Civil Procedure

Citation(2016) 17 SAL Ann Rev 186
Published date01 December 2016
Publication year2016
Date01 December 2016
Amendment of pleadings
Amendments during trial

8.1 While amendments to pleadings may be allowed at any stage, the court will generally be more reluctant to allow such amendments once trial has commenced. In Parakou Shipping Pte Ltd v Liu Cheng Chan,1 the plaintiff orally applied to amend its statement of claim to include a new cause of action against the first to fourth defendants during trial. The High Court disallowed the plaintiff's amendments for three main reasons. Firstly, if the plaintiff's amendments were allowed, the first to fourth defendants would seek a vacation of the remaining trial dates to prepare to meet the proposed claims, which were based on facts known to the plaintiff from the very beginning. Secondly, allowing the plaintiff's proposed amendments would be giving the plaintiff a second bite of the cherry, given that the plaintiff's original case had been considerably weakened in the course of cross-examination. Thirdly, allowing the amendments would affect the management of the courts' resources and scheduling due to the need to vacate the rest of trial. These, coupled with the absence of a good explanation for the plaintiff's failure to seek the amendments earlier, led the court to hold that the surprise occasioned by the proposed amendments caused prejudice, which was not compensable in costs.

Limitation periods

8.2 In two recent decisions, the Court of Appeal dealt with amendments to pleadings after the relevant limitation period had expired.

8.3 In Multistar Holdings Ltd v Geocon Piling & Engineering Pte Ltd,2 the respondent applied to amend its pleadings after trial and after written closing submissions had been tendered by both parties. The appellant argued that the amendment introduced a new cause of action which was time-barred. In its decision, the Court of Appeal clarified that “cause of action” simply means the essential factual material that supports a claim, rather than (as the High Court below had found) the relief or remedy sought. While the respondent had sought different reliefs in its proposed amendments, no additional factual material was required to advance the alternative reliefs. The factual material the respondent relied on in its proposed amendments had been pleaded sufficiently in an annexure to the respondent's original statement of claim. Thus, the court allowed the proposed amendments on the basis that they did not introduce any new causes of action.

8.4 The Court of Appeal also observed that O 20 r 5(1) of the Rules of Court3 (“RoC”) do not give the court an unfettered discretion; instead, O 20 rr 5(2)–5(5) are meant to cut down the scope of the court's general discretion under O 20 r 5(1), where limitation has set in. It would have been incongruous for the draftsman to prescribe parameters under O 20 rr 5(2)–5(5), within which the court may allow an amendment notwithstanding the expiry of the limitation period, only to leave the court with a discretion-at-large to allow amendments under O 20 r 5(1) even if they fail to meet the requirements prescribed. The Court of Appeal, thus, found that the High Court had erred in dealing with the respondent's amendment application without reference to O 20 r 5(5).

8.5 In Management Corporation Strata Title Plan No 3322 v Mer Vue Developments Pte Ltd,4 the appellant, a management corporation, sought leave to amend its further and better particulars to represent an additional 113 subsidiary proprietors after the relevant limitation period had expired. The Court of Appeal held that the power to grant an amendment under O 20 rr 5(2)–5(5) is subject to O 15 r 6, which sets out the broad principle on which the court will allow the addition of a new party or order that a named party cease to be a party. The court found that the plaintiff's proposed amendment amounted, in substance, to joining 113 new parties to the proceedings and that the plaintiff's application was accordingly both a joinder application as well as an amendment application. The plaintiff's proposed amendment, thus, engaged both O 15 r 6 and O 20 r 5.

8.6 In respect of O 20 r 5, the Court of Appeal found that the court below had erred in immediately concluding that O 20 r 5(1) could have no application once it determined that the relevant limitation period had expired. The court clarified that not all amendments brought after the relevant limitation period had expired would prejudice the defendant's limitation defence. In determining whether the defendant's limitation defence would be prejudiced by such an amendment, courts should have regard not only to the form, but also to the practical effect of the amendment, and a key consideration was whether the amendment effectively allowed the plaintiff to prosecute a claim which would otherwise have been time-barred if it were brought under a new writ. If the amendment would not be prejudicial to the other party's limitation defence, the court would consider whether it would be just to allow the amendment under O 20 r 5(1). On the other hand, if the amendment would prejudice the other party's limitation defence, the court would only allow the amendment under O 20 rr 5(2)–5(5).

