1 The applicant in Originating Summons No 989 of 2019 (“OS 989/2019”) seeks an order to tax 35 invoices (“the Invoices”) as bills of costs under s 122 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”). The total amount of the Invoices is $1,514,089.80. These were issued by the respondent who was the applicant’s previous solicitor, through M/s Patrick Chin Syn & Co (“the Firm”). The applicant has also requested an order requiring the respondent to deliver certain documents to it.

2 The applicant is a company incorporated in Singapore. Its Managing Director is Chen Walter Roland (“Chen”), a retired surgeon.

3 The respondent is a practising solicitor who is the sole proprietor of the Firm.

4 The applicant was the plaintiff in Suit No 896 of 2012 and was represented by Edmond Pereira (“Mr Pereira”) of Edmond Pereira Law Corporation (“EPLC”). That suit was struck out.

5 The applicant was dissatisfied with the services of Mr Pereira and it brought Suit No 992 of 2015 (“S 992/2015”) against Mr Pereira and EPLC for professional negligence. Its claim was for $8.9bn, revised from the original figure of $3.9bn. ¹ The applicant engaged the respondent to act for it and the respondent took over the matter on 14 December 2015. S 992/2015 went on trial and was heard over three days in March 2019 and was dismissed on 28 May 2019. The applicant has since appealed against the decision in S 992/2015. The respondent is not acting for the applicant in the appeal.

6 The respondent issued Invoices 1 to 34 in the table below for acting for the applicant in S 992/2015. Invoice 35 was issued on 13 June 2019 for the sum of $150,000. This was an interim payment for work relating to the appeal of the decision in S 992/2015. This was not paid by the applicant. The details of the Invoices are as follows:

7 Most of the Invoices, except Invoices 1, 8, 10, 27 and 28 (marked with an asterisk or a caret), are only a page with the letterhead of the Firm, followed by a file reference number, date, bill number, and “To” field. The body of the Invoices takes the following standard form: ²

8 The Invoices are for the respondent’s professional services and these were not itemised except Invoices 33 and 34, ³ which contained professional fees (not itemised) of $30,000 and $10,000 respectively, and itemised disbursements of $12,407.80 and $11,682 respectively. At the bottom of each of the Invoices there was a standard “IMPORTANT NOTES” section, Note 2 of which states “This is a short form bill and our rights are reserved to render to a revised full form bill or account if required”.

9 The applicant did not produce a copy of the Invoices marked with an asterisk. Instead, it tendered unnumbered official receipts from the Firm. These have the Firm’s letterhead, a file reference number, the date, the words “Re HC/S 992/2015”, and the words “Received from [the Firm] the sum of [amount] being payment of [bill number]”, followed by the amount in figures, a cheque number and the Firm’s seal. Nor did the applicant produce a copy of Invoice 27, marked with a caret. It tendered a cheque stub for the sum of $30,000 matching that invoice number. ⁴

10 The applicant only seeks orders for taxation for Invoices 1 to 34. It is not pursuing Invoice 35 as the respondent has confirmed, through written submissions and again at the hearing, that he is not claiming Invoice 35 (which is an interim fee of $150,000 for the appeal against the decision in S 992/2015 and has not been paid by the applicant) as he no longer acts for the applicant. ⁵

11 The applicant’s arguments are twofold. Firstly, Invoices 1 to 34 are not proper bills of costs within the meaning of s 122 of the LPA and so the two disqualifying events to an order for taxation in s 122 (ie, that the bills were paid or that 12 months had lapsed from the date of the invoices) do not apply. It relies on the case of H&C S Holdings Pte Ltd v Gabriel Law Corp [2018] SGHC 168 (“H&C S Holdings”) for the proposition that in order to constitute a proper bill of costs, the bill must have enough information on its face to enable the client to decide if he should obtain advice on whether to proceed to taxation. The lack of information in Invoices 1 to 34 prevented Chen from deciding whether the fees charged by the respondent are reasonable. The applicant had twice requested itemised bills from the respondent without success. ⁶

12 Secondly, even if Invoices 1 to 34 are proper bills of costs, there are special circumstances under s 122 of the LPA that justify the making of an order for taxation. ⁷ The applicant relies on the lack of itemisation in these Invoices and alleged overcharging by the respondent. ⁸

13 On this basis, the applicant seeks the following reliefs:

(a) a declaration that Invoices 1 to 34 are not proper “bills of costs” within the meaning of s 122 of the LPA such that the two disqualifying events to an order for taxation in s 122 do not apply to Invoices 1 to 34;

(b) an order for the respondent to deliver, within 14 days of the making of the order, a bill of costs for taxation covering work done under Invoices 1 to 34; and

(c) an order for taxation of all bills of costs.

