The "Lircay"

• Jurisdiction: Singapore
• Judgment Date: 07 April 1997
• Date: 07 April 1997
• Docket Number: Admiralty in Rem No 781 of 1991
• Court: High Court (Singapore)

The “Lircay”

[1997] SGHC 84

Amarjeet Singh JC

Admiralty in Rem No 781 of 1991 (Registrar's Appeal No 390 of 1996 and SIC No 9181 of 1996)

High Court

Civil Procedure–Originating processes–Writ–Extension of validity of writ–Principles to be applied–Successive extensions of validity of writ beyond limitation period for claim–Whether defendant had accrued right of limitation–Whether non-disclosure of agreement to defer service of writ was fatal to validity of extension of writ

The plaintiff filed a writ in September 1991 claiming damage to its ship and loss and expenses arising from a collision with the defendant's ship, the “Lircay”. Pursuant to negotiations with a view to settlement, the parties agreed to an indefinite extension of time in which the plaintiff could serve its writ subject to 28 days written notice of cancellation. The plaintiff, through successive applications, extended the validity of its writ to September 1995. In August 1993, the defendant issued a writ in a cross-action against the plaintiff. In September 1993, the plaintiff granted the defendant a reciprocal agreement to the extension of the validity of the defendant's writ. The defendant extended the validity of its writ to August 1995. Both writs were served in August 1996. The defendant applied to set aside the renewals of the plaintiff's writ on the basis of non-disclosure by the plaintiff of the agreement to defer service of the writ, and non-disclosure of a time-bar defence available to the defendant. The application was allowed by the assistant registrar. The plaintiff appealed and applied for a declaration that the writ remained valid.

Held, allowing the appeal and making no order on the plaintiff's application:

(1) The power of the court to extend the validity of a writ should only be exercised for good reason. There would be good reason for instance where there was an agreement between the parties, express or implied, to defer the service of the writ, or where the delay concerning the application to extend the validity of the writ was induced or contributed by the defendant, or difficulty in effecting service, especially if the defendant was evading service. In the exercise of his discretion to determine whether the writ should be extended, the judge is entitled to have regard to the balance of hardship between the parties, and whether allowing an extension will cause prejudice to the defendant in all the circumstances of the case: at [18].

(2) The plaintiff's successive applications for renewal of its writ were commenced and granted before the expiry of the validity of the writ although after the period of limitation had expired. In each application, the defendant had no accrued right of limitation and hence was not deprived of any advantage by the renewals of the writ: at [21].

(3) The plaintiff had made its applications for the renewal of the writ on the ground that the defendant's ship had not called at Singapore since November 1991, and there was no reasonable opportunity to serve the writ. This was by itself a sufficient and good reason for the various extensions granted: at [23].

(4) The stringency of full disclosure as required in ex parte applications such as Anton Piller orders is not required in other ex parte applications. The plaintiff's non-disclosure of the agreement to defer service was not fatal to the renewals of the writ. On all the facts, the non-disclosure was in all probability an innocent one in the sense that its relevance was not perceived. There was no advantage to the plaintiff in not disclosing the fact, and no disadvantage to the defendant: at [24], [25] and [29].

(5) On balance, the plaintiff would suffer hardship if its writs were to be set aside. It would not be able to pursue its claims while the defendant could continue with its cross-claim. At any trial in respect of the collision the same evidence would be led whether it be the plaintiff's case or defendant's cross-claim. The defendant was in fact relying on the same grounds concerning its renewal of its writ ie the agreement to defer service of the writ and mode of service arranged: at [26].

Brink's-MAT Ltd v Elcombe [1988] 1 WLR 1350; [1988] 3 All ER 188 (folld)

Lim Hong Kan v Mohd Sainudin bin Ahmad [1992] 1 SLR (R) 108; [1992] 1 SLR 353 (folld)

Myrto, The [1987] AC 597; [1987] 2 All ER 289 (folld)

Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 (refd)

Rules of the Supreme Court 1970, The O 6 r 4 (2)

Haridass Ajaib and Yung Shing Jit (Haridass Ho & Partners) for the appellant/plaintiff

Chan Leng Sun (Ang & Partners) for the respondent/defendant.

Amarjeet Singh JC

1 The issues raised in this appeal relate to the extension of the writ herein by the plaintiffs pursuant to orders of court, its consequent validity and service thereof on the defendants.

2 The plaintiffs filed a writ on 27 September 1991 claiming damage to their ship Eastern Sea and loss and expenses resulting from a collision with the defendants' ship Lircay on 30 August 1991 off Japan as a result of the negligence of the defendants or their servants or agents.

3 On 24 October 1991, following the issue of the writ, the defendants' Protection & Indemnity Club (P & I Club), the London Steamship Owners Insurance Assurance Ltd wrote to the plaintiffs' P & I Club, the Steamship Mutual Underwriting Association Ltd undertaking to settle the plaintiffs' claim for damages, etc, if found liable or if liability was agreed in consideration of the plaintiffs refraining from arresting or detaining the vessel mv Lircay or any other vessel in the same or associated ownership and when called upon to do so to instruct solicitors in Singapore to accept service of any proceedings issued by the plaintiffs. Subsequently, on the same date by exchange of telex the two P & I Clubs agreed to an indefinite extension of time in which the plaintiffs could serve their writ subject to 28 days written notice of cancellation. The above was done no doubt so as to allow the parties to negotiate a settlement.

4 The plaintiffs, not having served their writ, extended the validity of the said writ for further periods of 12 months each by application before the expiry of the original period of 12 months and each subsequent extension of 12 months successively on:

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