Date01 December 1994
Citation(1994) 6 SAcLJ 418
Published date01 December 1994

In the High Court, the writ is valid for 12 months beginning with the date of issue.1 In the case of the subordinate courts, the rule was recently changed so that the period of validity is now six months.2 The court may extend the validity of the writ for a maximum period of 12 or 6 months (in the High Court and subordinate court processes respectively), at any one time, ‘beginning with the day next following that on which it would otherwise expire’. The plaintiff may apply for the extension before the date of expiry or on a ‘such later day (if any) as the court may allow’.3

The issue of whether an application may be made for renewal beyond the period of 12 months next following the primary period of validity,4 has been the subject of a spate of recent inconsistent decisions by the English courts.5 The position at least since 1980 — when Chappel v Cooper, Player v Bruguiere6 was decided by the English Court of Appeal — was that the power of renewal could only be exercised during the period of 12 months next following the primary period of validity. This approach has now been thrown into doubt. In Carribean Gold Ltd v Alga Shipping Co Ltd,7 Potter J could not accept that the rule governing renewal was so restrictive.8 His Lordship considered that such an interpretation “places an undue restriction upon the meaning and operation of the words ‘or such later day (if any) as the court may allow’.…The rule contains nothing to indicate such an overall restriction on the discretion of the court.”9 In coming to this conclusion, Potter J distinguished Chappel v Cooper, Player v Bruguiere;10 although, with respect, it is not entirely clear how this result was reached. A liberal approach was also taken in Ward-Lee v Linehan,11 which concerned, inter alia, an application for the renewal of a summons in the

county court. The period of validity of the summons was 2 months. The application was not made until a period of over 4 months had expired. Sir Thomas Bingham MR, who delivered the judgment of the court, considered the rule12 and held that despite the expiry of more than 4 months the court had the jurisdiction to extend the time for service and to treat the failure to extend and serve until then as an irregularity which could be cured. Chappel v Cooper, Player v Bruguiere was not cited to the Court of Appeal in Ward-Lee v Llnehan. However, the judgment of Roskill LJ in Chappel v Cooper, Player v Bruguiere was specifically adopted by the Court of Appeal in Rolph v Zolan.13 In the most recent case on this issue, Singh v Duport Harper Foundries Ltd,14 the Court of Appeal expressly disagreed with Potter J’s interpretation of the rule governing renewal. Farquharson LJ, who delivered the judgment of the court, found it ‘difficult to reconcile the authorities’ but nevertheless laid down a series of propositions. These are set out below in the context of the prescribed periods applicable in Singapore:

  1. (i) An application under the rule governing renewal15‘must be made during the validity of the writ in the usual case,16 or during the twelve months (High Court) or six months (subordinate courts) next following.

  2. (ii) Only one extension of time can be granted on a particular application and that must be for a period not exceeding twelve months (High Court) or six months (subordinate courts).

  3. (iii) If the litigant has not conformed with the requirements of the rule he cannot be granted relief.

  4. (iv) In exceptional circumstances and where the interests of justice so require the court will entertain an application to extend the validity of the writ under the provisions of Ord 2, rule 1 and Order 3, rule 5. Before the court will extend the validity of the writ the applicant must show that there is good reason for such an extension, and where appropriate provide a satisfactory explanation for the failure to apply during the period of the original validity.17

Paragraph (iv) is significant because it enables the court to go beyond the rule (ie, by granting an application for renewal made after the expiry of the first renewal period) in exceptional circumstances, in the interest of

justice. Indeed, it appears to go beyond the position taken by the the Singapore Court of Appeal in The Official Receiver, Liquidator of Jason Textile Industries Pte Ltd v QBE Insurance (International) Ltd.18 There, the Court of Appeal held that the court’s power is limited to extending the validity of the writ for a maximum of 12 months at any one time. Accordingly, an application for renewal had to be made at the latest within 12 months of the expiry of the writ. The court could not grant two or more successive renewals to bring the writ up to date.

Nevertheless, it is open to the Singapore Court of Appeal to consider Farquharson LJ’s paragraph (iv) as an exceptional qualification to the general rule propounded in The Official Receiver, Liquidator of Jason Textile Industries Pte Ltd v QBE Insurance (International) Ltd. However, it is unlikely that the court would exercise its inherent jurisdiction under Order 92, rule 4 to grant renewal outside the conditions laid down by the rule, as the rule sets the scope of the court’s jurisdiction.19 In the same vein, there are authorities which indicate that Order 2, rule 1 cannot be employed to encroach upon a self-contained and comprehensive set of provisions, such as the rules governing renewal of the writ.20 Finally, if the recent amendment in the SCR reducing the renewal period from 12 to 6 months is anything to go by, the courts are likely to be less lenient in the future about renewal where there has been delay.21

Effect of the defendant’s conduct

In England, the House of Lords has recently ruled in Roebuck v Mungovin22 that there is no absolute rule preventing an application for dismissal from succeeding on the basis of delay induced by the defendant. In the course of its conclusion the House of Lords overruled the decision of the Court of Appeal in County and District Properties v Lyell,23 which had stood as the law since 1977. In County and District Properties v Lyell, the plaintiffs had issued legal process in 1968. In 1976 the plaintiffs gave the defendant notice of intention to proceed, which was accepted by the defendant. The defendant accepted service of further and better particulars of the statement of claim which had been requested many years previously, and therefore ought to have been served long before. Furthermore, the defendant did

not object to the plaintiffs taking out a fresh summons for directions (the defendant acknowledged receipt with thanks(!)), and consented to the transfer of the action to a judge sitting on official referees’ business. The Court of Appeal held that defendant’s acceptance of the plaintiff’s continuing steps in the action entitled the latter to proceed ‘however difficult his own reprehensible conduct has made it for the court to do justice’.24 The court had treated the defendant’s conduct as having given rise to an estoppel preventing him from obtaining an order of dismissal from the court. Roskill LJ, put it in the following terms:

If that positive action [ie, the defendant’s conduct] so taken by him has had the effect of inducing in the mind of the plaintiff or his advisers the belief that the defendant was consenting to the action, however, inordinately delayed, however inexcusably delayed in the past, being none the less allowed to proceed thenceforth to trial and that the defendant was not going to take any steps, whatever his rights might have been, to apply to have the action dismissed for want of prosecution, so that in that belief the plaintiff has (for example) incurred further costs, then I do not think the court has any right (or, I would add, power) to disregard the impact and effect of that positive action of the defendant upon the mind of the plaintiff and his advisers and insist upon the plaintiff’s action being dismissed and the plaintiff deprived of his right to have his case decided by the courts, even if the judge’s task at the trial…may be exceedingly difficult.…the defendant is thereafter estopped from seeking to have the plaintiff driven from the judgment seat, and the plaintiff has acquired by estoppel or acquiescence, what one might call an unchallengeable right to have his action tried in the courts. I do not see by what process of law...

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