SK Shipping Co Ltd v IOF Pte Ltd

• Jurisdiction: Singapore
• Judge: Justin Yeo AR
• Judgment Date: 25 September 2012
• Neutral Citation: [2012] SGHCR 14
• Court: High Court (Singapore)
• Docket Number: Suit No 440 of 2012 (Summons No 3808 of 2012)
• Published date: 21 November 2012
• Year: 2012
• Hearing Date: 31 August 2012,22 August 2012,25 September 2012
• Plaintiff Counsel: Mr Vincent Ong and Mr Winston Wong (Rajah & Tann LLP)
• Defendant Counsel: Mr Haireez Jufferie - Instructed (Joseph Lopez & Co)
• Subject Matter: Civil Procedure
• Citation: [2012] SGHCR 14

Justin Yeo AR:

This is an application by the defendant pursuant to, inter alia, O 24 r 11 read with O 24 r 10 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), for the production and/or inspection of documents referred to in the Statement of Claim (“the Application”).

Facts

This action commenced on 29 May 2012 when the plaintiff filed and served the Writ of Summons with an endorsement of the plaintiff’s alleged claim. On 20 June 2012, the plaintiff issued the Statement of Claim. On 26 June 2012, the defendant made a request, by way of a letter, for the production of the documents referred to in the Statement of Claim. The defendant also requested that these documents be provided on an urgent basis, particularly in view of the impending deadline then for the filing and service of the Defence.

No response from the plaintiff was forthcoming. As a result, the defendant issued a chaser on 29 June 2012, requiring the plaintiff to revert by noon on 2 July 2012. The plaintiff finally responded to the defendant’s request for documents on 4 July 2012, stating that quite apart from the issue of availability or existence of the documents requested, the plaintiff was of the view that the defendant was not entitled to discovery of documents at this stage of the proceedings. Accordingly, plaintiff was not agreeable to the defendant’s request for an extension of time to file the Defence.

On 5 July 2012, the defendant issued a Notice to Produce in Form 40 (“the Notice to Produce”) pursuant to O 24 r 10(1), requesting 17 categories of documents. O 24 r 10(2) stipulates that the party on whom notice is served under O 24 r 10(1) “must, within 4 days after service of the notice, serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents… may be inspected… and stating which (if any) of the documents he objects to produce and on what grounds” [emphasis added]. However, the plaintiff did not provide any reply in Form 41 within the stipulated time. At a pre-trial conference held on 24 July 2012, in response to the court’s query as to why no response had been given to the Notice to Produce, counsel for the plaintiff explained that they were still taking their client’s instructions on this point.

On 26 July 2012, the Application was taken out pursuant to inter alia O 24 r 11 read with O 24 r 10 of the Rules of Court for the production and/or inspection of documents referred to in the Statement of Claim. Annexed to the Application was a list of 16 categories of documents (“Annex A”). It suffices to note for now that the categories of documents stated in Annex A were not entirely identical to those requested in the Notice to Produce. The relevant portion of Annex A is reproduced here (for convenience, the abbreviations used in the following table will be adopted in the course of this judgment):

S/N	Document Description	Reference in Statement of Claim
1	The Time Charterpary dated 22 March 2012 for the MV “ANNA BARBARA” between the Plaintiff and Prime East Shipping Limited (“Prime East”)	Paragraph 3
2	The “Sub-Charterparty” between Prime East and Precious Charm Ltd (“Precious”)	Paragraph 4
3	The “Sub-Sub-Charterparty” between Precious and Isaphia (Singapore) Pte Ltd (“Isaphia”)	Paragraph 4
4	The Fixture Re-cap dated 22 March 2012	Paragraph 6
5	The “Previous charterparty” dated 14 July 2009	Paragraph 6
6	The “Adopted C/P”	Paragraph 6
7	The Stevedore Damages Report issued on 28 April 2012	Paragraph 8(d)
8	Each of all documents evidencing the “repeated reminders” sent by the Plaintiffs to Prime East	Paragraph 8(e)
9	Each of all “similar notices via email” sent by the Plaintiffs to Precious and Isaphia	Paragraph 8(g)
10	Email dated 10 May	Paragraph 8(h) and again referred to at Paragraph 5 of the Reply
11	Email dated 11 May from Skuld Copenhagen	Paragraph 8(i)
12	Email dated 18 May from Skuld Copenhagen to Plaintiffs	Paragraph 8(j)
13	Email dated 18 May from Skuld Copenhagen to Plaintiffs	Paragraph 8(l)
14	Email dated 22 May from Skuld Copenhagen to Plaintiffs	Paragraph 8(m)
15	Email dated 23 May from Skuld Copenhagen to the Plaintiffs	Paragraph 8(n)
16	Copies of all “finalized or consolidated claims” and/or Statements of Account worked out to the sum of USD 469,386.04	Paragraph 8(p)

