UMCI Ltd v Tokio Marine & Fire Insurance Co (Singapore) Pte Ltd and Others

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeSundaresh Menon JC
Judgment Date07 August 2006
Neutral Citation[2006] SGHC 142
Citation[2006] SGHC 142
SubjectWhether ordering handwriting samples to be given to defendant amounting to preservation of evidence,Order 24 r 6 Rules of Court (Cap 322, R 5, 2004 Rev Ed),Whether documents in danger of destruction,Jurisdiction,Whether court having inherent jurisdiction to order non-parties to action to provide documents and handwriting samples to defendant for inspection prior to trial,Discovery of documents,Whether court having power to order production of documents under s 75,Defendant in action commenced by plaintiff applying for order of court compelling non-parties to action to provide certain documents and handwriting samples under O 29 r 3(1) Rules of Court,Defendant in action commenced by plaintiff applying for discovery of documents against non-parties to action under O 24 r 6 Rules of Court,Defendant in action commenced by plaintiff applying for order of court compelling non-parties to action to provide certain documents and handwriting samples,Whether order relating to "property which is the subject-matter of the cause or matter",Whether court having power under O 24 r 6 to order non-parties to provide documents to defendant for inspection prior to trial,Judgments and orders,First Schedule para 5(b) Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed),Defendant in action commenced by plaintiff applying for order of court compelling non-parties to action to provide certain documents and handwriting samples under First Schedule para 5(b) Supreme Court of Judicature Act,Defendant in action commenced by plaintiff applying for order of court compelling non-parties to action to provide certain documents and handwriting samples under s 75 Evidence Act,Application,Inherent,Order 29 r 3(1) Rules of Court (Cap 322, R 5, 2004 Rev Ed),Section 75 Evidence Act (Cap 97, 1997 Rev Ed),Whether non-party whose handwriting samples wanted by defendant amounting to "any person present in court",Civil Procedure
Defendant CounselAnna Quah I-Lin (Ang & Partners),Wendy Tan (Haq & Selvam)
Plaintiff CounselJasmine Chin (Rajah & Tann)
Publication Date07 October 2006
Docket NumberSuit No 409 of 2005 (Summons No 1753
Date07 August 2006

7 August 2006

Judgment reserved.

Sundaresh Menon JC:

1 The Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”) spell out many of the powers of our courts to manage and regulate civil cases. The powers contained there are complemented by the courts’ inherent jurisdiction, an amorphous source of power to do that which is deemed appropriate in the circumstances to secure the ends of justice. This case requires me to consider if the court’s powers, whether under the Rules or in its inherent jurisdiction, extend to making orders against persons who are not parties to this action, requiring them to furnish handwriting samples. This is in order to enable the defendant, who is the applicant before me, to establish or to disprove certain hypotheses upon which the plaintiff’s case against it rests.

The facts

2 The facts of the case may be stated quite briefly. Under a marine open policy, Tokio Marine & Fire Insurance Company (Singapore) Pte Ltd (“the Defendant”) was the insurer of goods and merchandise declared by UMCI Ltd (“the Plaintiff”). In or about April 2004, the Plaintiff made a declaration in respect of some semiconductor manufacturing equipment, which I refer to in this judgment simply as “the cargo”.

3 According to the Plaintiff, the cargo had been purchased from Applied Materials Asia Pacific Ltd (“AMAPL”). Morrison Express Logistics Pte Ltd (“Morrison”) was appointed to provide freight forwarding services to transport the cargo from AMAPL’s premises in Austin, Texas, to Changi Airport. Morrison was to convey the cargo to Bee Hup Seng Kinetic Pte Ltd, a specialist moving company, also appointed by the Plaintiff, who was to transport the cargo from Changi Airport to the Plaintiff’s premises.

4 On or about 30 April 2004, the Defendant was informed by Willis (Singapore) Pte Ltd (“Willis”), who was then the Plaintiff’s insurance broker, of a claim under the policy. It appears that the cargo had arrived at the Plaintiff’s premises in a damaged condition.

5 The Defendant took the view that the Plaintiff had failed to establish its claim under the policy and the present action was then commenced. The Plaintiff sought recovery of the sum of US$1,375,000 being the loss allegedly suffered by reason of the damage to the cargo.

6 The Plaintiff’s claim rested on the contention that the cargo was in good order and condition when shipped and had been damaged in transit. In support of this contention, the Plaintiff submitted various documents, including a photocopy of a cargo checklist, which suggested that there had been no damage to the surface of the crates in which the cargo had been packed when it was inspected at the premises of AMAPL.

7 The Defendant requested inspection of the original of the cargo checklist in question and this was to take place on 17 March 2005. However, at the inspection, which took place at the Plaintiff’s premises, an original document was produced but it was a different version of the cargo checklist and it suggested that in fact damage to the crates had been noted even when the cargo was inspected at AMAPL’s premises. There were also some other differences between the document produced at the inspection and that which the Defendant had earlier seen a photocopy of.

