BNP Paribas SA v Jacob Agam and another

• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 05 October 2018
• Neutral Citation: [2018] SGCA(I) 7
• Citation: [2018] SGCA(I) 7
• Defendant Counsel: the respondents unrepresented and absent.
• Published date: 11 October 2018
• Hearing Date: 06 July 2018
• Plaintiff Counsel: Pillai K Muralidharan, Luo Qinghui, Andrea Tan (Rajah & Tann Singapore LLP)
• Docket Number: Civil Appeal No 224 of 2017 (Summons No 64 of 2018)
• Court: Court of Appeal (Singapore)
• Date: 05 October 2018
• Subject Matter: Deemed withdrawal,Litigants in person,Appeals,Service,Civil Procedure

David Edmond Neuberger IJ (delivering the judgment of the court): Introduction

This is an application for: (a) a declaration that an appeal be deemed to have been withdrawn pursuant to O 57 r 9(4) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) on account of the appellants’ failure to comply with their obligations under O 57 r 9(1) of the ROC concerning the filing and service of documents related to their appeal; and (b) ancillary relief in connection with the question of costs.

Apart from issues as to the interpretation and implementation of O 57 r 9 of the ROC, this application also raises issues concerning the proper service of documents and the degree of indulgence that should be shown to litigants in person as regards their compliance with procedural rules.

Facts The background

BNP Paribas SA (“the Bank”) is a private bank incorporated in France which conducts business in Singapore through a locally registered branch. It is: the substituted plaintiff in the suit below, viz, Singapore International Commercial Court (“SICC”) Suit No 2 of 2016 (“the Suit”), the respondent in the appeal against the outcome in the Suit, viz, Civil Appeal No 224 of 2017 (“the Appeal”), and the applicant in the present summons in the Appeal, viz, Summons No 64 of 2018 (“the Application”).

Mr Jacob Agam (“Mr Agam”) and Ms Ruth Agam (“Ms Agam”) are siblings and Israeli nationals. They were clients of the Bank’s former subsidiary company, BNP Paribas Wealth Management (“BNPWM”), which subsequently merged with the Bank.

In 2010, BNPWM advanced a total of approximately €61.7m (“the Loans”) to companies which were owned by Mr Agam and Ms Agam (“the Agams”). The Loans were secured by, amongst other things, personal guarantees executed by the Agams (“the Guarantees”).

On 27 November 2015, BNPWM commenced the Suit against the Agams in the Singapore High Court seeking the recovery of around €30m as unpaid sums pursuant to the Guarantees. The action was transferred to the SICC in April 2016.

In May 2016, the Agams filed an application to stay the Suit pending the determination of proceedings in France. The application was dismissed on 28 October 2016: see BNP Paribas Wealth Management v Jacob Agam and another [2017] 3 SLR 27. There was no appeal.

In October 2016, following a merger agreement between BNPWM and the Bank, the Bank applied to be substituted as plaintiff in the Suit. This application was allowed at first instance: see BNP Paribas Wealth Management v Jacob Agam and another [2017] 4 SLR 14. This decision was upheld on appeal: see Jacob Agam and another v BNP Paribas SA [2017] 2 SLR 1.

On 12 January 2017, a case management conference was conducted at which the trial of the Suit was fixed before the SICC for 10 days commencing on 7 August 2017. At that time, the Agams were represented by solicitors from the law firm, Hin Tat Augustine & Partners (“Hin Tat”), who had instructed Mr Cheong Yuen Hee (“Mr Cheong”) as counsel.

On 17 July 2017, the Agams filed an application to stay the Suit pending the determination of proceedings which had been commenced on or around 11 July 2017 by Ms Agam and others in Israel. The Agams instructed lawyers from another law firm, Legis Point LLC, to argue the stay application before the SICC.

On 24 July 2017, Hin Tat applied to be discharged as solicitors for the Agams. The supporting affidavit stated that Mr Cheong had also indicated that he would cease to act for the Agams.

On 26 July 2017, Steven Chong JA heard both the stay and discharge applications as a single judge of the SICC coram pursuant to O 110 r 53(1A) of the ROC on the basis that trial of the Suit was imminent. He dismissed the stay application, and granted the discharge application on certain conditions which were intended to protect the interests of the Agams.

The decision below

In August 2017, trial of the Suit proceeded before a three-judge coram of the SICC, comprising Chong JA, Roger Giles IJ, and Dominique Hascher IJ.

