Alliance Management SA v Pendleton Lane P and Another and Another Suit

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 03 June 2008
• Neutral Citation: [2008] SGHC 76
• Court: High Court (Singapore)
• Published date: 10 June 2008
• Year: 2008
• Plaintiff Counsel: Cavinder Bull SC, Tan Hee Joek and Woo Shu Yan (Drew & Napier LLC)
• Defendant Counsel: Chandra Mohan with Alvin Chang, Intekhab Ahmad Khan and Jean Ang (M & A Law Corporation)
• Subject Matter: Civil Procedure,Striking out,Principles governing court's exercise of discretion,Defendants deliberately and persistently failing to comply with court orders,Whether striking out of defence justified,Evidence,Proof of evidence,Inspection,Order for inspection of electronic documents,Whether producing computer printouts without producing original hard disk sufficient,Whether alleged clone of original hard disk acceptable substitute,Section 35(1)(a) Evidence Act (Cap 97, 1997 Rev Ed)
• Citation: [2008] SGHC 76

3 June 2008

Belinda Ang Saw Ean J:

1 This application made by way of Summons No 5420 of 2007 was brought by the plaintiff, Alliance Management S.A., to strike out the Defence (Amendment No 1) filed on 11 August 2006 in Suit No 511 of 2005 for, inter alia, non-compliance with several court orders to produce and return to the Judicial Managers of Orient Telecommunications Networks Pte Ltd (“OTN”) the original hard disk of the Dell laptop bearing service tag number DDXN21S (“the Hard Disk”). According to the plaintiff, this failure to produce and return the Hard Disk had also resulted in non-compliance with several other court orders relating to the disclosure and production for inspection of electronic documents stored in the Hard Disk. Summons No 5418 of 2007 filed in Suit No 522 of 2005 is a similar application and, in the interest of expediency and for saving time and costs, the parties thereto agreed between themselves to follow and abide by the outcome of Summons No 5420 of 2007.

The procedural background

2 Essentially, the first defendant, Lane P Pendleton (“LPP”), and the second defendant, Newfirst Limited, were ordered to produce and return by a stipulated date (which date was from time to time extended) the Hard Disk to the Judicial Managers of OTN. Its return was, inter alia, to facilitate discovery and production for inspection of some electronic documents stored in the Hard Disk. The history of how the Order of Court dated 28 March 2007 came to be made is reported at [2007] 4 SLR 343. Suffice it to say that for present purposes, the Assistant Registrar, Ms Ang Ching Pin, concluded that the production and inspection of the Hard Disk was necessary for a fair disposal of the cause or matter in this action or for saving costs. I agreed with the conclusions of the Assistant Registrar, and her decision of 24 November 2006 was upheld on 28 March 2007 with appropriate safeguards added to it. In context, it is necessary to bear in mind that an order for the inspection of documents under O 24 r 13 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) is predicated upon the court being satisfied on the evidence that the Hard Disk was and remained in the possession, custody or power of LPP. The defendants duly appealed against my decision on 19 April 2007. The Court of Appeal affirmed my decision on 15 November 2007. For convenience, I shall refer to both the Order of 28 March 2007 and the decision of the Court of Appeal as “the Hard Disk order”.

3 Following the dismissal of the defendants’ appeal to the Court of Appeal, the plaintiff’s solicitors, Drew & Napier LLC, on 19 November 2007 duly demanded the production and return of the Hard Disk to the Judicial Managers by 3 December 2007. In reply, M & A Law Corporation as solicitors for the defendants adopted on 3 December 2007 the same position that was taken earlier on to resist the making of the Hard Disk order. They maintained that the defendants’ inability to comply with the Hard Disk order was because LPP did not have the Hard Disk as was the defendants’ case all along. In pointing out that the Court of Appeal had rejected the very same claim in its dismissal of the defendants’ appeal, Drew & Napier LLC, as to be expected, denounced the defendants’ bald excuse in their letter of 5 December 2007. The upshot of the exchanges of correspondence was that the defendants took no steps to comply with the Hard Disk order. They were certainly under no illusion as to the consequences to which they were exposing themselves. This led to the plaintiff’s present application to strike out the defence.

Principles relevant to Order 24 r 16(1)

4 Order 24 r 16(1) of the Rules of Court clearly deals with the failure to comply with a requirement of discovery or the production of any document for inspection. It provides as follows:

(1) If any party who is required by any Rule in this Order, or by any order made thereunder, to make discovery of documents or to produce any document for the purpose of inspection or any other purpose, fails to comply with any provision of the rules in this Order, or with any order made thereunder, or both, as the case may be then, without prejudice to Rule 11(1), in the case of a failure to comply with any such provision, the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.

