Citation(1999) 11 SAcLJ 434
Published date01 December 1999
Date01 December 1999

In Cotan Petroleum Pte Ltd & Anor v The Owners Of The Ship Or Vessel “Endurance 1” Ex “Tokai Maru”,1 the Court of Appeal clarified the principles applicable to applications to extend time to comply with ordinary orders of court and the Rules of Court, and to strike out for non-compliance. Justice Tan Lee Meng who delivered the judgment of the court recognised that different principles apply where an “unless order” is involved.2 The court stated without any elaboration that “A failure to comply with an ‘unless order’ will ordinarily result in the sanction being imposed and in such a case, the onus would have fallen on the appellants to justify the defence being allowed to stand.”3

About half a year later,4 Justice Tan Lee Meng delivering the judgment of the Court of Appeal in Syed Mohamed Abdul Muthaliff @ Abdul Halim s/o Mohd Ibrahim and Junaitha Begum w/o Abdul Halim v Arjan Bhisham Chotrani,5 (“Arjan”) has clarified the general principles governing “unless orders”. The decision is important as it lays down comprehensively for the first time in Singapore the applicable principles relating to unless orders.

The facts and decision

The plaintiff, P, sued the defendants, D, for his legal fees. Judgment in default was entered against D. D set aside the judgment and filed a defence and counterclaim. P subsequently withdrew his claim against D. On 18/7/97, P requested D to furnish further and better particulars of the counterclaim by 25/7/97. On 27/7/97, D’s solicitors replied that the time given to provide the particulars was unreasonably short in view of the lengthy and detailed particulars requested. The letter, however, stated that D will endeavour to provide a reply as soon as possible. On the

following day, P applied for an “unless order” that D provide the particulars sought. The application was heard on 5/8/97 by the deputy registrar and D was ordered to file and serve the particulars within 10 days. The deputy registrar’s order (hereinafter the “Unless Order”) further provided that in default of furnishing the particulars, the counterclaim was to be struck out.

The deadline for filing the particulars expired on 15/8/97. On the morning of 16/8/97, P obtained an order to strike out the counterclaim with costs at 9.52 a.m.. On the same morning, D’s solicitors attempted to file the required particulars after having them stamped at 9.31 a.m., but were unable to do so as they were out of time. D appealed against the striking out order, and the appeal was dismissed both by the district court and the High Court. D appealed further to the Court of Appeal. The Court of Appeal allowed the appeal.

In reaching its decision, the Court accepted that the power to extend time should be exercised cautiously for very good reason. As to the specific principles that should be borne in mind when deciding whether to extend time, the Court cited in full a passage from Re Jokai Tea Holdings Ltd6 that suggests that the relevant question is whether the failure is intentional or contumelious. Having cited the passage, the Court was quick to point out that whether or not default was intentional or contumelious is not the sole criterion upon which the discretion of the court whether or not to exercise the discretion to strike out should be exercised. The Court held noted that there was support7 for the view that the test for striking out need not depend on whether the conduct of the party in breach was intentional or contumelious. According to the Court, the crux of the matter is that the party seeking to escape the consequences of his default must show that he had made positive efforts to comply but was prevented from doing so by extraneous circumstances.

Having identified the crux of the matter, the Court found helpful the following passage from the decision of Ward LJ in Hytec Information Systems Ltd v Coventry City Council:8

(1) An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party’s last chance to put his case in order. (2) Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed. (3) This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt

his failure. (4) It seems axiomatic that if a party intentionally or deliberately (if the synonym preferred) flouts the order then he can expect no mercy. (5) A sufficient exoneration will almost inevitably require that he satisfies the court that something beyond his control has caused his failure to comply with the order. (6) The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice. (7) The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused by the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weighs very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.”

While accepting Ward’s encapsulation of the philosophy behind unless orders, the Court reiterated that each case would have to be decided on its own facts. The guidelines laid down are no more than that (i.e. mere guidelines). Counsel for D made five arguments, namely that (1) the trial judge did not consider whether there was a history of procedural defaults on the part of the D, (2) the trial judge did not take into account that D did in fact try to comply with the unless order and was late only by the thinnest of margins (as seen from the fact that particulars were stamped at 9.31 a.m. the following day), (3) the trial judge had not considered whether D’s default was intentional or contumelious, (4) the trial judge had not considered whether P had suffered any prejudice, and (5) the trial judge had not considered the question of proportionality, i.e. that the striking out was disproportionate to the default.

The Court rejected the argument that the unless order was not appropriate because D had no history of procedural defaults. In the view of the Court, this was not an argument that was open to D, since the unless order, as an order of court, must be complied with. However, the Court held that D’s clean history made it easier to argue that the default was not intentional or contumelious.

The Court then held that D did try to comply, and for that reason the default was not intentional or contumelious. Having said that, the Court held that it was not prudent for D’s solicitors to have gone on leave one day after the unless order was made and to remain on leave for five days. Further, D solicitors could have informed P after 4 p.m. on 15 August 1997 that the particulars were available. In this connection, the court rejected an argument that the incompetence of the solicitor, without more, was not a good defence. The court then held that the only mitigating factor was that the failure to comply with the unless order was by a few minutes, which undoubtedly was by the thinnest of margins.

The Court then held that if there was no other factors to be taken into account, D might have found it difficult to persuade the Court to grant an extension of time. However, if all the circumstances of the case were taken into account the position was different. In particular, the court noted that there was no prejudice to P, and that the sanction of striking out the counterclaim was not proportional to the very thin margin of default. On these grounds, the Court allowed the appeal.

There are several matters arising from the case which merit further elaboration. These are discussed below.

Appropriateness of making unless orders

Although the question of the appropriateness of the making of the Unless Order was not before the Court, there being no challenge to making of the Unless Order itself,9 some guidance may be drawn from Arjan as to the circumstances which a court should make...

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