdings Ltd and another [2012] HKCU 226. In those cases, the Hong Kong courts justified indemnity costs by reference to: (a) the expectation that arbitral awards should be enforced as a matter of course; (b) the incompatibility of an unmeritorious challenge with a duty to assist in efficient dispute resolution; and (c) the principle that the losing party should bear the full costs consequences of an unsuccessful challenge.
The High Court rejected the Hong Kong default rule. It held that the Hong Kong approach reverses the burden of proof for indemnity costs and contradicts Singapore’s costs principles under Order 59 of the ROC. In Singapore, indemnity costs are not treated as the norm for unsuccessful arbitral challenges. Instead, indemnity costs require exceptional circumstances. The court also reasoned that while cost-effective and efficient dispute resolution is relevant in Singapore, it is not an absolute trump over the other factors that must be considered under Order 59 r 5. The court therefore concluded that an unsuccessful application to set aside or resist enforcement of an arbitral award is not, by itself, a category of exceptional circumstances warranting indemnity costs.
Having set out the governing framework, the court turned to whether the defendants’ specific complaints amounted to exceptional circumstances. The defendants’ complaints were essentially twofold: first, that OS 683 was unmeritorious; and second, that the plaintiffs’ conduct—particularly a “novel” jurisdictional challenge and other grounds—made the proceedings more complex and protracted, thereby causing substantial costs including the expense of instructing senior counsel. The defendants also detailed the work undertaken, including reviewing over 2,100 pages of affidavits, preparing witness affidavits, drafting skeletal submissions and speaking notes, reviewing the plaintiffs’ submissions, attending hearings, and drafting supplementary submissions after the hearing.
The High Court held that these complaints did not amount to exceptional circumstances. It treated the complaints as intertwined and connected with the merits and conduct of the litigation, but not of the kind that would justify departing from the standard basis. The court also reinforced that it was not open to the defendants to re-argue the costs basis after the Court of Appeal’s refusal. In addition, the court accepted the plaintiffs’ position that the burden for indemnity costs is high and that the defendants had not met that threshold, referencing the principle articulated in Tan Chin Yew Joseph v Saxo Capital Markets Pte Ltd [2013] SGHC 274 (“Joseph Tan”).
Finally, the court addressed the quantum on the standard basis by reference to the Costs Guidelines in Appendix G of the Supreme Court Practice Directions. The plaintiffs argued that the Costs Guidelines should apply and that there was no basis to depart from them. They proposed a figure of $38,000 including disbursements of $6,183.56. They pointed out that the hearing of OS 683 took place over less than two days and that supplementary submissions were relatively brief. They also relied on the Costs Guidelines’ rate of $15,000 per day for contentious originating summonses before the High Court, and argued that the application was relatively straightforward. The defendants’ attempt to seek a higher quantum was therefore assessed against the standard-basis framework and the guideline range.
What Was the Outcome?
The High Court dismissed the defendants’ application for indemnity costs and proceeded to fix the quantum of costs for OS 683 on a standard basis. The practical effect was that the defendants could not recover costs on the more generous indemnity basis, and the assessment remained anchored to the Costs Guidelines and the standard-party-and-party framework.
In doing so, the court also provided guidance on the limits of submissions at the quantum stage: while parties may argue for departure from the guideline range on the standard basis, they cannot change the basis of costs after the Court of Appeal has already declined to order indemnity costs.
Why Does This Case Matter?
BTN v BTP is significant for practitioners because it clarifies the interaction between appellate costs rulings and subsequent costs assessment. Once the Court of Appeal has declined to order indemnity costs and left the costs order below undisturbed, a party cannot later attempt to re-open the basis of costs by reframing the dispute as a quantum issue. This reinforces finality in costs determinations and prevents indirect relitigation.
Substantively, the decision is also an important reaffirmation of Singapore’s approach to indemnity costs. The court rejected the Hong Kong “default indemnity costs” model for unsuccessful arbitral challenges. Instead, it confirmed that indemnity costs remain exceptional and require exceptional circumstances under Order 59 r 5. For arbitration-related litigation, this means that unsuccessful set-aside applications will not automatically trigger indemnity costs merely because the challenge is unsuccessful or allegedly unmeritorious.
From a practical perspective, the case encourages parties to focus their costs submissions on matters that genuinely fall within the exceptional-circumstances framework, rather than relying on general assertions about unmeritorious conduct or increased complexity. It also highlights the continuing relevance of the Costs Guidelines in Appendix G of the Supreme Court Practice Directions, and the importance of aligning costs arguments with the standard-basis framework unless a legally permissible departure is available.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 59 (particularly r 5)
Cases Cited
- BTN and another v BTP and another [2020] 5 SLR 1250 (HC Judgment)
- BTN and another v BTP and another [2020] SGCA 105 (CA Judgment)
- Tan Chin Yew Joseph v Saxo Capital Markets Pte Ltd [2013] SGHC 274 (“Joseph Tan”)
- CCM Industrial Pte Ltd v Uniquetech Pte Ltd [2009] 2 SLR(R) 20
- A v R [2010] 3 HKC 67
- Gao Haiyan and another v Keeneye Holdings Ltd and another [2012] HKCU 226
Source Documents
This article analyses [2021] SGHC 38 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.