Civil Procedure

• Date: 01 December 2013
• Published date: 01 December 2013
• Author: Cavinder 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.

Appeals

Appeal on assessment of damages

8.1 In Tan Boon Heng v Lau Pang Cheng David[2013] 4 SLR 718, the appellant appealed against the decision of a High Court judge in chambers dismissing his appeal against the assistant registrar's assessment of damages. The Court of Appeal dismissed the appeal and held that there were no grounds warranting appellate intervention in this case as the High Court judge, in affirming the assistant registrar's assessment of damages, had not applied the wrong principles, misapprehended the facts, or made a wholly erroneous estimate of the damages.

8.2 The Court of Appeal explained the applicable principles governing a High Court judge's review, on appeal, of a decision made by the registrar, the deputy registrar or an assistant registrar of the Supreme Court in an assessment of damages. In such situations, the court held that the judge's discretion was unfettered by the exercise of the assistant registrar's discretion below, although due weight should be given to the latter's decision.

8.3 In respect of the standard of review of the registrar's findings of fact, the Court of Appeal stated that there is a difference between the situation where the registrar's findings of fact were based solely on affidavit or documentary evidence, and where his findings were based partly or wholly on the oral evidence taken by him. In the former instance, a judge in chambers was in just as good a position as the registrar to make his own findings on the same, and he was also entitled to draw the appropriate inferences from this evidence and the registrar's notes of hearing. However, where the registrar's findings of fact were based wholly on the oral evidence, a judge in chambers could overturn the registrar's findings only if they were plainly wrong or against the weight of the evidence. Where the registrar's finding of fact was based partly on the oral evidence and partly on the affidavit or documentary evidence, a judge in chambers could overturn such a finding only where there was sufficient evidence to show that, more likely than not, the finding was not warranted.

Leave to appeal

8.4 The Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘SCJA’) was amended in 2010 pursuant to the Supreme Court of Judicature (Amendment) Act 2010 (Act 30 of 2010) (‘the 2010 amendment’). The 2010 amendment took the form of a reworded s 34 and the newly enacted Fourth and Fifth Scheds to the SCJA which set out the matters that are non-appealable to the Court of Appeal and the matters which are appealable only with leave of a High Court judge (collectively, ‘the 2010 SCJA amendments’). The scope and application of these amendments were examined for the first time in OpenNet Pte Ltd v Info-communications Development Authority of Singapore[2013] 2 SLR 880 (‘OpenNet’).

8.5 In OpenNet, the Court of Appeal considered the issue of whether leave of court was required to appeal against an order made by a High Court judge refusing to grant leave to commence judicial review. This turned on whether the application for leave to commence judicial review was an ‘interlocutory application’ under para (e) of the Fifth Sched to the SCJA. Preferring a purposive interpretation of ‘interlocutory application’, the court held that the purpose of the 2010 SCJA amendments was that an appeal to the Court of Appeal would generally be as of right for orders made at interlocutory applications which had the effect of finally disposing of the substantive rights of the parties, while an appeal to the Court of Appeal would ordinarily be denied for orders made at interlocutory applications which did not finally dispose of the substantive rights of the parties, and which were deemed to involve established principles of law.

8.6 On this approach, the Court of Appeal held that because the High Court judge had, by refusing to grant leave to commence judicial review, effectively determined the substantive issue and the substantive rights of the parties, the appellant's application for leave to commence judicial review did not come within the meaning of ‘interlocutory application’ under para (e) of the Fifth Sched to the SCJA. Accordingly, no leave of court was required by the appellant to file an appeal against the decision of the High Court refusing leave to commence judicial review.

8.7 Shortly after the OpenNet decision, the 2010 SCJA amendments were re-examined by the Court of Appeal in Dorsey James Michael v World Sport Group Pte Ltd[2013] 3 SLR 354 (‘Dorsey’).

8.8 The respondent in Dorsey argued that pre-action interrogatories were ‘interrogatories’ within the meaning of para (i) of the Fourth Sched to the SCJA and thus an order giving such interrogatories was non-appealable. The Court of Appeal held that this turned on the anterior question of whether an application to serve pre-action interrogatories was an ‘interlocutory application’ for the purposes of the SCJA.

