5 And 6 - Writ

Writ action Exam – sn a – 40 short qns 1 mark each and b – choose 2 of 3 long hypos with many parts File management – 30% legis and subsid legis that wld be helpful ROC – order 1 to 92 Forms – cross refer to these at the end Family court – sep procedure (matrimonial proceedings rules/ women’s charter) Civil pro covers only non crim and non fam matters Overview of a civil process Originating – to start case Used when disputes of fact (OS – little dispute of fact) Writ track more complicated Originating process – writ or OS. Pre trial applications But in between, may have many other applications to file – pre trial applications (relief at any pt in time) = summons – previously summons in chambers (SIC)) note different from writ of summons which is the originating process • Modes in which applications is made during litigation: (1) Summons in Chambers (Interlocutory application) Which court to go to? Supreme court – HC and CA Sub court – small claims trib/ magis court/ district court • High Court has both original and appellate jurisdiction Monetary jurisdiction of every tier – • Monetary Limit: (i) Small Claims Tribunal - $10,000; with consent $20,000 (ii) Magistrates’ Court - $60,000 and below (iii) District Court - $250,000 and below (iv) High Court – Above $250,000 How to invoke jurisdiction in sg courts SCJA – section 16 – invoking juris on def by serving writ or OS on him – there will be juris over him in civil courts in sg • Jurisdiction of the Singapore Courts – Section 16 SCJA: service of writ on Defendant (A) Writs of Summons - Form, Endorsements, Issue, Duration and Renewal VERY IMPORTANT!!!!!!!!!! 1. Form, Endorsements: a) O 6, r 1 of the Rules of Court (“ROC”) - every writ must be in Form 2. For an Admiralty/shipping writ in personam or in rem - it must be in Form 159 (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.). b) O 6, r 2(1) - before a writ is issued, it must be endorsed with the following:

(1)

statement of claim (full) or concise nature of claim (summary)- r 2(1)(a). – writ will either accompany detailed statement of claim or If no time to draft and need to rush out concise nature of claim - short summary summarizing nature of claim) – impt because of limitation period. Statement of claim takes prescribed form.

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(2) (3) (4) (5) (6)

for debt or liquidated demand (fixed sum) (unliquidated – to be determined), endorsement of cost/payment/stay - r 2(1)(b). plaintiff or defendant sues or sued in representative capacity, with statement of such capacity - r 2(1)(c) and (d). sues by solicitor, with plaintiff’s address, solicitor’s name or firm and business address of solicitor within jurisdiction - r 2(1)(e). sues in person, address of residence within jurisdiction, or if none, the address within jurisdiction for service of documents; occupation - r 2(1)(f). number of days within which appearance is to be entered (appear to defend)– r 2(1)(g) and O 12 r 4.

Endorsement on writ (O. 6, r. 2) 2. —(1) Before a writ is issued, it must be endorsed — (a) with a statement of claim or, if the statement of claim is not endorsed on the writ, with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby; (b) where the claim made by the plaintiff is for a debt or liquidated demand only, with a statement of the amount claimed in respect of the debt or demand and for costs and also with a statement that further proceedings will be stayed if, within the time limited for appearing, the defendant pays the amount so claimed to the plaintiff or his solicitor; (c) where the plaintiff sues in a representative capacity, with a statement of the capacity in which he sues; (d) where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued; (e) where the plaintiff sues by a solicitor, with the plaintiff’s address and the solicitor’s name or firm and a business address of his within the jurisdiction; (f) where the plaintiff sues in person — (i) with the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent; and (ii) with his occupation; and (g) with the number of days within which an appearance is required to be entered under Order 12, Rule 4. (2) The address for service of a plaintiff shall be — (a) where he sues by a solicitor, the business address of the solicitor endorsed on the writ; and (b) where he sues in person, the address within the jurisdiction endorsed on the writ. Time limited for appearing (O. 12, r. 4) 4. References in these Rules to the time limited for appearing are references — (a) in the case of a writ served within the jurisdiction, to 8 days after service of the writ or, where that time has been extended by or by virtue of these Rules, to that time as so extended; and (b) in the case of a writ served out of the jurisdiction, to 21 days after service of the writ as provided for in Order 10, Rule 2 or Order 11, Rule 2 or to such extended time as the Court may otherwise allow. 2. Issue, Duration & Renewal

a)

Issuance of a writ (all by EFS – prepare in soft copy the transmit to courts):

Issue of writ (O. 6, r. 3) 3. —(1) A plaintiff or his solicitor must, on presenting a writ for sealing, leave with the Registrar the original and a copy together with as many copies thereof as there are defendants to be served. (2) The Registrar shall assign a serial number to the writ and shall sign, seal and date the writ whereupon the writ shall be deemed to be issued. (3) The original writ must be filed in the Registry and an entry thereof made in the cause book.

(1) (2)

O 6, r 3(1) - Plaintiff seeking issuance of writ must file with the Registrar an original and one copy of the writ, and one additional copy for each defendant to be served. (efile 1 copy - (efile - only signs and seals one and sends the rest). (2) O 6, r 3(2) - Registrar will assign a serial number to the writ and sign, and date the original and all copies of the writ, and seal all copies of the writ ( writ is deemed issue when registrar hyas done all f this) (ie: Suit no: xxxx/2002)

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(3)

(3) O 6, r 3(3) - The writ is deemed issued and the action has commenced on the date the Registrar has done the above.

(4)

SEE also Order 63A: electronic filing and service

b)

Validity of a writ of summons and its renewal:

Duration and renewal of writ (O. 6, r. 4) 4. —(1) Subject to the other provisions of these Rules, for the purposes of service, a writ is valid in the first instance — (a) where leave to serve the writ out of the jurisdiction is required under Order 11, for 12 months; and (b) in any other case, for 6 months, beginning with the date of its issue. (2) Subject to paragraph (2A), where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 6 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any), as the Court may allow. (2A) Where the Court is satisfied on an application under paragraph (2) that, despite the making of reasonable efforts, it may not be possible to serve a writ within 6 months, the Court may, if it thinks fit, extend the validity of the writ for such period, not exceeding 12 months at any one time, as the Court may specify. (3) Before a writ, the validity of which has been extended under this Rule, is served, it must be marked with an official stamp in Form 3 showing the period from which the validity of the writ has been so extended. (4) A note of the renewal must be entered in the cause book.

