Tan Kim Seng v Ibrahim Victor Adam

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 21 November 2003
• Neutral Citation: [2003] SGCA 49
• Docket Number: Civil Appeal No 48 of 2003
• Date: 21 November 2003
• Published date: 17 December 2003
• Year: 2003
• Plaintiff Counsel: Kannan Ramesh and Seetha Ramasamy (Tan Kok Quan Partnership)
• Citation: [2003] SGCA 49
• Defendant Counsel: Michele Lim (Salem Ibrahim and Partners)
• Court: Court of Appeal (Singapore)
• 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

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 plaintiff or the defendant. However, if the order determines that the defendant is to be blamed for what had happened, leaving damages suffered by the plaintiff to be assessed at a later date, the order is final as far as liability is concerned. Such an order as to liability could well be given after a trial or it could be made by consent. But how the order is obtained is of no consequence and cannot change its nature. The fact of the matter is that at this stage, only one aspect of the action has been determined, namely, liability. The second aspect, of determining the quantum of loss, is still outstanding.

14 In this connection, we think it is crucial to bear in mind the overall scheme of things under the present Rules of Court. It was put by Lim Hui Min in her article in these terms:-

“In the course of the last decade, there has been a major shift in the judicial approach towards the control of litigation proceedings, not only in Singapore, but in other parts of the Commonwealth. The emphasis is now on expedition, economy, and the avoidance of delay in litigation. Disputes will no longer be allowed to drag on for years. Towards this end, the courts in Singapore have adopted the practice of case management. Each case is monitored, and if necessary, the court will intervene to ensure that it proceeds expeditiously. If every action has an indefinite life span from the time it is commenced, and if the court is to adhere conscientiously to its case management philosophy, the burden will continually be on the court to conduct case management exercises (such as pre-trial conferences) in order to monitor dormant suits and to find out why they have become dormant. This is arguably an unnecessary and inefficient use of judicial resources. It seems that the court has now found a solution – in the form of the automatic discontinuance provision – to the problem of having to adhere to its case management philosophy on the one hand, and having to husband scarce judicial resources in doing so, on the other. Under the automatic discontinuance regime, no action will have an indefinite life span. Therefore the court’s burden in conducting case management exercises for any one case will be for a finite time-period.”

15 We would only add that the fact that the court takes the initiative of actively conducting case management does not detract from the parties’ obligation to comply with the time-lines set in the Rules of Court. No sufficiently persuasive arguments have been advanced to us to demonstrate why O 21 r 2(6) should no longer apply after interlocutory judgment has been obtained when, quite clearly, further steps are still required to be taken to bring the action to completion. Otherwise, it would mean that a party with the benefit of an interlocutory judgment could let the matter of assessment remain outstanding for an indefinite period, a course which is hardly consonant with the modern approach of requiring civil litigation to proceed expeditiously.

16 We agree that generally there is no incentive for a party with an interlocutory judgment to delay matters. However, the same can be said even in respect of a case where no interlocutory judgment has been obtained. Every plaintiff would want to see his claim determined and satisfied quickly. But a party who has difficulties in proving his loss may just want to have more time, although he may have obtained an interlocutory judgment. He must, nevertheless, comply with the time-frame set by the Rules of Court for assessment.

17 Admittedly, under O 37, specific rules are laid down on the assessment of damages. Rule 1(1) of that Order requires the party entitled to the benefit of the judgment to apply, within one month, to the Registrar for directions. Under r 1(3) of the same Order, if such a party fails to make the application, “the court may, on the application of the...