8.9 Applying the purposive approach advocated in OpenNet, the Court of Appeal held that it was manifestly clear that the legislative scheme introduced by the 2010 SCJA amendments, in so far as it curtailed the rights of appeal, was only intended to apply to orders made at the hearing of interlocutory applications: OpenNet at [51]–[52]. Thus, the reference to ‘interrogatories’ in para (i) of the Fourth Sched to the SCJA referred to an order giving or refusing interrogatories that was made at the hearing of an interlocutory application for interrogatories, and did not include pre-action interrogatories. Since an appeal against an order giving or refusing pre-action interrogatories did not come within any of the limitations prescribed by s 34 of the SCJA or the Fourth and Fifth Scheds to the SCJA, the Court of Appeal held that the appellant had a right of appeal to the Court of Appeal against the order of the High Court judge.

8.10 The Court of Appeal in The Nasco Gem[2014] 2 SLR 63 (‘Nasco Gem’) dealt with the issue of whether leave of court was required to appeal against the High Court judge's order dismissing the applicant's application to set aside the warrant of arrest and service of the admiralty writ, in the light of s 34(2)(d) of the SCJA read with para (e) of the Fifth Sched to the SCJA.

8.11 The court affirmed the decisions in OpenNet and Dorsey, but observed that the applications in question in those cases were very different from the present order in Nasco Gem. While the former involved pre-action proceedings, the latter concerned a warrant of arrest obtained after the issuance of an originating process. The court held that an application for a warrant of arrest, whether allowed or denied, did not determine the substantive rights of the parties or the relief claimed in the originating process. Thus, it was clearly an interlocutory application in the admiralty suit which falls within the scope of para (e) of the Fifth Sched as an ‘order at the hearing of any interlocutory application’. Accordingly, leave was required to appeal against the High Court judge's order refusing to set aside the warrant of arrest.

Costs

Costs not awarded to successful appellant

8.12 The case of Aurol Anthony Sabastian v Sembcorp Marine Ltd[2013] 2 SLR 246 offered an example of a situation in which a party who succeeds on appeal is not awarded his costs. The appeal concerned an alleged breach by the appellant of an interim sealing order made by the assistant registrar. Upon the application of the respondent for an order of committal against the appellant for contempt of court, the appellant was found guilty by the High Court and sentenced to five days' imprisonment. The appeal before the Court of Appeal, which concerned, inter alia, the appellant's conviction and sentence, was allowed on the basis of imprecise terminology in the interim sealing order. However, the Court of Appeal found (at [102]) that the appellant:

… had clearly undermined the purpose of the interim sealing order in so far as the summons itself was concerned, though … this was a “technical” violation.

The Court of Appeal took into account the conduct of the appellant in the course of the proceedings in deciding that he should bear his own costs (at [105]):

It seems to us that [the appellant's] conduct … [is] deserving of this court's opprobrium. [The appellant] revealed a reprehensible disregard for the court and a manifest willingness to undermine a litigant's right to avail itself of the court's processes.

The Court of Appeal added (at [115]): ‘[W]e register our disapproval of his conduct by not awarding him the costs of the appeal.’ Nor was the High Court's order for costs in favour of the respondent disturbed.

8.13 Also see Terrestrial Pte Ltd v Allgo Marine Pte Ltd[2013] SGHC 57 in which the High Court refused to award costs to the defendants, who succeeded in the first and second appeals, because of their conduct in the course of the litigation.

Non-aggregation of joint plaintiffs' individual awards for damages and time of taxation

8.14 The case of Koh Sin Chong Freddie v Chan Cheng Wah Bernard[2013] 4 SLR 629 (‘Koh Sin Chong Freddie’) raised two important issues: (a) whether individual judgment amounts should be aggregated for the purpose of costs and (b) taxation of costs after the assessment of unliquidated damages. The case involved cross-appeals from an award made at an assessment of damages by the High Court judge (in Chan Cheng Wah Bernard v Koh Sin Chong Freddie[2012] SGHC 193). The judge awarded a total sum of $420,000 to the four plaintiffs as damages for defamation (each plaintiff being awarded $70,000 in general damages and $35,000 in aggravated damages). The Court of Appeal concluded that the judge wrongly estimated the damages due to the plaintiffs and decided to award $50,000 to each of them (comprising $35,000 as general damages and $15,000 as aggravated damages). As the sum recovered by each plaintiff was within the pecuniary limit of the...