Civil Procedure

Published date01 December 2012
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.
Citation(2012) 13 SAL Ann Rev 122
Date01 December 2012

Application for a stay of appeal

8.1 In Ong Jane Rebecca v PricewaterhouseCoopers[2012] 3 SLR 606 (‘Ong Jane Rebecca’), the plaintiff applied to stay an appeal that her solicitors had previously filed. Lai Siu Chiu J held that an application for a stay of an appeal to the Court of Appeal can only be made to the Court of Appeal or to a High Court judge sitting as a single judge in the Court of Appeal. As the learned judge was sitting as the trial judge, she held that she could not deal with the plaintiff's application to stay the appeal.

Proper party to the appeal

8.2 In CDL Properties Ltd v Chief Assessor[2012] 2 SLR 30 (‘CDL Properties’), the Court of Appeal held that the appellant had wrongly included the Comptroller of Property Tax (‘the Comptroller’) as a party to the appeal. The appellant had appealed against the decision of the Chief Assessor in revaluing the annual values of units in a building it owned. The court held that the appeal, in so far as it involved the Comptroller as a respondent, should be dismissed because the Comptroller was not a proper party to the appeal. The court reasoned that the appellant took issue with the quantum of the increase in the annual values as assessed by the Chief Assessor, which had nothing to do with the power of the Comptroller to collect any additional property tax that might arise from the Chief Assessor's assessment.

8.3 Although the Comptroller did not take up the issue of its standing before the court, this omission did not confer on the court jurisdiction to hear an appeal involving the Comptroller since the proceedings did not concern the Comptroller and the High Court had not made any order pertaining to him. This was ‘a basic procedural flaw which cannot be corrected’: CDL Properties at [30].

Appeal on assessment of damages

8.4 In Poh Huat Heng Corp Pte Ltd v Hafizul Islam Kofil Uddin[2012] 3 SLR 1003 (‘Poh Huat Heng’), the Court of Appeal affirmed (at [14]) the principles laid down in Chang Ah Lek v Lim Ah Koon[1998] 3 SLR(R) 551 governing how a High Court judge hears an appeal against an assistant registrar's decision on an assessment of damages. In such situations, the High Court judge is not limited by the rule that limits appellate interference to certain errors, but is entitled to vary the assistant registrar's award as he deems fair and just.

8.5 The appellants in this case argued that the judge below had adopted an incorrect approach to hearing their appeal on assessment of damages by taking the view that he could only intervene in the award if the assistant registrar was shown to have erred in law. The Court of Appeal rejected this argument. It found that there was in fact nothing to indicate what approach the judge below took since he did not issue any written grounds of decision. On the face of the certified transcript of the hearing notes, the judge did not indicate that the reason for his dismissal of the appeal was his belief that the assistant registrar had not erred in law. Accordingly, the court held that it was not possible to determine whether the judge's approach was incorrect: Poh Huat Heng at [15].

8.6 While the Court of Appeal alluded to the judicial duty to give reasons, it did not go further as the appellants did not argue that the judge's decision should be set aside on the ground that he did not provide his reasons for dismissing the appeal: Poh Huat Heng at [16].

Appeal on apportionment of liability

8.7 In Goh Sin Huat Electrical Pte Ltd v Ho See Jui[2012] 3 SLR 1038, the Court of Appeal clarified (at [49]) that the threshold of review for appeals concerning the apportionment of liability among two or more defendants is the same as that for appeals concerning findings of fact. Thus, an appellate court should only intervene when the apportionment can be said to be plainly wrong or unjustified on the totality of the evidence before the trial judge.

8.8 The court also cautioned that by reason of the discretionary nature of apportionment, an appellate court should be slow to intervene on the basis that it would have exercised the discretion in a different way. However, the court also pointed out that appellate review of apportionment of liability should not be made impossible, and observed (at [54]–[55]) that ‘improvements to the record, such as verbatim transcripts that are electronically recorded, now permit closer appellate review of findings of fact by trial courts. The trial judge's notes are no longer the only reliable record of what has transpired below’.

8.9 Given the discretionary nature of apportionment and the lack of any clear evidence of error, the court did not see fit to disturb the discretion exercised by the judge below in the apportionment of liability (at [58]).

