District Judge Christopher Tan Pheng Wee:
This case concerns a writ of summons (“the writ”) that was issued close to the end of the limitation period governing the underlying cause of action. When the writ was nearing the end of its validity, the Plaintiff filed an ex parte application to renew the writ, pursuant to O 6 r 4(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”). By then, the limitation period had lapsed.
The application for renewal was granted, following which the Plaintiff served the renewed writ on the Defendant Company. The Defendant Company applied to set aside: the order renewing the writ; and service of that writ.
The Defendant Company’s application was dismissed, on the ground (inter alia) that the deadline prescribed by O 12 r 7(1) of the ROC for setting aside service had long since passed and the Defendant failed to apply for any extension of that deadline.
The Defendant Company appealed. I allowed the appeal in part, setting aside the renewal of the writ but upholding the refusal to set aside service.
Procedural Background
At the material time, the Plaintiff was an employee of the Defendant Company. On 11 May 2016, he suffered a fall during the course of his employment and sustained knee injuries, for which he underwent surgery. The Plaintiff then engaged counsel to advise him on seeking redress.
On 8 April 2019, the Plaintiff changed solicitors and engaged S L Law Chambers, ie, the current solicitors for the Plaintiff. On 6 May 2019, the Plaintiff issued the writ against the Defendant Company. Five days after that, on 11 May 2019, the three-year limitation period lapsed.
The writ was not served within its original validity period. Instead, on 31 October 2019 (ie, six days before the writ was due to expire) the Plaintiff filed an ex parte application in SUM 4219/2019 (“SUM 4219”) to renew the writ, pursuant to O 6 r 4(2) of the ROC. On 4 November 2019, the State Courts Registry directed the Plaintiff to furnish an affidavit in support of the application. This was just two days before the writ was due to expire on 6 November 2019.
On 24 November 2019, the Plaintiff filed an affidavit (“SLK1”) in support of the application in SUM 4219 to renew the writ. After SLK1 was filed, the Deputy Registrar granted the application, extending the validity of the writ to 5 May 2020.
As it turned out, the renewed writ was not served within its extended validity period. On 6 April 2020, Plaintiff Counsel asked Defence Counsel if the latter would be accepting service on behalf of the Defendant Company. On 5 May 2020, ie, the last day of the extended validity period of the renewed writ, Defence Counsel replied that he had reservations about accepting service immediately as the Circuit Breaker was on and it would be difficult to prepare the Defence if timelines were to run immediately. Defence Counsel thus asked Plaintiff Counsel for an extension of time to revert, to which Plaintiff Counsel agreed. On 9 June 2020 Defence Counsel reverted to say that they were now ready to accept service. On 19 June 2020, Plaintiff Counsel served both the writ and the Statement of Claim (“SoC”) on Defence Counsel and the Defendant Company entered an appearance that same day.
A Court Dispute Resolution (“CDR”) session was scheduled for 30 July 2020. However, that session was postponed (at Plaintiff Counsel’s behest) to 10 September 2020. There then followed three CDR sessions, on 10 September, 8 October, and 5 November 2020.
On 12 January 2021 (ie, close to seven months after entering an appearance), the Defendant Company filed its Defence and Counterclaim, which pleaded (inter alia) that the application in SUM 4219 to renew the writ was not supported by sufficient reasons. The next day, on 13 January 2021, the Defendant Company filed SUM 183/2021 (“SUM 183”) to set aside: the order in SUM 4219 renewing the writ; and service of the writ.
On the assumption that the renewal of the writ pursuant to SUM 4219 was valid, the service on 19 June 2020 would have been one and a half months past expiry of the writ (the extended expiry date being 6 May 2020). However, if the order in SUM 4219 renewing the writ were to be set aside, the service on 19 June 2020 would have been seven and a half months past expiry (as the writ would have expired on the original date of 6 November 2019 and not the extended date of 6 May 2020).
The Decision Below
SUM 183 was heard by the learned Deputy Registrar Tan (“DR Tan”), who dismissed the application to set aside the renewal of the writ. DR Tan also refused to set aside the service of the writ, as the application to set aside was filed long after the deadline prescribed by O 12 r 7(1) of the ROC (which requires that the application for setting aside be filed by the time limited for serving the Defence). DR Tan was of the view that the Defendant Company ought to have first filed an application to extend that deadline before filing any application to set aside service.
