Tan Kim Seng v Ibrahim Victor Adam

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 21 November 2003
• Neutral Citation: [2003] SGCA 49
• Citation: [2003] SGCA 49
• Subject Matter: Civil Procedure,Order 21 r 2(6) Rules of Court (Cap 322, R 5, 1997 Rev Ed),Plaintiff failing to take further steps in action for a year after interlocutory judgment entered,Automatic discontinuance,Whether O 21 r 2(6) Rules of Court (Cap 322, R 5, 1997 Rev Ed) inconsistent with s 6(3) Limitation Act (Cap 163, 1996 Rev Ed) if applied to action after interlocutory judgment entered,Whether rule of automatic discontinuance applies even after interlocutory judgment entered,Discontinuance
• Published date: 17 December 2003
• Defendant Counsel: Michele Lim (Salem Ibrahim and Partners)
• Date: 21 November 2003
• Plaintiff Counsel: Kannan Ramesh and Seetha Ramasamy (Tan Kok Quan Partnership)
• Docket Number: Civil Appeal No 48 of 2003

Delivered by Chao Hick Tin JA

1 This appeal raises the question as to whether O 21 r 2(6) of the Rules of Court (“O 21 r 2(6)”), which deems a cause or matter to have been discontinued if no step or proceeding is taken in the matter for a period of one year, applies to a case where interlocutory judgment has been obtained against the defendant, leaving outstanding the issue of damages to be assessed.

The background

2 On 7 November 1998, the plaintiff-respondent (“Ibrahim”) who was a passenger in a motor-car was injured when the car he was travelling in was involved in an accident with a goods vehicle driven by the defendant-appellant (“Tan”). On 10 October 2001, less than a month before limitation set in, Ibrahim filed an action against Tan claiming for general and special damages for the injuries he suffered on account of the accident.

3 On 23 November 2001, Ibrahim amended the writ of summons as well as the statement of claim. On 27 November 2001, by consent, an interlocutory judgment was entered against Tan on the basis that he was 100% to blame for the accident and damages were to be assessed by the Registrar.

4 Thereafter no step or proceeding was taken by Ibrahim to have his claim for damages assessed, although there was some correspondence between the solicitors on various matters pertaining to assessment, e.g. the discovery of documents and the re-examination of the plaintiff by medical experts. Among the correspondence was a letter of 6 February 2002, where Tan requested Ibrahim to hold his hands.

5 It was only some 14 months later, on 6 February 2003, following a communication from Tan’s solicitors, that Ibrahim filed his summons for direction for assessment of damages. Tan’s solicitors objected to the application. On 28 February 2003, Tan applied for a declaration that the action be deemed discontinued under O 21 r 2(6).

6 On 24 March 2003, Ibrahim applied for a declaration that O 21 r 2(6) did not apply to his case. Alternatively, if it did, he applied for the court’s indulgence under r 2(8) to have the action reinstated.

7 All these applications came before the Assistant Registrar who ruled that O 21 r 2(6) applied to the case and that the action was deemed discontinued. Ibrahim’s application for indulgence under r 2(8) was dismissed.

8 Ibrahim took the matter further to the judge-in-chambers, who allowed the appeal on the ground that O 21 r 2(6) is inconsistent with s 6(3) of the Limitation Act (“s 6(3)”) which provides that a judgment has a limitation period of 12 years. As s 6(3) does not differentiate between interlocutory and final judgments, she came to the conclusion that O 21 r 2(6) could not and did not apply to a case where interlocutory judgment had been obtained. Tan, being dissatisfied with the Judge’s decision, has appealed to the Court of Appeal.

Application of O 21 r 2(6)

9 Order 21 r 2(6) reads:-

“Subject to paragraph (6A), if no party to an action or a cause or matter has, for more than one year (or such extended period as the Court may allow under paragraph 6(B)), taken any step or proceeding in the action, cause or matter that appears from records maintained by the Court, the action, cause or matter is deemed to have been discontinued.”

10 Paragraph (6A) of r 2 merely provides that paragraph (6) shall not apply where the action, cause or matter has been stayed pursuant to an order of court. There is no such order in the present case, so paragraph (6A) is of no relevance.

11 It is not in dispute that during the one year period from 28 November 2001 to 27 November 2002 no step or proceeding was taken by Ibrahim to have the damages assessed. The contention of Ibrahim is that as he has already obtained an interlocutory judgment, O 21 r 2(6) can no longer apply to his case. He argued that where interlocutory judgment has been entered, any step or proceeding taken thereafter would be a step taken “after” judgment and not a step taken “towards” judgment. Here, counsel for Ibrahim relied upon a passage in an article entitled “Automatic Discontinuance under Order 21 Rule 2, First Dormant then Dead” published in (2001) 13 S.Ac. LJ 150 by Lim Hui Min:-

“A proceeding is essentially any formal and significant step taken before judgment. It should refer to the last interlocutory proceeding taken by a party ie an act done while the matter is still in controversy, before judgment is obtained. The rationale for this is that while the suit is ongoing, the plaintiff has the duty to push the suit to a conclusion. However once the plaintiff has obtained judgment in the matter, the suit is concluded, and his duty ceases. Moreover, actions in which judgments have already been obtained are considered to be concluded, and what has been concluded cannot be discontinued.”

12 Counsel also relied upon O 37 r 1 of the Rules of Court (“O 37 r 1”) to argue that matters relating to assessment post interlocutory judgment are not governed by O 21 r 2(6).

13 In our opinion, it may perhaps be useful to view the matter from first principle. In every cause or action instituted in court, broadly two issues need to be addressed. The first is to determine whether the defendant is liable to the plaintiff for the cause. If the court is to hold that the defendant is not liable, then that would be the end of the matter. It would be a final order. No further steps need to be taken by the...