(1)

O 6, r 4 - a writ is valid for the purposes of service, for 6 months “beginning with date of its issue” [see r 1(a)]; valid for 12 months if necessary to obtain leave to serve out of jurisdiction [see r 1(b)]. “Date” means day, and does not take into account fractions of a day. May start off as 6 mth but court may extend to 12 where cannot locate the defendant for any reason. **Note: Reference to “date” means day, and does not take into account fractions of a day. The effect of this rule is that the writ cannot be served after the time period subject to renewal.

(2)

Trow v Ind Coope Ltd [1967] 2 All ER 900 - The validity of the writ for the appropriate period begins with the actual day on which it is issued, and therefore a writ issued on the 10th of January 2000 will not be valid for service on 10th July 2000. The last valid day for service being 9th July 2000. Source: WB 6/8/3 (1997). White Book, para 6/8/3 1987 Therefore a writ issued on the 10th of January will not be valid for service on the 10th of July 2000. The last valid day for service is 9th July 2000.

(3)

O 6, r 4(2) - the validity of the writ may be extended by the court for up to 6 months whether such application is made before or after the writ has expired.

(4)

O 6, r 4(2A) - the validity of the writ may be extended by the court for up to 12 months whether such application is made before or after the writ has expired, if it is shown that, despite making reasonable efforts, it may not be possible to serve the writ within 6 months. **Note: This means that the plaintiff has up to 6 months after the expiry of the writ to apply for its renewal. If you renew early, the date will still run from the date of the expiry of the original writ. Note: You are allowed to renew up to 1 ‘tranche’ of 6 months –i.e there is a grace period of 6 months after the date of expiry of the original writ. {You can renewal within that period} If you renewal after expiry (but within the 6mths), the date that the new writ will run is from the old date of expiry. Once you renew the writ, then you can avail yourself to another 6 month grace period. So long as the

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writ remains ‘alive’, limitation would not kick in (can renew forever even if limitation period expire 10 years ago) Therefore: Theoretically, there are no limits to Renewal [save for judicial discretion]

(5)

Application for renewal is made ex parte (single party contra inter partes – 2 parties need to apply ) by summons to the Registrar, and must be supported by an affidavit (reasons must be given – to go before commissioner for oath – prosecution may follow if found laying; if not in sg, go before notary for public – docs to be used overseas. Exception, if doc prod in Malaysia to be used un sg – can still be before CFO. Anywhere else – NFP)). (a) Full and frank disclosure of material facts is required in the affidavit. (b) If there is non-disclosure, the renewal may be set aside. (c) In deciding whether to set aside, the court will balance the hardship to each party (see The Lircay [1997] 2 SLR 669). (chambers – just suit; open court – robes)

The Lircay [1997] 2 SLR 660

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The court’s power to extend the validity of a writ was only to be exercised for good reason. It was not possible to either define or circumscribe the scope of the expression ‘good reason’ and much depended on all the circumstances of the case. It depended, thus, on the court’s exercise of discretion whether a writ was to be extended. In exercising this discretion, the judge was entitled to have regard to the balance of hardship between the parties as a relevant matter to be taken into account on an ex parte application, including the consideration of whether prejudice would be caused to the other party in the circumstances of the case Lim Hong Kan & Ors v Mohd Sainudin bin Ahmad [1992] 1 SLR 353 and Kleinwort Benson Ltd v Barbrak Ltd; The Myrto (No 3) [1987] 2 All ER 289 followed.

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The plaintiffs’ ground for renewal of the writ, namely, that there was no reasonable opportunity to serve the writ on the vessel as it had not called at Singapore during the currency of the writ or its extensions, was accepted by the court as a sufficient and good reason for the various extensions granted and validation of the writ. The White Book 1997 para 6/8/8 stated that the absence of ship in a port on which service was to be made was a good ground for renewing the writ

(6)

Based on Kleinwort Benson Ltd v Barbrak Ltd [1987] 2 All ER 289, cases for renewal can be categorised as follows: (a) Application for extension when writ still valid and limitation period has not expired. (b) Application for extension when writ still valid but limitation period has expired. (c) Application for extension when writ ceased to be valid and limitation period has expired – court more stringent here however.

(7)

The principles applicable to extensions of writ are as follows [see Kleinwort Benson Ltd and Lim Hong Kan v. Mohd Sainudin bin Ahmad (1992) 1 SLR 353]:

a)

The power to extend the validity of a writ should be exercised for a “good reason”. (i) When the court has found a good reason: where the writ has not been served to save costs, especially where there was no delay to the defendants (see Kleinwort Benson and Lim Hong Kan).

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Lim Hong Kian v Mohd Sainudin bin Ahmad [1992] 1 SLR 353

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Facts: Respondent Worker injured in worksite accident on 8 Aug 1979. Engaged appellant solicitors to commence a suit against the owners of the worksite. That writ was served on 7 Aug 1982. Worksite owners filed a defence. Action was subsequently dismissed by the High Court on 30 Dec 1982. Appellants appealed on the worker’s behalf. Pending appeal, respondent engaged another firm M/S PK to issue a writ against the appellants claiming negligence on the appellant’s part on 18 July 1988. Respondents did not serve and subsequently renewed the writ on 20 June 1989. On 20 July 1989, the appeal for the 1st action was dismissed. Respondent then proceeded to serve the renewed writ on the appellants. Appellants applied to set aside on the ground that the claim was time barred, that this was not disclosed when making renewal and the extension denied the appellants their right to Limitation. Respondents claimed that the 2nd writ was not served until the outcome of the 1st action’s appeal as the Respondent wanted to save costs and practically, there would be no need to proceed against the appellants if the appeal in the first action succeeded.

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CA Held: [Kleinwort Benson v Barbrak Ltd affirmed and followed] This was a “Category 2” case.

