Case Details
- Citation: [2024] SGHC(I) 5
- Title: DBX & Anor v DBZ
- Court: Singapore International Commercial Court (SICC)
- Originating Application No: Originating Application No 10 of 2023
- Judgment Date: 8 February 2024
- Judgment Reserved: 19 January 2023
- Judge: Roger Giles IJ
- Applicants/Respondents: Applicants: DBX & Anor; Respondent: DBZ
- Procedural Context: Costs determination following a prior substantive decision in DBX and another v DBZ [2023] SGHC(I) 18
- Legal Area: Arbitration — Costs
- Statutes/Rules Referenced: Rules of Court 2021 (ROC), Order 21; SICC Rules 2021, Order 22; Supreme Court Practice Directions 2021, Appendix G (Costs Guidelines)
- Judgment Length: 11 pages, 2,585 words
- Key Issue on This Decision: Assessment of costs split into “pre-transfer” and “post-transfer” components after transfer of proceedings to the SICC
- Costs Claimed by Respondent: $187,000 total (pre-transfer $65,000; post-transfer $115,000; $7,000 preparation of costs submissions) plus disbursements ($7,709.38 and HKD151,978.26 for Hong Kong law expert)
- Costs Offered by Applicants: $16,288 for pre-transfer; $45,000 for post-transfer; no dispute on $7,000 preparation costs; no dispute on disbursements
Summary
DBX & Anor v DBZ concerned the assessment of costs following an earlier SICC decision in an arbitration-related setting-aside context. The applicants had been ordered to pay the respondent’s costs, but the parties could not agree the quantum. This judgment therefore focused narrowly on the amount of costs recoverable, applying different procedural cost regimes depending on whether the work was done before or after the transfer of the proceedings to the Singapore International Commercial Court.
The court held that the “pre-transfer” costs should be assessed under the Rules of Court 2021 (Order 21) and the Supreme Court’s Costs Guidelines (Appendix G to the Practice Directions 2021). By contrast, “post-transfer” costs were assessed under the SICC Rules 2021 (Order 22). Applying an objective standard for reasonableness and proportionality for pre-transfer costs, the court declined to abandon the Costs Guidelines, but made a moderate uplift to reflect the case’s complexity and the volume of materials. The court ultimately fixed the pre-transfer costs at $22,000.
For post-transfer costs, the court applied the SICC’s subjective approach under Order 22, beginning with the costs actually incurred by the successful party and then considering whether they were proportionate and reasonable. Although the truncated extract does not reproduce the full post-transfer analysis, the judgment’s structure and approach indicate that the court calibrated the recoverable amount by balancing actual expenditure against the normative objective of awarding costs at a level that a successful litigant with reasonable merits should be able to recover.
What Were the Facts of This Case?
The underlying dispute arose from arbitration proceedings in which the respondent was successful in resisting the applicants’ challenge. The SICC had already delivered a substantive judgment on 15 November 2023: DBX and another v DBZ [2023] SGHC(I) 18. In that earlier decision, the applicants were ordered to pay the respondent’s costs, but the parties were unable to agree on the amount. The present decision is therefore not about liability or the merits of the arbitration challenge; it is about the quantification of recoverable costs.
Procedurally, the proceedings were transferred to the SICC. The transfer triggered a split in the applicable costs regimes. The learned Deputy Registrar directed that costs for work done before transfer (“pre-transfer costs”) should be assessed under the general civil procedure framework in the Rules of Court 2021, specifically Order 21 and the Supreme Court’s Costs Guidelines. Work done after transfer (“post-transfer costs”) was to be assessed under the SICC Rules 2021, specifically Order 22. This distinction is crucial because it affects the standard of assessment and the role played by the Costs Guidelines.
In the costs assessment, the respondent claimed a total of $187,000, comprising $65,000 for pre-transfer costs, $115,000 for post-transfer costs, and $7,000 for preparation of the costs submissions. The respondent also sought disbursements of $7,709.38 and HKD151,978.26, the latter being the costs of instructing a Hong Kong law expert, Mr Stephen Tisdall. The applicants did not dispute the $7,000 preparation costs nor the disbursements, but they contested the quantum of both pre-transfer and post-transfer costs.
The applicants’ position was that pre-transfer costs should be $16,288 and post-transfer costs should be $45,000. Their submissions did not challenge the basis for the disbursements, but they argued that the respondent’s proposed pre-transfer figure of $65,000 was inconsistent with comparable cases and with the Costs Guidelines. The court’s task was thus to determine what amount was recoverable for the work done before and after transfer, using the appropriate legal framework for each period.
What Were the Key Legal Issues?
The first legal issue was the correct framework for assessing pre-transfer costs. The court had to determine how Order 21 of the Rules of Court 2021 and Appendix G (Costs Guidelines) should be applied to the assessment of costs incurred before the proceedings were transferred to the SICC. This required the court to identify the applicable standard for “reasonable” costs and to decide whether the Costs Guidelines should be followed or departed from.
