Civil Procedure

Citation(2019) 20 SAL Ann Rev 184
Published date01 December 2019
Date01 December 2019
Publication year2019
I. Service out of jurisdiction under Order 11 rule 1

8.1 In Man Diesel & Turbo SE v IM Skaugen SE,1 the appellants had applied to set aside the service of originating process out of jurisdiction under O 11 of the Rules of Court2 on the basis that Singapore was not forum conveniens. The appellants sought leave to adduce affidavits that explained developments that occurred after the High Court decision below, while the respondent sought leave to adduce affidavits in response. The affidavits sought to be adduced pertained to whether Singapore would be the appropriate forum. Of the three Ladd v Marshall3 requirements (non-availability, relevance and credibility), only relevance was at issue.

8.2 The Court of Appeal noted that prior to this case, it had yet to make an authoritative pronouncement on the issue of whether the court was entitled to take into account subsequent developments after the decision below. The Court of Appeal endorsed the holdings of the High Court that the court is entitled, during a setting aside of service application, to take into account subsequent events after obtaining ex parte leave.

8.3 The Court of Appeal then held that a court hearing an appeal in relation to a setting aside of service application is able to take into account subsequent developments after ex parte leave to serve out of jurisdiction was granted. The Court of Appeal gave three main reasons why a court is entitled to take this approach.

8.4 First, as a matter of principle, this approach would further the purpose of the doctrine of forum non conveniens, which is to locate the jurisdiction where the case may be tried more suitably for the interest of all parties and the ends of justice. Therefore, when a court is considering

whether Singapore is the more appropriate forum, the court has to consider the forum with the most real and substantial connection at the material time, and not at the time of the previous hearing.

8.5 Second, this approach promotes coherence and consistency in the law. The Court of Appeal found that there was no reason in principle why subsequent developments can be taken into account for stay applications but not for O 11 applications.

8.6 Third, this approach furthers the interest of the parties by allowing the case to be dealt with expeditiously while saving time and costs. Lastly, the Court of Appeal also noted that only subsequent developments that are relevant to the forum non conveniens analysis would be taken into consideration.

8.7 As a result, the Court of Appeal allowed the admission of the affidavits of both parties.

8.8 The Court of Appeal also held that in determining whether there is a good arguable case that the claims fell under O 11 r 1, a court should not view distinct claims as a single aggregate claim but should treat the distinct claims separately. This meant that the court should assess whether each of the claims, standing alone, would have satisfied the jurisdictional gateways in O 11 r 1.

8.9 The case involved four successive ship owners which owned the vessels at different time periods. The ship owners assigned their claims against the appellants to the respondents. Two of the ship owners were Singapore-incorporated entities while the other two ship owners were not. The Court of Appeal held that only the claims from the two ship owners who were Singapore-incorporated entities satisfied O 11 r 1(f)(ii) while the other two ship owners' claims did not. Accordingly, since each claim had to be treated separately, only two of the claims met the jurisdictional gateways in O 11 r 1.

8.10 Lastly, the Court of Appeal also held that in determining where a cause of action arose for the purposes of O 11 r 1(p), the court should apply the “substance test”, which is where in substance the cause of action arose. The Court of Appeal noted that this test had been applied by the High Court in Nippon Catalyst Pte Ltd v PT Trans-Pacific Petrochemical Indotama4 and was also implicit in the Court of Appeal decision of JIO Minerals FZC v Mineral Enterprises Ltd.5

8.11 In coming to its holding, the Court of Appeal found that the case of Distillers Co (Biochemicals) Ltd v Laura Anne Thompson6 stood for the “substance test” and not a separate plaintiff-centric “cause of complaint test”, which the Court of Appeal considered to be a “false dichotomy”.

II. Continued prosecution of claim in light of offer to settle

8.12 In TMT Asia Ltd v BHP Billiton Marketing AG (Singapore Branch),7 the appellant appealed against the decision of the High Court where the respondents had successfully struck out the appellant's claim on the ground of abuse of process. The respondents had made a settlement offer which would give the appellant all the reliefs it had sought but without admission of liability. This was not accepted by the appellant.

8.13 The Court of Appeal found that had the appellant accepted the offer, it would have received all the reliefs sought and that there was no practical benefit to be gained from continuing the action. The court then found that the appellant's continuation of the action was for a collateral purpose.

8.14 The Court of Appeal held that seeking vindicatory relief from a formal finding of liability in the face of an open offer to agree all reliefs would only be justified in “very special circumstances”. The court provided the example of a grave defamation where the defendant pleads justification but subsequently makes an offer to pay damages. In such a situation, if the plaintiff may suffer serious practical consequences from the defamation, the plaintiff should be allowed to continue with the action in order to vindicate the plaintiff's reputation completely at trial.

8.15 On the facts, the Court of Appeal held that the appellant's action was not considered a very special circumstance. Accordingly, the court did not allow the appellant to carry on with its action as it was an abuse of process, given that there would be no practical benefit to be gained from proceeding to trial.

III. Applicability of the Riddick principle for criminal investigation purposes

8.16 In Amber Compounding Pharmacy Pte Ltd v Lim Suk Ling Priscilla,8 the plaintiffs sought to use documents, seized from the

defendants under a search order, for the purposes of making reports to law enforcement authorities in Singapore.

8.17 The High Court had to consider the Riddick9 principle which provides that there is an implied undertaking owed to the court that a discovering party will not use a discovered document for any purpose other than pursuing the action in which discovery is obtained. The Riddick undertaking may be released or modified by a court where the Beckkett10 conditions are met. The Beckkett conditions are that (a) there must be cogent and persuasive reasons for the request; and (b) the release must not give rise to any injustice or prejudice to the party who had given discovery.

8.18 No previous Singapore case had previously considered the applicability of the Riddick principle for criminal investigation purposes.

8.19 The High Court held that leave of court is required for the Riddick undertaking to be released or modified, even if the documents are to be disclosed for criminal investigation purposes. This is because of the potential serious consequences which may weigh against the party who had given discovery, as well as the fact that the implied undertaking is owed to the court and can only be modified by the court.

8.20 The High Court held that the Riddick principle continues to apply where disclosure is sought for criminal investigation purposes. The court added that the Beckkett conditions must also be satisfied and there must be special or exceptional circumstances. When conducting the balancing exercise, a court can take into account factors including the nature and severity of the potential offence, the cogency of the evidence sought to be adduced, and the prejudice that may be occasioned to the respondent from the disclosure. These factors encapsulate the considerations when determining if there is a greater public interest or policy to justify lifting the Riddick undertaking.

8.21 The High Court then held that the...

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