Ram Thayalan Raman Siv and Another v Liew Yap Tong trading as Tong Heng Motor Work
| Jurisdiction | Singapore |
| Judge | Woo Bih Li JC |
| Judgment Date | 12 August 2002 |
| Neutral Citation | [2002] SGHC 177 |
| Docket Number | Originating Summons No 93 of 2002 |
| Date | 12 August 2002 |
| Published date | 19 September 2003 |
| Year | 2002 |
| Plaintiff Counsel | Audrey Wong (Rayney Wong & Eric Ng) |
| Citation | [2002] SGHC 177 |
| Defendant Counsel | Tan Cheng Yew (Tan Jinhwee Eunice & Lim) |
| Court | High Court (Singapore) |
| Subject Matter | Whether defendant in an action must bring his claim for damages by way of counterclaim,Policy behind avoidance of multiple proceedings,Incurring of more costs by separate action,Second defendants suing plaintiff for damages,Striking out,Whether incurring of more costs prevents plaintiff from bringing separate action,O 15 r 2(1) Rules of Court,Plaintiff bringing separate action arising from collision against second defendants for damages,Second defendants applying unsuccessfully to strike out action,Whether court's decision on parties' liabilities binds plaintiff on the amount of his claim,Civil Procedure,Nature of counterclaim,Whether policy prevents a defendant from suing as a plaintiff in separate action |
Judgment
GROUNDS OF DECISION
Background1. Mr Liew Yap Tong trading as Tong Heng Motor Work, was the owner of a motor lorry No XA 9258A. Singapore Bus Services Limited (‘SBS’) was the owner of motor bus No SBS 6936L. On 2 March 2000, there was a collision between the lorry and the bus on Jalan Boon Lay. The lorry was driven by Mr Liew’s driver one Lim Guan Chuan and the bus was driven by an employee of SBS, Ram Thayalan Siv.
2. SBS then commenced an action against Mr Liew on 8 August 2000 in MC Suit No 14703 of 2000 (‘the 1st Action’) to recover damages to the bus arising from the collision. That suit is defended by solicitors appointed by Mr Liew’s insurers.
3. Mr Liew then appointed his own solicitors who filed the present action i.e MC Suit No 7188 of 2001 on 19 March 2001 (‘the 2nd Action’) to recover damages to the lorry arising from the same accident. The First Defendant in the 2nd Action is SBS’ driver and the Second Defendant is SBS itself. The solicitors who act for SBS in the 1st Action also act for the First Defendant and SBS in the 2nd Action. For convenience, I will refer to them as SBS’ solicitors and subsequent references to ‘SBS’ in the context of the 2nd Action includes the First Defendant.
4. SBS’ solicitors then wrote to Mr Liew’s solicitors to discontinue the 2nd Action and to make Mr Liew’s claim by way of a counterclaim in the 1st Action. This was refused.
5. Accordingly, SBS then applied to strike out the 2nd Action on the ground that it was an abuse of the process of the court. The sole allegation for this ground was that the claim of Mr Liew must be made by way of a counterclaim in the 1st Action and not by way of a fresh action. The application was dismissed by a Deputy Registrar.
6. SBS then appealed to the District Court. That appeal was also dismissed.
7. SBS then appealed to the High Court and its appeal was heard by me. After hearing arguments, I dismissed the appeal. I now give my written reasons.
Arguments for SBS
8. Mr Tan Cheng Yew, Counsel for SBS, relied on the Law of Insurance (Third Edition) by Poh Chu Chai which states at p 756:
‘ 2. Insurer Not Entitled to Bring a Second Action
When an insured suffers a loss owing to the negligence of a third party, the loss suffered by the insured may not be fully covered by the insured’s own insurance policy. From an insured’s point of view, if he is to recover fully for his losses he has to make a claim against the tortfeasor for that part of the loss which is not covered by his insurance policy. As far as the tortfeasor is concerned, his liability towards the insured is a single liability. Once a settlement has been made between a tortfeasor and an insured, the insured’s cause of action merges with the settlement. The tortfeasor cannot be sued a second time based on the same cause of action. In Buckland v. Palmer, it was decided by the English Court of Appeal that after an insured had recovered his uninsured losses from a tortfeasor, an insurer who had indemnified the insured under an insurance policy was not entitled to bring an action against the tortfeasor to recover his portion of the loss. ….’
9. Mr Tan next relied on the Privy Council decision in Yat Tung Investment Co Ltd v Dao Heng Bank [1975] AC 581 for the proposition that the failure of a party to counterclaim that which should and could have been litigated in an earlier action has been treated as an abuse of process of the court.
10. Mr Tan then relied on Talbot v Berkshire County Council [1994] QB 290 where he cited part of the judgment of Stuart-Smith LJ at p 298 D/E:
‘… They were well aware that the plaintiff was seriously injured and must have known it was in his interest to join any personal injury claim in the existing proceedings since this would be litigated so far as liability was concerned at insurers’ expense. There was no conflict of interest between insurers and the plaintiff; they were both concerned to minimise the plaintiff’s liability and maximise that of the council. If need be the question of quantum could have been tried subsequently.
Accordingly, I agree with the judge that this claim should be struck out unless there are special circumstances which make it inequitable to do so.’
