JURISDICTION ISSUES IN INTERNATIONAL TORT LITIGATION: A SINGAPORE VIEW

• Citation: (1995) 7 SAcLJ 1
• Published date: 01 December 1995
• Date: 01 December 1995

This article looks at the issues that arise at a jurisdictional stage when a claim in tort containing foreign elements is made in a Singapore court. In particular, the amended Order 11 Rule 1 (f) RSC is examined. Because of the paucity of local authorities, extensive references are made to relevant Commonwealth cases to aid in the interpretation of the local provision.

I. INTRODUCTION

A tort may be described as possessing an international character if there are foreign elements involved. For example, the parties involved may be from different countries. Even if the parties are from the same country, the act or damage may have been done in a different country, or in different countries. In such cases, the plaintiff’s choice of forum for litigation is not confined to a single jurisdiction. Apart from practical points like cost and convenience, the choice of the forum is also affected by the consideration that the forum will apply its own private international law to choose the governing substantive law to determine the claim. Another important consideration in choosing the jurisdiction in which to sue is the question of whether the defendant has assets within that jurisdiction, and if not, whether the judgment obtained from the jurisdiction is enforceable in the country where such assets are to be found.

Singapore, like many other common law countries, can assert jurisdiction over a defendant if he is present in,1 or if he has submitted to,2 the jurisdiction. International tort cases present problems for both. The defendant may have minimal or no dealing within the jurisdiction. For example, defective goods may be distributed by a foreign manufacturer without any presence within the jurisdiction, or a negligent misrepresentation may be made by a foreign firm having no business within the jurisdiction, to a party in the jurisdiction. In many cases, the parties do not have a pre-existing contractual relationship in which to submit to the jurisdiction in advance, and even if they have such a relationship, it is a matter of interpretation3 whether the jurisdiction clause, if there is one, will also cover the dispute in tort.4

In many cases the plaintiff has to resort to service out of jurisdiction. Order 11 Rule 15 spells out many grounds under which the plaintiff can apply for leave to serve process outside the jurisdiction, e.g., where the defendant is domiciled, ordinarily resident, carrying on business or has property, within the jurisdiction.6 The purpose of this article is to examine the specific issues of jurisdiction arising with respect to tort litigation,7 and the focus will be on the heads which have a direct bearing on tort actions.

II. ORDER 11 GROUNDS FOR TORT ACTIONS

Under Order 11 Rule 1(f),8 leave of the court for service out of jurisdiction may be applied for if in the action —

1. (i) the claim is founded on a tort committed in Singapore; or

2. (ii) 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 wherever occurring.

Rule 1(f) replaces the old rule which only allowed for service out of jurisdiction in cases where the claim was founded on a tort committed within Singapore. Another relevant provision for tort actions is Rule 1(p) where “the claim is founded on a cause of action arising in Singapore”.

III. PRE-REQUISITES FOR SERVICE OUT OF JURISDICTION

Order 11 is an extension of the common law grounds of jurisdiction, and courts generally view applications under it with caution, because the purpose of the exercise is to compel a defendant abroad, owing no necessary allegiance to the jurisdiction, to trial within the jurisdiction, and also because the grounds of jurisdiction are wider than that which the forum recognises in foreign courts.9 The plaintiff has to show a good arguable case that the claim falls within the specific head of Order 11.10 The action must fall within the letter and spirit of the rule.11 It has also been said that any doubts as to whether a claim falls within a head of jurisdiction should be

resolved in favour of the defendant.12 Because the application is ex parte, there must also be full and frank disclosure.13

The plaintiff also has to show that there is a serious question to be tried on the merits.14 The degree of difficulty for the plaintiff at this stage depends on the ground that is being invoked. If the ground has a direct bearing on the substance of the claim (eg, Rule 1(f)), as opposed to the general ground of the domicil or residence of the defendant, the plaintiff would have already gone into the question of the claim on the basis of a good arguable case, so that he has nothing left to show.15 On the other hand, if a general ground has been invoked, then the question of merits must be independently assessed. Finally, it must also be shown that Singapore is the natural forum to hear the action.16 In tort cases, the place where the tort is committed has generally been considered a critical pointer determining the natural forum.17

IV. TORT COMMITTED WITHIN THE JURISDICTION

This phrase has spawned sufficient varying interpretations, conflicting authorities, and academic commentary to earn the dubious honour of being arguably the most complex ground of Order 11 and generating some of the most difficult issues in the conflict of laws.

