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

• Court: High Court (Singapore)
• Judge: Kan Ting Chiu J
• Judgment Date: 15 July 2009
• Neutral Citation: [2009] SGHC 166
• Citation: [2009] SGHC 166
• Subject Matter: Party tendered payment of costs to other party as ordered,Party filed notice of change of solicitors,Deemed discontinuance,Civil Procedure,Whether party had taken step or proceeding in the action
• Plaintiff Counsel: Subir Singh Panoo (Sim Mong Teck & Partners)
• Published date: 15 July 2009
• Defendant Counsel: Teo Weng Kie (Tan Kok Quan Partnership)

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...