CURING NON-COMPLIANCE WITH FOREIGN LAWS IN THE CONTEXT OF SERVICE OUT OF JURISDICTION

• Citation: (2015) 27 SAcLJ 91
• Author: Benny TAN Zhi Peng LLB (Hons) (National University of Singapore); Tutor, Legal Skills Programme, Faculty of Law, National University of Singapore.
• Published date: 01 December 2015
• Date: 01 December 2015

A Review of Singapore's Position

The topic of curing defects in service of an originating process out of jurisdiction deserves much more attention than it has thus far received in Singapore. This article draws attention to how the words of one of the main governing rules conflict with the position that has been taken by the local courts, before examining the core issues of whether a court can cure, and (if so) when a court should cure, such defects. A framework that achieves the most satisfactory balance between the plain words of the relevant rules and the competing considerations of procedural justice, substantive justice and international comity will be proposed.

I. Introduction

1 The challenge of trying to balance procedural justice with substantive justice is notorious.1 This is encapsulated in the memorable quote by Andrew Phang Boon Leong JC (as he then was) in United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd:2

… in the sphere of practical reality, there is often a tension between the need for procedural justice on the one hand and substantive justice on the other. The task of the court is to attempt … to resolve this tension. There is a further task: it is to actually attempt, simultaneously, to integrate these two conceptions of justice in order that justice in its fullest orb may shine forth. [emphasis in original]

The complexity of the task is invariably compounded when a third consideration to be balanced is thrown into the mix: international

comity. This occurs squarely in the topic of curing a defect in the service of a Singapore originating process in a foreign jurisdiction. A defect arises in service out when there is non-compliance with the laws of the foreign country, and this area of law is mainly governed by certain rules under O 11 of the Rules of Court (“RC”).3 The core controversial issues are: (a) whether the Singapore court has the power to cure such a defect in a plaintiff's service of originating process (most commonly a writ) out of jurisdiction; and if so, (b) when should the court exercise that power.4

2 An opportunity to properly consider these issues was presented in the recent High Court case of SRS Commerce Ltd v Yuji Imabeppu (“Yuji”).5 Regrettably, the High Court did not take up the chance to re-examine this area of law, despite (a) there being two previous entirely conflicting High Court decisions6 that “illustrate the difficulties which may arise regarding compliance with the law of the foreign jurisdiction”;7 and (b) the relevant rules in the RC presenting subtle but real difficulties in resolving the issues. Instead, the court in Yuji simply “agree[d] entirely” with one of the earlier High Court decisions,8 and proceeded to decide the case on that basis.

3 This paper takes up the missed opportunity and attempts to critically re-assess this area of law. Notably, the English courts have in recent years been struggling with similar issues as well. And although in 1998, the UK Rules of the Supreme Court9 (“UK RSC”) were superseded by the Civil Procedure Rules (“UK CPR”), there remain significant similarities between the relevant rules in the UK RSC and the UK CPR, the former being the model for the RC. Pertinently, in 2013, the UK Supreme Court (“UKSC”) issued its judgment for Abela v Baadarani,10 a decision which local courts will likely find considerable guidance on how to deal with this vexing area of law. Therefore, where appropriate, this paper in attempting to rationalise this area of law in the local context will refer to and discuss these English cases.

4 This paper will in Part II first provide a summary of the recent Singapore cases that have dealt with this area of law.11 Then in Part III, it will be highlighted, as a preliminary observation, that the local courts' position on one of the key rules under O 11 of the RC is at odds with the plain words of that rule.12 However, all considered, it will be argued that the courts' interpretation, which departs from the literal reading of the rule, is ultimately justified. Having addressed the preliminary point, in Part IV, the crucial issue of whether the courts have the power under O 2 r 1 to cure a defect arising from non-compliance in foreign laws will be examined.13 It will be submitted that the courts do have such a power in certain cases of non-compliances. Part V moves on to explore the issue of the threshold that should be met before a court exercises that power.14 Finally, Part VI collates everything that has been earlier discussed into a coherent proposed framework to deal with such issues in future cases.15

5 For ease of reference, the important rules in the RC that will be referred to extensively in this paper are set out here:

Service of originating process abroad through foreign governments, judicial authorities and Singapore consuls or by any method of service (O 11 r 4)

4.—(2) Where in accordance with these Rules an originating process is to be served on a defendant in any country with respect to which there does not subsist a Civil Procedure Convention providing for service in that country of process of the High Court, the originating process may be served —

(a) through the government of that country, where that government is willing to effect service;

(b) through a Singapore consular authority in that country, except where service through such an authority is contrary to the law of that country; or

(c) by a method of service authorised by the law of that country for service of any originating process issued by that country.

Service of originating process abroad: Alternative modes (O 11 r 3)

3.—(1) Subject to paragraphs (2) to (8), Order 10, Rule 1 and Order 62, Rule 5 shall apply in relation to the service of an originating process out of Singapore.

(2) Nothing in this Rule or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.

(3) An originating process which is to be served out of Singapore need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected.

Non-compliance with Rules (O 2 r 1)

1.—(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(2) Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

II. Understanding the local (conflicting) positions on service out of jurisdiction

A. SRS Commerce Ltd v Yuji Imabeppu

6 In Yuji, the plaintiffs sued the four defendants, who are resident in Japan, for misappropriation of money. Leave was granted for the plaintiffs to serve the writ on the defendants in Japan, by post or courier and/or by service through the Ministry of Foreign Affairs in Japan. The writ was translated in Japanese and sent by registered post to three of the defendants. It was accepted that these defendants did receive the writ.16

7 The defendants subsequently applied to set aside the writ on the basis that the service was improper. The assistant registrar agreed with the defendants that the service was improper, and additionally that the

defendants were prejudiced by the improper service. Hence, the defect should not be cured and the writ was accordingly set aside.17

8 On the plaintiff's appeal to the High Court, given that there is no Civil Procedure Convention subsisting between Singapore and Japan, the High Court relied on O 11 r 4(2) of the RC. The court further noted that rr 4(2)(a) and 4(2)(b) were not relevant on the facts. Instead, r 4(2)(c) was applicable, and that rule “requires the plaintiffs to comply with the method of service authorised by the domestic law of the foreign jurisdiction (in this case, Japan)”.18

9 The court then held that in Yuji, contrary to r 4(2)(c), there was little doubt that the service had not been properly effected. This was because under Japanese law, the writ must be served through Japan's Ministry of Foreign Affairs, and then through court clerks authorised by the Japanese courts. In this case, the writ was not served by such a court clerk.19

10 Having concluded that there was non-compliance with Japan's law on service of foreign process in Japan, the court, however, decided that the defect could and should be cured. It agreed entirely with the second decision of ITC Global Holdings Pte Ltd v ITC Ltd20 (“ITC 2011”) that:21

… where a defendant … is apprised of the proceedings, it should be regarded as an important factor against an application to set aside service of process … The rule is not designed as a technical obstacle but as a rule to prevent foreign parties from orders made against them without their knowledge. They must be aware of the process instituted against them to decide whether they should resist.

Considering all the evidence, the court in Yuji was satisfied that:22

… the defendants have not been prejudiced by the irregularity in service of process. They not only knew that process had been instituted against them in...