11. Mr Tan also submitted that the rule in Henderson v Henderson (1843) 3 Hare 100 requires parties to litigation to present their whole case and it will not allow the same parties to re-open the same subject of litigation in respect of a matter which might have been brought forward earlier.
12. He submitted that the rule was intended to avoid multiplicity of proceedings which was against public policy. He further submitted that there would be duplication of costs and a risk of inconsistent decisions if Mr Liew was allowed to commence or continue with the 2nd Action.
13. As regards consolidation of proceedings, Mr Tan submitted that this was not possible as Mr Liew was being represented by two different firms of solicitors. On this point, he relied on a passage in para 4/9/2 of the White Book 1999:
‘… Moreover, as one firm of solicitors will usually be given the conduct of the consolidated action on behalf of all plaintiffs, it is generally impossible to consolidate actions in which different solicitors have been instructed (Lewis v Daily Telegraph (No 2) (1964) 2 QB 601.’
Arguments for Mr Liew
14. The sole reason for Mr Liew making his claim by way of the 2nd Action was that he wanted his own solicitors to act for him in his claim whereas the insurers’ solicitors were acting for him in the claim by SBS. The claim by SBS (in the 1st Action) was for slightly less than $4,000. His own claim was for about $34,000.
15. Ms Audrey Wong, Counsel for Mr Liew in the 2nd Action, elaborated on and sought to justify this course of action. I quote from her written submission:
‘5. If one firm of solicitors is to act for the Plaintiff and his insurers in both suits, that solicitor will find himself immediately in a position of conflict of interest if he should receive different instructions from the Plaintiff and the insurers.
6. Whilst an insurer may not find it commercially worthwhile to defend the suit and may be inclined to settle the claim, the Plaintiff, on the other hand, may hold a different view and may intend to prove that liability was totally on the other party. For this reason, if the insurers and the Plaintiff are separately represented, then the practical problem of one firm of solicitors being in a position of conflict owing to differing instructions from the insurers and the Plaintiff, will never arise. If desired, an insurer can instruct his solicitors to settle a claim on a without prejudice basis to the other suit commenced by the insured (the Plaintiff). Not handicapped by the said settlement, the Plaintiff can then proceed with his case in any manner he deems fit.
7. To compel the insurers and the Plaintiff to appoint the same firm of solicitors will present practical problems. As between the Plaintiff and his insurers, the former has hardly any bargaining power. The policy of insurance usually gives the insurers a right to have conduct of the suit including the choice of solicitors. If the Plaintiff attempts to challenge that right, the likely consequence is that the insurers will repudiate all liability to indemnify the Plaintiff and the latter will be left in the cold.
8. If the Plaintiff is compelled to appoint the insurers’ solicitors to act for him in his own suit, certain practical problems may arise as follows:-
a. The insurers’ solicitors may not wish to act for the Plaintiff.
b. The insurers’ solicitors may require payment of a sum as deposit which the Plaintiff may find prohibitive.
c. The insurers’ solicitors’ professional charges may not be agreeable to by the Plaintiff.
d. The insurers’ solicitors may at the personal level experience difficulty in acting for the Plaintiff. After all, it is to be borne in mind that in such circumstances, the Plaintiff is deprived of his choice of solicitors.
e. The Plaintiff will in all likelihood have to pay the repair bill in full to his repairers first if he is compelled to appoint the insurers’ solicitors to act in his recovery action. Very often, the practice in the industry is that a motor repairer will allow a Plaintiff (sic) defer payment of the repair bill until after the outcome of the suit if he appoints a firm of solicitors recommended by his motor repairer.
9. At the right juncture, the Plaintiff herein will apply for both suits to be consolidated. One of the prayers sought will be that one suit will be tried and parties in the other suit will be bound by the outcome of the 1st Suit insofar as liability is concerned. As to which firm of solicitors will have conduct of the trial, it will be the solicitors on record for the Suit which is being tried. In any case, subject to the leave of the Trial Judge, solicitors acting for any of the interested parties may rise to ask questions. Because the issue of liability is the same, the Plaintiff’s solicitors and the insurers’ solicitors will for practical purpose co-ordinate their strategy when it comes to which question to ask and to put to witnesses. But when it comes to quantum, it is only logical that the insurers’ solicitors will conduct the case when it comes to challenging the claim of the other side and likewise, the Plaintiff’s solicitors will have conduct of the case when it comes to proving the Plaintiff’s damages. The situation is not very different if one litigant have 2 lawyers from the same firm acting for him at the trial.
10. As for costs, the Trial Judge will at the end of the hearing be fully appraised of the circumstances of the case and will be in the best position to decide how to make appropriate orders as to costs. In this respect, having two firm of solicitors acting for the Plaintiff and his insurers will not result in prejudice because even if there had been one suit and the Plaintiff had...
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...18. Finally, I would add that the plaintiff’s reliance on Ram Thayalan Raman Siv & Anor v Liew Yap Tong t/a Tong Heng Motor Work [2002] 4 SLR 566 was misplaced. In Ram Thayalan’s case, one Liew was sued by SBS for damage to SBS’ bus following a collision between the bus and Liew’s lorry (wh......