Disposal Of Actions Without Trial & Control Of Proceedings By Court

DISPOSAL OF ACTIONS WITHOUT TRIAL

NOTE – SUMMARY JUDGEMENT, STRIKING OUT AND OFFER TO SETTLE!!!During the course of an action, the defendant may wish to save costs by, ie: making payment into court, or by offering to settle, etc. In such cases, the proceedings will be stayed and may be disposed off without trial

What can terminate action without trial - 1. Security for costs – can terminate action without trial stimes2. failure to give further and better particulars3. others – see below4. summary judgement/ O14 – expedited judgement application5. striking out (writs/ pleadings/ action)6. offer to settle (OTS)7. consolidation of proceedgs – eg start 1 action, someone else starts another, so put them together – this effectively puts an end to one action and parent action will cont as consolidated action

(A) JUDGMENTS IN DEFAULT OF APPEARANCE (O13) AND DEFENCE (O19)

- Note that Rule 70 of the Professional Conduct Rules applies to judgments in default.

Entering judgment by default70. —(1)   An advocate and solicitor shall not enter judgment by default pursuant to the Rules of Court (Cap. 322, R5) against any other party who is on record represented by another advocate and solicitor, or take any advantage of any delay in filing pleadings unless written notice of his intention to do so has been given to the other advocate and solicitor and 2 working days have elapsed after service of such notice. (2)   Any notice under paragraph (1) given on a working day after 4.00 p.m. or on a day other than a working day shall be deemed to have been given on the next working day. (3)   This Rule shall not operate to extend the time stipulated by any Order of Court for any action or step to be taken and no notice need to be given under this Rule before any action or step is taken upon any failure to comply with any such Order of Court. (4)   In this rule, “working day” means any day other than a Saturday, Sunday or public holiday.

Default of Appearance - ORDER 131. Effect. By not entering an appearance, the defendant admits all allegations in the statement of claim. (Cribb v Freyberger [1919] W N 22)- Exception: see Order 76, rule 8 i.e. a person under disability – not fair to deem that they

admit all statement of claim

Admission not to be implied from pleading of person under disability (O. 76, r. 8)8. Notwithstanding anything in Order 18, Rule 13 (1), a person under disability shall not

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be taken to admit the truth of any allegation of fact made in the pleading of the opposite party by reason only that he has not traversed it in his pleadings.

- Otherwise deemed to have admitted- 70-80% cases – there is judgement in default of appearance – the mmt exceed time line

of 8 to enter appearance or 14 days to file defence then can file

2. Nature. - A judgment in default is not a judgment on the merits. (Oppenheim v Mahomed [1922]

1 AC 482).- It was held that a judgment in default of giving notice of intention to defend creates a

very limited estoppel, precluding the defendant from setting up in a subsequent action a defence which was necessarily and with complete precision, decided by the previous judgment (New Brunswick Ry Co v British and French Trust Corp [1939] AC 1).

- def entitled to set aside – default merely means he did not know or did not want to enter appearance

- if he chooses to file it one day, can still do by applying to set aside judgment but he has to pay costs

- esp if it is his fault

3. Steps Involved:o Must give 48 hour notice as required by

Rule 70 of the professional conduct rules.o Apply by SIC supported by affidavit.o Plaintiff must have served Writ and

Statement of Claimo Plaintiff must wait for time period limited

for entry of appearance to expire.o Plaintiff must file Memorandum of Service

under Order 10, rule 1(4).o Draft judgment to be filed in Form 79.o Note of Costs (Appendix 2 of Order 59) to

be filed.o Certificate of Non-Appearance (Form 17) to

be filed if it is under Order 13.o Plaintiff must file either affidavit of service

or production of writ indorsed by defendant’s solicitor - to prove that the writ has been served

o If it is a claim for possession of immovable property, certificate by solicitor that no relief is claimed of the nature specified in Order 83, rule 1 (Order 13, rule 4(1)).

o If Defendant does not enter an appearance, he can get an extract from the Registry and then apply for default judgment.

o Registry will record the default judgment

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General provisions (O. 10, r. 1)1. —(1) Subject to the provisions of any written law and these Rules, a writ must be served personally on each defendant. (3) Subject to Order 12, Rule 6, where a writ is not duly served on a defendant but he enters an appearance in the action begun by the writ, the writ shall be deemed to have been duly served on him and to have been so served on the date on which he entered the appearance. (4) 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 8 days after service the plaintiff files a memorandum of service in Form 6 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.

3. TypesWhen can the Plaintiff enter Final Judgment?

If his claim is a liquidated one (that is, for a specific sum of money). To qualify as a liquidated demand, the amount must either be ascertained or capable of being ascertained as a mere matter of arithmetic. Supreme Court Practice 1999, vol 1, para 6/2/5.

If his claim is for recovery of immovable property e.g. land

When can the Plaintiff enter Interlocutory Judgment : A judgment is referred to as interlocutory if further steps need to be taken in order

to finalise it. For instance the court may give an interlocutory judgment for unliquidated damages. Such a judgment will be finalised on the assessment of those damages.

If his claim if an unliquidated (ie: claim for personal injury or detention of goods) Plaintiff must file the Notice of Appointment to attend before the Registry with

witnesses for the assessment of damages. Plaintiff must then obtain the extract from the Registry to convert interlocutory

judgment into final judgment.

1. Order 13, rule 1(1): When plaintiff’s claim is for a liquidated demand only – the plaintiff may enter final judgment if the defendant fails to enter an appearance. If judgment is entered for an amount larger than is due, the defendant is entitled to have it set aside (Hughes v Justin [1894] 1 QB 667, unless the judgment is rectified by amendment (See Order 20 r 11, Muir v Jenks [1913] 2 KB 412). The plaintiff may also seek an amendment if judgment is entered for an amount which is less than what is due – Sanders v Hamilton (1907) 96 LT 679.

Claim for liquidated demand (O. 13, r. 1)1. —(1) Where a writ is endorsed with a claim against a defendant for a liquidated

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demand only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand and for costs, and proceed with the action against the other defendants, if any. (2) A claim shall not be prevented from being treated for the purposes of this Rule as a claim for a liquidated demand by reason only that part of the claim is for interest accruing after the date of the writ at an unspecified rate, but any such interest shall be computed from the date of the writ to the date of entering judgment at the rate of 6% per annum or at such other rate as the Chief Justice may from time to time direct.

2. Order 13, rule 2: When plaintiff’s claim is for unliquidated damages only – the plaintiff may enter interlocutory judgment for damages to be assessed if the defendant fails to enter an appearance.

Claim for unliquidated damages (O. 13, r. 2)2. Where a writ is endorsed with a claim against a defendant for unliquidated damages only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter interlocutory judgment against that defendant for damages to be assessed and costs, and proceed with the action against the other defendants, if any

3. Order 13, rule 3: When plaintiff’s claim is for the detention of movable property only – the plaintiff may enter interlocutory judgment for the delivery of the property or for their value to be assessed if the defendant fails to enter an appearance.

Claim in detinue (O. 13, r. 3)3. Where a writ is endorsed with a claim against a defendant relating to the detention of movable property only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, at his option enter either — (a) interlocutory judgment against the defendant for the delivery of the property or their value to be assessed and costs; or (b) interlocutory judgment for the value of the property to be assessed and costs, and proceed with the action against the other defendants, if any.

4. Order 13, rule 4 – When plaintiff’s claim for possession of immovable property only – the plaintiff may enter judgment for possession of the immovable property if the defendant fails to enter an appearance.

Claim for possession of immovable property (O. 13, r. 4)4. —(1) Where a writ is endorsed with a claim against a defendant for possession of immovable property only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, and on producing a certificate by his solicitor, or (if he sues in person) an affidavit, stating that he is not claiming any relief in the action of the nature specified in Order 83, Rule 1, enter judgment for possession of the immovable property as against that defendant and costs, and proceed with the action against the other defendants, if any.

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(2) Where there is more than one defendant, judgment entered under this Rule shall not be enforced against any defendant until judgment for possession of the immovable property has been entered against all the defendants.

5. Order 13, rule 5 – When plaintiff’s claim is for a mixed claim (ie: Rules 1 to 4) – the plaintiff may enter such judgment in respect of any such claims if the defendant fails to enter an appearance.

Mixed claims (O. 13, r. 5)5. Where a writ issued against any defendant is endorsed with 2 or more of the claims mentioned in Rules 1 to 4, and no other claim, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter against that defendant such judgment in respect of any such claim as he would be entitled to enter under these Rules if that were the only claim endorsed on the writ, and proceed with the action against the other defendants, if any.

6. Order 13, rule 6 – When plaintiff’s claim is for other claim (ie: not mentioned in Rule 1 to 4), and the defendant fails to enter an appearance – the plaintiff may proceed with the action as if that defendant had entered appearance and the plaintiff may make an application by SIC or motion to enter judgment.

Other claims (O. 13, r. 6)6. —(1) Where a writ is endorsed with a claim of a description not mentioned in Rules 1 to 4, then, if any defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing and upon filing an affidavit proving due service of the writ on that defendant and, where the statement of claim was not endorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had entered an appearance. (2) Where a writ issued against a defendant is endorsed as aforesaid, but by reason of the defendant’s satisfying the claim or complying with the demands thereof or for any other like reason it has become unnecessary for the plaintiff to proceed with the action, then, if the defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter judgment with the leave of the Court against that defendant for costs. (3) An application for leave to enter judgment under paragraph (2) shall be by summons which must, unless the Court otherwise orders, and notwithstanding anything in Order 62, Rule 10, be served on the defendant against whom it is sought to enter judgment.

7. Order 19 rule 7 (one alternative)

Default of defence: Other claims (O. 19, r. 7)7. —(1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in Rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.

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(2) Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more than one defendant, then, if one of the defendants makes default as mentioned in that paragraph, the plaintiff may — (a) if his claim against the defendant in default is severable from his claim against the other defendants, apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or (b) set down the action by summons for judgment against the defendant in default at the time when the action is set down for trial, or is set down by summons for judgment, against the other defendants. (3) An application under paragraph (1) must be by summons.

8. Order 21 rule 2 (the other alternative).

Discontinuance of action, etc., without leave (O. 21, r. 2)2. —(1) The plaintiff in an action begun by writ may, without the leave of the Court, discontinue the action, or withdraw any particular claim made by him therein, as against all or any of the defendants at any time not later than 14 days after service of the defence on him or, if there are 2 or more defendants, of the defence last served, by serving a notice in Form 30 to that effect on the defendant concerned. (2) A defendant may, without the leave of the Court — (a) withdraw his defence or any part of it at any time; (b) discontinue a counterclaim, or withdraw any particular claim made by him therein, as against all or any of the parties against whom it is made, at any time not later than 14 days after service on him of a defence to counterclaim or, if the counterclaim is made against 2 or more parties, of the defence to counterclaim last served, by serving a notice in Form 30 to that effect on the plaintiff or other party concerned. (3) Where there are 2 or more defendants to an action not all of whom serve a defence on the plaintiff, and the period fixed under these Rules for service by any of those defendants of his defence expires after the latest date on which any other defendant serves his defence, paragraph (1) shall have effect as if the reference therein to the service of the defence last served were a reference to the expiration of that period. This paragraph shall apply in relation to a counterclaim as it applies in relation to an action with the substitution for references to a defence, to the plaintiff and to paragraph (1), of references to a defence to counterclaim, to the defendant and to paragraph (2) respectively. (4) If all the parties to an action consent, the action may be withdrawn without the leave of the Court at any time before trial by producing to the Registrar a written consent to the action being withdrawn signed by all the parties. (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.

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(6) Subject to paragraph (6A), if no party to an action or a cause or matter has, for more than one year (or such extended period as the Court may allow under paragraph (6B)), taken any step or proceeding in the action, cause or matter that appears from records maintained by the Court, the action, cause or matter is deemed to have been discontinued. (6A) Paragraph (6) shall not apply where the action, cause or matter has been stayed pursuant to an order of court. (6B) The Court may, on an application by any party made before the one year referred to in paragraph (6) has elapsed, extend the time to such extent as it may think fit. (7) Paragraph (6) shall apply to an action, a cause or a matter, whether it commenced before, on or after 15th December 1999, but where the last proceeding in the action, cause or matter took place before 1st January 2000, the period of one year shall only begin on 1st January 2000. (8) Where an action, a cause or a matter has been discontinued under paragraph (5) or (6), the Court may, on application, reinstate the action, cause or matter, and allow it to proceed on such terms as it thinks just.

- Order 13 (in default of appearance to writ) mirrors order 19 (default of pleadings)- Diff is in procedure –

o13 – to bring in form 79 – see below: by filing doc For order 19 – see below – not to file doc but summons for leave of court to

grant judgement

4. Procedure (this is the only diff bet order 13 and order 19). - Memorandum of Service to be filed under Order 10, rule 1(4),

Order 10, rule 1(4): Plaintiff must file Memorandum of Service of the Writ in Form 11 within 8 days after service – otherwise, Plaintiff is not entitled to enter final or interlocutory judgment against the defendant in default of appearance or in default of defence.

- the draft Judgment in Form 79, select the appropriate form in Form 79

FORM 79: Judgments(a) Default judgment in action for liquidated demand Order 13, rule 1

Order 19, rule 2(b) Default judgment in action for unliquidated damages Order 13, rule 2

Order 19, rule 3(c) Default judgment in action relating to detention of movable

propertyOrder 13, rule 3Order 19, rule 4

(d) Default judgment in action for possession of immovable property

Order 13, rule 4Order 19, rule 5

(e) Judgment in default in action for possession of immovable property, damages and costs

Order 13, rule 4Order 19, rule 6

(f) Final judgement after assessment of damages Order 42 rule 5

- Note of Costs (Appendix 2 of Order 59) payable in respect of the default judgment, - Certificate of Non-Appearance (Form 17) if it is under Order 13, either affidavit of

service or production of writ indorsed by defendant’s solicitor and

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- if it is a claim for possession of immovable property, certificate by solicitor that no relief is claimed of the nature specified in Order 83, rule l (Order 13, rule 4(1)).

- The plaintiff should not apply for judgment in default of appearance where he is aware that the memorandum of appearance has been filed, albeit beyond the prescribed period for filing it.

In Chua Choon Lim Robert v M N Swami of Messrs M N Swami & Yap & Ors [2000] 4 SLR 494, the High Court regarded the plaintiff’s conduct in making the application (after he was aware that the memorandum had been filed late) as ‘mischevious’

5. Setting aside Order 13, rule 8: The Court may set aside or vary any default judgment.

Setting aside judgment (O. 13, r. 8)8. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. - Order 13, rule 8 (setting aside of judgment so entered by SIC) – If it is an irregular

judgment, it may be set aside for procedural irregularity. - If it is a regular judgment5, it may be set aside on the merits i.e. that the defence has

real prospects of success.- Def can set aside judgment in default against him whether in default of appearance or

defence- Normally applic to set aside premised on

o 1. plaintiff failed in procedure ie proced irregularity eg waited only 7 days ORo 2. substantive defence/ substantive merits of the case

- take out summons supported by affidavit to set aside- if judgement stands, ie def loses applic to set aside – def must pay costs. - If judgement set aside – def won on procedural irreg of plaintiff – plaitnfiff will pay

costs because he was at fault- If def won application and judgement set aside but succeeded on substantive defence –

def shld pay costs. Def MUST because it was his fault that led to plaintiff entering a regular judgement. – apply concept of who is at fault

- If defendant applies to set aside the default judgment and does not succeed, defendant has to pay costs. Indemnity costs against the defendant has to be specially asked for, it’s not given automatically.

- If it is an irregular judgment (e.g. judgment entered into too early), it may be set aside for procedural irregularity. The defendant can get costs against the Plaintiff if the default judgment was irregularly obtained.

o Cases on “irregular judgment” – Evans v Bartlam [1937] AC 480, Irregular Judgment (Order 2 rule 2(2) ex debito justistiae; Anlaby v Praetorious [1888] 20 QBD 764; White v Weston [1968] 2 AER 981; White Book, paras 13/9/6 and 13/9/8; European Asian Bank v Chia Ngee Thuang [1995] 3 SLR 171.

- If it is a regular judgment, it may be set aside on the merits i.e. that the defence has real prospects of success.

o Plaintiff gets costs because the defendant did the plaintiff wrong.

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o Affidavit of merits must be filed – Farden v Richter [1889] 23 QBD 124; “real prospect of success” – “The Saudi Eagle” [1986] 2 Lloyds 221; “costs thrown away”; White Book 13/9/5). Abdul Gaffer v Chua Kwang Yong [ 1995] SLR 484; Hong Leong Finance v Tay Keow Neo [ 1992] I SLR 205; Tuan Haji Ahmed Abdul Rahmen v Aab – Malaysian Finance Bhd [1996] 1 MLJ 30; Cosmic Insurance Corp v Ong Kah Hoe [1996] 2 SLR 356. Day and Royal Automobile Club Motoring Services Ltd, 24th November 1998, Times Law Report.

Setting aside: - Irregular (default) judgment

Evans v Bartlam [1937] AC 480 - The standard indicated by each of their Lordships in Evans v. Bartlam contemplated

that a defendant who is asking the Court to exercise its discretion in his favour should show that he has a defence that has a real prospect of success. In Evans v. Bartlam there was an obvious defence under the Gaming Act.

White v Weston [1968] 2 AER 981 - A summons giving notice of county court proceedings was sent to the defendant, in

accordance with Ord. 8, r. 8 (3) of the County Court Rules, on October 28, 1966, at an address in Ilford which he had left some five months earlier. Accordingly, he had no knowledge of proceedings in respect of a car accident, which the plaintiff alleged was due to the defendant's negligence and in which the county court judge on November 25, 1966, awarded the plaintiff £134 damages and costs which, when taxed, amounted to £86. When the defendant learned of the proceedings he applied to set aside the judgment. During the course of the hearing the summons was found in the court file; it was stamped "Unable to meet deft. He resides at address given and would get summons by post" and signed by the Ilford County Court bailiff; that was followed by "Send summons by post" and the form on the summons was filled in showing that the summons was served by posting it on October 28, 1966. On July 26, 1967, the county court judge set aside the judgment but he ordered that the costs of the November hearing should be costs in cause. The defendant *648 appealed against the order for costs on the ground that since he had never been served he was entitled to have the judgment set aside with no order for costs.

- On the question whether the defendant was properly served:-- Held, that on the true construction of Ord. 8, r. 8 (3) and section 26 of the Interpretation

Act, 1889, the summons was never served and as a result of this fundamental defect the defendant had a right ex debito justitiae to have the judgment set aside without the imposition of any term whether as to costs or otherwise, and accordingly the order for costs should be set aside.

European Asian Bank v. Chia Ngee Thuang [1995] 3 SLR 171- In exercising its discretion to set aside the judgment, 2 important factors which the

court considered were:o the merits of the defendant’s case; and

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o if there was a delay in bringing the matter to court, any explanation which the defendant had proferred for the delay.

Regular (default) judgment (affidavit of merits)

Farden v. Richter [1889] 23 QBD 124- Facts: Order was made for the defendant to file answers to interrogatories within 3 days

or else judgment might be entered against him. Judgment was entered against defendant, and he applied to set aside judgment

- Held: In the absence of an affidavit showing that the defendant had a defence on the merits, the defendant was not entitled to have the judgment set aside.

The Saudi Eagle [1986] 2 Lloyds 221- The plaintiff claimed damages for breach of contract by the defendants who refused to

load the cargo. No intention to defend was given and interlocutory judgment was given. It was common ground that a deliberate decision was taken not to defend the plaintiff’s claim. The defendants applied to set aside the judgment.

- Held: On the evidence, the defendants had not shown that they had a defence which had any reasonable prospect of success. The conduct of the defendants in deliberately deciding not to give notice of intention to defend because it suited their interests not to do so was a matter to be taken into account in assessing the justice of the case.

Abdul Gaffer v. Chua Kwang Yong [1995] SLR 484- Held: The principles upon which the court should exercise its discretion under Order

13, rule 8: It is not sufficient to show merely an arguable defence that would justify leave to defend under Order 14. The discretion to set aside judgment in default is exercised when the applicant had a defence with a real prospect of success and which carried some degree of conviction.

- This case established that in making its decision, a court should take into account the reasons why the appellant had ignored the proceedings and allowed judgment in default to be entered against it.

Hong Leong Finance v Tay Keow Neo [1992] 1 SLR 205 - MPH Rubin JC - The manner in which a court should exercise its discretion in an

application of this nature, can be extracted from the speeches in Evans v Bartlam. The guiding principles, bearing in mind that in matters of discretion, no one case can be authority for another, have been summarized in Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc (‘The Saudi Eagle’ ) at p 223 (per Sir Roger Ormrod) as follows:

o (i)                   a judgment signed in default is a regular judgment from which, subject to (ii)below, the plaintiff derives rights of property;

o (ii)          the rules of court give to the judge a discretionary power to set aside the default judgment which is in terms ‘unconditional’ and the court should not ‘lay down rigid rules which deprive it of jurisdiction’ (per Lord Atkin at p 480);

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o (iii)          the purpose of this discretionary power is to avoid the injustice which might be caused if judgment followed automatically on default;

o (iv)          the primary consideration is whether the defendant ‘has merits to which the court should pay heed’ (per Lord Wright at p 489), not as a rule of law but as a matter of common sense, since there is no point in setting aside a judgment if the defendant has no defence and if he has shown ‘merits’ the ... court will not, prima facie, desire to let a judgment pass on which there has been no proper adjudication (ibid p 489 and per Lord Russell of Killowen at p 482).

o (v)          Again as a matter of common sense, though not making it a condition precedent, the court will take into account the explanation as to how it came about that the defendant ... found himself bound by a judgment regularly obtained to which he could have set up some serious defence (per Lord Russell of Killowen at p 482).

Tuan Haji Ahmed Abdul Rahmen v Arab – Malaysian Finance Bhd [1996] 1 MLJ 30 - On 8 July 1988, Arab-Malaysian Finance Bhd (`the respondent`) entered a judgment in

default of appearance against one of its borrowers (`the appellant`) for the sum of RM4,923,242.69 with interest `at 1% above the prescribed rate ... on a daily rests ...`. The appellant filed an application to set aside the judgment on the ground that it was irregularly obtained, as it is provided under O 83 r 4(1) of the Rules of the High Court 1980, that in a charge action begun by writ, judgment in default of appearance shall not be entered except with the leave of the court. The senior assistant registrar (`the SAR`) decided in favour of the appellant, and set aside the default judgment. Dissatisfied, the respondent appealed to the judge in chambers. At the hearing, the appellant further contended that the default judgment was uncertain, as although the words `prescribed rate of interest` (`the words`) were mentioned in the judgment, it was not defined therein, and therefore, the appellant would not be able to ascertain the amount which he was legally liable to pay (`the appellant`s contention`). The judge allowed the respondent`s appeal on the grounds that: (i) there was no question of a contravention of O 83 r 4(1), as the respondent`s action against the appellant was not a charge action; (ii) the court could not consider the appellant`s contention, as it had not been raised before the SAR; (iii) the defects in the judgment could be cured in any event, as the words were clearly defined in the appellant`s loan agreement; and (iv) there was an inordinate delay on the part of the appellant in filing the application to set aside the default judgment. The trial judge also ruled that the judgment in this case was similar to a consent judgment, and thus, the appellant should bring the matter within the terms on which a consent judgment could be set aside in order to succeed in setting aside the default judgment. The judge then proceeded to restore the default judgment, after deleting the words `daily rests basis` from it, even though this application of the respondent was not before him for disposal, and neither counsel was heard on the merits. The appellant appealed.

- Held , allowing the appeal: - (1).It is elementary that an irregular judgment is one which has been entered otherwise

than in strict compliance with the rules or some statute, or is entered as a result of some impropriety which is considered to be so serious as to render the proceedings a nullity. The general rule is that when it is clearly demonstrated to the satisfaction of the court

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that a judgment has not been regularly obtained, the defendant is entitled to have it set aside ex debito justitiae, that is to say, irrespective of the merits and without terms. However, the application to set aside such a judgment should be made: (i) with reasonable promptitude; and (ii) before the defendant has taken any fresh step after becoming aware of the irregularity.

- (2).In appeals to a judge in chambers from the decision of a registrar of the High Court, the judge is not exercising appellate jurisdiction in the same sense as when he hears appeals from judgments, decisions or orders of the subordinate courts. The appeals from decisions of the registrar are by way of an actual rehearing and the judge treats the matter as though it comes before him for the first time. The judge is therefore not confined to the points taken before the registrar, so that the rule about new points being not generally open to an appellant to take on appeal does not apply. It follows that the judge in this case was wrong in refusing to consider the appellant`s contention

- (3).Clearly, there had been procedural impropriety in the decision- making process of the judge, as neither counsel had had the opportunity of being heard, and on this ground alone, his judgment could not stand.