14 In prayer 5 of OS 989/2019, the applicant also seeks an order that the respondent deliver certain documents pertaining to S 992/2015 (“the Documents”) within 14 days, subject to any lien the respondent may have:

(a) all correspondence relating to S 992/2015;

(b) the defendant’s three bundles of documents in S 992/2015;

(c) the defendant’s document marked “D1” in S 992/2015, being the alleged last page of the handwritten attendance note of 8 October 2012;

(d) all certified transcripts, notes of evidence, grounds of decision, or notes of arguments in the respondent’s possession; and

(e) softcopy trial transcripts for S 992/2015, by way of CD-Rom.

15 The respondent’s contention is that Invoices 1 to 34 are proper bills of costs. He relies on the presumption in s 118(3) of the LPA that a bill delivered in compliance with s 118(1) of the LPA shall be presumed until the contrary is shown to be a bill bona fide complying with the LPA.

16 The respondent also contends that there are no special circumstances under s 122 of the LPA to refer the bills of costs for taxation. The total bills for about $1.36m (excluding Invoice 35) were reasonable considering that the respondent had handled the matter for 3.5 years and the claim amount was $8.9bn. Further, the respondent alleges that the applicant:

(a) was aware that the respondent would not be rendering itemised bills and that the bills were for progress payments of S 992/2015;

(b) knew the amount that the respondent had billed it;

(c) had paid Invoices 1 to 34 promptly without reservation; and

(d) was prepared to pay the respondent $2m if the appeal was successful. ⁹

17 Regarding the last point, the respondent tendered a letter from Chen to him, dated 20 June 2019, which provided as follows: ¹⁰

18 I shall first address the non-contentious issues, namely prayer 5 of OS 989/2019 and Invoice 35.

19 In prayer 5 of OS 989/2019, the applicant seeks the delivery of the Documents by the respondent. This can be disposed of quickly. At the hearing, the respondent’s counsel confirmed, after seeking an adjournment to take instructions from his client, that the respondent would deliver the Documents that he had. The applicant’s counsel said that the applicant undertook to pay the photocopying fees and that delivery of the Documents was subject to the usual lien. Accordingly, by consent, I granted an order in terms for prayer 5 of OS 989/2019.

20 Before I deal with the central issues in OS 989/2019 concerning the Invoices I would like to have Invoice 35 out of the way. As mentioned above, this invoice for $150,000 was an interim payment for the appeal lodged against the decision in S 992/2015 for which the respondent quoted to the applicant a sum of $350,000. As the respondent is not representing the applicant for the appeal he will not claim from the applicant for Invoice 35.

21 Thus, the court now only has to deal with the remaining 34 Invoices and the following issues:

(a) Are Invoices 1 to 34 bills of costs under s 122 of the LPA?

(b) If so, are there special circumstances that justify the court making an order for taxation notwithstanding that more than 12 months have passed from the delivery of these Invoices and the fact that the applicant had made payment?

22 It is important to decide the basic issue of whether Invoices 1 to 34 are bills of costs under s 122 of the LPA. If these Invoices are not bills of costs then the twin bars of payment of the bills and the time limitation of 12 months for taxation would not apply, and the applicant can send them for taxation. In dealing with this basic issue I have considered s 118(3) of the LPA, which states that a bill of costs that is delivered in compliance with s 118(1) is presumed to be a bill bona fide complying with the LPA, unless proven to the contrary. The applicable provisions of the LPA are as follows:

23 On the issue of ascertaining whether the presumption is rebutted, detailed guidance was given in Ralph Hume Garry (a firm) v Gwillim [2003] 1 WLR 510 (“Ralph Hume Garry”), cited in H&C S Holdings at [36] and Ho Cheng Lay v Low Yong Sen [2009] 3 SLR(R) 206 (“Ho Cheng Lay”) at [13]–[16]:

24 I find that the applicant has rebutted the presumption that Invoices 1 to 34 are bona fide bills under s 118(3) of the LPA for the following reasons.

