Civil Procedure

Date01 December 2018
Published date01 December 2018
Publication year2018
AuthorCavinder BULL SC MA (Oxon), LLM (Harvard); Barrister (Gray's Inn); Attorney-at-law (New York State); Advocate and Solicitor (Singapore). CHIA Voon Jiet LLB (Hons) (National University of Singapore), LLM (Harvard); Advocate and Solicitor (Singapore).
Citation(2018) 19 SAL Ann Rev 140
Extension of validity of writs

8.1 In The Nur Allya,1 the defendant had written to the plaintiffs to discuss settlement after the plaintiffs had filed two writs. In the midst of settlement discussions, the writs' expiry date came and went without any prior application by the plaintiffs to extend the validity of the writs. The plaintiffs later filed two ex parte applications to extend the validity of the writs for a period of 12 months each (“Extension Orders”), both of which were granted. The defendant applied to set aside the Extension Orders.

8.2 The court held that the decision to extend the validity of the writ involves an exercise of discretion by the court which is to be approached in two stages. First, the court considers whether the plaintiff has shown the existence of matters which constitute good reason for an extension to be granted, which is inextricably bound with whether the plaintiff had good reasons for failing to serve the writ during the original period of validity. Secondly, the court considers all the circumstances of the case, including the hardship or prejudice to either party, to arrive at a value judgment on whether the extension should be granted or refused. In cases where the application is made after the writ has ceased to be valid and the relevant period of limitation has expired, the plaintiff must give a satisfactory explanation for its failure to apply for extension before the writ expired.

8.3 The court held that settlement negotiations can amount to good reason for extension if a fair interpretation of the negotiations show either (a) an agreement to defer service of the writ; or (b) conduct by the defendant of such character as to lead a reasonable plaintiff to think that it is unnecessary to serve the writ and to do so would increase the costs in a manner which is unwarranted in the circumstances. In relation to (b), the court held that first, there must exist negotiations that were

making progress. Second, there must also be conduct by a defendant which induced or contributed to the plaintiff's belief that service was unnecessary due to the presence of ongoing settlement negotiations. Where a defendant's conduct had a causal link with the plaintiff's withholding of service, it would arguably be unjust for a defendant to be allowed the benefit of a statutory limitation.

8.4 On the facts, the court found that there was a satisfactory explanation for the plaintiffs' failure to apply for an extension before the writs expired, that is, the history of partially successful negotiations between the parties, and the defendant's specific act of asking for time to provide the defendant's settlement position, both of which led the plaintiffs' solicitors to believe that service could be deferred and caused them to put work on the file on hold while they awaited the defendant's settlement position. Therefore, since the defendant's representatives had played a causative role in the plaintiffs' failure to apply for renewal before the writs' expiration, the court found that the plaintiffs had given a satisfactory explanation.

8.5 However, with regard to the length of the extension, the court held that an applicant who seeks a 12-month extension under O 6 r 4(2A) of the Rules of Court2 (“RoC”) must show that his case is out of the ordinary, and that even if reasonable steps to serve the writ are taken, it may not be possible to serve the writ within a six-month period. On the facts of the case, the court found that the 12-month extension was unwarranted and varied the Extension Orders to six months.

Post-writ events

8.6 In DyStar Global Holdings (Singapore) Pte Ltd v Kiri Industries Ltd,3 the Singapore International Commercial Court (“SICC”) affirmed the principle that a cause of action must be established as at the date when proceedings are instituted, namely, the date of the writ. Nonetheless, the court accepted that facts occurring after the issue of the writ can be relied on in support of a cause of action existing at that date. In this regard, the court observed that O 18 r 9(1) of the RoC provides that a party “may plead any matter which has arisen at any time, whether before or since the issue of the writ”.

