Civil Procedure

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.
Published date01 December 2011
Date01 December 2011

Leave to appeal

8.1 In Ong Wah Chuan v Seow Hwa Chuan[2011] 3 SLR 1150 (Ong Wah Chuan), the trial was bifurcated and liability and quantum were considered separately. The High Court held (Ong Wah Chuan at [31]), that since s 21(1)(a) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (SCJA) specifically sets out a monetary threshold above which leave to appeal is not required, the threshold criterion is inapplicable and leave to appeal is not required where damages are truly at large. However, this is qualified by the requirement that the maximum possible amount in damages on the facts is not clearly below S$50,000.

8.2 The High Court further held (Ong Wah Chuan at [34][36]), that, although damages in this case were not yet assessed, they were not truly at large as the value of the damages could be estimated. First, the parties and court had to ascertain, to the best of their abilities, the amount in dispute. Quentin Loh J opined that, firstly, in a case where there has been a bifurcation of damages, counsel should still state what the envisaged damages are. Secondly, the value of the damages could be estimated from the material before the trial judge such as the pleadings, medical reports and O 18 r 12(1A)(b) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (RoC) statement of special damages. Thirdly, where counsel for both parties responsibly agree and accept that the claim exceeds the threshold, that should be sufficient for the court.

8.3 The court also noted that with the amendments to the SCJA pursuant to the Supreme Court of Judicature (Amendment) Act 2010 (Act 30 of 2010), the relevant amount in dispute to determine if leave to appeal is required would be the amount in dispute at the hearing before the lower court. This would apply to both appeals from the Subordinate Courts to the High Court and appeals from the High Court to the Court of Appeal: Ong Wah ChuanENR at [40] and [41].

Adducing fresh evidence

8.4 Yeo Chong Lin v Tay Ang Choo Nancy[2011] 2 SLR 1157 (Yeo Chong Lin) involved the division of matrimonial assets. On appeal, the husband sought to adduce evidence that after the decision of the trial judge, his daughters had a filed suit claiming beneficial ownership of shares the trial judge said belonged to him.

8.5 The court noted (Yeo Chong Lin at [12]), that the special grounds laid down in Ladd v MarshallWLR[1954] 1 WLR 1489 did not apply where a party to an appeal sought to adduce fresh evidence relating to events which occurred after the decision of the trial judge. Instead, the court suggested (Yeo Chong Lin at [13]), a less restrictive test of whether the evidence would have a perceptible impact on the decision such that it is in the interest of justice that it should be admitted.

8.6 On the facts, the Court of Appeal held (Yeo Chong Lin at [14]), that the evidence sought to be admitted by the husband went to the heart of the decision and could alter the basis on which it was made. Accordingly, it granted the application.

Raising a new point

8.7 Chai Cher Watt (trading as Chuang Aik Engineering Works) v SDL Technologies Pte Ltd[2012] 1 SLR 152 (Chai Cher Watt) concerned the sale and purchase of a drilling machine. On appeal, counsel for the respondent seller argued that since s 13 of the Sale of Goods Act (Cap 393, 1999 Rev Ed) (SGA) (which provides for an implied condition that goods will correspond with their description in the contract) was not raised by the appellant in the course of pleadings or in trial, to allow it to be raised on appeal would prejudice the respondent.

8.8 The Court of Appeal held (Chai Cher Watt at [17]), that even if there was no literal reference to s 13 SGA in the court below (which the court said was taking the Respondent's case at its highest), it was clear that the parties had proceeded on the basis that the case concerned the sale of goods by description within the meaning of s 13, since the record of appeal demonstrated that the focus in the trial centred around the specifications of the drilling machine which were described in the contract between the parties. As such, the court allowed the argument to stand.

Right to appeal review of disciplinary tribunal's decision

8.9 In Law Society of Singapore v Top Ten Entertainment Pte Ltd[2011] 2 SLR 1279 at [41] (Top Ten), the Court of Appeal noted that the right of appeal is exclusively a statutory right and held that there was no right of appeal from the decision of a judge hearing a review (Review Judge) made under ss 95, 96 and 97 of the Legal Profession Act (Cap 161, 2001 Rev Ed) (LPA). First, nothing in the LPA confers such a right with regard to the decisions of the Review Judge under ss 95, 96 or 97. Instead, firstly, Part VII of the LPA provides a self-contained disciplinary framework outside the civil proceedings framework: Top Ten at [41] and [44]. Secondly, the decisions of a judge under Part VII of the LPA do not fall within the appellate jurisdiction described in s 29A(1) of the SCJA: Top Ten at [45].