- (4).The default judgment was still uncertain even though reference was made to the loan agreement to resolve the ambiguities therein. The appellant would still be perplexed as to the amount of interest he would have to pay under the default judgment in order to avoid enforcement proceedings, as the default judgment included an element of contractual interest at a fluctuating rate, and when such interest was to run depended upon the absolute discretion of the respondent. By reason of uncertainty, the default judgment was a nullity.

- (5).It is clear law that the court still retains a discretion to set aside an irregular judgment despite long delay, provided it is satisfied that: (i) no one has suffered prejudice by reason of the appellant`s delay; (ii) alternatively, where such prejudice has been sustained, it can be met by an appropriate order as to costs; or (iii) to let the judgment to stand would constitute an oppression (see p 42G-H) Atwood v Chichester (1878) 3 QBD 722 and Harley v Samson (1914) 30 TLR 450 followed.

- (6).In this case, the delay was not fatal to the appellant`s application since the default judgment was by reason of uncertainty, was nullity. Under the court`s inherent jurisdiction to prevent abuse of its proceedings, the court has power to set aside the judgment in default, despite the appellant`s application being out of time. Beale v McGregor (1886) 2 TLR 311 followed.

Cosmic Insurance Corp v Ong Kah Hoe [1996] 2 SLR 356 - 24       After considering the matters, I find that there is a defence available if the

action is to go to trial which, in the words of Ormrod J in The Saudi Eagle; Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyd’s Rep221 at p 223, ‘has a real prospect of success’ and ‘carry some degree of conviction’, criteria which the Court of Appeal applied in Abdul Gaffer v Chua Kwang Yong [1995] 1 SLR 484 for determining whether a judgment entered in default of appearance can be set aside. These two cases also establish that in making its decision a court should take into account the reasons why the appellant had ignored the proceedings and allowed judgment in default to be entered against it.

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- 25       Applying the Saudi Eagle test, I find that the first defendant should be allowed to defend the action so that the legal basis of the plaintiffs’ claim can be examined, even though he had no good explanation for ignoring the proceedings. Accordingly I allow the first defendant’s appeal. The assistant registrar’s order is set aside, as well as the default judgment against him, and he shall have leave to enter his appearance in the action within eight days.

- 26       That leaves the question of costs. The first defendant has only himself to blame for not entering his appearance in the action and allowing judgment in default to be entered against him. All that he said by way of explanation was, ‘Being unaware of any rights, I did not instruct any firm of solicitors to enter an appearance or to defend the action herein.’ He remained indifferent and took no action even after the plaintiffs executed a writ of seizure and sale against him in October 1994 and only took out the application in September 1995 after the plaintiffs had taken out bankruptcy proceedings against him. The general and universally accepted rule is that costs always follow the event unless there are special reasons for depriving the successful litigant of his costs in part or in full (see Tullio v Maoro [1994] 2 SLR 489). But when the first defendant chose to ignore proceedings against him, did nothing even after judgment was entered and executed against him, and only stirred himself when he was threatened with bankruptcy, costs should not be awarded to him for applying to set aside the judgment.

6. Note:- Plaintiff shld only wait for 8 days for def to enter appearance, after which can take

action to enter judgement in default of appearance

Default of Defence – ORDER 19

- Note that under Rule 70 of the Professional Conduct Rules, a lawyer has to give the opposing lawyer 48 hours notice before filing for default of defence.

- Only need to wait for 14 days for def to file defence (after appearance entered)

1. Type.

a) Order 19, rule 2(1) (“liquidated demand only” - “final judgment”)Order 19, rule 2(1): When plaintiff’s claim is for a liquidated demand only - the plaintiff may enter final judgment if the defendant fails to serve a defence.

Default of defence: Claim for liquidated demand (O. 19, r. 2)2. —(1) Where the plaintiff’s claim against a defendant is for a liquidated demand only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules for service of the defence, enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand and for costs, and proceed with the action against the other defendants, if any. (2) Order 13, Rule 1 (2), shall apply for the purposes of this Rule as it applies for the purposes of that Rule.

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b) Order 19, rule 3 (“unliquidated damages only” - “interlocutory judgment”)- Order 19, rule 3: When plaintiff’s claim is for unliquidated damages only – the

plaintiff may enter interlocutory judgment for damages to be assessed if the defendant fails to serve his defence,

Default of defence: Claim for unliquidated damages (O. 19, r. 3)3. Where the plaintiff’s claim against a defendant is for unliquidated damages only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules for service of the defence, enter interlocutory judgment against that defendant for damages to be assessed and costs, and proceed with the action against the other defendants, if any.

c) Order 19, rule 4 (“detention of movable property only” - “interlocutory judgment”)- Order 19, rule 4: When plaintiff’s claim is for the detention of movable property only

– the plaintiff may enter interlocutory judgment for the delivery of the property or their value to be assessed, if the defendant fails to serve his defence.

Default of defence: Claim in detinue (O. 19, r. 4)4. Where the plaintiff’s claim against a defendant relates to the detention of movable property only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules for service of the defence, enter either — (a) interlocutory judgment against that defendant for the delivery of the property or their value to be assessed and costs; or (b) interlocutory judgment for the value of the property to be assessed and costs, and proceed with the action against the other defendants, if any.

d) Order 19, rule 5 (“possession of immovable property only” - “judgment”)- Order 19, rule 5(1): When plaintiff’s claim is for possession of immovable property

only – the plaintiff may enter judgment for possession of the immovable property if the defendant fails to serve his defence.

Default of defence: Claim for possession of immovable property (O. 19, r. 5)5. —(1) Where the plaintiff’s claim against a defendant is for possession of immovable property only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules for service of the defence, and on producing a certificate by his solicitor, or (if he sues in person) an affidavit, stating that he is not claiming any relief in the action of the nature specified in Order 83, Rule 1, enter judgment for possession of the immovable property as against that defendant and for costs, and proceed with the action against the other defendants, if any. (2) Where there is more than one defendant, judgment entered under this Rule shall not be enforced against any defendant unless judgment for possession of the immovable property has been entered against all the defendants.

e) Order 19, rule 6 (“mixed claims” - “enter ... such judgment”)

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- Order 19, rule 6: When plaintiff’s claim is for a mixed claim (ie: Rule 2 to 5) only – the plaintiff may enter such judgment in respect of any such claim if the defendant fails to serve his defence

Default of defence: Mixed claim (O. 19, r. 6)6. Where the plaintiff makes against a defendant 2 or more of the claims mentioned in Rules 2 to 5, and no other claim, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules for service of the defence, enter against that defendant such judgment in respect of any such claim as he would be entitled to enter under those Rules if that were the only claim made, and proceed with the action against the other defendants, if any.

f) Order 19, rule 7(1) (“not mentioned in rules 2 to 5” - “apply to enter the Court for judgment”)

- Order 19, rule 7(1): When plaintiff’s claim is for other claim (ie: not mentioned in Rule 2 to 5) – the plaintiff may apply to the Court for judgment if the defendant fails to serve his defence.

Default of defence: Other claims (O. 19, r. 7)7. —(1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in Rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim. (2) Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more than one defendant, then, if one of the defendants makes default as mentioned in that paragraph, the plaintiff may — (a) if his claim against the defendant in default is severable from his claim against the other defendants, apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or (b) set down the action by summons for judgment against the defendant in default at the time when the action is set down for trial, or is set down by summons for judgment, against the other defendants. (3) An application under paragraph (1) must be by summons.

g) Order 19, rule 8: Rules 2 to 7 are applicable to counterclaims by the Defendant. If the plaintiff fails to serve his defence to the counterclaim – the defendant may enter judgment accordingly to the Rules 2 to 7.

- Note also that O 19 r 8 is applicable to counterclaims.

Default of defence to counterclaim (O. 19, r. 8)8. A defendant who counterclaims against a plaintiff shall be treated for the purposes of Rules 2 to 7 as if he were a plaintiff who had made against a defendant the claim made in the counterclaim and, accordingly, where the plaintiff or any other party against whom the counterclaim is made fails to serve a defence to counterclaim, those Rules shall apply

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as if the counterclaim were a statement of claim, the defence to counterclaim a defence and the parties making the counterclaim and against whom it is made were plaintiffs and defendants respectively, and as if references to the period fixed under these Rules for service of the defence were references to the period so fixed for service of the defence to counterclaim.

2. Procedure. - Order 19, rule 7(2)(3) (have to apply by SIC supported by affidavit – not

automatically entitled to judgement in default of defence). - Also prepare draft judgment in Form 79, Memorandum of Service, Affidavit of Service,

Note of Costs (Appendix 2 to Order 59), if claim for possession of immovable property, Certificate by solicitor stating not claiming any relief in the action of the nature specified in Order 83, rule 1 etc.

- Give 48 hour notice under Rule 70 of the Professional Conduct Rules.- Order 19, rule 7(3) – An application to the Court for judgment under this Rule must be

by summons or motion.- Prepare draft judgment in Form 79 – select the appropriate form in Form 79 (see:

table above)- Memorandum of Service.- Affidavit of Service- Note of Costs (Appendix to Order 59)- If the claim is for possession of immovable property under Order 19, rule 5(1) -

Certificate by solicitor stating not claiming any relief in the action of the nature specified in Order 83, rule 1.

- Indemnity costs has to be specially asked for, its not given automatically.

3. Setting aside. - Order 19, rule 9 (setting aside judgment - see, Order 13, rule 8 for principles). - Whether regular or irreg judgement – this determines costs if set aside based on regular

judgement, def msut pay costs. But if irreg judgment, plaintiff pays costs. - [See case law on Order 13, rule 8 - for principles governing this Rule]

Setting aside judgment (O. 19, r. 9)9. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.

4. Miscellaneous. - Note that entering of default judgment against the government is not available - AG v

Phang Fook Seng [1999] 3 SLR 641. & Order 73 rule 7(1) – need to apply to court for leave first.

Order 73, rule 7(1): Leave of the Court is required before a judgment in default of appearance or of pleading may be entered against the Government.

Judgment in default (O. 73, r. 7)7. —(1) Except with the leave of the Court, no judgment in default of appearance or of

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pleading shall be entered against the Government in civil proceedings against the Government or in third party proceedings against the Government. (2) Except with the leave of the Court, Order 16, Rule 5 (1) (a), shall not apply in the case of third party proceedings against the Government. (3) An application for leave under this Rule must be made by summons, and the summons must be served not less than 7 days before the return day.

AG v. Phang Fook Seng [1999] 3 SLR 641 - Facts: The plaintiff had applied under Order 73, rule 7 for leave to enter judgment in

default of defence against the appellant. The Government argued that under this rule, no default judgment could be entered against the government except with leave of court, and this meant that the court would judiciously consider the government’s reasons for not filing a defence. On appeal, the Government took the view that the merits of the case could be considered without filing of a defence.

- CA Held: As a judgment in default was not a judgment on the merits but was the expression of the coercive power of the court where it had been obtained by a failure to follow any of the rules of procedure or orders of the court. The defendant was given the opportunity to place the merits of his case before the court on an application to set aside a default judgment. However, the merits were irrelevant when entering default judgment, because that was a consequence of failure to comply with the requirements of the rules of procedure.

- The question whether judgment in default of defence should be entered against the government was one of procedural law only. Once the Government had entered an appearance, it ought to have filed and served a defence, otherwise judgment in default thereof would have followed as a matter of course.

Other Types Of Cases:

Admiralty Action- not like above. Cannot just file std docs. Must apply by summons because in

shippin case, many parties.- Here summons is special – not summons in chambers. This summons prev called

notice of motion (valid till 2005) – means that go before HC, put on solicitor’s robe and stand in open court and ask for application. This summons is summons in OPEN COURT. Court needs ot hear who else has interest in matter

Judgment by default (O. 70, r. 20)20. —(1) Where a writ is served under Rule 7 (5) on a party at whose instance a caveat against arrest was issued, then if — (a) the sum claimed in the action begun by writ does not exceed the amount specified in the undertaking given by that party or his solicitor to procure the entry of the caveat; and (b) that party or his solicitor does not within 14 days after service of the writ fulfil the undertaking given by him as aforesaid, the plaintiff may, after filing an affidavit verifying the facts on which the action is based, apply to the Court for judgment by default.

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(2) Judgment given under paragraph (1) may be enforced by the arrest of the property against which the action was brought and by committal of the party at whose instance the caveat with respect to that property was entered. (3) Where a defendant to an action in rem fails to enter an appearance within the time limited for appearing, then, on the expiration of 14 days after service of the writ and upon filing an affidavit proving due service of the writ, an affidavit verifying the facts on which the action is based and, if a statement of claim was not endorsed on the writ, a copy of the statement of claim, the plaintiff may apply to the Court for judgment by default. Where the writ is deemed to have been duly served on the defendant by virtue of Order 10, Rule 1 (2), or was filed or served under Rule 7, an affidavit proving due service of the writ need not be filed under this paragraph, but the writ endorsed as mentioned in the said Rule 1 (2) or endorsed by the Registrar with a statement that he accepts service of the writ must be filed with the affidavit verifying the facts on which the action is based. (4) Where a defendant to an action in rem fails to serve a defence on the plaintiff, then, after the expiration of the period fixed by these Rules for service of the defence and upon filing an affidavit stating that no defence was served on him by that defendant during that period, an affidavit verifying the facts on which the action is based and, if a statement of claim was not endorsed on the writ, a copy of the statement of claim, the plaintiff may apply to the Court for judgment by default. (5) Where a defendant to a counterclaim in an action in rem fails to serve a defence to counterclaim on the defendant making the counterclaim, then, subject to paragraph (6), after the expiration of the period fixed by these Rules for service of the defence to counterclaim and upon filing an affidavit stating that no defence to counterclaim was served on him by the first-mentioned defendant during that period, an affidavit verifying the facts on which the counterclaim is based and a copy of the counterclaim, the defendant making the counterclaim may apply to the Court for judgment by default. (6) No application may be made under paragraph (5) against the plaintiff in any such action as is referred to in Rule 3 (1). (7) An application to the Court under this Rule must be made by summons and if, on the hearing of the summons, the Court is satisfied that the applicant’s claim is well-founded, it may give judgment for the claim with or without a reference to the Registrar and may at the same time order the property against which the action or, as the case may be, counterclaim is brought to be appraised and sold and the proceeds to be paid into Court or may make such other order as it thinks just. (8) In default actions in rem evidence may, unless the Court otherwise orders, be given by affidavit without any order or direction in that behalf. (9) The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Rule. (10) Order 13 and Order 19 (except Rule 1) shall not apply to actions in rem.

Order 70, rule 20(10) – states that Order 13 and Order 19 (except Rule 1) shall not apply to action in rem.

An action in rem must be begun by writ in Form 159: “Writ of Summons in Action In Rem in the High Court of the Republic of Singapore”

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Issue of writ and entry of appearance (O. 70, r. 2)2. —(1) An action in rem must be begun by writ; and the writ must be in Form 159. (2) The writ by which an Admiralty action in personam is begun must be in Form 2 and the words “admiralty action in personam” must be inserted above the space for the number of the writ. (3) Order 6, Rule 3, and Order 12 shall apply in relation to such an admiralty action.

[Note: Within 8 days after service … cause an appearance to be to be entered.]

1. In default of appearance. - Apply by summons (Order 70, rule 20(7)) and file affidavit of service, affidavit

verifying the facts on which the action is based and if no statement of claim served, copy of statement of claim (Order 70, rule 20(3)).

2. In default of defence. Apply by summons (Order 70, rule 20(7)) and affidavit stating that no defence was served, affidavit verifying the facts on which the action is based and if no statement of claim, copy of statement of claim (Order 70, rule 20(4)).

Moneylender’s Action – rare. Order governing money lender’s action

Judgment in default of appearance or defence (O. 79, r. 4)4. —(1) In a moneylender’s action judgment in default of appearance or in default of defence shall not be entered except with the leave of the Court. (2) An application for the grant of leave under this Rule must be made by summons, and the summons must, notwithstanding anything in Order 62, Rule 10, be served on the defendant. (3) If the application is for leave to enter judgment in default of appearance, the summons shall not be issued until after the time limited for appearing. (4) On the hearing of such an application, whether the defendant appears or not, the Court — (a) may exercise the powers of the Court under section 22 (2) of the Moneylenders Act (Chapter 188); (b) where it refuses leave under this Rule to enter judgment on a claim or any part of a claim, may make or give any such order or directions as it might have made or given or directions as it might have made or given had the application been an application under Order 14, Rule 1, for judgment on the claim.

- Order 79, rule 4(1) - leave required to enter default judgment by summons (Order 79, rule 4(2)) and must be served personally on defendant notwithstanding Order 62, rule 10.

- If fail to observe Order 79 – then irregular judgemnt and when def sets aside irreg judgement, then plaintiff pays costs.

(B) SUMMARY JUDGMENTS – VERY IMPORTANT FOR EXAMS!!!!!!!!!!!!!!!!!!

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Summary Judgments under Order 14 (Generally Order 14 can be applied for by Plt, except Order 14 rule 12 where both sides can apply).

1. Scope. - Applicable to all claims (liquidated or unliquidated), including those seeking

specific performance. - However, cannot make application for summary judgment against the

government: see Order 73, rule 5(1)

Application by plaintiff for summary judgment (O. 14, r. 1)1. Where a statement of claim has been served on a defendant and that defendant has served a defence to the statement of claim, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.

Summary judgment (O. 73, r. 5)5. —(1) No application against the Government shall be made — (a) under Order 14, Rule 1 or 12, in any proceedings against the Government; or (b) under Order 14, Rule 5 or 12, in any proceedings by the Government. (2) Where an application is made by the Government under Order 14, Rule 1 or 5, the affidavit required in support of the application must be made by — (a) the solicitor acting for the Government; or (b) an officer duly authorised by the solicitor so acting or by the department concerned

2. Requirements. - A SOC must be served and it must be complete and correct (Order 14, rule 1).

The error in the SOC cannot be corrected or supplemented by affidavit. – at pt of application, SOC must be correct. Shld have amended SOC way before applying for o14

It was held that if the defect is one of substance, the application for summary judgment will be dismissed. Sheba Gold Mining Co v Trubshawe [1892] 1 QB 674

- Defendant must have served a defence to the statement of claim (Order 14, rule 1) – new rule. Court to make sure that has both claim and defence at same time filed

- It is important to note that under O 14 r 14, O 14 applications shall not be filed more than 28 days after the pleadings in the action are deemed to be closed.

Is 28 days extendable by consent or order of court? Strictly 28 days maj wins – United engineers v lee hip hiong (2004) SGHC

190 – court said that 28 days is non negotiable nad cannot be extended by court order or by parties. Even if pleadings closed and p or def applied to amend pleadings, court wil only look at first close of pleadings and count 28 days. Even with amendment of pleadings, close of pleadings date will remain the same once it has happened.

Must note time line!!!

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Time limit for summary judgment applications (O. 14, r. 14)14. No summons under this Order shall be filed more than 28 days after the pleadings in the action are deemed to be closed.

- Normal course is that plt file affidavit, def file defence, plt files reply affidavit.

3. Procedure.

Manner in which application under Rule 1 must be made (O. 14, r. 2)2. —(1) An application under Rule 1 must be made by summons supported by an affidavit or affidavits. (2) The summons and the supporting affidavit or affidavits must be filed at the same time, and must be served on the defendant within 3 days from the date of filing. (3) The defendant on whom the summons and the supporting affidavit or affidavits have been served may show cause against the plaintiff’s application by affidavit or otherwise to the satisfaction of the Court. (4) If the defendant wishes to show cause against the plaintiff’s application by affidavit, he must file and serve his affidavit or affidavits on the plaintiff within 14 days after service of the plaintiff’s summons and affidavit or affidavits. (5) The plaintiff must, if he wishes to reply to the defendant’s affidavit or affidavits, file and serve his affidavit or affidavits on the defendant within 14 days after service of the defendant’s affidavit or affidavits. (6) No further affidavit shall be received in evidence without the leave of the Court. (7) Where a party files or serves an affidavit beyond the period of time specified in this Rule, the Court may make such order as to costs against that party as it considers fit. (8) An affidavit or affidavits for the purpose of this Rule must contain all necessary evidence in support of or in opposition (as the case may be) to the claim, or a part of the claim, to which the application relates, and unless the Court otherwise directs, may contain statements of information or belief with the sources and grounds thereof.

- A) Summons-in-Chambers and affidavit(s) must depose to all facts supporting the claim (Order l4, rule 2(1))7.

- Eg Barclays Bank v Piper, The Times, 31st May 1995 – defective affidavits - Roch L.J. emphasised that even though the objections to the affidavits sworn in that case were technical, none the less they were perfectly valid objections and it was important in Order 14 proceedings, where a defendant was deprived of his opportunity to defend the plaintiff's claim and, in particular, the opportunity of hearing and cross-examining the plaintiff's witnesses, that all the technical requirements of an affidavit in support should be observed.

- S Jayakumar v JBJ [1997] 2 SLR 172 – Held - the application under O 14 must be supported by an affidavit or affidavits and the affidavits must contain all necessary evidence in support of the claim.

- Summons and affidavit(s) in support must be filed at same time and must be served on defendant 3 days from the date of filing (Order 14, rule 2(2)). (which will give u hearing date from court)

- Affidavit in support must contain all necessary evidence.

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Chong Yeo & Partners v. Guan Ming Hardware & Engineering Pte Ltd [1997] 2 SLR 729 - Held: The affidavit in support of an application for summary judgment under Order

14, rule 2(8) had to contain all necessary evidence. No reasonable competent solicitor would have interpreted the rules otherwise. The appellants were thus in breach of the duty of care owed to the respondent.

Wallingford v. Mutual [1880] 5 AC 685 (Lord Blackburn) - A general allegation of fraud, however strong the words used, where there is no

statement of the circumstances relied on as constituting the alleged fraud, is insufficient even to amount to an averment of fraud of which any Court ought to take notice. Therefore, the affidavit must provide definite facts pointing to the fraud.

- If defendant is not defending, then don’t file any affidavit. But if already file defence, then follows that shld file affidavit in reply to defend. Otherwise what is pt of filing defence without affidavit

- B) Show cause. - Defendant can show cause by affidavit (Order 14, rule 2(3)).

- the defendant on whom the summons and the affidavits or affidavits in support have been served may show cause against the plaintiff’s application by affidavit or otherwise to the satisfaction of the Court.

- Defendant show cause by filing and serving affidavit(s) on plaintiff within 14 days after service of plaintiff’s summons and affidavit (Order 14, rule 2(4)).

o White Book para 14/3 –4/3.

Huo Heng Oil Co Sdn. Bhd. v Tang Tiew Yong [1987] 1 MLJ 139- Held - delivery of a defence does not, in a proper case, preclude a plaintiff from

applying for summary judgment. - Delivery of a defence does not, in a proper case, preclude a plaintiff from applying for

summary judgment. In McLardy v Slateum (1890) 24 QBD 504 Pollock B, in allowing an application made after one month of the defence being filed, said (page 506):

- "The view taken by other judges, and by the masters, is that the intention of O XIV r 1, was that the plaintiff should apply within a reasonable time after the appearance of the defendant, but that it very often happens that a defence, which has been delivered, itself discloses facts which make an application under O XIV right and proper. We think that this is the proper construction of the rule.

- Although the primary intention of the rule may be that an application should be made before a defence has been delivered in the ordinary course, yet we think that it is not in all cases compulsory. Therefore our judgment upon this point of law and practice is that a plaintiff is not necessarily too late in making his application under O XIV, r 1 because a defence has been delivered."

- In Comptroller-General of Inland Revenue, Malaysia v Weng Lok Mining Co Ltd [1969] 2 MLJ 98 application for summary judgment was not made till some three months after the defence was filed. In an application by the defendant to dismiss the

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summons for summary judgment on the ground of undue delay in taking out the summons. Raja Azlan Shah J (as he then was) (now DYMM Sultan of Perak) accepted the reasons (irrelevant for our purpose) for the delay advanced by counsel for the plaintiff and held that the delay of a lapse of three months in the circumstance of the case was not inordinate and did not warrant a dismissal of the application.

- Thus the mere fact that a defence has been filed and delivered and that pleadings are deemed to be closed do not by themselves preclude a plaintiff from seeking recourse to O 26A for summary judgment in a proper case on the ground that he is too late in making the application.