8.7 In this case, the court found that the appellant's proposed amendment would clearly prejudice the respondent's limitation defence because allowing the proposed amendment would have effectively enabled the 113 subsidiary proprietors to prosecute their claims for breach of contract even though these claims would otherwise have been time-barred, and the claim for damages would increase substantially if the proposed amendment were allowed. The Court of Appeal, ultimately, agreed with the High Court that the proposed amendment should not be allowed.


8.8 Section 34(2)(b) of the Supreme Court of Judicature Act5 (“SCJA”) states that leave is required “where the only issue in the appeal relates to costs or fees for hearing dates”. In Clearlab SG Pte Ltd v Ma Zhi,6 the Court of Appeal clarified that under s 34(2)(b) of the SCJA, an appellant who commences appeals separately against the substantive merits of a High Court decision, and then against the costs order that is subsequently made in the same matter, requires leave to file an appeal against the costs order.

8.9 The court also commented obiter that as a practical matter, an application for leave to appeal the question of costs made on the basis that the appeals on costs and on the substantive merits will then be consolidated will likely be granted, because there will be no real issue of

wasting scarce judicial resources. In the light of this decision, a party who wishes to commence appeals against a High Court decision both on the substantive merits and on costs will be well-advised to bring its leave application on the basis that both appeals will be consolidated. As the appellant in this case did not do so and had also filed its leave application with undue delay, its leave application was dismissed.

8.10 In the first written decision on when an appellate court should interfere with a court of first instance's exercise of discretion with regard to rr 512 and 590(3) of the Family Justice Rules 20147 (“FJR”), the High Court in TDA v TCZ8 held that the standard for overturning a judge's exercise of discretion not to order conversion to a writ action is a high one, notwithstanding the fact that the High Court and the Court of Appeal decide such appeals by way of rehearing. In so holding, the High Court sought guidance from decisions concerning O 28 r 8 of the RoC but added that a court hearing proceedings involving the Mental Capacity Act9 (“MCA”) plays a protective role and should not shy away from taking control of MCA proceedings. In view of the court's expanded role in directing MCA proceedings, it was held that a judge hearing an MCA matter should be accorded a greater degree of discretion than a judge hearing an ordinary civil matter in which the parties are, by and large, the masters of the litigation.

8.11 The Xin Chang Shu10 concerned the interpretation of para (e) of the Fifth Schedule to the SCJA, which provides that leave to appeal is required in relation to orders made in any “interlocutory application” unless specifically exempted in sub-paras (i)–(x). The High Court found that this paragraph is a “catch-all” provision and summarised the applicable principles as follows:

(a) An “interlocutory application” is one which relates to a matter arising in the course of the proceedings and which does not concern the eventual outcome of those proceedings.

(b) An “interlocutory order”, for the purposes of the Fifth Schedule, is one which does not finally dispose of the substantive rights of the parties.

(c) In determining whether an order is an interlocutory order, the test to be applied is whether the judgment or order, as made, finally disposes of the rights of the parties.

(d) In applying this test, the focus is on the cause in the pending proceedings and not the specific purpose of the application.

8.12 In this case, the High Court found that an order that the plaintiff pay the defendant damages to be assessed for the wrongful arrest of a vessel is an interlocutory order for the purposes of para (e) of the Fifth Schedule to the SCJA. The court was persuaded by the analysis of the Court of Appeal in Wellmix Organics (International) Pte Ltd v Lau Yu Man11 (“Wellmix Organics”). In Wellmix Organics, the court had held that an interlocutory judgment with damages to be assessed is an interlocutory and not a final order because damages were really what the plaintiff was seeking, and determining liability was a necessary step towards deciding whether damages were payable, and if so, what the appropriate amount was. The court found that the order that the plaintiff pay the defendant damages to be assessed for the wrongful arrest in the present case was similarly an interlocutory order for which leave to appeal was required.

8.13 The court then...

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