CIVIL PROCEDURE SUMMARY 2011

Transcription

1 CIVIL PROCEDURE SUMMARY 2011 LAWSKOOL SINGAPORE

2 Contents Chapter 1: Obtaining jurisdiction and service of Writ...6 A. Jurisdiction to Try Proceedings...6 B. Modes of Commencement...6 Writ...6 Originating Summons...7 C. Writs of Summons - Form, Endorsements, Issue, Duration and Renewal...7 Overview:...7 Requirements of a Writ:...7 Issuance of a writ:...8 Validity of a writ of summons...8 Renewal of a writ of summons:...8 Grounds for renewal...9 D. Service of writ of summons...10 Personal service:...11 Substituted service...12 Ordinary service...13 Time for service...14 E. Service out of jurisdiction...14 Procedures...15 F. Appearance (Only for writ; No appearance required for OS- 012r9)...16 Why does a defendant enter appearance?...16 Who may enter an appearance:...17 Time frames to note in the entry of appearance:...17 Late appearance: 12 r Procedures...18 Chapter 2: Third Party proceedings...20 Third Party Proceedings: O TP Directions:...22 Chapter 3: Pleadings...23 Statement of claim...23 Defence/ Defence and counterclaim...23 Reply...23

3 Contents of Pleadings...24 Answering pleadings...25 Further & Better Particulars of Pleadings...25 Amendment of pleadings...25 With leave...26 Amendments after limitation period has expired...26 Summons for Directions...27 Chapter 4:Discovery & Inspection...27 General discovery...27 Specific discovery...28 Discovery must be necessary...28 Consequences of not complying with order...28 Inadvertent disclosure...28 Restrictions on use of documents disclosed pursuant to discovery process...28 Chapter 5:Security for Costs...30 Grounds of application...30 Exercise of court s discretion...31 Chapter 6:Interlocutory injunctions...33 Interlocutory injunctions of prohibitory nature (stop doing sth or refrain from sth)...33 Interlocutory injunctions of mandatory nature (doing of positive act)...34 Mareva injunctions...35 Domestic...35 Worldwide...36 Search Order...36 Chapter 7:Judgments...37 Judgments In Default O O O 13 - Default of Appearance in 6 scenarios...37 O 19 - Default ofpleadings...37 O 19 - Default in Serving Defence in 6 scenarios...38 Setting aside Default Judgments...38 Principles re setting aside IRREGULAR default judgments...39 Principles re setting aside a REGULAR default judgments:...40

4 O 14 - Summary Judgments...41 Chapter 8: Striking Out Of Pleadings And Actions...44 O 18 r 19 - Striking Out Of Pleadings And Actions...44 Possible orders...45 Procedure to follow...45 How likely will court strike out?...46 Chapter 9: Discontinuance and Withdrawal...46 O 21 - Discontinuance and Withdrawal...46 Discontinuance of an action...47 (b) With leave...47 (c) Automatic discontinuance if inaction for more than 1 year...47 Chapter 10 :Offer to Settle...47 O 22A - Offer to Settle...47 Procedure to follow...48 Confidentiality of offer...48 Costs...48 Variation of cost orders...49 Where there are multiple Dfs...49 Chapter 11 : Appeal...50 Appeal Process...50 (A) Appeal from High Court decision...50 (B) Appeal from Subordinate Court decisions...50 Appeals Other General Issues...51 New point on appeal...51 Adduction of new evidence on appeal...51 Chapter 12 : Principles of Costs...52 Scope of Costs...52 P& P costs...52 Bases of taxation...52 PARTY-AND-PARTY COSTS...52 Basis of Taxation for P&P Costs...53 Scaled Costs/Fixed Costs - O 59 r 31(2) read with App 2 to O General rule: Costs follow the event...53 Departure from cost follows event rule...54

