14 And 15 The Trial

14 and 15 The trial 1.

MATTERS TO BE CONSIDERED BEFORE TRIAL

Preparation of trial 1. go through bundle (pleadings etc) 2. go through statements of witnesses a. affidavits of evid in chief – what witnesses tell u case is abt – reduce in form of affidavit – this is form of evid given in trial b. sit down with witness and prepare c. this is the evid to support ur case at trial d. lawyer prepared it e. impt – lang mirrors tt of lawyer – witness, if he disavows everything here – this kills the case!!! f. So what can go in and how to draft very impt -

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3. 4.

Examine all proofs of evidence taken, the correspondence and docs disclosed by both sides. Make sure that affidavits are ready, and docs in core bundle are prepared. Examine each allegation in the pleadings that is disputed and ask how they are to be proved. List each of the separate issues for trial and consider the following: The burden of proof (ie: Section 103 – 106 EA). On who, presumptions, how to rebut, res ipsa loquitur etc Whether any witness will attend voluntarily, or should a subpoena be issued If any witness will be unavailable for an indefinite time, whether to instead apply under Order 38, r 3 , for the evidence of any particular fact to be given at the trial by statement on oath or information or belief; by the production of documents; or entries in books; or by a newspaper which contains a statement of that fact. Whether any original documents are required to be put in as evidence. If so, who has them? If the originals are in one’s own possession is it necessary to serve notice to admit? If they are in the possession of the other side, is a notice to produce necessary? If they are in the possession of a third party, a subpoena duces tecum may be necessary.

Preparation of affidavits in chief Tendency is to draft an affidavit full of submissions and arg etc Rule 1 – aff to contain statements of fact. Nth more and less o All paras where say why case shld succeed – this is incorrect – cannot include o I am advised and verily believe – this is a submission of law- tt deponent x know abt – designed to introd submissions of law – this means tt lawyer has complied with rules of proced? o Shld not draft submissions into affidavit o Not for client!!!! o When u see this phrase, this is pertaining to legal submissions which some judges take harsh view of o In old regime, softer view, but now no – deponent does not know better – he is only there to tell fct as they are Rule 2 – incl inferences in aiec tt witness shld suggesting court shld draw – o ‘Can be inferred fr following’ o if inferences of fact, then ok because set out basis for inference o but if inf is of law and mixed law and fact, then be careful – judges take harsh view! o Inferences shld only be based on fact and pertaining to matters of pure fact and not law o State basis for inference and not simply infer Rule 3 – making extravang assertions put in lawyer and witness cannot sustain under cross examination o Make the pt, make it quickly, and make it succinctly o Also must be at level tt witness is accustomed to o Will undermine credibility of evid of witness in court! Rule 4 – non disclosure of sources of info and belief o Must be related to some fact/doc o Making bare assertion will invite arg tt affidavit littered with bare assertions o Will then lose since not psersuasive o Client must be able to pt to source/basis for assertion Rule 5 - Not identifying parts of doc tt set out hearsay etc

It is nt relevant unless u can qualify and overcome the hearsay exceptions Rules of evid clear – unless to show state of mind, etc – the usual exceptions – ie not saying that what was said was true o If saying this, SAY SO – must disting bet pri evid and sec evidence Rule 6 – expressing conclusions in AEIC purportedly supported by exhibits but not in actual fact o Do not refer to a doc saying sth and state an inference which is actually not found o Possib exposure to law soc for complaint!!! Dishonesty o o

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Issuing Writ Of Subpoena – Order 38 (Exams) Short qns for exams – section A

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A writ of subpoena can be issued to compel the attendance of a particular witness who is reluctant to attend trial. Why? – some witneses give evid in support of client case – most of them WANT to tell their story. But there are some who avoid giving the trial. Shirking the responsibility. When meet such instances, then need writ of subpoena. You do not issue a writ of subpoena unless you have reason to believe that the witness is reluctant to give evidence – otherwise you would incur unnecessary costs to your client.

One possible question in Section A of the exam: What can you do if a witness refuses to attend trial? Answer: You can issue a writ of subpoena.

(a)

Order 38, rule 14 –form and procedure for writ of subpoena.

Form and issue of subpoena (O. 38, r. 14) 14. —(1) A subpoena must be in Form 67, 68 or 69, whichever is appropriate. (2) Issue of a subpoena takes place upon its being sealed by an officer of the Registry. (3) Before a subpoena is issued, a Request4 in Form 70 for the issue of the subpoena must be filed in the Registry; and the Request4 must contain the name and address of the party issuing the subpoena, if he is acting in person, or the name of the firm and business address of that party’s solicitor. (4) The Registrar may, in any case, revoke a subpoena upon application by any person or on his own motion. (5) Any party who is dissatisfied with any decision of the Registrar made under this Rule may apply to a Judge of the High Court or a District Judge, as the case may be, for a review of that decision. (6) An application under this Rule shall be made by summons supported by an affidavit, within 14 days of that decision. The writ of subpoena must be in either Form 67, 68 or 69 1. Form 67 – Writ of subpoena ad testificandum 2. Form 68 – Writ of subpoena duces tecum 3. Form 69 – Writ of subpoena ad testificandum & duces tecum – O 38 r 14 -

The subpoena must be prepared in the prescribed form, and will be issued by the Registry upon the filing of a praecipe in Form 70 (Praecipe for subpoena).  The praecipe must contain the name and address of the party issuing the writ, if he is acting in person. Otherwise, the name of the firm and business address of the party’s solicitor must be stated.

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Requirements in the praecipe. O38 r 14 (3)

Three types of subpoena may be issued:

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1. Writ of subpoena ad testificandum – requires one or more persons to attend court to give evidence: Order 38, r 15  Coming to court and testify – ad testificandum Not coming out for exams. More than one name may be included in one writ of subpoena ad testificandum

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Form 6

More than one name may be included in one subpoena to testify5(O. 38, r. 15) 15. The names of 2 or more persons may be included in one subpoena to testify5.

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2. Writ of subpoena duces tecum – requires the person to produce documents. Only one person can be named on the writ and he is not obliged to attend personally: Order 38, r 16  Duces tecum – writ of subpoena compelling production of doc – only one person can be named in this. EXAM!!!  Form 68

Subpoena to produce documents1 (O. 38, r. 16) 16. —(1) A subpoena to produce documents1 must contain the name of one person only. (2) Any person served with a subpoena to produce documents 1 shall sufficiently comply if he causes the document to be produced without attending personally.

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(b) -

3. A combined subpoena ad testificandum and duces tecum - may be issued to require the witness to give evidence and produce documents: Form 69 – O 38 r 14 – they can be combined in one doc. Form 69 Order 38, rule 18 – Service of writ of subpoena Writ of subpoena must be served personally, within 12 weeks of date of issue. – ie writ cannot be served by courier/post No extra-territorial effect. It cannot be served on a person outside jurisdiction. Eg if witness stays in johore, u cannot serve the writ on him and expect him to obey. Service proven by affidavit O38 r 23 Person need not comply with writ

Service of subpoena (O.38, r. 18) 18. —(1) Unless the Court otherwise orders, a subpoena must be served personally and the service shall not be valid unless effected within 12 weeks after the date of issue of the subpoena. (2) A subpoena shall not be served on any person outside the jurisdiction.

(c)

Order 38, rule 22 –Travelling expenses of witness (not exams)

Tender of expenses (O. 38, r. 22) 22. A witness shall not be compelled to attend on a subpoena unless a reasonable sum to cover his expenses of going to, remaining at, and returning from, Court is extended to him. -

(d)

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Witness is not compelled to attend court unless a “reasonable sum” is offered for his going to, remaining at, and returning from Court. (and for a day’s lost earnings) A witness is entitled to refuse to attend trial if served writ without offer of sum. Difficult/Reluctant witness can fight on this ground, via O38r14(4) (above) Ie u have to offer sum of money attached to writ – otherwise person need not attend! Rationale – witnesses inconvenienced. Writ states tt u have to be there period, not partr day – very cumbersome for the witness Effectiveness of a Writ of Subpoena ********* In practice, the Court is asked to release the witness subject to him being recalled if required. The advocate should ensure that the witnesses know that the subpoena is effective until the end of the trial. Witness who is not a party, cannot attend court proceedings. He is kept in a witness room.

Duration of subpoena (O. 38, r. 19) 19. A subpoena continues to have effect until the conclusion of the trial at which the attendance of the witness is required.

