Razer (Asia-Pacific) Pte. Ltd. v Capgemini Singapore Pte. Ltd.

Facts

Razer (Asia-Pacific) Pte Ltd, a gaming hardware and digital payments business, sued Capgemini Singapore Pte Ltd, an IT consultancy, in Suit No 1233 of 2020 over a leak of non-public customer data from Razer's Kibana application. In an earlier decision, Razer (Asia-Pacific) Pte Ltd v Capgemini Singapore Pte Ltd [2022] SGHC 310, the court found Capgemini liable for breach of contract and, in the alternative, negligence, and ordered it to pay US$6,518,738.81 in damages.

This decision dealt with costs. Razer sought costs on an indemnity basis, relying on indemnity clauses in cl 12 of the consulting services agreement (CSA) and cl 12 of the Data Processing Addendum (DPA), on Capgemini's conduct of the suit, and on an offer to settle it had sent on 27 June 2022. Capgemini argued that the contractual entitlement had not been properly pleaded, that Razer itself had acted unreasonably, and that the offer to settle was not a genuine attempt at settlement.

Issues

1. Whether Razer had clearly and properly pleaded a contractual entitlement to indemnity costs under the indemnity clauses
2. Whether the indemnity clauses entitled Razer to full indemnity costs or only reasonable legal fees
3. Whether Razer's unaccepted offer to settle entitled it to indemnity costs from 27 June 2022 under O 22A of the Rules of Court
4. Whether Razer's conduct in the suit justified costs on only a standard basis

Holding

The court allowed Razer's claim to costs on an indemnity basis and held Capgemini liable to pay the costs of the suit on that basis. In the alternative, Razer had a separate right to indemnity costs from 27 June 2022 onwards by virtue of its offer to settle.

Reasoning

Relying on Telemedia Pacific Group Ltd v Credit Agricole (Suisse) SA (Yeh Mao-Yuan, third party) [2015] 4 SLR 1019, the court accepted that a party enforcing a costs agreement directly must plead it clearly and properly. Since the purpose of a pleading is to give the other side notice and avoid surprise, the test was whether the defendant could reasonably say the plaintiff had shown an intention to invoke a specific contractual term to recover indemnity costs. Paragraphs 24 and 25 of Razer's Statement of Claim stated that it would rely on the full terms of both clauses, which cover legal fees and costs. That was enough notice, and nothing more was needed.

On the scope of recovery, the court noted that cl 12 of the CSA mentions reasonable legal fees while cl 12 of the DPA does not refer to reasonableness. It accepted that the DPA clause applied because it was entered into later, and in any event the CSA wording was only an illustration and did not exclude indemnity for all legal fees. Applying UOB v Sin Leong and NSL Oilchem, the court saw no reason to depart from the bargain made by two commercial parties at arm's length and held full indemnity costs appropriate.

On the offer to settle, the offer had not been withdrawn and carried no expiry date. It proposed a settlement sum of US$3,000,000 plus costs. The judgment sum of US$6,518,738.81 far exceeded that figure, and the court found Capgemini's complaints about Razer's conduct irrelevant to whether the offer was genuine. Under O 22A r 9, Razer was therefore entitled to indemnity costs from 27 June 2022.

Finally, the court considered Capgemini's arguments about Razer's allegedly unreasonable conduct and was not persuaded by them to award costs on a standard basis.

From the judgment