Civil Procedure

• Published date: 01 December 2010
• Citation: (2010) 11 SAL Ann Rev 156
• 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.
• Date: 01 December 2010

Affidavits

8.1 In Drydocks World LLC v Tan Boy Tee [2010] SGHC 248, the High Court reiterated that as O 41 r 5(2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘RoC’) (which enables an affidavit deponent to refer to statements of information or belief) only applies to interlocutory proceedings, it does not operate where the plaintiff is seeking final relief affecting the rights of the parties.

Amendments

8.2 In Navigator Investment Services Ltd v Acclaim Insurance Brokers Pte Ltd [2010] 1 SLR 25 (‘Navigator’), the Court of Appeal allowed an amendment to a summons that had been filed in proceedings commenced by originating summons. The amendment was to include s 6 of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (‘IAA’) as a ground for staying the originating summons. The Court of Appeal held (Navigator at [26]) that whilst the appellant had sought to amend the summons at a very late stage, the issue of whether an arbitration was governed by the IAA or the Arbitration Act (Cap 10, 2002 Rev Ed) (‘AA’) was a question of law and it was difficult to see how there could be any prejudice that could not be compensated by an appropriate costs order. Further, the respondent had made extensive arguments before the High Court and the Court of Appeal as to the applicability of the IAA. As such, the court would consider whether the IAA or the AA was the applicable legislation in the context of the proceedings before it.

Appeals

Admission of further evidence

8.3 In ACU v ACR [2010] SGHC 322 at [14], the High Court held, in an appeal from a District Judge in Chambers to a High Court Judge in Chambers, that there was no requirement for special grounds (as described in Ladd v Marshall [1954] 1 WLR 1489) in order that fresh evidence may be adduced. It was also decided that the conditions laid down in Ladd v Marshall were not strictly applicable although the court may decide whether the facts justified the application of Ladd v Marshall (and if so, to what extent).

8.4 In Martek Biosciences Corp v Cargill International Trading Pte Ltd [2011] 1 SLR 1287 (‘Martek’), the Court of Appeal dismissed an appeal against the High Court“s decision (see [2010] 3 SLR 927) not to grant leave to the appellant to adduce further evidence in an action in the High Court challenging the decision of the deputy registrar of patents and the principal assistant registrar of patents to revoke the appellant“s Singapore patent. The application to adduce further evidence was brought under O 55 r 6(2) and/or O 87A r 13(2) of the RoC.

8.5 The Court of Appeal reasoned (Martek at [10] and [13]-[14]) that the Rules of Court prescribed a separate set of rules, with different wording, for patent proceedings and trade mark proceedings because of their special nature and observed that an opposition to the registration of a trade mark or patent would have repercussions on the market at large and would affect the public“s interests. As such, the Court of Appeal held that the considerations which were relevant in determining whether to grant leave for further evidence to be admitted in an appeal to the High Court from a decision of the Patents Registrar or a decision of the Trade Marks Registrar should be examined bearing in mind the objectives of the Patents Act (Cap 221, 2005 Rev Ed) (‘PA’) and the Trade Marks Act (Cap 332, 2005 Rev Ed) (‘TMA’) respectively. It was not profitable to interpret O 87A r 13(2) of the RoC by making a literal comparison with either O 55 r (2) or O 57 r 13(2). Instead, the starting point should be to look at O 87A r 13(2) itself.

8.6 On the face of it, O 87A r 13(2) of the RoC gave the court an unfettered discretion to allow further evidence to be adduced. However, the Court of Appeal held (Martek at [15]) that it was important that the discretionary power in O 87A r 13(2) was exercised in a principled manner. The Court of Appeal did not lay down any rigid test for the exercise of the discretion other than to identify the factors or considerations which the court should take into account in deciding whether or not to allow further evidence to be adduced pursuant to O 87A r 13(2). The Court of Appeal stated (Martek at [16]) that the

factors listed by Laddie J in Hunt-Wesson Inc“s Trade Mark Application [1996] RPC 233 were useful (but not exhaustive) guidelines in patent proceedings. These factors included the factors set out in Ladd v Marshall (above, para 8.3) as well as the following factors:

(a) whether the evidence could have been filed earlier and, if so, how much earlier;

(b) what explanation for the late filing had been offered to explain the delay if the evidence could have been filed earlier;

(c) the nature of the trade mark;

(d) the nature of the objections to the trade mark;

(e) the potential significance of the new evidence;

(f) whether or not the other side would be significantly prejudiced by the admission of the evidence in a way which could not be compensated, eg, by an order for costs;

(g) the desirability of avoiding multiplicity of proceedings; and

(h) the public interest in not admitting onto the register invalid trade marks.