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Qn: After witness given evid, is he allowed to go home? And he is the first of several witnesses Ans: No he cannot go home because of O38 Rationale – witnesses can be recalled during trial Lawyer x want to keep paying fees to witness – so can finish witness evid, release him on cond tt u can apply for leave to recall the witness

(e)

Appeal process O38 r14 (4), (5) and (6)

(f)

Witness in prison

Attendance of prisoner as witness or party (O. 38, r. 21) 21. —(1) An application for an order under section 38 of the Prisons Act (Chapter 247) for the production before the Court of a person confined in prison may be made by ex parte summons supported by an affidavit in Form 71. (2) Unless the Court otherwise orders, the costs of conveyance of the witness in safe custody to and from the Court must be paid in the first instance by the party on whose application the order was issued and shall be costs in the cause. (3) An order for the production of such person must be in Form 72. Preparation Of Witness (Not Covered In Exams)

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Monies to account – monies fr clients. – remind client tt must put monies to account o Trial in HC – 150000 to 200000 a day depending on counsel seniority. o Ur costs – not disbursements! o So need to have monies to acct to prepare for trial Check who witnesses are – Preparing a witness – o Do not give in to temptation to embellish facts for trial. Do NOT coach a witness, you can only prepare him. o 3 reasons  1) witness gives Evidence not the lawyer  2) witness will fail to remember, trip up and collapse  3) stilted and unbelievable evidence : judge will know.  CF can suggest to witness to reconsider certain points in testimony; phrase in another way. o Witnesses who are not lawyers will not speak like a lawyer. Preparation: o Familiarise witness with court layout, order of proceedings  bring him to normal trial proceedings. So that he is comfortable. Accustomed to the environment o The most friendly, civil, nice cross examiner is the most deadly – do not be lulled into thinking tt opposition lawyer is helping witness. o Get them to read /familiarise themselves with affidavits of evidence in chief. Make sure evidence to be given is the same as what is written in the affidavits. Witness should be familiar and comfortable with the affidavit, and instantly recognise it to be his own. Cannot coach :- cannot pose qns/correct witness to tailor answers according to what judge likes.  Language – the witness must be doing the AEIC in the lang he is comfortable with. • English is the lang tt courts and judges use so they do it in English

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Many witnesses are bilingual – they may ask to speak in Chinese in court with interpreter – but in fact buying time to come up with contrived answer. • Ensure tt he understands every single paragraph in AEIC Witness gives Evidence to the judge/court, not to the lawyer. “Please tell the court/your Honour”  Judges get irritated when feel tt they get cut out  As lawyer u want court on ur side – so wnt to keep judge with you, examining the witness

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Terms used to address the judge: - “Your Honour” not “sir” Pace to be measured - Remind the witness to speak slowly, take his time, watch the judge’s pen. Inform witness of hearing date - make sure the witness turns up on the correct date, time and at the correct court.  Follow up with phone call  Bring witness down to court Make sure the right interpreter is present

Evidence By Disposition – Order 39 (Not Coming Out) •

Alternative ways of obtaining evidence

1.

O. 39, r 1(1) – examination on oath

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for a witness who is unable to attend trial, examined by judge or R at any other place.

Power to order depositions to be taken (O. 39, r. 1) 1. —(1) The Court may, in any cause or matter where it appears necessary for the purposes of justice, make an order in Form 73 for the examination on oath before a Judge or the Registrar or some other person, at any place, of any person. (2) An order under paragraph (1) may be made on such terms (including, in particular, terms as to the giving of discovery before the examination takes place) as the Court thinks fit. 2. 3.

Exam in sg – only where nec witness going abord or because of illness, old age or other infirmity likely to be unabe to attend trial wld order be made exam out of juris -

Where person to be examined is out of jurisdiction (O. 39, r. 2) 2. —(1) Where the person in relation to whom an order under Rule 1 is required is out of the jurisdiction, an application may be made — (a) for an order in Form 74 under that Rule for the issue of a letter of request to the judicial authorities of the country in which that person is to take, or cause to be taken, the evidence of that person; or (b) if the government of that country allows a person in that country to be examined before a person appointed by the Court, for an order in Form 75 under that Rule appointing a special examiner to take the evidence of that person in that country. (2) An application may be made for the appointment as special examiner of a Singapore consul in the country in which the evidence is to be taken or his deputy — (a) if there subsists with respect to that country a Civil Procedure Convention providing for the taking of the evidence of any person in that country for the assistance of proceedings in the High Court; or (b) with the consent of the Minister. (3) An application under this Rule can only be made in the High Court even if the proceedings are commenced in the Subordinate Courts.

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***********Procedure for lodgement of request – summarise this in the exams when asked for it: - *****

Order for issue of letter of request (O. 39, r. 3) 3. —(1) Where an order is made under Rule 2 for the issue of a letter of request to the judicial authorities of a country to take, or cause to be taken, the evidence of any person in that country, paragraphs (2) to (6) shall apply. (2) The party obtaining the order must prepare the letter of request and file it in the Registry, and the letter must be in Form 76 with such variations as the order may require. (3) If the evidence of the person to be examined is to be obtained by means of written questions, there must be filed with the letter of request a copy of the interrogatories and cross-interrogatories to be put to him on examination. (4) Unless the official language, or one of the official languages of the country in which the examination is to be taken is English, each document filed under paragraph (2) or (3) must be accompanied by a translation of the document in the official language of that country or, if there is more than one official language of that

country, in any one of those languages which is appropriate to the place in that country where the examination is to be taken. (5) Every translation filed under paragraph (4) must be certified by the person making it to be a correct translation; and the certificate must contain a statement of that person’s full name, of his address and of his qualifications for making the translation. (6) The party obtaining the order must, when he files in the Registry the documents mentioned in paragraphs (2) to (5), also file in the Registry an undertaking in Form 77 signed by him or his solicitor to be responsible personally for all expenses incurred by the Minister in respect of the letter of request and, on receiving due notification of the amount of those expenses, to pay that amount to the office of that Minister and to produce a receipt for the payment to the proper officer of the Registry. 5.

Order 39 rule 4

Enforcing attendance of witness at examination (O. 39, r. 4) 4. Where an order has been made under Rule 1 — (a) for the examination of any person before the Registrar or some other person (referred to in this Rule and Rules 5 to 14 as the examiner); or (b) for the cross-examination before the examiner of any person who has made an affidavit which is to be used in any cause or matter, the attendance of that person before the examiner and the production by him of any document at the examination may be enforced by subpoena in like manner as the attendance of a witness and the production by a witness of a document at a trial may be enforced. Refusal of witness to attend, or to be sworn, etc. (O. 39, r. 5) 5. —(1) If any person, having been duly summoned by subpoena to attend before the examiner, refuses or fails to attend or refuses to be sworn for the purpose of the examination or to answer any lawful question or produce any document therein, a certificate of his refusal or failure, signed by the examiner, must be filed in the Registry, and upon the filing of the certificate the party by whom the attendance of that person was required may apply to the Court for an order requiring that person to attend, or to be sworn or to answer any question or produce any document, as the case may be. (2) An application for an order under this Rule may be made ex parte. (3) If the Court makes an order under this Rule it may order the person against whom the order is made to pay any costs occasioned by his refusal or failure. (4) A person who wilfully disobeys any order made against him under paragraph (1) is guilty of contempt of Court. 6.

Order 39 rule 8 – conduct of exams

Appointment of time and place for examination (O. 39, r. 6) 6. —(1) The examiner must give the party on whose application the order for examination was made a notice appointing the place and time at which, subject to any application by the parties, the examination shall be taken, and such time shall, having regard to the convenience of the persons to be examined and all the circumstances of the case, be as soon as practicable after the making of the order. (2) The party to whom a notice under paragraph (1) is given must, on receiving it, forthwith give notice of the appointment to all the other parties. Examiner to have certain documents (O. 39, r. 7) 7. The party on whose application the order for examination before the examiner was made must furnish the examiner with copies of such of the documents in the cause or matter as are necessary to inform the examiner of the questions at issue in the cause or matter. Conduct of examination (O. 39, r. 8) 8. —(1) Subject to any directions contained in the order for examination — (a) any person ordered to be examined before the examiner may be cross-examined and re-examined; and (b) the examination, cross-examination and re-examination of persons before the examiner shall be conducted in like manner as at the trial of a cause or matter. (2) The examiner may put any question to any person examined before him as to the meaning of any answer made by that person or as to any matter arising in the course of the examination. (3) The examiner may, if necessary, adjourn the examination from time to time. 5.