- In an action for price of goods sold and delivered, it is not sufficient for the defendant to merely deny the debt; he must plead any facts which negative the existence of the debt or which show that the claim is not maintainable on other grounds eg the contract or order, the delivery, or the amount claimed. (See The Supreme Court Practice 1982 vol 1 para 18/13/5 Bullen & Leake on Precedents of Pleadings 12th Edition page 1278)……. In opposing the application for summary judgment, the respondent must satisfy the court that with respect to the applicant`s claim there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim (O 26A r 3(1)) But this cannot be achieved by raising facts which do not constitute a defence to the claim: Hookham v Mayle (1906) 22 TLR 241 nor by a mere general denial of indebtedness: Wallingford v Mutual Society (1880) 5 App Cas 685 HL where Lord Blackburn said (page 704):

- "I think that when the affidavits are brought forward to raise that defence they must, if I may use the expression, condescend upon particulars. It is not enough to swear, "I say I owe the man nothing." Doubtless if it was true, that you owed the man nothing as you swear, that would be a good defence. But that is not enough. You must satisfy the Judge that there is reasonable ground for saying so." Likewise, the expression "the defendant puts the plaintiff to proof" is insufficient traverse. (See Harris v Gamble (1878) 7 Ch D 877. The fact that in para 2 of the defence the respondent denies the amount claimed does not entitle him to unconditional leave to defend.

OCWS Logistics Pte Ltd v Soon Meng Construction Pte Ltd [1999] 2 SLR 376 - The defendants have not filed an affidavit to substantiate their defence of setoff. They

relied wholly upon the defence filed. Of course O 14 r 4(1) provides that a defendant may show cause against an O 14 application by “affidavit or otherwise”. The burden is on the defendant. A bald assertion in a defence filed may not be sufficient. It would have to depend on the nature of the defence. As stated in para 14/4/4 of the Supreme Court Practice:

- The use of the term ‘or otherwise’ is not intended to open wide the door for giving leave to a defendant who has no real defence; the primary obligation remains on the defendant to ‘satisfy’ the court that there is a triable issue or question or that there ought to be a trial for some other reason.

4. Reply. - Plaintiff can reply (Order 14, rule 2(5)).

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- Plaintiff replies by filing and serving his affidavit or affidavits on defendant within 14 days after service of defendant’s affidavit (Order 14, rule 2(5)).

5. Evidence. - No further affidavit shall be received in evidence after plaintiff’s reply affidavit without

leave of the Court (Order 14, rule 2(6)). - Court can order production of document or examination of persons on oath (Order 14,

rules 4(2)(a) and (b)).

Leave to defend (O. 14, r. 4)4. —(1) The Court may give a defendant against whom an application under Rule 1 is made leave to defend the action with respect to the claim, or part of a claim, to which the application relates either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit. (2) On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director, manager, secretary or other similar officer thereof, or any person purporting to act in any such capacity — (a) to produce any document; and (b) if it appears to the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.

6. Court’s Role.- Not for Court to go into merits as complete defence need not be shown. –

Jacobs v Booths Distillery Co (1901) 85 LT 262.- Ord. 14 was not intended to shut out a defendant who could show that there was a

triable issue applicable to the claim as a whole from laying his defence before the Court, or to make him liable in such a case to be put on terms of paying into Court as a condition of leave to defend.

- It should merely ascertain whether there are “triable issues” of fact or law i.e. “reasonable doubt” or “doubt”10.

If there are triable issues of law or fact, summary judgment will not be given.

Jones v Stone [1894] AC 122 on 124 - Order 14 is "Intended only to apply to cases where there is no reasonable doubt that a

plaintiff is entitled to judgment and where, therefore, it is inexpedient to allow a defendant to defend for mere purposes of delay." Lord Halsbury in Jones v Stone describes the standard of proof required for summary judgment as requiring 'no reasonable doubt'.

Thompson v Marshall [1880] 41 LT 720 - Leave to defend must be given unless it is clear that there is no dispute as to facts or

law which raises a reasonable doubt that the plaintiff is entitled to judgment (Jones v. Stone [1894] A.C. 122; Thompson v. Marshall (1880) 41 L.T. 720)

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Habibullah Mohd Yousuff v. Indian Bank [1999] 3 SLR 650 at p.655 - Held: Under Order 14, rule 3(1), summary judgment should not be given where the

defendant “satisfies the Court … that there is an issue or question in dispute which ought to be tried”. The power to give summary judgment under Order 14 is intended only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to judgment, and where it is inexpedient to allow a defendant to defend for mere purposes of delay.

- On the facts of the case, the appellant had adduced sufficient evidence to raise a triable issue. The appeal against the granting of the summary judgment was allowed.

- An exception is when dealing with triable issues of law as defendant cannot rely on arguability of point11.

European Asian Bank Ltd v Punjabi Sind Bank [1983] 2 AER 508- Lord Justice ROBERT GOFF:- If the Judge has already decided, on the evidence, that there is a triable issue on a

question of fact it must in the very nature of things be unlikely that this Court will interfere with his decision and decide that no trial should take place; because, where such a conclusion has already been reached by a Judge, this Court will be very reluctant to hold that there is no issue or question which ought to be tried. But where the appeal raises a question of law, this Court may be more ready to interfere. Moreover, at least since Cow v. Casey, [1949] 1 K.B. 474, this Court has made it plain that it will not hesitate, in an appropriate case, to decide questions of law under O. 14, even if the question of law is at first blush of some complexity and therefore takes "a little longer to understand ". It may offend against the whole purpose of O. 14 not to decide a case which raises a clear-cut issue, when full argument has been addressed to the Court, and the only result of not deciding it will be that the case will go for trial and the argument will be rehearsed all over again before a Judge, with the possibility of yet another appeal. The policy of O. 14 is to prevent delay in cases where there is no defence; and this policy is, if anything, reinforced in a case such as the present, concerned as it is with a claim by a negotiating bank under a letter of credit

- Chatbrown Ltd v Alfred MaAlpine Construction (Southem) Ltd 35 BLR 45 on 53 and 54 (can’t find)

Home & Overseas Insurance Co Ltd v Mentor Insurance Co (U.K.) Ltd [1989] 1 Lloyds 473- Held, by C.A. (PARKER, LLOYD and BALCOMBE, L.JJ.), that

(1) there was no doubt that the question raised was a serious, difficult and important one which deserved mature consideration; the plaintiff was not entitled to summary judgment

- Lord Justice Parker - I shall shortly consider the authorities relating to the way in which the Court should deal with O. 14 applications when countered by an application for a stay based on an arbitration clause. Before doing so, however, I venture to make

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some general observations on the question of O. 14 applications both when standing alone and when countered by a stay application.

- The purpose of O. 14 is to enable a plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendant's only suggested defence is a point of law and the Court can see at once that the point is misconceived the plaintiff is entitled to judgment. If at first sight the point appears to be arguable but with a relatively short argument can be shown to be plainly unsustainable the plaintiff is also entitled to judgment. But O. 14 proceedings should not in my view be allowed to become a means for obtaining, in effect, an immediate trial of an action, which will be the case if the Court lends itself to determining on O. 14 applications points of law which may take hours or even days and the citation of many authorities before the Court is in a position to arrive at a final decision.In cases where there is an arbitration clause it is in my judgment the more necessary that full scale argument should not be permitted. The parties have agreed on their chosen tribunal and a defendant is entitled prima facie to have the dispute decided by that tribunal in the first instance, to be free from the intervention of the Courts until it has been so decided and thereafter, if it is in his favour, to hold it unless the plaintiff obtains leave to appeal and successfully appeals.

- In the case of a commercial arbitration the above remarks apply with even greater force, perhaps especially when the dispute turns upon construction, or the implication of terms or trade practice. Arbitrators and umpires in the same business or trade as the parties are certainly as well or better able than the Court to judge what the parties must be taken to have meant or intended by the words or phrases they have used, to judge what the parties would at once have replied if an innocent bystander had asked what was to happen in a certain event not dealt with by the contract, and to know what are the practices in the trade. Not only is the defendant entitled to have the dispute decided in the first instance by such persons but the Court should not in my view, save in the clearest of cases, decide the question without the benefit of their views.

- In very clear cases a plaintiff is no doubt entitled to his summary judgment notwithstanding the clause, but when a plaintiff seeks immediate judgment in other than a clear case and resists the submission of the dispute to the tribunal upon which he has agreed, one is bound to wonder whether the course which he has taken is prompted by the knowledge that the chosen tribunal with its more intimate knowledge of the trade may not reach a conclusion adverse to him in respect of which he might either fail to obtain leave to appeal or if he did obtain leave, fail to demonstrate any error.

- The foregoing observations may at first sight appear to conflict with observations in this Court by Lord Justice Robert Goff in European Asian Bank A.G. v. Punjab and Sind Bank (No. 2), [1983] 1 Lloyd's Rep. 611 at p. 616; [1983] 1 W.L.R. 642 at p. 654 and by Lord Justice Kerr in Zakhem International Construction Ltd. v. Nippon Kokan KK, [1987] 2 Lloyd's Rep. 596 and Nichimen Corporation v. Gatoil Overseas Inc., [1987] 2 Lloyd's Rep. 46 at p. 51. In the last of these cases Lord Justice Kerr said: It has been said again and again in this Court in recent years that it is not sufficient to conclude that the defendants have an arguable case if the issue turns on a point of law, or other material, which enables the Court to form a definitive view on the rights of the plaintiffs there and then . . . In a case like the present, the Judge should only give

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leave to defend if, after full consideration of the material before him, he is satisfied that the plaintiff is not entitled to judgment there and then. The observations which have been made were however not intended, in my judgment, to indicate any more than that it was insufficient for the defendant to raise an arguable point of law if that point could be readily demonstrated to be unsustainable. They cannot be taken as granting to a plaintiff the right to an accelerated and lengthy trial on a difficult point of law.

- In American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396. Lord Diplock when speaking of applications for interlocutory injunctions said: The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.

- It is no part of the court's function at this stage . . . to decide difficult questions of law which call for detailed argument and mature consideration. There are matters to be dealt with at the trial. With the substitution of the word "defence" for "claim" in the first sentence of this citation it is in my view applicable to O. 14 proceedings. If the point of law relied upon by the defendant raises a serious question to be tried which calls for detailed argument and mature consideration the point is not suitable to be dealt with in O. 14 proceedings.

Jaya Kumar v Subramaniam , etc [1987] 2 MLJ 432. - Held - Where the issue raised was one of law and it was clear-cut and could be

decided upon, then the judge hearing it, or, upon an appeal, the appellate court, had to decide on it rather than to let it go to trial.

- LP Thean J - It has been repeatedly held by the Court of Appeal in England that on an application under O 14 where the issue raised is one of law and it is clear-cut and can be decided upon, then the judge hearing it, or, upon an appeal, the Court of Appeal, should decide on it rather than to let it go to trial. In Verrall v Great Yarmouth Borough Council [1981] QB 202, Roskill LJ (as he then was) said:

- ... We have often said in this court in recent years that where there is a clear-cut issue raised in O 14 proceedings, there is no reason why the judge in chambers - or, for that matter, this court - should not deal with the whole matter at once. Merely to order a trial so that the matters can be re-argued in open court is to encourage the law`s delays which in this court we are always trying to prevent. The first point fails.

- Similar observations were made by Robert Goff LJ (as he then was) in European Asian Bank AG v Punjab and Sind Bank (No 2) [1982] 2 Lloyd`s Rep 241:

- ... Moreover, at least since Cow v Casey [1949] 1 KB 474, this court has made it plain that it will not hesitate, in an appropriate case, to decide questions of law under RSC O 14, even if the question of law is at first blush of some complexity and therefore takes `a little longer to understand`. It may offend against the whole purpose of O 14 not to decide a case which raises a clear-cut issue, when full argument has been addressed to the court, and the only result of not deciding it will be that the case will go for trial and the argument will be rehearsed all over again before a judge, with the possibility of yet another appeal; see Verrall v Great Yarmouth Borough Council [1981] QB 202, 215, 218, per Lord Denning MR and Roskin LJ. The policy of O 14 is to prevent delay in cases where there is no defence; and this policy is, if anything,

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reinforced in a case such as the present, concerned as it is with a claim by a negotiating bank under a letter of credit: compare Bank fur Gemeinwirtfchaft Aktiengeselischaft v City of London Garages Ltd [1971] 1 WLR 149, 158 per Cairns LJ, a case concerned with a claim on a bill of exchange by a holder in due course.

- Court wil only give interlocutory judgement – “ interloc judgement for plaintiff with damages to be assessed”. Damages will be assessed on another day.

7. Orders Court can make. (And costs that follow.)

- Note that with regards to costs, look at Order 59 for the range of costs awarded. Different scales apply depending on the court. De minimis arguments on how much costs you are entitled.

- In interlocutory arguments costs is usually reserved. If $1 damages the party awarded it has to pay costs.

(a) Dismiss the application with costs –

Costs (O. 14, r. 7)7. —(1) If, on an application under Rule 1, it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, then, the Court may dismiss the application with costs. (2) The Court shall have the same power to dismiss an application under Rule 5 as it has under paragraph (1) to dismiss an application under Rule 1, and that paragraph shall apply accordingly with the necessary modifications.

- Court can dismiss the Plaintiff’s application with costs if - 1. Statement of Claim was incomplete and incorrect;

Gold Ores Reduction Co v Pain [1892] 2 QB 14 - An indorsement of a claim for interest on a writ of summons, in order to be a good

special indorsement, within the meaning of Order III., r. 6, and Order XIV., r. 1, must shew, either that the interest claimed is payable under an agreement, or that it is fixed by statute

- An indorsement on a writ stated that the claim was for instalments on shares in the plaintiff company, payable under terms of allotment, and for interest thereon at the rate of 10 per cent. per annum, from the respective dates when the instalments became payable until payment or judgment, and gave particulars of the instalments, with interest calculated accordingly, and claimed interest on the principal moneys at 10 per cent. from date of writ until payment or judgment. It appeared from an affidavit that by the articles of association 10 per cent. interest was payable:--Held, that, as the writ did not shew that the interest was payable under an agreement, there was not a good special indorsement; and the fact that the affidavit shewed an agreement to pay interest could not make it good, and judgment could not be entered under Order XIV.

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- MATHEW, J.This appeal must be dismissed. It is most important that a defendant should know from the writ what the exact claim against him is. The cases which have been referred to in argument establish that, in order to constitute a good special indorsement, within the meaning of Order III., r. 6, and Order XIV., r. 1, the writ should shew that interest claimed is payable under a contract, or, as in the case of a bill of exchange, is an amount fixed by statute. In the present case the writ does not shew that the 10 per cent. Interest which is claimed is payable under any contract. A passage in the judgment of the Court in Sheba Gold Mining Co. v. Trubshawe is relied upon for the plaintiffs as shewing that the affidavits may be looked at in order to prove how the claim arose. That case, however, was decided on the form of the indorsement, and on the form only; but the Court, having come to the conclusion that the indorsement was defective, looked at the affidavits, and found that the plaintiff ought not to have treated the claim for interest as a liquidated demand.

- A. L. SMITH, J.I am of the same opinion. The law has been completely settled by the recent decisions, and it is established beyond doubt that where interest is claimed by a specially indorsed writ it must either be payable by agreement or fixed by statute. In the present case the writ was issued in August, 1891. At that time it might have passed muster as a valid specially indorsed writ; but the law has since been explained in such a way as to shew that the indorsement is invalid. There is nothing on this writ to shew that the interest is payable by agreement or fixed by statute, and therefore the indorsement is contrary to the law as laid down subsequently to the date of the writ. It is contended that the judgment in Sheba Gold Mining Co. v. Trubshawe shews that the indorsement is not necessarily conclusive, and that the affidavits may be looked at; but what was said there was that although the claim might be correct in form, if it appeared in fact that the interest was claimable only as damages, there would not be a good special indorsement. This does not support the present plaintiffs' contention.

Sheba Gold Mining Co v Trubshawe [1892] 1 QB 674 - …we think that the claim in the present case departs from the requirements of a special

indorsement in two respects: (1.) it does not shew that the interest is claimed as being due by contract; (2.) no definite sum is claimed. All the forms given in Appendix C, s. IV., in which interest is claimed are cases of interest due either by express covenant, or upon bills or notes. By s. 57 of the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), the last-mentioned interest is to be deemed liquidated damages; and we think that a statement of claim which demands interest, but shews no legal liability to pay it, is upon general principles defective. Again, all the forms claiming interest mention the specific sum claimed. We think this is as it should be. It is important that a man, who is to be proceeded against summarily for judgment, should know exactly how much he has to pay if he wishes to stay the action, and should not be called upon to take the risks of calculation. A claim for interest which is not thus specific departs in a material and important respect from the forms to which a special indorsement is required to conform.

- … We think that the question what a plaintiff "seeks to recover" is not, upon an application for judgment under Order XIV., concluded necessarily by the indorsement

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on the writ, especially if it be ambiguous. In Rodway v. Lucas [FN23], the indorsement was indistinguishable from that in the present case. The application there was to set the judgment aside. The Court held that - after judgment, at any rate - the indorsement was capable of being construed as covering the case of interest due under a contract, and, there being no affidavit of merits, refused to set the judgment aside; but they added that, if a case should arise in which the special indorsement should be resorted to, although the interest was, in fact, claimable only as damages, they would set aside the judgment, with costs, as an abuse of the process of the Court. In other words, the Court would disregard the form and look to the substance, and if satisfied upon the affidavits that, however correct the claim might be in form, the case was one in which the plaintiff had no business to treat the interest as a liquidated demand, and attempt to get the benefit of the special indorsement, they would prevent him from resorting to a remedy to which he was not entitled. It seems to us that the present case falls precisely within this principle. No one suspects the advisers of the plaintiffs of an intention to strain or misapply the process of the Court; but it is plain from their own affidavits that they have, in fact, been attempting to get judgment under Order XIV. for unliquidated damages in the shape of interest. It matters not in such a case whether the writ be right or wrong in form. It is not a case in which they have any business to resort to Order XIV., and they must take the consequences.

- 2. or where the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend (r 7(1)), M Pocock v A.D.A.C [1952] 1 TLR 29 (can’t find the point in the Westlaw case summary)- def wins application and he gets costs. Scale does not aply here, which only applies

for judgement given. With dismissal, court will give either fixed or taxed costs. - Fixed costs more adv to winning party. def’s costs fixed at $xxx to be paid by

plaintiff forthwith. Amt depends on whether what has been asked for is reasonable. - Plaintiff pays costs because costs follow the event

(b) Judgment (rule 3(1)). – either judgement with costs or judgement without costs (former more usual)

Judgment for plaintiff (O. 14, r. 3)3. —(1) Unless on the hearing of an application under Rule 1 either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed. (2) The Court may by order, and subject to such conditions, if any, as may be just, stay execution of any judgment given against a defendant under this Rule until after the trial of any counterclaim made or raised by the defendant in the action.

Judgment may give judgment if

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1. there are NO triable issues of fact or law or bona fide defence raised, and if there is the absence of “some other reason” for there to be a trial. Eg if bounced check – then court wil give final judgement with costs fixed at $xxx.

Because damages fixed. Turn to order 59 – scale of costs payable. With final judgemnt, look at costs on scale.

Roberts v Plant [1895] 1 QB 597- In an action upon a cheque by payee against drawer the indorsement on the writ was

in accordance with the form prescribed by Order III., r. 6, with the exception that it did not state that notice of dishonour had been given to the drawer. After taking out a summons for judgment under Order XIV., the plaintiff, without leave, amended the indorsement by adding a statement that notice of dishonour had been given. An order was subsequently made giving leave to enter judgment:--Held, that, there being a good special indorsement at the time of the adjudication on the summons, the order was rightly made.

- LORD ESHER M.R.The substance of Order XIV. is that where, with reference to a claim within Order III., r. 6, the plaintiff can shew to the satisfaction of the judge that he has a clear case against the defendant, which the defendant cannot possibly answer, the judge may give the plaintiff leave to enter judgment forthwith, without the expense and delay which would be involved in letting the case go on to trial in the ordinary way. That is a stringent power to give, and therefore the Courts have said that its exercise must be strictly watched, in order to see that the plaintiff has brought himself within the scope of the provisions of the order; but that does not mean that effect will be given to every unsubstantial technicality that may be set up by way of objection to proceedings under the order. The meaning is that care must be taken to see that the plaintiff has, in accordance with the terms of the order, made out a cause of action to which the defendant can have no possible defence.

- In the present case it is clear that the defendant gave the plaintiff a cheque upon his bankers which was dishonoured. The defendant does not deny that he is indebted to the plaintiff in the amount of the cheque, but he sets up a number of technical difficulties. He says that, when the writ was issued, the plaintiff had not brought himself within the terms of Order XIV., because he had not indorsed on the writ a complete cause of action, not having stated that notice of dishonour was given. It was argued that there was no power of amendment before adjudication on the summons taken out; but the proceedings must be commenced afresh, thereby causing useless expense. In my opinion, the power of amendment in this case is just the same as in any other case. An amendment ought not to be allowed if it will occasion injustice; but if it can do no injustice, and will only save expense, it ought to be made. It was said that under the circumstances of the case the amendment could not be made without leave. I can see no ground for that contention. I think the plaintiff was entitled to make the amendment. Therefore, when the case came before the tribunal for adjudication under Order XIV., the special indorsement was in due form. The defendant, who cannot deny that he owes the money, says that a fresh summons ought to have been taken out after the amendment. Could there possibly be a more frivolous technicality? The result would be a mere waste of money.

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- Then the point is taken that the affidavit verifying the cause of action is insufficient. It is not necessary to decide the question whether the general statement in the first paragraph of the affidavit, which refers to the particulars indorsed on the writ, would have been sufficient, having regard to the fact that the indorsement as originally drawn did not allege notice of dishonour. The affidavit contains an allegation, as one of the reasons why there could be no defence, that after the dishonour of the cheque the defendant admitted his liability, and promised to pay the amount by instalments. It is suggested that the allegation so made only imports that the defendant admitted liability on the consideration for the cheque, not on the cheque. But that suggestion appears to me frivolous. It has been held that, if a person who has drawn a cheque after dishonour of it makes such a promise to pay as is here alleged, that promise does away with the necessity for proving notice of dishonour, and is equivalent to an admission that such notice has been given. Such a statement unanswered shews that there can be no possible defence to the action. Therefore, I think that the decision of the Divisional Court was right, and this appeal must be dismissed.

Anglo-Italian Bank v Wells [1878] 38 LTR 197 - In summary proceedings the court must be careful to give proper protection against

evidence being introduced at the last minute. There was no different standard of proof required to obtain judgment under Order 14. Proof must be clear and adequate on the balance of probabilities. Where the judge was satisfied that there was no defence and no arguable point then it was his duty to give judgment. Therefore a hope that something would turn up upon further investigation was not a sufficient reason for refusing to enter judgment.

2. Absence of “some other reason” for there to be a trial (rule 3(1)). 3. When counterclaim is foreign to the plaintiffs claim which is admitted, thereby

disentitling a stay on the judgment so entered (a counterclaim doesn’t necessarily set off the main claim, it all depends)o A.B. Contractors Ltd v Flasherty Bros Ltd [1986] 16 BLR 8; Anglian Building

Products Ltd v W & C French (Construction) [1986] 16 BLR 1 (cannot find both cases)

4. Where liability is clear but damages have to be assessed under Order 37, judgment can still be given.

White Book, paras 14/3 – 4/2 and 14/3 – 4/13.

(c) Judgment with stay (rule 3(2)). - When there is clearly no defence to the plaintiff’s claim, but the defendant raises a

plausible counterclaim.16 ie court gives judgment on action but because of counterclaim, judge will wait for case to go to trial and then dispose of it. If counterclaim is related to judgement, court more inclined to give judgement with stay.

- Order 14 rule 3(2)- When there is clearly no defence to the plaintiff’s claim, but the Defendant raises a

plausible counterclaim, the Court may grant the plaintiff judgment with a stay of execution.

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Invar Realty Pte Ltd v Kenzo Tange [1990] 3 MLJ 388- Held – Yung Pung How J - If there was no defence to a claim other than a plausible

counterclaim, than judgment had to be entered on the claim. The overriding consideration was that if the claim was undisputed other than by means of a counterclaim, the claimant must not be put to the expense of proving his claim, even if no great expense would be incurred. The plaintiffs had by their pleadings admitted in the clearest terms that the second defendants` fees were owed to them, computing this to the very last cent. In the circumstances, the second defendants were entitled to judgment with a stay of execution.

- White Book, para l4/3-4/13.

