Civil Procedure

Citation(2015) 16 SAL Ann Rev 213
Date01 December 2015
Publication Date01 December 2015
AuthorCavinder BULL SC MA (Oxford), LLM (Harvard); Barrister (Gray's Inn), Attorney-at-law (New York State); Advocate and Solicitor (Singapore). CHIA Voon Jiet LLB (Hons) (National University of Singapore), LLM (Harvard); Advocate and Solicitor (Singapore).
Appeals
Extension of time

8.1 In Lioncity Construction Co Pte Ltd v JFC Builders Pte Ltd[2015] 3 SLR 141, the High Court held that an application to extend time to appeal against the decision of a District Judge in chambers which was made after the expiry of the 14-day time limit for appealing should be heard by the High Court, not the District Court. This was consistent with the uniform position for other appeals, that an application to extend time after the expiry of the time limited for appeal should be heard by the court with the jurisdiction to hear the appeal. The decision affirms the Singapore courts' preference for a streamlined and consistent approach towards extension applications, and it is in line with the practice adopted by the Supreme Court Registry.

Capacity
Representation of companies

8.2 Order 1 r 9(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (‘Rules of Court’) allows corporations to seek leave for an officer of the company to act on its behalf. The application of this rule was considered by the High Court in two separate applications in 2015 by applying the factors relevant to the exercise of its discretion earlier identified in Bulk Trading SA v Pevensey Pte Ltd[2015] 1 SLR 538 (‘Bulk Trading’). Both applications were dismissed by the court.

8.3 In the first case, Allergan, Inc v Ferlandz Nutra Pte Ltd[2015] 2 SLR 94 (‘Allergan, Inc’), the company sought leave under O 1 r 9(2) to be represented by its sole director and shareholder on the basis of financial impecuniosity. The High Court held that where financial impecuniosity was the sole or main reason for the application, the court would have to take account of the extent of the financial constraints on the company and the company's ability to engage counsel. Even where the court was satisfied that the company was facing financial difficulties such as to impede its ability to engage counsel, the court would still have regard to all other relevant factors in deciding whether to grant leave, including but not limited to the following factors identified in Bulk Trading (Allergan, Inc at [20]):

(a) whether the application for leave was properly made pursuant to the Rules of Court;

(b) the financial position of the corporate applicant and/or its shareholders;

(c) the bona fides of the application;

(d) the role of the company in the proceedings;

(e) the structure of the company;

(f) the complexity of the factual and legal issues;

(g) the merits of the company's case;

(h) the amount of the claim;

(i) the competence and creditability of the proposed representative; and

(j) the stage of the proceedings.

8.4 The High Court held that a single bank statement and letters from the company's former solicitors requesting payment were, by themselves, insufficient to show that the company was financially impecunious. There was also no information provided on the finances of the sole director and shareholder for whom leave was being sought. Further, the court expressed some concern about the competence of the layperson to conduct the trial, present the case and assist the court, bearing in mind that some of the issues of law were technical. In these circumstances, the High Court concluded that this was not an appropriate case to grant leave.

8.5 In the second case, Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd[2015] 5 SLR 289, the plaintiff company sought leave to be represented by a foreign lawyer who had been providing legal services to the plaintiff on the matter even before the main action was commenced. The foreign lawyer was appointed as a director of the plaintiff on the day that the plaintiff's former solicitors discharged themselves. The High Court found that the foreign lawyer was appointed as a director of the plaintiff for the very purpose of allowing him to apply under O 1 r 9(2) to act on behalf of the plaintiff. However, O 1 r 9(2) could not be used to circumvent the strict and structured framework in the Legal Profession Act (Cap 161, 2009 Rev Ed) governing when and how foreign counsel could practise in Singapore. Accordingly, the plaintiff's application was dismissed.

Standing

8.6 Two judgments relating to the standing of parties to bring applications before the court were also issued in 2015. Of particular significance is one relating to the standing of a party to commence proceedings relating to a violation of constitutional rights.

