Memoranda on legal and business issues and concerns for multiple industry and business communities Overview Of Court Procedure 1 Rajah & Tann 4 Battery Road #26-01 Bank of China Building Singapore 049908 Tel: 65 6535 3600 Fax: 65 6538 8598 E-mail: eoasis@sg.rajahandtann.com Website: www.rajahandtann.com
Overview Of Court Procedure Introduction Court procedure is the mechanism by which cases are brought before the courts, specifically, a judge or registrar of the court, for a decision. It covers the manner in which a case is pursued in court, and eventually, enforced by the court. As a preliminary before discussing court procedure, it is necessary to highlight the distinction between criminal and civil cases. Generally speaking, criminal cases are brought by the government. They are punitive in nature, and a successful prosecution will result in a penalty, which can range from a fine to an imprisonment term. However, the victim wronged by the crime does not receive any compensation. The mechanism by which criminal proceedings are conducted, that is, the procedure to be adopted for criminal proceedings, is laid out in the Criminal Procedure Code. This procedure is different from the procedure to be followed in civil proceedings. Civil proceedings are, generally, brought by individuals. They are compensatory in nature. A person who has suffered loss at the hands of another individual, brings a claim seeking damages or compensation for the injury that he has suffered. A successful civil claim will, generally, result in an award of damages, that is, a judgment by the court ordering that the defendant pay the claimant a certain sum. This sum represents a monetary compensation for the loss or damage suffered by the claimant as a result of the defendant s wrongdoing. For the most part, civil proceedings are based on contract or tort (a legal term for a civil wrong), although there are other areas of law where civil proceedings can be brought. The mechanism by which civil proceedings are conducted, that is, the procedure to be adopted for civil proceedings, is laid out in the Rules of Court 1998 ( Rules of Court ). This write-up will focus on the procedure for civil, and not criminal, proceedings. Overview Of Court Structure And Monetary Jurisdiction The courts in Singapore are divided broadly into the Supreme Court and the Subordinate Courts. The Supreme Court consists of the High Court and the Court of Appeal, while the Subordinate Courts comprise the District Court, the Magistrates Courts, and the Small Claims Tribunal. Note that there are also the Family Court and the Syariah Court which deal with family matters, and with matters of muslim law respectively. These are outside the scope of this write-up. The different courts have differing jurisdictions, or different rights to hear and adjudicate on different claims. Very generally, for the purposes of this write-up, it will be sufficient to differentiate the courts jurisdiction by the monetary limit of the civil claims that can be brought before them: The Small Claims Tribunal was set up the hear consumer disputes, and the monetary limit of the claims that may be brought before it is S$10,000. Note that the procedure adopted by the Tribunal is quick and simple, and intended to facilitate the quick adjudication of the matters brought before it. The description of the procedure for civil claims set out in this write-up does not apply to hearings before the Small Claims Tribunal. The monetary limit of claims before the Magistrates Courts is S$60,000. Page 1
The monetary limit of claims before the District Court is S$250,000. There is no monetary limit on claims brought before the High Court. Accordingly, claims below S$250,000 and S$60,000 may, theoretically, be brought in the High Court. However, the general practice is not to do so, as the costs of bringing a claim in the High Court is generally higher than in the Subordinate Courts. The Court of Appeal hears appeals from decisions of the High Court. Generally speaking, it does not hear appeals from decisions of the Subordinate Courts, and appeals from such decisions are heard by the High Court. Starting A Civil Claim Filing And Service Of A Writ And Statement Of Claim A civil claim is commenced by the claimant, or plaintiff, filing a writ of summons in court. The writ of summons sets out the scope of the plaintiff s claim, specifying in particular, the grounds of his claim and what he is seeking as compensation. For example, in a claim arising out of a car accident, the writ of summons will specify that the claim is being brought against a named defendant for the damage caused to the plaintiff s car, and the amount that the plaintiff is seeking as compensation for the damage caused to the car. The writ of summons must be accompanied by a document called a statement of claim. The statement of claim sets out the material facts relating to the plaintiff s claim. It is important that all material facts comprising the claim be set out in the statement of claim; if these are omitted, the plaintiff s claim may be struck out by the courts. The writ and the statement of claim must be served on the defendant. This essentially means that the defendant must be given notice of the claim by the plaintiff providing him with a copy of the writ and statement of claim. Note that this is a separate process from the filing of the