COURT EXPERT – Order 40 (not coming out)

Appointment of expert to report on certain question (O. 40, r. 1) 1. —(1) In any cause or matter in which any question for an expert witness arises, the Court may at any time, on its own motion or on the application of any party, appoint an independent expert or, if more than one such question arises, 2 or more such experts, to inquire and report upon any question of fact or opinion not involving questions of law or of construction. (1A) An expert appointed under this Order or under Order 32, Rule 12 shall be referred to as a court expert. (2) Any court expert in a cause or matter shall, if possible, be a person agreed between the parties and, failing agreement, shall be nominated by the Court. (3) The question to be submitted to the court expert and the instructions (if any) given to him shall, failing agreement between the parties, be settled by the Court. (4) In this Rule, “expert”, in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of or in connection with that question that his opinion on it would be admissible in evidence. Report of court expert (O. 40, r. 2) 2. —(1) The court expert must send his report to the Court, together with such number of copies thereof as the Court may direct, and the Registrar must send copies of the report to the parties or their solicitors. (2) The Court may direct the court expert to make a further or supplemental report. (3) Any part of a court expert’s report which is not accepted by all the parties to the cause or matter in which it is made shall be treated as information furnished to the Court and be given such weight as the Court thinks fit. Cross-examination of court expert (O. 40, r. 4) 4. Any party may, within 14 days after receiving a copy of the court expert’s report, apply to the Court for leave to cross-examine the expert on his report, and on that application the Court shall make an order for the crossexamination of the expert by all the parties either — (a) at the trial; or (b) before an examiner at such time and place as may be specified in the order.

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Note the new Order 40A governing experts called to trial.

Pre-Trial Conferences – Order 34A (Exams)

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(a)

purpose of PTC – o resolving issues without going to trial – docs to be produced/ discoveries/ etc/ ask parties to narrow the issue/ if outstanding iterlocutory matters – to be dealt with at PTC o if any party in default or order or direction of court, other party can apply for defaulting client’s case to be struck out and also ask for costs o so this is very impt stag of litigation process At a Pre-Trial Conference (PTC), parties go to Court to update the Registrar on the progress of the case. The Registrar’s job is to set timelines to encourage the just, expeditious and economical disposal of the case. To this end he has a wide discretion and wide ranging powers. - 2 purposes of the PTC. o 1) ensure speedy disposal so as to save costs and the Court’s time. o 2) encourage parties to settle if possible. NOT the trial but may effectively determine outcome of trial before the trials Order 34A, rule 1

Power to make orders and give directions for the just, expeditious and economical disposal of proceedings (O. 34A, r. 1) 1. —(1) Notwithstanding anything in these Rules, the Court may, at any time after the commencement of any proceedings, of its own motion direct any party or parties to those proceedings to appear before it, in order that the Court may make such order or give such direction as it thinks fit, for the just, expeditious and economical disposal of the cause or matter. (1A) Where the Court makes orders or gives directions under paragraph (1), it may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued by the Registrar. (2) Where any party fails to comply with any order made or direction given by the Court under paragraph (1), the Court may dismiss the action, strike out the defence or counterclaim or make such other order as it thinks fit.

(3) The Court may, in exercising its powers under paragraph (1), make such order as to costs as it thinks fit. (4) Any judgment, order or direction given or made against any party who does not appear before the Court when directed to do so under paragraph (1) may be set aside or varied by the Court on such terms as it thinks just.

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O 34A r 1(1) - allows the Court, at any time after proceedings have commenced – to make orders, and summon parties for directions to be given.

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Anytime, court can call parties down and give directions, anything that can save time and cost, for court to regulate affairs, to save time and cost, to narrow issues, whatever direction court can give to assist parties.

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O 34A r 1(2) & (3) – gives “teeth” to the Court. (2) Court has powers like striking out etc. or such order, to deal with parties that fail to comply. (3) Costs may also be awarded against the defaulting party; or costs may be awarded against the solicitor personally.

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Powers court has at the PTC – dismiss action, strike out Defence, counterclaim, may make such order as deem appropriate (unless orders – if you breach order previously, fail to comply, action dismiss and defence strike out, order cost) o Eg if affidavits not prepared, may order action to be struck out/ costs dimissd/ o Orders made at Pre trial stage can effectively determine or conclude the action o Eg AEICs overdue, failed ot comply with discovery oblig, court can give deadline to comply after which claim can be struck out o So if opponent has failed to comply, then can say tt client insisted tt matter proceed – no extension of time be granted – then go to PTC and inform court tt opponent’s clients failed to comply with outstanding orders – Usu lawyers will alow – favours may be asked later of oter side – u can advise ur own client not to press – client hsld not be allowed to pressurise lawyer For pre trial conf, usu don’t engage in bitter warfare – don’t win on procedure – even if judgement is awarded, may appeal and sho tt merits of case are strong – u may have to pay the costs personally AND client may also sue you

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(b) Order 34A, rule 2 – Pre-Trial Conferences directed by the Court Court at PTC will try to dispose of as many issues as possible so as to save cost and court time (efficiency) rule 2 supplements and reinforces rule 1. - Rule 2(1) Court may call PTC any time before trial. In practice, parties may also write in to court to ask for PTC. - rule 2(2) – Wide discretion to consider all matters, and powers to require parties to give info. - rule 2(3) – Another teeth section. Pre-trial conferences to be held when directed by the Court (O. 34A, r. 2) 2. —(1) Without prejudice to Rule 1, at any time before any action or proceedings are tried, the Court may direct parties to attend a pre-trial conference relating to the matters arising in the action or proceedings. (2) At the pre-trial conference, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with any such information as it thinks fit, and may also give all such directions as appear to be necessary or desirable for securing the just, expeditious and economical disposal of the action or proceedings. (3) The Court, having made directions under Rule 2 (2) or Rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit. (4) Any judgment or order made under Rule 2 (3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just. (5) [Deleted by S 283/97] (6) At any time during the pre-trial conference where the parties are agreeable to a settlement of some or all of the matters in dispute in the action or proceedings, the Court may enter judgment in the action or proceedings or make such order to give effect to the settlement.

Types of Orders which the Registrar can make • The Court can enter judgment against the defaulting party without going through with the trial – Normally this happens only when the party is in “contumelious default”. o  e.g. failure to comply with directions as to exchange of Evidence in Chief, comply with timelines for list of documents  very serious and/or intentional breaches. • The Court can make an “unless order” – Breach of this will tend to be very serious. Case Law on breach of an “Unless order” (EXAMS) – headnotes alone are sufficient Syed Mohamed Abdul Muthaliff v. Arjan Bhisham Chotrani [1999] 1 SLR 750 Respondent lawyer sued the appellants for his legal fees. The respondent got an order that the appellants file and serve F&BP of their counterclaim within a specified period and that, in default of doing so, the appellants’ counterclaim be struck out without further order. When the appellants failed to file and serve the F&BP within the specified time, the court struck out the appellants’ counterclaim. The appellants’ appealed to the CA - CA Held: allowing the appeal. The CA held that where there has been non-compliance with a pre-emptory order, to avoid a striking-out order, the onus is on the party in default to show :o (1) He made positive efforts to comply, but was prevented from doing so by extraneous circumstances; and that o (2) the circumstances of the case justify excusing his default o The defaulting party has to file an affidavit explaining his reasons for not complying. o Striking out powers of Court may be exercised where there is intentional and contumelious default. When considering the consequences of a failure to comply with an unless order, the relevant question is whether such failure was intentional and contumelious. The Court should not be astute to find excuses for such failure since obedience to orders of the court was the foundation on which its authority was founded. Hence a breach of unless order generally amounts to a contumelious breach, which justifies striking out. o BUT, If a party could clearly demonstrate that there was no intention to ignore or flout the order AND that the failure to obey was due to extraneous circumstances, such failure to obey was not to be treated as contumelious and therefore did not disentitle the litigant to rights which he would otherwise have enjoyed. o Contumacy or `perverse and obstinate resistance to authority` would be preferred over `insolent reproach or abuse` as a criterion to strike out an action; and o The onus is on the defaulting party to show why his failure to obey the order did not warrant the striking out of the claim. o A striking-out order may be nonetheless be ordered if the failure to obey one or a number of orders was due to negligence, incompetence or sheer indolence. o “ROC is not meant to be tools of injustice, but are handmaidens to help the Court to achieve the ultimate objective of achieving justice in every case. Procedural law ought not to be allowed to rule the Court to such an extent that an injustice is done.”

