Singapore Airlines Ltd v CSDS Aircraft Sales & Leasing Inc

• Court: International Commercial Court (Singapore)
• Judge: Jeremy Lionel Cooke IJ
• Judgment Date: 16 July 2020
• Neutral Citation: [2020] SGHC(I) 18
• Citation: [2020] SGHC(I) 18
• Published date: 30 July 2020
• Plaintiff Counsel: Tan Teck San Kelvin, Chen Chuanjian Jason, Chng Hu Ping (Drew & Napier LLC)
• Defendant Counsel: Roderick Edward Martin SC, Rajaram Ramiah, Yap Yongzhi Gideon, Eugene Tan (RHTLaw Asia LLP)
• Docket Number: Suit No 4 of 2019 (Summons No 30 and 31 of 2020)
• Hearing Date: 25 June 2020,22 June 2020
• Date: 16 July 2020
• Subject Matter: Civil Procedure,Attendance,Evidence,Pleadings,Witnesses,Rules of court,Further and better particulars

Jeremy Lionel Cooke IJ:

This judgment pertains to two applications: (a) the plaintiff’s application for Further and Better Particulars in SIC/SUM 30/2020 (“SUM 30”); and (b) the plaintiff’s application in SIC/SUM 31/2020 (“SUM 31”) for certain orders and/or directions. I address the applications in turn.

SUM 30

The plaintiff seeks Further and Better Particulars of paragraph 27 of the Amended Defence and Counterclaim, originally served on 24 May 2019 and amended twice since, on 1 July 2019 and 11 June 2020, in the light of what are said to be inadequate further particulars furnished on 21 November 2019 (“Further Particulars”) in response to a request dated 14 October 2019. That request related to the Defence and Counterclaim (Amendment No 1) (which is unchanged in the Defence and Counterclaim (Amendment No 2)) where the following was pleaded: 27. The Defendants further aver that due to the airframe not being delivered, the Defendants had to cancel both the back-to-back contract with CamAir and the agreement with Turkish Technic to acquire the two Rolls Royce engines.

Order 18 rule 12(3) of the Rules of Court (Cap 332, R 5, 2014 Rev Ed) (“ROC”) provides that the court may order a party to serve on any other party particulars of any claim, defence or other matters stated in his pleading or a statement of the nature of the case on which he relies, and the order may be made on such terms as the court thinks just.

Particulars were sought by the plaintiff as to: when the cancellations took place and of the full facts, matters and circumstances of the manner in which the defendant, CSDS Aircraft Sales & Leasing Inc, allegedly cancelled the contract with CamAir and the agreement with Turkish Technic; whether the cancellations were made orally or in writing; if orally, the names and designation of the parties representatives who made and received the communications on the part of the defendant, CamAir and Turkish Technic; and if in writing, the identity of the document that contained the relevant communications and the full particulars of such documents.

In the Further Particulars provided on 21 November 2019, the defendant stated that the cancellations took place “[i]n or around December 2018” and that CamAir and Turkish Technic were each contacted by telephone and informed that the defendant or its associated company was unable to complete the contracts as the defendant had not procured the aircraft from the plaintiff. The defendant stated that the particulars sought as to the name and designation of the parties’ representatives were not relevant to the pleaded case, using the same wording as that given in response to the request to identify any documents containing communications of cancellation.

The short point at issue is whether or not the plaintiff is entitled to the particulars that have been refused in relation to the identification of the parties’ representatives, by name and designation, and the identification of any relevant documents recording the alleged cancellations. The defendant maintains that these are matters of evidence, more appropriate to issues of discovery or interrogatories and are not matters of pleading since the plaintiff knows the nature of the case being made against it and is able to plead to it.

In support of that proposition, the defendant contends that the application for these particulars is an abuse of process because further and better particulars are not to be confused with evidence and “if the only object of the summons be to obtain the names of witnesses or some other clue to the evidence of the other party, it will be dismissed”, citing the commentary in Singapore Civil Procedure 2020 (Vol 1) (Chua Lee Ming gen ed) (Sweet & Maxwell, 2020) (“Singapore Civil Procedure 2020”) at para 18/12/51. It is said that the request is merely a “fishing expedition” in circumstances where the plaintiff is perfectly able to plead and answer to the case put. It is said, citing Sharikat Logistics Pte Ltd v Ong Boon Chuan and others [2011] SGHC 196 (“Sharikat Logistics”) at [7] (which in turn cites BA Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd 72 BLR 26, 33), that “[t]he basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to answer it”. Only “material facts” need to be pleaded and evidence is not required (Sharikat Logistics at [8]). “Material facts” are those which are necessary for a party to know the case it has to meet. As put in Element Six Technologies Ltd v Ila Technologies Pte Ltd [2017] SGHCR 16 at [12(b)], “[m]aterial facts are the facts that are necessary for the purpose of formulating a complete cause of action, so that the opposing party is given fair notice of the case to be met and may direct his evidence to the relevant issues”.

