AUTOMATIC DISCONTINUANCE UNDER ORDER 21 RULE 2 — FIRST DORMANT, THEN DEAD…

• Date: 01 December 2001
• Published date: 01 December 2001

1. INTRODUCTION

A. The Automatic Discontinuance Provision

Amendments have recently been made to Order 21 Rule 2 of the Rules of Court (by way of Section 4 of the Rules of Court (Amendment No. 2) Rules 1999, and subsequently, by way of Section 3 of the Rules of Court (Amendment) Rules 2000). Under the amended Rules, suits where a year has elapsed since the last step or proceeding (“the year long period”) will be deemed to have been discontinued (“the automatic discontinuance provision”) (Refer to Annex A for the full text of the automatic discontinuance provision). However, the court will retain the discretion to reinstate suits which have been automatically discontinued, if it is in the interests of justice to do so. Under the transitional provision (Order 21 Rule 2(7)), the first suits to be automatically discontinued under the amended Order 21 Rule 2 would only be discontinued after 1 January 2001. Thus, the first applications for automatically discontinued suits to be reinstated would only be heard after this date. In the circumstances, there is, at present, little case-law on the workings of the automatic discontinuance provision.

B. Issues Arising

Numerous substantive and procedural issues arise out of this provision. For example: Will the court reject any application filed in respect of an automatically discontinued suit, or must the other party apply to strike out that application on the grounds that the suit has been automatically discontinued? What constitutes “any step or proceeding … that appears from records maintained by the Court”? Will automatic discontinuance still be the consequence of year-long inaction if there is an order of court staying a particular suit, which is lifted before the year-long period has expired? What are the situations in which the court will reinstate an automatically discontinued suit?

This article will explore the various substantive and procedural issues which may arise in connection with the automatic discontinuance provision. It will also discuss the rationale of this provision. In this regard, it will address the question of whether the operation of this provision is still necessary in a situation where both parties to a suit are content to let it lie dormant. It should be noted that the approach taken to dormant suits under our automatic discontinuance provision is unique. The amendments to Order 21 Rule 2 were not directly based on the rules of any other jurisdiction. (Refer to Annex B for a brief outline of the

approaches taken in two other Commonwealth jurisdictions, England and South Australia, in dealing with the problem of dormant suits.)

2. RATIONALE FOR AUTOMATIC DISCONTINUANCE

A. Dormant Suits—Court Powerless in the Past

In the past, suits were often left hanging over a defendant’s head for years, totally inactive, yet still “alive” in the court records, and theoretically able to be revived at any time. If the defendant had not been served with a writ, he could apply under Order 12 Rule 8 of the Rules of Court for the plaintiff to either serve the writ, or discontinue the action. If the plaintiff failed to do either, the defendant could apply to have the suit dismissed. However, the defendant’s only recourse in a case where the writ had already been served was to apply for dismissal of the suit for want of prosecution—a remedy which was seldom granted. (Refer Section 8B below.) It is noteworthy that the court itself had no powers to bring closure to such situations, if both parties maintained a course of silence and inaction. This powerlessness of the court is well illustrated by the then Order 3 Rule 5 (as set out in Annex A herein), which emphasised the fact that a plaintiff who allowed his action to lie dormant for over a year could proceed with it—if he gave notice to the defendant first.

B. Case Management by the Court—The New Approach to Dormant Suits

In the course of the last decade, there has been a major shift in the judicial approach towards the control of litigation proceedings, not only in Singapore, but in other parts of the Commonwealth. The emphasis is now on expedition, economy, and the avoidance of delay in litigation. Disputes will no longer be allowed to drag on for years. Towards this end, the courts in Singapore have adopted the practice of case management. Each case is monitored, and if necessary, the court will intervene to ensure that it proceeds expeditiously. If every action has an indefinite life span from the time it is commenced, and if the court is to adhere conscientiously to its case management philosophy, the burden will continually be on the court to conduct case management exercises (such as pre-trial conferences) in order to monitor dormant suits and to find out why they have become dormant.1 This is arguably an unnecessary and inefficient use of judicial resources. It seems that the court has now found a solution—in the form of the automatic discontinuance provision—to the problem of having to adhere to its case management philosophy on the one hand, and having to husband scarce judicial resources in doing

so, on the other. Under the automatic discontinuance regime, no action will have an indefinite life span. Therefore the court’s burden in conducting case management exercises for any one case will be for a finite time-period.