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=> Parties in default of unless order; court held that party is in breach of unless order, court can dismiss action, defence or counterclaim as the case may be. Because a breach of unless order generally amounts to contumelious conduct which would justify striking out. o Court however point out that rules of court are not meant to be tools of injustice. In fact, they are hand maidens to help the court achieve the ultimate objective of achieving justice as best as it can in every case. o Therefore, procedural laws ought not be be allowed to rule the court to such an extent that injustice is done. The relevant question to consider for the court is whether the failure was intentional and contumelious. o Party in breach of unless order must show it had intention to comply but was prevented against its intention from doing that. Party must show it had no intention to ignore or flout the order and that failure to obey was due to extraneous circumstances beyond its control.

 prior to this case, breach of unless order = no chance of escaping consequences. Now, what a party in default should do is to submit an affidavit explaining his reasons for not complying.  Note the general position = strike out. Nonetheless, it seems on the facts of this case that only recalcitrant and terrible breaches will be considered to be intentional and contumelious. The Tokai Maru [1998] 3 SLR 105 - Defendants and the third parties(3P) were ordered to file and exchange their affidavits for trial by a certain date. As their solicitor was tardy/negligent, 3P defaulted, filed and served their affidavits months later. D refused to exchange affidavits. 3P then applied for an extension of time, AFTER so much time lapsed (when they should have applied before). D applied to strike out 3P’s defence. At 1st instance, the judge struck out 3P’s defence. - On appeal to CA, [held]: (allowing appeal and following Costellow v. Somerset County Council [1993] 1 All ER 952) The principles that are applicable in an application to extend time coupled with an application to strike out the defence are as follows: - The rules of civil procedure guide the Courts and litigants towards the just resolution of the case and should of course be adhered to. Nonetheless, a litigant should not be deprived of his opportunity to dispute the plaintiff’s claims and have a determination of the issues on the merits as a punishment for a breach of these rules unless the other party has been made to suffer prejudice which cannot be compensated for by an appropriate order as to costs. - Save in special cases or exceptional circumstances, it can rarely be appropriate then, on an overall assessment of what justice requires, to deny a defendant an extension of time where the denial would have the effect of depriving him of his defence because of a procedural default which, even if unjustified, has caused the plaintiff no prejudice for which he cannot be compensated by an award of costs. -

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Extension of time to file aeic, expired, other party expired. Application to extend time to file affidavit in chief retroactively. Need more time to do AEIC. Court said o rules of civil procedure guide the court and litigants towards a just resolution of the case and should be adhered to. Nonetheless, a litigant should not be deprived of his opportunity to dispute the plaintiff’s claims and have a determination of the issues on the merits as a punishment for breach of the rules unless the other party had suffered such prejudice which could not be compensated for by costs. The court further held that: o Save in special cases or in exceptional circumstances, it could rarely be appropriate, on an overall assessment of what justice required, to deny a defendant an extension of time where the denial would have the effect of depriving him of his defence because of a procedural default which, even if unjustified, had caused the plaintiff no prejudice for which he could not be compensated by costs. => a gentler approach to breach of procedural rules, in extension of time cases. o 2 conflicting interests involved: (i) that the ROC has to be obeyed; c.f. (ii) parties’ rights to access to courts to adjudicate their cases on merits. o costs can be used to penalise a party in default.

Lea Tool & Moulding Industries v. CGU International Insurance [2001] 1 SLR 413 At various PTCs, the Plaintiffs were ordered by the Registrar to take steps to move the case forward. After 5 PTCs, the Registrar made an unless order in relation to the orders stated above. On 26 March 1997, Mr Tham (a representative of the plaintiffs) personally filed the defendants` bundle of documents on behalf of the plaintiffs. The Defendants drew attention to Order 5 rule 6(2) of the which did not permit the Plaintiffs (as a body corporate) to properly file the Defendants` bundle of documents through Mr Tham. On 1 April 1997 a default judgment was entered pursuant to the unless order. The plaintiffs applied to the Registrar seeking an order to set aside the judgment. The AR dismissed the application. The plaintiffs appealed. - Held (allowing the appeal): Procedural laws are ultimately handmaidens to help the court to achieve the ultimate and only objective of achieving justice as best it can in every case. They should not be permitted to rule the court to such an extent that injustice is done. In this case of filing by a company unrepresented by a firm of solicitors, it is not an immutable rule of procedure that any step taken in any

proceeding by a corporate litigant had to be done by a solicitor or else the step taken by an officer of and on behalf of the corporate litigant counts for nothing.

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=> For latter two cases, parties held to be in breach of unless order –> Unless perform sth within certin time, parties in breach o Courts held in both cases – where breach – court has power to strike out the claim or counterclaim as the case may be because breach of unless order usu amts to contumelious default o Contumelious default is usu assumed therby giving court power to strike out claim or counterclaim Court went on to hold however, tt ROC are not meant to be tools of injustice o “These are handmaidens to help the court achive the ultimate objective of achieving justice as best as it can in every case” o procedural laws ought not to be allowed to rule the court to such an extent that injustice is done. Follwing fr this, where there is a breach of unless order, relevant qn to consider is whether the failure was intentional and contumelious. o The party in breach must onversely show that it had the intention to comply and was prevented against its intention from doing so. o The party in default must how tt there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances beyond its control such tt the failure to obey wld not be treated as contumelious. In other words – o 1. Need to show positive efforts to comply and tt despite this, cld nt comply because of circusmtnaces byond contor o Merely writing letters is NOT enough o Courts say tt need to use also handphone, or go and see client personally. Cannot just rely on snail mail. Must show positive efforts to comply and that DESPITE this, circumstances beyond control o Must do what was reasonable Together with tokai maru – o 2. Also pt out to courts merits of client’s claim and tt in three cases, court mindful of fact tt rules of court are handmaidens and meant to promote justice enad in normal course of events, litigant shld not be deprived of opportunity to go to court BUT this is not the cruncher o 3. Say tt we will bear the costs of extension of time and all costs occasioned by default – then court will say o ie contrition backed up by offer to pay!! o Court will ask – are you paying out of client’s pocket or firm – if fault is on firm – then u shld pay – if fault is shared – shld still stand up (first ensure tt firm willing to indemnify)

(c) Order 34A, rule 6 – deals with the event of failure by any party to appear at PTC Failure to appear of one or more of the parties (O. 34A, r. 6) 6. —(1) If, at the time appointed for the pre-trial conference, one or more of the parties fails to attend, the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit. (2) An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court, on the application of that party, on such terms as it thinks just. (3) Without prejudice to the preceding paragraphs of this Rule, where one or more of the parties to the action or proceedings fails to attend the pre-trial conference, the Court may, if it thinks fit, adjourn the conference. (d) Order 34A, rule 7 – deals with non-disclosure of communication at pre-trial conference rationale :- to encourage parties to come clean so as to encourage settlement. Non-disclosure (O. 34A, r. 7) 7. No communication of facts disclosed or of any matter considered in the course of a pre-trial conference in any action or proceedings shall be made to the Court conducting the trial of the action or proceedings. Documents lodged prior to trial: Agreed Bundle, Plaintiff’s and Defendants’ Bundles

Filing documents when setting down (O. 34, r. 3) 3. —(1) In order to set down for trial an action, the party setting it down must deliver to the Registrar, a request in Form 61 that the action may be set down for trial together with a bundle for the use of the Judge consisting of one copy of each of the following documents: (a) the writ; (b) the pleadings (including any affidavits ordered to stand as pleadings), any notice or order for particulars and the particulars given; (c) all orders made on the summons for directions; and (d) a certificate in Form 62, signed by all parties to the action or their solicitors, to the effect that all affidavits of the evidence-in-chief of witnesses ordered or required to be exchanged pursuant to Order 25 have been so exchanged. (2) The bundle must be bound up in the proper chronological order and have endorsed thereon the names, addresses and telephone numbers of the solicitors for the parties or, in the case of a party who has no solicitor, of the party himself. Filing documents prior to trial (O. 34, r. 3A) 3A. —(1) The following documents must be filed not less than 5 days before the trial of an action: (a) the originals of the affidavit of the evidence-in-chief of all witnesses; (b) a bundle of all documents that will be relied on or referred to in the course of the trial by any party, including any documents that are exhibited to the affidavits of the evidence-in-chief of all witnesses; and (c) where the trial is in the High Court, opening statements of all parties as may be prescribed in any practice directions for the time being issued by the Registrar. (2) Each party shall file the affidavits of the evidence-in-chief of that party’s witnesses. (3) The contents of the bundle of the documents referred to in paragraph (1) (b) shall be agreed on between all parties as far as possible and this bundle of agreed documents shall be filed by the plaintiff. (4) If the parties are unable to agree on the inclusion of certain documents, those documents on which agreement cannot be reached shall be included in separate bundles, and each such bundle shall be filed by the party that intends to rely on or refer to the documents in that bundle at the same time as the bundle of documents referred to in paragraph (1) (b). (5) The documents contained in bundles must be arranged chronologically or in some logical order and must be paginated. (6) Care must be taken to avoid duplication within the same bundle. (7) The contents and format of every bundle of documents filed in pursuance of this Rule shall comply with the requirements laid down in any practice directions for the time being issued by the Registrar. (8) Any party may apply at any time to the Registrar for directions as to the filing, bundling and organisation of documents intended to be used at the trial of the action, and, on such application, the Registrar may make such order or give such direction as he thinks is necessary to achieve the just, expeditious and economical conduct of the trial of the action. Agreed Bundle