There can be no doubt as to the general principles applicable and the distinction to be drawn between pleading facts and evidence. Nonetheless, when facts are pleaded, they must be pleaded with sufficient particularity for the other party to know the case it has to meet and to assess what evidence it needs to adduce to meet that case.

It is for that reason that both practice and the authorities require details of pleaded contracts, variations or cancellations to be given, by reference to what have become fairly standard forms of words. The point is clearly made by Vivian Ramsey IJ in Arovin Ltd and another v Hadiran Sridjaja [2018] 5 SLR 117 (“Arovin Ltd”), citing the commentary in what was then the Singapore Court Practice 2018 (Jeffrey Pinsler gen ed) (LexisNexis, 2018) at para 18/12/10, where an ordinary form of request is set out. That accords with my experience both domestically in the United Kingdom and internationally in arbitration and other courts in which I have sat, where a standard form along these lines is adopted with minor variations:

… stating whether the said [agreement/variation/cancellation] was made orally or in writing; if orally stating when, where and between whom the said [agreement/variation/cancellation] was made and stating the substance of the words used and all relevant terms relied on: if in writing identifying all material documents.

The learned judge in Arovin Ltd went on to point out the difference between using particulars to seek evidence, namely as to how a matter is to be proved, as opposed to particulars of the facts which are to be proved, referring to the then current Singapore Civil Procedure 2018 (Foo Chee Hock editor-in-chief) (Sweet & Maxwell 2018) at para 18/12/5 (in identical terms in the current commentary) as to what was required when pleading an agreement. At [5] of Arovin Ltd, the judge stated that, in circumstances where there were express understandings reached orally, particulars could properly be requested of the identity of those between whom the oral communications were made as well as the date upon which and the time and place at which the communications took place.

The same point is made in Surge Electrical Engineering Pte Ltd v Powertec Engineers Pte Ltd [2002] SGHC 280 and in Singapore Civil Procedure 2020 at para 18/12/51 that it matters not if a party is, by reason of the order to produce such required particulars, compelled to disclose the names of its witnesses or some part of the evidence upon which it proposes to rely at trial.

In such circumstances the plaintiff is entitled to the particulars requested, and the defendant is required to identify the individuals who were involved in the cancellation arrangements. The request, following on from the previous answer that the cancellation arrangements were made by telephone in or about December 2018 requires the defendant to state the name and designation of each of the parties’ representatives who made and received the relevant communications and if there was any communication in writing, to identify the documents containing those communications, giving full particulars of the documents in question.

In an affidavit filed on behalf of the defendant, it was suggested that there was inexcusable delay in bringing the application, but the point was not pursued in the defendant’s submissions and has no substance because the parties were, in the interim period between November 2019 and the date of the summons, engaged in attempts to settle this matter, which resulted in an adjournment of various dates fixed for hearings and, moreover, no prejudice could be shown to flow from the delay in any event.

The plaintiff is therefore entitled to the orders sought and to costs. Costs are to be assessed if they cannot be agreed on between the parties.

SUM 31

The plaintiff’s application in SUM 31 is for, in the main, the following orders/directions: that the trial in SIC/S 4/2019 be bifurcated, with the trial on the issue of liability in relation to the plaintiff’s claims and the defendant’s counterclaim be heard separately from, and prior to, the hearing of an assessment of damages for the plaintiff’s claims and the defendant’s counterclaims (if necessary); in respect of the trial on liability only, that evidence shall be given by way of Affidavits of Evidence-in-Chief, and the taking of oral evidence (including examination-in-chief, cross-examination and re-examination) shall be dispensed with; and that within four weeks of an order made in respect of SUM 31, the plaintiff shall file its application to amend its Statement of Claim (Amendment No. 2) filed on 21 May 2020, setting out particulars of its loss and damage; and the plaintiff shall provide to the defendant additional documents that it relies on in respect of its loss and damage.

The parties have agreed that I should determine this application on paper without oral submissions pursuant to directions given by the court.

The powers of the court

The relevant provision...