5 Common orders for P&P costs. Definitions in O 59 r 1(3)...54 Types of orders for P&P costs Two types...55

6 Chapter 1: Obtaining jurisdiction and service of Writ A. Jurisdiction to Try Proceedings Jurisdiction of the Singapore courts to try a proceeding is established by (i) service of the originating process on the defendant regardless whether he is in Singapore or otherwise [see s 16 of the SCJA and s 19 of SCA] or (ii) submission by the defendant to the jurisdiction of the Singapore courts: Civil jurisdiction general 16. (1) The High Court shall have jurisdiction to hear and try any action in personam where (a) the defendant is served with a writ or other originating process (i) in Singapore in the manner prescribed by Rules of Court; or (ii) outside Singapore in the circumstances authorised by and in the manner prescribed by Rules of Court; or (b) the defendant submits to the jurisdiction of the High Court. (2) Without prejudice to the generality of subsection (1), the High Court shall have such jurisdiction as is vested in it by any other written law. B. Modes of Commencement There are now only two modes of originating processes: (1) Writ of Summons; --- O 5 r 1 (2) Originating Summons O 5 r 1. Mode of beginning civil proceedings (O. 5, r. 1) 1. Except in the case of proceedings, which by these Rules or by or under any written law are required to be begun by any specified mode of commencement, proceedings may be begun either by writ or by originating summons as the plaintiff considers appropriate. Proceedings which must be begun by writ (O. 5, r. 2) 2. Proceedings in which a substantial dispute of fact is likely to arise shall be begun by writ. Proceedings which must be begun by originating summons (O. 5, r. 3) 3. Proceedings by which an application is to be made to the Court or a Judge thereof under any written law must be begun by originating summons. Writ Most civil actions in contract and tort are commenced by writ as they are likely to involve dispute of facts.

7 O 5 r 2 no longer provides for specific categories of action that must be commenced by writ - the principal guiding criterion now being whether the action in question involves substantial dispute of facts. Originating Summons In contrast, the Originating Summons procedure is suitable where there is no substantial dispute of fact. In comparison with a writ, the Originating Summons procedure is cheaper, faster and simpler as it does not involve pleadings and many interlocutory proceedings. Actions are commenced by way of Originating Summons where the dispute is concerned with matters of law, or the interpretation of a written instrument or statutory provision; or if otherwise required under any written law or the Rules of Court O 5 r 4(2). An action commenced by Originating Summons may be converted into a writ action should it later emerge that there is substantial dispute of fact. "summons" means every summons in a pending cause or matter: Mode for an interlocutory application in chamber originating summons" means every summons for the commencement of proceedings other than a writ of summons; It is an originating procedure C. Writs of Summons - Form, Endorsements, Issue, Duration and Renewal Overview: To commence a writ action, the plaintiff will have to file the writ in the Supreme Court Registry, to be signed and sealed by the Registrar. Once the writ is signed and sealed, it is deemed issued. What is the period of validity of a writ? Requirements of a Writ: (1) O 6, r 1 of the ROC : every writ must be in Form 2. (2) O 6, r 2(1) - before a writ is issued, it must be endorsed with the following: (i) (ii) (iii) statement of claim or concise nature of claim - r 2(1)(a). What is the difference between a statement of claim and a general endorsement? Why would a party choose to include a general endorsement in the writ as opposed to a statement of claim and vice versa? for debt or liquidated demand, endorsement of cost/payment/stay - r 2(1)(b). where the plaintiff or defendant sues or is sued in a representative capacity, with a statement of such capacity - r 2(1)(c) and (d).

8 (iv) (v) where the plaintiff sues by solicitor, with the plaintiff s address, solicitor s name or firm and business address of solicitor within jurisdiction - r 2(1)(e). where the plaintiff sues in person, address of residence within jurisdiction, or if none, the address within jurisdiction for service of documents; occupation - r 2(1)(f). (vi) number of days within which appearance is to be entered - r 2(1)(g) and O 12 r 4. Issuance of a writ: (1) O 6, r 3(1) - Plaintiff seeking issuance of writ must file with the Registrar an original and one copy of the writ, and one additional copy for each defendant to be served. (2) O 6, r 3(2) - Registrar will assign a serial number to the writ and sign, and date the original and all copies of the writ, and seal all copies of the writ. (3) O 6, r 3(3) - The writ is deemed issued and the action has commenced on the date the Registrar has done the above. Under what circumstances might the date of issuance of a writ be critical? Validity of a writ of summons O 6, r 4: Writ is valid for the purposes of service, for 6 months beginning with date of its issue [see r 1(b)]; Writ is valid for 12 months if necessary to obtain leave to serve out of jurisdiction [see r 1(a)]. Beginning with date of its issue: Validity of the writ, for the appropriate time, includes the actual day on which it is issued [Trow v Ind Coope Ltd [1967] 2 All ER 900] Renewal of a writ of summons: If a writ has not been served during the period of its validity and the plaintiff wishes to keep his action alive, the writ must be renewed. O 6, r 4(2) - the validity of the writ may be extended by the court for up to 6 months whether such application is made before or after the writ has expired. O 6, r 4(2A) - the validity of the writ may be extended by the court for up to 12 months whether such application is made before or after the writ has expired, if it is shown that, despite making reasonable efforts, it may not be possible to serve the writ within 6 months.