(c*) judgment in part stayed pending determination- Test – nexus between claim and counterclaim

(d) Unconditional leave to defend (rules 3(1) and 4(1))- usu costs in the cause- but in theory, plaintiff has lost

Judgment for plaintiff (O. 14, r. 3)3. —(1) Unless on the hearing of an application under Rule 1 either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed.

Leave to defend (O. 14, r. 4)4. —(1) The Court may give a defendant against whom an application under Rule 1 is made leave to defend the action with respect to the claim, or part of a claim, to which the application relates either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit. (2) On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director, manager, secretary or other similar officer thereof, or any person purporting to act in any such capacity — (a) to produce any document; and (b) if it appears to the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.

- The Court may grant the defendant unconditional leave to defend when there is:o 1. Triable Issue of Fact - When a triable issue of fact has been raised: Order 14, rule

3(1) Costs awarded are usually costs in the cause.

Habibullah Mohd Yousuff v. Indian Bank [1999] 3 SLR 650

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o The appellant Habibullah Mohamed Yousuff (‘Yousuff’) was a director of Sadeco Sarl Pte Ltd (‘Sadeco’) Yousuff applied on Sadeco’s behalf to the respondent the Indian Bank (‘the bank’) for changes to the existing credit facilities that Sadeco had with the bank.  As security, the bank required joint and several guarantees from four individuals, including Yousuff.  In September 1995, Yousuff resigned from Sadeco.   His two requests to the bank to be released from the guarantee were refused.  The bank later sued Sadeco and its guarantors for recovery of sums owed and judgment in default of appearance was obtained against Sadeco which was wound up. The bank obtained summary judgment against Yousuff.  Yousuff appealed and the High court dismissed his appeal on the grounds that - (1) there was no triable issue and (2) there was no ‘some other reason’ for trial.   Yousuff contended that there were ‘unusual features’ in the bank’s relationship with the companies under the seventh defendant Raja’s control which substantially enhanced Yousuff’s risk as a guarantor. He also argued that these ‘unusual features’ were known to the bank and since the bank failed to disclose these matters, He should be discharged from the guarantee.

o Held, allowing the appeal, with unconditional leave to defend:o (1)    All that was necessary at the O 14 stage was for Yousuff to adduce evidence

showing that he had reasonable grounds for setting up a defence based on ‘unusual features’ surrounding the grant of credit facility. The fact that there was a formal report of investigation against the chairman of the bank’s head office, the deputy general manager of the bank’s Singapore branch and Sadeco’s controller Raja for loans made without regard to security, performance or banking regulations indicated that there were ‘unusual features’ in the grant of credit facility.

o (2)    An additional ‘unusual feature’ was the fact that the bank continued to purchase from Sadeco large amounts of bills drawn on the same drawees even after earlier bills had been dishonoured upon presentation.

o (3)    The bank’s behaviour was even more unusual in the light of its failure to secure adequate security for the loans to Sadeco.  Yousuff’s assets comprised principally shares in Sadeco which were worth nothing.

o (4)    Yousuff’s contention that he was merely a nominee director and the operations were run by Raja and that the bank owed him a duty to disclose was another reason for the matter to be tried.

o (5)    A ‘principal debtor’ clause did not convert a contract of guarantee into a contract of indemnity. The bank could not now argue that Yousuff would still be liable as a principal debtor as its statement of claim proceeded against Yousuff on the basis of his liability as a guarantor and not as a principal debtor.

o (6)    Yousuff had adduced sufficient reasons to raise a triable issue and to be given unconditional leave to defend.

o Para 21 - Under O 14 r 3(1) of the Rules of Court, summary judgment should not be given where the defendant ‘satisfies the Court … that there is an issue or question in dispute which ought to be tried’. The power to give summary judgment under O 14 is intended only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to judgment, and where it is inexpedient to allow a defendant to defend for mere purposes of delay; Jones v Stone [1894] AC 122. Where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, he ought to have leave to

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defend; Ironclad (Australia) Gold Mining Co v Gardner (1887) 4 TLR 18, Ward v Plumbley (1890) 6 TLR 198.

- 2. • when a triable issue of fact has been raised (see, cases cited in (v)) above. Where both parties equally credible – balance of proof: burden is on plaintiff.

So def will win. Court will not penalize plaintitf with costs at this stage even if def gets

unconditional leave to defend. Depends on who wins at end of day. Court will order costs in the cause.

o 3. “Some Other Reason” - When there is “some other reason” for trial: Order 14, rule 3(1)

Miles v Bull [1968] 3 AER 632- it sometimes happens that the defendant may not be able to pin-point any precise issue

or question in dispute which ought to be tried, nevertheless it is apparent that for some other reason there ought to be a trial for e.g. full discovery or cross-examination is required.

- The defendant and her husband separated, and the husband thereafter sold the matrimonial home, in which the defendant was still living, to the plaintiff. The sale was for the sum of £10,000, completion taking place on the day on which the contract was made. The plaintiff subsequently brought an action against the defendant for possession of the property, and sought summary judgment under Order 14. The Master gave the defendant unconditional leave to defend the action. On appeal by the plaintiff, the defendant sought to contend by way of defence to the action that the sale to the plaintiff had been a sham with the object of depriving her of her right, as against the husband, to occupy the property:-Held, dismissing the appeal, that, on the evidence before the court, the defendant had failed to establish that she had an arguable defence to the plaintiff's claim; but that, since the transaction was one which, in the interests of justice, ought to be carefully scrutinised, especially as the relevant facts were within the control of the plaintiff, there "ought for some other reason to be a trial" within the new wording of R.S.C., Ord. 14, and the defendant had rightly been given leave to defend the action.

- Mergarry J - It has been contended that the wife should have leave to defend because she has fairly arguable prospects of establishing that the sale in this case was a mere sham. This contention, I was told, was advanced for the first time before me. No alternative ground of defence has been put forward by the defendant. The various affidavits filed on her behalf contain much matter relating to the matrimonial proceedings and comparatively little directed to establishing any defence to the Order 14 summons with which I am concerned. The later affidavits filed after the adjournment contain something, though not much; and in the main this is directed to the secrecy of the sale rather than it being a sham. Of the grounds of defence now relied upon. I can see nothing which carries any real weight in establishing the transaction as a mere sham. It is said that the plaintiff was at all times aware that there was a matrimonial dispute (a fact which the plaintiff denies) and that the defendant occupied the premises in question. It is also pointed out that the plaintiff bought

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subject to special condition J in the contract. It was further urged in argument that it is at least unusual for completion to take place on the day upon which the contract was made. Let full weight be given to all those considerations, and still there is nothing which begins to establish that the sale was a sham. £ 10,000 is no derisory sum: there is no suggestion that the plaintiff had not truly become the purchaser: nor is there any suggestion that the sale was not what it appears to be. When I say "there is no suggestion" I do not forget what was said in argument; but what I have to bear in mind is what the evidence shows. The second wave of affidavits, indeed, brought some circumstantial evidence to show that the sale was in fact in its essentials an ordinary conveyancing transaction.

- Accordingly, if the question is whether or not the defendant has an arguable defence to the claim, I would have to answer No: for as matters stand I can perceive no such defence. All that can be said is that this is a transaction which ought to be scrutinised with some care; for plainly it bears something of the appearance of a device to evict the defendant. A device may, indeed, be a perfectly genuine transaction and so sham: that it was devised for a particular purpose by no means necessarily implies that it pretends to be what it is not. However, if a transaction is carried through not for its own sake, but in order to achieve some ulterior purpose, it may be found on examination that it has travelled the road from artifice and artificiality to sham.

- In these circumstances, I think that it is necessary to examine the precise wording of Order 14. Under the former Order 14. r. 1, a defendant could obtain leave to defend if he satisfied the judge that he had a good defence to the action on the merits, or disclosed "such facts as may be deemed sufficient to entitle him to defend the action generally." I do not see how that can be said to be the case here. The language of Order 14 has, however, been changed, and it is the new language that I must apply.Under rules 3 and 4 of the present Order 14, the defendant can obtain leave to defend if (and I read from rule 3 (1)) the defendant satisfies the court "that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial." These last words seem to me to be very wide. They also seem to me to have special significance where, as here, most or all of the relevant facts are under the control of the plaintiff, and the defendant would have to seek to elicit by discovery, interrogatories and cross-examination those which will aid her. If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought to be investigated, then I think that those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff. In the present case the plaintiff's evidence initially consisted of a single affidavit in which brevity could scarcely be carried further. He has now amplified this by further evidence, but this is certainly not exhaustive or conclusive. The words "there ought for some other reason to be a trial" seem to me to give the court adequate powers to confine Order 14 to being a good servant and prevent it from being a bad master. If I may adapt the language of Lord Parker of Waddington in Daimler Company Ltd. v. Continental Tyre & Rubber Co. (Great Britain) Ltd., [1916] 2 AC 307 referred to in the notes to Order 14 in the Supreme Court Practice, 1967, p. 122, if the circumstances of the case are "such as

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to require close investigation," this will "preclude the propriety of giving leave to sign judgment under Order 14, r. 1." The question is thus whether this is such a case. I think it is. In my judgment "there ought for some other reason to be a trial"; and the reason is that of justice. By carrying through a transaction at unusual speed the defendant's husband is seeking to enable the plaintiff to do what he himself cannot do, namely, evict the defendant from her home. The husband has whatever rights the law gives him, and so has the plaintiff; but in the circumstances of the case I do not think that it would be just if the plaintiff were able to enforce the rights which he claims without being put to strict proof that they do enable him to evict the defendant. I was told that, in granting leave to defend, Master Jacob said that the case was "too near the bone for Order 14." That, if I may say so, seems to me to summarise admirably what I have tried to express in greater detail. Order 14 is for the plain and straightforward, not for the devious and crafty. There is here a case for investigation, and so not for summary decision.

- I also bear in mind what Bramwell L.J. said in Harrison v. Bottenheim (1878) 26 W.R. 362, 363. Even on the old wording of Order 14, "though a man cannot show a defence, still, if he has shown enough to entitle him to interrogate the plaintiff, the case is not within Order 14, and should not be pursued without his being allowed to defend."

- Bramwell L.J. also referred to the remarkable fact that that action was on a bill of exchange three years old, and so the case was one of a stale claim, a circumstance perhaps matched by the remarkable promptitude of completion in the case before me. I do not, of course, decide that this is a case in which leave to administer interrogatories should be given, for that point is not before me for decision; but with the relevant facts peculiarly within the knowledge of the husband and the plaintiff, it seems to me that there is at least a strong prima facie case for the interrogatories, discovery and cross-examination which will be available if the case goes to trial, but which will be shut out if there is summary judgment. In those circumstances, I consider that the right course to take is to dismiss the appeal, and allow the defendant to defend the action; and this I do.

Concentrate Engineering Pte Ltd v. Control Land [1990] SLR 514 - Held: Chan Sek Keong J (following Miles v. Bull [1969] 1 QB 258), held that the

circumstances disclosed in this case called for further investigation. The circumstances and audacity with which the fraud was carried out and the absence of an explanation by the directors of the plaintiffs constituted “some other reason” for a trial in terms of Order 14, rule 3(1). He held that greater injustice would be done to the defendants if they were not given leave to defend.

o – but rare. Be circumspect abt using this!

- Triable issue of law has been raised and the Court resolves the point in the defendant’s favour

Counterclaim - When defendant sets up a bona fide counterclaim (set off of claim against counterclaim) arising out of the same subject-matter of the action and connected

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with grounds of defence, even if the defendant admits whole of the claim. If the counterclaim is separate and not arising out of the same subject-matter, the defendant cannot make the counterclaim, and judgment may be given in favour of the plaintiff.

White Book, paras 14/3 – 4/10, 14/3 – 4/11, 14/3 – 4/9 and 14/3-4/13.

Morgan & Son Ltd v S Martin Johnson & Co [1949] 1 KB 107 - The plaintiffs by specially indorsed writ claimed from the defendants a certain sum for

the storage of vehicles. The defendants by their affidavit acknowledged that the sum claimed would have been due but for the fact that the plaintiffs had negligently either delivered one of the vehicles to the wrong person or allowed it to be stolen. The judge in chambers gave the plaintiffs leave to sign judgment for the amount of their claim, but granted a stay of execution pending trial of the counterclaim. On the defendants' appeal

- Held, that, as the facts set out in the defendants' affidavit would have supported a claim to an equitable set off against the plaintiffs' claim, the judge should have given the defendants unconditional leave to defend the action, and should not have allowed the plaintiffs to sign judgment.

- Tuckler LJ - In my view, it all comes down to this: in circumstances such as the present, would a court of equity have granted relief by way of equitable set-off in proceedings where both claim and what for convenience I call counterclaim were pending before that court?

(e) Conditional leave to defend (rule 4(1)) (give the defendant his day in court).- not a win for either - a) condition met => costs in the cause- failure => judgement entered. Costs follow the event. Person who applied for order 14

gets costs (by def to plaintiff)

- 1. The Court would grant the defendant conditional leave to defend the action if there is good ground in the evidence for believing that the defence set up is a sham or if the court is prepared very nearly to give judgment for the plaintiff

MV Yorke Motors v Edwards [1982] 1 AER 1024 - In an Order 14 context, where a judge was very close to giving summary judgment but

on a shadowy defence was prepared to give leave to defend upon condition of money being paid into court, what was he to do where a defendant presented evidence that it was impossible for him to fulfil the condition which the judge was minded to make? The House of Lords held that the Court of Appeal had been entitled to infer from the evidence before it that, though it might be difficult it would not be impossible for the defendant to find the sum required as an earnest of his defence being put forward in good faith. In that context, where a court was considering the imposing of conditions for the purposes of giving leave to defend in a tightly balanced application for summary judgment, the court did then and there have to take a decision as best it could about what appropriate level of payment into court might be possible.

- Lord Diplock, with whom the other members of the House agreed, accepted the following propositions: "(i) where a defendant seeks to avoid or limit a financial condition by reason of his own

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impecuniosity the onus is upon the defendant to put sufficient and proper evidence before the court. He should make full and frank disclosure. (ii) It is not sufficient for a legally aided defendant to rely on there being a legal aid certificate. A legally aided defendant with a nil contribution may be able to pay or raise substantial sums. (iii) A defendant cannot complain because a financial condition is difficult for him to fulfil. He can complain only when a financial condition is imposed which it is impossible for him to fulfil and that impossibility was known or should have been known to the court by reason of the evidence placed before it."

- 2. The Court would also grant the defendant conditional leave to defend when it is of the opinion that the defence is shadowy.

o See Van Lynn Developments Ltd v Pelias Construction Co [1969] 1 QB 607 (can’t find the relevant point in the case)

o White Book para 14/3 – 4/13o Lonian Bank v Courreur [1969] 1 WLR 78 (can’t find)

o The usual form of condition that the Court imposes is – for the defendant to give security for the action by way of a banker’s guarantee for the sum of the claim. (note this is different from security for costs).Only then you can proceed to fight the trial. If you lose the sum is used to pay the other party as damages.

- Must produce banker’s guarantee or security before can defend. This security is not security for costs but for judgement sum. That is, if plaintiff deemds that sum claimed is 100,000, def has to prod security for judgment sum of 100,000

- (Ie order 23 – security for costs; this is diff fr security for judgement sum – gurantee that has money to pay even if he loses)

in the form of: banker’s guarantee/ payment into court/solicitor’s undertakingo but note – def can still take out application for security for costs. Under one of the

categories in previous lecture (eg outside jurisdiction) court will look at circumstances of the case eg the merits – earlier court found that defence was shadowy. Court wil then

think that order 23 application shld not succeed. So whenever there is conditional leave to defend, difficult for def to get hold of

security for costs against def – prima facie. Though can still take out such application Creative elegance – does not tell us how much weight is put on elements to

grant security for costs. Procedurally, def can still ask for security for costs.

8. Miscellaneous.- • Right to proceed with residue (Order 14, rule 8) – a judgment for part of the claim is

perfectly acceptable. e.g. claim for $100,000, final judgment under Order 14 for $30,000, costs at

Order 59, the rest of the sum unconditional leave to defend, whoever wins at trial gets costs of Order 14 action today.

Right to proceed with residue of action or counterclaim – Order 14, rule 8

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8. —(1) Where on an application under Rule 1 the plaintiff obtains judgment on a claim or part of a claim against any defendant, he may proceed with the action as respects any other claim or as respects the remainder of the claim or against any other defendant. (2) Where on an application under Rule 5 a defendant obtains judgment on a claim or part of a claim made in a counterclaim against the plaintiff, he may proceed with the counterclaim as respects any other claim or as respects the remainder of the claim or against any other defendant to the counterclaim.

- • When judgment for delivering up of a specific movable property is granted, Court can order delivery up without option to retain it on payment of assessed value (Order 14, rule 9).

Judgment for delivery up of movable property (O. 14, r. 9)9. Where the claim is for the delivery up of a specific movable property and the Court gives judgment under this Order for the applicant, it shall have the same power to order the party against whom judgment is given to deliver up the property without giving him an option to retain it on paying the assessed value thereof as if the judgment had been given after trial.

- • O14 equally applies to Counterclaims (Order 14, rule 5).20 – def is the plaintiff here. So he can take order 14.

When the defendant has served a counterclaim, he may also apply to the Court for summary judgment on the ground that the plaintiff has no defence to the counterclaim.

Application for summary judgment on counterclaim (O. 14, r. 5)5. —(1) Where a defendant to an action begun by writ has served a counterclaim on the plaintiff and the plaintiff has served a defence to the counterclaim, the defendant may, on the ground that the plaintiff has no defence to a claim made in the counterclaim, or to a particular part of such a claim, apply to the Court for judgment against the plaintiff on that claim or part. (2) Rules 2, 3 and 4 shall apply in relation to an application under this Rule as they apply in relation to an application under Rule 1 but with the following modifications: (a) references to the plaintiff and defendant shall be construed as references to the defendant and plaintiff respectively; (b) the words “any counterclaim made or raised by the defendant in” in Rule 3 (2) shall be omitted; and (c) the reference in Rule 4 (1) to the action shall be construed as a reference to the counterclaim to which the application under this Rule relates.

Hua Khian Ceramics Tiles v Torie Construction [1992] 1 SLR 884- Important parts of the case- Summary judgment- 21       There will be no hardship or injustice to a claimant who is content to have his

claim determined at the trial together with the cross-claims against him. But delay in having to wait for the trial in many cases may cause severe or even irreparable loss to

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the plaintiff. Lawton LJ in Ellis Mechanical Services Ltd v Wates Construction Ltd at p 36 said

- One of the perils of commercial life for sub-contractors in the building trade is that there may develop between the main contractor and the building owner a serious dispute which leads to one or other of them repudiating the main contract. When that happens the lifeblood of the building trade, namely money, stops. It seems to me that the administration of justice in our courts should do all it can to restore that lifeblood as quickly as possible.

- The courts are aware of what happens in these building disputes; cases go either to arbitration or before an official referee; they drag on and on and on; the cash flow is held up. In the majority of cases because one party or the other cannot wait any longer for the money, there is some kind of compromise, very often not based on the justice of the case but on the financial situation of one of the parties. That sort of result is to be avoided if possible. In my judgment it can be avoided if the courts make a robust approach, to the jurisdiction under O 14.

- 22       In the present day context, it is in summary judgment applications that the defendant raises the set-off defence. In order to make a robust approach it is the duty of the court to closely examine points of set-off raised by a defendant and to ensure that the true purpose is not to cause delay to the plaintiff.

- 23       In Invar Realty Pte Ltd v Kenzo Tange Urtec Inc & Anor Yong Pung How J (as he then was) said that where a defendant objects to an application for summary judgment based on a cross-claim, the plaintiff’s claim and the defendant’s crossclaim must be taken separately. If there is no defence to a claim other than a plausible counterclaim then judgment must be entered on the claim and the crossclaim should proceed to trial with a stay of execution so that the defendant is not unjustly injured.

- 24       It must be borne in mind that the jurisdiction under O 14 to give leave to defend and the power to stay execution is essentially a discretionary matter. It is axiomatic that a defendant who invites the court to exercise the discretionary power must produce sufficient relevant material for the court to justify a decision in his favour. Granting a stay of execution is not a matter of course.

Koshida Trading(s) Pte Ltd v Limco Products [1990] 2 MLJ 341 - The plaintiffs were suppliers of RAM microchips (ramchips). The defendants were

manufacturers of personal computers and had been buying ramchips from the plaintiffs. By the present action, the plaintiffs claimed a sum of money that the defendants acknowledged they owed. However, the defendants submitted that they were entitled to unconditional leave to defend as they had a set-off and counterclaim exceeding $16m arising from the plaintiffs` alleged failure to supply ramchips under five purchase orders. The action for summary judgment was heard before an assistant registrar who gave the plaintiff leave to enter final enter final judgment. From this, the defendants appealed.

- The appeal centred on two issues: (a) whether because of the counterclaim, the defendants should have been given unconditional leave to defend the whole of the claim, and (b) whether because of the set-off, the defendants should have been given unconditional leave to defend part of the claim to the extent of the set-off. The defendants contended that in law, the moment the plaintiffs acknowledged receipt of

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the purchase order by returning the attached duplicate endorsed to the defendants a binding contract was concluded. The plaintiffs` version of how the business was conducted was that whenever the defendants wished to obtain supplies of ramchips, they would send to the plaintiffs their purchase orders setting out the desired quantity, that the plaintiffs would acknowledge receipt thereof by returning a copy thereof to the defendants, that this was followed by negotiations on the terms of the orders. Even then there was no binding contract until the plaintiffs delivered the ramchips order, when invoices and delivery orders would be delivered to the defendants.

- Held , dismissing the defendants` appeal: - The counterclaims based on two purchase orders had no relation to the plaintiffs`

claim. They were separate transactions from those in respect of which the defendants admitted liability. These counterclaims would not entitle the defendants to a stay of execution, much less unconditional leave to defend.

- third party action – def will take out 014. third party can take out o14 if he has a counterclaim.

- • Judgment on account of defendant not appearing at the hearing of the application can be set aside (Order 14, rule 11).

The Court may set aside or vary a summary judgment made against a party who did not appear at its application – Order 14, rule 11

Apply by SIC supported by affidavit, but you have to pay costs since you wasted the court’s time by not turning up.

Setting aside judgment (O. 14, r. 11)11. Any judgment given against a party who does not appear at the hearing of an application under Rule 1 or 5 may be set aside or varied by the Court on such terms as it thinks just.

- • No summons under Order 14 shall be filed more than 28 days after the pleadings in the action are deemed to be closed – O 14 r 14.

Strictly not extendable

Time limit for summary judgment applications (O. 14, r. 14)14. No summons under this Order shall be filed more than 28 days after the pleadings in the action are deemed to be closed.

(C) ORDER 14, RULE 12 - DISPOSAL OF CASE ON POINT OF LAW

Determination of questions of law or construction of documents (O. 14, r. 12)12. —(1) The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter where it appears to the Court that — (a) such question is suitable for determination without a full trial of the action; and (b) such determination will fully determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein.

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(2) Upon such determination, the Court may dismiss the cause or matter or make such order or judgment as it thinks just. (3) The Court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question. (4) Nothing in this Order shall limit the powers of the Court under Order 18, Rule 19, or any other provision of these Rules.

Under Order 14, rule 12: The Court may determine:- Any question of law; or- Any construction of any document; - This may be done at any stage of proceedings, if such question is suitable for

determination with full trial; and if such determination will full determine the entire matter.

- Both parties can apply.

Under Order 14, rule 13: Manner of Application is: by way of summons; or may be made orally in the course of any interlocutory application to the court Take out summons by way of affidavit – but must show that will definitively

resolve the dispute

Manner in which application under Rule 12 may be made (O. 14, r. 13)13. An application under Rule 12 may be made by summons or (notwithstanding Order 32, Rule 1) may be made orally in the course of any interlocutory application to the Court.

Principles: The determination of the question of law or the construction of document must finally

dispose of the entire cause or matter. Order 14, rule 12 may be invoked to determine any claim or issues raised in the action Where there are mixed issues of fact and law, an application under Order 14, rule 12 is

inappropriate. even if only 1 issue good enough – see case law

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Barang Barang v. Boey [2002] 3 SLR 158 - The Plaintiff applied for the construction of the terms of the sale and purchase

agreement under Order 14, rule 12 of the Rules of Court. - Held (dismissing the application):

o There are two requirements for a question of construction to be suitable for determination under Order 14, rule 12:

First, it must be possible to finally determine the construction of the document.