On 17 November 2017, written judgment of the court was delivered by Giles IJ in favour of the Bank: see BNP Paribas SA v Jacob Agam and another [2017] SGHC(I) 10 (“the Judgment”). The SICC’s principal conclusions were as follows (at [129]): the Agams were jointly and severally liable to pay the Bank a total of around €32.2m (inclusive of contractual interest) as at 10 August 2017, together with further interest until payment; Mr Agam’s counterclaim for damages and a declaration that he was discharged from all liabilities under the Guarantees was dismissed; and the Agams were jointly and severally liable to pay the Bank the costs of the action and of the counterclaim on an indemnity basis.

The Bank also provided an undertaking that it would give credit to the Agams for sums recovered from the realisation of other securities held in respect of the Loans and applied in reduction or repayment of those loans (see the Judgment at [128]).

Around three weeks later, the Agams filed a declaration dated 5 December 2017 in the Suit, asserting that “the case has no substantial connection with Singapore and is an offshore case” (“the Declaration”).

In response to the Declaration, on 24 January 2018, the Bank filed Summons No 5 of 2018 in the Suit for a declaration that the action was not or was no longer an offshore case, and consequently, that the Declaration ceased to have effect (“the Declaration Application”).

On 15 March 2018, Vivian Ramsey IJ heard the Declaration Application. He held that the Declaration was not a valid offshore case declaration under O 110 r 35 of the ROC, and that in any event the action was not an offshore case: see BNP Paribas SA v Jacob Agam and another [2018] 4 SLR 57. The Declaration Application was therefore allowed. There was no appeal.

Events relating to the Appeal

While the Declaration and the Declaration Application were being dealt with, the Agams concurrently instituted an appeal against the Judgment. The history of the Appeal is somewhat convoluted, and we will limit ourselves to the events which are relevant to the present Application.

On 7 December 2017, after receiving correspondence from the Agams indicating an intention to appeal against the Judgment, the legal registry of the Supreme Court of Singapore (“the Registry”) wrote a letter to the Agams stating that it was willing to assist them in the recording of the Notice of Appeal, “given that [they] are currently unrepresented and based overseas, and given also that the matter is time sensitive”. The offer was “subject strictly to the terms and limitations” [emphasis in original] specified in the letter, including that: e. The responsibility for filing all future documents in the appeal (including documents which you might statutorily be required to file under the [ROC] and other applicable legislation) will rest on you, and the SICC Registry will not be in a position to assist you in the recording of these other documents.

The letter provided the electronic links to the ROC and the SICC Practice Directions. The concluding paragraphs of the letter again stressed that “the responsibility for the filing of all future documents will rest solely with [the Agams] or [their] lawyers.”

The Registry’s letter was duly acknowledged by Mr Agam, who e-mailed the Registry on 8 December 2017 and stated that “[b]y now I believe my sister and I have fulfilled all of your court’s requirements as indicated in your letter. Please confirm whether our appeal have been duly filed.”

On 13 December 2017, the Registry confirmed that it had recorded the Notice of Appeal against the Judgment in the court’s electronic filing system.

On 30 January 2018, the Registry sent a notice to the Agams (copied to the Bank) pursuant to O 57 r 5(2) of the ROC stating that the Record of Proceedings was available for collection. This notice is a standard document issued for all appeals in the Supreme Court. The notice expressly identified the obligations with which the parties to an appeal are required to comply and the consequences of non-compliance: 3 As regards the filing, tendering and service of appeal documents, all parties are to comply with the requirements set out in Order 57 of the [ROC] and Part XI of the Supreme Court Practice Directions. A non-exhaustive reference of the relevant requirements are set out in Annex A, attached hereto. … 4 The time for the Appellant to file the documents stated in Order 57 Rule 9(1) shall run from the date of this notification. Please note that, if the Appellant fails to comply with Order 57 Rule 9(1) of the [ROC], the appeal shall be deemed to have been withdrawn under Order 57 Rule 9(4).

[emphasis in original]

Annex A, which was referred to in the letter, elaborated on the format, page limit, and method of submission of documents relating to an appeal, including the Appellant’s Case, the Core Bundle, and the Record of Appeal (collectively, “the Appeal Documents”).

In February 2018, the Agams requested the Registry’s assistance to put an affidavit that they had filed in the Declaration Application before the Court of Appeal. The Registry declined to do so, citing the salient parts of its letter dated 7 December 2017, which stated that the responsibility for the filing of future documents in the Appeal rested on the Agams as the appellants (see [20] above). Mr Agam replied, on behalf of Ms Agam as well as himself, stating that: (a) the Registry’s decision deprived them of their fundamental rights to due process and representation; and (b) no law firm was willing to represent them because the argument of partiality which they wished to raise against the lower court would open the law firm to the possibility of criminal prosecution.

On 6 March 2018, Mr Agam sent the Registry an e-mail on behalf of himself and his sister, marked for the attention of Ramsey IJ (who heard the Declaration Application),...