CIVIL PROCEDURE LECTURES (1) & (2)

Skills of a lawyer: Christopher Lau JC, Guan Ming Hardware [1996] He is liable for the consequences of
ignorance or non-observance of the rules of practice of this court. A lawyer is expected to know the
rules of practice.

A lawyer will be faulted for timelines – courts may refuse to extend timelines.

Cropper v Smith (1884): Bowen LJ: “I think it is a well established principle that the object of Courts is to
decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their
cases.”

Lee Chee Wei v Victor Tan [2007] – The rules of court practice and procedure exist to provide a
convenient framework…Such an objective must never be eclipsed by blind or pretended fealty to rules
of procedure. (Moving between lines, to penalize lawyer or clients etc., seldom is the lawyer punished
for procedural lapses).

ORGANISATION AND JURISDICTION OF THE COURT

Supreme Court comprises High Court and COA.

Section 4- Order of precedence

- Chief Justice, Judges of Appeal, High Court Judge, Judicial Commissioner

- Rank inter se based on date of appointment

Subordinate Courts – District Court, Magistrates Court etc.

COA – Permanent COA, comprising CJ and JA (s29(1) SCJA). JA may include High Court judge appointed
by the CJ to sit in the CA. CA shall comprise 3 or greater uneven number of judges. CA decides by
majority decision. If interlocutory order, 1 or sometimes 2 may sit in CA. If tied decision, lower court
decision shall remain.

Non- appealable matters to CA (because it is unlikely that they will be reversed)

- Order 14 unconditional leave

- Order 14 conditional leave (except the Defendant may appeal, reason for this is that Order 14 is
often regarded as good as getting judgment)
- Order setting aside default judgment unconditionally
- Order setting aside default judgment with conditions attached (except Defendant may appeal,
see above for similar reason, might allow for paying money, providing security etc.)
- Consent judgment or order (If you say I consent, you cannot appeal. If you say you have no
instructions, you can appeal. Better for the latter as facts may arise which allow you to review
the matter at a later stage. Esp for corporate)
- Written law declaring that judgment or order of High Court is final
Section 34(1) SCJA

- If there is an appeal to the COA from interlocutory order

- Appellant is obliged to write in to the High Court Judge within 7 days (of what? In some cases it
is the order. But in cases where the order is reserved, where the days do not run, or when the
court order is not extracted for the registry. On the order being granted, the 7 days runs) for
further arguments
- High Court judge could either change verdict or affirm verdict, or certify that it does not wish to
hear further arguments
- Some cases, Counsel have no further arguments and will just request Court to certify no further
arguments required. (Some counsel immediately after the court certify this.)
- Note: There is a Practice Direction on the format of further arguments. (Impt because the
Registry can reject, and they have rejected letters because they do not comply with the format,
impt because after 7 days you may lose the right to appeal. Applies even to writs.)

Appealable to CA with leave of court (current rule, you apply to High Court, but current rules, the
application will go to the High Court judge who just ruled against you. But having said that, judges have
exercised this discretion carefully, as it does not depend on merits but on certain principles)

- Amount in dispute less than S$250,000 (previous amount pre-1998 was S$30,000)
- Only issue is costs or hearing fees (if you feel that costs ought to be done methodically with a
full bill of costs by winning party, then tell the judge to have the costs taxed as it requires special
attention.)
- Summary decision on interpleader summons where facts not in dispute (COA will not look at it,
as interpleader summons tend to be summarily dealt with)
- Order refusing to strike out action or pleading (again, the feeling is it is a very high burden to
strike out. Have to convince the court why it needs to be dealt with in COA)

Introduction of new evidence (ques of whether evidence was with you, and whether you forgot to
present it, in which case you may be negligent)

- Matters arising after decision may be introduced without leave in the appeal
- Interlocutory orders, new evidence may be introduced without leave
- Appeals on judgment after trial or hearing, need special grounds and leave of the CA to
introduce new evidence
- May be penalized with costs for late introduction of evidence
Stay of execution (courts require you to provide why you should get a stay, as winner should get fruits.
Stay is more readily granted is appeal is rendered useless, as he has already done the act, eg. to deliver
the document. But monetary judgments are difficult, your best way out to negotiate instalments, or to
finish the appeal quickly. Could apply for an expedited appeal if your client is in fragile financial
circumstances.)