8.7 The Court of Appeal emphasised (Martek at [17]) that ultimately, in each case, the court had to decide, based on the facts of the particular case at hand, whether it was justified to admit the further evidence in question, bearing in mind also the public“s interests.

Appeal from disciplinary tribunal

8.8 Gobinathan Devathasan v Singapore Medical Council [2010] 2 SLR 926 (‘Devathasan’) involved an appeal against the decision of a disciplinary committee (‘DC’) of the Singapore Medical Council (‘SMC’) which found Dr Devathasan guilty of one charge of professional misconduct under s 45(1)(d) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (‘MRA’). The appeal was allowed. The High Court held (Devathasan at [27]-[29]) that its jurisdiction in such appeals was appellate in nature and it was fully entitled to substitute its own decision for that of the DC although it would only interfere with the findings of the DC if those findings were ‘unsafe, unreasonable or contrary to the evidence’ pursuant to s 46(8) of the MRA. Be that as it might, the court would not defer to a decision of the DC if it was not in accordance with law and/or the established facts. The High Court held, inter alia (Devathasan at [32]-[34]), that the DC had exceeded the scope of the second charge in convicting Dr Devathasan. The High Court expressed its concern (Devathasan at [77]) that the DC“s failure to understand the nature of the charge against Dr Devathasan and the

evidence required to prove the same left much to be desired and commented that it was just as well that the MRA had been recently amended to allow the appointment of a legally trained person to sit as one of the members in the SMC“s disciplinary committees. The High Court believed that having a legally trained member as part of a DC would ensure due process and a fuller appreciation of the nature of the proceedings against alleged errant doctors.

Assessment of damages

8.9 In Teo Ai Ling v Koh Chai Kwang [2010] 2 SLR 1037, the High Court held (at [46]) that an appeal to a judge in chambers from a decision of the assistant registrar on an award of damages was not treated as an appellate court hearing an appeal from a decision of a trial judge. Instead, Steven Chong JC (as he then was) held that the appropriate level of damages were assessed de novo.

8.10 The basis upon which the Court of Appeal may review a High Court judge“s decision on an appeal from an assistant registrar“s award of damages was set out by the Court of Appeal in The ‘Asia Star’[2010] 2 SLR 1154 (‘Asia Star’). The Court of Appeal held (at [21]) that even though the Court of Appeal would give proper deference to an appellate decision of a High Court judge apropos an assistant registrar“s assessment of damages, the High Court judge would normally be in no better a position than the Court of Appeal when it came to evaluating the evidence. The Court of Appeal noted that in Asia Star, the High Court judge had drawn her own inferences from the documents tendered to the court, the affidavits filed by the respective parties and the notes of evidence of the hearing before the assistant registrar in determining whether the respondent had acted reasonably to mitigate its loss. The Court of Appeal stood in a similar position and could draw the appropriate inferences from the same record of proceedings.

Extension of time to serve notice of appeal

8.11 In Anwar Siraj v Ting Kang Chung John [2010] 1 SLR 1026 (‘Anwar Siraj’), the Court of Appeal allowed an application to strike out an appeal where the notice of appeal had been served out of time. The Court of Appeal held (Anwar Siraj at [21]-[24]) that the court had the inherent jurisdiction to strike out a notice of appeal filed or served out of time since an appeal only came into being when both the filing of the notice of appeal as well as its service were made within the prescribed time. The Court of Appeal further noted (Anwar Siraj at [26] and [27]) that, under O 57 r 17 of the RoC (above, para 8.1), the High Court had the power to extend time to file or serve a notice of appeal to the Court of Appeal out of time only if the application was made before

the expiration of the prescribed period and that any application made after the prescribed period had to be made to the Court of Appeal.

8.12 In determining whether the court ought to exercise its discretion to extend time, several factors ought to be taken into consideration: (a) the length of delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time for appealing was extended; and (d) the degree of prejudice to the would-be respondent if the application was granted. The significance of each factor had to depend on the facts and circumstances of each case and the overriding consideration was that the...