Lim Kok Lian (executor and trustee of the estate of Lee Biau Luan, deceased) v Lee Patricia (executor and trustee of the estate of Lee Biau Luan, deceased) and another

• Jurisdiction: Singapore
• Judge: Edmund Leow JC
• Judgment Date: 23 December 2014
• Neutral Citation: [2014] SGHC 272
• Plaintiff Counsel: Nair Suresh Sukumaran and Tan Tse Hsien, Bryan (Chen Shixian) (Straits Law Practice LLC),Chin Jun Qi (Drew and Napier LLC) (on watching brief)
• Docket Number: Suit No 584 of 2013 (Registrar’s Appeals Nos 253, 254, 255 and 256 of 2014)
• Date: 23 December 2014
• Hearing Date: 24 November 2014
• Subject Matter: Civil Procedure,Striking out
• Published date: 29 December 2014
• Citation: [2014] SGHC 272
• Defendant Counsel: Yeo Khirn Hai Alvin SC and Sim Mei Ling (WongPartnership LLP) (instructed), Wong Tjen Wee (Eldan Law LLP)
• Court: High Court (Singapore)
• Year: 2014

Edmund Leow JC: Introduction

The main issue in these appeals is whether the counterclaims brought by the defendants should be struck out under O 18 r 19 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the ROC”). After hearing the parties on 24 November 2014, I reserved judgment to give further consideration to the parties’ submissions.

Background facts

The plaintiff in Suit No 584 of 2013, Lim Kok Lian (“KL”), is the executor and trustee of the estate of Lee Biau Luan, his late mother. KL is suing his sister and co-executor, Patricia Lee (“Pat”) and her son, Mark Tan Chai Ming (“Mark”) for, inter alia, fraudulent breach of trust. Pat and Mark in turn filed a counterclaim against KL and his two brothers, Lim Kok Kian Chiao Ki (“KK”) and Peter Michael Lee Yong Pee (“PM”), their cause of action being the torts of malicious prosecution of civil proceedings, abuse of process, and conspiracy.

KK and PM brought Summons No 2794 of 2014 and Summons No 2305 of 2014 (“the Striking Out Summonses”) respectively to strike out the counterclaims against them. They were both successful in their respective striking out applications before the Assistant Registrar (“the AR”) save for the claim in conspiracy by lawful means which the AR declined to strike out. They now appeal in Registrar’s Appeals Nos 253 and 254 of 2014 against the AR’s decision not to strike out the remaining claim while Pat and Mark brought Registrar’s Appeals Nos 255 and 256 of 2014 appealing against the AR’s decision to strike out the other three claims.

The decision below

The AR held that the cause of action for malicious civil proceedings was legally unsustainable because Pat and Mark were unable to satisfy the requirement that a prior proceeding has been determined in their favour. Similarly, the AR struck out the claim for abuse of process because commencing an action to seek leverage to obtain a compromise of proceedings was not a collateral purpose. Since the torts of malicious prosecution and abuse of process were struck out, it was held that the claim for conspiracy by unlawful means would also be struck out. For the claim of conspiracy by lawful means, the AR declined to strike it out because the alleged predominant purpose was to further the legitimate interest of enlarging the estate, a matter which was to be determined at trial.

The parties’ submissions

Pat and Mark’s submissions can be summarised as follows: The AR adopted an unduly restrictive approach to the first element of malicious civil proceedings set out in Crawford Adjusters and others v Sagicor General Insurance (Cayman) Limited and another [2013] UKPC 17 (“Crawford Adjusters”) which requires proceedings to be concluded in favour of the party relying on the tort. In Crawford Adjusters itself, the court had allowed the tort to be advanced in a counterclaim without the institution of a fresh action. The AR erred in relying on Land Securities plc and others v Fladgate Fielder (a firm) [2010] Ch 467 (“Land Securities”) as the decision actually turned on how the tort of abuse of process could not be extended to judicial review proceedings when leave to commence such proceedings had already been obtained. The AR erred since as long as there was an arguable case for either the tort of malicious civil proceedings or abuse of process, the claim for conspiracy by unlawful means should not be struck out.