Second, that the determination will finally dispose of the entire cause or matter.

o This second requirement underscores Order 14, rule 12(1)(a) which states that a question is only suitable for determination if a full trial of the action is not required. Where there are mixed issues of fact and law that requires a trial, an application under O 14 r 12 is inappropriate.

o On the facts of the case, the determination on whether the mutual release clauses in the sale and purchase agreement supersedes the non-competition clause in the service agreement will not finally dispose of the entire matter.

o Two further issues must be determined, namely, whether the Third Defendant`s business constituted a breach of the non-competition clause and whether the non-competition clause was void because it is unreasonable. As the two further issues to be determined are mixed questions of law and fact, they cannot be determined without a full trial. The application to construe the clauses in the sale and purchase agreement under Order 14, rule 12 is inappropriate and it is dismissed.

Grinsted v Brittania Brands (Holdings) Pte Ltd [1995] 3 SLR 157 (can’t find the relevant point)

Payna Chettiar v. Maimoon bte Ismail [1997] 3 SLR 387- Held: Order 14, rule 12 was similar to the English Order 14A, rule 1(1). It did not

follow that an application under Order 14, rule 12 should only be made if the decision would finally determine the entire cause or matter. The wording of Order 14, rule 12(1)(b) was clear that an application could be made to determine the entire cause or matter or any claim or issue therein.

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Kamla Lal Hiranand v. Harilela [2000] 3 SLR 696 - Facts: In this case, the question raised was: whether the 1988 document, not being

valid as a will, is nonetheless valid for the purposes of creating and/or evidencing a trust in the estate of the deceased. The issue was whether this was a proper one for determination under Order 14, rule 12.

- CA Held: Yes, the question was suitable for determination under Order 14, rule 12(1). This Rule did not require that the determination would fully determine the entire cause or matter in the action. It may be invoked to determine any claim or issues raised in the action. (following Payne Chettier v. Maimoon bte Ismail; Microsoft Corporation v. SM Summit Holdings)

Microsoft Corporation v. SM Summit Holdings [1999] 4 SLR 529 at 5541. The plaintiffs claimed against the defendants damages for defamation based on a press

release which the latter had published or caused to be published. The plaintiffs pleaded that certain words in the press release, in their ordinary and natural meaning, meant and were intended to mean that the plaintiffs were guilty of criminal conduct.

2. CA Held: They agreed that the natural and ordinary meaning of the alleged defamatory words was a question which was suitable for determination under Order 14, rule 12. The CA saw no impediment to the application under Order 14, rule 12 as the determination of the meaning of the words complained of would fully resolve the issue as to the meaning of the words in the action.

(D) STRIKING OUT OF PLEADINGS AND ACTIONS ORDER 18, RULE 19 – VERY IMPT FOR EXAMS!!!

Striking out pleadings and endorsements (O. 18, r. 19)19. —(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that — (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under paragraph (1) (a). (3) This Rule shall, as far as applicable, apply to an originating summons as if it were a pleading.

1. Possible orders.

- Order 18, rule 19(1) - The court may order the action to be struck out, have the pleadings amended, stay the action, a dismissal of the action or judgment to be entered.22

The rule applies to a pleading or indorsement (rule l9(1)) as well as OS (rule 19(3)).

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- The court would allow amendment if some material averment is missing; it will refuse amendment when the intended amendment, however ingenious, will not cure the defect.

Rep of Peru v Peruvian Guano Co [1887] 36 Ch D 489 on 496.

2. General principles

- Courts are slow to strike out even if the writ is irregular, usually give leave to amend. Only advantage is that you get pleadings corrected and get costs from courts.

- Note: A valuable adjunct to Order 18, rule 19 is Inherent Jurisdiction of the Court to deal with pleadings which are vexatious or frivolous or abuse of process of the Court (see below).

- Court may not just grant striking out because very draconian – will grant host of other remedies to remed whoever’s action seems to be failing

o If took right applic to strike out but court ordered another remedy – you will still get costs if you were not at fault.

Costs of striking out very higho If other side does action very badly nad cause of action not there, then striking out

appears to be the wy to go

3. Procedure.

- An application under Order 18, rule 19(1) must be made promptly and as a rule before pleadings are deemed closed. – AG of Duchy of Lancaster v L & N W Ry [1892] 3 Ch 274.

After set-down, application may be refused – Cross v Earl Howe [1893] 62 LJ Ch 342. If you wanna strike out you have to do so early or you may be deemed to be frustrating the other party.

- O 18 r 19 is applicable to writ actions and originating summons. See rule 19(3).- Note: It is only for the ground Order 18, rule 19(1)(a) “no reasonable cause of action or

defence” – that summons supported by affidavit is NOT required. No affidavit is required since the basis of the application should be clear on the face of it. No evidence is admissible to support that ground. See Order 18 Rule 19(2). See also “The Hsing An” [1974] 1 MLJ 45. Yusen Air & Sea Services (S) Pte Ltd v KLM Royal Dutch Airlines [1999] 4 SLR 21.

The summons is to be supported by affidavit unless the ground is Order 18, rule l9(1)(a) i.e. it discloses no reasonable cause of action or defence.

Exception – rule 1a – no reasonable cause of action or defence Here, cannot file affidavit for this. As long as say no cause of action, patent

what is being pleaded. No affidavit is required under the latter since the basis of the application should

be clear on the face of it. No evidence is admissible to support that ground. See rule l9(2).26

“The Hsing An” [1974] 1 MLJ 45 - Held, dismissing the defendants` motion:

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- (1).That writ of summons disclosed an application for relief which was clearly and squarely a claim within s 3(1)(a) of the High Court (Admiralty Jurisdiction) Act (Cap 6, 1970 Ed) (the Act) and therefore the court had jurisdiction in rem to entertain the claim.

- (2).The task of the court was to ask itself on the pleadings so far as they have gone, without reading any affidavit whatsoever, whether there was a triable issue falling within the list of s 3(1) of the Act and in this case it was quite impossible for the court to say that the writ of summons disclosed no reasonable cause of action.

- Important parts of the case- Order 18 r 19 of the Rules of the Supreme Court 1970, empowers the court by a

summary process to stay or dismiss an action or enter judgment against the defendant where the pleading discloses no reasonable cause of action or defence or where the action or defence is shown to be frivolous or vexatious or otherwise an abuse of the process of the court.

- One thing is clear on the many cases that have incorporated the phrase `no reasonable cause of action or defence` judicially and it is this, that it is not the function of the court in an interlocutory application of this sort to try the issues. It is the function of the court to decide simply whether there is a triable issue as opposed to something which is frivolous, oppressive or an abuse of the process of the court. Order 18 r 19(2) disallows affidavit evidence on an application alleging that the pleading discloses no reasonable cause of action.

- In Wenlock v Moloney [1965] 1 WLR 1238 by his writ and statement of claim the plaintiff claimed damages against the three defendants for conspiring to oust him from the business of a company. The defendants delivered defences denying the allegations made against them in the statement of claim. After the pleadings were closed the plaintiff issued a summons for directions in the ordinary way but before it was heard the defendants applied to the master under Rules of the Supreme Court O 18 r 19 (which is in similar terms to our O 18 r 19) alternatively under the inherent jurisdiction of the court, to strike out the pleadings and dismiss the action on the grounds, inter alia, that the pleadings disclosed no reasonable cause of action. On the hearing of the application to strike out, ten affidavits were filed, five by the defendants in support of the application and five by the plaintiff in opposition thereto. The master read the affidavits, the documents exhibited thereto and considered the issues of fact raised by the affidavits in a four-day hearing. There was no cross-examination on the affidavits or oral evidence. In his reserved judgment the master held that the plaintiffs` action was most unlikely to succeed and he, accordingly, struck out the pleadings and the action. The plaintiff appealed to the judge in chambers who dismissed the appeal. On appeal to the Court of Appeal the court refused to look at the affidavits. It was held that the trial by the master of issues of fact on affidavits to ascertain whether the plaintiff had a case was a usurpation of the functions of the trial judge and was a wholly improper procedure and that since the pleadings on their face disclosed a reasonable cause of action and raised issues of fact which required to be determined on oral evidence by a judge, the action would not be struck out but would proceed to trial.

- Sellers LJ in the course of his judgment said (at p 1242 G):If, as here, the only ground on which the action can be said to disclose no reasonable cause of action is that it is not one which is likely to succeed, then I doubt whether affidavit evidence was admissible.

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- It is contended for the defendants that the court can properly admit evidence (1) when it is considering whether it has jurisdiction or not to see whether it is a real claim and (2) in an action in rem. I decline to accept this submission.

- So the task of the court is to ask itself on the pleadings as far as they have gone, without reading any affidavit whatsoever, whether there is a triable issue falling within the list of s 3(1) of the Act. I find that the pleadings which the plaintiffs have delivered so far, that is to say the writ, disclose an application for relief which is clearly and squarely a claim within s 3(1)(a) of the Act and that it is really quite impossible to say that it discloses no reasonable cause of action. The first relief claimed by the defendants, therefore, fails.

Yusen Air & Sea Services (S) Pte Ltd v KLM Royal Dutch Airlines [1999] 4 SLR 21- Per curiam- Although O 18 r 19 of the Rules of Court did not specify that an application for striking

out had to be made by way of a summons-in-chambers, the usual procedure required the applicant to apply by way of summons-in-chambers. With the exception of striking out on the ground that the pleading disclosed no reasonable cause of action or defence, all striking out applications based on the other grounds should be supported by an affidavit. There should be a good reason why the usual practice was not followed and the court should be mindful of the potential prejudice that could be caused to the party resisting the application.

- For all the other grounds (e.g. scandalous, vexatious, abuse of process of courts, res judicata (abuse of process), summons supported by affidavit is required: Order 18, rule 19(2)

3. Approach under O 18 r 19. - The power will be exercised in “plain and obvious cases” or where a claim or answer is

“obviously unsustainable”27 Very high threshold – compare 0rder 14 – def merely needs to show triable

issue of fact or law. Where Damages will prob be nominal

(standard very high, usually difficult to succeed) – AG of Duchy of Lancaster v L & N W Ry Co [1892] 3 Ch 274. See also The Osprey [2000] 1 SLR 281 and Ching Mun Fung v Liu Cho Chit [2000] 1 SLR 517.

AG of Duchy of Lancaster v L & N W Ry Co [1892] 3 Ch 274 Lindley LJ - To what extent is the Court to go on inquiring into difficult questions of

fact or law in the exercise of the power which is given it under Order XXV., rule 4? It appears to me that the object of the rule is to stop cases which ought not to be launched - cases which are obviously frivolous or vexatious, or obviously unsustainable; and if it will take a long time, as is suggested, to satisfy the Court by historical research or otherwise that the County Palatine has no jurisdiction, I am clearly of opinion that such a motion as this ought not to be made.

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AL Smith LJ - I only want to make one remark about Order XXV., rule 4. It seems to me that when there is an application made to strike out a pleading, and you have to go to extrinsic evidence to shew that the pleading is bad, that rule does not apply. It is only when upon the face of it it is shewn that the pleading discloses no cause of action or defence, or that it is frivolous and vexatious, that the rule applies. In this case it is manifest that you must go to extrinsic evidence to shew that the pleading is bad, and directly it comes to that, the rule does not apply.

The Osprey [2000] 1 SLR 281 The appellants, who were owners of cargo, held a bill of lading evidencing the

shipment of the cargo on board a vessel, which was arrested by the second respondents. The appellants commenced proceedings against the first respondents (“the shipowners”) for breach of contract and obtained an interlocutory judgment. The second respondents had it set aside, while the appellants were allowed to amend their statement of claim. The second respondents then had that struck out. The appellants appealed, arguing that the shipowners were the contracting carrier as evidenced by the bill of lading, which was signed by a company (“Admarine”) as agents.

Held, allowing the appeal: (1)    The court’s power to strike out any pleading and dismiss actions under O 18

r 19(1) would only be exercised in plain and obvious cases. A “reasonable cause of action” has some chance of success when only the allegations in the pleadings are considered, and the claim would be struck out only if upon examination of the allegations the alleged cause of action is certain to fail. A “frivolous and vexatious” cause of action is obviously unsustainable or wrong, or shows a lack of purpose or seriousness in the party’s conduct of the proceedings. “Abuse of process” signifies that the process of court must be used bona fide and not as a means of vexation or oppression. It also includes considerations of public policy and the interests of injustice.

(2)    The appellants had a reasonable cause of action against the shipowners, which was neither frivolous or vexatious and/or an abuse of process as well. As proceedings were still at the interlocutory stage, the appellants need not present all the evidence they would rely on at the trial in support of their claim. Their inability to adduce evidence of the charterparty did not deprive them of their right to a trial, which would resolve the issue of the contracting carrier’s identity.

Important Parts of Judgment Striking out 6       Under O 18 r 19(1)(a) to (d) of the Rules of Court, the court may strike out any

pleading and dismiss the action on any of the grounds stated there. In this case, the second respondents’ application for striking out the appellants’ amended statement of claim was expressed to be based on most of the grounds, namely, that it discloses no reasonable cause of action, is frivolous and vexatious and/or is an abuse of the process. It is well-established that the power of striking out will only be exercised in plain and obvious cases. In Tan Eng Khiam v Ultra Realty Pte Ltd [1991] SLR 798, 803; [1991] 3 MLJ 234, 237, GP Selvam JC (as he then was) said:

Courts are reluctant to strike out a claim summarily either under O 18 r 19 of the RSC or the inherent jurisdiction. This is anchored on the judicial policy to afford a litigant the right to institute a bona fide claim before the courts and to prosecute it in the usual

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way. Whenever possible, the courts will let the plaintiff proceed with the action unless his case is wholly and clearly unarguable: see Blue Town Investments Ltd v Higgs & Hill plc [1990] 1 WLR 696 , [1990] 2 All ER 897 and Oxy Electric Ltd v Zainuddin [1991] 1 WLR 115, [1990] 2 All ER 902.

And in Ko Teck Siang v Low Fong Mei & Anor and other actions [1992] 1 SLR 454, this court approved and followed Wenlock v Moloney [1965] 2 All ER 871, 874 where Danckwerts LJ said: The position is very clearly expressed by Lord Herschell in Lawrence v Lord Norreys [1886-90] All ER 858, at p 863. He said: It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved . …

The position under two former rules has been incorporated in the present RSC, O 18 r 19 of the new rules. There is no doubt that the inherent power of the court remains; but this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action. To do that, is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way . This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power…

This general rule was reiterated more recently in the case of Gabriel Peter & Partners v Wee Chong Jin [1998] 1 SLR 374, 383 at para 18 where this court held:

In general, it is only in plain and obvious cases that the power of striking out should be invoked. This was the view taken by Lindley MR in Hubbuck & Sons v Wilkinson, Heywood and Clark [1899] 1 QB 86 at p 91. It should not be exercised by a minute and protracted examination of the documents and facts of the case in order to see if the plaintiff really has a cause of action. The practice of the courts has been that, where an application for striking out involves a lengthy and serious argument, the court should decline to proceed with the argument unless, not only does it have doubts as to the soundness of the pleading but, in addition, it is satisfied that striking out will obviate the necessity for a trial or reduce the burden of preparing for a trial.

7       A “reasonable cause of action” has been defined in Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 by Lord Pearson as a cause of action which has some chance of success when only the allegations in the pleading are considered. The claim should be struck out only if upon examination of the allegations, it is found that the alleged cause of action is certain to fail. This principle was applied in Gabriel Peter & Partners v Wee Chong Jin (supra) (at para 21).

8       As for the words “frivolous and vexatious”, they have been interpreted to mean actions which are “obviously unsustainable” or “wrong”. In Goh Koon Suan v Heng Gek Kiau [1990] SLR 1251; [1991] 2 MLJ 307, Yong Pung How CJ said that an action would be vexatious “if the party bringing it is not acting bona fide and merely wishes to annoy or embarrass his opponent, or when it is not calculated to lead to any practical result”. The expression “frivolous and vexatious” has also been used to connote a lack of purpose or seriousness in the party’s conduct of the proceedings.

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9       The ground of “abuse of the process” is a more general ground which tends to be more broadly interpreted than the other three grounds found in O 18 r 19(1). It was observed by this court in Gabriel Peter & Partners v Wee Chong Jin (supra) at para 22:

The term, ‘abuse of the process of the Court’, in O 18 r 19(1)(d), has been given a wide interpretation by the courts. It includes considerations of public policy and the interests of justice. This term signifies that the process of the court must be used bona fide and properly and must not be abused. The court will prevent the improper use of its machinery. It will prevent the judicial process from being used as a means of vexation and oppression in the process of litigation. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed and will depend on all the relevant circumstances of the case. A type of conduct which has been judicially acknowledged as an abuse of process is the bringing of an action for a collateral purpose, as was raised by the respondents. In Lonrho v Fayed (No 5) [1993] 1 WLR 1489, Stuart-Smith LJ stated that, if an action was not brought bona fide for the purpose of obtaining relief but for some other ulterior or collateral purpose, it might be struck out as an abuse of the process of the court. [emphasis added]…….

20     A party, at this interlocutory stage, is not compelled to lay out all the evidence on which he will rely at the trial to support his claim. Hence, there was no merit in the second respondents’ contention that the appellants were not able to show that they had a reasonable cause of action because their evidence would not likely to improve, even if the case proceeds to trial. This was hardly the appropriate stage in the proceedings at which the court should or would be dealing with questions of proof. While the appellants’ inability to adduce evidence of the charterparty was indicative of, perhaps, a weak case and may ultimately prove to be detrimental to the success of their claim, we would not be justified in depriving them of their right to a trial. The determination of the question of who was the contracting carrier under the bill of lading would be more appropriately resolved in a proper trial. In our judgment, on the existing evidence available, the appellants have a reasonable cause of action in contract against the shipowners. As for the other grounds of “frivolous and vexatious” and/or “an abuse of the process”, it had not been shown by the second respondents that the appellants were not acting bona fide in bringing this action or that the claim was brought merely to annoy or oppress the defendants.

Ching Mun Fong v. Liu Cho Chit [2000] 1 SLR 517 - The Court of Appeal held that the Court’s jurisdiction to strike out a statement of claim,

whether under the Rules of Court or the court`s inherent jurisdiction, was only exercised in a plain and obvious case. The general approach to an application to strike out was to consider whether the deficiency or defect, on the basis of which the application was made, could be cured by an amendment, and if it could, this rather than the drastic course of striking out would be preferred.

- 12     The jurisdiction to strike out a statement of claim, whether under the Rules of Court or under the court’s inherent jurisdiction, is only exercised in a plain and obvious case. In general, the court’s approach to an application to strike out the statement of claim is to consider if the deficiency or defect therein, on the basis of which the application was made, could be cured by an amendment, and would prefer to allow an

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amendment rather than to take the drastic course of striking it out. In Tan Soo Leng David v Wee, Satku & Kumar Pte Ltd [1994] 3 SLR 481, Karthigesu JA, delivering the judgment of this court, said at p 487:

- It will be noted that O 18 r 19 gives the judge a discretionary jurisdiction and permits an amendment of the statement of claim as an alternative. As this court said in Ko Teck Siang v Low Fong Mei [1992] 1 SLR 454, the discretion for striking out under O 18 r 19 should be exercised sparingly. See also Manuel Misa v Raikes Currie, G Grenfell Gly (1876) 1 App Cas 554 at p 559, where the House of Lords allowed a new argument to be taken since it did not require any new material to be introduced into the case. The failure to plead the want of best endeavours on the part of the first respondents is not necessarily fatal to the appellant at this stage of the proceedings since that deficiency can be made good by an amendment to the statement of claim before the trial.

Gabriel Peter & Partners v Wee Chong Jin & Ors [1998] 1 SLR 374 - Held: In general, it is only in plain and obvious cases that the power of striking out

should be invoked. It should not be exercised by a minute and protracted examination of the documents and facts of the case in order to see if the plaintiff really has a cause of action.

- The practice of the courts has been that, where an application for striking out involves a lengthy and serious argument, the court should decline to proceed with the argument unless, not only does it have doubts as to the soundness of the pleading but, in addition, it is satisfied that striking out will obviate the necessity for a trial or reduce the burden of preparing for a trial.

- This is anchored on the judicial policy to afford the litigant the right to institute a bona fide claim before the courts and to prosecute it in the usual way. Whenever possible, the courts will let the plaintiff proceed with the action unless his case is wholly and clearly unarguable: Selvam JC in Tan Eng Khiam v Ultra Realty Pte Ltd [1991] SLR 798 (see excerpt in The Osprey case above)

- There should not be a minute and protracted examination of the documents and facts of the case to see whether there is a cause of action. (The Osprey [2000])

- It is also not permissible to try the action on affidavits when facts and issues are in dispute.28(Wenlock v Moloney [1965] 2 AER 871)

- White Book, paras 18/19/3 and 18/19/4.

4. Inherent jurisdiction. - In addition to O 18 r 19, under the court’s inherent jurisdiction, it has power to stay or

dismiss action under inherent jurisdiction is on the ground that the pleading is frivolous or vexatious and/or abuse of process, just as it is under Order 18, rule 19 –

- Gleeson v Wippell & Co. Ltd [1977] 3 AER 54 Held - that the jurisdiction to strike out, whether inherent or under the rules,

should be exercised only with great caution and only in plain and obvious cases where it was clear beyond doubt that the action would not succeed;

- Under Inherent Jurisdiction, the Court can go into all the facts and affidavits as to facts are admissible (Willis v Earl Howe [1893] 2 Ch 545 on 551 and 554 (cannot find on this point), Vinson v Prior Fibres Consolidated Ltd [1906] W.N. 209 (cannot find).

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Jurisdiction will not be exercised except with great circumspection and unless it is perfectly clear that the plea cannot succeed – Lawrence v Lord Norreys [1890] 15 AC 210, White Book para 18/19/18.

Lawrence v Lord Norreys [1890] 15 AC 21 It is long established that the pleading of fraud demands rigorous particularity. Many authorities attest to this proposition stemming from Lawrence v. Lord Norreys

(1890) 15 App Cas 210at 210. The head-note reads in part:

"In such an action, general averments of fraud are not sufficient. The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that fraud was the cause of the deprivation and excluding other possible causes. In default of such allegations, the court may, by virtue of its inherent jurisdiction, dismiss the action as an abuse of the procedure where the claim is incapable of proof and without any solid basis."

Reichel v Magrath [1889] 14 AC 665 Reichel had taken proceedings against the Bishop of Oxford and the patrons of a

benefice for a declaration that he was still the vicar of the benefice and that an instrument of resignation was null and void. He lost before North J and his appeals to both the Court of Appeal and the House of Lords were dismissed. In the second action Magrath claimed to be the incumbent of the benefice, having been appointed to fill the vacancy caused by the resignation of Reichel, but that Reichel refused to vacate the parsonage houses or glebe lands. He sought declarations and injunctions designed to evict Reichel. In his defence to that claim Reichel sought to set up the same case as had been rejected by all three courts in the action he had brought against the Bishop. Magrath applied to have the defence struck out. He succeeded before the Queen's Bench judges on the grounds that the matter was res judicata and in the Court of Appeal on the basis that to set up the same defence was an abuse of the process of the court. Reichel appealed to the House of Lords. He failed. Lord Halsbury LC said: "It would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. It cannot be denied that the only ground upon which Mr. Reichel can resist the claim by Mr. Magrath to occupy the village is that he (Mr. Reichel) is still vicar of Sparsholt. If by the hypothesis he is not vicar of Sparsholt and his appeal absolutely fails, it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same questions which the Court has decided in a separate action. I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed."

Lords Fitzgerald and Macnaghten agreed. Lords Watson and Herschell gave concurrent speeches.

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Ng Chee Chong v. Toh Kouw [1999] 4 SLR 45- Held: The CA held that the doctrine of res judicata is to be found in the concept of

abuse of process of the Court. The CA held that in determining whether a case falls within the scope of res judicata, great care should be exercised as it would amount to shutting out a subject of litigation.

- The jurisdiction will not be exercised except with great circumspection and unless it is perfectly clear that the plea cannot succeed.31

5. The 4 Limbs of Order 18, rule 19(1)

5a) O 18 r 19(1)(a). … “it discloses no reasonable cause of action or defence, as the case may be”- e.g. absolute privilege32, barrister’s immunity from suit33 and many more.34 case –

whether wrongful birth – CA held no such cause of action- (No need affidavit, all the other limbs must have affidavit)

Meaning: No chance of success when only the allegations in the pleadings were considered.

