Siemens AG v Holdrich Investment Ltd

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 23 June 2010
• Neutral Citation: [2010] SGCA 23
• Year: 2010
• Date: 23 June 2010
• Published date: 24 September 2010
• Hearing Date: 09 April 2010
• Plaintiff Counsel: Gregory Vijayendran and Sung Jingyin (Rajah & Tann LLP)
• Citation: [2010] SGCA 23
• Defendant Counsel: N Sreenivasan and Collin Choo (Straits Law Practice LLC)
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 100 of 2009

Chao Hick Tin JA (delivering the grounds of decision of the court): Introduction

This was an appeal by the defendant in the main action (“Siemens AG”) against the decision of the judge in chambers (“the Judge”) granting the plaintiff (“Holdrich”) leave to serve the originating process out of jurisdiction. The Judge’s grounds of decision are reported in Holdrich Investment Ltd v Siemens AG [2010] 1 SLR 1237 (“the GD”). We dismissed the appeal after hearing oral arguments and now give our reasons for doing so.

The relevant legal principles

The requirements which must be met before the court will grant leave for service out of jurisdiction are well settled. For present purposes, it is sufficient to adopt the three major considerations stated by Prof Jeffery Pinsler SC in Singapore Court Practice 2009 (LexisNexis, 2009) at para 11/2/5. First, the claim must come within the scope of one or more of the paragraphs of O 11 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). Second, the claim must have a sufficient degree of merit. Third, Singapore must be the forum conveniens.

In the court below, Holdrich sought and obtained leave for service out of jurisdiction in an ex parte application heard by an assistant registrar. The service out of jurisdiction was resisted by Siemens AG, who succeeded in having the order set aside in an inter partes application heard by another assistant registrar on the ground that Singapore was not the forum conveniens or natural forum for trying the substantive dispute between the parties. The second assistant registrar also found that there had been material non-disclosure on the part of Holdrich when it applied for leave for service out of jurisdiction, but that finding was not pertinent to the disposal of this appeal. Holdrich then appealed to the Judge, who held that Singapore was the forum conveniens and, accordingly, reinstated the grant of leave for service out of jurisdiction.

On appeal to this court, the focus was likewise on the issue of forum conveniens; Siemens AG did not dispute that the first and second considerations referred to in [2] above were satisfied. Mr Gregory Vijayendran, on behalf of Siemens AG, made two preliminary points. First, he argued that, as a matter of approach, a Singapore court deciding the issue of forum conveniens should compare all the connecting factors pointing towards Singapore against all the connecting factors pointing away from Singapore. We were unable to agree that that was the right way of addressing the issue. The purpose of the forum conveniens analysis is to identify the most appropriate forum in which to try the substantive dispute. It is wrong to say that Singapore is forum non conveniens simply because the connecting factors which point to Singapore are outweighed by all the connecting factors which point away from Singapore. The connecting factors which point away from Singapore must point to a more appropriate forum than Singapore, and they might not do so if those connections are dispersed amongst several jurisdictions. Quite simply, Singapore is forum non conveniens only if there is a more appropriate forum than Singapore.

Mr Vijayendran next argued that the Judge wrongly directed himself on the burden of proof when he stated the issue before him to be “whether Singapore [was] forum non conveniens, because if it [was], then the appeal should be dismissed, and vice versa” (see [2] of the GD). Mr Vijayendran correctly pointed out that Lord Goff of Chieveley, in his leading speech in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”), the locus classicus in this area, held (at 480) that a plaintiff who sought leave for service out of jurisdiction bore the burden of proving that the court from which leave was sought was the forum conveniens, whereas a defendant who resisted service within jurisdiction bore the burden of proving that the court whose jurisdiction was being resisted was forum non conveniens. Mr Vijayendran also referred to various instances in Lord Goff’s speech where his Lordship spoke of the need to show that the court in question was “clearly” forum conveniens or forum non conveniens, as the case might be (see, eg, Spiliada at 481). The short answer to Mr Vijayendran’s argument is that any error which the Judge might have made as regards the burden of proof is immaterial given his finding, which he pronounced immediately after stating the issue before him in the manner indicated above, that “Singapore was clearly the more appropriate forum” [emphasis added] (see [2] of the GD).

We would make the following further observations on the burden of proof point. The existence of a fact which shows that a jurisdiction is the forum conveniens or vice versa is a question of fact, and the party who alleges the fact bears the burden of proving it. In contrast, the question of whether, on a given set of facts, a jurisdiction is forum non conveniens or vice versa is a question of law, albeit not a general question since the answer necessarily depends on, and is confined to, that particular set of facts. The reason why the cases refer, perhaps confusingly, to the burden of proving that a particular jurisdiction is forum conveniens or forum non conveniens is this. The jurisdiction of the court is, in the first place, territorial, as reflected in the expression “within jurisdiction”, which neatly fuses the territorial and juridical elements (see J J Fawcett & J M Carruthers, Cheshire, North & Fawcett: Private International Law (Oxford University Press, 14th Ed, 2008) at p 354). At the same time, the law in this and other jurisdictions has come to recognise that the physical location of a defendant may not be a decisive or even material consideration in deciding whether or not the court should exercise jurisdiction over a dispute – Lord Goff in Spiliada gave (at 481) the example of a defendant whose place of residence was no more than a tax haven, and commented that “no great importance should be attached” to the defendant’s place of residence in such a scenario.

However, in recognition of the primarily territorial nature of the court’s jurisdiction, the court begins with the location of the defendant when it decides whether it has jurisdiction over a dispute – thus, jurisdiction over a defendant who is within the territory is as of right, while jurisdiction over a defendant who is outside the territory is discretionary. In this sense, there is a burden – viz, the burden of displacing the prima facie weight given to the location of the defendant. But, despite the use of the term, the burden is not strictly one of proof. Instead, the burden is one of demonstrating the normative weight to be given to each connecting factor in the light of all the circumstances of the case. The ease of discharging the burden would similarly depend on the facts of each case – again, as Lord Goff himself noted in Spiliada (at 481), the circumstances described in the English equivalent of our O 11 r 1 are “of great variety, ranging from cases where … the discretion would normally be exercised in favour of granting leave … to cases where the grant of leave is far more problematical”. In the same vein, Lord Goff also remarked (at 481) that the importance to be attached to any particular ground invoked by the plaintiff in seeking leave for service out of jurisdiction might vary from case to...