writ and statement of claim with the court. Generally speaking, a writ and statement of claim must be served personally on the defendant. For individuals, this means that the writ and statement of claim must be given to the defendant personally. For companies, the writ and statement of claim must be left or sent by registered post at the registered office of the company. Where it is not possible to effect service in this manner, for example, in the case of individuals, if the defendant cannot be found, alternative modes of service may be used with the approval of the court. Usually, this is either by posting a copy of the writ on the last known address of the defendant, or by advertising the writ in the papers. Entry Of Appearance And Service Of Defence And Counterclaim Once the writ of summons has been served on the defendant, he has to enter an appearance. The purpose of this is to officially notify the plaintiff that he intends to defend or challenge the plaintiff s claim. Entry of appearance is done by filing a document called a Memorandum of Appearance with the court and serving it on the plaintiff, usually by sending a copy of it to the plaintiff s lawyers. For defendants situated in Singapore, this must be done within eight days from the date the defendant was served with the writ of summons (including the date of service). For defendants outside Page 2
Singapore, the time frame is 21 days (including the date of service). Failure to enter appearance has serious consequences which are discussed in the section of this write-up entitled Summary Processes. In addition to entering appearance, the defendant must also file and serve a defence to the plaintiff s claim. This is a document setting out the grounds and material facts on which the defendant is challenging the plaintiff s right to bring a claim against him. For example, in a claim for damages arising out of a car accident, the defendant may be asserting that the accident was caused by the plaintiff s own careless driving and not the defendant s. The plaintiff must file and serve the defence within 14 days from the date he was served the statement of claim. Again, failure to file a defence has serious consequences which are discussed in the section of this write-up entitled Summary Processes. The defence must also specifically reply to each of the plaintiff s allegations set out in the statement of claim, stating whether the defendant confirms or denies these allegations. If the defendant fails to deny any allegation in the plaintiff s claim, he will be taken to have agreed with that allegation. The purpose of this process of exchanging a statement of claim and defence and setting out all material grounds and facts therein is to ensure that both parties are fully aware of what the other party is alleging, and that the scope of the various questions of fact and law are adequately defined before trial so that parties can proceed to prepare their case accordingly. In addition to filing and serving a defence, the defendant may also wish to file and serve a counterclaim (this would be set out in the same document as the defence). He would wish to do this if he has his own claim against the plaintiff, generally arising out of the same facts on which the plaintiff has brought his claim. For example, in a claim for damages arising out of a car accident, if the defendant is asserting that the accident was caused by the plaintiff s careless driving and not his own, he may himself wish to bring a claim against the plaintiff for the damage caused to his own car by the plaintiff s careless driving. If a counterclaim is served on the plaintiff, he must similarly file and serve a defence the counterclaim on the defendant. Service Of Reply Once he is served with a defence, the plaintiff must file a reply to the defence if there are any matters raised in it that he has not already dealt with in his statement of claim. If he fails to do this, he will be taken to have agreed with the defendant s allegation set out in the defence. Generally speaking, a reply must be filed and served within 14 days of receipt of the defence (including the date of receipt). Note that if the defendant had served a counterclaim, the defence to counterclaim and the reply would be set out in the same document. Summary Processes Generally speaking, once a claim is commenced and the statement of claim, defence and reply have been exchanged, parties can proceed to prepare for trial. At the trial, the judge will review the evidence (both documentary and oral evidence given by witnesses), and decide on the claim. There are, however, various methods by which the claim may be determined summarily, or, that is, decided without having to go for trial: Page 3
