WHEN TIME FOR APPEAL STARTS TO RUN
In Chan Pik Sun v Wan Hoe Keet and others [2023] SGHC(A) 36, the issue arose before the Appellate Division of the High Court (“the Appellate Division”) as to when the time for filing of an appeal began to run under O 19 r 4 of the Rules of Court 2021 (“ROC 2021”).
Facts. On 14 April 2023, the judge in the General Division of the High Court (“the Judge”) dismissed all the claims of the Applicant against the Respondents in HC/S 806/2018 (“Suit 806”) (at [3]). The Judge also awarded the Respondents “costs to be assessed, if not agreed. Unless the parties agree on costs, they shall put in their costs submissions … within three weeks” (at [3]). Collectively, this is “the Main Decision”. The wording of this direction on costs is important, as we will explore below.
The Applicant filed an appeal on 11 May 2023 (AD/CA 50/2023, “AD 50”) against the whole of the Main Decision which includes the Judge’s decision on the Applicant’s liability for costs (at [4]).
The parties tendered costs submissions, and the quantum of costs was determined by the Judge on 11 September 2023 in “the Costs Decision” (at [7]).
The Applicant then filed AD/OA 46/2023 (“the PTA Application”) on 25 September 2023, seeking permission to appeal against the entirety of the Costs Decision, except for the sum of $59,040.41 allowed pursuant to the parties’ agreement (at [1], [8]).
The phrase “costs to be assessed”. The issue of timing – as well as whether AD 50 was premature – arose because it was stated in the Main Decision that costs were “to be assessed, if not agreed”.
O 19 r 4(1) ROC 2021 provides that: “[u]nless the Court otherwise orders, the time for the filing of an appeal … does not start to run until after the lower Court has heard and determined all matters in the trial, including costs.” (at [5])
O 19 r 4(2) ROC 2021 then provides that “… a direction by the lower Court that costs are to be assessed is to be regarded as a determination on the issue of costs.” (at [5])
Taxation. At this point, it is apt to note that the taxation procedure set out in the Rules of Court (2014 Rev Ed) (“ROC 2014”) is now termed as an “assessment” under O 21 r 17 of the ROC 2021 (at [12]).
The Appellate Division noted that “[n]otwithstanding the change in terminology, both the ROC 2014 and ROC 2021 provide for what are substantially similar procedures and indeed the rules both envisage the submission of a bill of costs as the initial step of the process” (at [12]).
Therefore, if the Main Decision meant that costs were to be taxed (to use the old terminology), there being a determination on the issue of costs, the time for the filing of the appeal would have run, and AD 50 would not have been filed prematurely.
On the other hand, if the Main Decision meant that costs were to be fixed, then costs not having been determined, the time for the filing of the appeal would not have started to run, and AD 50 would have been filed prematurely.
To be fixed and not taxed. Reading the entirety of the Judge’s directions in context, the Appellate Division found it clear that the Judge was not referring to “assessment” in the technical sense, but was merely directing that costs are to be “fixed” at a later date (by the Judge) after parties have tendered their costs submissions (at [12] – [13]).
So, as of 14 April 2023, “there was no determination yet on the issue of costs” (at [13]), and time to file any appeal did not run from 14 April 2023, but would have run from the date of the Costs Decision (at [14]).
In the circumstances, “if the Applicant had not already filed AD 50, the Applicant would only have had to file a single appeal on both the Main Decision and the Costs Decision … within 28 days from” the date of the Costs Decision (at [15]).
Permission to appeal. However, the Applicant has filed AD 50 which does not extend to the quantum of costs (at [16]).
As her intended appeal in respect of the Costs Decision appeared to be independent of the outcome of the appeal against the Main Decision, she needed to file a separate notice of appeal, for which she first required permission to appeal (at [16]; citing The “Luna” and another appeal [2021] 2 SLR 1054 (“The “Luna””) at [104(b)]; and ss 29A(1)(a) and 29(2)(b) read with paragraph 3(f) of the Fifth Schedule to the Supreme Court of Judicature Act 1969 (2020 Rev Ed)).
This is because, under paragraph 3(f) of the Fifth Schedule, the permission of the appellate court is required where the only issue in the appeal relates to costs.
To answer the question of whether the Applicant must satisfy the usual requirements for obtaining permission to appeal, the Appellate Division considered the case of The “Luna”. We can do no better than to reproduce the Appellate Division’s analysis of the case at [20] – [23]:
“20 In our view, it is evident that The “Luna” was addressing cases in which a court has made split decisions on the merits of the claims and costs. More specifically, the court was concerned about the situation where the decision on costs comes sometime after the first decision on the merits of the claims such that an unsuccessful party might have to file and serve the appeal on the merits of the claims first to meet a certain deadline to do so, ie, he cannot wait till the issue of costs is determined. That situation has now been addressed in the ROC 2021 which makes it clear that the time to appeal does not run until all matters in a trial, including costs, are determined. In this regard, where the court directs that costs be “assessed”, that direction is to be regarded as a determination of costs (see O 19 r 4 of the ROC 2021).
21 What The “Luna” decided was that if there were split decisions such that the unsuccessful party had to file an appeal on the merits of the claims first and then file another one on costs, no permission to appeal for the costs issue is necessary if the costs issue would follow the outcome of the appeal on the merits of the claims (at [104(a)]). However, if the costs issue was independent of the outcome of the appeal on the merits of the claims, that party would require permission to appeal (at [104(b)]).
22 In the latter situation, permission to appeal would generally be granted if the appellant is agreeable to both appeals being consolidated or fixed for hearing together (see The “Luna” at [104(b)]). This is different from other situations where permission to appeal is required. The unsuccessful party requires permission to appeal on costs because the court has made split decisions and the second decision is made after the time for filing of an appeal against the first decision has expired. It is different if, for example, the unsuccessful party is not appealing against the decision on the merits of the claims but only on costs. In that situation, the fact of the split decisions is immaterial and the usual requirements for obtaining permission to appeal have to be satisfied.
23 To that extent, the Applicant is correct that in the situation envisaged by The “Luna”, a party seeking permission to appeal would generally not have to satisfy the usual requirements for permission to appeal.”
(emphasis added in bold)
The issue was then whether the Judge had in fact made split decisions in the present case, a split decision being either (at [24]):
“when a court decides the merits of the claims but says nothing on who should be liable for costs”; or
“when a court decides the merits of the claims and liability for costs but has not decided the quantum of costs”.
The Applicant fell within the second category, where “her intended appeal on costs in the PTA Application arises because of the quantum of costs for which she was held to be liable, ie, the Costs Decision. Otherwise, she would not have had to make this application as she had already appealed against her liability for costs in AD 50, that being part of the decision on 14 April 2023, ie, the Main Decision.” (at [24])
In the circumstances, the Appellate Division found “no reason why permission to appeal should be denied” and therefore granted the Applicant permission to appeal the Costs Decision (at [26]).
The Appellate Division also noted that there was no need for the Applicant to provide security for costs for that appeal, “as security was already provided when she filed AD 50 and … she would have been allowed to file a single appeal against both the Costs Decision and Main Decision if she had not filed AD 50 prematurely.” (at [26])
Significance. Although this decision was on O 19 r 4 of the ROC 2021, we observe that this provision is similarly worded in O 18 r 3 of the ROC 2021, in relation to when time for appeal starts to run in appeals from applications in actions. Therefore, this decision would similarly serve as helpful guidance to understand when time for appeal starts to run under O 18 r 3 of the ROC 2021.
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