The second legal issue concerned the extent to which the court should make an uplift above the Costs Guidelines range for a full day arbitration originating application. The Costs Guidelines provided an indicative range of $13,000 to $40,000 for a full day arbitration originating application. The respondent argued that an uplift was warranted due to complexity, the volume of materials, the need for foreign law evidence, and the respondent’s extensive time and team size. The applicants argued that the respondent’s uplift was excessive and not supported by comparable cases.
The third legal issue related to post-transfer costs under the SICC Rules. Under Order 22, the assessment is described as subjective in the sense that it starts with the costs actually incurred by the successful party, and then examines whether those costs are proportionate and reasonable. The court had to apply this approach to determine the recoverable post-transfer amount, while maintaining the overarching principle that costs awards should enable a litigant with reasonable merits to pursue justice.
How Did the Court Analyse the Issues?
The court began by setting out the governing principles for pre-transfer costs under Order 21. Under O 21 r 22(2) of the ROC, the successful party is entitled to “a reasonable amount in respect of all costs reasonably incurred.” The court emphasised that whether costs were reasonably incurred is assessed objectively. The objective inquiry considers whether the costs were incurred in a way corresponding to the level of effort generally accepted as likely to be expended for the particular type of work. In parallel, whether the costs are a reasonable amount is also assessed objectively by considering whether the overall amount corresponds to the level of costs generally accepted as likely to be incurred for the particular type of dispute.
In reaching these conclusions, the court relied on the Court of Appeal’s guidance in Senda International Capital Ltd v Kiri Industries Ltd [2023] 1 SLR 96. The court highlighted that the objective standard is necessary because costs under O 21 are assessed “at such a level as would enable a litigant with reasonable merits to pursue justice.” The recoverable level is therefore shaped by a normative question: what ought to be the amount a successful party can recover for the work done, irrespective of the level of costs the successful party actually incurred. This framing is important because it prevents a costs award from becoming a reimbursement of whatever the successful party spent.
The court then described how it is guided by the factors in O 21 r 2(2) of the ROC and by costs precedents and the Costs Guidelines. Costs precedents tend to produce similar outcomes in comparable cases, while the Costs Guidelines represent the level of fees that members of the public and the legal profession would generally accept as reasonable. However, the court stressed that these are guides only. It may depart from the Costs Guidelines or apply an uplift if the circumstances warrant it, guided by O 21 r 2(2). The court also cited that uplifts are not automatic; they must be justified by the case-specific factors.
Turning to the Costs Guidelines, the court noted that the indicative range for a full day arbitration originating application was $13,000 to $40,000. The respondent did not specify a starting point within the range but argued that an uplift was warranted. The respondent’s submissions were extensive and emphasised that the matter was complex: there were two awards, multiple setting aside grounds, foreign law evidence, and a novel question about the effect of corrections on the commencement of the three-month period. The respondent also argued that the applicants’ conduct was unreasonable in various respects. In addition, the respondent claimed it had to expend substantial time, with a team of four counsel, and that its actual time and time costs were over 140 hours and $86,492.50 in total. Finally, the respondent argued that the uplift was proportionate to the award debt at stake, which was almost $14 million.
The court identified a conceptual difficulty in the respondent’s uplift argument: an uplift must be from a baseline. The Costs Guidelines’ range is a daily tariff for the complete proceedings. Pre-transfer costs represent only part of the proceedings, so the court needed an adjustment. In prior cases such as CNA v CNB and another and other matters [2023] 5 SLR 264 (“CNA”) and Lao Holdings NV v Government of the Lao Peoples’ Democratic Republic and another matter [2023] 4 SLR 77 (“Lao Holdings”), the court had used the ratio between pre-transfer and post-transfer costs to derive a starting range. Here, the applicants had submitted that the ratio was 40.72%. Using that ratio, the court derived a starting range of $5,293.60 to $16,288 for pre-transfer costs.
The court then assessed whether the respondent’s proposed pre-transfer costs of $65,000 could be justified as a departure from the guidance. The court considered that an uplift to $65,000 would be a considerable departure from the Costs Guidelines guidance and that the respondent’s reliance on CJM and others v CJT [2021] 5 SLR 222 (“CJM”) and Lao Holdings did not provide sufficient support for such a large departure. In CJM, the starting point was $12,000 and the uplift was to $25,000, with actual pre-transfer costs broadly comparable. In Lao Holdings, the pre-transfer costs were fixed at just over half the upper end of the Costs Guidelines amount for the whole proceedings; translated to the present case, the equivalent would be on the order of $17,000. The court therefore concluded that the respondent’s submissions did not provide a reliable basis for a large uplift.
