Civil Procedure

Citation(2008) 9 SAL Ann Rev 143
AuthorCavinder BULL SC MA (Oxford), LLM (Harvard); Barrister (Gray’s Inn), Attorney-at-Law (New York State); Advocate and Solicitor (Singapore). Jeffrey PINSLER SC LLB (Liverpool), LLM (Cambridge), LLD (Liverpool); Barrister (Middle Temple), Advocate and Solicitor (Singapore); Professor, Faculty of Law, National University of Singapore.
Date01 December 2008
Publication Date01 December 2008
Appeals
Leave to appeal

7.1 In Blenwel Agencies Pte Ltd v Tan Lee King[2008] 2 SLR 529, the Court of Appeal held that where the High Court has refused leave to appeal against a decision of the District Court, there can be no further recourse after the High Court has adjudicated on the matter. This case was an extension of the Court of Appeal”s previous judgment in SBS Transit Ltd v Koh Swee Ann[2004] 3 SLR 365, which concerned an application for leave to appeal against the decision of a Magistrate”s Court.

7.2 Andrew Phang JA reiterated the fundamental principle that where a legal decision cannot be appealed against as of right but requires express permission from a named authority before it can be appealed against, the decision of that authority as to whether or not to grant leave to appeal is final (Blenwel Agencies Pte Ltd v Tan Lee King[2008] 2 SLR 529 at [14]). It is clear from s 21(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) that the High Court is the authority with the final say as to whether to grant or refuse leave to appeal against a decision of the Subordinate Courts. Section 21(1) confers only two opportunities for an application for leave to appeal. First, before the relevant court of the Subordinate Courts, and secondly, before the High Court. There is no further court other than the High Court for an application for leave to appeal (Blenwel Agencies Pte Ltd v Tan Lee King[2008] 2 SLR 529 at [18]).

7.3 The appeal had been brought under s 34 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘SCJA’), and Andrew Phang JA explained that like s 21(1), s 34 of the SCJA is intended to restrict appeals to the Court of Appeal. He reiterated Judith Prakash J”s

views in SBS Transit Ltd v Koh Swee Ann[2004] 3 SLR 365, that it would be inconsistent with the object of s 34 to allow it to detract from the operation of s21(1), given that both were mechanisms restricting appeals to the High Court.

7.4 In addition, the learned judge held that s 34 of Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘SCJA’) is premised on the High Court having decided on the substantive matters before it. Thus, it is clear that s 34 of the SCJA is not intended to apply to situations where the High Court has refused leave to appeal against the decision of the Subordinate Courts, and the High Court has therefore not ruled on the substantive matter or matters in respect of which leave to appeal is sought (Blenwel Agencies Pte Ltd v Tan Lee King[2008] 2 SLR 529 at [22]).

7.5 Finally, Andrew Phang JA restated the broader and more fundamental principle that the Court of Appeal, being a creature of statute, is only seised of the jurisdiction that has been conferred upon it by the legislation creating it. Thus, a jurisdiction-conferring provision is a ‘crucial prerequisite’ that a would-be appellant must satisfy (Blenwel Agencies Pte Ltd v Tan Lee King[2008] 2 SLR 529 at [23]). Furthermore, since it is trite law that there is no inherent right to appeal from judicial determinations made by our courts, a right of appeal must have its source in legislative authority.

Costs

7.6 In 2008, the High Court made two clear pronouncements that the successful litigant”s reproachable conduct would be taken into consideration to lessen the amount of costs awarded to him, if at all. In VH v VI[2008] 1 SLR 742, no costs were awarded, and in Susilawati v American Express Bank Ltd[2008] 1 SLR 237 costs were awarded on a standard, and not an indemnity, basis.

7.7 In VH v VI[2008] 1 SLR 742, the High Court held that the respondent did not deserve any costs in view of his conduct and refused to award costs to him (at [53]). The respondent had applied to the Swedish court to issue a divorce decree in spite of his full knowledge that there was a Singapore interim anti-suit injunction issued against him. Kan Ting Chiu J held that the respondent”s apology on affidavit to the Singapore Court for going against the interim injunction was hollow and insincere. The learned judge also observed that there appeared to be a real case for arguing that his conduct was in contempt of court, but left the issue to be decided if the occasion arose (at [52]). Thus, even though the appellant”s application for an anti-suit injunction was dismissed, no costs were awarded to the respondent.