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The saving of legal costs, in this case, was a sufficiently good reason for not serving the original writ on the appellants before it expired as the respondent had already incurred considerable costs in the first action and his need to save additional costs was entirely reasonable. In addition, it would have been unreasonable, or at least unrealistic, to require the respondent to serve the original writ on the appellants especially when the appeal in the first action had already been fixed for hearing on a day just outside the validity period of the writ for if the appeal succeeded, it would not have been necessary to proceed with the second action. The omission to serve the writ was also in the interests of the appellants as no solicitor would want to invite publicity on a suit against him for negligence in the discharge of his professional duties

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Comment on Lim Hong Kian: Kleinwort Benson involved a large financial institution (bank) and 164 defendants. Nonetheless, the reason for not serving was the same – i.e. saving of legal costs. This was accepted. The court in Lim Hong Kian observed that in the present scenario, i.e. a menial labourer who had already been ordered by the High Court to pay costs to the worksite owners in the first action, had 2 possible sets of costs to contemplate. Hence, there was all the more reason to accept the Respondent’s reason for not serving the writ pending the outcome of the 1st appeal. Also, the court distinguished the case of Waddon v Whitecroft-Scovill Ltd where the party seeking to set aside the renewal showed that the other side had ample opportunity to remove the limitations on the legal aid certificate in order to serve the writ, and its failure to take steps to do so meant that there was ‘no good reason’ to justify the extension. where the defendant has requested for the service of the writ be withheld (see Kun Kay Hong v. Tan Teo Huat [1984 - 1985] SLR 232). where the writ has not been served to save costs, especially where there was no delay to the defendants (see Kleinwort Benson and Lim Hong Kan). no opportunity to serve writ for eg. Vessel has not called into port (very commonly cited reason. (ii) When the court has not found a good reason: delay arose because the plaintiff was awaiting the outcome of other proceedings that might have an impact on the instant proceedings [see Battersby & Ors v Anglo American Oil Co; and Dagnell & Anor v JL Freedman & Co. (a firm)]. service was not effected because parties were negotiating and there was no clear agreement by the defendant to the delay in the service of the writ (see Heaven v Road [1965] 2 QB 355 and Easy v Universal Anchorage Co Ltd [1974] 2 All ER 1105. a plaintiff has insufficient funds to proceed with the litigation (see Baly & anor v Barrett) (p to p costs to be paid; loser of action need to pay both winner’s costs and solicitor costs) negligence of the plaintiff’s solicitors (why? Coz the plaintiff will still have a recourse against his solicitors for negligence)  this argument was tried in Lim Hong Kian again and was rightly rejected since there was no prejudice – i.e. the plaintiff did not lose his recourse for negligence – just has to sue his lawyer for negligence instead of the original defendant. (see New Ching Kee v Lim Ser Hock [1972 - 1974] SLR 572) where the plaintiffs had failed to take reasonable steps to effect service of the writ (see The Big Beacher [1984 - 1985] SLR 131).

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b) c) d)

Whether there is a good reason that exists in any particular case depends on all the circumstances of the case. Balance of hardship is a relevant matter to be taken into account, but only if good reason is already shown. The discretion of the judge and his exercise of it should not be interfered with by an appellate court except on special grounds. (as practice, writs generally allowed to renew, rarely turned down)

(8) The court’s power is limited to extending the validity of the writ by 6 months (or 12 months as the case may be). - Once writ has expired beyond the grace period to renew (see landmark case - QBE Insurance [1988] SLR 111), the court has no power to extend validity. Sg courts very strict abt this – CA refused to budge. Cf Malaysia court. - Normal writ will normally expire within 6 mths – 10 jun to 10 july. Can renew writ anytime before it expires. Law also says that even after expiry date, can apply to renew from 10 july to 9 january. - If renew in may for eg, extension f next 6 mths not from may but also from 10 july. Because there is grace period to renew after 10 july, can renew everytime after 10 july before the next 6 mths end. If renew in eg august, it will still be deemed to be extended from july, not fr august. Last day to renew writ is 9 january. Same principle applies for 12 mths. - Where writ is dead/expired – apply for new writ where cause of action has not expired. - If limitation period is gone – then dead. Client is without relief.

e)

Successive extensions are not permitted: QBE Insurance (International) Ltd [1989] 1 MLJ 1 / [1988] SLR 111

OR of Jason Textiles Industries Pte Ltd v QBE Insurance (International) Ltd [1989] 1 MLJ 1 / [1988] SLR 111 Facts: The plaintiffs issued a writ of summons against the defendants on 2 December 1980 for alleged loss and damage arising from a fire which occurred on 4 December 1979. The validity of the writ for service expired on 1 December 1981, but neither the writ nor the statement of claim was served on the defendants. On 7 August 1985, 56 months after the writ was issued, the plaintiffs filed an ex parte application to renew the validity of the writ for service for five successive 12-month periods from 11 December 1981 to 2 December 1986. On 18 November 1985, the plaintiffs were granted an order in terms of their application. The writ was served on 12 December 1985 and the defendants applied to set aside the writ. The deputy registrar granted the defendants` application and the plaintiffs appealed to the High Court which dismissed the appeal. The plaintiffs then appealed to the Court of Appeal. Issues: The appeal raised the following issues: (a) whether the court had power under O 6 r 7 of the Rules of the Supreme Court 1970 to extend the validity of the writ for five successive 12-month periods; (b) whether the non-renewal of a writ that was served after the expiry of its period of validity could be treated as an `irregularity` under O 2 r 1; (c) what were the limits to the exercise of the court`s discretion under O 2 r 1 in deciding whether or not to cure any irregularity; (d) if the court had the power to extend the validity of the writ, what were the principles which governed the exercise of this discretion. Held: Dismissing the Appeal - (1) The court`s power under O 6 r 7 (now O 6 r 4(2A) was limited to extending the validity of the writ for a maximum of 12 months at any one time. This meant that an application for renewal must be made at the latest within 12 months of the expiry of the writ. There was no power to grant two or more successive renewals to bring the writ up to date (2)The non-renewal of a writ served after expiry was an `irregularity` within O 2 r 1 so that it could be, as it were, cured. This conclusion was compelled by the width of the wording of the rule. However, the court`s power to cure an irregularity under O 2 r 1 could only be exercised if the court could have properly granted the order, for which there was a failure to apply, had there also been an application made pursuant to the relevant provision in the Rules. 3).In the present case, the plaintiffs could not avail themselves of O 2 r 1. The writ was set aside by the registrar on 22 May 1986, and had an application under O 6 r 7 been made to the registrar, he would not have been able to renew the writ in the manner asked for for two reasons: (a) on 22 May 1986, more than 12 months would have lapsed since the validity of the writ last expired (ie 1 December 1981) and there was no power to renew the writ for more than 12 months; (b) the plaintiffs had not shown any good reason why the validity of the writ ought to have been extended and it would not be a proper exercise of discretion to grant it.

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4).The case had to be looked at as a whole and all circumstances must be considered in deciding whether there were good reasons for extending the validity of the writ. On the facts, there was no question of the plaintiffs` inability to serve the writ. The plaintiffs were simply unwilling to effect service on the defendants. The fact that if renewal was refused, the plaintiffs` claim would be time-barred was not an exceptional circumstance. What was required in an application for renewal were not exceptional circumstances but good reasons.