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Order 34, rule 3A(1)(b) – includes the ‘Agreed Bundle’: where both parties agree to the documents included in the bundle. Can take var bases/ forms of agreement – can agree tt docs are authentic/ truth of contents of docs have to be proved./ dispense with proof of authenticity/ but not with need to have truth of it proved - The agreement usually extends only to the authenticity of the documents for the purpose of proving their existence. But there is no agreement as to the truth of the contents of the documents. The parties may dispute the facts contained in the document. or agree on these docs but NOT with the truth of the documents you must be clear abt the agreement – expressly unless u agree, merely a bundle of docs common to both parties - but formal admission of doc not taken to be dispensed with umless parties have agreed expressly - they must expressly agree what bundles to contain and bases of the agreement must ensure tt parties k now what has been agreed to pertaining to docs

Goh Ya Tien v. Tan Song Gou [1981] 2 MLJ 317 - Deals with how the parties may agree on documents to be put together as the “Agreed Bundle” and the effect of such an agreement. The Court held that if a party only intends to agree to the authenticity of his opponent’s documents, he must expressly indicate this. Both parties may not be able to agree to all the documents which they wish to tender. In such a situation, the documents will have to be placed in a separate bundle. The bundles are usually referred to as “plaintiff’s bundle” and “defendant bundle”. ***Jet Holding Ltd and Others v Cooper Cameron (g) Pte Ltd and another 2006 SGCA 20*** impt for exams!! - Plaintiffs claimed damages against c for breach of contract, and against c and s for neg breach of duty; total claim was in region of some 22 million US dollars trial judge found def liable to plaintiffs - However judge found tt plaintiff’s main basis to prove loss (damages bundle) not properly admitted to evid o This bundle was not agreed o not admitted o truth ont proved o (prior to trial, bundle must be agreed to be admitted without need of formal proof or if not, get maker of statement to court to admit to the statement) o otherwise, end up with possib tt cannot prove claim because docs not formally admitted! Even though docs in this case voluminous - Thus judge refused to consider any part of damage bunde in assessing extent of loss caused by defs breaches - Award plaintiffs damages in amt of 1 million, which was proven during trial, and further sum of 10 sing dollars as nominal damages in respect of other pleaded damages Plaintiffs appealed Sg CA upheld ruling of trial judge - Citing s66 evid act, court held tt as general rule, all docs must b proved by pri evid – sec evid only admissible in evid in cirucmsntces set ou in s67 of act - Court observed tt at NO stage in proceedings before tiral judge were orig docs in damages bundle produced. Further noted tt reqts in s67 of act not satisfied as wld warrant the introduction of sec evid. Court further ruled tt even if damages bundle admitted, the truth of its contents must still be proved. CA held o It must be emphasised tt whilst formal proof of docs concerned is dispensed with by agreed bundle of docs, the truth of their contents will still have to be proved in the absence of any agreement or admission to the contrary. - Court noted tt counsel for the plaintiffs sought – indirectly at least – to suggest tt it was both impractial as well as unfair to expect the plaintiffs to satisfy the evidence provisions (ss66/67) esp since no of docs was voluminous. However, such arg fr practicality and fairness must have a legal basis. o Ie have to be clear on what is agreed and what is not – if not agreed, what is impt to do! o Signal to all lawyers tt if want to rely oin agreed bundle, need to ensure tt bundle is agreed to. If not, problem of proving case. In this case, bundles pertained specifically to damages, because of this, cour awarded one dollar for damages when worth a lot more o In light of this judgement, the finger of liabilty pted at the solicitors. Client deprived of substantive damages arising fr sol’s negligence! o In normal course of events parties will try to agree otherwise to prove truth (makers of statement to swear ot it etc) – very costly, losing party to pay o Only way is to say tt other party is estopped fr saying tt bundle is not formally admitted

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But this arg at trial is risky – dependnt on judge agreeing with you on what is reasonable conduct to be inferred

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Mere fact tt other party quiet may not amt to estoppel or acquiescence

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In the sitn if docs tendered and put to other side and ther side not raised objection, given right st of circumstances, cld be inferred tt other party has waived right to challenge BUT this is reliant on judge making assessment of facts to conclude tt this shld be the case based on fairness, etc

 So far better to just agre on bundle before trial – EXPRESS AGREEMENT However, the court recognised the Imptance of balance In this regard, it noted o We are therefre of the view tt whilst, as an impt pt of departure, a party seeking to introd docs into evid ought to comply with provn in EA, if dosc are in fact marked and admitted into evid without tt party in fact satisfying the reqt in ea and where no objn taken by other party at tt partr pt in time, then tt other party cannot obj to admission of said docs later o Last mentioned proposition applies in a fortiori manner when party who had not objected to introdn of docs subseq cross exmines relevant witnesses on these docs in an attempt to discredit the truth of contents stated therein o Note tt whilst partr arg was in fact raised in plaintiff’s written submissions, they were not direct focus during oral arg bfore this court o (note tt this is exception only to genral rule) Held, allowing Cameron’s appeal with regard to the issue of indemnity in part and dismissing the plaintiffs’ and Stork’s appeals: (1) There was no agreement to dispense with formal proof of the claims for damages. In order for the plaintiffs’ argument that the defendants had waived authenticity to succeed, there had to be clear evidence of an agreement by the parties concerned to the effect that the authenticity of the documents in question was not an issue. There was nothing in the series of correspondence relied on by the plaintiffs which suggested that counsel for the defendants had in fact resiled from, or compromised in any way, the objections that they had taken during the trial itself. In addition, the exchange that took place before the Judge appeared to be rather ambiguous, at best. In fact, the precise opposite had occurred in the form of clear objections taken by the defendants and which were noted by the Judge herself. Most importantly, the Judge herself made a clear finding to the effect that the parties had not entered into the agreement so strenuously argued for by counsel for the plaintiffs. She was the best person to assess whether or not the defendants had objected to the Damages Bundle because she was present throughout the proceedings: at [27], [29], [30] and [33]. (2) Whilst the contents of an affidavit would be deemed to include the contents of the documents exhibited to it, the question of whether such documents could themselves be admitted into evidence as authentic documents would depend on whether or not they satisfied the relevant criteria contained in the EA or fell within the relevant exceptions contained therein. If, in fact, documents such as those involved in the present appeal were automatically admitted into evidence by virtue of the fact that they were exhibited to the affidavit concerned without more, this would enable parties to circumvent the relevant rules and principles embodied within the EA which were intended to ensure that only the best evidence was admitted into evidence. In an extreme situation, wholly bogus documents could be admitted simply because the deponent of the affidavit had exhibited them to the affidavit itself: at [36]. (3) The rules and principles of evidence, particularly as embodied within the EA, played an important part in the administration of justice and were not mere window-dressing. Sections 63 to 67 of the EA (in particular s 66) had, as their core rationale, the aim of ensuring that the best evidence was available before the court. In the present appeal, it was clear, first, that the requirement of “primary evidence” in s 66 had not been satisfied. At no stage in the proceedings before the Judge were the original documents produced. Secondly, it was equally clear that the requirements in s 67, which allowed secondary evidence to be given, were not satisfied either. On this ground alone, the Judge was correct in finding that the documents in the Damages Bundle had not been admitted into evidence: at [36], [38] and [73]. (4) In addition to failing on their various arguments as to authenticity, the plaintiffs also failed to overcome the objections from hearsay. They did not bring themselves within any of the potentially applicable exceptions to the rule to hearsay. First, s 35 of the EA, which related to computer output as evidence, appeared to be more germane to the issue of liability, as opposed to the quantum of damages. In addition, the requirements of s 32(b) of the EA had not been satisfied. In particular, it was a question of fact whether or not there were grounds for holding that the relevant evidence could not be procured without unreasonable delay or expense within the meaning of s 33 of the EA: at [75], [78], [79] and [81]. 44 By way of preliminary observation, although it is true that a copious number of documents were involved in the present proceedings, it is equally true that any problems of authenticity could have been surmounted (as they often are in cases of this nature) by an agreed bundle of documents, although (unfortunately) this was not the case here. However, it must be emphasised that whilst formal proof of the documents concerned is dispensed with by an agreed bundle of documents, the truth of their contents will still have to be proved in the absence of any agreement or admission to the contrary. In this regard, the observations in the Singapore High Court decision of Goh Ya Tian vTan Song Gou [1980–1981] SLR 578 at -

