Wee Siew Noi v Lee Mun Tuck (the administrator of the estate of Lee Wai Leng, deceased)

• Court: Court of Appeal (Singapore)
• Judge: Karthigesu J
• Judgment Date: 10 April 1993
• Neutral Citation: [1993] SGCA 26
• Citation: [1993] SGCA 26
• Defendant Counsel: S Rasanathan (Jacob Chacko Mohan Das & Partners)
• Plaintiff Counsel: R Karuppan Chettiar with Premnath (Ng Kian Fong & Co)
• Published date: 19 September 2003
• Docket Number: Civil Appeal No 121 of 1990
• Date: 10 April 1993
• Subject Matter: Existence of conduct of defendant inconsistent with application,Whether defendant's delay in filing defence a factor to be taken against her,Principles applicable,Application to dismiss action for want of prosecution,Particular persons,Whether fair trial possible after long lapse of time,Whether defendant thereby prejudiced in her defence,Civil Procedure,Dismissal for want of prosecution

This is an appeal against the decision of Chao Hick Tin J upholding a decision of the assistant registrar dismissing an application by the second defendant (hereinafter `the defendant`) for dismissal of the plaintiff`s action in Suit No 2951 of 1982 for want of prosecution. We dismissed the appeal, and now give our reasons.

The plaintiff is the brother and administrator of the estate of Lee Wai Leng, deceased. On 25 July 1979, the deceased, who was a passenger in a motor car driven by the defendant, sustained fatal injuries in a collision between the car and a bus belonging to the Singapore Bus Services.

On 20 July 1982, a few days before the expiry of the limitation period, the plaintiff as the administrator of the estate of the deceased took out a writ against the defendant and her employer, one Tan Chin Kah (`Tan`) claiming damages for the benefit of the estate and the dependants of the deceased under the provisions of the Civil Law Act arising from the fatal injuries sustained by the deceased in the accident.

Nearly a year later, on 29 June 1983, the writ, endorsed with a statement of claim, was served on the defendant. This was after the limitation period had expired. The defendant duly entered appearance. The writ was not served on Tan. It appears that nothing happened thereafter, except that on 19 August 1989 the defendant`s solicitors were served with a notice of change of the plaintiff`s solicitors.

Thereafter, nothing was done until 14 April 1990, when the plaintiff filed a notice of intention to proceed. On 2 May 1990, the defendant applied by summons to have the plaintiff`s action dismissed for want of prosecution.

On 29 May 1990, before the application was heard, the plaintiff`s solicitors wrote to the defendant`s solicitors pointing out that no defence had been filed and giving the defendant 24 hours` notice to file one on pain of having default judgment entered against the defendant. On 30 May 1990, the defendant filed her defence.

On 9 July 1990, an assistant registrar heard the defendant`s application. He dismissed it. On 7 November 1990, the learned judge affirmed the assistant registrar`s decision [see [1991] 2 MLJ 324 ].

It will be seen that after serving the writ on the defendant, the plaintiff or his solicitors allowed the action to go to sleep for more than six years. Even after the plaintiff`s present solicitors took over the matter, nothing was done for another eight months until April 1990, when notice of intention to proceed was filed. The plaintiff says that he left everything to his former solicitors, who appear not to have given the case due attention. Even telephone calls to them went unanswered. The solicitors have not come forward to explain why the case has taken such a slow course.

In these circumstances, the defendant`s counsel submitted in the courts below and before us that there has been inordinate and inexcusable delay. He also submitted that this would prejudice the defence in the following ways, and here we quote from his written skeleton argument, especially as to the use of the verbs. Firstly, because of the considerable lapse of time, about 13 years after the accident, the memory of the defendant and her witnesses would have faded and their evidence may not come out as effectively or as impressively as it should. Secondly, it would be almost impossible to locate the material witnesses. Thirdly, relevant documents of the traffic police have been destroyed and other documents are likely to have been destroyed or to be no longer available. Fourthly, the claim for loss of earnings would no longer be verifiable, and witnesses on damages are not likely to be traceable after so many years. Fifthly, as the defendant was never informed that the writ had not been served on Tan, she has taken no steps to add Tan as a third party, and it may be too late to do so now. This will cause irremediable loss to the defendant as she was not insured.

Grounds of decision below

Chao Hick Tin J reviewed the facts and the authorities, particularly Allen v Sir Alfred McAlpine & Sons [1968] 2 QB 229[1968] 1 All ER 543[1968] 2 WLR 366 He dismissed the appeal essentially on two grounds. Firstly, he was of the view that the defendant`s own conduct debarred her from the remedy. He was clearly impressed by the fact that the defendant, as much as the plaintiff, had been guilty of inordinate delay. He pointed out that the defence, which by the rules should have been filed by 21 July 1983, was not filed until 30 May 1990, as stated above. Secondly, the learned judge did not think that the defendant had made out that she was prejudiced by the delay.

On the first point, the learned judge relied on the following passage in Lord Diplock`s judgment in Allen v Sir Alfred McAlpine & Sons :1

Since the power to dismiss an action for want of prosecution is only exercisable upon the application of the defendant, his previous conduct in the action is always relevant. So far as he himself has been responsible for any unnecessary delay, he obviously cannot rely upon it. ... For the reasons already mentioned, however, mere non-activity on the part of the defendant where no procedural step on his part is called for by the rules of the court is not to be regarded as conduct capable of inducing the plaintiff reasonably to believe that the defendant intends to exercise his right to proceed to trial. (Emphasis added by the learned judge.)

The learned judge said:

Where two parties, like the present case, are equally guilty of inordinate delay, I do not see why this court should be more harsh towards one party than the other. In such circumstances, I think the court should not favour any one party and justice would demand that the case be permitted to proceed. He who comes to court to complain that the other party is guilty of delay and seeks the discretion of the court should not himself be guilty of non-compliance with the rules. I am unable to disregard the conduct of the defendant and/or her solicitors.

Submissions before us

Before us, the...