ALC v ALF
Jurisdiction | Singapore |
Judge | Crystal Tan Huiling AR |
Judgment Date | 11 August 2010 |
Neutral Citation | [2010] SGHC 231 |
Court | High Court (Singapore) |
Docket Number | Originating Summons No 747 of 2010/W |
Published date | 01 September 2010 |
Year | 2010 |
Hearing Date | 06 August 2010 |
Plaintiff Counsel | Andrew Yeo Khirn Hin and Loong Tse Chuan (Allen & Gledhill LLP) |
Defendant Counsel | Mohan Pillay and Daniel Tay (MPillay) |
Subject Matter | Civil Procedure,Arbitration,Evidence |
Citation | [2010] SGHC 231 |
This is an application by the plaintiff to revoke Subpoena No. 600018 of 2010 dated 16 July 2010(“the Subpoena”) issued against the plaintiff’s employee, Mr [XY]. As there does not appear to be any locally reported authorities dealing with the law of subpoenas issued in support of arbitration proceedings, I was of the view that it would be useful if I released my grounds on this matter. The application was heard before me on 6 August 2010 but as the first tranche of the arbitration hearing has been scheduled to begin on 16 August 2010, these grounds were written and made available to parties on an urgent basis. This case raises interesting issues on the interplay between competing evidentiary considerations and the role of the court in arbitration proceedings.
Background factsThe factual matrix can be stated within a reasonably brief compass.
The plaintiff is a statutory body while the defendant is a Singapore company carrying on the business of
On or about 1 October 2004, the parties entered into a contract under which the plaintiff engaged the defendant as the main contractor for a particular project (“the Contract”). Disputes arose subsequently between the parties under the Contract.
Clause 71 of the Conditions of Contract provides for the resolution of disputes to be determined by an arbitrator in accordance with the Arbitration Rules of the Singapore International Arbitration Centre. On or around 19 March 2009, the defendant commenced arbitration proceedings (“the Arbitration”) against the plaintiff by issuing a Notice of Arbitration. A sole arbitrator (“the Arbitrator”) was appointed in the case. On or around 19 June 2009, the defendant submitted its Statement of Case and on or around 29 July 2009, the plaintiff submitted its Statement of Defence and Counterclaim.
Following two procedural hearings on 18 August 2009 and 20 April 2010, the procedure for the Arbitration was decided on with directions made by the Arbitrator, with the consent of both parties. These directions were set out in Procedural Order No. 11. Paragraph 4.1(a) of Procedural Order No. 1 further states that the parties and the Arbitrator shall use
On 16 December 2009, the parties exchanged discovery. Both parties subsequently submitted Requests to Produce Documents to the other. After a contested hearing before the Arbitrator on 20 April 2010, the Arbitrator ordered both the plaintiff and the defendant to provide further discovery (“the Discovery Order”)3.
On 21 May 2010, 4 June 2010 and 6 July 2010, the plaintiff complied with the Discovery Order and submitted the Third, Fourth and Fifth Supplemental List of Documents respectively. However, the defendant was dissatisfied with the disclosure produced by the plaintiff and wrote to the Arbitrator in a lengthy 82-page letter on 7 June 20104, questioning the adequacy of the plaintiff’s disclosure in compliance with the Discovery Order. The defendant implored the Arbitrator to direct the plaintiff to procure sworn statements from
On 11 June 2010, the Arbitrator rejected the defendant’s request stating in plain terms:
I do not consider it appropriate to require sworn testimony regarding these issues. Should it later emerge that the [plaintiff] has failed to comply with my order, I will entertain submissions regarding the consequences of such non compliance, including submissions that it would be appropriate to draw adverse inferences in the circumstances.
No further application was made by the defendant to the Arbitrator in respect of the adequacy of the plaintiff’s disclosure.
The Subpoena More than a month after the Arbitrator’s ruling on the defendant’s request for sworn testimony in relation to the adequacy of the plaintiff’s disclosure, the defendant submitted a request to this Court for the issuance of the Subpoena against Mr [XY] on 16 July 2010. The Subpoena requires Mr [XY] to attend the arbitration hearing from 16 to 27 August 2010 to give evidence on matters relating to the
On 22 July 2010, the plaintiff filed an urgent application,
Order 38, rule 14 of the Rules of Court (Cap 332, r 5, 2006 Rev Ed) states that:
A few preliminary comments on the issuance of a subpoena bear mention. The issuance of a subpoena takes place upon the
Two separate legal regimes govern the conduct of arbitration in Singapore. Where the
This provides the arbitral tribunal with the High Court’s supportive powers so as to facilitate the arbitral proceedings. Order 69 rule 12 of the Rules of Court further makes it clear that the procedure for issuance of a subpoena in support of arbitration proceedings is governed by Order 38, rules 14 to 23 of the Rules of Court:
Order 38, Rules 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 shall apply, with the necessary modifications, in relation to the issue of a subpoena under section 30 of the [Arbitration] Act as they apply in relation to proceedings in the Court.
Parenthetically, the term ‘subpoena’ is derived from the Middle English
Since the advent of the Rules of Court in 1996, the rules have expressly empowered the court to revoke a subpoena on its own motion or on the application of any other person. It should be pointed out that while there may conceivably be numerous objections to the subpoena of a witness, the cases in this area can be broadly subsumed under two categories:
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BVU v BVX
...found above, or when the subpoena application is an abuse of process or where it has been issued for a collateral purpose: ALC v ALF [2010] SGHC 231 at [19]–[21]. I also find the subpoena to be an abuse of process. In my view, the Supplier is seeking to reopen the arbitrated dispute through......
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Case Note
...(2010) Art 1.1; International Bar Association Rules on the Taking of Evidence in International Arbitration (2020) Art 1.1; ALC v ALF [2010] SGHC 231 at [28], per Crystal Tan Huiling AR. 93 Gary B Born, International Commercial Arbitration (Kluwer Law International, 3rd Ed, 2020) at p 2,377.......