The “Hsing An” [1974] 1 MLJ 45 (see above) A ‘reasonable cause of action’ has been defined in Drummond-Jackson v British

Medical Association [1970] 1 All ER 1094 by Lord Pearson as a cause of action which has some chance of success when only the allegations in the pleading are considered. The claim should be struck out only if upon examination of the allegations, it is found that the alleged cause of action is certain to fail.

Moore v Lawson [1915] 31 TLR 418 (See the excerpt from the case of Three Rivers District Council v. Governor and Company of the Bank of England [2001] UKHL 16 below)

Three Rivers District Council v. Governor and Company of the Bank of England [2001] UKHL 16- 117. The 1999 White Book stated at 18/19/10 with reference to r 19(1)(a):

"A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v British Medical Association [1970] 1 WLR 688; [1970] 1 All ER 1094, CA).

- So long as the statement of claim or the particulars (Davey v Bentinck [1893] 1 QB 185) disclose some cause of action, or raise some question fit to be decided by a judge or a jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out (Moore v Lawson (1915) 31 TLR 418, CA; Wenlock v Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA);"

- Therefore if a plaintiff would be entitled to judgment if he were successful in proving the matters alleged in his pleadings, the statement of claim could not be struck out under rule 19(1)(a) on the ground that he had no prospect of adducing evidence to

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prove the matters which he alleged. If a defendant wished to strike out a statement of claim and to obtain an order for the dismissal of the action on the ground that the plaintiff had no prospect of proving the case which he alleged in his statement of claim he had to do so under rule 19(1)(b) and/or (d). A case which illustrates this (although the application was to strike out, not a statement of claim, but a plea of justification in a defence) was the application made in McDonald's Corporation v Steel [1995] 3 All ER 615 where the Court of Appeal considered the correct approach to an application under Ord 18, r 19(d) to strike out a pleading for abuse of process and held, at p 623E-F, that the power to strike out was a draconian remedy which was to be employed only in clear and obvious cases where it is possible to say at an interlocutory stage and before full discovery that a particular allegation was incapable of being proved.

Gabriel Peter & Partners v Wee Chong Jin & Ors [1998] 1 SLR 374 (see above excerpt in The Osprey)

The Osprey [2000] 1 SLR 281 (see above)

Examples

Absolute privilege

Trapp v Mackie [1979] 1 AER 489 Abstract: Where a public inquiry is set up by statutory authority and conducted

judicially, witnesses giving evidence before it may be absolutely immune from civil proceedings arising from their evidence. The appellant was dismissed as a headmaster by the local education authority, of which the respondent was chairman. Pursuant to the appellant's petition, the Secretary of State set up an inquiry, with Queen's Counsel as commissioner, under the Education (Scotland) Act 1946 to investigate the dismissal. The inquiry was held in public, the procedure adopted being similar to that in a court of law; evidence was given, inter alia, by the respondent. The commissioner concluded that the dismissal was reasonably justifiable and reported accordingly to the Minister who accepted such conclusion. (As a matter of practice although such a report's conclusion was not binding upon the Minister, it was rare for him not to accept it.) The appellant brought proceedings against the respondent alleging that he had given maliciously false evidence to the inquiry thereby influencing its decision. The respondent succeeded in having the action dismissed on the grounds of this evidence being absolutely privileged.

Summary: Held, dismissing the appellant's appeal that absolute privilege could apply to evidence given in proceedings which, although they did not finally determine the issues raised, formed part of the decision-making process; the nature of this inquiry indicated that such privilege would apply.

Barrister’s immunity from suit

Rondel v Worsley [1967] 3 AER 993

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Summary: A barrister is not liable to his client for professional negligence in respect of his conduct and management of litigation whether in court or at an earlier stage. Quaere (1) whether immunity extends to cover work unconnected with court cases; (2) whether immunity ought not to extend to a solicitor doing litigation work which could have been done by counsel. The appellant was tried on a charge of having caused grievous bodily harm to a certain named person and was convicted. He had been represented by the respondent, a barrister who had appeared on a "dock brief." Later the appellant issued a writ and statement of claim against the respondent claiming damages for professional negligence in the respondent's dealing with the evidence.

The master ordered the statement of claim to be struck out as disclosing no reasonable cause of action, and his order was upheld by Lawton J. and by the Court of Appeal.

On further appeal, held, dismissing the appeal, that a barrister's conduct and management of litigation (whether in court or at an earlier stage) could not give rise to a claim for professional negligence; this position was a result of public policy in that (a) a barrister ought to be able to carry out his duty to the court fearlessly and independently; (b) actions for negligence against barristers would inevitably amount to retrials and thus prolong litigation, contrary to the public interest, and (c) a barrister was obliged to accept any client if a proper fee was paid and could not refuse a client on any other ground. Per Lords Reid, Morris of Borth-y-Gest and Upjohn: public policy does not require the extension of this immunity to work of a non-litigious nature. Per Lords Reid, Morris of Borth-y-Gest, Pearce and Upjohn: a solicitor ought to be given the same immunity in litigious work which could have been done by a barrister as the barrister would have had if engaged.

5b) O 18 r 19(1)(b). … “it is scandalous, frivolous or vexatious”- pleadings are “scandalous” if, for e.g., it is irrelevant or where there are unnecessary

details35. - It is “frivolous or vexatious” if for e.g., when it is time-barred36 or just to get costs.37

“Scandalous” – Pleadings are “scandalous” if, for e.g., it is irrelevant or where they contain offensive or unnecessary details – Blake v Albion Assurance Society [1876] 45 L.J.C.P. 663 (cannot find). See also Ruberry v Grant [1872] LR 13 Eq 443 (not scandalous if relevant) (cannot find), White Book para 18/19/14.

See also AG, etc v L & NW Ry (obviously frivolous or vexatious, above).

The words ‘frivolous and vexatious’ have been interpreted to mean: Actions that are “obviously unsustainable” or “wrong”: The Osprey [2000]

- In Goh Koon Suan v Heng Gek Kiau & Ors [1990] SLR 1251 [1991] 2 MLJ 307 , Yong Pung How CJ said that an action would be vexatious “if the party bringing it is not acting bona fide and merely wishes to annoy or embarrass his opponent, or when it is not calculated to lead to any practical result”.

The expression “frivolous and vexatious” has also been used to connote a lack of purpose or seriousness in the party’s conduct of the proceedings.

It is “frivolous or vexatious” if for e.g., when it is time-barred or just to get costs.

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o When it is Time barred - Ronex Properties v John Laing Construction Ltd [1982] 3 AER 961 c.f. Riches v DPP [1973] 2 AER 935 (inherent jurisdiction).

o Make persons parties just to get costs – Burstall v Beyfus [1884] 26 Ch D.

Ronex Properties v John Laing Construction Ltd [1982] 3 AER 961 - Held, dismissing the appeal, that an application for a claim to be struck out on the

ground that it disclosed no cause of action could only properly be made where it was manifest that there was an answer immediately destructive of the claim; that, since a defence under the Limitation Acts barred the remedy and not the claim and that defence had to be pleaded, the application to strike out the pleadings was misconceived

- Donaldson LJ- Limitation- Under R.S.C., Ord. 18, r. 19, the power to strike out any pleading or the endorsement of

any writ in the action or anything contained therein is exercisable: "on the ground that - (a) it discloses no reasonable cause of action or defence, as the case may be; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court; ..."

- In the case of an application under (a) above, which is the present case, no evidence is admissible.Authority apart, I would have thought that it was absurd to contend that a writ or third party notice could be struck out as disclosing no cause of action, merely because the defendant may have a defence under the Limitation Acts. Whilst it is possible to have a contractual provision whereby the effluxion of time eliminates a cause of action - and there are some provisions of foreign law which can have that effect - it is trite law that the English Limitation Acts bar the remedy and not the right; and, furthermore, that they do not even have this effect unless and until pleaded. Even when pleaded, they are subject to various exceptions, such as acknowledgment of a debt or concealed fraud, which can be raised by way of reply. Concealed fraud has, we are told, been pleaded by the plaintiffs in this case as against the defendants, but whether the personal representatives will or can adopt a similar attitude vis-à-vis Clarkes can only really emerge if ever they get to the stage of delivering a reply in the third party proceedings. Accordingly, authority apart, I would have unhesitatingly dismissed the application to strike out upon this ground. The answer might well have been different if Clarkes had relied upon any ground other than failure to disclose a reasonable cause of action, but in that event all concerned could have adduced evidence and we would have been able to explore the factual basis upon which it is said that the Limitation Acts do, or as the case may be do not, apply.… Where it is thought to be clear that there is a defence under the Limitation Acts, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed.

- STEPHENSON L.J.

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- I agree and desire only to add a few observations on the limitation point. There are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action. But in those cases it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out the plaintiffs' claim as frivolous and vexatious and an abuse of the process of the court, on the ground that it is statute-barred. Then the plaintiff and the court know that the Statute of Limitations will be pleaded; the defendant can, if necessary, file evidence to that effect; the plaintiff can file evidence of an acknowledgment or concealed fraud or any matter which may show the court that his claim is not vexatious or an abuse of process; and the court will be able to do, in I suspect most cases … strike out the claim and dismiss the action.

- That cannot be done here because the third party's summons alleged no reasonable cause of action only and an amendment would have given the second defendants the opportunity of meeting the plea of the statute with a plea of concealed fraud which has been raised in the plaintiffs' reply to the amended defence of the first defendants served shortly before the hearing of this appeal.

- The judge was clearly justified in not striking out the claim on the ground that the question whether the second defendants' claim was statute-barred should be decided after "a proper analysis of the damage suffered and full argument as to the law, both of which cannot occur without a trial." and the further possibility that there may be an answer to a plea of the statute in section 26 (b) of the Limitation Act 1939 makes it even plainer that the claim should not be struck out now.

Riches v DPP [1973] 2 AER 935 - Summary: Where on an application to strike out a claim as an abuse of the court's

process, a defendant is clearly going to rely on the Statute of Limitations, and there is nothing before the court to show that the plaintiff can escape from it, his claim will be struck out. Criminal proceedings were commenced by the DPP against R in 1963. In 1964 he was convicted and ordered to pay costs. In 1965 the conviction was quashed by the Court of Appeal. In 1972 R brought an action against the DPP for malicious prosecution. The action was struck out as being an abuse of the court's process and barred by the Statute of Limitations. On appeal, held (1) that the defendant clearly proposed to rely on the Statute of Limitations, there was nothing before the court to show that the plaintiff could escape from that, and the claim would be struck out; (2) that there was no ground for saying that because a prosecution had been instigated by the DPP, that there must have been reasonable and probable grounds.

Burstall v Beyfus [1884] 26 Ch D - Solicitors were joined as parties, though no reasonable causes of action could be shown

against them, for the purpose of costs or discovery

5c) O 18 r 19(1)(c). …. “it may prejudice, embarrass, or delay the fair trial of the action” - if, for e.g., it offends the rules of pleading,38 not clear how much is denied or

admitted.39

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Prejudice, embarrassment – if, for e.g., it o offends the rules of pleading – Per Brown LJ in Knowles v Roberts (1888) 38

ChD 263 on 270. o not clear how much is denied or admitted – British & Colonial Land Assn v

Foster [1887] 4 TLR 579 (can’t find)o Carpenter v Ebbewhite [1939] 1 KB 347 (joined insurance company to get

declaration to the effect that insurance company was liable to satisfy judgment).

Knowles v Roberts (1888) 38 ChD 263 - In an action to enforce the compromise of a former action brought in assertion of rights

of water, as to which disputes had arisen, Plaintiff will not be allowed, by setting out in his statement of claim the allegations as to his right and the corresponding liabilities of the Defendant which were contained in his former statement of claim, to relitigate the questions raised in the former action, and intended to have been finally disposed of by the compromise. Such allegations were accordingly ordered to be struck out under Order XIX., r. 27, as embarrassing and unnecessary…

Carpenter v Ebbewhite [1939] 1 KB 347 - The plaintiffs, having been injured in a collision between their motor bicycle and a

motor-car and alleging that their injuries were due to the negligence of the driver of the car, brought an action against the registered owner of the car, the driver thereof, and the insurers who had insured the registered owner and any person driving the car with his consent, claiming as against the registered owner and the driver damages for negligence, and as against the insurers a declaration that they were obliged to satisfy any judgment obtained by the plaintiffs against the other two defendants or either of them.

- The defendants made an application that the plaintiffs' claim as against the insurers should be struck out, and in support of the application they alleged and gave evidence that before the date of the collision the registered owner of the car had sold it to the driver:-

- Held, by the Court of Appeal (Greer, Slesser and MacKinnon L.JJ.), affirming an order of the Master and of the Judge at Chambers, that the application should be granted and the plaintiffs' claim for a declaration of liability against the insurers struck out;

- Per Greer L.J. on the ground that the Court had no power to make a declaration of the liability of the insurers to satisfy a judgment for the plaintiffs against the defendants where no actual dispute between the plaintiffs and the insurers as to that liability had as yet arisen or could arise before such judgment had been obtained;

- Per Slesser L.J. on the ground that to allow the plaintiffs to include in the action a claim against the insurers, and thus to disclose at the trial the fact that a defendant was insured, would in the circumstances "tend to prejudice, embarrass or delay the fair trial of the action" within the meaning of the Rules of the Supreme Court, Order XIX., r. 27.

5d) O 18 r 19(1)(d). “it is otherwise an abuse of the process of the Court”. - Res judicata. It has been held to mean whether there is any “improper use of judicial

machinery”.40 For e.g., where there are no facts to support the claim41, litigate again

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over an identical question which has already been decided against a party42 and joining solicitors to an unsustainable claim43.

- (Most common limb is limb a. lawyers may plead in the alternative. But the more limbs you plead, the more limbs u need to argue and support

o Def gets costs if he winso Plaintiff gets fixed costs to be paid forthwith if striking out action is

unsuccessful)

Abuse of the court – refers to a type of conduct which has been judicially acknowledged by the Courts as an abuse of the process of the court and one which is brought for a collateral purpose.

The Court will prevent the improper use of its machinery and will prevent the judicial process from being used as a means of vexation and oppression in the process of litigation: Castro v Murrey [1875] 10 Ex 213 (can’t find).

See also Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin (see excerpt in The Osprey above), - what constitutes abuse. Jeyaretnam J Benjamin v Lee Kuan Yew [2001] 4 SLR 1 – delay did not amount to abuse of process.

JBJ v. Lee Kuan Yew [2001] 4 SLR 1 The respondent (‘LKY’), and several others, separately sued the appellant (‘JBJ’) for

defamation (respectively, ‘the present action’ and ‘Suit 225/97’). Suit 225/97 was heard first, and judgment was reserved. LKY, but not JBJ, indicated that he agreed to be bound by the court’s determination in Suit 225/97 as to the meaning of the defamatory words.

Both parties in Suit 225/97 appealed against the judge’s decision. After the Court of Appeal gave its decision on 17 July 1998, LKY took no further steps or proceedings for some two years and four months. On 7 December 2000, LKY’s solicitor wrote to JBJ’s solicitor asking if JBJ agreed with the Court of Appeal’s determination of the meaning of the words, to which no reply was received. On 14 December 2000, LKY filed an application under O 14 r 12 of the Rules of Court for an order that the meaning of the defamatory words in the present action was that as found by the Court of Appeal (‘LKY’s application’). JBJ then applied to strike out the present action for want of prosecution, which was dismissed by both the senior assistant registrar and the High Court. He appealed.

Held, dismissing the appeal: (3) An action would be struck out or dismissed for want of

prosecution where – (a) the plaintiff’s default had been intentional and contumelious, (b) there had been inordinate and inexcusable delay on the plaintiff’s or his lawyer’s part giving rise to a substantial risk that a fair trial was impossible or that the defendant would suffer serious prejudice; or (c) there had been an abuse of court process, such as wholesale disregard of the rules of court or court procedure; if so, it was unnecessary to consider whether the limitation period had expired, or for the defendant to invoke either limb of the principles laid down in Birkett v James.

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(4) An action would not normally be struck out for inordinate and inexcusable delay if the limitation period applicable to the action had not expired and fresh proceedings for the same cause of action could still be brought as the fresh proceedings would simply cause more expense and delay.

(5) Although LKY should have, but did not, applied for a fresh date for the trial of the present action, such default or inaction was not contumelious conduct. Further, the absence of explanation as to why no action was taken did not give rise to an inference of such conduct. There was no evidence that – (a) LKY’s conduct was intentional and contumelious, or (b) he had disobeyed any court order or procedure or rules of court, and neither did JBJ show that LKY had acted in such a way.

(6) LKY’s delay was inordinate and inexcusable as it was long and no reason or explanation was given as to why no application was made for a fresh trial date.

(7) LKY’s delay did not give rise to a substantial risk that a fair trial was impossible or that serious prejudice would be caused to JBJ. In contesting the present action, none of JBJ’s defences would be prejudiced by the delay, nor would it prejudice a fair trial of any of the issues involved. The unavailability of the particular Queen’s Counsel sought by JBJ did not amount to prejudice as he could have engaged other Queen’s Counsels to represent him. Furthermore, the delay was not an abuse of court process as there was no breach of, or non-compliance with any court order, or procedure, or rules of court.

(8) Even if LKY’s action was struck out, he could bring fresh proceedings based on the same cause of action as the limitation period in the present action had not expired. Hence, striking out would be of no benefit to JBJ and would only result in further costs and expenses being incurred.

Per Curiam Deliberate failure to comply with an order of court, or a series of separate inordinate

and inexcusable delays in complete disregard of the rules of court and with full awareness of the consequences, amounted to contumelious conduct. Such conduct also involved an element of scorn and intentional disregard of the rules of court or a court order.

For e.g., where there are no facts to support the claim

Steamship Mutual Assn Ltd v Trollope & Colls (City) Ltd , 33 BLR 77 - Abstract: P employed D1 as contractors, D2 as architects and D5 as structural engineers

in connection with the construction of an office block. The works were completed in 1975. In 1977 and 1981 problems appeared in the air-conditioning system. In 1982 P issued a writ and seven months later served a statement of claim on all the Ds except D5. In 1985 defects in the walls of the building appeared, unrelated to the air-conditioning defect. In June 1985 notice of intent to proceed was served on D5 who applied for the action against them to be dismissed for want of prosecution. P applied for leave to amend the statement of claim served against the other Ds to plead the wall defects.

- Summary: Held, that (1) the action against D5 should be struck out pursuant Rules of the Supreme Court Order 18, r. 19 as abuse of the process since a writ should not be

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issued against a party when it is not intended to serve a statement of claim against them but where the writ is issued only to protect the position.

Or e.g. litigate again over an identical question which has already been decided against a party – Stephenson v Garrett [1898] 1 QB 677, joining solicitors to an unsustainable claim – Goh Koon Suan v Heng Gek Kian & Ors [1991] 2 MLJ 307; Grovit & Ors v Doctor & Ors [1997] 1 WLR 640 (striking out case brought in abuse of process).

Stephenson v Garrett [1898] 1 QB 677 In an action in a county court judgment was recovered for a sum of money and costs,

but before the costs were taxed the plaintiff agreed, on a representation of the poverty of the defendant, to accept a smaller sum than that for which judgment had been given, and executed a deed releasing the defendant from the judgment debt and costs. Subsequently the plaintiff carried in his bill of costs, and applied to the county court judge for an order to tax, upon the ground that the release had been obtained by misrepresentation. The judge, after hearing evidence, found that the execution of the deed had been obtained by misrepresentation, and made an order that the costs should be taxed, and should be paid together with the balance remaining due under the judgment. The defendant in that action thereupon brought the present action in the High Court for a declaration that he had been released from the judgment debt and costs, and for an injunction to restrain further proceedings to enforce payment thereof:

Held, that as the question raised in this action was identical with that decided by the county court judge upon the interlocutory application, and had been decided by a court of competent jurisdiction, the action ought to be stayed as frivolous and vexatious and an abuse of the process of the Court.

Goh Koon Suan v Heng Gek Kian & Ors [1991] 2 MLJ 307 Held - A proceeding was vexatious when the party bringing it was not acting bona fide

and merely wished to annoy or embarrass his opponent or when it was not calculated to lead to any practical result. Abuse of the process of the court was a term generally applied to a proceeding which was wanting in bona fides and was frivolous, vexatious or oppressive. In the instant case, the plaintiff`s action against the second to fifth defendants was: (a) unsustainable and could not possibly hope to achieve any result; (b) not instituted in good faith as the plaintiff`s solicitors knew that the second to fifth defendants had to hand over the 10% deposit and sale proceeds to their client; (c) in the opinion of the court, meant to embarrass the second to fifth defendants.

Grovit & Ors v Doctor & Ors [1997] 1 WLR 640 Abstract: G appealed against the dismissal of his appeal against a decision that his libel

writ and statement of claim should be struck out for want of prosecution on the grounds that G had no intention of bringing the litigation to a conclusion. G contended that his conduct did not amount to an abuse of process under the first limb of the test in Birkett v James [1978] A.C. 297 and that, whilst there had been inordinate and inexcusable delay, no serious prejudice had been caused to the defendant so as to satisfy the second limb of the test.

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Summary: Held, dismissing the appeal, that abuse of process was by itself a ground for striking out or staying proceedings which operated independently of the first limb of the test in Birkett. The requirement in the second limb of the test that the delay must cause serious prejudice to the defendant had been the subject of criticism, but until new rules were introduced it might be preferable not to impinge on the principles laid down in Birkett. In the meantime, both defendants and the court had the means to deal with delay, through the use of peremptory orders and unless orders. On the facts, the Court of Appeal had been entitled to conclude that the reason for G's inactivity was that he did not intend to pursue the proceedings, and such conduct constituted an abuse of process.

White Book, para 18/19/17.

- Whether amendment of pleadings to be disregarded – if after close, then disregarded. Take orig close of pleadings and disregard any pleadings that happened after close.

- If amendment happened before close of pleadings, then counting of 28 dyas fr close must include amendment. No close of pleadings yet. Factor in whatever amendments that happened.

(E) DISCONTINUANCE AND WITHDRAWAL– ORDER 21

Withdrawal of Appearance- A party who has entered an appearance in an action may withdraw the appearance at

any time with the leave of the Court. See Order 21, rule l.

Withdrawal of appearance (O. 21, r. 1)1. A party who has entered an appearance in an action may withdraw the appearance at any time with the leave of the Court.

- However, withdrawal of appearance usually applies to an appearance entered by mistake or accident but not otherwise. –

Somportex v Philadelphia Chewing Gum Co [1968] 3 AER 26. - Summary: Leave to withdraw a conditional appearance will not be granted to a

party who, upon proper legal advice and without mistake, has entered such an appearance and has failed in an attempt to set aside the writ. A Co (an English company) issued a writ against B Co (an American company) claiming damages for breach of contract, and leave was obtained to serve notice of the writ out of the jurisdiction. B Co, acting upon the advice of London solicitors, entered a conditional appearance under the Rules of the Supreme Court Ord. 12, r. 7; it was deposed on behalf of B Co that this was done purely on a tentative basis and without prejudice to B Co's right to contest the jurisdiction of the English court. B Co issued a summons for the setting aside of the writ; this was dismissed but the judge granted B Co leave to withdraw their conditional appearance under RSC, Ord. 21, r. 1.

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- On appeal by A Co against the judge's grant of leave, held, allowing the appeal, that leave ought not to be granted.

Discontinuance of an action1. Without leave.

Discontinuance of action, etc., without leave (O. 21, r. 2)2. —(1) The plaintiff in an action begun by writ may, without the leave of the Court, discontinue the action, or withdraw any particular claim made by him therein, as against all or any of the defendants at any time not later than 14 days after service of the defence on him or, if there are 2 or more defendants, of the defence last served, by serving a notice in Form 30 to that effect on the defendant concerned. (2) A defendant may, without the leave of the Court — (a) withdraw his defence or any part of it at any time; (b) discontinue a counterclaim, or withdraw any particular claim made by him therein, as against all or any of the parties against whom it is made, at any time not later than 14 days after service on him of a defence to counterclaim or, if the counterclaim is made against 2 or more parties, of the defence to counterclaim last served, by serving a notice in Form 30 to that effect on the plaintiff or other party concerned. (3) Where there are 2 or more defendants to an action not all of whom serve a defence on the plaintiff, and the period fixed under these Rules for service by any of those defendants of his defence expires after the latest date on which any other defendant serves his defence, paragraph (1) shall have effect as if the reference therein to the service of the defence last served were a reference to the expiration of that period. This paragraph shall apply in relation to a counterclaim as it applies in relation to an action with the substitution for references to a defence, to the plaintiff and to paragraph (1), of references to a defence to counterclaim, to the defendant and to paragraph (2) respectively. (4) If all the parties to an action consent, the action may be withdrawn without the leave of the Court at any time before trial by producing to the Registrar a written consent to the action being withdrawn signed by all the parties. (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) Subject to paragraph (6A), if no party to an action or a cause or matter has, for more than one year (or such extended period as the Court may allow under paragraph (6B)), taken any step or proceeding in the action, cause or matter that appears from records maintained by the Court, the action, cause or matter is deemed to have been discontinued. (6A) Paragraph (6) shall not apply where the action, cause or matter has been stayed pursuant to an order of court. (6B) The Court may, on an application by any party made before the one year referred to in paragraph (6) has elapsed, extend the time to such extent as it may think fit.