581, [12] are too broad inasmuch as they suggest that the proof of the truth of the contents of the documents concerned is also dispensed with and, to that extent, ought not to be followed. 45 Indeed, when counsel for Stork, Mr Alvin Yeo SC, was posed a question as to practicality when so many documents were involved, he referred precisely to the solution in the form of an agreed bundle of documents; where there was no such agreed bundle, which situation he conceded was the right of any party in litigation to insist upon, Mr Yeo argued that parties (again, pursuant to their respective rights in litigation) had the prerogative of objecting to any documents tendered – with any sanctions lying in the sphere of an order for costs. As we explain below, we are of the view that this last-mentioned point is (subject to the issue of timing) generally correct. If the parties cannot come to the more felicitous arrangement where there is in fact an agreed bundle, then each must face the consequences of a potentially “messier” situation in so far as the admission of documents into evidence is concerned. Unfortunately, this was precisely the situation here – but with a slight (albeit vitally significant) difference. The defendants were within their legal rights to object to the Documents tendered by the plaintiffs. But we did not perceive counsel for the plaintiffs to be arguing that the Damages Bundle should have been admitted on the basis that no objections had in fact been taken by the defendants in the instant case to it. As we have seen, counsel for the plaintiffs relied, instead, on the argument to the effect that the defendants had in fact agreed to admit the Damages Bundle, which was a somewhat different argument and indeed imposed, in our view, a heavier onus of proof on the plaintiffs and which we did not accept. Exchange of witness statements (not covered in lectures) Richard Saunders v. Eastglen [1990] 3 All ER 946 Where a party seeks an order under the ROC for the exchange of witness statements of all oral evidence which the parties intend to lead at trial, the normal practice is for the court to order simultaneous exchange of proofs of oral evidence irrespective of whether the evidence is technical or is source material, unless it is inappropriate for such an order to be made. Mercer v. Chief Constable of Lancashire [1991] 1 WLR 367 In this case, the English Court of Appeal indicated that simultaneous exchange of statements should be the usual order of the judge. It would be undesirable for either party to be in a position to seek some tactical advantage by delaying service of its witnesses’ statements until it has been served with the witness statements by the other side. Fairfield-Mabey v. Shell U.K Ltd [1989] 1 All ER 576 Witness statements which have been exchanged under ROC are not put in evidence by the fact of exchange, but remain confidential until the witness makes a statement in public by verifying it on oath in the witness box or the party who served the statement waives the privilege. 2.

PROCEEDINGS AT TRIAL – ORDER 35

Opening statement – not in exams plaintiff/ def – nutshell of case see SCPD for opening statement

a)

Order 35, rule 1(1) – failure by both parties to appear at the trial.

Failure to appear by both parties or one of them (O. 35, r. 1) 1. —(1) If, when the trial of an action is called on, neither party appears, the Judge may dismiss the action or make any other order as he thinks fit. (2) If, when the trial of an action is called on, one party does not appear, the Judge may proceed with the trial of the action or any counterclaim in the absence of that party, or may without trial give judgment or dismiss the action, or make any other order as he thinks fit.

b)

Order 35, rule 1(2) – failure by one party to appear at the trial

Failure to appear by both parties or one of them (O. 35, r. 1) (2) If, when the trial of an action is called on, one party does not appear, the Judge may proceed with the trial of the action or any counterclaim in the absence of that party, or may without trial give judgment or dismiss the action, or make any other order as he thinks fit.

c)

Order 35, rule 2 – setting aside judgment made under Rule 1

Judgment, etc., given in absence of party may be set aside (O. 35, r. 2) 2. —(1) Any judgment or order made under Rule 1 may be set aside by the Court on the application of any party on such terms as the Court thinks just. (2) An application under this Rule must be made within 14 days after the date of the judgment or order -

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May be charged for contempt – go to jail Committal of contempt, though, not a reson for disbarment – unlike dishonesty Procedure at trial – o Examination, cross examination, re examinatin

d)

Judge may give directions as to order of speeches rule 4(1) otherwise default proced applies:

Order of speeches (O. 35, r. 4) 4. —(1) The Judge before whom an action is tried may give directions as to the party to begin and the order of speeches at the trial and, subject to any such directions, the party to begin and the order of speeches shall be that provided by this Rule. (2) Subject to paragraph (6), the plaintiff shall begin by opening his case. (3) If the defendant elects not to adduce evidence, then, whether or not the defendant has in the course of cross-examination of a witness for the plaintiff or otherwise put in a document, the plaintiff may, after the evidence on his behalf has been given, make a second speech closing his case and the defendant shall then state his case. (4) If the defendant elects to adduce evidence, he may, after any evidence on behalf of the plaintiff has been given, open his case and, after the evidence on his behalf has been given, make a second speech closing his case, and at the close of the defendant's case the plaintiff may make a speech in reply. (5) Where there are 2 or more defendants who appear separately or are separately represented, then — (a) if none of them elects to adduce evidence, each of them shall state his case in the order in which his name appears on the record; (b) if each of them elects to adduce evidence, each of them may open his case and the evidence on behalf of each of them shall be given in the order aforesaid and the speech of each of them closing his case shall be made in that order after the evidence on behalf of all the defendants has been given; (c) if some of them elect to adduce evidence and some do not, those who do not shall state their cases in the order aforesaid after the speech of the plaintiff in reply to the other defendants. (6) Where the burden of proof of all the issues in the action lies on the defendant or, where there are 2 or more defendants and they appear separately or are separately represented, on one of the defendants, the defendant or that defendant, as the case may be, shall be entitled to begin, and in that case paragraphs (2), (3) and (4) shall have effect in relation to, and as between, him and the plaintiff as if for references to the plaintiff and the defendant there were substituted references to the defendant and the plaintiff respectively. (7) Where, as between the plaintiff and any defendant, the party who would, but for this paragraph, be entitled to make the final speech raises any fresh point of law in that speech or cites in that speech any authority not previously cited, the opposite party may make a further speech in reply, but only in relation to that point of law or that authority, as the case may be.

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Order 35, rule 4(1) – deals with the order of speeches at the trial if def elects not to adduce evid o opening speech on behalf of plaintiff o plaintiff’s witnesses examined, cross examined and re-examined o closing speech by plaintiff o def states o case if defelects to give evid o plaintiff’s case opened o witnsees called o plaintiff’s witnesses examined, cross eamined and re-examined

o o o o o

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def opens case witnesses called def’s witnesses examined, cross exmiend and re-examined closing speech for def closing speech for plaintiff

Opening speech The plaintiff opens his case with an address to the Court introducing the issues and facts – Order 35, rule 4(1). Practice Direction – opening speech must be filed 2 days before the trial

(3)

Closing speech

(4)

Evidence at Trial************ very impt for exam

Order 38, rule 1 – evid in chief in action begun by writ by affidavit; cross exam and reexam -

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deals with the rule that witnesses should be examined. It is a fundamental principle that justice be administered in open court so that it may be seen to be done. Consistent with this principle is the general rule of procedure in relation to trials that a party must prove his case in open court. General rule under O. 38 r. 1 that every fact by evidence of witnesses to be proved by examination of witness in open court.

General rule: Witnesses to be examined (O. 38, r. 1) 1. Subject to these Rules and the Evidence Act (Chapter 97), and any other written law relating to evidence, any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses in open Court. -

See s139-141 – dealing with affidavits of eic

Evidence Act Examination-in-chief, cross-examination and re-examination 139. —(1) The examination of a witness by the party who calls him shall be called his examination-in-chief. (2) The examination of a witness by the adverse party shall be called his cross-examination. (3) Where a witness has been cross-examined and is then examined by the party who called him, such examination shall be called his re-examination. Order of examinations and direction of re-examination 140. —(1) Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined, then, if the party calling them so desires, re-examined. (2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. (3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter. (4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further crossexamination, and if it does so, the parties have the right of further cross-examination and re-examination respectively. Cross-examination of person called to produce a document 141. A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless he is called as a witness. Witnesses to character 142. Witnesses to character may be cross-examined and re-examined. Leading questions 143. Any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as to which the witness is to testify, is called a leading question.