9 Party seeking to rely on O6 r 4(2A) must show that his case is out of the ordinary; that even if reasonable steps to serve the writ are taken, it may not be possible to serve the writ during the 6 months. The rule is not strict to require proof of that service would actually be impossible. Affidavit in support must reveal such a difficulty including the difficulty in serving. Courts retain discretion in renewal and it would not be given unless it can be shown that such renewal is justified [Baly v Barret [1988] NI 368] Application for renewal is made ex parte by summons to the Registrar, and must be supported by an affidavit. As with all ex-parte applications, full and frank disclosure of material facts is required in the affidavit. If there is non-disclosure, the renewal may be set aside. Grounds for renewal Based on Kleinwort Benson Ltd v Barbrak Ltd [1987] 2 All ER 289, cases for renewal can be categorized as follows: (a) Application for extension when writ still valid and limitation period has not expired. (b) Application for extension when writ still valid but limitation period has expired. (c) Application for extension when writ ceased to be valid and limitation period has expired. Principles applicable: [Kleinwort Benson Ltd and Lim Hong Kan v. Mohd Sainudin bin Ahmad (1992) 1 SLR 353] A. The power to extend the validity of a writ should be exercised for a good reason (the good reasons test ). Whether there is a good reason that exists in any particular case depends on all the circumstances of the case. It is not possible to define or circumscribe the scope of that expression (per Lord Brandon in Kleinwort Benson). When the courts found a good reason When the courts did not find a good reason

10 (1) where the writ has not been served to save costs, especially where there was no delay to the defendants (see Kleinwort Benson and Lim Hong Kan). (2) where the defendant has requested for the service of the writ be withheld (see Kun Kay Hong v. Tan Teo Huat [ ] SLR 232). (3) where the writ has not been served to save costs, especially where there was no delay to the defendants (see Kleinwort Benson and Lim Hong Kan) (4) express or implied agreement between parties to defer service; delay in service or extension of writ induced or contributed by defendant s conduct; difficulty in effecting service because defendant evading service (The Lircay per Amarjeet Singh JC) (5) no opportunity to serve writ for eg. vessel has not called into port (very commonly cited reason. (1) delay arose because the plaintiff was awaiting the outcome of other proceedings that might have an impact on the instant proceedings [see Battersby & Ors v Anglo American Oil Co; and Dagnell & Anor v JL Freedman & Co. (a firm)]. (2) service was not effected because parties were negotiating and there was no clear agreement by the defendant to the delay in the service of the writ (see Heaven v Road [1965] 2 QB 355 and Easy v Universal Anchorage Co Ltd [1974] 2 All ER (3) a plaintiff has insufficient funds to proceed with the litigation (see Baly & anor v Barrett) (4) negligence of the plaintiff s solicitors (see New Ching Kee v Lim Ser Hock [ ] SLR 572) (5) where the plaintiffs had failed to take reasonable steps to effect service of the writ (see The Big Beacher [ ] SLR 131). B. Balance of hardship is a relevant matter to be taken into account. C. The discretion of the judge and his exercise of it should not be interfered with by an appellate court except on special grounds. D. Service of writ of summons A writ must be served personally on each defendant. Personal service is effected by leaving a copy of the document on the defendant if he is an individual and at the registered address of the defendant if it is a company. There are exceptions, for example, where the defendant s solicitor has authority to accept service on behalf of the defendant or where an order for substituted service is made. (a) (b) (c) O 62, r 1(1) - the general rule is that documents need not be served personally unless the Rules require. O 62, r 1(2) - the court has power to dispense with the requirement of personal service. O 10, rr 1 & 5 - all originating processes must be served personally. There are exceptions to the requirement of personal service for originating processes: (1) O 10, r 1(2) - defendant s solicitors endorse their acceptance of the service of the writ.