It should also be noted that in paragraphs 1(b) and 2(c) of the Defence, the defendant expressly stated that where an allegation made in the Statement of Claim was not admitted, it was inter alia because the defendant did not have copies of all the relevant documents. The defendant also expressly reserved the right to deny any allegations in due course.

I heard parties on 22 August 2012 (“the first hearing”) and 31 August 2012 (“the second hearing”). At the second hearing, I directed the plaintiff to file an affidavit detailing all the attempts made to obtain the documents in categories 2 and 3 from the relevant third parties (viz, Prime East, Precious and Isaphia – hereinafter, “the Third Parties”).

Parties’ Arguments

The defendant was of the view that it was entitled to all the documents requested in Annex A. The plaintiff, however, raised specific objections to the various categories of documents requested, as follows: With regard to the documents in categories 2, 3, 8, 14, 15 and 16, the plaintiff asserted that these documents were not referred to in the Statement of Claim, and therefore, that O 24 r 10 was inapplicable. Specifically with regard to the documents in categories 2 and 3, the plaintiff argued that even if there was a reference to these documents, these documents were clearly not in the possession, custody or power of the plaintiff as these were documents in a contractual chain to which the plaintiff was not a party. With regard to the documents in categories 5 and 6, the plaintiff did not deny that these documents were referred to in the Statement of Claim. However, the plaintiff alleged that these categories were different from those sought in the Notice to Produce. The plaintiff also asserted that categories 5 and 6 referred to the same document. More generally, the plaintiff attempted to resist production of all the documents, on the premise that the disclosure of these documents was not necessary at the present stage of the proceedings.

Before turning to set out the issues that arise for determination in the present case, I note that with regard to the objection vis-à-vis categories 5 and 6 (see [8(b)] above), the plaintiff did not elaborate on how this was an objection to an order for production. Presumably, the plaintiff was asserting that no order could be made under O 24 r 11(1) given that these categories were not requested for in the Notice to Produce.

However, on perusal of the Notice to Produce, it appears that the documents in categories 5 and 6 were referred to in paragraph 5 of the Notice to Produce. While I accept that paragraph 5 of the Notice to Produce could have been better worded, in any case, it clearly referred to the documents in categories 4, 5 and/or 6. Given that the plaintiff has not denied that category 4 was referred to in the Notice to Produce, and that it has in fact further asserted that categories 5 and 6 referred to the same document, I do not see how the lack of clarity in paragraph 5 of the Notice to Produce prejudiced the plaintiff in any way. As such, I do not see a need to further consider this particular ground of objection with regard to documents in categories 5 and 6.

Issues

The issues that arise for determination are as follows: First, whether, for the purposes of O 24 r 10(1), reference was made in the Statement of Claim to the documents in categories 2, 3, 8, 14, 15 and 16 (“Issue 1”); Second, whether an order for production of the documents in categories 2 and 3 should be made, in view that these documents are allegedly not in the possession, custody or power of the plaintiff (“Issue 2”); and Third, whether the production of documents requested in Annex A was “necessary” for the purposes of O 24 r 13(1) (“Issue 3”).

The issues will be addressed in seriatim.

Issue 1 – Whether reference was made to the documents in categories 2, 3, 8, 14, 15 and 16

As mentioned in [8(a)] above, the plaintiff asserted that the documents in categories 2, 3, 8, 14, 15 and 16 were not referred to in the Statement of Claim, and therefore, that O 24 r 10 was inapplicable. The issue is therefore whether, for the purposes of O 24 r 10(1), reference was made in the Statement of Claim to the documents in categories 2, 3, 8, 14, 15 and 16.

The Law

O 24 r 10 provides for the inspection of documents referred to in pleadings and affidavits. It states: 10. Inspection of documents referred to in pleadings and affidavits (O. 24, r. 10) (1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof. (2) The party on whom a notice is served under paragraph (1) must, within 4 days after service of the notice, serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice, and stating which (if any) of the documents he objects to produce and...