After SUM 183 was dismissed by DR Tan, the Defendant Company filed the following: RA 45/2021 (“RA 45”), appealing against DR Tan’s dismissal of SUM 183; and SUM 2308/2021 (“SUM 2308”), to extend the deadline in O 12 r 7(1) of the ROC for setting aside service of the writ.
The Plaintiff, on his part, filed SUM 2454/2021 (“SUM 2454”) to further extend the validity period of the renewed writ to cover the point when the renewed writ was served on 19 June 2020.
My Decision
I allowed the appeal in RA 45 in part, by setting aside the renewal of the writ in SUM 4219 but upholding DR Tan’s refusal to set aside service of the writ (on account of the application to set aside service having been filed well beyond the prescribed deadline). By consent of parties, I also allowed the application by the Defendant Company in SUM 2308 to extend the deadline for applying to set aside service of the writ.
The key issue in RA 45 is whether the order renewing the writ, granted ex parte in SUM 4219, ought not to have been made. This in turn had a bearing on whether service of the writ, effected on 19 June 2020, should be set aside.
As explained by the High Court in The “Ching Ho” and another vessel [2001] SGHC 259 (“Ching Ho”) (at [21]), the analysis of whether a writ should be renewed under O 6 r 4(2) of the ROC is approached via a two-stage process: First, the plaintiff who applies for renewal must show “good reason” for extending the writ’s validity period. Second, after good reason has been shown to exist, the court goes on to consider how the balance of hardship impacts on the decision whether to renew the writ.
Was there good reason for renewing the writ?
I begin with the first stage of the analysis. Was there good reason for renewal of the writ?
The question of whether good reason exists for extending a writ’s validity period is heavily dependent on whether there was good reason for not serving within the writ’s validity period: see Waddon v Whitecroft-Scovill Ltd [1988] 1 WLR 309 (“Waddon v Whitecroft-Scovill”) (at p 314G) and Binning Bros Ltd (in liquidation) v Thomas Eggar Verrall Bowles (a firm) [1998] 1 All ER 409 (“Binning Bros Ltd”) (at p 415D). See also Lim Hong Kan and others v Mohd Sainudin bin Ahmad [1992] SGCA 8 (“Lim Hong Kan”) (at [23]).
Preliminarily, I noted that much of the Defendant Company’s arguments centred on how the Plaintiff had been unreasonable in issuing the writ only on 6 May 2019, ie, just 5 days shy of the limitation period lapsing. In response, Plaintiff Counsel cited various justifications for the delay. For example, it was alleged that the Plaintiff was under the impression that his statutory claim for workmen injury compensation was still pending before the Ministry of Manpower (“MoM”) and that he was awaiting its outcome, unaware that his claim had long been rejected by MoM. The Defence disputed this, contending that the Plaintiff knew from early on that MoM had rejected his claim. However, given the principle set out in the immediately preceding paragraph, I was of the view that the nub of the analysis should not be so much on what happened before the writ was issued but on the circumstances after the writ was issued (specifically, during its validity period) and whether these bore good reason for delaying service.
In that vein, I focused my analysis in this appeal on the space of time between 6 May 2019 (when the writ was issued) and 6 November 2019 (when the writ was due to expire). Why could the Plaintiff not serve the writ within that period?
Two reasons were cited by Plaintiff Counsel to explain why the writ was not served within its original validity period. These are set out in the affidavit SLK1, filed in support of the application in SUM 4219 to renew the writ: At the time of issuing the writ, there were no medical reports documenting the Plaintiff’s injuries as he was still on follow up treatment with the hospital. The Plaintiff could therefore not serve the writ as he needed a medical report for Plaintiff Counsel to draft the SoC, which was to be served together with the writ. The Plaintiff was reluctant to proceed with his claim because he was still employed by the Defendant Company and did not want to jeopardize his employment.
In my view, neither of these reasons passed muster.
The writ could not be served as the Plaintiff needed the medical report to prepare the SoC
Plaintiff Counsel contended that time was needed to procure a medical report on the Plaintiff’s injuries, which report was in turn necessary for preparing the SoC.
I did not agree that this constituted good reason for delaying service of the writ. There was no need for the Plaintiff to have the SoC on hand, when serving the writ. Given that the lapse of the limitation period was looming, he could have simply served the writ first and then seek an extension of time for serving the SoC.
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