- Fundamental rule when lodging appeal

- Appeal does not operate as a stay of execution unless High Court or COA orders otherwise
- Losing party will usually apply for stay of execution on the spot (eg Erinford injunction/oral
application)
- Alternatively, losing party apply for stay after judgment separately (on own initiative or in
reaction to execution proceedings

Jurisdiction of High Court (your ability to appreciate conflicts of law is critical. Order 11 – whether a case
is fit for service outside S’pore, has problems when you serve in 3 rd world countries, where rules may be
unfriendly. Have to communicate through Singapore’s court who connects to foreign embassy and
judiciary etc. Macro perspective, plenty of Murphy’s Law issues)

- Section 16 SCJA
- Defendant is served with Writ (Singapore or overseas)
- Defendant submits to jurisdiction
- Written law confers jurisdiction (very uncommon in civil jurisdiction)

Teo Choon Mong v Wilh Schulz [1998] – court refused to take jurisdiction as they felt the injunction
could not be enforced. HC: Nothing in shareholder agreement required unanimous agreement to
remove director. Teo could protect his interests as shareholder without being director. Injunction
useless because it cannot be enforced against German Corporation.

On appeal, CA held that: Injunction can be enforced in personam against representatives of Wilh Schulz.
Wilh Schulz by taking steps in these proceedings had submitted to the Court’s jurisdiction. They have
also agreed to the Singapore court’s jurisdiction under the shareholder agreement. On interpretation of
shareholder agreement, each party entitled to nominate one director and remove same. Right to
remove director belonged to appointer.

Powers of High Court (1st Schedule SCJA, powers are contained in statute)

Appellate jurisdiction of HC

- High Court hears appeals from Sub Courts

- Right to appeal from DC or MC: Only for recovery of immovable property, amount in dispute
exceeds $50,000. Otherwise needs leave.

Abdul Rahman v Abdul Salim – Interest would mean that amount was above $50,000. Held by Tay Yong
Kwang JC that amount in dispute does not include non-contractual interest or costs. Such amounts
fluctuate and would lead to uncertainty. But left it open, does it mean that if interest was fixed this
would not be a problem? One could argue that interest is fixed, time was not fixed, is all interest
additional?

Leave may be granted if:

- Error of law
- Question of law decided for the first time (if it was in another jurisdiction (Malaysia), but
Singapore had no similar cases, we need not follow Malaysia, case in Malaysia might have flaws,
lack of legal reasoning, another contradictory Malaysian case.) (But sometimes you have to
show beyond a new point of law which is unlikely to have an impact beyond that case)
- Question of law for the advantage of public (the extent to which it will become a precedent or a
deterrent)
- Question of law where there is conflict of authority

Zaleha v Chaytor (to read)

District court

- Jurisdictional basis same as section 16 SCJA

- Monetary limit of $250,000 (difficult assessment to make, esp for defamation)
- Plaintiff may abandon excess for DC to have jurisdiction (s22(1) SCA)
- Parties can agree for DC to have jurisdiction even if monetary limit exceeded (s.23 SCA)
[uncommon]
- S 28A SCJA – CJ may allocate civil proceedings in HC to the DC (matrimonial matters)

What if I sue in the High Court and recover damages less than $250,000

- If between $60,000 and $250,000 – not allowed to recover more costs than DC scale.
- If less than $60,000 – not allowed to recover more costs than MC scale.

Section 48: No appeal from DC to HC if both parties agree before that there will be no appeal.

