SBS Transit Ltd (formerly known as Singapore Bus Services Limited) v Koh Swee Ann

• Judge: Chao Hick Tin JA
• Judgment Date: 28 June 2004
• Neutral Citation: [2004] SGCA 26
• Citation: [2004] SGCA 26
• Defendant Counsel: Subbiah Pillai (Pillai and Pillai)
• Published date: 05 July 2004
• Plaintiff Counsel: Cindy Sim (Tan JinHwee, Eunice and Lim ChooEng)
• Date: 24 June 2004
• Docket Number: Civil Appeal No 135 of 2003
• Court: Court of Appeal (Singapore)
• Subject Matter: Civil Procedure,Offer to settle,Leave,Final and conclusive nature of refusal of leave to appeal,Whether successive statutory offers to settle supersede earlier statutory offers to settle,Whether Calderbank letter amounts to statutory offer to settle,Appeals,Order 22A Rules of Court (Cap 322, R 5, 1997 Rev Ed)

24 June 2004

Judith Prakash J (delivering the judgment of the court):

1 It has long been a rule of the common law that wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given: In re Housing of the Working Classes Act, 1890, Ex parte Stevenson [1892] 1 QB 609. The appellant in this case thought that this rule did not apply to an order of the High Court made pursuant to an originating summons asking for leave to appeal from a decision of a Magistrate’s Court. The appellant was wrong and the appeal had to be dismissed on the basis of the preliminary objection put up by the respondent that the Court of Appeal had no jurisdiction to hear the appeal. While the rule in question is over 100 years old, it appears to us that it is opportune to remind members of the legal community of its existence so as to avoid further hopeless appeals.

Background

2 The original action in the Magistrate’s Court arose out of a traffic accident between a bus driven by an employee of the appellant, SBS Transit Ltd, and the respondent’s car in July 2000. Three months later, the respondent demanded some $9,000 in damages from the appellant. On 26 December 2000, the appellant, in a letter marked “Without Prejudice Save as to Costs”, offered to settle the respondent’s claim for “a global sum of $6,322 [subject to proof of receipts for the rental charges and General Insurance Association of Singapore fees paid] in full and final settlement of all claims pertaining to the accident”. This letter qualified as a “Calderbank letter” of the type identified by Calderbank v Calderbank [1976] Fam 93.

3 The respondent rejected the Calderbank letter in May 2001. In April 2002, she started the original action against the appellant and claimed damages of $8,490.18. On 26 June 2002, the appellant served on the respondent a formal offer to settle (“OTS”) pursuant to O 22A r 1 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) (“the Rules”). By it, the appellant offered the respondent the same sum of $6,322 in settlement. On 13 July 2002, the appellant withdrew this OTS. Two days later, it served another OTS on the respondent. The second OTS was for $3,161. The respondent did not accept the second OTS and the matter went to trial.

4 At the conclusion of the trial on 10 June 2003, the district judge who heard the case (sitting as a magistrate) apportioned the liability for the accident between the appellant and the respondent. The appellant was found 80% liable. The appellant was ordered to pay the respondent $6,065.85 as damages and costs of $3,500 plus reasonable disbursements.

5 Section 21(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“the Act”) provides that an appeal lies to the High Court from a decision of a Magistrate’s Court in any suit where the value of the subject matter exceeds $50,000 or, where the value is less, leave to appeal has been given by a District Court, a Magistrate’s Court or the High Court. Under O 55D r 4 of the Rules, a party applying for leave to appeal against an order made by a Magistrate’s Court must first file his application to that court. In the event leave is refused by that court, he may, within seven days of such refusal, apply to the High Court for leave. On 20 June 2003, the appellant applied to the Magistrate’s Court for leave to appeal against the costs order. The appellant contended that the respondent had not been entitled to costs given that the judgment sum awarded in her favour was lower than the amount that it had offered her in the Calderbank letter. It submitted that there was a question of public importance such that leave to appeal should be granted, ie, whether for the purposes of an order for costs a formal OTS would supersede a pre-writ Calderbank letter. The district judge refused to grant leave to appeal.

6 The appellant did not let the matter lie. It decided to take a second bite of the cherry by filing an originating summons in the High Court for leave to appeal against the costs order made by the Magistrate’s Court. This originating summons was heard and dismissed by Lai Kew Chai J on 13 August 2003.

7 The appellant did not realise that it had come to the end of the road. It wanted to appeal to this court but thought that it needed leave to do so as s 34(2)(b) of the Act provides that, except with the leave of the Court of Appeal or a Judge, no appeal shall be brought to the Court of Appeal where the only issue in the appeal relates to costs or fees for hearing dates. The appellant therefore filed a summons in chambers in the originating summons asking for leave to appeal against Lai J’s order. This summons in chambers was heard in September and November 2003 and the appellant was able to persuade the judge to grant it the leave sought. So the matter came before us as an appeal against Lai J’s refusal to grant leave to appeal against the district judge’s decision on costs.

The applicable legal principle and its rationale

8 The first case to establish the principle that where a legal decision cannot be appealed against except with express permission from a named authority, the decision of that authority whether or not to grant leave is final, was Lane v Esdaile [1891] AC 210. In that case, the appellants had been refused leave to appeal to the House of Lords by the Court of Appeal. They proceeded to appeal against that refusal but were met with the preliminary objection that no appeal lay to the House of Lords from such a refusal. Upholding the preliminary objection, Lord Halsbury LC gave the rationale for such a restricted approach (at 212–213):

[I]t seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal – that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of Appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceeding the Court of Appeal might be entertaining an appeal upon the very same question when this House was entertaining the question whether the Court of Appeal ought ever to have granted the appeal. My Lords, it seems to me that that would reduce the provision to such an absurdity that even if the language were more clear than is contended on the other side one really ought to give it a reasonable construction.

9 Lane v Esdaile was followed by Ex parte Stevenson ([1] supra) in 1892. Ninety years later, in Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262, Sir John Donaldson MR applied the principle as stated in Ex parte Stevenson to the case of a refusal by the social security commissioner to grant leave to an applicant to appeal to the Court of Appeal against a decision of a benefit appeal tribunal. Lord Bingham affirmed this position even more recently in the case of R v Secretary of State for Trade and Industry, ex parte Eastaway [2000] 1 WLR 2222 where he accepted that case law recognised it was obviously absurd to allow an appeal against the decision under a provision designed to limit the right of appeal. Lord Hoffmann, in another recent decision, Kemper Reinsurance Co...