Highlights of Developments in Civil Procedure District Judge Tan Boon Heng Executive Director, Singapore Judicial College

Transcription

1 Highlights of Developments in Civil Procedure 2015 District Judge Tan Boon Heng Executive Director, Singapore Judicial College

2 Contents in 30 mins (BTW, increased by 10 mins from 20 mins in 2014)! Limitation Period Waiver of Common Interest Privilege Service Out of Jurisdiction Mareva Injunctions & Interloc Proprietary Injunctions Pleadings Discovery Summary Judgment When O 14 r 12 is NOT suitable Factors for granting stay of execution when summary judgment granted Insufficient Security Deposit for Appeal Extending Time to Appeal Offer to Settle (OTS) Costs

3 Limitation Period Yan Jun v Attorney-General [2015] 1 SLR 752 Whether three-year limitation period applied to entire suit or merely limited to the cause of action where damages in respect of personal injuries were claimed. Question: What do you think?

4 Limitation Period Yan Jun v Attorney-General [2015] 1 SLR 752 Held: It was not the case that because the Appellant s had claimed damages for personal injuries in relation to some of his pleaded causes of action, a limitation period of three years applied to his entire suit. Instead, the three-year limitation period under s 24A(2) of the Act only applied to the cause of action under which the Appellant had claimed damages for personal injury and not more generally to the entire suit: at [82] and [83].

5 Waiver of Common Interest Privilege Motorola Solutions Credit Co LLC v Kemal Uzan & Ors [2015] SGHC 228 [2] It was not disputed that the s were privileged communications and that the Applicants were entitled to assert legal privilege unless they could be said to have waived privilege. The plaintiff s case was that legal privilege had been waived. [23]. In my opinion, it would be UNFAIR to allow waiver by one recipient in a common interest group to constitute waiver by the other innocent common interest holders who had not participated in any way in the waiver.

6 Service Out of Jurisdiction SRS Commerce Ltd and another v Yuji Imabeppu and others [2015] 1 SLR 1 The Ps filed a writ against the Ds for misappropriation of money. Ds were resident in Japan. Ps then filed an application for a freezing order to prevent Ds from accessing or moving money in various bank a/cs in SG, and to allow Ps to serve the writ on the D1 to 4 in Japan. Leave under O11 granted. The writ, but not SOC and 7 affidavits accompanying the writ, was translated into Japanese and sent to by registered post to the D1, D2 & D4. The Ds filed a summons to set aside the service. The AR was of the view that the service was improper, and further, that the Ds were prejudiced and had no means of knowing that their assets in SG had been frozen by a freezing order. Ps appealed.

7 SRS Commerce Ltd and another v Yuji Imabeppu and others [2015] 1 SLR 1 Held: The court ought NOT to set aside the service of process because the defendants were not at all prejudiced by the irregularity. Where a defendant was apprised of the proceedings, it should be regarded as an important factor against an application to set aside service of process. The rule was not designed as a technical obstacle but as a rule to protect foreign parties from orders made against them without their knowledge. They had to be aware of the process instituted against them to decide whether they should resist: at [9].

8 On Mareva Injunctions and Interlocutory Proprietary Injunctions Bouvier, Yves Charles Edgar & Anor v Accent Delight International Ltd & Anor & Anor appeal [2015] SGCA 45 A Mareva Injunction is granted in support of a claim for personal relief. It is ambulatory and does NOT latch on to any specific asset of the defendant. What it does is to prevent the defendant from dissipating his assets beyond a certain value to defeat a possible judgment that may in due course be rendered against him. The Mareva injunction is a specialised form of injunction to which the principles that generally govern interlocutory injunctions, as laid down in American Cyanamid Co v Ethicon Ltd [1975] AC 396 ( American Cyanamid ), have no application: Polly Peck v Nadir at 242.

9 On Mareva Injunctions and Interlocutory Proprietary Injunctions Bouvier, Yves Charles Edgar & Anor v Accent Delight International Ltd & Anor & Anor appeal [2015] SGCA 45 [144] An interlocutory proprietary injunction, on the other hand, is granted in support of a claim for proprietary relief. It is a prohibitory injunction that fastens on the SPECIFIC asset in which the plaintiff asserts a proprietary interest. It prevents the defendant, pending the resolution of the dispute, from dealing with that asset and its traceable proceeds. An interlocutory proprietary injunction is governed by the American Cyanamid principles: Polly Peck v Nadir at 248 per Scott LJ and at 250 per Lord Donaldson.

10 Pleadings Chandra Winata Lie v Citibank NA [2015] 1 SLR 875 Whether plaintiff s inability to remember excused him from asserting positively that those transactions were unauthorised Plaintiff s plea was based on inference drawn from surrounding circumstances Whether defect could be cured by amending statement of claim to plead unauthorised trading claim as primary claim and to insert positive assertion of unauthorised trading

11 Chandra Winata Lie v Citibank NA [2015] 1 SLR 875 The plaintiff himself affirmed that those circumstances operated on his mind only to raise a suspicion. He had no rational basis on which to invite the court to arrive at a conclusion of unauthorised trading on those same circumstances. Even if at trial the plaintiff proved the pleaded circumstances, he would be no closer to discharging his burden of proving unauthorised trading: at [39] to [41].