3. Service of writs of summons a) O 62, r 1(1) - the general rule is that documents need not be served personally unless the Rules require – (WOS and OS); O 62, r 1(2) - the court has power to dispense with the requirement of personal service. When personal service required (O. 62, r. 1) 1. —(1) Any document which by virtue of these Rules is required to be served on any person need not be served personally unless the document is one which by an express provision of these Rules or by order of the Court is required to be so served. (2) Paragraph (1) shall not affect the power of the Court under any provision of these Rules to dispense with the requirement for personal service. b)

O 10, rr 1 & 5 - all originating processes must be served personally.

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. Service of originating summons (O. 10, r. 5) 5. Rules 1 to 4 (except Rule 1 (3) and (4)) shall apply in relation to an originating summons as they apply in relation to a writ.

c)

There are exceptions to the requirement of personal service for originating processes:

(1)

O 10, r 1(2) - defendant’s solicitors endorse their acceptance of the service of the writ.

General provisions (O. 10, r. 1) (2) Where a defendant’s solicitor endorses on the writ a statement that he accepts service of the writ on behalf of that defendant, the writ shall be deemed to have been duly served on that defendant and to have been so served on the date on which the endorsement was made.

(2)

O 10, r 1(3) - defendant enters an appearance even though there has been no due service.

Order 10, rule 1(3) (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.

(3)

(3) O 10, r 3 - personal service waived by a contractual term as between parties.(contractual term to impose indemnity costs – 1/3 more. Clause will also say normally that will not serve by personal service)

Service of writ in pursuance of contract (O. 10, r. 3) 3. —(1) Where — (a) a contract contains a term to the effect that the Court shall have jurisdiction to hear and determine any action in respect of a contract or, apart from any such term, the Court has jurisdiction to hear and determine any such action; and (b) the contract provides that, in the event of any action in respect of the contract being begun, the process by which it is begun may be served on the defendant, or on such other person on his behalf as may be specified in the contract, in such manner or at such place (whether within or out of the jurisdiction), as may be so specified, then if

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an action in respect of the contract is begun in the Court and the writ by which it is begun is served in accordance with the contract the writ shall, subject to paragraph (2), be deemed to have been duly served on the defendant. (2) A writ which is served out of the jurisdiction in accordance with a contract shall not be deemed to have been duly served on the defendant by virtue of paragraph (1) unless leave to serve the writ out of the jurisdiction has been granted under Order 11.

(4)

O 10, r 4 - in applications for possession of immovable property, where it appears that no person appear to be in possession, to affix writ on a conspicuous spot.

Service of writ in certain actions for possession of immovable property (O. 10, r. 4) 4. Where a writ is endorsed with a claim for the possession of immovable property the Court may — (a) if satisfied on an ex parte application that no person appears to be in possession of the immovable property and that service cannot be otherwise effected on any defendant, authorise service on that defendant to be effected by affixing a copy of the writ to some conspicuous part of the immovable property; (b) if satisfied on such an application that no person appears to be in possession of the immovable property and that service could not otherwise have been effected on any defendant, order that service already effected by affixing a copy of the writ to some conspicuous part of the immovable property shall be treated as good service on that defendant.

(5)

O 62, r 5 - where there is an application for substituted service.(in substitution of personal service)

Substituted service (O. 62, r. 5) 5. —(1) If, in the case of any document which by virtue of any provision of these Rules is required to be served personally on any person, it appears to the Court that it is impracticable for any reason to serve that document personally on that person, the Court may make an order in Form 136 for substituted service of that document. (2) An application for an order for substituted service must be made by summons supported by an affidavit in Form 137 stating the facts on which the application is founded. (3) Substituted service of a document, in relation to which an order is made under this Rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.

(6)

O 73, r 3 (to be read with s 20 of the Government Proceedings Act) - service on the Government by leaving the writ at the relevant office.

Service on Government (O. 73, r. 3) 3. —(1) Order 10, Order 11 and any other provision of these Rules relating to service out of the jurisdiction shall not apply in relation to the service of any process by which civil proceedings against the Government are begun. (2) Personal service of any document required to be served on the Government for the purpose of or in connection with any civil proceedings is not requisite; but where the proceedings are by or against the Government service on the Government must be effected — (a) by leaving the document at the office of the person who is in accordance with section 20 of the Government Proceedings Act (Chapter 121), to be served, or of any agent whom that person has nominated for the purpose, but in either case with a member of the staff of that person or agent; or (b) by posting it in a prepaid envelope addressed to the person who is to be served as aforesaid or to any such agent. (3) In relation to the service of any document required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government, Order 62, Rules 6 and 10, shall not apply, and Order 62, Rule 8, shall apply as if the reference therein to Rules 3 and 6 (1) (a) of that Order were a reference to paragraph (2) (a) of this Rule. Service of documents. 20. All documents required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government shall, if those proceedings are by or against an authorised Government department, be served on the solicitor, if any, for that department, or the person, if any, acting for the purposes of this Act as solicitor for that department, or if there is no such solicitor and no person so acting, or if the proceedings are brought by or against the Attorney-General, on the Attorney-General.

(7)

O 11, r 5 - request for service to be arranged by the Minister to serve an originating process on a High Contracting Party to the Warsaw Convention.

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Service of originating process in certain actions under certain written law (O. 11, r. 5) 5. —(1) Where a person to whom leave has been granted under Rule 2 to serve an originating process on a High Contracting Party to the Warsaw Convention, being an originating process beginning an action to enforce a claim in respect of carriage undertaken by that Party, wishes to have the originating process served on that Party, he must file in the Registry — (a) a request for service to be arranged by the Minister; (b) a sealed copy of the originating process; and (c) except where the official language of the High Contracting Party is, or the official languages of that Party include, English, a translation of the originating process in the official language or one of the official languages of the High Contracting Party. (2) Rule 4 (5) shall apply in relation to a translation filed under paragraph (1) as it applies in relation to a translation filed under Rule 4 (4). (3) Documents duly filed under this Rule shall be sent by the Registrar to the Permanent Secretary to the Ministry of Foreign Affairs with a request that he arrange for the originating process to be served on the High Contracting Party or the government in question, as the case may be.

(8)

O 70, rr 7 & 10 - serving a writ on a vessel - first, affix it on the mast of a ship or on the outside of the superstructure for a short while. Next, remove it and affix it on a sheltered and conspicuous part of the vessel.