Before the relevant authorities are examined, it is necessary to point out the relationship between the place of the tort as a jurisdiction concept, and as a choice of law concept. The question of where a tort is committed arises both in a jurisdictional and a choice of law context, and even in jurisdictional litigation, the issue can arise in a choice of law context. Many countries utilise the law of the place of the tort as at least one connecting factor to determine choice of law.18 In jurisdictional litigation, the place of the tort can be relevant in two ways apart from being the basis of obtaining jurisdiction. It is itself relevant for determining the natural forum. Moreover, the applicable law may also be a relevant indicator of the natural forum,19 and to that end the place of tort needs to be identified to determine choice

of law.20 The authorities, however, reveal that cases on jurisdiction are considered authoritative on choice of law questions.21 This also suggests that the cases on choice of law will also be considered relevant to jurisdiction.

Nevertheless, it is important to bear in mind the material differences between the jurisdictional and choice of law concepts. First, the question in jurisdictional litigation is whether the tort is committed within the jurisdiction, and the court need not go further, while in choice of law a specific location must be found for the tort. Secondly in jurisdiction cases, the court has a discretion whether to grant leave for service out of jurisdiction, while there is no discretion in choice of law. As a matter of policy, the locus delicti for jurisdiction and that for choice of law do not necessarily have to coincide.22 In jurisdiction cases, the search is primarily for the court which is most closely connected to the case in a procedural sense (eg, the location of evidence and witnesses), but in choice of law, the considerations must be substantive. In the jurisdiction context the forum always has some interest in hearing the case where the effects of the tort are felt within the jurisdiction, but when it comes to choice of law, it may not necessarily want to apply its own law. In other words, it may be possible to say that the tort is committed in more than one place for jurisdiction purposes,23 but it can only have a single location for choice of law purposes. Where that is the case the interchangeability of concepts must be highly suspect.24

A. The Place of the Tort

One classical approach has been to fix the locus delicti at the place where the defendant acted.25 This emphasises the regulatory aspects of tort law. Today the justification has more to do with fairness to the defendant as reflected in the maxim, locus regit actum. Another classical approach is to localise the tort at the place of damage. The damage completes the tort

and it is only then that the cause of action arises and the tort can be said to be committed. This “last-event” theory has close links with the now debunked vested rights theory.26 It has been rejected by the Privy Council.27 The place of harm also finds support in the perception of tort law as a compensatory vehicle, which therefore lays emphasis on the loss for which compensation is sought. The main problem with these two approaches is that the act or harm may occur over several localities. One approach that had some judicial support is that all the ingredients of the tort must occur within the jurisdiction,28 but the weight of authority is correctly against it.29 It would mean that no country would have jurisdiction over a tort spanning several jurisdictions. An elective technique allows the plaintiff to choose either the place of acting or place of harm.30 This method also suffers from the definitional problems of the individual limbs in multiple-locality torts.31

The modern English and Australian approach is to use the substance of the tort test. In the words of Lord Pearson in the Privy Council case of Distillers Co (Biochemicals) Ltd v Thompson:32“The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise?”

This test was developed in respect of “a cause of action which arose within the jurisdiction”,33 but its application to a “tort committed within the jurisdiction” is undoubtedly correct.34 It appears to be a general test for all torts,35 but it has been emphasised that in its application each tort must be separately considered to see where it is committed.36

The clearest advantage of...