NOTES AND COMMENTS

• Published date: 01 December 1990
• Date: 01 December 1990
• Author: SUNDARESH MENON
• Citation: (1990) 2 SAcLJ 111

Effecting Service of Process Out of The Jurisdiction

Ong & Co Pte Ltd V Carl YL Chow 1

Introduction

Prior to the decision of the High Court of Singapore in Ong & Co Pte Ltd v Carl YL Chow (“the Carl Chow case”) the preferred practice of many local practitioners, in effecting service of process on defendants in foreign jurisdictions, had been to do so through the agency of a firm of solicitors in the jurisdiction in question. This was preferred to the other methods provided for in Order 11 of the Rules of the Supreme Court (“the 1970 Rules”) because it was generally a faster means of achieving the desired end and entailed a less cumbersome procedure. The decision in the Carl Chow case has all but put an end to this practice since it was held there that the service of the notice of writ in that case, which had been effected through the agency of solicitors in the foreign jurisdiction, was a nullity and was accordingly set aside.

The purpose of this note is to review the basis upon which the court reached its decision, and to suggest that contrary to this decision, service of process through the agency of foreign solicitors is not prohibited by the 1970 Rules or by any other principle of law.

The Facts in the Carl Chow Case

The facts of the case insofar as they were relevant to the issues before the court were very simple. The plaintiff having obtained leave to issue a writ for service out of the jurisdiction, and to serve notice of the same at an address in Kuala Lumpur, Malaysia, proceeded to do just that. The notice was served on the defendant personally by a service clerk employed by a firm of solicitors practising in Kuala Lumpur, who presumably had been instructed on behalf of the plaintiff for this purpose. Further, an affidavit was filed by an Advocate and Solicitor practising in Kuala Lumpur, in which it was stated that this method of service was permitted by the rules of procedure applicable in Malaysia. The facts are only remarkable in that the defendant then applied to set aside service of the notice. The defendant submitted that the service was bad because it had not been effected in accordance with Order 11 Rule 5(8) and/or Rule 6(2) of the 1970 Rules.

The defendant’s application was granted by the Senior Assistant Registrar and the plaintiff then appealed, unsuccessfully, to the Judge in Chambers.

The 1970 Rules

Before analysing the basis upon which the court reached its decision, it would be

useful to review the provisions of the 1970 Rules which govern service of process out of the jurisdiction. The key provisions are found in Order 11 and in particular in Rules 5, 6 and 7.

In analysing Rule 5 it is convenient to divide it into 3 parts.2 The first part comprises sub-rules 1 to 3 which provide as follows:-

1. “(1) Subject to the following provisions of this Rule, Order 10 Rule 1, and Order 62 Rule 5, shall apply in relation to the service of a notice of a writ notwithstanding that the notice is to be served out of the jurisdiction.

2. (2) Nothing in this Rule or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.

3. (3) A notice of writ which is to be served out of the jurisdiction need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected.”

The second part of Rule 5 comprises sub-rules 4 to 7 and these primarily deal with the method of proving service that has been effected under Rules 6 or 7.

The last part of Rule 5 consists of sub-rule 8, which deals with service of process in Malaysia or Brunei and provides that the relevant documents may be sent by the Registrar to his counterpart in the area in which the person to be served is said to be, and if one set of these are returned with an indorsement and an affidavit of service, they shall be deemed to have been duly served.

Rule 6 provides that a notice may be served through the Singapore consular authorities or through the judicial authorities or the government (if it is willing) of the country in which the defendant is.3 Rule 6(1) deals with service in countries with which there subsists a Civil Procedure Convention while Rule 6(2) deals with service in countries with which there is no such convention. The remaining sub-rules govern the procedural requirements to be fulfilled where a notice is sought to be served under Rule 6.

Rule 7 deals with service of a notice on a defendant state which is a High Contracting Party to the Warsaw Convention. In such instances the plaintiffseeking to serve the notice must lodge in the Registry, a request for service to be arranged by the Minister together with other prescribed documents.

Finally one other provision should be briefly mentioned. By virtue of Order 10 Rule 3 parties to a contract may provide for the manner of and place for service of process as well as the person on whom it is to be served. As long as process is served in accordance with such an agreement, it is deemed to have been duly served. Sub-rule (2) recognises that a notice of a writ to be served out of the jurisdiction, may similarly be deemed to have been duly served as long as leave to serve the same has first been obtained under Rules 1 or 2 of Order 11.

The Decision in the Carl Chow Case

The plaintiff’s position in the Carl Chow case appears to have been that by virtue of Rules 5(1) and 5(2) of Order 11, service of the notice had been lawfully effected since it was not contrary to Malaysian law. The latter point was sought to be proved by the affidavit evidence of the Malaysian practitioner. Rule 5(3) appears not to have been cited in this connection.

Against this, the defendant appears to have taken the position that Rule 5(8) and/or Rule 6(2) prescribe a mandatory regime for service out of the jurisdiction. Since service was not effected through these means but rather through the agency of solicitors in Malaysia, it was submitted that service was bad.

The plaintiff’s reply, that these Rules were discretionary and did not displace the alternatives provided for in Rules 5(1) and 5(2), was not accepted by the Court. The plaintiff had primarily replied on the use of the word “may” in these sub-rules to support the position that Rule 5(8) and Rule 6(2) were to be construed as if they were discretionary only and not mandatory.

The reasoning of the Court, in finding for the defendant seems to have been based on concerns of the limits of a state’s sovereignty and may be summarised as follows:-

1. i) The service of a writ or of a notice thereof is an exercise of the judicial power of a state. The judicial power of a state cannot be exercised outside its territorial limits, in another state, except with the consent of that other state;4

2. ii) In the case of service of a notice of a writ in Malaysia or Brunei, Rule 5(8) sets out the agreement of the governments of those 2 states to allow service to be

1. effected in the manner set out therein. It follows that without Rule 5(8) or some other provision contained in Order 11, service of a notice of a writ in either of those states would be prohibited by reason of the principle set out at (i) above. The use of the word “may” in Rule 5(8) and by parity of reasoning in Rules 6(1) and (2) connotes permission and not discretion;5

2. iii) Service through the agency of solicitors was not authorised by the 1970 Rules and was therefore bad.6 Further the plaintiff in effecting service without complying with Rule 5(8) or Rule 6(2) had disregarded the legal basis upon which the judicial power of Singapore could be exercised in Malaysia and the purported service was a nullity.7

Finally the Court rejected the plaintiff’s alternative submission that the breach of the 1970 Rules was an irregularity which could be cured at the Court’s discretion under Order 2. The main ground for rejecting this submission was that the purported service was a nullity and not a mere irregularity.8

The Sovereignty Argument

The Court’s ruling that service of a writ is an exercise of the judicial power of a state is undoubtedly correct. A writ by its very terms is a command to the defendant by the Chief Judicial Officer of the state, issued in the name of the sovereign Head of State.9

The next step in the Court’s reasoning that the judicial power of a state can only be exercised within its territorial limits, is also, it is submitted, correct.10

However both these principles say nothing of the crucial distinction between a writ, which as stated above is a command to the defendant, and a notice of a writ, which

it is respectfully submitted is neither such a command, nor an exercise of the judicial power of the state. The Court in this case had relied on the judgment of Lord Denning MR...