Service of writ in action in rem (O. 70, r. 7) 7. —(1) Subject to paragraph (2), a writ by which an action in rem is begun must be served on the property against which the action is brought except — (a) where the property is freight, in which case it must be served on the cargo in respect of which the freight is payable or on the ship in which that cargo was carried; or (b) where the property has been sold by the Sheriff, in which case the writ may not be served on that property but a sealed copy of it must be filed in the registry and served on the Sheriff and the writ shall be deemed to have been served on the day on which the copy was filed. (2) A writ need not be served or filed as mentioned in paragraph (1) if the writ is deemed to have been duly served on the defendant by virtue of Order 10, Rule 1 (2) or (3). (3) Where by virtue of this Rule a writ is required to be served on any property, the plaintiff must leave the writ and a copy thereof at the Registry and file therein a Request4 in Form 163; and where he does so the Sheriff or his officer shall serve the writ on the property described in the Request4. The expenses incurred by the Sheriff or his officer in effecting service shall be paid to the Sheriff on demand by him. (4) Where a writ is served on any property by the Sheriff or his officer, the person effecting service must indorse on the writ the following particulars, that is to say, where it was served, the property on which it was served, the day of the week and the date on which it was served, the manner in which it was served and the name and the address of the person effecting service, and the indorsement shall be evidence of the facts stated therein. (5) Where the plaintiff in an action in rem, or his solicitor, becomes aware that there is in force a caveat against arrest with respect to the property against which the action is brought, he must serve the writ forthwith on the person at whose instance the caveat was entered. (6) Where a writ by which an action in rem is begun is amended under Order 20, Rule 1, after service thereof, Order 20, Rule 1 (2), shall not apply and, unless the Court otherwise directs on an application made ex parte, the amended writ must be served on any intervener and any defendant who has entered an appearance in the action or, if no defendant has entered an appearance therein, it must be served or filed in accordance with paragraph (1). Service on ships, etc.: How effected (O. 70, r. 10) 10. —(1) Subject to paragraph (2), service of a warrant of arrest or writ in an action in rem against a ship, freight or cargo shall be effected — (a) by affixing the warrant or writ for a short time on any mast of the ship or on the outside of any suitable part of the ship’s superstructure; and (b) on removing the warrant or writ, by leaving a copy of it affixed (in the case of the warrant) in its place or (in the case of the writ) on a sheltered, conspicuous part of the ship. (2) Service of a warrant of arrest or writ in an action in rem against freight or cargo or both shall, if the cargo has been landed or transhipped, be effected — (a) by placing the warrant or writ for a short time on the cargo and, on removing the warrant or writ, leaving a copy of it on the cargo; or

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(b) if the cargo is in the custody of a person who will not permit access to it, by leaving a copy of the warrant or writ with that person.

(9)

O 76, r 14 - for an infant, serve on the guardian; for a patient (incapable of managing his affairs), serve on the authorized person under the Mental Disorders and Treatment Act to conduct on behalf of the patient. - – get order fr HC to serve n guardian – is there any parent action? Ie case going oin in court? No. need to start action. Whether guy is mad or not – no dispute, so take out OS. Go before HC, get order to serve on guardian.

Service of certain documents on person under disability (O. 76, r. 14) 14. —(1) Where in any proceedings a document is required to be served personally on any person and that person is a person under disability, this Rule shall apply. (2) Subject to this Rule and to Order 24, Rule 16 (3), and Order 26, Rule 6 (3), the document must be served — (a) in the case of an infant who is not also a patient, on his father or guardian or, if he has no father or guardian, on the person with whom he resides or in whose care he is; (b) in the case of a patient, on the person (if any) who is authorised under the Act to conduct in the name of the patient or on his behalf the proceedings in connection with which the document is to be served or, if there is no person so authorised, on the person with whom he resides or in whose care he is, and must be served in the manner required by these Rules with respect to the document in question. (3) Notwithstanding anything in paragraph (2), the Court may order that a document which has been, or is to be, served on the person under disability or on a person other than a person mentioned in that paragraph shall be deemed to be duly served on the person under disability. (4) A judgment or order requiring a person to do, or refrain from doing any act, a summons for the committal of any person, and a subpoena against any person, must, if that person is a person under disability, be served personally on him unless the Court otherwise orders. This paragraph shall not apply to an order for interrogatories or for discovery or inspection of documents.

(10)O 77, r 3 - service at the principal place of business of the partnership is sufficient service on a partnership. Service of writ (O. 77, r. 3) 3. —(1) Where by virtue of Rule 1 partners are sued in the name of a firm, the writ may, except in the case mentioned in paragraph (2), be served — (a) on any one or more of the partners; or (b) at the principal place of business of the partnership within the jurisdiction, on any person having at the time of service the control or management of the partnership business there, and where service of the writ is effected in accordance with this paragraph, the writ shall be deemed to have been duly served on the firm, whether or not any member of the firm is out of the jurisdiction. (2) Where a partnership has, to the knowledge of the plaintiff, been dissolved before an action against the firm is begun, the writ by which the action is begun must be served on every person within the jurisdiction sought to be made liable in the action. (3) Every person on whom a writ is served under paragraph (1) must at the time of service be given a written notice in Form 205 stating whether he is served as a partner or as a person having the control or management of the partnership business or both as a partner and as such a person; and any person on whom a writ is so served but to whom no such notice is given shall be deemed to be served as a partner.

(11)O 62, r 4 - service on a body corporate by serving on the chairman, president, treasurer, secretary or other similar officer. Personal service on body corporate (O. 62, r. 4) 4. Personal service of a document on a body corporate may, in cases for which provision is not otherwise made by any written law, be effected by serving it in accordance with Rule 3 on the chairman or president of the body, or the secretary, treasurer or other similar officer thereof. (12) s 387 of the Companies Act - service on a company by leaving a copy of the writ at the registered address of the company or sending it by registered post

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Service of documents on company 387. A document may be served on a company by leaving it at or sending it by registered post to the registered office of the company.