8.7 Whether a beneficiary or creditor of an unadministered estate has the requisite standing to bring a claim to preserve the assets of the estate generally was the key issue for determination in Foo Jee Boo v Foo Jhee Tuang[2015] SGHC 176. The High Court followed the Court of Appeal's decision in Wong Moy v Soo Ah Choy[1996] 3 SLR(R) 27, and held that ordinarily, beneficiaries had no equitable or beneficial interest in any particular asset comprised in an unadministered estate. However, there were certain limited, special circumstances under which a beneficiary of an unadministered estate could institute an action to recover assets of the estate. All the circumstances of the case should be considered and the court would ultimately decide whether it was impossible or at least seriously inconvenient for the representatives to take proceedings such that the beneficiaries ought to be given the right to sue.

8.8 In this case, the first plaintiff, a beneficiary of the estate, and the second plaintiff, a creditor of the estate, had commenced proceedings to preserve the assets of the estate in their personal capacities. It could hardly be said to be inconvenient for the first plaintiff, as joint executor and trustee of the estate, to bring the claims given that he was clearly willing and able to prosecute the claims in his personal capacity. Accordingly, the court concluded that the plaintiffs in their personal capacities had no standing to bring the proceedings.

8.9 Madan Mohan Singh v Attorney-General[2015] 2 SLR 1085 concerned the issue of locus standi to commence proceedings under O 53 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) on the basis of a violation of constitutional rights. The court held that the test for determining standing in the context of private rights applied equally if the right was a constitutional one, namely: (a) the declaration or prerogative order sought had to relate to a right which was personal to the applicant and enforceable against an adverse party to the litigation; (b) the applicant had to have a real interest in bringing the action; and (c) there had to be a real controversy between the parties to the action for the court to resolve.

8.10 The applicant, a volunteer Sikh religious counsellor at the Singapore prison, sought a quashing order against the Singapore Prison Service's hair grooming policy for inmates on the ground that the policy infringed the rights of Sikh inmates to practise their religion. The applicant submitted that he had standing to seek the quashing order for three reasons. First, the applicant owed a duty to the Sikh inmates who came to him for religious guidance and counselling. Secondly, the Sikh inmates' right to practice their religion was inextricably linked to the applicant's right to propagate his faith. Thirdly, the applicant had a very personal and close relationship with the Sikh inmates. All three reasons were rejected by the High Court. The court held that the applicant's right to propagate his religion was not curtailed by the hair grooming policy, and the applicant had no locus standi to bring judicial review proceedings on the basis that the policy violated the constitutional rights of Sikh inmates. Accordingly, the application was struck out under O 18 r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed).

Costs

8.11 Although costs for legal proceedings are awarded at the court's discretion (see Wing Joo Loong Ginseng Hong (Singapore) Co Pte Ltd v Qinghai Xinyuan Foreign Trade Co Ltd[2009] 2 SLR(R) 814 at [200]), this is not to say that the awarding of costs is an arbitrary exercise. The Court of Appeal has held that its discretion is to be exercised with the overarching concern to achieve the fairest allocation of costs between the parties (Aurol Anthony Sabastian v Sembcorp Marine Ltd[2013] 2 SLR 246 at [103]). In line with this endeavour, 2015 saw several decisions relating to (a) the circumstances in which indemnity costs are awarded; (b) the awarding of interest on costs; (c) the setting of costs between a plaintiff and three defendants; (d) the approach to adopt in awarding costs under the ‘two counsel rule’; and (e) whether costs should be awarded against a body serving a public function. All of these decisions contribute towards clarifying the exercise of the court's discretion in respect of costs.

Indemnity costs

8.12 In PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd[2016] 1 SLR 748, the plaintiff commenced a fresh action in Jakarta almost three years after the Singapore action had commenced. The defendants applied for, and obtained, an interim anti-suit injunction and a final anti-suit injunction to restrain the plaintiff's pursuit of the Jakarta action. The court held that indemnity costs were appropriate for both applications. It was wasteful and oppressive for the plaintiff to have commenced proceedings on the same subject matter in two separate jurisdictions without good reasons for doing so. The defendants' applications for the anti-suit injunctions would not have been necessary but for the fact that the plaintiff had sued in one place too many. Nevertheless, the court emphasised that it does not necessarily follow that indemnity costs would be appropriate in every case where an anti-suit injunction was granted. Each case would turn on its own facts. It should be noted that, at the time of writing, this decision is currently being appealed.

8.13 In Telemedia Pacific Group Ltd v Credit Agricole (Suisse) SA[2015] 4 SLR 1019, the High...

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