If the defendant fails to enter appearance or to file a defence, the plaintiff may bring an application to court for the court to grant judgment in default of appearance or defence, as the case may be. Essentially, by failing to enter appearance or file a defence within the time specified by the Rules of Court, the court will deem the defendant to have admitted to the plaintiff s claim and will proceed to award the plaintiff the damages he has asked for in his writ and statement of claim. If the defendant has a valid defence, it is critical that he must enter appearance or file his defence within the specified time limits, as once judgment in default is entered, the defendant can only overturn the judgment on very narrow grounds. If the defendant files and serves a defence, but the defence is without merit or is invalid, the plaintiff can apply to court to have the claim decided without going to trial. This is known as applying for summary judgment. By making such an application, what the plaintiff is asserting is that his claim is cut and dried, that the defendant has no real defence, and that it would therefore be unnecessary to have a trial in order to determine that the defendant is liable. Such an application is heard based only on documentary and affidavit evidence (that is, written sworn statements by witnesses). When faced with such an application, the court may decide that the defence is indeed without merit and make an order in favour of the plaintiff, essentially granting judgment for the damages he has asked for in his writ and statement of claim. However, because to deny a litigant the opportunity to fully present his case in court is regarded as a very serious matter, if the court decides that the defendant has a defence, but that it is weak, the court may instead order the trial to proceed, but subject to certain conditions imposed on the defendant. Commonly, this will comprise payment in court of a sum as security for the plaintiff s costs. Of course, if the court decides that the defendant has a meritorious defence, it will dismiss the plaintiff s application. If the defendant is of the view that the plaintiff s claim is without merit, he can apply to court to have the claim struck out. Essentially, the court is being asked to decide that the plaintiff has no real claim against the defendant, and that it would unnecessary to hold a trial in order to determine this. Such an application is heard based only on documentary and affidavit evidence (that is, written sworn statements by witnesses). Generally, because to deny a litigant the opportunity to fully present his case in court is regarded as a very serious matter, the court will only make such an order in very clear cases. Preparation For Trial And Trial As noted, once a claim is commenced and the statement of claim, defence and reply have been exchanged, parties can proceed to prepare for trial. By way of preliminary comment, the process of pre-trial conferences should be highlighted. This process forms an integral part of Singapore civil procedure. It allows the court to give orders or directions, as it thinks fit, for the just, expeditious and economical disposal of the case. Pre-trial conferences are primarily intended to discover whether parties are minded to settle the action and, when appropriate, to encourage them to do so; to urge the parties to limit the questions in dispute where such an approach is justified; and, if settlement is not possible, to give all appropriate directions to ensure that the parties are ready for trial. Preparation for trial generally involves the two main stages of discovery and the exchange of affidavits of evidence-in-chief: Page 4
Discovery is a cornerstone of the civil procedure in Singapore. Under this process, the court will order that the parties, by the end of a specified period of time, reveal to each other the documentary evidence which they will be relying on in the case. In addition, they must also reveal documents which could adversely affect their own case, adversely affect the other party s case, or support the other party s case. This process is accomplished by exchanging a list of documents. Once the list of documents is exchanged, parties are entitled to inspect the documents set out in the list and to take copies of them. In addition, if a party feels that the other party has not revealed certain documents, he may make an application to court seeking discovery of those documents. In Singapore, witness evidence is generally exchanged by way of affidavits, that is, written sworn statements made by the witnesses. The time frame for exchanging affidavits will be specified by the court prior to the trial. In addition, parties may wish to issue subpoenas to ensure the attendance of witnesses at trial. A subpoena is essentially a document ordering a person to present himself at the trial as a witness for the party who has subpoenaed him. The trial itself generally involves the following stages: The plaintiff will commence with an opening statement outlining what his case is. He will then examine his witnesses who may be cross-examined by the defendant, in which case, the plaintiff would be entitled to re-examine them. As most of the evidence would generally already have been given by affidavit in Singapore, the usual procedure would be for the witness to confirm that he deposed to the evidence in the affidavit, and the defendant can then proceed to cross-examine the witness. At the conclusion of the plaintiff s case, the defendant can argue that there is no case to answer. In other words, the defendant alleges that the plaintiff had not been able to bring the required evidence to establish the legal requirements for his claim. Such an application is rarely made as the judge will require the defendant to undertake not to call any evidence in the event that his argument does not succeed. The defendant will then commence his defence, usually by making an opening statement outlining the main points of his defence. He will then