12 Discovery Foo Jong Long Dennis v Ang Yee Lim and another [2015] 2 SLR 578 Party attempting to use document obtained through discovery in prior suit Whether party still subject to undertaking not to use document for any collateral or ulterior purpose if document was used in open court in prior suit

13 Foo Jong Long Dennis v Ang Yee Lim and another [2015] 2 SLR 578 The Riddick principle ceased to apply once a document had been used in open court. The principle of open justice, which provided that if justice was to be properly administered, it was essential that the decisions of the courts and the decision-making process be open to public scrutiny, featured in the balancing exercise under the rubric of administration of justice: at [30], [59] and [60]. Even though the Riddick principle ceased once the document had been used in open court, a party was not prevented from applying to the court for the undertaking to continue: at [58]. There was sufficient clarity in the view that a document was used in open court if it was read to or by the court, or referred to in the course of a hearing: at [63]. The 14 April Minutes was used in open court and the court had not made any order for the undertaking to continue. Therefore, the plaintiff could use the document in the present suit: at [68].

14 Discovery I-Admin (S pore) Pte Ltd v Hong Ying Ting [2015] SGHC 153 [9] The plaintiff now submits that it be allowed to show the extracted information to the police. It also submits that the extracted information will show that a previous police report lodged by the defendants is false. [10] In the present case, the gravamen of the plaintiff s civil claim is that the defendant had wrongfully taken confidential information from it by downloading the information from the plaintiff s computers and copying them onto the defendants computers... [11] the exact information found in the defendants computers that is subject to a judicial injunction

15 Discovery I-Admin (S pore) Pte Ltd v Hong Ying Ting [2015] SGHC 153 Held: [11] The plaintiff is entitled to lodge a complaint to the police. But it is NOT necessary to show the police the exact information found in the defendants computers that is subject to a judicial injunction. Giving the disclosed materials to the police for the purposes of lodging a police report is clearly a purpose OTHER THAN the pursuit of the action in which discovery of the confidential information has been given.

16 Summary Judgment Koh Lin Yee v Terrestrial Pte Ltd & anor appeal - [2015] 2 SLR 497 Whether without set-off clause excluded equitable set-off The 1 st argument was that there was a right of equitable set-off that was not excluded by the phrase without set-off. The 2 nd argument was that the defence of equitable set-off operated as a rule of equity and prevailed over any rule of the common law. The 3 rd argument was that the clause was an unfair contract term within the meaning of the UCTA. The 4 th argument was that the respondent had taken advantage of its own wrong and should not be allowed to do so.

17 Koh Lin Yee v Terrestrial Pte Ltd & anor appeal [2015] 2 SLR 497 Held: The defence of equitable set-off could be contractually excluded and this was a matter of interpretation. This was based on commercial logic and common sense as well as on giving effect to the agreement that the parties have signed. Here, the clause in question excluded all forms of set-off: at [15] to [17].

18 Summary Judgment (when O 14 r 12 is NOT suitable) TMT Asia Ltd v BHP Billiton Marketing AG (Singapore Branch) & anor [2015] 2 SLR 540 The questions raised by the Ds were unsuitable for O 14 r 12. Held: First, the questions raised matters of considerable public importance given the range of third party interests that were at stake. Second, there were a no. of important factual findings that needed to be made before the questions could be answered. One of the crucial issues was whether the material terms (other than price) of the Forward Freight Agreements that were traded Over- The-Counter were predetermined by the rules or practices of the Multilateral Trading Facilities (MTFs) on which they were traded. There was insufficient evidence as to the trading practice of MTFs in general and Baltex in particular. The lack of expert evidence on industry practice left the court ill-equipped to answer the questions raised in RA 55: at [36] to [38].

19 Summary Judgment (factors for granting stay of execution when summary judgment granted) Australian and New Zealand Banking Group Ltd v Joseph Shihara Rukshan [2015] 1 SLR 625 Whether stay of execution of summary judgment in favour of plaintiff bank should be ordered in light of defendant s counterclaim Whether defendant s counterclaim was closely connected to plaintiff bank s claim in debt Whether defendant s counterclaim was ostensibly fanciful Held: Given the (i) lack of connection with the bank s claims and; (ii) the unmeritorious nature of the complaints, no stay of execution of the summary judgment was ordered: at [84] to [87].