Live issue

8.10 In Foo Jong Peng v Phua Kiah Mai[2012] 4 SLR 1267, the Court of Appeal rejected the respondents' argument that there was no longer a live issue to be decided on appeal. The judge below had granted a declaration that the Management Committee of the Singapore Hainan Hwee Kuan did not have the power to remove office bearers from their positions on the Executive Committee. On appeal, the respondents argued that since a new Management Committee had been elected and new officer bearers had also been elected, there was no longer a live issue on appeal. The court disagreed with the respondents.

8.11 The court held (at [25]) that even though the subject matter of the appeal was rendered moot, there remained potential costs ramifications which meant that the appellants retained a real interest in the outcome of the dispute. The court reasoned that if the appellants were successful in the appeal, the respondents would have been liable for costs here and below, and this would affect the positions of the parties.

Further arguments on appeal

8.12 In Sembcorp Marine Ltd v Aurol Anthony Sabastian[2013] 1 SLR 245 (‘Sembcorp Marine’), the High Court granted the appellant leave to submit further arguments. The appellant was convicted of contempt of court for breaching a sealing order and applied for leave to make a further argument on a point of law.

8.13 Quentin Loh J held (at [30]) that even though the application was not in compliance with paras 71(e) and 71(f) of the Supreme Court Practice Directions, which require a party to set out the proposed further arguments briefly, citing the authorities and including copies of the authorities, leave to make the further arguments should be granted. The judge reasoned that this was a ‘quasi-criminal case’ and non-compliance could be cured without causing prejudice to the respondent. Accordingly, he directed the appellant to file written submissions with authorities on the further argument so as to allow the respondent to know the argument they had to meet at the next hearing.

Adducing further evidence on appeal

8.14 The courts continue to apply the well-known Ladd v Marshall[1954] 1 WLR 1489 (‘Ladd v Marshall’) conditions for admitting further evidence on appeal in different contexts. However, the courts appear willing to exercise some flexibility in the way these conditions are being applied in very exceptional circumstances.

8.15 For example, the appellant in Sembcorp Marine had applied for leave to adduce further evidence, and argued (at [10]) that the Ladd v Marshall conditions do not apply to criminal or quasi-criminal cases. The High Court disagreed. It reiterated that the Ladd v Marshall conditions apply even in a criminal context, as held by the Court of Appeal in Juma'at bin Samad v Public Prosecutor[1993] 2 SLR(R) 327. However, the court was prepared to approach the application of the Ladd v Marshall conditions with some flexibility because the present case concerned contempt of court which was a serious matter where confidence in the administration of justice had to be maintained, and where there was the possibility of the serious sanction of deprivation of liberty: Sembcorp Marine at [11]–[12].

8.16 Nevertheless, the court held that even with a degree of flexibility, the appellant did not satisfy the three Ladd v Marshall conditions. Notably, the court held that the potential hostility of a witness was not an acceptable excuse for the non-fulfilment of the first Ladd v Marshall condition (that the evidence could not have been obtained with reasonable diligence) when the appellant had made no effort at all to contact the witness: Sembcorp Marine at [15].

8.17 The Ladd v Marshall conditions were also applied in the context of a matrimonial dispute in Tan Hwee Lee v Tan Cheng Guan[2012] 4 SLR 785 (‘Tan Hwee Lee’), where the wife sought leave to adduce further evidence to show that the judge below had erroneously determined the value of a property. The Court of Appeal declined to grant the wife leave to adduce further evidence because she did not satisfy the first Ladd v Marshall condition –viz, that the evidence could not be obtained with reasonable diligence.

8.18 In her affidavit, the wife claimed that she could not have obtained the evidence sought to be adduced with reasonable diligence because she was only alerted to the evidence by her new solicitors. However, the court held that the fact that a party was represented by different solicitors was in and of itself an insufficient ground to establish that the piece of evidence could not have been obtained with reasonable diligence. In fact, the court suggested that the fact that the wife's previous solicitors did not bring the evidence to her attention demonstrated that the wife, represented by her previous solicitors, did not act with reasonable diligence: Tan Hwee Lee at [23]–[24]. Therefore, the court held that the further evidence could not be adduced.

8.19 Further clarification of the first Ladd v Marshall condition was provided by the Court of Appeal in Chan Ah Beng v Liang and Sons Holdings (S) Pte Ltd[2012] 3 SLR 1088 (‘Chan Ah Beng’), where the respondent claimed that the...

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