call his witnesses who will be examined in the manner outlined above in respect of the plaintiff s witnesses. The defendant will then make his closing statement, which represents his final argument to the judge, pulling together all the evidence that has been presented to the court. Lastly, the plaintiff will end by making his own closing statement in reply to the defendant s. As a final note, it should be noted that the evidence that may be presented at a trial must generally be that allowed for under the Evidence Act. The general rule is that the evidence must be of relevant facts. What constitutes relevant facts is governed by a range of complex rules. For example, generally speaking, the testimony of a witness that he heard A say he committed a certain act cannot be tendered as evidence proving that A did in fact commit that act. Such evidence is regarded under law as not relevant. Page 5
At the end of the trial, the judge will come to a decision on the claim, and render a judgment either in the plaintiff s favour or the defendant s. Appeal A party which is dissatisfied with the decision of the trial court, may wish to appeal the court s decision. An appeal is a process by which a party seeks to set aside or vary the decision of the court which he claims was wrongly made. There are two main tiers of appeal: appeals from decisions of the Subordinate Courts to the High Court, and appeals from the High Court to the Court of Appeal. Generally speaking, the time limits for filing a notice of appeal are: for appeals to the Court of Appeal from the High Court, one month from the date on which the judgment or order was pronounced; and for appeals of civil matters from the Subordinate Courts to the High Court, an application to the relevant subordinate court must be made within seven days of the decision, and if leave is refused, a further application lies to the High Court within seven days of the refusal. Generally speaking, the role of an appellate court is supervisory in nature and will not involve a retrial of the claim. The court will make its decision based on the court record of the trial. Accordingly, while an appeal court will intervene to rectify a decision if it was based on an improper understanding of the law, or an improper application of the law to the facts, the court will usually not interfere with findings of fact. This is because the court below which will have heard the witnesses directly is generally regarded to be in a better position to assess them, and to decide accordingly. By way of example, in a claim arising from a car accident, a decision whether the defendant s manner of driving fell below the standard required by law involves applying law (the legal standard expected of drivers) to the facts (how the defendant drove). An appellate court is in as good a position as the trial court to apply the law to the decided facts. However, a decision whether the defendant had or had not in fact signaled before turning is a question of fact: the judge has to decide who is telling the truth (the plaintiff who says that the defendant did not signal, or the defendant who says that he did). The appellate court did not see or hear the witnesses give their evidence, and is therefore not in as good a position as the trial judge to come to a judgment as to who was telling the truth based on their demeanour and the way they presented themselves. Accordingly, the appellate court will usually defer to the decision of the trial judge on such matters. In addition, the appeal court will not usually hear new evidence unless there is a compelling reason for it to do so. This is because all available evidence should have been brought before the trial judge who would be in a position to decide the case on the totality of the evidence before it. Enforcing A Judgment The final section of this write-up briefly discusses the various methods of enforcing a judgment for payment of a specific sum of money. The most common methods of enforcing a judgment for the payment of money are garnishee proceedings and writs of seizure and sale. Additionally, a judgment creditor may resort to bankruptcy Page 6
proceedings (individual) or winding-up proceedings (company) to recover the debt from his judgment debtor. Garnishee Proceedings Garnishee proceedings may be commenced where a third party owes the judgment debtor a sum of money. The intent is to obtain a court order requiring the third party (known as the garnishee ) to pay the judgment creditor the monies payable by the third party to the judgment debtor. A payment by the third party to the judgment creditor, pursuant to the court order (known as a garnishee order ) amounts to a discharge of the third party s obligations to the judgment debtor. To obtain such an order, the judgment creditor must make an application to court. The application must be supported by an affidavit which sets out the grounds of the judgment creditor s belief that a sum of money is due and owing from the garnishee to the judgment debtor. Note that it is only a debt due or accruing due at the time of service of the garnishee order on the garnishee which may be the subject of garnishee proceedings. This means that the judgment creditor is not entitled to garnish a future debt or a contingent debt. A contingent or future debt is one which is not yet due. So, for example, if the judgment debtor is