(13)O 10 r.2: Service on local agent of Overseas Principle [one way to avoid O 11 service out of jurisdiction is to try this rule first] i. Made by ex-parte application. ii. Limbs (a) to (c) of O 10 r 2(1) are Conjunctive. Service of writ on agent of overseas principal (O. 10, r. 2) 2. —(1) Where the Court is satisfied on an ex parte application that — (a) an action relates to any business or work against a person who does not reside within Singapore or who is absent from Singapore; (b) an agent or manager has, at the time of service, personally the control or management of such business or work for such person within Singapore; and (c) at the time of the application either the agent’s or manager’s authority has not been determined, or he is still in business relations with the principal, the Court may authorise service of a writ of summons to be effected on such agent or manager instead of the principal. (2) For the purpose of this Rule, the agent of a ship shall be deemed to be the agent of the owner and charterer of the ship. (3) For the purpose of this Rule, “business or work” shall include the administration of an estate. (4) Every application under this Rule must be supported by an affidavit stating the nature of the claim. (5) An order under this Rule authorising service of a writ on a defendant’s agent or manager must allow the defendant 21 days, or such extended time as the Court sees fit, to enter appearance. (6) Where an order is made under this Rule authorising service of a writ on a defendant's agent or manager, a copy of the order and of the writ must be sent by prepaid registered post to the defendant at his address out of the jurisdiction if known to the plaintiff. (14) O 10 r. 3: Service of writ in pursuance of Contract Service of writ in pursuance of contract (O. 10, r. 3) 3. —(1) Where — (a) a contract contains a term to the effect that the Court shall have jurisdiction to hear and determine any action in respect of a contract or, apart from any such term, the Court has jurisdiction to hear and determine any such action; and (b) the contract provides that, in the event of any action in respect of the contract being begun, the process by which it is begun may be served on the defendant, or on such other person on his behalf as may be specified in the contract, in such manner or at such place (whether within or out of the jurisdiction), as may be so specified, then if an action in respect of the contract is begun in the Court and the writ by which it is begun is served in accordance with the contract the writ shall, subject to paragraph (2), be deemed to have been duly served on the defendant. (2) A writ which is served out of the jurisdiction in accordance with a contract shall not be deemed to have been duly served on the defendant by virtue of paragraph (1) unless leave to serve the writ out of the jurisdiction has been granted under Order 11. 1. 2.

U can serve according to the contract terms. But u cannot use O 10 r 3 to short-circuit the requirement of leave of court to serve out of jurisdiction or the specific heads of jurisdiction stipulated in O 11 r. 1(1)

d) Procedure for Personal service of writ (1) O 62, r 2(1) - personal service must be effected by: a) a process server of the Supreme Court; or b) by a solicitor; or c) by a solicitor’s clerk whose name and particulars have been notified to the Registrar; or d) by a named person specially allowed by a Registrar; or e) via EFS under O 63A, r.12(1)(b). For a better understanding of O 63A, see also rules 8 to 11.

11

Personal service: Process server (O. 62, r. 2) 2. —(1) Personal service must be effected by a process server of the Court or by a solicitor or a solicitor’s clerk whose name and particulars have been notified to the Registrar for this purpose: Provided that the Registrar may, in a particular cause or matter, allow personal service to be effected by any other named person and shall, in that case, cause to be marked on the document required to be served personally, a memorandum to that effect. (2) Whenever the service of a document is attended with expense, a process server shall not, except by order of the Registrar, be bound to serve the document, unless reasonable expenses thereof have been tendered in the Registry by the party requiring the service. (3) Where service is by a process server, the Registrar shall forthwith give written notice to the plaintiff or person at whose instance the process is issued or to his solicitor, of the fact and manner of such service. Electronic filing (O. 63A, r. 8) 8. —(1) Where a specified document is required to be filed with, served on, delivered or otherwise conveyed to the Registrar under any other provision of these Rules, it must be so filed, served, delivered or otherwise conveyed using the electronic filing service in accordance with this Order and any practice directions for the time being issued by the Registrar. (1A) For the purpose of paragraph (1), any requirement for the filing, service, delivery or otherwise conveyance of a specified document is satisfied by the filing, service, delivery or otherwise conveyance of a single copy using the electronic filing service in accordance with this Order. (2) Filing, service, delivery or conveyance of a specified document using the electronic filing service in pursuance of paragraph (1) may be done in one of 2 ways — (a) by electronic transmission; or (b) via a service bureau. (3) Notwithstanding anything in paragraph (1), the Registrar may allow a document, part of a document or any class of documents to be filed, served, delivered or otherwise conveyed other than by using the electronic filing service. (4) The form of any specified document shall be as prescribed in any practice directions for the time being issued by the Registrar, and shall, in the absence of such prescription, be in the form prescribed by Order 1, Rule 7. Service of documents (O. 63A, r. 12) 12. —(1) If a specified document — (a) other than a document which is required by these Rules to be served personally; or (b) being a document which is required by these Rules to be served personally and which the party to be served has agreed may be served using the electronic filing service, is required under any other provision of these Rules to be served, delivered or otherwise conveyed by a person to any other person and that person is a registered user or is represented by a solicitor who is a registered user (referred to in this Rule as the person on whom the document is served), such service, delivery or conveyance may be effected by using the electronic filing service by electronic transmission or via a service bureau. (2) The document shall be deemed to be served, delivered or otherwise conveyed on the date and at the time that the first part of the transmission is received in the computer account of the network service provider unless evidence to the contrary is adduced. (3) The person serving the document may produce a record of the service, delivery or conveyance to the person on whom the document is served which is issued by the network service provider or the service bureau as evidence of the service, delivery or conveyance, as well as the date and time of such service, delivery or conveyance. (4) The person serving the document may file a Registrar’s certificate of service issued through the network service provider or the service bureau in lieu of an affidavit of service and the certificate shall be regarded as prima facie evidence of such service, delivery or conveyance on the date and at the time as stated. (5) Where a specified document has to be served, delivered or conveyed by the person serving the document to more than one person, he may effect such service, delivery or conveyance using the electronic filing service on such of those persons who are registered users, and paragraphs (1), (2), (3) and (4) of this Rule shall apply with such modifications as are necessary. (6) Order 62, Rule 8 shall apply to service effected under this Rule. (2) To comply with paragraph 9 of the Supreme Court Practice Directions and paragraph 8 of the Subordinate Courts’ Practice Directions in this regard. Sub courts PD 2006 ed part II, 10