8.7 The court held that the plaintiff's allegations of pre-writ minority oppression were made out, such that oppressive conduct had

existed as at the date of the writ. The court held that the post-writ conduct could thus be relied on as evidence of oppressive conduct continuing beyond the date of the writ, which conduct was relevant for the purpose of determining whether and (if so) what relief would be appropriate. The court, accordingly, did not consider it necessary to explore the scenario where none of the allegations of pre-writ oppressive conduct is made out.
No case to answer

8.8 In Ho Yew Kong v Sakae Holdings Ltd4 (“Ho Yew Kong”), the Court of Appeal made it clear that, where some (but not all) defendants make a “no case to answer” submission and elect not to adduce evidence, those defendants may still rely on the evidence adduced by the other defendants who do not make the “no case to answer” submission. The court agreed with the three reasons which the High Court judge had given, namely:

(a) The relevant case authorities indicated that the evidence adduced by defendants who do not make a “no case to answer” submission might well prove to be relevant to the liability of those defendants who make such a submission, and therefore can be considered by the court.

(b) The rationale underlying the rule prohibiting a defendant who makes a “no case to answer” submission from calling evidence – namely, the inappropriateness of making any ruling on the evidence until it has been completely presented, and to avoid the expense and inconvenience which would result from having to recall defence witnesses if the court's decision to uphold the submission were reversed on appeal – does not extend the scope of the undertaking from one not to adduce evidence to one not to rely on evidence already or otherwise to be adduced in court.

(c) Given that the plaintiff would be able to rely on evidence adduced by a defendant who did not make a “no case to answer” submission, it would not be logical or fair to allow the plaintiff to in effect selectively determine which parts of that defendant's evidence the court could consider in determining the issues before it. Both common sense and fairness dictate that evidence from a witness which can be used against a party can also be used by that party.

8.9 The court elaborated that, by ruling on the “no case to answer” submission only at the close of the trial rather than at the close of the plaintiff's case, the court will not be making a decision on the submission until after it has had the opportunity to consider all the evidence that is going to be adduced at the trial. While the question of when the court should rule on a “no case to answer” submission is ultimately a matter of proper case management having regard to the interests of justice, the general rule remains that the proper time at which to decide the defendants' liability is at the close of the whole case.


8.10 It has been held that the general rules in the RoC relating to the service of non-originating processes are applicable in the SICC. In BNP Paribas SA v Jacob Agam,5 one of the issues before the court was whether one of the appellants, Agam, had been properly served with the documents relevant to BNP Paribas SA's application for a declaration that the appeal be deemed to have been withdrawn. At the outset, the court observed that since there is no provision in O 110 dealing with the issue of service of court documents, save for O 110 r 6 which governs the service of originating processes, the general rules in the RoC relating to the service of non-originating processes in a non-SICC context were applicable. On the facts, the court found that Agam had been properly served on three grounds.

8.11 A plaintiff seeking leave to serve its originating process out of jurisdiction must prove, inter alia, that its claim comes within one of the heads of claim in O 11 r 1 of the RoC and that Singapore is the proper forum for the trial. In Nippon Catalyst Pte Ltd v PT Trans-Pacific Petrochemical Indotama,6 the plaintiff appealed against, inter alia, the assistant registrar's decision to set aside an ex parte order granting the plaintiff leave to serve its originating process out of jurisdiction against the second defendant on the basis that Singapore is not the proper forum for the trial of the suit. The High Court applied the following requirements for service out of jurisdiction:7 (a) the plaintiff's claim must come within one of the heads of claim in O 11 r 1 of the RoC; (b) it must have a sufficient degree of merit; and (c) Singapore must be the proper forum for the trial of the action.

8.12 The plaintiff argued that the ex parte order should not have been set aside because it fell within O 11 rr 1(f)(ii) and 1(p) of the RoC. Order 11 r 1(f)(ii) provides that service out of Singapore is permissible with leave if:

… the claim is wholly or partly founded on, or is for the recovery of damages in respect of, damage suffered in Singapore caused by a tortious act or omission where occurring.

The plaintiff argued that it fell within this rule because it is a Singapore entity with a bank account in Singapore and because all payments by the first defendant were made to its Singapore bank account. The court disagreed and held that the fact that a plaintiff has a bank account in Singapore that it uses to transact with a defendant, which then fails to make payments into that bank account, does not necessarily lead to the conclusion that the plaintiff thus suffers damage in Singapore. With regard to O 11 r 1(p), the court held that the prevailing test is to ask “where in substance did the cause of action arise”; in this case, the place of the tort was...

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