ALC v ALF

JurisdictionSingapore
JudgeCrystal Tan Huiling AR
Judgment Date11 August 2010
Neutral Citation[2010] SGHC 231
CourtHigh Court (Singapore)
Docket NumberOriginating Summons No 747 of 2010/W
Published date01 September 2010
Year2010
Hearing Date06 August 2010
Plaintiff CounselAndrew Yeo Khirn Hin and Loong Tse Chuan (Allen & Gledhill LLP)
Defendant CounselMohan Pillay and Daniel Tay (MPillay)
Subject MatterCivil Procedure,Arbitration,Evidence
Citation[2010] SGHC 231
Crystal Tan Huiling AR: Introduction

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 facts

The 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 inter alia, mixed construction activities.

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 inter alia, the International Bar Association (“IBA”) Rules on the Taking of Evidence in International Commercial Arbitration (1 June 1999 Edition)2(“IBA Rules”) as a guideline on procedural matters. The Procedural Order provides that: The parties were to provide to the other all documents on which they rely to support their respective cases by 16 December 2009, If either party was not satisfied with the discovery provided by the other party, the dissatisfied party could submit to the Arbitrator, by 18 February 2010, a Request to Produce Documents to obtain additional discovery from the other party.

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 inter alia, Mr [[XY]]. On 10 June 2010, the plaintiff’s solicitors responded to the defendant’s request, declining to do so.

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 adequacy of the plaintiff’s disclosure. The basis of the Subpoena is that Mr [XY] was named in an order for specific discovery made against the plaintiff. I should point out at this juncture that first, no evidence has been sought by the defendant from Mr [XY] in respect of the substantive issues in dispute between the parties; and second, the evidence sought from Mr [XY] was the subject of the defendant’s request to the Arbitrator in their letter of 7 June 2010, which the Arbitrator has responded to and flatly denied.

On 22 July 2010, the plaintiff filed an urgent application, viz, Originating Summons No 747 of 2010 to set aside the Subpoena.

Law on Subpoenas

Order 38, rule 14 of the Rules of Court (Cap 332, r 5, 2006 Rev Ed) states that: A subpoena must be in Form 67, 68 or 69, whichever is appropriate. Issue of a subpoena takes place upon its being sealed by an officer of the Registry. Before a subpoena is issued, a Request in Form 70 for the issue of the subpoena must be filed in the Registry; and the Request must contain the name and address of the party issuing the subpoena, if he is acting in person, or the name of the firm and business address of that party’s solicitor. The Registrar may, in any case, revoke a subpoena upon application by any person or on his own motion. Any party who is dissatisfied with any decision of the Registrar made under this Rule may apply to a Judge of the High Court or a District Judge, as the case may be, for a review of that decision. An application under this Rule shall be made by summons supported by an affidavit, within 14 days of that decision.

A few preliminary comments on the issuance of a subpoena bear mention. The issuance of a subpoena takes place upon the administrative act of the subpoena being sealed by an officer of the Registry (O 38 r 14(2)). Personal service of the subpoena is necessary (O 38 r 18(1)) though substituted service may be ordered. The subpoena must be served within 12 weeks of its issue and within a reasonable time before the attendance of the witness is required.

Two separate legal regimes govern the conduct of arbitration in Singapore. Where the situs of arbitration is Singapore, the Arbitration Act (Cap 10, 2002 Rev Ed) (“the Arbitration Act”) or the International Arbitration Act (Cap 143A, 2002 Rev Ed) will regulate the conduct of the arbitral proceedings. It was undisputed between both parties that this was a domestic arbitration for which they had agreed under Clause 72 of the Conditions of Contract that the provisions of the Arbitration Act would apply. Pursuant to Section 30 of the Arbitration Act, subpoenas may be issued to compel the attendance of a witness before an arbitral tribunal: Any party to an arbitration agreement may take out a subpoena to testify or a subpoena to produce documents. The Court may order that a subpoena to testify or a subpoena to produce documents shall be issued to compel the attendance before an arbitral tribunal of a witness wherever he may be within Singapore. The Court may also issue an order under section 38 of the Prisons Act (Cap 247) to bring up a prisoner for examination before an arbitral tribunal. No person shall be compelled under any such subpoena to produce any document which he could not be compelled to produce on the trial of an action.

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 suppena and the Latin phrase sub poena meaning “under penalty”. Though the issuance of a subpoena may appear to be administrative in nature, the subpoena process per se is not to be regarded lightly as it is the mechanism by which witnesses are made to attend a trial for the purposes of giving evidence (subpoena ad testificandum) and/or producing documents (subpoena duces tecum), which could inevitably lend a very different complexion to either party’s case. The coercive force of its power derives from the very consequences of non-compliance.

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: width and improper purpose. Turning to the first category of width, a possible objection to a subpoena is that it is too wide if it imposes an unduly onerous obligation upon a person to...

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1 cases
  • BVU v BVX
    • Singapore
    • High Court (Singapore)
    • 13 March 2019
    ...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......
1 books & journal articles
  • Case Note
    • Singapore
    • Singapore Academy of Law Journal No. 2022, March 2022
    • 1 March 2022
    ...(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.......

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