25 Firstly, there is no narrative in Invoices 1 to 34 to identify what the applicant was being charged for. The contents of each Invoice (see [7] above) are similar to those in Ho Cheng Lay. In that case each of the invoices had a heading, such as ‘bill YSL 2144/01 “Re: Divorce Proceedings No. 2685 of 1998”’; the statement “Towards account of our retainer inclusive of disbursements”; and a lump sum indication of the amount charged. The court held that the skeletal bills issued by the defendant lawyer fell short of the standard required (Ho Cheng Lay at [17]). That description and conclusion apply equally to each of the Invoices here though the court in Ho Cheng Lay was concerned with the issue of whether special circumstances existed, rather than whether the bills were proper bills of costs. This is because the same factors can be relied on in both situations, as was made clear in Ho Cheng Lay (at [11]–[12]):

26 Secondly, I find that the applicant did not have any information that would have enabled him to take advice on whether or not to go for taxation. That the applicant lacked such information is apparent from how it felt the need to raise the issue of absence of itemisation, not once but twice. The first time was on 19 June 2017 by way of a letter to the respondent, which stated: ¹¹

27 It is evident from this letter that the applicant did not know what it was being billed for. Chen was guessing what work had been done by the respondent regarding the various bills which had no itemisation. The abject lack of knowledge necessitated him writing this letter to seek for information or confirmation on the applicant’s behalf. This is reflected in the numerous question marks and blank spaces in the table set out in his letter above. In paragraph 5 of the letter, Chen categorically requested that the respondent provide “detailed itemisation / statement of your professional fees, disbursements and monies held under the SFC, and copy of receipts of payments made and received by you”. The respondent did not reply to this letter. Nevertheless, the applicant had little choice but to continue paying the respondent promptly if it wished the respondent to continue representing it.

28 The applicant again sought for itemisation of its solicitor’s bills from the respondent in its letter dated 15 March 2018. Chen asked the respondent at paragraph 3 to “please explain the basis for the progressive interim bills”. At the fourth bullet point of the same paragraph, Chen requested the respondent for itemisation: “We will require a detailed itemised Bill subsequently”. ¹² This met with the respondent’s terse response, by email on 13 April 2018, as follows: ¹³

Not only did the respondent not explain his charges or provide an itemised bill, he blithely proceeded to forward a further bill for payment. It is regrettable that the respondent chose to respond in this way and exercised his discretionary rights in the standard form “IMPORTANT NOTES” section, Note 2 on each of the Firm’s own Invoices, which stated that the Invoice was a short form bill and the Firm reserved its rights to render a full form bill or account if required.

29  The respondent alleges that the applicant knew the amount the respondent was going to bill it for the work to be rendered. I accept that the applicant knew the quantum of each of Invoices 1 to 34 (otherwise it could not have made payment). But the real concern is whether the client knew the breakdown of what it was paying for, in order to determine whether the charges are reasonable. The complete lack of itemisation here means that the applicant would not know if, for instance, there was any double-billing, mistaken billings for work that was not done or whether the applicant had been overcharged. It is clear and I do not think the respondent can gainsay that the applicant did not have sufficient or any information for the work that the respondent billed. This is apparent from the correspondence with the respondent, where Chen set out a table with numerous incomplete entries and question marks alongside his exhortation that the respondent provide itemised bills. ¹⁴

30 In my deliberation of the issue of whether Invoices 1 to 34 are bills of costs under the LPA, I am mindful of O 59 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) which sets out the procedure for taxation and requirements for bills of costs drawn for taxation. Basically, it requires the bill to itemise the work done and the disbursements incurred. This is to enable the Registrar to ascertain the complexity and to value the efforts of the applicant. These provisions give some perspective of what a bill under the Rules of Court should contain. In this case, Invoices 1 to 34, which are devoid of any particulars, would not have in any case fit the description of a bill of costs under O 59.