5 Counsel for the plaintiff, Mr Cavinder Bull SC, referred me to the commentary to that rule in Singapore Court Practice 2006 (Jeffrey Pinsler LexisNexis, 2006), para 24/16/2 at 304 which identifed four instances in which the court may in the exercise of its discretion strike out the pleadings for non-compliance with the Rules of Court or orders of court. They are:

(i) The defaulting party has deliberately or wilfully failed to comply with an “unless order” (see SMS v Power & Energy [1996] 1 SLR 767 at 772).

(ii) The defaulting party has failed to comply with successive non-peremptory orders for discovery so that the default is clearly contumacious (see Soh Lup Chee v Seow Boon Cheng & Anor [2002] 2 SLR 267 (“Soh Lup Chee”).

(iii) The consequence of the failure to comply with a rule of court or order requiring discovery is such that there is a serious or real risk that a fair trial may no longer be possible.

(iv) The failure to comply with a rule of court or order requiring discovery is due to the deliberate suppression of evidence which justifies a striking out of the pleadings even where a fair trial was still possible.

6 I ought at this stage to say that these instances of striking out were in circumstances involving (i) procedural abuse or questionable tactics; (ii) peremptory orders where the basis of the failure to comply with a peremptory order was contumacious; and (iii) repeated and persistent defaults of the rules of court or non-peremptory orders amounting to contumacious conduct. At the opposite end of the spectrum of seriousness are cases of ordinary procedural defaults of a technical complexion that are unlikely to give rise to the exercise of this discretionary power to strike out. As one would expect, the circumstances in which a court may be asked to strike out the pleadings under the Rules of Court are infinitely varied and distinctly fact-sensitive. Consequently, each decided case should be cited upon its own facts and own merits based on the underlying principle that parties must get on with their case, and that the Rules of Court (which contain prescribed time limits) and orders of court are there to facilitate the progress of the case to trial. The proper administration of justice proceeds on the basis that the Rules of Court or orders of court would be observed. At the core of this principle of obeying court orders is the public interest in the administration of justice, including the dispatch of litigation as expeditiously as justice allows. Thus, the discretion given to the court in O 24 r 16(1) and others like O 19 r 1, O 25 r 1(4), O 28 r 10, O 34 r 2(2) and 34A r 1(2) reflect this principle.

7 Undoubtedly, the power to strike out under O 24 r 16(1) is a powerful tool in the court’s case management armoury. The effect of the striking out for procedural defaults is to preclude a trial on the merits of either the claim or defence, as the case may be. This notion of access to the court leads me to the second principle that a party should not in the ordinary way be denied adjudication of his claim or defence on its merits because of procedural defaults such as non-compliance with the Rules of Court or orders of court as to the time by which a particular step or matter is to be taken or done unless the default causes prejudice to his opponents for which an award of costs cannot compensate. The second principle is reflected in the general discretion to extend time under O 3 r 4 in accordance with the dictates of justice in the particular case (see Costellow v Somerset County Council [1993] 1 All ER 952, approved and followed by the Court of Appeal in The Tokai Maru [1998] 3 SLR 105). The interplay of the two principles is usually resolved in favour of one principle over the other in accordance with the dictates of justice based on the facts and merits of the particular case.

8 In relation to the present application, the starting point is O 24 r 16 (1) which is designed to secure compliance with the Rules of Court and orders of court relating to discovery, and not to punish a party for not having complied with them within the time limited for the purpose (per Stamp LJ in Husband’s of Marchwood Ltd v Drummond Walker Developments Ltd [1975] 1 WLR 603 at 606). Of particular relevance to this proposition are the observations of Millett J in Logicrose Ltd v Southend United Football Club Ltd (1988) Times, 5 March (“Logicrose”) that striking out a claim or defence, as the case may be, might not be an appropriate order to make in the exercise of discretion if the objective could be ultimately accomplished. This was so even where non-compliance with the orders amounted to contempt for or defiance of the court. There is O 24 r 16(2) which preserves the liability for committal against the party in contempt. Returning to Millett J’s observations, the objective of discovery could be accomplished when the breach was remedied by a late production of a document which had previously been withheld. Equally, the objective of the Rules of Court or orders of court as to discovery might still be ultimately achieved where, for example, a substitute of the document ordered to be produced for inspection exists in a verifiable alternative form. I shall elaborate on this later.

9 That said I am mindful that there could be situations where a defaulting party’s conduct demonstrates that his total disregard of the Rules of Court or orders of court was such that it could properly be viewed as contumelious...