himself owed money by a third party, and that debt is due only on 1 June 2003, a garnishee order served on that third party before that date, for example, on 1 May 2003, would be ineffective as the third party is not yet liable to pay the judgment debtor as at 1 May 2003. Generally, the most obvious target of garnishee proceedings are bank accounts. The judgment creditor may be aware of the whereabouts of the judgment debtor s bank account if, for example, the judgment creditor is in possession of cheque(s) previously issued by the judgment debtor. However, monies in a joint account cannot be garnished for a judgment debt which was obtained against only one of the joint owners. In the event that the garnishee does not dispute that a sum of money is owed to the judgment debtor, the garnishee order nisi is then made absolute by the court. A garnishee order absolute is enforceable against the garnishee in the same manner as any other order for the payment of money. Writ Of Seizure And Sale This form of enforcement is appropriate if the judgment debtor has property / assets which can be seized and then sold. The proceeds of the sale are applied towards satisfaction of the judgment debt and costs. A writ of seizure and sale may be issued against both movable (including shares) and immovable property. It is obvious that the writ of seizure and sale will be effective as a mode of enforcement only if the property seized is of substantial value and therefore sufficient to satisfy the judgment debt. In practice, movable property is usually seized from the judgment debtor s residence or office premises. When the judgment debtor is registered as the owner of a particular premises, the law acknowledges that this is a strong indication that all movable property found on that premises belong to the judgment debtor. Nonetheless, the possibility that a third party will claim ownership of the subject-matter of a seizure always remains. In seizing immovable property, the judgment creditor can appoint a receiver to collect rents and profits of the property seized, in lieu of a sale. Page 7
Bankruptcy Proceedings Bankruptcy proceedings are relevant only when the judgment debtor is an individual. The rules on bankruptcy require that the judgment debt must be at least S$10,000.00 before a bankruptcy petition may be filed in court. Proceedings for bankruptcy commonly commence with the issuance of a statutory letter of demand to the judgment debtor. Pursuant to the statutory letter of demand, the judgment debtor is given 21 days within which to comply with the demand for payment of the judgment debt, failing which a bankruptcy petition will be filed into court. Upon the granting of a bankruptcy order against the judgment debtor, all assets belonging to the judgment debtor will come under the control and management of the official assignee. As a bankrupt, the judgment debtor is prohibited from managing a business or acting as a director of a company, without the approval of the official assignee. In order to recover the judgment debt, the judgment creditor will file a proof of debt with the official assignee. After the lapse of three years from the bankruptcy order and if the debts proved in bankruptcy do not exceed S$500,000.00, the official assignee may discharge the bankrupt from bankruptcy. Winding-Up Proceedings When the judgment debtor is a company and the judgment debt is at least S$10,000.00, the judgment creditor is entitled to issue a statutory demand to the judgment debtor, as a preliminary step towards the presentation of a petition for the winding-up of the judgment debtor. (Note that while this is a common ground for commencing a winding-up, this is not the only ground.) Again, the judgment debtor has 21 days to comply with the statutory demand by satisfying the judgment debt. The judgment debtor is deemed unable to pay its debts in the event that it fails to comply with the statutory demand. An inability to pay its debts is a ground on which a winding-up petition may be presented against the judgment debtor. Upon an order for the winding-up of the judgment debtor being granted by the court, a liquidator will be appointed to take charge of and manage all assets and affairs of the judgment debtor. To a large extent, the judgment debtor effectively ceases to function as a going concern. The judgment creditor is then required to file a proof of debt with the liquidator in order to recover the judgment sum. Rajah & Tann is one of the largest law firms in Singapore. It is a full service firm and given its alliances, including US premier firm Weil, Gotshal & Manges, is able to tap into resources in a number of countries. Rajah & Tann is firmly committed to the provision of high quality legal services. It places strong emphasis on promptness, accessibility and reliability in dealings with clients. At the same time, the firm strives towards a practical yet creative approach in dealing with business and commercial problems. The information contained in this newsletter is correct to the best of our knowledge and belief at the time of writing. Specific professional advice should be sought before any action is taken. In this regard, you may call the lawyer you normally deal with in Rajah & Tann or e-mail the Knowledge Management team at eoasis@sg.rajahandtann.com Rajah & Tann Knowledge & Risk Management. All rights reserved. Page 8