Autobahn Motors (S) Pte Ltd v Certis Cisco Security Pte Ltd

• Jurisdiction: Singapore
• Judge: Vince Gui
• Judgment Date: 13 March 2024
• Neutral Citation: [2024] SGDC 61
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 80 of 2020, District Court Summons No. 2619 of 2023
• Hearing Date: 16 February 2024
• Citation: [2024] SGDC 61
• Year: 2024
• Plaintiff Counsel: Wong Siew Hong and Kuek Kai Liang (Eldan Law LLP)
• Defendant Counsel: Anthony Wee and Nur Liyana Binte Kamaludin (Titanium Law LLC)
• Subject Matter: Civil Procedure,Discontinuance,Automatic Discontinuance,Application to reinstate matter
• Published date: 21 March 2024

Deputy Registrar Vince Gui: Introduction

This is the Plaintiff’s application to reinstate the present action which was automatically discontinued due to a year of inactivity. The law on such applications is clear — the applicant must demonstrate exceptional circumstances to justify the reinstatement. After deliberation, I found nothing exceptional that justified reinstating the action. If there was anything exceptional, it would be that the Plaintiff’s and its solicitors’ conduct of the claim was exceptionally tardy. At the end of the hearing, I dismissed the application with brief oral grounds.¹ The Plaintiff has since filed an appeal against my decision.² In light of the appeal, I now explain my decision in greater detail.

Background facts

The Plaintiff commenced the present action on 8 January 2020 and entered interlocutory judgment on 5 August 2020.

I detail the procedural history of this action at Annex A. For now, let us zoom in on the final step taken by the Plaintiff before the action went dormant for a year.

The final step of the proceedings before the action became discontinued was when the Plaintiff wrote to the court on 7 October 2022, requesting the timelines for the assessment of damages be put on hold while parties attempt settlement (the “Trigger Date”).³ The court refused the request and invited parties to file a consent summons if they wanted to extend the timelines. The Plaintiff did not pursue the matter.

I should add that shortly afterwards on 1 November 2022, the Defendant wrote to the Plaintiff turning down its settlement offer and proposing a counteroffer.⁴ The Plaintiff did not respond to this.

As the Plaintiff failed to take any further action in the proceedings for a year, the suit became automatically discontinued on 7 October 2023 by reason of O 21 r 2(6) of the Rules of Court 2014. The last date on which the Plaintiff had to take a step in the proceedings to keep it alive was 6 October 2023 (the “Guillotine Date”).

After the action became discontinued, the Defendant’s insurer, on its solicitors’ advice, withdrew its earlier settlement offer by an email dated 15 October 2023.⁵ The Defendant’s withdrawal email alerted the Plaintiff’s solicitors that the action had been discontinued. 12 days later, the Plaintiff and its solicitors took out the present application to reinstate the action pursuant to O 21 r 2(8) of the Rules of Court 2014.

Parties’ submissions The Plaintiff’s submissions

The Plaintiff’s solicitors explained that they had inadvertently lost sight of the case amidst their heavy workload.⁶ They explained that the solicitor having primary conduct of the matter, Mr Kuek Kai Liang (“Mr Kuek”) was unaware of the automatic discontinuance provision.⁷ They detailed the various cases that Mr Kuek had been occupied with in the one-year period,⁸ including trials which they described as complex.⁹

The Plaintiff submitted that the action should be reinstated because the Plaintiff had conducted the case expeditiously prior to the Trigger Date.¹⁰

The Plaintiff further submitted that its inaction after the Trigger Date is excusable because of Mr Kuek’s “unfamiliarity” with the automatic discontinuance provision. It emphasis that Mr Kuek immediately rectified his error by filing the present application shortly after realising the action was discontinued.¹¹

The Plaintiff submitted that the facts of the present case are “not ordinary”. It emphasised that Mr Kuek was involved in five trials during the one-year period, four of which were with a senior lawyer of the Plaintiff’s solicitors, Mr Wong Siew Hong (“Mr Wong”), who was the other solicitor having conduct of this case.¹²

The Defendant’s submissions

The Defendant’s insurer, who conducted the defence on the Defendant’s behalf, submitted that the Plaintiff failed to conduct the case expeditiously prior to the Trigger Date. The present case was the third time that the Plaintiff has had its case discontinued. The Plaintiff had previously sued the Defendant in DC/DC 2504/2015 in respect of the same accident, but that case was automatically discontinued due to the Plaintiff’s inaction. This prompted the Plaintiff to file a fresh lawsuit against the Defendant in the present case.¹³

In the present case, the Defendant’s insurer submitted that the Plaintiff was not concerned with expediting the case as more than two years had lapsed since parties entered consent interlocutory judgment. Further, the reasons given by the Plaintiff’s solicitors would easily apply to any litigant’s solicitors and thus do not qualify as good reasons.