31 What, then, should a bill of costs not drawn for taxation contain? I had requested parties to enquire whether the Law Society of Singapore had issued any advisories or guidance regarding the contents of bills of costs. I was informed that there is none. However, the Law Society of England and Wales expects solicitors to furnish, in their bills of costs, adequate information to their clients. Its website states:

32 In Australia, the Law Society of New South Wales and the Legal Services Commission of Queensland also require solicitors’ bills that are not lump sum bills to be itemised in detail to fulfil the requirements under their respective statutes and regulations:

(a) The Law Society of New South Wales states in its Costs Guide (7th Ed, 2015):

(b) The Legal Services Commission of Queensland states in its Explanatory Notes to the Regulatory Guide entitled “Itemised Bills” (2019 Ed, Version 3):

In the Regulatory Guide, the Legal Services Commission of Queensland gives the following guidance on the contents of an itemised bill as distilled from the case law:

33 I note that the guidelines reproduced above mostly focus on the requisite contents of an itemised bill that is delivered by a law firm on a client’s request (ie, in the exercise of the client’s right to ask for an itemised bill after receiving a lump sum bill). The practice of issuing a lump sum bill in the first instance before providing an itemised bill only on request is an accepted one in Singapore (see, eg, Lee Hiok Ping and others v Lee Hiok Woon and others [1988] 2 SLR(R) 326 (“Lee Hiok Ping”)). In this case, the respondent had categorically refused to provide an itemised bill (at [28] above) even when requested by the applicant. Thus the respondent’s case stands or falls based on whatever invoices or bills he presented at the first instance.

34 The basic notion of a bill of costs is to itemise the solicitor’s services to the client so that the latter understands what he is paying for (Ho Cheng Lay at [14]–[15]):

These cases may be very old but they are still relevant, and were cited by the English Court of Appeal in Ralph Hume Garry (at [23] above).

35 For the reasons above, I find that the applicant has rebutted the presumption under s 118(3) of the LPA that Invoices 1 to 34 are bona fide bills. In the circumstances, the twin bars, ie, the payment of the bill and the 12-month limitation under s 122 of the LPA, will not apply to the applicant. I shall discuss s 122 of the LPA in detail below. On my finding that these Invoices are not bills of costs the application for Invoices 1 to 34 to proceed for taxation is allowed. However, for completeness, I shall discuss whether there are special circumstances under s 122 of the LPA to warrant sending this case for taxation as well.

36 The relevant provisions of the LPA are as follows:

37 Under s 120(1) of the LPA, an order for taxation may be obtained by the client on an application at any time within 12 months from the date of the delivery of the bill. But s 120 must be read with s 122, which limits the right to obtain an order for taxation where either or both of the twin bars operate, ie, where 12 months have passed since the delivery of a bill of costs, or if payment of the bill has been made. In such a case, an order of taxation will only be made if the applicant is able to prove the existence of special circumstances: Sports Connection Pte Ltd v Asia Law Corp and another [2010] 4 SLR 590 (“Sports Connection”) (at [23]):

38 In deciding whether special circumstances exist, the court must balance the solicitor’s interest in being fairly paid against the basic requirement of the client to be given sufficient information in the bill of costs to understand the services it is being billed for (Sports Connection at [4]):

39 The categories of special circumstances are not exhaustive. In Kosui Singapore Pte Ltd v Thangavelu [2015] 5 SLR 722 (“Kosui”), the court summarised some examples in which bills were sent for taxation (at [61]):

40 What is important is that there must be a nexus between the alleged special circumstance and the particular disqualifying event, such that the special circumstance explains or justifies why indulgence should be granted. If both disqualifying events operate, then the special circumstances which the client advances must have a rational connection to both (Kosui at [65]):

41 I find that there are special circumstances that warrant the making of an order for taxation in this case, these being the lack of itemisation despite repeated requests by the applicant for details. I do not accept any of the arguments proffered by the respondent against this conclusion.

42 The respondent alleges that the applicant “was aware that the [r]espondent will not be rendering itemised bills” and had nevertheless “paid … promptly without reservation”. The applicant has indeed admitted that it “paid [Invoices 1 to 34] promptly”. ¹⁵ But, in the first place, the onus should not unfailingly be on the client to take objection. As stated in H&C S Holdings at [125]:

Though expressed in the context where a firm was handling multiple active files for the same client, the call for clarity and accuracy applies equally to communications about different subsidiary matters within the same case.

