Lee Mun Tuck v Tan Chin Kah and Another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 28 November 1990
• Neutral Citation: [1990] SGHC 94
• Citation: [1990] SGHC 94
• Defendant Counsel: Ng Kian Fong (Ng Kian Fong & Co)
• Published date: 19 September 2003
• Plaintiff Counsel: S Rasanathan (Jacob Charcoal & Associates)
• Date: 28 November 1990
• Docket Number: Suit No 2951 of 1982
• Court: High Court (Singapore)
• Subject Matter: Whether court would assist either party,Inordinate delay by both plaintiff and defendant,Dismissal for want of prosecution,Civil Procedure

Cur Adv Vult

This was an appeal by the second defendant against the decision of the learned assistant registrar dismissing with costs the second defendant`s application for this action to be dismissed for want of prosecution. I dismissed the appeal and I now give my reasons.

The plaintiff is the administrator of the estate of one Lee Wai Leng, deceased. Letters of administration were granted to the plaintiff by the subordinate courts on 1 November 1979. The action was brought for the benefit of the deceased` s estate under s 8 of the Civil Law Act (Cap 30, 1970 Ed) and for the benefit of the dependants of the deceased under s 12 of the Act.

The action concerns a motor accident which occurred on 25 July 1979. The statement of claim avers that at the relevant time the said Lee Wai Leng was a passenger in motor car EF 7173Y driven by the second defendant, as the servant or agent of her emp loyer, the first defendant, along Braddell Road when the second defendant so negligently drove or controlled the car that she caused it to collide into the rear of a stationary motor bus SBS 1406H.

The writ in this action was filed on 20 July 1982, ie four days before the three- year limitation period expired. It was not served on the second defendant until 29 June 1983. The statement of claim was also served at the same time. The plaintiff was then represented by the firm M/s Ngee Thuang & Hiang Chye. On 17 August 1989, the present solicitors for the plaintiff, M/s Jacob Chacko & Associates filed a notice of change of solicitors. On 14 April 1990, M/s Jacob Chacko & Associates filed a notice o f intention to proceed. However, on 2 May 1990 the second defendant filed a summons-in-chambers for an order that the action be dismissed for want of prosecution.

The second defendant entered appearance on the same day the writ was served. However, no defence was filed until 30 May 1990 pursuant to a 24-hour notice given by the present solicitors for the plaintiff, ie a delay of six years and ten months. The s olicitors who were acting for the second defendant were the same throughout the entire period. They are still acting for her now.

I ought to state that the writ and the statement of claim have never been served on the person named as the first defendant. In his affidavit filed to resist the application to dismiss the action for want of prosecution, the plaintiff explained that the person named as the first defendant in the writ is wrong. Tan Chin Kah was never the employer of the second defendant. He was the previous owner of the motor car EF 7173Y. Apparently, when the search was made by the plaintiff` s previous solicitors with the Registry of Vehicles to determine the owner of EF 7173Y, the sale made by Tan Chin Kah to the employer of the second defendant had not yet been registered.

From the time the writ was served on 29 June 1983 up to the time when the plaintiff gave notice of his intention to proceed, there was a delay of six years and nine months. In his affidavit the plaintiff explained that the delay was entirely the faul t of his then solicitors, M/s Ngee Thuang & Hiang Chye. He gave details of the efforts he made to contact the solicitors for the plaintiff without success. It would seem that the firm M/s Ngee Thuang & Hiang Chye ceased to exist sometime in or prior to 1985. It was only on 2 March 1989 after having had no communi cation at all from the previous solicitors that he appointed M/s Jacob Chacko & Associates as his new solicitors to handle the claim. There was no affidavit whatsoever from the plaintiff` s previous solicitors to explain this inordinate delay on their part to pursue their client` s claim.

The law relating to an application to strike out an action for want of prosecution was stated by Salmon LJ in Allen v Sir Alfred McAlpine & Sons [1968] 1 All ER 543 at p 561, as follows:

A defendant may apply to have an action dismissed for want of prosecution either (a) because of the plaintiff` s failure to comply with the Rules of the Supreme Court or (b) under the court` s inherent jurisdiction. In my view it matters not whether the application comes un der limb (a) or (b), the same principles apply. They are as follows: In order for

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