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Supreme courts PD 2006 part III 32 Part II, 10. Personal service of processes and documents (1) The attention of solicitors is drawn to Order 62, Rule 2(1), of the Rules of Court which provides: “Personal service must be effected by a process server of the Court or by a solicitor or a solicitor's clerk whose name and particulars have been notified to the Registrar for this purpose: Provided that the Registrar may, in a particular cause or matter, allow personal service to be effected by any other named person and shall, in that case, cause to be marked on the document required to be served personally, a memorandum to that effect.” [emphasis added] (2) Solicitors are therefore required to notify the Civil Registry of the particulars, and any change thereof, of such clerks who have been authorised by them to serve processes and documents by filing Form 3 of Appendix B. Notifications under previous editions of the Subordinate Courts Practice Directions will be treated as being notifications under this sub-paragraph. Solicitors’ clerks do not require the authorisation of the Registrar to effect personal service of processes and documents. (3) In view of the alternative modes providing for personal service to be effected by a solicitor or a solicitor's clerk, Court process servers will not be assigned to effect personal service of processes and documents unless there are special reasons. (4) If it is felt that there are special reasons requiring personal service by a Court process server, a request for such service should be made by way of request, setting out therein the special reasons. The approval of the Duty Registrar should then be obtained for such service. Once approval has been obtained, the documents for service should be presented at the counter designated for this purpose. A process server will then be assigned to effect service and an appointment for service convenient to both the litigant and the assigned process server will be given. (5) On the appointed date, the person accompanying the process server should call at the Civil Registry. The amount required for the transport charges of the process server (a record of which will be kept) should be tendered, or, alternatively, the process server in question should be informed that transport for him will be provided. The Civil Registry will then instruct the process server to effect service. (6) Under no circumstances should any payment be made directly to the process server. (3) O 62, r 3 - personal service is effected by leaving a sealed copy of an originating process with the person. Personal service on a company is effected by leaving the document with the registered office - see s387 of the Companies Act. Personal service: How effected (O. 62, r. 3) 3. —(1) Personal service of a document is effected by leaving with the person to be served — (a) in the case of an originating process, a sealed copy; (b) in any other case, a copy of the document. (2) Personal service of a document may also be effected in such other manner as may be agreed between the party serving and the party to be served. Case Law on what constitute ineffective Personal Service (a) Heath v White [1844] 2 D & L 40 - The defendant was at an upper window of his house and the process server who was outside, called out to him, telling him that he had a writ against him, and held up a copy for him to see, and then threw it down in the presence of defendant’s wife, it was held that it was insufficient. Must notify personally. (b) Frith v Donegal [1834] 2 DPC 527 - Service on the wife of the defendant is not a good service.

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(c) Christmas v Eicke [1848] 6 D & L 156 - Putting a copy of the writ through the crevice of the door of the room in which the defendant is and telling him that it is a copy of the writ is not sufficient. Case Law on what constitute effective Personal Service (d) Kenneth Alison Ltd v A E Limehouse & Co. [1992] 2 AC 105 - the defendant instructed and authorised his personal assistant to accept service on his behalf. Held: Good and sufficient service.

d)

Substituted service (in lieu of personal service)

(1) O 62, r 5 - plaintiff may apply for substituted service by a Summons In Chamber supported by an affidavit if “it is impractical for any reason to serve that document personally on that person” and if granted, the order is to be extracted in compliance with form 136. ***E.g. of Substituted Service: (1) Posting on the front door if person resides there; (2) Advertising in a Leading Newspaper; (3) Posting to last known address of the Defendant. Substituted service (O. 62, r. 5) 5. —(1) If, in the case of any document which by virtue of any provision of these Rules is required to be served personally on any person, it appears to the Court that it is impracticable for any reason to serve that document personally on that person, the Court may make an order in Form 136 for substituted service of that document. (2) An application for an order for substituted service must be made by summons supported by an affidavit in Form 137 stating the facts on which the application is founded. (3) Substituted service of a document, in relation to which an order is made under this Rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served. (2) Timings for attempts at personal service - para 10 of the Supreme Court Practice Directions must be noted (see also para 9 of the Sub Courts’ PD for the equivalent) which states that directions contained in this paragraph shall be complied with before an application for an order for substituted service of a document which is required to be served personally is made:

-

(i) (ii) (iii) (iv)

At least 2 attempts must have been made ie before 8 am or after 5.30 pm on weekdays and before 8.00 am or after 1.30 pm on Saturdays if attempts are made at the residence. If attempts made at place of business, it must be after 8.30 am or before 5 pm on weekdays and after 8.30 am or before 1.00 pm on Saturdays. If both failed in reaching him personally, then can take out subst service At least 2 attempts at personal service should have been made The attempts at personal service should be made on separate days The attempts at personal service should be made at the residence of the party to be served, if known; otherwise, or if the claim relates to that party’s business or work, the attempts should be made at the party’s place of business or work. Attempts at personal service at a party’s residence should be made: Weekdays Saturdays Sundays and Public holidays

(v)

Before 8am or after 5.30pm; Before 8am or after 1.30pm; or At any reasonable time

Attempts at personal service at a party’s place of business or work should not be made on public holidays and should be made: Weekdays Saturdays

After 8.30 am or before 5.00 pm After 8.30pm or before 1.00 pm

Sub court PD para 9 and supreme court PD para 10 11. Substituted service (1) The Directions contained in this Paragraph shall be complied with

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before an application for an order for substituted service of a document which is required to be served personally is made. (2) Two attempts at personal service should be made. (3) The attempts at personal service should be made on separate days. (4) The attempts at personal service should be made at the residence of the party to be served, if known; otherwise, or if the claim relates to that party’s business or work, the attempts should be made at the party’s place of business or work. (5) The attempts at personal service at a party’s residence should be made: (a) before 8.00 a.m. or after 5.30 p.m. on weekdays; (b) before 8.00 a.m. or after 1.30 p.m. on Saturdays; or (c) at any reasonable time on Sundays and public holidays. (6) The attempts at personal service at a party’s place of business or work should not be made on Sundays or public holidays and should be made: (a) after 8.30 a.m. or before 5.00 p.m. on weekdays; or (b) after 8.30 a.m. or before 1.00 p.m. on Saturdays. 12. Application for substituted service or dispensation of service for originating processes under Part X of the Women’s Charter (Cap 353, 1997 Revised Edition) (1) Application for substituted service by way of posting on the front door at the defendant’s last known address in Singapore (“the address”) (a) At least two recent attempts at personal service should be made at the address, in accordance with the Directions set out in Paragraph 11 of these Directions. The affidavit should state the dates, times and outcomes of the said attempts. (b) If there is no response for both attempts at personal service (i.e. the door was locked and no one came to the door during both attempts), the plaintiff needs to state in the affidavit: (i) that to the best of the plaintiff’s knowledge, the defendant is currently residing at the address; and (ii) the grounds for the plaintiff’s belief that the defendant is currently residing at the address, for example, that the plaintiff is also residing at the same address, and sees the defendant every day. (c) If the plaintiff is not able to state both of the matters set out in sub-paragraph (1)(b)(i)-(ii) above in the affidavit, he or she should make attempts to locate the defendant by contacting the defendant’s relatives, friends, and employer(s) (if any), in order to discover the address at which the defendant is currently residing. The affidavit should then include the following matters: (i) Details of the plaintiff’s last contact with the defendant, including the date, the mode of contact (i.e. over the telephone, a letter, or a meeting), and the contents of any communications made, whether written or oral. (ii) Details of the plaintiff’s knowledge of the defendant’s relatives and friends, and those person(s)’ knowledge of his/her whereabouts (“the defendant’s contacts”), including their names, addresses and their relationship to the defendant and whether they live in Singapore or overseas. (iii) Details of the plaintiff’s attempts to contact the defendant’s contacts, including the number of such attempts made, the dates and mode of the said attempts (i.e. whether by telephone, letter, or meeting), and the contents of any communications made, whether written or oral. (iv) The name and address of the defendant’s last known employer (if any), and the result of enquiries the plaintiff