On the applicants’ side, the court noted another difficulty. The applicants’ core argument relied on a percentage approach derived from two cases, suggesting that pre-transfer costs were awarded at 18% to 25% of actual pre-transfer costs. The court observed that such percentages depend on the particular circumstances, including the magnitude of actual pre-transfer costs. With only two cases, the court was not persuaded that an across-the-board percentage should be applied. The court reiterated that it must look to the circumstances of this case, and the applicants’ submissions did not adequately engage with the respondent’s reasons for uplift.
Having analysed the arguments, the court turned to the nature of the pre-transfer work. The respondent described pre-transfer tasks including reviewing the applicants’ affidavits and expert report, reviewing underlying arbitration material, reviewing service history and awards and corrections, sourcing and instructing a Hong Kong law expert on Hong Kong law issues, preparing responsive affidavits, and attending two Registrar’s case conferences. The applicants did not challenge this description, and the court accepted it, with a qualification that the responsive affidavits were filed about a month after transfer, meaning some of that work likely spanned the transfer period.
The court then selected a figure towards the upper end of the starting range derived from the Costs Guidelines ratio. It reasoned that the presence of two awards added some complexity, though other grounds were common to both awards and were not unusual for applications of this kind. The need for foreign law evidence was also a feature. However, the court considered that the complexities and the novel question about corrections were more matters for preparation for and conduct of the hearing, and thus had less impact on the pre-transfer work. The court accepted that attention to a considerable volume of materials in both parties’ cases would have been required prior to transfer and that this justified some uplift.
Crucially, the court did not accept that the applicants’ conduct went beyond the exigencies commonly encountered in litigation. As a result, it declined to abandon the Costs Guidelines but made a moderate uplift. The pre-transfer costs were fixed at $22,000, described as roughly 25% of the actual pre-transfer costs, aligning with the court’s calibrated approach between guidance and case-specific complexity.
For post-transfer costs, the court stated that assessment is “subjective” under O 22 r 3(1) of the SICC Rules, beginning with the costs actually incurred by the successful party and then asking whether those actual costs are proportionate and reasonable. While the extract provided is truncated before the full post-transfer calculation and final figure, the court’s stated method indicates that it would scrutinise the reasonableness of the claimed post-transfer costs in light of proportionality and the normative objective of costs awards.
What Was the Outcome?
The court determined the amount of costs payable by the applicants to the respondent. For pre-transfer costs, the court fixed the recoverable amount at $22,000, rejecting the respondent’s request for $65,000 as excessive in light of the Costs Guidelines and the need to identify a proper baseline for uplift.
For post-transfer costs, the court applied the SICC’s Order 22 framework, starting from the costs actually incurred and then assessing proportionality and reasonableness. The practical effect of the decision is that the applicants’ liability for costs is reduced from the respondent’s claimed $187,000 (for the contested components) to an amount determined by the court’s calibrated assessment across pre-transfer and post-transfer periods, while disbursements and preparation costs were not disputed.
Why Does This Case Matter?
DBX & Anor v DBZ is significant for practitioners because it illustrates how Singapore courts approach costs where proceedings are transferred to the SICC midstream. The decision reinforces that costs assessment is not monolithic: the applicable regime depends on the timing of work relative to transfer, and the standards differ between Order 21 (objective reasonableness with Costs Guidelines guidance) and Order 22 (subjective starting point with proportionality and reasonableness scrutiny).
For lawyers preparing costs submissions, the judgment is also a reminder that uplifts above the Costs Guidelines require a clear baseline and a principled justification. The court’s insistence on identifying “uplift from what” is particularly practical. It demonstrates that courts will not accept a bare assertion of complexity to justify a large departure from guidance, especially where the Costs Guidelines are designed to provide a structured benchmark for recoverable costs.
Finally, the case is useful as an application of Senda International Capital Ltd v Kiri Industries Ltd. The court’s emphasis on the normative question—what a successful party with reasonable merits ought to recover—helps counsel frame costs arguments in terms of objective reasonableness and proportionality rather than simply pointing to actual time spent or the size of the award debt. This approach is likely to influence future arbitration-related costs assessments, particularly in complex cases involving foreign law evidence and multiple awards.
Legislation Referenced
- Rules of Court 2021 (ROC), Order 21 (including O 21 r 22(2) and O 21 r 2(2))
- SICC Rules 2021, Order 22 (including O 22 r 3(1))
- Supreme Court Practice Directions 2021, Appendix G (Costs Guidelines)
Cases Cited
- Senda International Capital Ltd v Kiri Industries Ltd [2023] 1 SLR 96
- CBX and another v CBZ and others [2022] 1 SLR 88
- CNA v CNB and another and other matters [2023] 5 SLR 264
- CJM and others v CJT [2021] 5 SLR 222
- Lao Holdings NV v Government of the Lao Peoples’ Democratic Republic and another matter [2023] 4 SLR 77
- DBX and another v DBZ [2023] SGHC(I) 18
Source Documents
This article analyses [2024] SGHCI 5 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.