Magistrates Court

- Monetary limit $50,000

Keppel Singmarine v Ng Chan Teng [2008] – Reversed a DC case, where interlocutory judgment had been
entered in DC, an assessment of damages could be transferred to HC if no prejudice caused to the
defendant that could not be compensated by costs. (should be done as early as possible. Having said
that, it is a risky manoevre, court might change)
Reference of constitutional question (getting more popular)

- Court may stay proceedings pending decision of HC on constitutional question

- Sub Court will state question for reference to HC
- AG will be notified and will have right to be heard
- Procedures in section 56A of SCA and Order 58A Rules of Court

Registrar of Supreme Court

- Includes the Deputy and assistants

- Order 32 rule 9: Registrar has same authority and jurisdiction as Judge in Chambers

Small Claims Tribunal

- Monetary limit $10,000 – where both parties consent in writing the jurisdiction can be raised to
$20,000
- Claims limited to- contracts for provision of goods and services, tort for damage to Property, or
claims arising any contract relating to a lease of residential premises
- One yr time limit

Small Claims Tribunal

- No legal representation allowed

- Does not cover landlord/tenant disputes and also not applicable to lawyers’ bills
- Separate procedure
- Informal rules and procedures

Mohamed Akhtar v Schneider [1997] – Simple case, claimant had bought part of the instalments, said
there was a defect, wanted it back. Argument: As carpet is valued at $10,000, exceed limit of $5,000.

Held: Monetary jurisdiction is to be determined by value of claim and not value of the underlying
contract. However the claim here is for rescission of contract. Although sum sought to be returned was
$5,000, the value of the claim was not $5,000 but $10,000. SCT had exceeded jurisdiction.

Singapore Mediation Centre (see topic) (in some cases, ask for a panel, agree on the panel of members)

SOURCES OF PROCEDURAL LAW

Rules of Court (promulgated by a Rules Committee)

- Merged RSC and SCR in Jan 1996

- SCJA and SCA confer power to make rules for procedure
- Rules cannot vary statutes or substantive law

Composition of Rules Committee - Section 80(3) of SCJA. Quorum 5, majority decision with CJ having
veto power.
Section 19© Interpretation Act

- Subsidiary legislation cannot be inconsistent with statute

- Re Grosvenor Hotel [1965]
- Ward v James [1966]
- These two cases are examples of successful challenges. Rules held ultra vires for varying
substantive law.

UOB v Ng Huat [2005] – There must be fairness in the procedure or manner in which the final outcome
is achieved. Procedural fairness is a necessary but not sufficient condition for a fair and just result. (Can
detect a balance that the court is trying to strike)

Inherent jurisdiction

- Order 92 rule 4
- Inherent powers of the court are not restricted by the rules to make any order as may be
necessary to prevent injustice or to prevent an abuse of the process of the court.
- Applies to Sub Courts, High Court and COA

Heng Joo See v Ho Pol Ling

- Order 92 rule 4 does not confer inherent jurisdiction. It merely states that the rules will not limit
inherent jurisdiction. Inherent jurisdiction are common law powers.

Sir Jack Jacob on the Inherent Jurisdiction of the Court – just and equitable to use the reserve of powers
to do justice.

Burgess v Stafford- Court held that it had jurisdiction to strike out Notice of Appeal on same grounds
under Order 18 rule 19 even though the Notice of Appeal is not a pleading.

Can Court disregard rules?

- Query: is inherent jurisdiction limited to only matters not covered by rules? (eg. order 29 r 2
refers to preservation of property but makes no provision for ex parte relief. Yet Anton Piller
orders are accepted There are practice directions on Anton piller orders, but no rules. Ans is no,
because we go back to concept of inherent jurisdiction).

On the other hand – The Siskina: Whether facts came within Order 11 for service out of jurisdiction? To
do so, court would have to exercise inherent jurisdiction. Lord Denning had to decide whether to do
justice by applying inherent jurisdiction. He said that this course is not open as the law should be left to
be amended by the Rules Committee. The judges have an inherent jurisdiction to lay down the practice
and procedure. HOL however disagreed with Lord Denning. HL said that the jurisdiction of the Rules
Committee is statutory. Rules Committee is far more suitable than court of three judges, no matter how
eminent, deciding on an individual case. Judges cannot usury power of Committee.
Harrison v Tew- Court has no inherent jurisdiction if statute sets out the parameters. In this case, court
had no inherent jurisdiction to tax solicitors’ bill.

