Ch'ng Choon Eng v Phaik Keow Lucien Gladys

• Jurisdiction: Singapore
• Judge: Chan Seng Onn JC
• Judgment Date: 22 September 1998
• Neutral Citation: [1998] SGHC 314
• Docket Number: Suit No 2003 of 1997
• Date: 22 September 1998
• Year: 1998
• Published date: 19 September 2003
• Plaintiff Counsel: Ng Yuen (Shook Lin & Bok)
• Citation: [1998] SGHC 314
• Defendant Counsel: Lynette Sathiasingam (Leo Fernando)
• Court: High Court (Singapore)
• Subject Matter: Amendment of writ to add next friend after summary judgment,Whether next friend should be appointed,Defendant not applying to stay proceedings,Duty of agent at onset of principal's mental incompetence,Entitlement of court to presume plaintiff's counsel has requisite authority,Mental incompetence of principal,Termination by operation of law,Termination,O 14 Rules of Court,Appointment of next friend,Mental incompetence before or after commencement of writ action,Whether absence of prior breach of duties by agent relevant,Pleadings,Whether plaintiff's mental incompetence or counsel's lack of authority to act a defence,Agency,Stay of proceedings,Civil Procedure,Plaintiff's suit rational and in her interest,Affidavits,Summary judgment,Legal presumption of mental competence to file affidavits,Whether writ should be amended to add next friend

: At an O 14 hearing before the learned Senior Assistant Registrar, the defendant alleged as triable issues that the plaintiff`s counsel had no authority from the plaintiff to pursue the claim and that the plaintiff was not mentally competent to affirm any affidavits nor give any proper instructions. However, it was not denied by the defendant that the US$256,000 held by the defendant belonged to the plaintiff. The Senior Assistant Registrar overruled the defendant`s objections to the affidavits filed and granted summary judgment against the defendant for the said sum plus interest earned on that sum.

The defendant appealed. At the hearing before me, the defendant raised the same grounds of mental incompetence and counsel`s lack of authority. However, I noted that the plaintiff`s affidavit supporting an injunction application had been affirmed before a notary public in Malaysia on 23 November 1997. In support of the O 14 application, the plaintiff affirmed another two affidavits on 15 March 1998 and 18 April 1998 respectively before a notary public.

Prima facie, the plaintiff must be taken to have the mental capacity to affirm those affidavits and decide on proceeding with the action against the defendant. If the solicitor had no authority, why would the plaintiff affirm those affidavits in support? Where the action against the defendant appeared rational and furthered the interest of the plaintiff, then there would arise a fairly strong presumption that the plaintiff was mentally capable at the time the action was taken. Until the contrary was proved, there would be a legal presumption that the plaintiff was mentally competent.

Plaintiff`s counsel informed me that the defendant had not taken up any substantive application to stay or set aside the writ of summons on the aforesaid grounds despite knowing the plaintiff`s stand that such an application was necessary. I did not think that it was for the plaintiff to prove that she was mentally competent. Neither did I think that the matter should be allowed to proceed to a trial simply to ascertain whether the plaintiff was suffering from any mental incapacity and whether counsel lacked the necessary authority. These were preliminary issues to be settled first in a substantive application, which should be taken up by the party challenging the mental capacity of the other party to instruct counsel. In the absence of such an application, the court would be entitled to assume that counsel had the requisite authority and had been properly instructed.

In 30 Halsbury`s Laws of England para 1422, it was stated that:

... the question whether a plaintiff is mentally disordered is not an issue which it is competent to the defendant to raise in his defence, since, in effect, it challenges the authority of the plaintiff`s solicitor to institute proceedings, and that is a matter which must be dealt with by an application to stay the action. A defence which sets up, or attempts to set up, such an issue may be struck out or treated as irrelevant.

Further, 26 Atkin`s Court Forms para 20 states:

If proceedings are commenced by a patient acting without a next friend, the defendant should acknowledge service with a notice of intention to defend in the usual way and within 14 days thereafter apply to the Court to set aside the writ or stay the proceedings and for costs. The application is made by summons before a master or district judge, supported by an affidavit setting out the grounds of the application, including, if possible, medical evidence as to the mental condition of the plaintiff. The court may dismiss the action or stay the proceedings until the plaintiff duly acts by a next friend, and in a proper case may order the plaintiff`s solicitor personally to pay the costs incurred.

Although I agreed with plaintiff`s counsel on the procedural point that a substantive application should be made by the defendant if she intended to dispute such matters, nevertheless I adjourned the hearing to enable the parties to ascertain if in fact the plaintiff was mentally incompetent and whether the plaintiff intended to pursue the claim of her own volition against her own...