A REVIEW OF RECENT AMENDMENTS TO THE RULES OF THE SUPREME COURT
| Date | 01 December 1991 |
| Author | JEFFREY PINSLER |
| Published date | 01 December 1991 |
Amendments to the Singapore Rules of the Supreme Court were introduced in three stages during the course of 1991. The Rules of the Supreme Court (Amendment) Rules, operational since 1st July 1991, introduced a new Appendix B (court fees). On August 1st 1991, the Rules of the Supreme Court (Amendment No. 2) Rules came into effect. The Rules of the Supreme Court (Amendment No. 3) Rules, the last in the series for 1991, come into force on February 1st, 1992. The Amendment No. 2 and Amendment No. 3 Rules are considered in part one and part two of this article respectively.
These rules, which came into operation on 1st August 1991, constitute a series of wide-ranging amendments to the Rules of the Supreme Court. The amendments which concern Orders 11, 29, 35, 56, 59, 62, and 70 apply to all proceedings whether or not commenced before 1st August 1991.1 The amendments to Orders 5, 14, 18, 24, 25, 28, 37, 38, 41, 73, 81, forms 18 and 46 apply only to proceedings commenced on or after 1st August 1991.2 As to the amending rules in relation to appeals (Orders 57 and 58 and form 116), the general position is that they only apply to proceedings commenced on or after 1st August 1991.3 However, the new Order 57 rule 9A (which introduces the submission of the parties’‘Cases’ on appeal), is to apply ‘with such necessary modifications as the Chief Justice may determine, to any appeal filed on or after 1st January 1989 but before 1st August 1991 where the Chief Justice so directs.’4 This direction has been given in Practice Direction No. 6 of 1991.
Paragraph (1) of Order 62 rule 2 is amended so that personal service may now be effected ‘… by a solicitor or a solicitor’s clerk whose name and particulars have been notified to the Registrar for this purpose.’6
Amendments have been made to Order 11 rule 5, the rule governing service of notice of a writ out of the jurisdiction. Rule 5 (8), which applies where the defendant is in Malaysia or Brunei, is modified so as to include alternative modes of service. The modes of service specified in Rule 6 are now specifically incorporated by rule 5 (8) so that service may be effected through foreign governments, judicial authorities, Singapore consuls and ‘by a method of service authorised by the law of that country for service of any originating process issued in that country.’ This last method of service is a new provision which has been included in rule 6 (2) as paragraph (c). In accordance with these amendments the marginal notes to rules 5 and 6 have been amended. ‘Alternative modes’ is now to be found in the place of the word ‘General’ in the marginal note to rule 5; and the words ‘or by other method of service’ follow the word ‘consuls’ in the marginal note to rule 6.8
Previous to the amendments no restriction was placed by Order 14 on the number of affidavits which could be filed by the parties. The only time constraint was that the summons and supporting affidavit had to be served on the defendant not less than 4 clear days before the return day.10 There was nothing, except an order of court, to prevent the affidavit process continuing indefinitely. Moreover, the absence of time limits meant that affidavits might be served at the last moment, and this was often done to force an adjournment. The new rules provide for the following procedures: the prescribed form for the applicant’s affidavit (form 118) is deleted and he is no longer required to state in his affidavit that in his belief there is no defence to the claim or part of it, or no defence except as to the amount of damages claimed.11 The plaintiff may still apply on the basis that the defendant has no defence to a claim or part of a claim or that his defence only concerns the amount of damages claimed.12 The application must be
made by summons supported by affidavit or affidavits.13 The summons and the affidavit(s) in support must be filed at the same time, and must be served on the defendant within 3 days from the date of filing.14 The defendant may ‘show cause’ against the plaintiff’s application15 by filing and serving his affidavit(s) on the plaintiff within 21 days after the service of plaintiff’s summons and supporting affidavit(s).16 The plaintiff may respond to the defendant’s affidavit(s) by filing and serving a further affidavit or affidavits within 14 days after the defendant’s affidavit(s) have been served.17 The parties are expected to strictly comply with these time limits and failure in this respect may lead to an order as to costs being made against the defaulting party.18 Unless the court gives leave neither party may file further affidavits.19 The affidavits:
‘must contain all necessary evidence in support of or in opposition (as the case may be) to the claim, or part of the claim, to which the application relates, and unless the court otherwise directs, may contain statements of information or belief with the sources and grounds thereof.’20
The affidavit(s) may be made by the party or any person authorised by him to do so, ideally someone who has personal knowledge of the facts. However, as indicated in the above rule personal knowledge is not essential as long as the the sources and grounds of the deponent’s belief or information are stated. Rule 3, which concerns judgment for the plaintiff, remains the same. As paragraphs (1) and (2) of rule 4 are no longer necessary in view of the new provisions in rule 2, those paragraphs are deleted, and paragraphs (3) and (4) become (1) and (2). Accordingly, the reference in rule 5 (2) (c) (which concerns counterclaims) to paragraph (3) of rule 4 is changed to paragraph (1) of that rule.