KK and PM’s submissions can be summarised as follows: The claim for malicious civil proceedings should fail as it is not a tort known to Singapore law. It has no application where there has been no judgment in the complainant’s favour and where no damage has been suffered. The claim for abuse of process should fail as neither KK nor PM has any collateral or improper purpose in suing. Moreover, no damage had been suffered by them. The claim for unlawful means conspiracy should fail as Pat and Mark have failed to establish the torts of malicious civil proceedings and abuse of process. Also, they had not suffered any damage. The claim for lawful means conspiracy should fail as the law does not allow a conspiracy claim to circumvent the need to demonstrate wrongful conduct. Pat and Mark also had not suffered any damage.

Issues

The following issues to be decided in these appeals are as follows: whether the claim for the tort of malicious civil proceedings should be struck out; whether the claim for the tort of abuse of process should be struck out; whether the claim for the tort of conspiracy by unlawful means should be struck out; and whether the claim for the tort of conspiracy by lawful means should be struck out.

The threshold for striking out

O 18 r 19 of the ROC states as follows:

Striking out pleadings and endorsements (O. 18, r. 19) 19.—(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that — (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under paragraph (1)(a).

(3) This Rule shall, as far as applicable, apply to an originating summons as if it were a pleading.

In the Striking Out Summonses, it was stated that the applications were made pursuant to all four limbs of O 18 r 19(1). Counsel for PM and KK, Mr Suresh Nair, stated at the hearing before the AR below that he was relying principally on the “no reasonable cause of action” limb, ie, O 18 r 19(1)(a).¹ Mr Nair appears to have relied on the same limb at the hearing before me.² In contrast, Pat and Mark seems to be responding instead to an application based on O 18 r 19(1)(b) although this has not been explicitly articulated.

I would have been better assisted by counsel if they had related their submissions to the particular limb of O 18 r 19(1) that they were relying on. Parties and the counsel representing them would do well to heed the following observations made by V K Rajah JA in The “Bunga Melati 5” [2012] 4 SLR 546 (“Bunga Melati 5”) at [31]: 31 In our view, it would be a good practice for an applicant of a striking out order to precisely correlate the arguments it advances to the exact limb under O 18 r 19(1) of the ROC which it seeks to rely on. Such a practice will assist the courts to better understand the thrust of the applicant’s arguments and assess them. While there is some similarity and overlap amongst the four limbs of O 18 r 19(1) of the ROC, each limb, conceptually speaking, serves a specific purpose apropos the court’s power to summarily dismiss a party’s claim.

[emphasis in original]

Notwithstanding this slight ambiguity in the parties’ submissions, I shall consider both O 18 r 19(1)(a) and 19(1)(b) in deciding whether the counterclaims at hand should be struck out since parties have ostensibly relied on both limbs in these appeals.

It is established law that the threshold for striking out a claim is a high one. The court will strike out a claim only if it is plainly or obviously unsustainable (see Bunga Melati 5 at [32]). It must be impossible and not just improbable for the claim to succeed before the court will strike it out (see Singapore Civil Procedure 2013 vol 1 (G P Selvam ed-in-chief) (Sweet & Maxwell Asia, 2013) (“Singapore Civil Procedure”) at para 18/19/6).

Issue 1: Whether the claim for the tort of malicious civil proceedings should be struck out

It is not entirely clear whether this tort is a recognised cause of action in Singapore. On one hand, the High Court case of Bhagwan Singh v Chand Singh [1968-1970] SLR(R) 50 (“Bhagwan Singh”) seems to have recognised the tort (at [28]) although it ultimately held that the claim was not made out on the facts (at [29]). On the other hand, a Singapore textbook on tort law denies its existence as expressed in the following passage (see Gary Chan Kok Yew and Lee Pey Woan, The Law of Torts in Singapore (Academy Publishing, 2011) (“Gary Chan”) at para 17.007):

… The tort of malicious prosecution does not, however, extend to civil proceedings and disciplinary proceedings. One reason is that in civil proceedings, the expenses incurred by the defendant in the action may be compensated for by an award of costs. …

The case of Bhagwan Singh does not seem to have come to the attention of the learned authors of Gary Chan.

The existence of the tort was also doubted recently in Strategic Worldwide Assets Ltd v Sandz Solutions (Singapore) Pte Ltd and others (Tan Choon Wee and another, third parties) [2013] 4 SLR 662 (“Sandz...