C. Introduction of Automatic Discontinuance for All Suits

The concept of automatic discontinuance was first introduced into the Rules of Court by way of Section 4 of the Rules of Court (Amendment No. 2) Rules, 1997, which took effect from 1 September 1998. This automatic discontinuance provision operated in an indirect manner, however. The amended rules provided that if the plaintiff failed to file a memorandum of service under certain conditions, then his suit was deemed to have been discontinued. Thus, the court was empowered to deal with dormant suits (in certain situations) without having to expend judicial resources in monitoring the progress of such suits:

“The purpose of Order 21 rules 2(5) and (6) [before they were amended under the Rules of Court (Amendment No. 2) Rules 1999] was to ensure that the registry is aware of the status of proceedings where a writ is served and no further steps have been taken. Previously, if the defendant failed to enter an appearance, and the plaintiff did not enter judgment in default, the registry would not have been in a position to ascertain whether the action was still current and active. It would have had to take the initiative by corresponding with the parties or summoning them to attend a pre-trial conference.”2 (Emphasis added.)

Under this automatic discontinuance provision, the onus was placed on the plaintiff himself to take steps in the matter—the consequence of not doing so was that the action was terminated. However, this automatic discontinuance provision only covered the narrow situation where:

1. (a) the memorandum of service was not filed in respect of the service of the writ on that defendant within 12 months after the validity of the writ for the purpose of service had expired; and

2. (b) within that period a memorandum of appearance had not been filed in the action by that defendant; and

3. (c) judgment had not been obtained in the action against that defendant in respect of the whole or any part of the relief claimed against that defendant in the action.

(Refer to Annex A for the full text of the amended rules, added in by virtue of Section 4 of the Rules of Court (Amendment No. 2) Rules 1997.)

The new Order 21 Rule 2 (as amended by the Rules of Court (Amendment No. 2) Rules 1999 and subsequently amended by the Rules of Court (Amendment) Rules 2000) extends the automatic discontinuance provision to ALL matters which have been dormant for over a year. It applies whenever there is “an action, a cause or a matter” (Order 21 rule 2(6)), whereas the previous automatic discontinuance provision covered only actions begun by writ. “An action, a cause or a matter” would include suits begun by originating summons, petitions, and motions.3 Interestingly, family proceedings under the Women’s Charter would also be covered by the automatic discontinuance provision. (Refer to Section 4B (the paragraph entitled Interlocutory Judgments, Decrees Nisi) herein for a short discussion on the impact of the automatic discontinuance provision on divorce proceedings.) The automatic discontinuance provision is therefore a powerful and sweeping case management tool for the court. It puts the onus on the parties in ALL matters to take the necessary steps to keep their actions current and active—without judicial resources having to be expended in monitoring dormant suits indefinitely.

D. Necessity for Case Management, and Necessity for Automatic Discontinuance Provision

It may be argued, however, that if all parties to a suit are content with letting it lie dormant, court resources would not be taken up if the court itself did not insist on monitoring dormant suits. If the court did not so insist, then there would be no necessity for the automatic discontinuance provision. It is submitted that this view is incorrect. The rationale for having constant case management by the court, in order to prevent suits becoming dormant, has been concisely explained by Lord Woolf in Grovit v. Doctor4 (also see Arbuthnot Latham Bank Ltd, below):

“The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process…”

Allowing a suit to lie dormant for a year strongly suggests that the plaintiff has no intention to bring it to a conclusion, and that the action was commenced merely as a threat to the other party, in order to obtain

leverage against him in a dispute, rather than with the intention of obtaining a court decision to resolve the dispute. This is an abuse of the court process, as it detracts from the dignity...