The scope of the Order has also been varied. The former paragraph (2) of rule 1 excluded from the scope of the Order claims for libel, slander, malicious prosecution, false imprisonment, seduction, breach of promise of marriage and fraud. Paragraph (2) of rule 1 as well as paragraph (3) of
rule 5 (which applied that provision to counterclaims) have now been deleted. Paragraph (3) of rule 1 provided that actions to which the former Order 81 applied were also excluded from the scope of Order 14.21 As Order 81 has been expunged, paragraph (3) of rule 1 has been deleted as well. Rule 9 (which concerns judgment for delivery up of movable property) is amended to exclude the references to rules 1 and 5.
The plaintiff who sues for personal injuries in the High Court is now required to serve a medical report and a statement of the special damages claimed with his statement of claim.23 The same requirements apply to a defendant in respect of his counterclaim for personal injuries.24 If these documents are not served with the statement of claim or counterclaim the court may:
‘(a) specify the period of the time within which they are to be provided, or
(b) make such other order as it thinks fit (including an order dispensing with the requirements of paragraph (1A)25 or staying the proceedings).’26
The medical report must substantiate all the personal injuries alleged in the statement of claim or counterclaim as the case may be, evidence of which the plaintiff or defendant respectively proposes to produce at the trial.27 The statement of special damages is defined as:
‘a statement giving full particulars of the special damages claimed for expenses and losses already incurred and an estimate of any future expenses and losses (including loss of earnings, loss of Central Provident Fund contributions and loss of pension rights).’
The former O 18 r 22 (4) excluded claims for libel, slander, malicious prosecution, false imprisonment, seduction, breach of promise of marriage and fraud from the scope of the process of trial without proceedings. This provision has been deleted.
The former rule, as stated in O 38 r 1, was that the evidence of witnesses had to be proved ‘…by the examination of witnesses orally…’. Affidavits could be used at the trial but only if the court regarded the circumstances to be such that ‘it would be reasonable to so order’.30 This process envisaged the use of affidavit evidence as an exception to the general rule that witnesses were to be orally examined. The effect of the amendments is that the use of affidavit evidence is no longer the exception but rather the general method for adducing the evidence in chief of the witness. The amended O 38 r 2 (1) provides as follows:
Without prejudice to the generality of Rule 1, and unless otherwise provided by any written law or by these Rules, at the trial of an action commenced by writ, evidence in chief of a witness shall be given by way of affidavit and, unless the court otherwise orders or the parties to the action otherwise agree, such a witness shall attend trial for cross-examination and in default of his attendance, his affidavit shall not be received in evidence except with the leave of the court.
This new procedure does not alter the mode of trial which continues to be the examination of witnesses in open court.31 Indeed, Order 38 rule 1 is only amended to the extent that the word ‘orally’ is deleted. However, where, as in the majority of cases, the evidence in chief is in the form of affidavits, the examination of witnesses will generally be limited to cross-examination and re-examination. Accordingly, the witnesses who give their evidence in chief by way of affidavit are expressly required to attend trial for the purpose of cross-examination ‘unless the court otherwise orders or the parties to the action otherwise agree’.32 The previous position
with regard to suits begun by originating summons, originating motion or petition and applications by...
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