8 The Defendant then applied for specific discovery and interrogatories. The Plaintiff’s representative filed an affidavit in which it was stated that the cargo checklist was prepared by Morrison acting by its representative, one Mr Ben Lim Beng Wee (“Mr Lim”). It was stated that Mr Lim had made the cargo checklist in duplicate. The original was retained by Morrison while the Plaintiff had the duplicate cargo checklist. The Plaintiff further stated that the alleged damage to the surface of the crates recorded on the duplicate cargo checklist was reflected there by reason of a clerical error.

9 Faced with this, the Defendant pleaded, inter alia, that the Plaintiff was acting in breach of its duty of good faith by using fraudulent means to improve the prospects of a good outcome or settlement in respect of its claim.

10 There is every reason to believe that the authenticity and the circumstances of the coming into existence of the two versions of the cargo checklist will be relevant to the defences pleaded by the Defendant. Ms Wendy Tan, who appeared for Morrison and Mr Lim (collectively referred to here as “the Non-parties”), initially accepted that the subject matter of the present application would be relevant to issues in the trial. To this end, the Defendant required the Non-parties to provide samples of Mr Lim’s handwriting found on the originals of other similar checklists made in the normal course of business (referred to in this judgment as “documentary samples”); and Mr Lim to make and provide some specific handwriting samples (referred to here as “handwriting samples”). The Defendant’s solicitors therefore approached the solicitors representing Morrisons and Mr Lim but the Non-parties were unwilling to accede to either request. This has given rise to the application before me.

The arguments

11 Ms Anna Quah appeared for the Defendant. She explained that her client had engaged a handwriting expert to opine on the authenticity of the two versions of the cargo checklist and whether these had in fact been made by Mr Lim. The application was initiated because the expert wished to have the two classes of samples that I have referred to in order to form reliable conclusions. Ms Quah initially founded her application on any one of the following three bases:

(a) It was within the power of this court to make such an order under O 29 r 3 of the Rules which concerns the taking of samples. That rule is not in terms limited in its application to parties to a matter. Moreover, Ms Quah contended, although the rule speaks of “property” there is no need to construe that narrowly so as to exclude the samples she was seeking.

(b) Under s 75 of the Evidence Act (Cap 97, 1997 Rev Ed), the court has the power to direct a witness before it to provide handwriting samples. Ms Quah submitted this should be construed to cover Mr Lim who is “before” me through his counsel, Ms Tan. Moreover, although the section speaks of “preservation”, that should be construed broadly to cover the obtaining of evidence from a witness who conceivably may no longer be available or amenable to giving evidence at the time of the trial.

(c) Under para 5(b) of the First Schedule to the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”), the court also has the power to make orders to preserve evidence, inter alia, by the taking of evidence and by conducting experiments.

12 Ms Quah’s submissions initially made no distinction between the documentary samples and the handwriting samples. However, in the course of arguments, I invited Ms Quah to address me on whether in relation to the documentary samples, it would be possible to seek an order for discovery against a non-party under O 24 r 6(2) of the Rules and/or the inherent jurisdiction of the court; and whether in relation to the handwriting samples, it would be possible to have recourse to the inherent jurisdiction of the court.

13 Ms Quah then filed supplementary submissions in which she took up both these lines.

14 Ms Tan’s position in relation to the initial lines of argument was that the court has no power to make the orders of the sort Ms Quah was seeking under the provisions relied on by Ms Quah. She maintained that O 29 r 3 should be construed as applying only to parties to the action. Where the Rules confer rights against non-parties this was in general spelt out in express terms. Further, she argued that O 29 was limited to situations where there was “property” in existence. The making of handwriting samples was a process and there was no property to speak of within the meaning of that rule.

15 As to para 5(b) of the First Schedule of the SCJA, Ms Tan submitted that this applied to the “preservation of evidence” which contemplates that the evidence is in existence and is to be preserved. The orders sought in relation to the documentary samples were for delivery and not for preservation. As for the handwriting samples, there was nothing yet to preserve.

16 Lastly, with respect to s 75 of the Evidence Act, Ms Tan submitted that this was a provision of last recourse. It should not even be resorted to where more direct means were available to establish who made the document in question, as for instance in this case, by requiring Mr Lim to give evidence. Ms Tan indicated that Mr Lim had been requested by the Plaintiff to appear as a witness and he was in principle willing to do so. She further argued that in any case, there was nothing in s 75 of the Evidence Act which empowered me to make the order sought. Mr Lim was not present in court and hence not caught by the section.

17 In response to the supplementary submissions filed by Ms Quah, Ms Tan submitted that the documentary samples were not within the ambit of O 24 r 6(2); and in relation to the handwriting samples that there was no basis for me to invoke the court’s inherent jurisdiction to make the order sought in this case.

18 For convenience, I deal with the issues raised as follows:

(a) the initial arguments in relation to both types of samples;

(b) O 24 r 6(2) and the inherent jurisdiction in relation to the documentary samples;

(c) the inherent jurisdiction in relation to the handwriting samples.

The initial arguments in relation to both types of samples

19 I deal with the initial arguments by reference to the way in which they were presented by Ms Quah.

Order 29 rule 3 of the Rules of Court

20 Order 29 r 3(1) of the Rules provides as follows:

Where it considers it necessary or expedient for the purpose of obtaining full information or evidence in any cause or matter, the Court may, on the application of a party to the cause or matter, and on such terms, if any, as it thinks just, by order authorise or require any sample to be taken...

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