Bradley Lomas Electrolok Ltd and Another v Colt Ventilation East Asia Pte Ltd and Others

JurisdictionSingapore
Judgment Date29 December 1999
Date29 December 1999
Docket NumberCivil Appeal No 58 of 1999
CourtCourt of Appeal (Singapore)
Bradley Lomas Electrolok Ltd and another
Plaintiff
and
Colt Ventilation East Asia Pte Ltd and others
Defendant

[1999] SGCA 89

L P Thean JA

and

Chao Hick Tin JA

Civil Appeal No 58 of 1999

Court of Appeal

Civil Procedure–Service–Service of process out of jurisdiction–Appropriate standard of proof–Two-part test–Joint tortfeasors sued–Whether common design among joint tortfeasors–Whether party rightly joined as tortfeasor–Order 11 r 1 (f) (i) Rules of Court (Cap 322, R 5, 1997 Rev Ed)

The two appellants were companies incorporated in the UK and were proprietors of a patent (“the patent”) which related to smoke and fire screens and curtains. The respondents, Colt VEA, Colt Intl and CG Ltd were companies within the Colt group of companies. Colt VEA was incorporated in Singapore, while Colt Intl and CG Ltd were incorporated in the UK.

The appellants commenced a writ action against Colt VEA for infringement of the patent by a certain Colt product which was being sold in Singapore by Colt VEA. Colt VEA filed a defence and counterclaim denying any infringement and alleging that the patent was invalid and should be revoked. Some time later, the appellants obtained a court order to add Colt Intl and CG Ltd as defendants to the action, and to serve the writ out of jurisdiction on the two new defendants. After being served with the writ, Colt Intl and CG Ltd applied to set aside the court order on the ground that they should not be made parties to the action. The application was dismissed by the senior assistant registrar. On appeal, the judge held that Colt Intl was properly made a defendant but not CG Ltd. The appellants appealed against that part of the decision setting aside the service of writ on CG Ltd.

Two main issues were raised on the appeal: (a) what was the required standard of proof that a plaintiff must meet before the court would exercise its discretion under O 11 to permit service out of jurisdiction; and (b) whether the appellants tendered sufficient evidence of the requisite standard, to enable the court to infer that there was a common design among Colt VEA, Colt Intl and CG Ltd, as joint tortfeasors.

Held, dismissing the appeal:

(1) In order to establish jurisdiction under O 11 r 1 of the Rules of Court, a plaintiff must satisfy the test of “a good arguable case” that the case fell within one of the limbs mentioned in r 1. Once the jurisdiction requirement was met, the plaintiff must then show on the evidence that there was “a serious question to be tried” on the merits of the claim: at [19].

(2) To establish jurisdiction under limb O 11 r 1 (f) (i) in particular, a plaintiff must satisfy the court to the standard of a “good arguable case” of (a) the existence of his cause of action in tort, and (b) of the commission of a constituent act or omission in Singapore by the intended defendant who was outside Singapore. Having satisfied that burden, it was not necessary to go into the question of a “serious question to be tried” on the merits as this would have been proved once the higher standard of proof required to establish jurisdiction was satisfied: at [19].

(3) However, it should be noted that for some other limbs in r 1, the evidence required to satisfy the jurisdictional issue might not touch on the merits of the claim and in such cases, the plaintiff would still need to establish that there was a serious question to be tried on the merits: at [20].

(4) In the present case, the appellants must show participation by CG Ltd in the tort by way of common design. The fact that CG Ltd owned almost 100% of Colt VEA, that there was common management, that the companies used the same logo and that the accounts of Colt VEA were consolidated with CG Ltd were not enough and were not indicative of participation or involvement of CG Ltd in the tort. Otherwise, it would mean that a holding company would always be implicated in proceedings involving its subsidiaries: at [26].

(5) Evidence of CG Ltd's actual involvement in furthering the common design of infringement must be shown before it could be joined in the proceedings as a joint tortfeasor. Here, there was nothing to link CG Ltd to the manufacture of the allegedly infringing product or the sales or import by Colt VEA of the product. The appellants failed to show a good arguable case that O 11 r 1 (f) (i) applied and therefore the appeal was dismissed: at [23], [24] and [28].

Aubrey Max Sandman v Panasonic UK Limited [1998] FSR 651 (refd)

Brabo, The [1949] AC 326 (refd)

CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (refd)

Chemische Fabrik Vormals Sandoz v Badische Anilin und Soda Fabriks (1904) 90 LT 733 (refd)

Coin Controls Ltd v Suzo International (UK) Ltd [1999] Ch 33 (refd)

Mead Corp v Riverwood Multiple Packaging Division of Riverwood International Corp [1997] FSR 484 (folld)

Napp Pharmaceutical Group Ltd v Asta Medica Ltd [1999] FSR 370 (refd)

Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438; [1993] 4 All ER 456 (folld)

Unilever plc v Chefaro Proprietaries [1994] FSR 135 (folld)

Unilever plc v Gillette (UK) Ltd [1989] RPC 583 (refd)

Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869 (refd)

Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 11 r 1 (f) (i) (consd);O 15 r 6 (2) (b) (ii)

Alvin Yeo, Daniel Koh and Lena Wong (Wong Partnership) for the appellants

S Sivananthan and Tony Yeo (Drew and Napier) for the respondents.

Judgment reserved.

Chao Hick Tin JA

(delivering the judgment of the court):

1 This is an appeal against a decision of Lim Teong Qwee JC who set aside the service of the writ on the third defendant, Colt Group Limited, on the ground that it was not a proper party to the action.

The facts

2 The first and second appellants (hereinafter referred to as “Bradley Lomas” and “Simpkin Machin” respectively), are companies incorporated in the United Kingdom. Simpkin Machin is the wholly-owned subsidiary of Bradley Lomas. The appellants were at all material times the proprietors of Singapore Patent No 8890803 (“the patent”), which was based on UK Patent GB 2 108 839 B, and which relates to smoke and fire screens and curtains. Simpkin Machin purchased the patent from the original patentee, Mckechnie Consumer Products Ltd, by an assignment dated 8 December 1993. Following the appellants' corporate restructure, the patent was assigned from Simpkin Machin to Bradley Lomas by an instrument dated 29 December 1994.

3 The respondents, Colt Ventilation East Asia Pte Ltd (“Colt VEA”), Colt International Limited (“Colt Intl”) and Colt Group Limited (“CG Ltd”) are companies within the Colt group of companies. Colt VEA is incorporated in Singapore, while Colt Intl and CG Ltd are incorporated in the UK.

4 On 5 August 1997, the appellants commenced this action by writ against Colt VEA...

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