8.10 In reaching this conclusion, the Court of Appeal expressly chose not to follow the decisions of the Privy Council in Hilborne v Law Society of Singapore[19771978] SLR(R) 342 (Hilborne) and the Singapore Court of Appeal in Wong Juan Swee v Law Society of Singapore[1994] 3 SLR(R) 619 which approved of Hilborne: Top TenENR at [50] and [57].


Action brought on behalf of another party

8.11 A court will generally not make a costs order against a person who brings an action on behalf of another party, but may do so where it is of the opinion that the litigation is not properly incurred.

8.12 In Hsu Ann Mei Amy (personal representative of the estate of Hwang Cheng Tsu Hsu deceased) v Overseas-Chinese Banking Corp Ltd[2011] 2 SLR 178 at [41] (Hsu Ann Mei Amy), the court held that it would be unfair, in principle, to impose an order for a litigation representative to bear costs personally, even if the representative would be entitled to an indemnity from the estate. It considered that there could be situations where the estate might have insufficient funds to indemnify the litigation representative (although that was not so in this case). Further, such an order reflected on the propriety of the representative's action in continuing the proceedings.

8.13 The Court of Appeal stressed that it was not the law that a litigation representative has to bear costs personally and observed that, even if this were the law, fairness would dictate that such a costs order only be imposed if the litigation representative was advised, when appointed, of the consequences of losing the case. The representative in this case was appointed only after the action had been commenced. In light of these findings, the court set aside the costs order: Hsu Ann Mei Amy at [41].

8.14 This decision may be contrasted with Wong Meng Cheong v Ling Ai Wah[2011] SGHC 233 (Wong Meng Cheong), where the High Court ordered the plaintiffs, who were deemed deputies appointed by the court to act jointly and make decisions on the behalf of their father under the Mental Capacity Act (Cap 177A, 2010 Rev Ed), to personally bear the costs of the suit. The court accepted the proposition in In re Beddoe; Downes v CottamELR[1893] 1 Ch 547 that a trustee is entitled to a full indemnity out of the estate for all costs, charges and expenses properly incurred in an action respecting the trust estate. However, it noted that a trustee was required to satisfy the tests of (a) reasonableness; and (b) bona fides before the costs incurred could be considered proper: Wong Meng Cheong at [193].

8.15 Lai Siu Chiu J held that the plaintiffs did not act properly in commencing the litigation. First, the action was not carried out bona fide as the plaintiffs did not intend to protect the estate, but were pursuing their own private agenda: Wong Meng Cheong at [195]. Secondly, the litigation was patently unreasonable because it was commenced despite the objections of a co-deputy and the costs of commencing the action were entirely out of proportion to the liquid funds available to the estate: Wong Meng CheongENR at [196] and [198].

8.16 Additionally, the learned judge also ordered the plaintiffs to pay costs on an indemnity basis, as she found that the manner in which they had conducted the litigation left much to be desired. First, the plaintiffs did not provide their expert witnesses with the necessary information to form a reliable opinion, which ultimately resulted in wasted costs as the defendants' counsel had to deal with the opinions of four experts, none of which were useful. Secondly, the plaintiffs and their witnesses were evasive when being cross-examined, which led to the unnecessary lengthening of proceedings. Finally, the conduct of the action amounted to an exercise in oppressing the defendants: Wong Meng Cheong at [199][202].

Action brought by body carrying out public duty

8.17 Costs will generally not be awarded against a public body carrying out its duties in the public interest. This principle, enunciated in the English Court of Appeal case of Baxendale-Walker v Law SocietyWLR[2008] 1 WLR 426 (Baxendale-Walker), was accepted by the Singapore courts in 2011. However, regardless of whether the Baxendale-Walker principle applies, it only serves as a starting point and whether a public body will have to pay costs is ultimately determined by looking at the manner in which they conducted themselves in the proceedings.

8.18 In Law Society of Singapore v Top Ten Entertainment Pte Ltd[2011] 2 SLR 1279 at [24] and [27] (Top Ten), the court held that the Law Society, in opposing a complainant's request for a review of the decision of the Council of the Law Society under s 96(1) of the LPA, was acting as a regulatory body and in the public interest. Therefore, the Baxendale-Walker principle applied and, as a starting point, costs would not be awarded against the Law Society: Top Ten at...

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