Jagbir Singh s/o Baldhiraj Singh v Lim Keh Thye and Another

• Judge: Kan Ting Chiu J
• Judgment Date: 15 July 2009
• Neutral Citation: [2009] SGHC 166
• Citation: [2009] SGHC 166
• Defendant Counsel: Teo Weng Kie (Tan Kok Quan Partnership)
• Published date: 15 July 2009
• Plaintiff Counsel: Subir Singh Panoo (Sim Mong Teck & Partners)
• Date: 15 July 2009
• Docket Number: Suit No 372 of 2005 (Registrar's Appeal No 281 of 2008)
• Court: High Court (Singapore)
• Subject Matter: Party filed notice of change of solicitors,Deemed discontinuance,Civil Procedure,Whether party had taken step or proceeding in the action,Party tendered payment of costs to other party as ordered

15 July 2009 Judgment reserved.

Kan Ting Chiu J:

1 This appeal touches on the operation of O 21 r 2(6) of the Rules of Court (Cap 322, R5, 2006 Rev Ed) which states that:

Subject to paragraph (6A), if no party to an action or a cause or matter has, for more than one year (or such extended period as the Court may allow under paragraph (6B)), taken any step or proceeding in the action, cause or matter that appears from records maintained by the Court, the action, cause or matter is deemed to have been discontinued.

2 Specifically, it touches on the question whether a notice of change of solicitors is a step or proceeding under the rule.

3 The salient facts of the case to the appeal can be stated very briefly. The plaintiff, who was involved in a road accident, filed a claim against the defendants on 30 May 2005. Subsequently, interlocutory judgment was entered against the defendants on 7 August 2006 with damages to be assessed. On 16 May 2008, an application was filed by the solicitors for the defendants for a declaration that the action be deemed discontinued pursuant to O 21 r 2(6). (I shall comment on this later in my judgment.)

4 In the intervening period, the damages had not been assessed, but there were two developments which the plaintiff contended were steps or proceedings under r 2(6):

(i) On 5 July 2007, a notice of change of solicitors was filed on behalf of the defendants, and

(ii) On 18 July 2007, the plaintiff tendered payment of $600 to the defendants for costs they were ordered to pay on 22 January 2007.

5 The application was dismissed by an Assistant Registrar who found that the notice of change of solicitors was a step and proceeding under r 2(6), but at the same time, she also ruled that the payment of costs was not a step or proceeding. This matter came before me on the defendants’ appeal against the dismissal of the application.

6 In the course of the arguments before the Assistant Registrar and before me, two quite recent decisions on exactly the same point were referred to. In Chellaiya Chandra v Cheng Song Thiam (Suit No.600011 of 2001), V K Rajah J ruled on 4 February 2005 that a notice of change of solicitors is a step or proceeding under r 2(6). However, in James Lee Chong Hwa v Phang Yen Hoong (MC Suit No. 3546/2002), Lai Siu Chiu J, who heard the matter on an appeal from the Subordinate Courts, ruled on 30 March 2005 that a notice of change of solicitors is not a step or proceeding under the rule. Regrettably, no grounds of decision were delivered in either case.

7 There is an earlier Singapore decision on the effect of a notice of change of solicitors. This is Gian Singh & Co Ltd v Super Services [1965] 1 MLJ 256 (“Gian Singh”), which dealt with the Rules of Court 1934, specifically Order LXI r 5(1) thereof, that:

In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed.

8 Rule 5(1) differs from the present r 2(6) in that under the old rules, a party in proceedings which has been dormant for a year or more can reactivate the proceedings by issuing one month’s notice of its intention to proceed. In the scheme of the current rules, an action is deemed to be discontinued when no step or proceeding which appears from the records maintained by the court is taken for a year.

9 In Gian Singh, the plaintiffs had sued the defendants in December 1962. The defendants entered appearance in the same month and a notice of appointment of solicitors was filed in the following month, but no defence was filed. In May 1964, a notice of change of solicitors was filed, but still no defence was filed. In September 1964, the plaintiffs entered judgment in default of defence without first issuing a notice of intention to proceed.

10 The defendants applied to set aside the judgment on the ground that there was a non-compliance with r 5(1), but the judgment was not set aside. Winslow J held at p 259 that:

It is true that [the plaintiffs’ solicitor] did not serve a formal notice giving one month’s notice of intention to proceed …

and that:

[i]t seems to me therefore, that although there has been a technical non-compliance with the provisions of Order LXI, r.5 …

implying that the notice of change of solicitors filed was not a proceeding as no notice of intention to proceed was required if the notice of change of solicitors was a proceeding. However, the learned judge went on to state that:

… I think that the filing in court of the change of solicitors for the defendants in the cause in May, 1964 was a step or proceeding in the proceedings towards judgment and is itself a proceeding within the meaning of the expression as used in Order LXI, r.5. It gave notice both to the court and to the plaintiffs’ solicitors that the defendants intended to defend the action by solicitors. [emphasis added]

and

If it is not such a proceeding it is difficult to say what else it can be in the light of the authorities I have cited above. If it was not intended to be a formal step in the action they need not have filed it. Why did they file it and give notice thereof? If they had not filed it, the plaintiffs would have had to give them one month’s notice of intention to proceed. As they had, in fact, filed it, can they be heard to say that the plaintiffs should have given them a month’s notice of their intention to proceed when they were all along aware of this intention?

Then he went back to the position that the plaintiff should have issued a notice of intention to proceed at pp 259–260 and ruled that:

In my opinion the equities of the situation lie with the plaintiffs though the defendants may be technically correct but, as they have contributed to the creation of a situation like this to the plaintiffs’ detriment, I cannot see any merit in their insistence on a technical one month’s notice of intention on the plaintiffs’ part to proceed with the action when they themselves seem to have taken an active part to keep the action alive by filing a formal notice of change of solicitors thereby evidencing their readiness and willingness to defend the action. This act on their part is tantamount to waiver. Even if it is not, I am of the opinion that technical non-compliance with Order LXI, r.5 is an irregularity (if any) which does not render the final judgment a nullity. It is an irregularity which does not necessarily render the judgment void unless I so direct, under Order LXIII, r.1 and, for the reasons I have stated, I do not feel disposed to do so.

11 What was the status of the notice of change of solicitors? On the one hand, by holding that there was a non-compliance, the judge did not regard the notice of change of solicitors as a proceeding. On the other hand, he also ruled the notice of change of solicitors was a proceeding. The case has been cited as authority that a notice of change of solicitors is a proceeding in The “Melati” [2003] 4 SLR 575 and in G P Selvam, Singapore Civil Procedure 2007 (Sweet & Maxwell Asia) without reference to the discordant rulings.

12 The policy consideration behind the rule for deemed discontinuance is quite clear; it is a case-management measure to ensure that actions filed in court are proceeded with diligently, and that those that are not will be deemed to be discontinued, even if the parties have not settled or abandoned the action. Deemed discontinuance can occur even when the parties are attending to the dispute. This...