When they must not be asked 144. —(1) Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a reexamination, except with the permission of the court. (2) The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved. When they may be asked 145. —(1) Leading questions may be asked in cross-examination, subject to the following qualifications: (a) the question must not put into the mouth of the witness the very words which he is to echo back again; and (b) the question must not assume that facts have been proved which have not been proved, or that particular answers have been given contrary to the fact. (2) The court, in its discretion, may prohibit leading questions from being put to a witness who shows a strong interest or bias in favour of the cross-examining party. -

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But rule 2 – shall be given by way of affidavit Note also O. 38 r. 2 … evidence in chief of a witness shall be given by way of affidavit and, unless the Court otherwise orders or the parties to the action otherwise agree, such a witness shall attend trial for crossexamination and, in default of his attendance, his affidavit shall not be received in evidence except with the leave of the Court.

Evidence by affidavit (O. 38, r. 2) 2. —(1) Without prejudice to the generality of Rule 1, and unless otherwise provided by any written law or by these Rules, at the trial of an action commenced by writ, evidence in chief of a witness shall be given by way of affidavit and, unless the Court otherwise orders or the parties to the action otherwise agree, such a witness shall attend trial for cross-examination and, in default of his attendance, his affidavit shall not be received in evidence except with the leave of the Court. (2) In any cause or matter begun by originating summons and on any application made by summons, evidence shall be given by affidavit unless in the case of any such cause, matter or application any provision of these Rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court. (3) Unless the Court otherwise orders, no deponent to an affidavit may at the trial or hearing of any cause or matter give evidence in chief, the substance of which is not contained in his affidavit except in relation to matters which have arisen after the filing of the affidavit. (4) Notwithstanding paragraph (1), (2) or (3), the Court may, if it thinks just, order that evidence of a party or any witness or any part of such evidence be given orally at the trial or hearing of any cause or matter. (5) Nothing in this Rule shall make admissible evidence which if given orally would be inadmissible. -

Richard saunders v eastglen 1990 3 AER 946 Mercer v chief constable of Lancashire 1991 1 WLR 367 Fairfield – mabey v shell UK 1989 1 AER 576 Prudential assurance v fountain page 1991 1 WLR 756

Order 38 rule 3 – evid of partr facts Evidence by particular facts (O. 38, r. 3) 3. —(1) Without prejudice to Rule 2, the Court may, at or before the trial of any action, order that evidence of any particular fact shall be given at the trial in such manner as may be specified by the order. (2) The power conferred by paragraph (1) extends in particular to ordering that evidence of any particular fact may be given at the trial — (a) by statement on oath of information or belief; (b) by the production of documents or entries in books; (c) by copies of documents or entries in books; or (d) in the case of a fact which is or was a matter of common knowledge either generally or in a particular place, by the production of a specified newspaper which contains a statement of that fact. Order 38 Rule 10

Court documents admissible or receivable in evidence (O. 38, r. 10) 10. —(1) Office copies of writs, records, pleadings and documents filed in the Registry shall be admissible in evidence in any cause or matter and between all parties to the same extent as the original would be admissible. (2) Without prejudice to the provisions of any written law, every document purporting to be sealed with the seal of the Supreme Court or the Subordinate Courts, as the case may be, shall be received in evidence without further proof, and any document purporting to be so sealed and to be a copy of a document filed in, or issued out of, the Supreme Court or the Subordinate Courts shall be deemed to be an office copy of that document without further proof unless the contrary is shown.

e)

Order 35, rule 3 – adjournment of trial

Adjournment of trial (O. 35, r. 3) 3. The Judge may, if he thinks it expedient in the interest of justice, adjourn a trial for such time, and upon such terms, if any, as he thinks fit. f)

General

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if ill, make sure that MC certifies that not fit to go to court. May want to go to court to produce MC.

g)

Submission of no case to answer – not in exam

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At the conclusion of the Plaintiff’s case, the defendant can submit that there is no case to answer. I.e. when all the plaintiff’s witness had given evidence, defendant’s counsel forms the view that the key elements of the plaintiff’s cause of action have not been made up. And on that basis, Defendant submits that there is no case for the defendant to answer. Unlike in criminal cases, a defendant rarely makes a submission of no case to answer. This is because the defendant solicitor must undertake not to call any further evidence, even in the event that the submission is not upheld.

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Rationale – it is undesirable for a judge (being a judge of fact) to make any ruling on the evidence until the process for its adduction is complete. be very certain that defendant is going to succeed and plaintiff had not made any case. Make submission of no case to answer when plaintiff had not made up case (best to ask client). If the court upholds the submission of no case to answer, the P has not made out his case, and judgment will be entered for the D. However, if the submission is rejected, the court finds there is sufficient evidence to make out the P’s case. The D cannot raise evidence to prove his defence, and hence judgment will be entered for the P. Need undertaking tt will never call other evid – because u stand or fall on evid tt u put before the court Very diff fr crim proceedings o In civil trial, this is the one and only shot – that is IT

Cases Laurie v Raglan [1942] 1 KB 152 Yuill v Yuill [1945] P 15 Alexander v. Rayson [1936] 1 KB 169 At the conclusion of the defendant’s evidence, the plaintiff submitted that there was no case to answer. Court said: Where an action is being heard by a jury, it is quite usual and often very convenient at the end of the case of the plaintiff or of the party having the onus of proof (like the defendant here) to submit that there is no case to answer. But for a judge, this is highly inconvenient. The judge is also the judge of fact, and it is not right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed. Goh Ya Tien v. Tan Song Gou [1981] 2 MLJ 317 The judge will require the defendant to undertake not to call any evidence in the event that the submission of no case to answer is not upheld. - The onus which in this case was a fine one had therefore shifted to the first and third respondents at the close of the appellant`s case. At that stage, they submitted that they had no case to answer. The learned

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magistrate put them on the usual election. He, in effect, said to them: `I`m not going to rule on your submission of no case to answer unless you indicate to me that if I should rule against you on your submission you will offer no evidence on your behalf.` Was the learned magistrate right? He was referred to Pandey v Hotel Marco Polo Pte Ltd [1978-1979] SLR 490 where TS Sinnathuray J said by an addenda to his oral judgment: On the subject of no case to answer, a summary of the practice of the Courts of England is to be found in the White Book at 35/7/2. The last time the practice was judicially considered is in the Court of Appeal decision Storey v Storey [1963] P 63 CA: `There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff`s evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged.` In my judgment, it would be a desirable practice in our courts to allow a submission of no case to answer at the end of the plaintiff`s case, without putting the defendant to his election, whether to call evidence or not, if his submission fails. It is trite to say that we have a young legal profession and a fused one. Most are small practitioners and engage in many fields of law. The time and effort put in litigation matters are diffused. Such a practice therefore will ensure not only that there is a thorough preparation of the case before trial, but also a careful presentation of it at the hearing. Altogether, the practice will bring about a saving of costs for the parties. These pronouncements should have been binding on or at least highy persuasive to the learned magistrate. Yet he did not follow them and did put all three respondents to the election. Was the learned magistrate right? It would appear that the subordinate courts have often not followed these pronouncements of TS Sinnathuray J. I have to address myself on this question because if the learned magistrate was wrong, I would have ordered the learned magistrate to continue with the trial and allow the first respondent and the third respondent to adduce evidence in their favour. However, after careful consideration, I am reluctantly compelled to say that I cannot agree with the pronouncements of TS Sinnathuray J. Instead of our expeditious disposal of a trial and a saving of costs, I am afraid that the very opposite consequences will ensue if the practice should grow in our courts to allow a submission of no case to answer at the end of the plaintiff`s case, without putting the defendant to his election whether to call evidence or not, if his submission fails. A defendant who is not put to an election will not be under any disincentive. He will be encouraged to make a submission of no case to answer, go through the evidence and the law. The plaintiff answers. The defendant replies. Multiply this process in every civil case, the logical conclusion must be that trials are prolonged. I should think that this would be a most undesirable consequence. In my view if a judge is asked to rule at the end of the plaintiff`s case that the plaintiff has made out no case it is most desirable that he should put counsel for the defence to his election as to whether he wishes to call evidence for the defence and should refuse to give a ruling unless counsel elects to call no evidence. I respectfully adopt what fell from the lips of Thomson CJ (as he then was) in Simirah v Chua Hock Lee & Anor [1963] MLJ 239 , 241: ... the question then arises what this court should do in view of the course taken at the trial by counsel tor the defendants when he submitted that there was no case to answer. It is a great pity that when this submission was made the advice of Goddard, LJ (as he then was) in the case of Purry v Aluminium Corp Ltd 162 LTR 236 was disregarded. His Lordship there observed that in cases of negligence if a judge is asked to rule at the end of the plaintiff`s case that the plaintiff had made out no case it is most desirable that he should put counsel for the defence to his election as to whether he wishes to call evidence for the defence and should refuse to give a ruling unless counsel elects to call no evidence. That statement as to the practice which should be followed in such circumstances has been approved again and again ( Laurie v Raglan Building Co Ltd [1942] 1 KB 152 154: Yuill v Yuill [1945] P 15; Storey v Storey [1963] P 63). In the present case it is unfortunate that counsel who made the submission of no case to answer neglected to refresh the judge`s memory on this point. It is equally unfortunate, and even more surprisings, that counsel for the plaintiff should also have failed in this regard. In the circumstances I think we have no option so far as the second defendant is concerned but to order a new trial. In my view, for which I have stated my reasons, the submission of no case to answer should have failed and the position would then have had to be considered in the light of the following passage from the judgment of Lord Greene MR in the case of Yuill v Yuill, supra (at p 18): `The practice which has been laid down amounts to no more than a direction to the judge to put counsel who desires to make a submission of no case to his election, and to refuse to rule unless counsel elects to call no evidence. Where counsel has so elected he is, of course, bound: but if for any reason, be it through oversight