7.8 In Susilawati v American Express Bank Ltd[2008] 1 SLR 237, the High Court awarded costs to the defendant on a standard, and not an indemnity, basis because its conduct was not beyond reproach. The plaintiff had executed a charge to secure her son-in-law”s liabilities to the defendant, and had brought an action against the defendant when it executed the charge under the heads of undue influence and breach of fiduciary duty. The plaintiff”s action failed. However, Lai Siu Chiu J observed that the defendant was aware of the potential conflict of interest between the plaintiff and her son-in-law. Also, the defendant”s lack of vigilance contributed in no small measure to the dispute at hand, which could easily have been avoided by closer scrutiny and more comprehensive disclosure on the part of the defendant (at [76]). Thus, the learned judge held that even if the contractual provision entitling the defendant to indemnity costs applied, she would decline to exercise her discretion to award indemnity costs to the defendant (at [101]).

Disbursements

7.9 The term ‘disbursement’ for the purposes of taxation was construed by the High Court in Ong Jane Rebecca v Lim Lie Hoa[2008] 3 SLR 189. Choo Han Teck J held that the general rule was that disbursements claimed should be expenses that had been paid. However, the word ‘disbursement’ was also wide enough to include loans or debts properly incurred by a party for the purposes of litigation, provided that it was proven that such loans or debts were due and payable and would be paid after taxation. Evidence such as invoices or bills had to be tendered to prove this to the court”s satisfaction. This construction was sensible, because if ‘disbursements’ were strictly limited to only actual expenses paid out by a party, a poor but successful litigant could be denied recovery of his rightful amount of costs.

7.10 The successful litigant had failed to adduce any evidence such as invoices or bills to prove that the loans or debts in question were due and payable and would be paid after taxation. Also, no proof of debt had been filed in respect of the claim in the litigant”s insolvency in the United Kingdom. Instead, it was only stated on affidavit that such a debt existed. This was insufficient, and the claims were disallowed (Ong Jane Rebecca v Lim Lie Hoa[2008] 3 SLR 189 at [3]).

7.11 The learned judge also held that in principle, air miles could be a proper disbursement that could be recovered in taxation (Ong Jane Rebecca v Lim Lie Hoa[2008] 3 SLR 189 at [7]). There was no reason why a plaintiff who paid for an airplane ticket should be better off in taxation than a plaintiff who had decided to redeem an airplane ticket using his or her miles for whatever reason. However, it transpired that the plaintiff had used air miles accumulated by another person, and not herself, to redeem the airplane ticket. Thus, the claim was not allowed.

Offers to settle

7.12 In Sie Choon Poh v Amara Hotel Properties Pte Ltd[2008] 2 SLR 1076, the High Court held that even though the offer to settle was not in the form prescribed by O 22A r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), the court was not precluded from taking it into account.

7.13 In CCM Industrial Pte Ltd v Uniquetech Pte Ltd[2008] SGHC 216, Chan Sek Keong CJ illuminated two significant points regarding offers to settle. First, the court”s general discretion under O 22A r 12 could not apply where the trial judge had found that the requirements of O 22A r 9 had not been satisfied. Rule 12 merely provides the guidelines for the exercise of the court”s discretion; it is not an empowering rule (at [27]). It cannot be used as a free-standing rule to impose costs because it does not vest any power in the court to order costs in relation to offers to settle. The only rules empowering the court to award costs in relation to offers to settle are found elsewhere in rr 9(1)(b), 9(2)(b) and 9(5). Thus, where r 9 does not apply to an offer to settle, r 12 cannot be applied to temper its rigours.

7.14 Secondly, Chan Sek Keong CJ clarified the relationship between O 22A and O 59. In the event that the plaintiff obtains a judgment which is more favourable than the terms of the offer, general principles of costs apply, and not the cost consequences under the offer to settle process. This is because O 59 applies to every case on costs in the absence of any other specific rule.

Default judgments

7.15 In Mercurine Pte Ltd v Canberra Development Pte Ltd[2008] 4 SLR 907, the plaintiff claimed (as landlord) rental arrears and possession of the premises which had been leased to the defendant. Judgment was entered in default of the defendant”s appearance. Fifteen months later, the defendant applied to set aside the judgment. The judgment was irregular because it had been entered for an excessive sum (in respect of the rental arrears) and the plaintiff had failed to produce a certificate required by O 13 r 4(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (in respect of the claim for possession). The Court of Appeal determined that the defendant had provided acceptable reasons for not making an earlier application. It also concluded that as the irregularities did not result in egregious procedural injustice to the defendant, the default judgment should not be set aside ex debito justitiae.

7.16 The Court of Appeal revised the principles governing the setting aside of regular default judgments which had been established by the English Court of Appeal in Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc (‘The Saudi Eagle’)[1986] 2 Lloyd”s...

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