43 Moreover, the payments in this case were made under protest or indication of unhappiness. I have set out above the undisputed facts, which are that the applicant had twice raised the issue of lack of itemisation. For this reason, this case is distinguishable from Kosui, where the court held that special circumstances were not made out despite the lack of itemisation. The applicant, Kosui, had engaged the respondent Mr Thangavelu’s then-firm to act for it. When Mr Thangavelu left for a new firm, Kosui appointed the new firm to act for it instead, on condition that a partner from the old firm remained on the case. This was done and the new firm eventually billed Kosui about $700,000 for eight bills dated between December 2010 and July 2011. There was no itemisation. About a year later, Kosui found that Mr Thangavelu had apportioned about $400,000 to the partner and $300,000 to himself. Kosui alleged overcharging and complained to the Law Society. Its complaints were dismissed. Subsequently, Kosui twice rejected Mr Thangavelu’s offers to have the bills taxed. But Kosui eventually commenced court proceedings praying that the bills be referred to taxation. By that time, the twin bars had come into play. In finding that there were no special circumstances, the court found that Kosui’s conduct in refusing to consent to taxation revealed that it was Kosui’s aim to assess if the fees charged by the new firm were reasonable. Its real complaint was that it disagreed with the allocation of fees between Mr Thangavelu and the partner from the old firm, but that could not be remedied by taxation.

44 The facts in Kosui’s case are materially different from this case. For instance, Mr Thangavelu twice offered the bills to be taxed and these were rejected. Pertinently for this case, in relation to the lack of itemisation the court found that there was objective evidence that Kosui was well aware of what the bills covered despite the lack of itemisation. As the court stated (at [92]):

Unlike Kosui’s case, there is no such objective evidence here.

45 Moreover, in this case, the lack of itemisation is compounded by the nature of the parties’ arrangement. The lack of itemisation might be less problematic if, for example, the parties had a written agreement to pay a lump sum with progressive billings, so the client at least understands the big-picture and the limit of his bill regarding lawyers’ fees. However, as a matter of good standard, fair practice and transparency, even for lump sum fees the solicitor should, nevertheless, provide sufficient itemisation for the client to appreciate the bill. But in this case, the respondent’s email reproduced at [28] above does not indicate any such cap on the respondent’s fees. On the contrary, the respondent stated that “the costs of acting in this matter is in access [sic] of one million” [emphasis added]. This literally means that there is no limit to the respondent’s fee! It would not be fair to the applicant which was subjected to the possibility of the open-ended ballooning of costs without the benefit of itemised bills that would allow it to assess the reasonableness of the mounting charges. That would leave the client at the complete mercy of the respondent.

46 The respondent argues that the quantum of fees ($1.36m for Invoices 1 to 34) is reasonable as the amount of the claim in S 992/2015 was $8.9bn. Furthermore, the applicant was prepared to pay the respondent $2m on a contingency fee basis if the appeal was successful. I accept that the quantum of fees may have some correlation to the amount of the claim, in the sense that, generally, high fees are commensurate with large claims and low fees with small claims. But considering the seriousness of the complete lack of itemisation in this case and the repeated exhortation by the applicant for itemisation of the respondent’s bills, the circumstances reveal a lack of fairness by the respondent to the applicant vis-à-vis billing for his professional services. The applicant was literally helpless and at the mercy of the respondent as the applicant had no clue what he was billed for. The applicant was never given any itemisation of its bills and when it requested for itemisation the respondent nonchalantly ignored it. The applicant trusted the respondent and paid whatever it was billed.

47 The respondent cited four cases to resist OS 989/2019. None of these assist him.

(a) Chor Pee & Partners v Wee Soon Kim Anthony [2005] 3 SLR(R) 433 was a High Court decision that was reversed on appeal. That reversal was not brought to my attention – a glaring omission on the part of the respondent’s counsel that was fortunately corrected by the applicant’s counsel. Turning then to the Court of Appeal decision in Wee Soon Kim Anthony v Chor Pee & Partners [2006] 1 SLR(R) 518, that case is an authority on s 111 of the LPA, which provides:

The Court of Appeal held at [26] that a client can enforce an oral agreement against a solicitor but not vice versa – to be enforceable against a client, there must be a written agreement with the client’s signature. Applied to this case, the email from the respondent at [28] above cannot be considered an enforceable agreement on costs under s 111 of the LPA as it is not signed by the client.

