Lim Hong Kan and Others v Mohd Sainudin bin Ahmad

• Jurisdiction: Singapore
• Judgment Date: 16 January 1992
• Date: 16 January 1992
• Docket Number: Civil Appeal No 28 of 1990
• Court: Court of Appeal (Singapore)

Lim Hong Kan and others

Plaintiff

and

Mohd Sainudin bin Ahmad

Defendant

[1992] SGCA 8

Yong Pung How CJ

,

L P Thean J

and

Chan Sek Keong J

Civil Appeal No 28 of 1990

Court of Appeal

Civil Procedure–Writ of summons–Renewal–Court's discretion to extend validity of writ–Balance of hardship–Saving of legal costs

On 8 August 1979 the respondent was severely injured while working at a construction site. He engaged the appellants as his solicitors to claim for damages. On 7 August 1982, the appellants issued a writ against the site owners, Consolidated Hotels (“CH”), claiming damages and costs (“the first action”). Due to the appellant's oversight, the main contractor over the construction works was not included as a defendant.

Pending the hearing of the appeal in the first action, the respondent instructed another firm of solicitors, Patrick Koh & Co (“PKC”), who on 18 July 1988 issued a writ to claim damages against the appellants for negligence (“the second action”). On 20 June 1989, PKC made an ex parte application in the second action to extend the validity of the writ by a period of 12 months on the grounds that it would be in the respondent's interests to await the outcome of the appeal in the first action before proceeding to serve the writ on the appellants, so that the appellants could have the chance to wait and see if there was a need to claim against PKC for negligence, thereby saving legal costs. This was granted. On 20 July 1989 the appeal was dismissed (see [1990] 2 SLR (R) 787). The renewed writ was then served on the appellants who applied to set it aside on the ground that the claim was time-barred, that this was not disclosed to the court when the writ was extended and that the extension denied them the defence of limitation (the “limitation point”). This application was dismissed by the assistant registrar, and the appellants subsequently failed on appeal to the judicial commissioner. The appellants applied for and were granted leave to appeal to the Court of Appeal. The issue before the court was whether the order of extension of the validity of the writ was correctly made.

Held, dismissing the appeal:

(1) Order 6 r 7 (2) of the Rules of the Supreme Court 1970 gave the court an undefined discretion to extend the validity of any writ, but not exceeding a period of 12 months at any one time. Yet the discretion should only be exercised for good reason. The balance of hardship between the parties could be a relevant matter to be taken into account in the exercise of the judge's discretion. The exercise of such discretion should not be interfered with by the appellate court except on special grounds the nature of which was well-established: at [13] to [15].

(2) The saving of legal costs was a sufficiently good reason for not serving the original writ on the appellants before it expired as the respondent had already incurred considerable costs in the first action and his need to save additional costs was entirely reasonable: at [24].

(3) It would have been unreasonable, or at least unrealistic, to require the respondent to serve the original writ on the appellants especially when the appeal in the first action had already been fixed for hearing on a day just outside the validity period of the writ. If the appeal succeeded, it would not have been necessary to proceed with the second action. Moreover, an omission to serve the writ on the appellants was in the appellants' reputational interest. No solicitor would want to invite publicity on a suit against him for negligence in the discharge of his professional duties: at [24] and [25].

[Observation: The appellants were entitled to take the limitation point on appeal as the failure to do so could not have prejudiced the respondent in any way at the time when it was not taken. As neither the assistant registrar nor the judicial commissioner took into account the limitation point when making their respective orders, this court would have to consider this appeal on the basis of what the correct order should have been if the point had been taken into account: at [9] to [11].]

Jones v Jones [1970] 2 QB 576; [1970] 3 All ER 47 (refd)

Kleinwort Benson Ltd v Barbrak Ltd; The Myrto (No 3) [1987] AC 597; [1987] 2 All ER 289 (folld)

Waddon v Whitecroft Scovill Ltd [1988] 1 WLR 309; [1988] 1 All ER 996 (refd)

Rules of the Supreme Court1970, TheO 6r 7 (2)

Rules of the Supreme Court1965 (UK) O 6r 8 (2)

Harry Elias and Devinder Rai (Harry Elias & Partners) for the appellants

R Palakrishnan (Palakrishnan & Partners) for the respondent.

Judgment reserved.

Chan Sek Keong J

(delivering the judgment of the court):

1 This is an appeal from the decision of the judicial commissioner, Mr Tan Teow Yeow, refusing the appellants' application to set aside the order of the Assistant Registrar extending the validity period of the respondent's writ of summons.

2 On 8 August 1979, the respondent was working at the construction site of the building then under construction and now known as Peninsula Plaza. He was tying poles with rattan on the third floor of the partially completed building when a brick fell from the upper floors and landed on his head. He was severely injured. The appellants, M/s LGL, acted as his solicitors in commencing Suit No 3244 of 1982 against the owners of the site, Consolidated Hotels Ltd, as the first defendants and the scaffolding subcontractor, Yeo Yan San, as the second defendant. M/s LGL did not include the main contractors, SA Shee & Co Pte Ltd (“SA Shee”), as a defendant in the action.

3 The second defendant did not enter appearance and interlocutory judgment was entered against him on 27 March 1984. Damages were subsequently assessed at $209,920 and costs. This judgment has not been satisfied.

4 The first defendants filed their defence on 3 December 1982 and...