Wee Soon Kim v Law Society [2001] – As long as court acts judiciously or in just and equitable manner, it
should not limit exercise of inherent jurisdiction. However, need of the party concerned must be
considered.

Samsung v Chinese Chamber Realty [2003] – High court held that it will not exercise its inherent
jurisdiction to override a rule of court. But this is in the context of a particular application

Also UMCI v Tokio Marine

Order 1 rule 2(4)

- Rules of court do not apply to bankruptcy, winding up, criminal proceedings, matrimonial
proceedings, and judicial management.
- As a matter of practice, whenever there is a lacuna, courts fall back on orders to do justice. An
example of exercising inherent jurisdiction.

Order 2 rule 1: effect of non-compliance

- If too rig adherence, may unjustly deprive party of rights

- Order 2 rule 1: renders proceedings irregular, not null and void. Impt for time-bar. Court then
has discretion to make appropriate order, which may include penalizing the offending party with
an order for costs

Golden Ocean v Martin – Pf failed to serve Writ but merely acknowledgement of service. Held: Df aware
of issuance of writ. Mere irregularity. Dissent: too serious or fundamental, no prejudice is not conclusive
test. Comment: innocent mistake- several defendants who instructed same solicitor, no prejudice in this
case.

Bondy v Lloyds Bank – Facts: Fail to attach acknowledgement of service. Held: Mere irregularity, no
prejudice.

Leal v Dunlop – Facts: Failure to apply for leave to issue out of jurisdiction and leave. H: Ct will not allow
Pf to enter the back door if he would not have ordinarily been allowed to enter the front door. However,
failure to obtain leave to issue and serve Writ overseas is serious. Would require serious circumstances
to validate such leave retroactively. (This can happen in countries like Malaysia, some firms tempted to
just serve the writ)

(insert other cases)

Fielding v Rugby – Estate is the one suing, the same party.

Dubai Bank v Galadari – Legal capacity to sue could not be cured by Order 2 rule 1. Distinguishable from
Fielding. Legal identity is different.

Waiver/Fresh step

- Order 2 rule 2(1)

- Application to set aside irregularity should be done within reasonable time and before he has
taken any fresh step after becoming aware of the irregularity.

Pontin v Wood- Four months after service of writ, Df applied to dismiss action for failure to comply with
rule. Court held that there was unreasonable delay. Court reminded Df that Pf had been indulgent in
Df’s delay in entering appearance.

Rein v Stein- Facts: Objection on ground of jurisdiction. Held: Waiver. Defendant had applied for an
order for documents and for extension of time to file Defence. He had taken fresh step inaction. (What
we do in practice, you ask for extension of timeline. But if there is an irregularity, should file the
application, or file and state that that is without prejudice to apply to strike out for irregularity).

Re Orr Ewing

Forms in Appendix of Rules: Order 1 rule 7: forms may be modified to suit the cases.

Statutes/case law

- Statutes are helpful because they also contain procedure (eg. Evidence Act, Limitation Act)
- Case law – many cases on procedure

Practice Directions

- Contains details not found in Rules

- Supreme Court and Sub Courts have PDS
- Order 92 rule 2A – PD must be complied with
- Order 92 rule 3 – Failure to comply with PD may lead to rejection of document
- Order 59 rule 7 – may also lead to solicitor paying costs

Practice Circulars (difference as practice circulars deal with mundane issues)

- Law Society PD and Rulings 1989 still exist to the extent that they are not inconsistent with the
PCR.
- Rule 55 – solicitor shall avoid unnecessary adjournments

Registrar’s Circulars (even more mundane)

- More informative