(b) The facts of Engelin Teh Practice LLC formerly known as Engelin Teh and Partners v Tan Sui Chuan [2006] SGDC 2 are entirely distinguishable from this case. There, the plaintiff law firm had sued the client for unpaid fees. At first instance, the plaintiff applied for summary judgment and the defendant was given unconditional leave to defend. The plaintiff appealed and the District Court allowed the appeal. Although the defendant alleged overcharging in his defence and stated that he wished to proceed for taxation in his affidavit, he had not gone for taxation and did not give any reasons for his delay of nearly two years after delivery of the bill. There were, therefore, no special circumstances that warranted an inquiry into the bill as a defence to the law firm’s claim.

(c) The facts of Koperasi Belia National Bhd v Dublee Holdings Sdn Bhd Civil Suit No C23–2772–86 are similarly distinguishable. A client had sought taxation of its lawyer’s bills after the Malaysian equivalent of the twin bars came into play. The court found that there were no special circumstances because the client had not stated in its affidavit any facts that might support that finding. This is not so for the present case, where Chen’s affidavit sets out ample first-hand and documentary evidence regarding the lack of itemisation.

(d) In Lee Hiok Ping, the court stated (at [28]) that “it is a fairly common practice in the profession for a solicitor to send a lump sum bill based upon a very rough estimate, without going too much into details”. But that statement is irrelevant for our purposes because it was made in a very different context. The issue there was whether a lawyer was entitled to withdraw the first bill and tender a second bill for a different sum after the client requested that the first bill be taxed. The observations of the court on this point is reproduced below:

48 Invoices 1 to 34 here have failed to fulfil the desired objective because they only informed the applicant to pay a certain sum for the respondent’s professional services. I would add that in this case, the absence of itemisation has a nexus to both of the twin bars. The applicant did not have any information to decide whether to apply for taxation within 12 months, given the impossibility of determining the reasonableness of the charges. The fact that the applicant paid also cannot be held against it, not merely because it alleges that it trusted its lawyer but – crucially – because it had asked about itemisation and registered its concerns and yet was rebuffed.

49 Finally, I would like to deal with the issue of whether the respondent will be prejudiced if Invoices 1 to 34 are taxed by the Registrar. Prejudice comes into the picture because, as stated in Ralph Hume Garry, the court must be alive to the possibility of late ambush by a client who wants to get out of paying his dues. This does not apply here as the applicant had promptly paid these Invoices.

50 The Invoices pertain to S 992/2015 and were issued progressively from 2015 to April 2019, excluding Invoice 35, which is the fee for the appeal and now not pursued by the respondent. This suit was dismissed by Aedit Abdullah J on 28 May 2019 after a three-day trial. As the respondent has records of all the efforts he put in for S 992/2015, there is no prejudice to him when it comes to taxation. The only possible risk of “prejudice” is that the Registrar may reduce the sums in Invoices 1 to 34. But that cannot be considered prejudice as it is speculative and would only arise if the Registrar reduces the sums in these Invoices.

51 Accordingly, if Invoices 1 to 34 were bills of costs I would have, nevertheless, found that special circumstances existed to warrant the making of an order for taxation.

52 It is tempting to caricature the applicant as a disgruntled client out for vengeance after the respondent had lost its case in S 992/2015. But it is ultimately speculative whether the applicant would have acted differently had the outcome been in its favour.

53  I find that the applicant has rebutted the presumption under s 118(3) of the LPA that Invoices 1 to 34 are bona fide bills. I, therefore, grant the declarations that Invoices 1 to 34 are not proper bills of costs within the meaning of s 122 of the LPA and that the twin bars in s 122 are inapplicable. Furthermore, the facts of this case would have satisfied the requirement of special circumstances in s 122 of the LPA. Thus, I allow the application in OS 989/2019. The respondent is to deliver, within 14 days of my order, bills of costs for taxation covering work done under Invoices 1 to 34, excluding the portions on disbursements that are itemised in Invoices 33 and 34.

54 I shall now hear parties on the issue of costs.