On the issue of prejudice, the Defendant’s insurer said it had released its reserve on the claim. The accident took place nine years ago on 16 November 2014. The limitation period had lapsed in November 2020. The Defendant’s insurer had been advised to release its reserve held in respect of the accident and would thus prejudice its bottom-lines for 2022 and 2023.¹⁴

Discussion

The legal principles governing reinstatement applications are outlined in the leading case of Moguntia-Est Epices SA v Sea-Hawk Freight Pte Ltd [2003] 4 SLR(R) 429 (“Moguntia”). The court held that reinstatement applications should be carefully scrutinised and that granting such application should be “the exception rather than the rule”. The rationale for this is the need to uphold its rigorous case management and the policy of ensuring litigation is carried on with despatch and efficiency. These policies should not be “undermined by being indulgent towards dilatory parties”. It is only in “rare situations” that the court would exercise discretion to reinstate the action (at [21]). The burden is on the applicant to demonstrate “exceptional circumstances” to justify the reinstatement (at [22]).

How does the court determine whether a case qualifies as a “rare situation” or “exceptional circumstances”? The court in Moguntia laid down three guidelines: Has the plaintiff satisfied the court that he is innocent of any significant failure to conduct the case with expedition prior to the trigger date having regard to the particular features of the case. If he has not, then reinstatement should be refused; Has he satisfied the court that in all the circumstances his failure to take any step in the action since the trigger date (and this would include his failure to apply for an extension of time) is excusable, i.e., should be forgiven? If he has not, then again reinstatement should be refused; Has the plaintiff satisfied the court that the balance of justice indicates that the action should be reinstated? If not, once again reinstatement should be refused.

I will refer to these as the “Moguntia Guidelines”. It is not disputed that the Moguntia Guidelines operate conjunctively and indeed courts have repeatedly held that to be the case. In other words, the Plaintiff must satisfy all three stages to justify a reinstatement.

I should also state at the outset that it is undisputed that the automatic discontinuance rule continues to apply after interlocutory judgment (Tan Kim Seng v Ibrahim Victor Adam [2004] 1 SLR(R) 181 (“Tan Kim Seng”) at [15]). An interlocutory judgment does not dispose of the claim. The Plaintiff remains duty-bound to bring the action towards completion.

Dilatory conduct before the Trigger Date

The Plaintiff was already dragging its feet even before it took the final step in the proceedings. After parties entered consent interlocutory judgment in August 2020, the case was practically at a standstill for around two years. After entering interlocutory judgment, the action lay dormant for about six months. The Plaintiff only took the next step by filing a request for Court Dispute Resolution (“CDR”) on 19 February 2021. The Plaintiff did not account for this period of delay on affidavit. The court issued directions and timelines for assessment of damages in March 2021. The Plaintiff failed to comply with these directions. The action went dormant again for about nine months, a duration significant enough that a few months more would have led to automatic discontinuation. The Plaintiff sought an extension of the timelines in December 2021.¹⁵ In his supporting affidavit, Mr Wong said amongst others that he “lost sight of this matter” as he was busy.¹⁶ The court granted fresh timelines in December 2021. Once again, the Plaintiff did not comply with the extended timelines. A further six months passed before the Plaintiff filed another extension of time application.¹⁷ The six-month delay was once again not explained on affidavit. But the court nevertheless issued fresh timelines on 7 June 2022. Apart from filing a list of documents three days past the deadline of 21 June 2022, the Plaintiff failed to comply with the court’s directions to file witness statements, which was the next required step to prepare the matter for assessment of damages. The Plaintiff went quiet again. It was only three months or so later that the Plaintiff wrote to the court on 7 October 2022 requesting to put the timelines on hold pending settlement negotiations, which was refused by the court. The Plaintiff then went quiet for more than a year resulting in the action becoming automatically discontinued.

In sum, the only significant step the Plaintiff took in the two-year period after obtaining interlocutory judgment was to file a list of documents — which came almost two years later. And even then, that list of documents virtually mirrored the one that the Plaintiff had already filed way back on 15 July 2020. In other words, the Plaintiff was giving discovery of documents that it had already disclosed. In the intervening period, the matter repeatedly went dormant. Every few months or so, the Plaintiff would resurface to seek an extension of time but would fail to comply with the extended timelines. As detailed above, the Plaintiff was inactive for large swathes of time: six...