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or (as here) through a misapprehension as to the nature of counsel`s argument, the judge does not put counsel to his election, and no election in fact takes place, counsel is entitled to call his evidence just as if he had never made the submission.` The appeal as against the first and third respondents is therefore allowed with costs. Judgment for $1,132.20 should be entered against them with costs both here and below.

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On appeal, undertaking is still present and binding. Hence the party who made the submission still cannot raise any evidence, can only argue that the legal elements are not made out.

h)

Official record of hearing – official shorthand note

Record of hearing (O. 38A, r. 1) 1. —(1) An official record shall be made of every hearing and the official record of hearing shall consist of the following: (a) in a hearing where an audio recording system is used, the audio recording; and (b) in a hearing where an audio recording system is not used, the notes of hearing recorded in such manner as the Registrar or the Court may determine. (2) Any party may apply for a copy or a transcript of the official record of hearing on payment of such fees as the Registrar may determine. (3) The costs of producing a copy or a transcript of the official record of hearing may be claimed as an item of disbursement unless otherwise ordered by the Court. Certification of transcript (O. 38A, r. 2) 2. The authenticity of a transcript of the official record of hearing shall be certified in such manner as the Registrar may determine. Duration for which record is to be kept (O. 38A, r. 3) 3. Every official record of hearing shall be kept for a period of 5 years. 3. -

Judgements and orders - Order 42 order 42 – judgement after tial to be pronounced in open court/

Delivering judgments (O. 42, r. 1) 1. —(1) Every judgment, after the hearing of a cause or matter in open Court, shall, subject to paragraphs (3) and (4), be pronounced in open Court either on the conclusion of the hearing or on a subsequent day of which notice shall be given to the parties. (2) Where a cause or matter is heard in Chambers, the Judge hearing it may, subject to paragraphs (3) and (4), pronounce the judgment in Chambers, or, if he thinks fit, in open Court. (3) Whenever a written judgment is to be delivered, the Court may deliver it by directing copies thereof to be handed to the parties or their solicitors upon payment of the appropriate charges therefor, and the original thereof signed by the Judge shall be filed. (4) When a Judge who has heard any cause or matter is unable through death, illness or other cause to pronounce judgment, the judgment written by him may be pronounced by any other Judge in open Court or in Chambers, as the case may be, and such other Judge may deliver it in Chambers by directing copies thereof to be handed to the parties or their solicitors upon payment of the appropriate charges therefor, and the original thereof signed by the Judge who wrote it shall be filed. form 79 Form of judgment, etc. (O. 42, r. 5) 5. —(1) If, in the case of any judgment, a form thereof is prescribed in Form 79, the judgment must be in that form. (2) The party entering any judgment shall be entitled to have recited therein a statement of the manner in which the writ or other originating process by which the cause or matter in question was begun was served. (3) An order must be marked with the name of the Judge or the Registrar by whom it was made and must be sealed. -

reqg act to be done, must specify period 6.1 c.f. 6.2

Judgment, etc., requiring act to be done: Time for doing it (O. 42, r. 6) 6. —(1) Subject to paragraph (2), a judgment or order which requires a person to do an act must specify the time after service of the judgment or order, or some other time, within which the act is to be done. (2) Where the act which any person is required by any judgment or order to do is to pay money to some other person, give possession of any immovable property or deliver any movable property, a time within which the act is to be done need not be specified in the judgment or order by virtue of paragraph (1), but the foregoing provision shall not affect the power of the Court to specify such a time and to adjudge or order accordingly. -

committal order 45

Enforcement of judgment to do or abstain from doing an act (O. 45, r. 5) 5. —(1) Where — (a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, Rule 4; or (b) a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to these Rules, the judgment or order may be enforced by one or more of the following means: (i) with the leave of the Court, an order of committal; (ii) where that person is a body corporate, with the leave of the Court, an order of committal against any director or other officer of the body; (iii) subject to the provisions of the Debtors Act (Chapter 73), an order of committal against that person or, where that person is a body corporate, against any such officer. -

takes effect fr date

Date from which judgment or order takes effect (O. 42, r. 7) 7. —(1) A judgment or order of the Court takes effect from the day of its date. (2) Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders it to be dated as of some other earlier or later day, in which case it shall be dated as of that other day. extraction proced Preparation of judgment or order (O. 42, r. 8) 8. —(1) Where the party in whose favour a judgment or order is given or made is represented by a solicitor, a copy of the draft shall be submitted for approval to the solicitor (if any) of the other party who shall within 2 days of the receipt thereof, or within such further time as may in any case be allowed by the Registrar, return such copy with his signed consent or any required amendments thereto. (2) When the solicitor omits to return the copy of the draft within the time prescribed, he shall be deemed to have consented to the terms thereof. (3) In any case where the solicitors concerned are unable to agree upon the draft, any one of them may obtain an appointment before the Registrar, of which notice shall be given to the other, to settle the terms of the judgment or order. (4) Every judgment or order shall be settled by the Registrar, but in the case of a judgment or order made by a Judge, any party may require the matter in dispute to be referred to the Judge for his determination. (5) Where the other party has no solicitor, the draft shall be submitted to the Registrar. every order must be drawn up Orders required to be drawn up (O. 42, r. 9) 9. —(1) Subject to paragraph (2), every order of the Court shall be drawn up unless the Court otherwise directs.

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those tt need not be drawn up Orders required to be drawn up (O. 42, r. 9) 9. (2) An order — (a) which — (i) extends the period within which a person is required or authorised by these Rules, or by any judgment, order or direction, to do any act; or (ii) grants leave for the doing of any of the acts mentioned in paragraph (3); and (b) which neither imposes any special terms nor includes any special directions other than a direction as to costs, need not be drawn up unless the Court otherwise directs.

(3) The acts referred to in paragraph (2) (a) (ii) are — (a) the issue of any writ, other than a writ of summons which is required for service out of the jurisdiction; (b) the amendment of an originating process or a pleading; (c) the filing of any documents; and (d) any act to be done by an officer of the Court other than a solicitor. -

before extraction judgement or order can be reviewed

re harrison’s shares etc 1955 Ch 260 chua wah keow v ng ho huat 1961 27 MLJ 321 Facts: An order which has not yet been perfected can be withdrawn, or altered, or modified only if to perfect it as orally pronounced would result in an erroneous order. The plaintiff, alleging that he was the owner of a taxi, claimed damages against the two defendants for damage caused to the taxi in a collision between the vehicles of the two defendants. The plaintiff, in fact, was not the owner of the taxi but only the hirer under a hire-purchase agreement. His claim was thereupon dismissed. Subsequently, the learned trial Judge, on ascertaining that the order had not been drawn up and perfected, recalled and reheard the matter. On the suggestion of the learned trial Judge, counsel for the plaintiff applied for leave to amend his statement of claim so that it could be pleaded that the plaintiff was the bailee of the taxi. Leave was given, and after hearing argument, the learned trial Judge found the first defendant solely to blame and awarded damages against him. The first defendant appealed:Held : there was no doubt as to the correctness of the order of the learned trial Judge whereby the action was dismissed. That being so the learned trial Judge had not exercised his discretion properly in recalling and withdrawing the order and allowing the plaintiff to amend the statement of claim.