11 (2) O 10, r 1(3) - defendant enters an appearance even though there has been no due service. (3) O 10, r 3(1) - personal service waived by a contractual term as between parties. Does it then follow that service in accordance with the terms of a contract would in every case be valid (are there any instances in which service in accordance with the terms of a contract may nevertheless require leave of court)? Where the contract consists of how service ought to be affected (ie. To be served on someone else on behalf of the defendant), it would mean that the writ has been deemed to be duly served Eg. Reversionary Interest Society v Locking [1928]: service on the plaintiff s secretary or actuary pursuant to an agreement Tharsis Sulphur v Societe des Metaux (1889): Contract provided that in the event of a legal dispute, service of process was to be effected on a London firm. However, when a writ is served out of jurisdiction in accordance with a contract term (under O 11 r 1(d)(iv)) the court shall have jurisdiction to hear and determine any action in respect of the contract, the writ will not be deemed to have been duly served unless leave to serve the writ out of jurisdiction has been granted. Refer to Pacific Assets Management v Chen Lip Keong, where Belinda Ang J opined that contractual or consensual service of process on a person within and out of jurisdicion is generally not prohibited. (4) O 62, r 5 - where there is an application for substituted service. What is substituted service? Under what circumstances would substituted service be resorted to? (5) O 62, r 4 - service on a body corporate by serving on the chairman, president, treasurer, secretary or other similar officer. (6) s 387 of the Companies Act - service on a company by leaving a copy of the writ at the registered address of the company or sending it by registered post. Personal service: O 62, r 2(1) - personal service must be effected by: (a) (b) (c) (d) a process server of the Supreme Court; or by a solicitor; or by a solicitor s clerk whose name and particulars have been notified to the Registrar; or by a named person specially allowed by a Registrar; or

12 (e) via EFS under O 63A, r.12(1)(b). For a better understanding of O 63A, see also rules 8 to 11. O 62, r 3 - personal service is effected by leaving a sealed copy of an originating process with the person by a physical act of delivery to him personally. Personal service on a company is effected by leaving the document with the registered office - see s 387 of the Companies Act. (a) (b) (c) (d) Heath v White [1844] 2 D & L 40 - The defendant was at an upper window of his house and the process server who was outside, called out to him, telling him that he had a writ against him, and held up a copy for him to see, and then threw it down in the presence of defendant s wife, it was held that it was insufficient. Frith v Donegal [1834] 2 DPC Service on the wife of the defendant is not a good service. Christmas v Eicke [1848] 6 D & L Putting a copy of the writ through the crevice of the door of the room in which the defendant is and telling him that it is a copy of the writ is not sufficient. Note 0 62 r 3(2) personal service may be effected in such other manner as may be agreed by the party serving and the party to be served: see: *Kenneth Allison v AE Limehouse [1991] 4 All ER 500 (Pinsler at 114) Plaintiffs issued a writ against a firm or chartered accountants claiming damages for negligence in carrying out an audit. Process server went to the firm s premises and informed the personal assistant to the senior partner that he wished to serve a writ. Personal assistant informed one of the partners of the situation and he authorized the assistant to accept the service of the writ. Defendants, eventually, tried to set aside the service as the writ had not been served personally on the partner. HOL held that such ad-hoc agreement are legally effective and since the partner had knowingly allowed or authorized the secretary to receive the writ, he cannot argue that the service was not valid. (Despite the fact that such an agreement was not provided by the rules). Lord Goff (dissenting) opined that a form of service other than that prescribed by the rules could not constitute good and effective service because the rules did not contemplate other modes of service. However, in this case, the defendants were estopped by convention from alleging that the service was invalid. To order the complete version of the lawskool Civil Procedure Summary please visit