Knowledge Highlights 9 December 2021

On 8 December 2021, the Singapore International Commercial Court (“SICC”) in Kiri Industries Ltd v Senda International Capital Ltd & Anor [2021] SGHC(I) 16 (“Judgment”) rendered its decision on costs in respect of a litigation spanning more than six years between Kiri Industries Limited (“Kiri”) and Senda International Capital Limited (“Senda”), where Senda was held to have oppressed Kiri as a minority shareholder in the parties’ joint venture vehicle, DyStar Global Holdings (Singapore) Pte Ltd (“DyStar”), and ordered to buy out Kiri’s shares in DyStar at US$481.6 million.

Allen & Gledhill Partners Dinesh Dhillon, Lim Dao Kai and Margaret Joan Ling acted for Kiri, the successful party.

In a 49-page judgment setting a new benchmark for principles relating to costs in SICC proceedings, the SICC awarded costs of S$4,960,815.26 and disbursements of S$3,100,826.85 to Kiri (totalling S$8,061,642.11), with interest of 5.33% per annum calculated from the date of the Judgment.

As the matter was originally commenced in the then High Court of Singapore before being transferred to the SICC, the SICC held that the guidelines for party-and-party costs set out in Appendix G of the Supreme Court Practice Directions should serve as the initial reference point for pre-transfer costs. However, in this case, it was appropriate to apply an uplift on the Appendix G scale to reflect the complexity of the matter. In particular, the SICC opined that “it would be an understatement simply to call [this dispute] ‘complex’” as it was “more complicated than usual, with a multitude of cross-cutting allegations being levelled by both sides involving multiple entities and transactions in some cases spanning jurisdictions”. Further, the value of Kiri’s claim “was monumental at almost half a billion US dollars”.

As regards the quantum of costs post-transfer to the SICC, the SICC similarly had regard to the fact that the dispute “was of significant complexity” which was “only heightened post-transfer” and “best described as monumental” as evidenced by the “sheer number of tranches of trial and oral submissions…and the volume of documents (deluge being an appropriate description)”. Importantly, the SICC considered that the issues raised in the dispute were “novel, challenging and required skill, expertise and specialised knowledge”, the “size of the claim was enormous, with Kiri’s claim ranging from just under half a billion to almost a billion US dollars”, and “there was a need to understand difficult principles on valuation, economics and statistics and to apply them to a complex set of facts”.

Comment

This landmark decision illustrates the scale and quantum of costs that the SICC may award in high stakes international disputes involving complex issues. As highlighted by the SICC, the discretion of the court to award “reasonable costs” pursuant to Order 110 Rule 46 of the Rules of Court allows the court to look at all the facts and circumstances, in particular proportionality of the costs in relation to the size, scale and complexity in a given case, to determine the appropriate quantum of costs to be awarded.

Reference materials

The judgment and a summary of it are available on the website of the Singapore International Commercial Court www.sicc.gov.sg.

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