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(7) Paragraph (6) shall apply to an action, a cause or a matter, whether it commenced before, on or after 15th December 1999, but where the last proceeding in the action, cause or matter took place before 1st January 2000, the period of one year shall only begin on 1st January 2000. (8) Where an action, a cause or a matter has been discontinued under paragraph (5) or (6), the Court may, on application, reinstate the action, cause or matter, and allow it to proceed on such terms as it thinks just.

- 21, r 2 allows discontinuance of action begun by writ or any claim therein without leave of court if it is discontinued not later than 14 days after service of defence. – file notice of discontinuance good enough

- Under rule 2(2)(a), a defendant can without leave withdraw defence at any time. The party seeking to discontinue should file Form 36 with costs implications under O 59 r 10(1) read with O 59 r 3. O 21, r 2(4) allows parties at any time before trial to produce before the Registrar a copy of the written consent of all parties to discontinue.

- NB: Equally applies to a Counterclaim.- Order 21, rule 2(2) - The DEFENDANT may, without leave of Court:

- Withdraw his defence at any time (rule 2(2)(a))- Discontinue a counterclaim, or withdraw any claim, at any time no later than

14 days after service of the defence.- The defendant must serve notice in Form 30 The party seeking to discontinue should file form 30 with cost implications under O 59

r 10 (1) read with O 59 r 3.

When a party may sign judgment for costs without an order (O. 59, r. 10)10. —(1) Where — (a) a plaintiff by notice in writing and without leave either wholly discontinues his action against any defendant or withdraws any particular claim made by him therein against any defendant; or (b) an action, a cause or matter is deemed discontinued, the defendant may, unless the Court otherwise orders, tax his costs of the action, cause or matter and if the taxed costs are not paid within 4 days after taxation, may sign judgment for them. The reference to a defendant in this paragraph shall be construed as a reference to the person (howsoever described) who is in the position of defendant in the proceeding in question, including a proceeding on a counterclaim.

When costs to follow the event (O. 59, r. 3)3. —(1) Subject to the following provisions of this Order, no party shall be entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the Court. (2) If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.

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(3) The costs of and occasioned by any amendment made without leave in the writ of summons or any pleadings shall be borne by the party making the amendment, unless the Court otherwise orders. (4) The costs of and occasioned by any application to extend the time fixed by these Rules, or any direction or order thereunder, for serving or filing any document or doing any other act (including the costs of any order made on the application) shall be borne by the party making the application, unless the Court otherwise orders. (5) If a party on whom a notice to admit facts is served under Order 27, Rule 2, refuses or neglects to admit the facts within 14 days after the service on him of the notice or such longer time as may be allowed by the Court, the costs of proving the facts shall be paid by him, unless the Court otherwise orders. (6) If a party — (a) on whom a list of documents is served in pursuance of any provision of Order 24; or (b) on whom a notice to admit documents is served under Order 27, Rule 5, gives notice of non-admission of any of the documents in accordance with Order 27, Rule 4 (2) or 5 (2), as the case may be, the costs of proving that document shall be paid by him, unless the Court otherwise orders. (7) Where a defendant by notice in writing and without leave discontinues his counterclaim against any party or withdraws any particular claim made by him therein against any party, that party shall, unless the Court otherwise directs, be entitled to his costs of the counterclaim or his costs occasioned by the claim withdrawn, as the case may be, incurred to the time of receipt of the notice of discontinuance or withdrawal. (8) Where a plaintiff accepts money paid into Court by a defendant who counterclaimed against him, then, if the notice of payment given by that defendant stated that he had taken into account and satisfied the cause of action or, as the case may be, all the causes of action in respect of which he counterclaimed, that defendant shall, unless the Court otherwise directs, be entitled to his costs of the counterclaim incurred to the time of receipt of the notice of acceptance by the plaintiff of the money paid into Court. (9) Where any person claiming to be a creditor comes in to prove his title, debt or claim in relation to a company in pursuance of any such notice as is mentioned in Order 88, Rule 10, he shall, if his claim succeeds, be entitled to his costs incurred in establishing it, unless the Court otherwise directs, and, if his claim or any part thereof fails, may be ordered to pay the costs of any person incurred in opposing it. (10) Where a claimant is entitled to costs under paragraph (9), the amount of the costs shall be fixed by the Court unless it thinks fit to direct taxation and the amount fixed or allowed shall be added to the claimant’s debt.

Order 21, rule 2(4): deals with Withdrawn by Consent by both parties – The Rule states that if all parties to an action consent, the action may be withdrawn without leave of the Court at any time before trial by producing to the Registrar a written consent of all parties.

2. With leave. - Where it does not fall under rule 2 (O 21 r 3(1)), for e.g., other originating processes,

leave is required. - The application is by SIC (O 21 r 3(2)).

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Discontinuance of action, etc., with leave (O. 21, r. 3)3. —(1) Except as provided by Rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counterclaim, or withdraw any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against all or any of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just. (2) An application for the grant of leave under this Rule may be made by summons.

- The court on hearing such summons will make an order “on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.”

Rohde & Liesenfeld v Jorg Geselle & Ors [1998] 3 SLR 772. - Held: Order 21, rule 3(1) conferred on the court a wide discretion to order that the

action or claim be discontinued on such terms as it thought just. - The Court would normally grant leave if no injustice was caused to the defendant and

he was not deprived of some advantage which he had already gained in the litigation. - The court would be ready to grant him adequate protection to ensure that any advantage

he had gained was preserved. In granting leave to withdraw a claim with or without condition, public interest, where appropriate, would also be considered.

- If plaintiff pays costs, def takes next step – he is entitled to ask for taxed costs on standard basis (p and p costs). If no agreement bet plaintiff and def, take out bill of costs – send to taxing registrar for taxation etc

3. Miscellaneous.- • 21 r 3 (Court may order costs against party discontinuing).- Order 21, rule 2(5) – An action is deemed to have been discontinued if the

memorandum of service has not been filed; memorandum of appearance has not been filed; and no judgment has been entered, with the usual costs implications under O 59 r 10(l)(b).

def can then apply for plaintiff to pay costs exception: Action has been stayed by court (r 2(6A)). Affected parties can apply

to extend time (r 2(6B)).- Order 21, rule 2(6) – An action is deemed to have been discontinued if no party to

the action has, for more than one year, taken any steps or proceedings in the action with the usual costs implications under O 59 r 10(l)(b). Exception: Action has been stayed by court (r 2(6A)). Affected parties can apply to extend time (r 2(6B)).

4. effect of discontinuance- 21 r 4 (the fact of discontinuance is no defence to a subsequent action unless the Court

otherwise orders). Note that discontn does not affect merits of the case

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Discontinuance is just procedural, not substantive. Plus at discontinuance he is given costs and therefore he doesn’t lose out.

Effect of discontinuance (O. 21, r. 4)4. Subject to any terms imposed by the Court in granting leave under Rule 3, the fact that a party has discontinued or is deemed to have discontinued an action or counterclaim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same, cause of action.

- 21 r 5 (stay of subsequent proceedings if costs of first action not paid).

Stay of subsequent action until costs paid (O. 21, r. 5)5. —(1) Where a party has discontinued or is deemed to have discontinued an action or counterclaim or withdrawn any particular claim made by him therein and he is liable to pay any other party’s costs of the action or counterclaim or the costs occasioned to any other party by the claim withdrawn, then, if before payment of those costs, he subsequently brings an action for the same, or substantially the same, cause of action, the Court may order the proceedings in that action to be stayed until those costs are paid. (2) An application for an order under this Rule may be made by summons or by notice under Order 25, Rule 7.

- 21 r 6 (all SICs need leave of Court to be withdrawn).

Withdrawal of summons (O. 21, r. 6)6. A party who has taken out a summons in a cause or matter may not withdraw it without the leave of the Court.

(F) PAYMENT INTO COURT - white elephant. Rare in practice- Confined to Defendant only - Rarely used now after the introduction of Order 22A

Offer to Settle- Helps to minimise your costs risk and your damages risk. But see cost benefit under

Order 22A

1. Object. - An offer to dispose of the claim on terms.

A. Martin French v Kingswood Hill Ltd [1961] 1 QB 96 on 103 and Yip Kok Meng Calvin v Lek Kan [1993] 2 SLR 134, 142 . - Devlin LJ - A payment into court is simply an offer to dispose of the claim on

terms. If the defendant were free to formulate the terms himself, he could make his offer in whatever form he liked. He could offer either to settle the claim less the set-off, or he could offer to settle the claim by itself, leaving the set-off alive to form the subject of a counterclaim or another action. But if he seeks to effect his compromise

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under the rules which permit a payment into court, he must make his offer according to the rules. So the answer to the question must be sought by ascertaining and construing the terms of the rule under which the payment into court is made. That means construing R.S.C., Ord. 22, r. 1 (1), for that rule not only provides for payment in but also prescribes the form of words that must be used in the notice of payment in. The form of words used, and which had to be used in this case, is: The defendants "say that that sum ... is enough to satisfy the plaintiff's claim." The plaintiff's claim cannot be affected by the amount of the set-off. What he recovers may be, but not, unless he admits the set-off, what he claims. The defendant, when he pays into court in these terms, is not therefore paying in such sum as he thinks the plaintiff may be likely to recover at the end of the day, but a sum to satisfy the plaintiff's claim as it then stands. Ord. 22, r. 5, makes provision for the plaintiff paying in against the counterclaim, if he wants to, but there is no provision for balancing one against the other.

Yip Kok Meng Calvin v Lek Kan [1993] 2 SLR 134 - Held - Whilst it was technically correct that a claim for interest was not a ‘cause of

action’ within the meaning of O 22 r1(1), the court was not obliged to disregard the monetary value of an interest award which all parties were aware would, in all probability, be made but could justifiably take the same into account when considering how its discretion should be exercised.

- Important parts of the case- 31 It is commonplace that the judicial exercise of a discretion requires the court to take

into account relevant matters and to ignore irrelevant matters. Where the defendant has made a payment in under O 22 r 1, the relevant matter to be considered is the amount paid in as compared with the amount eventually awarded. Up till 1986 when the court’s practice in relation to the award of interest changed, the amount adjudged in a running down action as due to the plaintiff was only the amount assessed as special and general damages. That was the aggregate which had to be weighed against the quantum paid in.

- 32       The position now is entirely different. It is usual for a successful plaintiff in a running down case to be awarded interest on the amount of his damages from the date of the writ up to the date of judgment. The award is made to compensate the plaintiff for having been kept out of his money. Defendants and, even more, their solicitors are aware of this situation. They know that unless they can show special circumstances, for example, unreasonable and unjustified delay on the part of the plaintiff in prosecuting the action, such interest will be awarded almost as a matter of course. This knowledge was demonstrated in the present action when counsel for the defence, quite rightly, did not even attempt to argue against the award of interest in favour of the plaintiff.

- 33   The payment-in procedure was instituted to provide a method of resolving the dispute between the parties without recourse to the delay and expense of a trial. It enables the defendant, by paying into court the amount which the defendant reasonably estimates would be awarded to the plaintiff at the trial, to put the plaintiff at the risk of incurring costs. My opinion is that a defendant would not, in the present regime, be acting reasonably if in estimating the amount recoverable by the plaintiff in a running down action he did not include interest calculated at the rates usually adjudged by the court. Such interest calculation need, however, be made only for the period ending with the date of the payment in as, if the plaintiff accepts the money, his action would end

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then and no further interest would accrue. In my view it is, therefore, entirely relevant for the court in assessing the difference, if any, between the amount paid in by the defendant and that awarded to the plaintiff, to take into account the interest that would have been payable to the plaintiff had the award for damages been made on the date of payment in.

- 34       The English have dealt with this problem in a different way. In the English O22 r 1 there is an additional para 8 which does not appear in the Singapore O22 r 1. The English paragraph reads:

- 8    For purposes of the this rule, the plaintiff’s cause of action in respect of a debt or damages shall be construed as a cause of action, in respect also of such interest as might be included in the judgment, whether under s 25(A) of the Act or otherwise if judgment were given at the date of the payment into Court.

- 35       In its commentary on the above at para 22/1/11 the White Book states: Paragraph (8) was introduced primarily to counteract the ruling in Jefford v Gee … that a claim for interest … was not in itself ‘a cause of action’ and formed no part of the debt or damages claimed, so that a defendant making a payment into court in satisfaction under R 1, did not need to include any additional sum to cover the interest which may be awarded by the trial judge in respect of the period prior to the payment into court … Under this provision [the new para (8)], the defendant of course is not bound to pay into court any sum in respect of interest, but if he fails to do so and if an award of interest is eventually made he will be at risk on the question of costs, having paid into court an inadequate sum … The operation of para (8) will have the effect that the trial judge may have to make a special calculation of interest at the end of the trial for the purpose of deciding whether the payment into court was adequate at the time it was made in order to determine what order for costs should be made.

- 36       Whilst it is technically correct that a claim for interest is not ‘a cause of action’ within the meaning of O 22 r 1(1), in my opinion that is not the end of the matter. The discretion given to the court enables it to recognize and give effect to shifts in judicial and legal philosophy and practice. In my judgment the court is not obliged to disregard the monetary value of an interest award which all parties were aware would, in all probability, be made but can justifiably take the same into account when considering how its discretion should be exercised.

2. effect - There is no admission on the merits and no estoppel is created. - The payment in to settle should not be pleaded, unlike defence of tender before action,

and must not be communicated to the court until liability and damages have been decided (O 22 r 7).

Non-disclosure of payment into Court (O. 22, r. 7)7. Except in an action to which a defence of tender before action is pleaded, and except in an action all further proceedings in which are stayed by virtue of Rule 3 (4) after the trial or hearing has begun, the fact that money has been paid into Court under Rules 1 to 6 shall not be pleaded and no communication of that fact shall be made to the Court at the trial or hearing of the action or counterclaim or of any question or issue as to the debt or

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damages until all questions of liability and of the amount of debt or damages have been decided.

- This Order applies to applies to actions for “debt or damages” only (O 22 r 1(1)) and not to actions for account. – Nichols v Evens [1883] 22 Ch D 611. For other actions (e.g. injunction) can use Calderbank letters i.e. “without prejudice save as to costs” letters (Calderbank v Calderbank [1975] 3 AER 333; Computer Machinery Co Ltd v Drescher [1983] 3 AER 153; Cutts v Head [1984] 1 AER 597. White Book para 22/1/6.

- An incentive for the defendant to make payment into court to settle is probably to minimise his exposure to costs.

Nichols v Evens [1883] 22 Ch D 611 - Fry J - In my judgment that order applies, as is shewn by rule 1, only to a case in which

the Plaintiff is strictly seeking to recover a debt or damages, where the whole demand applies to money. If the Plaintiff seeks an account it is impossible to satisfy that demand by any specific payment of money.

Computer Machinery Co Ltd v Drescher [1983] 3 AER 153 - Per curiam: in any proceedings where a defendant makes an offer to submit to an

injunction, give an undertaking or afford any other relief "without prejudice" or "without prejudice save as to costs" the court ought to enforce the terms on which the offer is made in order to encourage compromises and shorten litigation; and an offer "without prejudice save as to costs" has the advantage of preventing the offer from being inadmissible on costs, thereby assisting the court towards justice in making the order as to costs, especially where relief other than money is sought (dictum of Cairns L.J. in Calderbank v. Calderbank [1976] Fam. 93 followed).

Cutts v Head [1984] 1 AER 597 - Summary: "Without prejudice" letters written in an attempt to settle an action are

admissible at the end of the case on the question of costs (Calderbank v. Calderbank [1976] Fam. 93 applies).

3. Procedure.

Payment into Court (O. 22, r. 1)1. —(1) In any action for a debt or damages any defendant may at any time after he has entered an appearance in the action pay into Court a sum of money in satisfaction of the cause of action in respect of which the plaintiff claims or, where 2 or more causes of action are joined in the action, a sum or sums of money in satisfaction of all or any of those causes of action. (2) On making any payment into Court under this Rule, and on increasing any such payment already made, the defendant must give notice thereof in Form 31 to the plaintiff and every other defendant (if any); and within 3 days after receiving the notice the plaintiff must send the defendant a written acknowledgment of its receipt. (3) A defendant may, without leave, give notice of an increase in a payment made under this Rule but, subject to that and without prejudice to paragraph (5), a notice of payment

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may not be withdrawn or amended without the leave of the Court which may be granted on such terms as may be just. (4) Where 2 or more causes of action are joined in the action and money is paid into Court under this Rule in respect of all, or some only of, those causes of action, the notice of payment — (a) must state that the money is paid in respect of all those causes of action or, as the case may be, must specify the cause or causes of action in respect of which the payment is made; and (b) where the defendant makes separate payments in respect of each, or any 2 or more, of those causes of action, must specify the sum paid in respect of that cause or, as the case may be, those causes of action. (5) Where a single sum of money is paid into Court under this Rule in respect of 2 or more causes of action, then, if it appears to the Court that the plaintiff is embarrassed by the payment, the Court may, subject to paragraph (6), order the defendant to amend the notice of payment so as to specify the sum paid in respect of each cause of action. (6) Where a cause of action under section 10 of the Civil Law Act (Chapter 43) and a cause of action under section 20 of that Act are joined in an action, with or without any other cause of action, the causes of action under those sections shall, for the purpose of paragraph (5), be treated as one cause of action. (7) For the purposes of this Rule, the plaintiff’s cause of action in respect of a debt or damages shall be construed as a cause of action in respect, also, of such interest as might be included in the judgment, if judgment were given at the date of the payment into Court.

Defendant may at any time after he has entered an appearance in the action pay into court. See O 22 rr 1 to 8.

- Order 22 r 1(1) - The defendant must have entered an appearance in the action

Order 22, rule 1(1) (“debt or damages”, “after he has entered appearance”, “pay into Court”).

Order 22, rule 1(2) (Form 37 - notice of payment in or increase of such payment in).

Order 22, rule 1(4) (must specify in respect of which cause of action it is paid in).

Order 22, rule 1(5) (if don’t state and thereby embarrass plaintiff, Court can order notice to be amended so as to specify).

Order 22, rule 2 (if defendant counterclaims, must state whether payment in takes counterclaim into consideration).

Order 22, rule 3(1) (plaintiff can accept within 14 days after notice of payment in or last notice - Form 32 Notice to every defendant NB: must be before trial or hearing begins).

Order 22, rule 3(2) (after trial or hearing has begun, payment into Court or such increase must be accepted within 2 days after receipt of notice of payment in).

Order 22, rule 3(4) (upon acceptance, action stayed). Order 22, rule 3(6) (subject to rules 4 and 10 and Order 76, rule l2, entitled

toreceive payment of that sum).

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Order 22, rule 5 (if not accepted in accordance with rule 3 i.e. not within 14 day or 2 day time-frames, need Order of Court to pay out money in Court).

Order 22, rule 4 (generally need leave of court to pay out money) Order 22, rule 8 (paid in pursuant to an Order of Court, must obtain Order of

Court to pay out) Order22, rule 1(5) - if don’t state and thereby embarrass plaintiff, Court can

order notice to be amended so as to specify. Within 3 days of receiving the notice, the Plaintiff must send the defendant a

written acknowledgement of its receipt.

Payment in by defendant who has counterclaim – Order 22, rule 2 Order 22, rule 2 - If the defendant has made a counterclaim against the

plaintiff for a debt or damages, and he pays money into Court under Order 22, the notice of payment must specify whether the payment into Court has taken into account the counterclaim

Payment in by defendant who has counterclaimed (O. 22, r. 2)2. Where a defendant, who makes by counterclaim a claim against the plaintiff for a debt or damages, pays a sum of money into Court under Rule 1, the notice of payment must state, if it be the case, that in making the payment the defendant has taken into account and intends to satisfy — (a) the cause of action in respect of which he claims; or (b) where 2 or more causes of action are joined in the counterclaim, all those causes of action or, if not all, which of them.

Acceptance of the Money paid into Court – Order 22, rule 3 Order 22, rule 3(1) - If before trial or hearing begins - The Plaintiff can accept

money within 14 days after notice of payment or last notice by giving notice in Form 38 to every defendant to the action before trial or hearing begins.

Order 22, rule 3(2) - If after trial or hearing has begun – payment into Court or such increase must be accepted within 2 days after receipt of notice of payment in before the Judge begins to deliver judgment

Order 22, rule 3(4) - Upon the plaintiff’s acceptance of the payment into Court, all further proceedings in the action shall be stayed.

Order 22, rule 3(6) – (subject to rules 4 and 10 and Order 76, rule 12, entitled to receive payment of that sum).

Order 22, rule 5 – (if not accepted in accordance with rule 3 i.e. not within 14 day or 2 day time-frames, need Order of Court to pay out money in Court).

Acceptance of money paid into Court (O. 22, r. 3)3. —(1) Where money is paid into Court under Rule 1, then subject to paragraph (2), within 14 days after receipt of the notice of payment or, where more than one payment has been made or the notice has been amended, within 14 days after receipt of the notice of the last payment or the amended notice but, in any case, before the trial or hearing of the action begins, the plaintiff may —

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(a) where the money was paid in respect of the cause of action or all the causes of action in respect of which he claims, accept the money in satisfaction of that cause of action or those causes of action, as the case may be; or (b) where the money was paid in respect of some only of the causes of action in respect of which he claims, accept in satisfaction of any such cause or causes of action the sum specified in respect of that cause or those causes of action in the notice of payment, by giving notice in Form 32 to every defendant to the action. (2) Where after the trial or hearing of an action has begun — (a) money is paid into Court under Rule 1; or (b) money in Court is increased by a further payment into Court under that Rule, the plaintiff may accept the money in accordance with paragraph (1) within 2 days after receipt of the notice of payment or notice of the further payment, as the case may be, but, in any case, before the Judge begins to deliver judgment. (3) Rule 1 (5) shall not apply in relation to money paid into Court in an action after the trial or hearing of the action has begun. (4) On the plaintiff accepting any money paid into Court all further proceedings in the action or in respect of the specified cause or causes of action, as the case may be, to which the acceptance relates, both against the defendant making the payment and against any other defendant sued jointly with or in the alternative to him shall be stayed. (5) Where money is paid into Court by a defendant who made a counterclaim and the notice of payment stated, in relation to any sum so paid, that in making the payment the defendant had taken into account and satisfied the cause or causes of action, or the specified cause or causes of action in respect of which he claimed, then, on the plaintiff accepting that sum, all further proceedings on the counterclaim or in respect of the specified cause or causes of action, as the case may be, against the plaintiff shall be stayed. (6) A plaintiff who has accepted any sum paid into Court shall, subject to Rules 4 and 10 and Order 76, Rule 12, be entitled to receive payment of that sum in satisfaction of the cause or causes of action to which the acceptance relates.

Money remaining in Court (O. 22, r. 5)5. If any money paid into Court in an action is not accepted in accordance with Rule 3, the money remaining in Court shall not be paid out except in pursuance of an order of the Court which may be made at any time before, at or after the trial or hearing of the action; and where such an order is made before the trial or hearing the money shall not be paid out except in satisfaction of the cause or causes of action in respect of which it was paid in.

Order 22, rule 4 – rule 4(1)(a) read with rule 4(2), generally need leave of court to pay out

money unless plaintiff discontinues the action and obtains consent of those defendants who did not pay the money in.

Order 22, rules 4(l)(b) and (c) – (need Order of Court to pay out money).

