THE RULES OF COURT (AMENDMENT NO 2) RULES OF 1997
| Author | JEFFREY PINSLER |
| Citation | (1997) 9 SAcLJ 275 |
| Published date | 01 December 1997 |
| Date | 01 December 1997 |
The Rules of Court (Amendment No 2) Rules of 1997, which were published in the Government Gazette subsidiary legislation supplement on 13th June, 1997, came into force on July 1st 1997.1 These amendments,2 the second series of the year,3 concern a variety of processes. Some of these are new but most involve the modification of existing procedures to promote greater efficiency in civil litigation.
These amendments came into effect on the 1st July, 1997.5
Order 1, rule 4 is amended to include the following definition after the definition of ‘cause book’:
‘Civil Procedure Convention’ includes any convention, treaty or agreement of any description or any provision thereof between different States relating to civil procedure in the court;
This provision is extremely broad as it caters to any arrangement entered into by the Singapore Government with any other state concerning any civil procedure. There are various references in the rules to ‘civil procedure conventions’: see Order 11, rule 4(1), (2), (4); Order 39 rule 2(2)(a); Order 65, rule 3(1), (3) and Order 66, rules 3(b), 5(b). If there was any doubt that the term ‘convention’ was sufficiently broad to cover any official arrangement relating to civil procedure, the new definition should resolve the uncertainty.
Other rules have been modified in conjunction with this new development. A new rule (rule 4) is introduced to Order 91 (which governs court fees). Rule 4 empowers the Registrar to waive the payment of fees, costs, expenses and percentages to be taken and paid under the Rules of Court if provision for this effect is made by the civil procedure convention:
The Registrar may, in any case, waive the payment of the whole or any part of the fees, costs, expenses and percentages to be taken and paid under these Rules if the waiver of such fees, costs, expenses and percentages is provided for by any Civil Procedure Convention.
Order 92 (which governs ‘miscellaneous’ matters), is amended to provide for the use of foreign documents without authentication pursuant to a civil procedure convention if the documents have been drawn up or certified, and duly sealed, by a court or other competent authority of a foreign country. The new rule 1A provides as follows:
Notwithstanding anything in these Rules, a document or a translation thereof that has been drawn up or certified, and duly sealed, by a court or other competent authority of a foreign country, being a country with which there subsists a Civil Procedure Convention providing for the dispensation of the authentication of such documents, may be received, filed or used in the Court.
These amendments apply only to proceedings commenced on or after 1st July 1997.7
This development is essentially administrative in nature for it is intended to ensure that the Registry is aware of the status of proceedings where a writ is served and no further steps have been taken. If the defendant failed to enter an appearance, and the plaintiff did not enter judgment in default, the registry would not have been in a position to ascertain whether the action was still current and active. It would have had to take the initiative by corresponding with the parties or summoning them to attend a pre-trial conference.
The amendments introduce a new procedure by which the plaintiff is required to file a memorandum of service immediately after the service of a writ on a defendant. If this memorandum is not filed within 12 months after the period of the validity for service (or extended validity)8 of the writ, the action is deemed to have been discontinued. The procedure replaces the process of endorsement of service on the writ. Order 10, rule 1(4), as modified, provides:
Where a writ is duly served on a defendant otherwise than by virtue of paragraph (3), then, subject to Order 11, Rule 3, unless within 3 days after service the plaintiff files a memorandum of service in Form 11 containing the following particulars, that is to say, the day of the week and date on which it was served, where it was served,
the person on whom it was served, and, where he is not the defendant, the capacity in which he was served, the plaintiff in the action begun by the writ shall not be entitled to enter final or interlocutory judgment against that defendant in default of appearance or in default of defence, unless the Court otherwise orders.
If the memorandum of service is not filed in time the following new provisions concerning the discontinuance of the action (paragraphs (5) and (6) of Order 21, rule 2) would take effect:
(5) An action begun by writ is deemed to have been discontinued against a defendant if the memorandum of service referred to in Order 10, Rule 1 (4), is not filed in respect of the service of the writ on that defendant within 12 months after the validity of the writ for the purpose of service has expired, and, within that time:
(a) a memorandum of appearance has not been filed in the action by that defendant; and
(b) judgment has not been obtained in the action against that defendant in respect of the whole or any part of the relief claimed against that defendant in the action.
(6) Where an action has been discontinued under paragraph (5), the Court may, on application, reinstate the action and allow it to proceed on such terms as it thinks just.
It would appear that subsection (6) is based on the established principle that errors in procedure should not automatically deprive a party of his substantive rights.9 Nevertheless, it should not be assumed that this provision will be activated regardless of the circumstances. At the very least, the court would, as in other situations involving non-compliance, require an explanation for the failure to file the memorandum of service in time.10
The new provisions are applied to admiralty proceedings by the inclusion of a new paragraph (5) in Order 70, rule 2. It provides:
Order 10, rule 1 (4), and Order 21, rule 2 (5) and 2 (6), shall apply to a writ issued under this Order.
A new form 11 concerning the memorandum of service is also introduced.11
These amendments came into effect on the 1st July, 1997.13
The parties were required to file three bundles of documents in the course of proceedings. The first was the bundle of documents referred to in affidavits of the evidence in chief filed pursuant to Order 25, rule 3 (1) (a). The bundle had to be filed together with the affidavits of the evidence in chief within the time ordered by the court under the summons for directions or subsequently. The documents referred to in the various affidavits of the evidence in chief were included in this single bundle of documents. They were not exhibited to the affidavit referring to the documents. The second bundle was the duplicate copy of the bundle of documents referred to in affidavits of the evidence in chief filed pursuant to Order 34, Rule 3 (1) (e). This was delivered to the Registrar when the action was set down. The third bundle was filed by each party together with the bundle of authorities and the opening statement just before the trial.14
The amendments remove the requirement for multiple bundles and avoid the duplication of documents, the primary disadvantages of the former procedure. Various rules are modified to achieve these objectives:
Order 25, rule 3(1)(a) is amended so that on the hearing of the summons for directions the court does not require the parties to file the affidavits of the evidence in chief and the bundles of documents referred to (in the affidavits). Paragraph (a) is reformulated as follows:
the period within which the parties have to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial.
This modification also applies to automatic directions. Order 25, rule 8(1)(e) is re-worded and now reads:
subject to sub-paragraphs (b) and (c), the parties shall, within 4 months, exchange, without filing, affidavits of the evidence in chief of all witnesses except any witness referred to in sub-paragraphs (b) and (c)
Rule 9 of Order 25 (which concerned the filing of the affidavits of the evidence in chief of witnesses and related documents) is deleted. Correspondingly, the reference to rule 9 of Order 25 in rule 11(1) of Order 41 (which governs affidavits generally) is removed. Form 46 (summons for directions pursuant to Order 25) is modified so that paragraph 22 no longer includes the filing requirement. It now reads:
The affidavits of the evidence in chief of all witnesses shall be limited to one affidavit for each witness to be exchanged within … months and objection to the contents of the affidavit evidence shall be taken within one month after the exchange of the affidavit evidence.15
Order 34, rule 3, which concerns the lodgement of documents on setting down for trial, is altered. This is achieved, first, by the deletion of paragraph (d) of sub-rule 3(1) (which required the affidavits of the evidence in chief to be included in the bundle); secondly, by the deletion of paragraph (e) of sub-rule 3(1) (which required the bundles of documents referred to in the affidavits to be included in the bundle); thirdly, by the incorporation of a new paragraph (d) (see...
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