20 Insufficient Security Deposit for Appeal Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd [2015] 1 SLR 797 The Appellant applied for leave to enforce the Disputed Adjudication Determination under s 27 SCJA as a judgment. Appellant did not succeed before the High Court Judge. Appellant appealed to the CA. Working under a mistaken assumption that it was an interlocutory order to be appealed against, the appellant only furnished security in the sum of $15,000 (instead of $20,000 to appeal against a final order). Respondent applied to strike out the Notice of Appeal

21 Insufficient Security Deposit for Appeal Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd [2015] 1 SLR 797 Held: Pursuant to O 57 r 3(3) of the Rules of Court read with para 86(2) of the Practice Directions, the Appellant was required to provide security in the sum of $20,000 for the Respondent s costs of the appeal. Since the Appellant only provided $15,000 as security for costs (for interloc), there was a shortfall of $5,000.. in these circumstances is an irregularity, and that we can make such order generally as we think fit to address this: see O 2 r 1. The Appellant was to furnish additional security in the sum of $5,000: at [97].

22 Extending Time to Appeal Lioncity Construction Co Pte Ltd v JFC Builders Pte Ltd [2015] 3 SLR 141 Whether district judge has power to grant extension of time to file notice of appeal against district judge s decision where application for extension of time was made after expiry of time limited for filing notice of appeal Order 55C r 1(4)

23 Lioncity Construction Co Pte Ltd v JFC Builders Pte Ltd [2015] 3 SLR 141 Held: Given that both O 55C r 1(4) and O 55D r 14 dealt with appeals to the High Court from the State Courts, it made sense to treat them on the same footing, notwithstanding the differences in the wording of the provisions. More broadly, it would be beneficial and neater to adopt a consistent approach towards all applications for extension of time to appeal. Just as it was the court with jurisdiction to hear the appeal that also heard an application for extension of time to appeal where the application was made after expiry of the time limited for appealing in the other types of appeals mentioned above, so it should be the High Court judge in chambers who should hear such an application: at [39] and [41].

24 Offer to Settle (OTS) Ram Das V N P v SIA Engineering Co Ltd [2015] 3 SLR 267 Employee sued employer (SIA) for damages for personal injuries sustained at work Bifurcated Trial OTS by employer to settle liability at 50% Employer found not liable at first instance Employer found 50% liable on appeal Costs consequences under O 22A invoked as outcome of judgment is not better than OTS - Whether OTS applied to work done for appeal Whether court should exercise its discretion NOT to order indemnity costs against employee

25 Ram Das V N P v SIA Engineering Co Ltd [2015] 3 SLR 267 Held: Ram Das (employee) did not obtain a more favourable judgment than the terms of SIA s (employer) offer to settle either at first instance or on appeal. The preconditions under O 22A r 9(3) were satisfied, and O 22A r 9(3) thus applied straightforwardly, entitling SIA to costs on the indemnity basis from the date its offer was served on Ram Das, which would include the work done for the appeal to the High Court on the issue of liability: at [63], [64], [69], [70] and [74]. The trial judge was correct in finding that SIA s offer was a serious, genuine and reasonable offer and that there was no reason which justified the court exercising its discretion to depart from the prima facie position under O 22A r 9(3): at [80].

26 Ong & Ong Pte Ltd v Fairview Developments Pte Ltd [2015] 2 SLR 470 OTS encompassing plaintiff s claim and defendant s counterclaim Defendant accepting offer to settle after counterclaim was determined Whether offer to settle remained open for acceptance Held: In the present case, it was clear that the OTS was a global offer made in respect of both the claims and the counterclaim. The fact that one of the elements of the package had been disposed of could hardly mean that the entire package had been disposed of. This meant that there were still outstanding matters not disposed of which were within the scope of the OTS: at [59].

27 Costs Ang Pek San Lawrence v Singapore Medical Council [2015] 2 SLR 1179 Applicable principles concerning awarding of costs against the SMC Held: the MRA was silent as to whether the Disciplinary Committee might order costs against the respondent if it acquitted the medical practitioner: at [18] to [21]. It could not be Parliament s intention for the SMC to be immune from adverse costs orders if other agencies exercising similar public function, such as the Public Prosecutor, were not immune from adverse costs orders: at [23] to [25]. This was especially pertinent in cases where, the Minister, without giving any reasons, allowed charges to be brought against a medical practitioner after the Complaints Committee s dismissal of the underlying complaint: at [27] to [29].

28 Costs Ng Chong Ping v Ng Chih-Ming Daren & Ors [2015] 3 SLR 292 Plaintiff applying for leave to amend writ + pleadings so as to join third party as third defendant Whether plaintiff should pay third party costs of application and other related costs

29 Ng Chong Ping v Ng Chih-Ming Daren & Ors [2015] 3 SLR 292 Held: When a plaintiff applied to join a third or fourth party as a defendant, and the application was allowed, the order for costs should ordinarily be costs in the cause since the court had found it reasonable to allow the joinder: at [11]. Costs could be ordered against a party specifically at interlocutory proceedings in some circumstances, for example, where the delay was deliberate, or where the opposing parties would have incurred costs unnecessarily: at [11]. In the present case, the plaintiff had insufficient grounds or knowledge as to the involvement of the third and fourth parties to join them in the action initially.

30 Thank You