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Order for payment out of money accepted required in certain cases (O. 22, r. 4)4. —(1) Where a plaintiff accepts any sum paid into Court and that sum was paid into Court — (a) by some but not all of the defendants sued jointly or in the alternative by him; (b) with a defence of tender before action; or (c) in satisfaction either of causes of action arising under sections 10 and 20 of the Civil Law Act (Chapter 43) or of a cause of action arising under the said section 20 where more than one person is entitled to the money, the money in Court shall not be paid out except under paragraph (2) or in pursuance of an order of the Court, and the order shall deal with the whole costs of the action or of the cause of action to which the payment relates, as the case may be. (2) Where an order of the Court is required under paragraph (1) by reason only of paragraph (1) (a), then, if, either before or after accepting the money paid into Court by some only of the defendants sued jointly or in the alternative by him, the plaintiff discontinues the action against all other defendants and those defendants consent in writing to the payment out of that sum, it may be paid out without an order of the Court. (3) Where after the trial or hearing of an action has begun a plaintiff accepts any money paid into Court and all further proceedings in the action or in respect of the specified cause or causes of action, as the case may be, to which the acceptance relates are stayed by virtue of Rule 3 (4) then, notwithstanding anything in paragraph (2), the money shall not be paid out except in pursuance of an order of the Court, and the order shall deal with the whole costs of the action.

Order 22, rule 8 – (paid in pursuant to an Order of Court, must obtain Order of Court to pay out)

Money paid into Court under order of Court (O. 22, r. 8)8. —(1) Subject to paragraph (2), money paid into Court under an order of the Court or a certificate of the Registrar shall not be paid out except in pursuance of an order of the Court. (2) Unless the Court otherwise orders, a party who has paid money into Court in pursuance of an order made under Order 14 — (a) may by notice to the other party appropriate the whole or any part of the money and any additional payment, if necessary, to any particular claim made in the writ or counterclaim, as the case may be, and specified in the notice; or (b) if he pleads a tender, may by his pleading appropriate the whole or any part of the money as payment into Court of the money alleged to have been tendered, and money appropriated in accordance with this Rule shall be deemed to be money paid into Court in accordance with Rule 1 or money paid into Court with a plea of tender, as the case may be, and this Order shall apply accordingly.

4. Costs. - Order 59, rule 10(2) and Order 59, rule 3. - After 4 days from payment out and unless the Court otherwise orders, plaintiff may tax

his costs incurred to the time of receipt of the notice of payment into Court and 48 hours after taxation may sign udgment for his taxed costs.48

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- See O 22 r 1(7) on the inclusion of interest in the payment into court.49

When a party may sign judgment for costs without an order (O. 59, r. 10)10. (2) If a plaintiff accepts money paid into Court in satisfaction of the cause of action, or all the causes of action, in respect of which he claims, or if he accepts a sum or sums paid in respect of one or more specified causes of action and gives notice that he abandons the others, then subject to paragraph (4), he may, after 4 days from payment out and unless the Court otherwise orders, tax his costs incurred to the time of receipt of the notice of payment into Court and 48 hours after taxation may sign judgment for his taxed costs.

- For examples, see Findlay v Railway Executive [1950] 2 AER 969, Wagman v Vare Motors Pte Ltd [1959] 1 WLR 853 and Roache v News Group Newspaper Ltd & Other, Times, 23rd November 1992.

Findlay v Railway Executive [1950] 2 AER 969 - Summary: A defendant who has paid money into Court which has not been taken out

and exceeds the sum awarded to the plaintiff is a successful litigant or a successful party, who, in the absence of special circumstances, should receive his costs. Per Cohen, L.J.: "I think it could only be [right to make the defendants pay the costs after the date of payment in] where there was something in the conduct of the defendants which justified the plaintiff in proceeding to trial". The defendants admitted liability in proceedings brought by the plaintiff in respect of injuries suffered by him in a railway accident. They paid GBP 920 into Court. That money was not taken out of Court. At the trial Byrne, J., awarded the plaintiff GBP 867 5s. 1d. damages and gave him the costs. Held, on appeal, as the defendants were the successful litigants or parties, and as there were no circumstances entitling the Judge to deprive the successful defendants of their costs, the order as to costs could not stand, and the appeal had to be allowed

Wagman v Vare Motors Pte Ltd [1959] 1 WLR 853 - The defendants to an action for damages for personal injuries resulting from a road

collision paid GBP 575 into court, and the judge awarded precisely that sum as damages. The judge refused to make any order as to costs, stating that he had never thought of giving less than GBP 575 but that there had been times when he had thought of giving more than that amount.

- Summary: Held, allowing the defendants' appeal as to costs, it was not a good basis for the exercise of the judge's discretion to say that possibly a larger amount might have been awarded; the costs after the date of payment in should be the defendants'.

- Order 22, rule 8 – (if money is paid in pursuant to Order of Court, must obtain Order of Court to pay out).

- See O 22 r 1(7) on the inclusion of interest in the payment into court - Yip Kok Meng Calvin v Lek Yong Han [1993] 2 SLR 134 (see above)

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(G) OFFER TO SETTLE – very impt in practice!!!! – ORDER 22A (unique to Singapore, applies where case comes to court c.f. Calderbank letter sent way before matter comes to court).

- Win action – p to p costs. Usually on std basis.- Normally do you pay costs or get costs. – losing party pays. Under o22A, if make offer

to settle and depending, as losing party, not only do not have to pay costs but get costs fr winning party. Not only get costs but at certain stage even get costs beyond standard basis ie indemnity basis.

- Ie order 22A upset the cost regime. Even losing party – if make good offer to settle, may get costs on indemnity costs!

- Special sg provision.

1. Scope.

- A party to any proceedings may serve on any other party an offer to settle any one or more of the claims in the proceedings on the terms specified in the offer to settle.

- Lawyers usu make offer globally- Where eg claim is 30000, offer for 20000, went to trial, judgement turned out to be

25000. def at fault here so he must pay costs – his offer was less than judgement sum. Cost on std basis

- Where eg claim 30000, offer for 20000, refused to accept, judgement sum for 18000, so plaintiff penalized for not accepting the offer which was more. So plaintiff will get usu party and party costs on std basis BEFORE offer made. But after offer made and he refused to accept it, costs shld be paid by plaintiff on basis tt he refused to accept good offer.

2. Procedure

- The offer to settle shall be in Form 33 (r 1). An offer to settle may be made at any time before the Court disposes of the matter in respect of which it is made (r 2).

The earlier you offer, the cost window to benefit is greater So offer as early as possible

- It may be withdrawn using Form 34 (r 3(3)). The offer is not to be disclosed (r 5). - Acceptance of the offer is in Form 38C (r 6). - Any party can do OTS. Even plaintiff. - An offer to settle shall be open for acceptance for a period of not less than 14 days after

it is served. Some OTS are contg offers which kep going until judgement

- If an offer to settle is made less than 14 days before the hearing of the matter, it shall remain open for a period of not less than 14 days unless in the meanwhile the matter is disposed of (r 3(3)).

- Where an offer to settle does not specify a time for acceptance, it may be accepted at any time before the Court disposes of the matter in respect of which it is made (r 3(5)).

- An offer to settle which does not specify a time for acceptance may be withdrawn at any time after the expiry of 14 days from the date of service of the offer on the other

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party provided that at least one day’s prior notice of the intention to withdraw the offer is given (r 3(2)).

- An offer to settle with a party under disability must be approved by the court under O 76 r 10.

Also special rules for govt and admiralty cases

OFFERo Order 22A, Rule 1 - A party to the proceeding may make an offer to settle in Form 33.

Offer to settle (O. 22A, r. 1)1. A party to any proceedings may serve on any other party an offer to settle any one or more of the claims in the proceedings on the terms specified in the offer to settle. The offer to settle shall be in Form 33.

a) Order 22A (2) – The offer can be made at any time before the Court disposes of the matter (can be before or during trial as long as before the court gives judgment).

Timing (O. 22A, r. 2)2. An offer to settle may be made at any time before the Court disposes of the matter in respect of which it is made.

b) An offer to settle shall be open for acceptance for a period of not less than 14 days after it is served. If an offer to settle is made less than 14 days before the hearing of the matter, it shall remain open for a period of not less than 14 days unless in the meanwhile the matter is disposed of (r 3(1)).

c) An offer to settle which does not specify a time for acceptance may be withdrawn at any time after the expiry of 14 days from the date of service of the offer on the other party provided that at least one day’s prior notice of the intention to withdraw the offer is given (r 3(2)).

d) It may be withdrawn using Form 34 (r 3(3)).

e) Where an offer to settle does not specify a time for acceptance, it may be accepted at any time before the Court disposes of the matter in respect of which it is made (r 3(5)).

Time for acceptance and withdrawal (O. 22A, r. 3)3. —(1) An offer to settle shall be open for acceptance for a period of not less than 14 days after it is served. If an offer to settle is made less than 14 days before the hearing of the matter, it shall remain open for a period of not less than 14 days unless in the meanwhile the matter is disposed of. (2) Subject to paragraph (1), an offer to settle which is expressed to be limited as to the time within which it is open for acceptance shall not be withdrawn within that time without the leave of the Court. An offer to settle which does not specify a time for acceptance may be withdrawn at any time after the expiry of 14 days from the date of

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service of the offer on the other party provided that at least one day’s prior notice of the intention to withdraw the offer is given. (3) The notice of withdrawal of the offer shall be in Form 34. (4) Where an offer to settle specifies a time within which it may be accepted and it is not accepted or withdrawn within that time, it shall be deemed to have been withdrawn when the time expires. (5) Where an offer to settle does not specify a time for acceptance, it may be accepted at any time before the Court disposes of the matter in respect of which it is made.

f) Order 22A, rule 5: deals with Non-disclosure of the offer – An offer to settle shall not be filed and no statement of the fact that an offer has been made shall be contained in any pleading or affidavit.

Without prejudice Rule (O. 22A, r. 4)4. An offer to settle shall be deemed to be an offer of compromise made without prejudice save as to costs. Non-disclosure (O. 22A, r. 5)5. —(1) An offer to settle shall not be filed and no statement of the fact that such an offer has been made shall be contained in any pleading or affidavit. (2) Where an offer to settle is not accepted, no communication respecting the offer shall be made to the Court at the hearing of the proceeding until all questions of liability and the relief to be granted, other than costs, have been determined.

ACCEPTANCEg) Order 22A, rule 6: deals with the Manner of Acceptance – An offer to settle shall be

accepted by serving an acceptance of offer in Form 38C on the party who made the offer.

Manner of acceptance (O. 22A, r. 6)6. —(1) An offer to settle shall be accepted by serving an acceptance of offer in Form 35 on the party who made the offer. (2) Where a party to whom an offer to settle is made rejects the offer or responds with a counter-offer that is not accepted, the party may thereafter accept the original offer to settle, unless it has been withdrawn or the Court has disposed of the matter in respect of which it was made. (3) Where an offer is accepted, the Court may incorporate any of its terms into a judgment.

h) An offer to settle with a party under disability (e.g. mentally unsound, infant) must be approved by the court under, Order 76 r 10 to ensure that such party is not prejudiced.

3. Costs.

- Rule 9 – read how it works. The diff factual matrixes- But typical rationale -

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- One of the typical situations is this: if an offer under this Order (22A) is made is not accepted and the judgment in favour of the offeror turns out to be better than the offer made, the offeror gets cost on the standard basis up to the date the offer was served and on an indemnity basis thereafter.50

If plaintiff is offeror then the above applies But if defendant is the one who offers. Plaintiff will only get costs fr itme

started writ up to time he got the offer. But after the offer made which plaintiff did not accept, def will get costs. Because good offer made was rejected.

- Ie incentive to offer reasonably.- Rationale of order 22A – just, economical and fair disposal of case - Applies even for slight margins

NIMA cases; PIMA cases- See more instances below:o Rule 9(1). Where an offer to settle made by a plaintiff (a) is not withdrawn and has

not expired before the disposal of the claim in respect of which the offer to settle is made; and (b) is not accepted by the defendant, and the plaintiff obtains a judgment not less favourable than the terms of the offer to settle, the plaintiff is entitled to costs on the standard basis to the date an offer to settle was served and costs on the indemnity basis from that date, unless the Court orders otherwise.

o Rule 9(3). Where an offer to settle made by a defendant (a) is not withdrawn and has not expired before the disposal of the claim in respect of which the offer to settle is made; and (b) is not accepted by the plaintiff, and the plaintiff obtains judgment not more favourable than the terms of the offer to settle, the plaintiff is entitled to costs on the standard basis to the date the offer was served and the defendant is entitled to costs on the indemnity basis from that date, unless the Court orders otherwise.

Costs (O. 22A, r. 9)9. —(1) Where an offer to settle made by a plaintiff — (a) is not withdrawn and has not expired before the disposal of the claim in respect of which the offer to settle is made; and (b) is not accepted by the defendant, and the plaintiff obtains a judgment not less favourable than the terms of the offer to settle, the plaintiff is entitled to costs on the standard basis to the date an offer to settle was served and costs on the indemnity basis from that date, unless the Court orders otherwise. (2) Where an accepted offer to settle does not provide for costs — (a) where the offer was made by the plaintiff, he will be entitled to his costs assessed to the date that the notice of acceptance was served; (b) where the offer was made by the defendant, the plaintiff will be entitled to his costs assessed to the date he was served with the offer, and the defendant will be entitled to his costs from the date 14 days after the date of the service of the offer assessed up to the date that the notice of acceptance was served. (3) Where an offer to settle made by a defendant — (a) is not withdrawn and has not expired before the disposal of the claim in respect of which the offer to settle is made; and (b) is not accepted by the plaintiff, and the plaintiff obtains judgment not more favourable than the terms of the offer to settle,

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the plaintiff is entitled to costs on the standard basis to the date the offer was served and the defendant is entitled to costs on the indemnity basis from that date, unless the Court orders otherwise. (4) (a) Any interest awarded in respect of the period before service of the offer to settle is to be considered by the Court in determining whether the plaintiff’s judgment is more favourable than the terms of the offer to settle. (b) Any interest awarded in respect of the period after service of the offer to settle is not to be considered by the Court in determining whether the plaintiff's judgment is more favourable than the terms of the offer to settle. (5) Without prejudice to paragraphs (1), (2) and (3), where an offer to settle has been made, and notwithstanding anything in the offer to settle, the Court shall have full power to determine by whom and to what extent any costs are to be paid, and the Court may make such a determination upon the application of a party or of its own motion. .

4. Case Law

The offer to settle should be a serious and a genuine offer and not just to entail the payment of costs on an indemnity basis.

An offer to have the effect contemplated in Order 22A, rule 9 must contain an element which would induce or facilitate settlement

The Endurance I [1999] 1 SLR 661 Held: The rationale behind Order 22A was to encourage the termination of litigation by

agreement of the parties – more speedily and less expensively than by judgment of the court at the end of the trial.

It is axiomatic to the proper application of Order 22A that the offer to settle should be a serious and a genuine offer and not just to entail the payment of costs on an indemnity basis. This is particularly so where the claim is for an unliquidated sum to be ascertained.

An assessment of damages, even where liability is a matter of course, can give rise to numerous complexities and result in protracted hearings and expense. It must follow that to offer to settle at a percentage of the unliquidated sum to be ascertained or of damages to be assessed cannot be a serious and a genuine offer to settler but is made to take an unfair advantage of Order 22A, rule 9. What is required is for the plaintiff to make his own estimate of what the unliquidaed sum ought to be or his own assessment of what the damages ought to be and to offer that sum as being a fair and reasonable sum which the defendant ought to pay in settlement of his claim.

Singapore Airlines Ltd v. Fujitsu Microelectronics (Malaysia) Sdn Bhd (No.2) [2001] 1 SLR 532- Facts: The respondent sued SIA for loss package. The appellants argued that they were

entitled [pursuant to Order 22A, rule 9(3)], to costs for the action on an indemnity basis from the date of their offer to settle. This was because the judgment sum was not more favourable than the offer to settle. The CA rejected this argument.

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- CA Held: It is axiomatic to the proper application of Order 22A that an offer to settle should be a serious and genuine offer and not just to entail the payment on an indemnity basis. On the facts, the actual loss incurred amounted to US$286,344.14, whereas the Convention applied to limit the appellants’ liability to only $312. The appellant’s offer to settle was for $347. It was ludicrous to suggest that any sensible would go through trial of some 20 days only to defend a claim for $312.

- An offer to have the effect contemplated in Order 22A, rule 9 must contain an element which would induce or facilitate settlement. In the circumstances, the offer to settle was not really an offer to settle, as it did not contain any incentive to settle. Nor was there a genuine effort to settle the crux of the dispute which was related to the difference between actual value of the lost package and the sum laid down in the Convention.

- The order on costs against the respondent for the action (from the date of the offer), as well as the appeal, would be on a standard basis.

Singapore Airlines Ltd v. Tan Shwu Leng [2001] 4 SLR 593- Facts: The Plaintiff claimed $1.1 M. The offer to settle by SIA was $350K. Assessment

before the Registrar (4 ½ days) was $316K. On appeal, this amount was increased to $352,279. The Plaintiff, however, was awarded only nominal costs of $1000 for work done after the date of SIA’s offer to settle, even though judgment award better than offer to settle.

- CA Held: Order 22A, rule 12 gave the court wide discretion to do justice between the parties even where an offer to settle amount less than judgment. Here, the court rightly awarded the plaintiff nominal costs, after considering that the difference between the ‘offer to settle’’ and judgment was marginal. That plaintiff had 6 months to consider offer to settle and his claim was manifestly excessive causing assessment proceedings to go on for 4 ½ days.

Summary of case law1. Cost consequences under Order 22A, rule 9 – Applies to the benefit of the Plaintiff

when the judgment he obtained is more favourable than the unaccepted offer to settle.

2. Even in the event of (1), the court still has discretion under Order 22A, Rule 12 to disallow the Plaintiff costs on the indemnity basis.

Discretion of Court (O. 22A, r. 12)12. Without prejudice to Rules 9 and 10, the Court, in exercising its discretion with respect to costs, may take into account any offer to settle, the date the offer was made, the terms of the offer and the extent to which the plaintiff’s judgment is more favourable than the terms of the offer to settle.

3. An offer to settle must be a ‘serious and genuine’ offer and must contain elements which induce and facilitate settlement.

(H) JUDGMENTS ON ADMISSION (O 27) (very rare in practice)

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- • A party may give notice by his pleading or in writing that he admits the truth of the whole or any part of the case of any other party (r 1).

Admission must be clear cut and unequivocal

Admission of case of other party (O. 27, r. 1)1. Without prejudice to Order 18, Rule 13, a party to a cause or matter may give notice, by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party

- • A party to a cause or matter may not later than 14 days after the cause or matter is set down for trial serve any other party to a notice requiring him to admit, for the purpose of that cause or matter only, the facts specified in the notice (r 2(1)).

Notice to admit facts (O. 27, r. 2)2. —(1) A party to a cause or matter may not later than 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit, for the purpose of that cause or matter only, the facts specified in the notice. (2) An admission made in compliance with a notice under this Rule shall not be used against the party by whom it was made in any cause or matter other than the cause or matter for the purpose of which it was made or in favour of any person other than the person by whom the notice was given, and the Court may at any time allow a party to amend or withdraw an admission so made by him on such terms as may be just. (3) A notice to admit facts under paragraph (1) must be in Form 51 and an admission of facts under paragraph (2) in Form 52.

- • Where admissions of fact are made by a party, any other party to the cause or matter may apply to the Court for such judgment on the admissions made without waiting for the court’s determination of any other question, and the Court may give such judgment (r 3).. Court has to peruse the defence and agree. It is not suitable when there is an admission of law.

Judgment on admission of facts (O. 27, r. 3)3. Where admissions of fact are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may give such judgment, or make such order, on the application as it thinks just.

• It may be obtained against one of several defendants.

Jenkins v Davies [1875- 1876] LR 1 Ch D 696 A statement of defence was delivered in an action brought against a husband and wife

upon a joint and several promissory note given by them, which, purporting to be the defence of both Defendants, raised no defence as regarded the husband:-Held, upon motion for judgment, that the Plaintiffs were entitled under Order XL., rule

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11, to final judgment against the husband without writing for the determination of the case against the wife.

- O 27 can also apply to the defendant against plaintiff upon latter’s admissions in pleadings– Pascoe v Richards [1881] 50 LJ Ch 337 (can’t find).

- A person applying for such a judgment must have a clear case. – Hughes v London, Edinburgh & Glasgow Assurance Co [1891] 8 TLR 81 (can’t find).

- Judgment under O 27 can be entered only where defendant has made admissions of fact.54 – not law!!!! – S Jayakumar & 4 Ors v JBJ [1997] 2 SLR 172.

S Jayakumar & 4 Ors v. JBJ [1997] 2 SLR 172 - Held, granting interlocutory judgment for the plaintiffs and for damages to be assessed:- (1)    The court’s discretionary power to give judgment under O 27 r 3 was exercisable

only where a defendant made admissions of fact. If the matter involved questions of law, admissions of fact alone could not decide the matter. The rule excluded admissions of non factual matters such as comments, opinions and admissions of law or mixed facts of law. Defamation cases of the present kind were unsuitable for an application under O 27 r 3 as such cases involved matters of law, questions of mixed law and fact and opinions.

(I) CONTROL OF PROCEEDINGS BY COURT (O 4, R 1)

1. Objective for Consolidation of Proceedings

- The main purpose of consolidation is to save costs and time

Payne v. British Time Recorder Co [1921] 2 KB 1 at 16- Scrutton LJ - Broadly speaking, where claims by or against different parties involve or

may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time the Court will allow the joinder of plaintiffs or defendants, subject to its discretion as to how the action should be tried.

- Where two or more matters are pending, if it appears to the Court that —- • some common question of law or fact arises in both or all of them;- • the rights to relief claimed arise out of the same series of transactions; or- • for some other reason it is desirable to make an order under this Rule,

- the Court may order that the matters be tried at the same time – consolidation - or one immediately after another or stayed an of them until determination of any other of them.

Court will choose one action as the consolidated action and drop the ancillary action

So this helps terminate action

2. Grounds for Consolidation – Order 4, rule 1

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Consolidation, etc., of causes or matters (O. 4, r. 1)1. —(1) Where 2 or more causes or matters are pending, then, if it appears to the Court — (a) that some common question of law or fact arises in both or all of them; (b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or (c) that for some other reason it is desirable to make an order under this Rule, the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them. (2) An order for consolidation must be in Form 1 and shall direct that the cause or matter in which the application is made shall thence forward be carried on in such other cause or matter and that the title of such other cause or matter be amended by adding thereto the title of the cause or matter in which the application is made. (3) Upon such order being made, the file of the cause or matter in which the application is made shall be transferred to and added to the file of such other cause or matter, and the copy of the order shall be left in place of the file so transferred, and a memorandum of the transfer shall be entered in the cause book against the cause or matter so consolidated.

- Order 4, rule 1 - provides the grounds on which the Court may order the consolidation the actions:(a) Order 4, rule 1(1)(a) – some common question of law or facts arises in both or all of

the cases(b) Order 4, rule 1(1)(b) – the rights to relief claimed are in respect of or arise out of the

same transaction or series of transactions(c) Order 4, rule 1(1)(c) – for some reason it is desirable to make an order under this

Rule.- Order for consolidation must be in Form 1

3. Orders of the Court – Order 4, rule 1(1)- Under Order 4, rule 1, the orders which the Court may make are:

(a) for the consolidation of the matters on such terms as the Court thinks just;(b) for the matters to be tried at the same time;(c) for the matters to be tried one immediately after another;(d) for the matters to be stayed until after the determination of any of the matters.

4. Consequences of making an order under Order 4(a) Title changed – The title of the matter shall be amended by adding the title of the

cause or matter in which the application is made: Order 4, rule 1(2)

(b) Documents are transferred to other file: Order 4, rule 1(3)

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Lee Kuan Yew v. Tang Liang Hong [1997] 3 SLR 178, at 182-183- On the question of consolidation, it was generally impossible to consolidate actions

where the plaintiffs in the actions had been and continued to be represented by different solicitors who had, in each case, completed their research, getting-up and, had been in the process of discovery of documents and other information.

- If an order for consolidation were made, only one set of solicitor would have represented the lead plaintiff with the unfair consequences that the other plaintiffs would have had to pay the costs of their solicitors without recourse against the defendants.

5. When Proceedings can be Consolidated- Can consolidate action - where plaintiffs are the same and the defendants are the same,

or where the plaintiffs or defendants or all are different: Horwood v. British Statement Publishing Co Ltd [1929] (cannot find)

6. When Proceedings cannot be Consolidated- Two actions cannot be consolidated where - the plaintiff in one action is the same

person as the defendant in another action, unless one action can be ordered to stand as counterclaim or 3rd party proceedings in other – generally impossible to consolidate actions in which different solicitors have been instructed to represent different plaintiffs: Leevis v. Daily Telegraph (No.2) [1964] 2 QB 610, White Book para 4/9/1.

- Goh Chok Tong v. Jeyaretnam Joshua Benjamin [1997] 2 SLR 679 o No consolidation where there are a large number of co-plaintiffs and all of them

separately represented by different solicitors.

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