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has made of that employer as to the defendant’s whereabouts, including the date of such enquiries, the mode of the said enquiries (i.e. whether by telephone, letter, or meeting), and the contents of any communications made, whether written or oral. (v) Details of the defendant’s nationality. (d) If the local address at which the defendant is currently residing (not being the matrimonial home) is discovered by the plaintiff pursuant to sub-paragraph (1)(c) above, personal service on the defendant should be attempted at that address in accordance with Paragraph 11 of these Directions. Details of the dates, times and outcomes of the personal service are required in the affidavit. (e) If the response to the attempt at personal service is that the process server is told that the defendant “is overseas”, evidence is required in the affidavit as to what date the defendant will be back in the country. (f) If it appears from the response to the attempt at personal service that the defendant is permanently overseas, evidence is required in the affidavit as to how the documents will come to the defendant’s attention by being posted on the front door. (g) If the response to the attempt at personal service is that the defendant has “moved away”, and the plaintiff is alleging that the defendant is evading service, evidence is required in the affidavit to support the plaintiff’s belief that the defendant is evading service. (2) Application for substituted service by way of prepaid registered post/ordinary post (a) An application for substituted service need not be made where an originating process is sent by prepaid registered post to the defendant, and the defendant returns the acknowledgement of service, signed by him, in accordance with Rule 11(4) of the Women’s Charter (Matrimonial Proceedings) Rules 2005. In such a situation, the originating process would be deemed to be duly served on the defendant by registered post. (b) On an application for substituted service by way of prepaid registered post/ordinary post, the plaintiff must state the following matters in the affidavit: (i) The grounds for the plaintiff’s belief that the defendant is currently resident at the particular address in respect of which the plaintiff is applying for substituted service by way of prepaid registered post/ordinary post. (ii) If the application for substituted service by way of prepaid registered post/ordinary post is to an overseas address, that the defendant is not ordinarily resident in Singapore. (iii) If the application for substituted service by way of prepaid registered post/ordinary post is to an overseas address, the grounds for the plaintiff’s belief as to why the defendant is not ordinarily resident in Singapore. (3) Application for substituted service by way of advertisement (a) Before an application for substituted service by way of advertisement can be granted, the plaintiff should make attempts to locate the defendant by contacting the defendant’s relatives, friends, and employer(s) (if any), in order to discover the address at which the defendant is currently residing. (b) The affidavit must include the following: (i) The matters set out in sub-paragraph (1)(c)(i)-(v) above. (ii) Details of the defendant’s literacy, and in what language. (iii) If the advertisement is to be placed in an overseas

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newspaper, the grounds for the plaintiff’s belief as to why the defendant is thought to be in that particular country. (4) Application for dispensation of service (a) Before an application for dispensation of service can be granted, the plaintiff should make attempts to locate the defendant by contacting the defendant’s relatives, friends, and employer(s) (if any), in order to discover the address at which the defendant is currently residing. (b) The affidavit must include the following: (i) The matters set out in sub-paragraph (1)(c)(i)-(v) above. (ii) An explanation as to why advertisement would not be effective in bringing the divorce proceedings to the defendant’s notice. For example, that it is not known which country the defendant is currently residing in. (5) This Paragraph is applicable to proceedings under Part X of the Women’s Charter (Cap. 353, 1997 Revised Edition) filed before 1 April 2006 as if: (a) any reference to the plaintiff and defendant were a reference to the petitioner and respondent respectively; and (b) the reference in sub-paragraph (2)(a) to Rule 11(4) of the Women’s Charter (Matrimonial Proceedings) Rules 2005 were a reference to Rule 10(3) of the Women’s Charter (Matrimonial Proceedings) Rules 2003. (3) Wilding v Bean [1891] 1 QB 100 - substituted service is generally not permissible where personal service within jurisdiction is not possible. If def not in sg cannot go to court and serve in subst way. Subst service is done (see PD) by posting writ on front door or advertising in leading newspaper. Post oin fronit door if know for fact that he lives there – done property searches. If x know which aprt of sg he is in, advertise on newspaper – show evid of his lang proficiency (through docments he has signed) and coresp advertise in the correct paper. If advertise, must also post on SC or sub court as case may be. Advertise in all papers if don’t know h slang proficiency (see his surname to determine his race) (4) exception to (3): Fry v Moore (1889) 23 QBD 395 - substituted service can be permitted even though personal service in the jurisdiction is not possible where the defendant left the jurisdiction to evade service. Similarly in Re Urquhart [1890] 24 QBD 723 - defendant attempted to evade service by remaining outside jurisdiction to avoid service of the notice of bankruptcy proceedings. Can still slap order on froint door/ advet through order of subst service – this will deem the writ served and will hterfore get judgement whether appearance or not. ----------Very impt for exams!!!!!!!!-------------(5) Ng Swee Hong v Singmarine Shipyard Pte Ltd [1991] SLR 165 - substituted service is possible, where, generally, the purpose of O 62, r 5 is achieved. On the facts of this case, the defendant was represented by solicitors. It was in the applicant’s affidavit that the defendant’s return would be unknown and that the defendant’s son was in contact with the defendant and the latter had notice of the proceedings from his son. It was held that the requirements of O 62, r 5 were satisfied and accordingly, good service. Court looks at whether def is in contact with def’s family at last known address. Slapping on front door cheaper than advertising. Ng Swee Hong v. Singmarine Shipyard Pte Ltd [1991] 1 SLR 165 The respondents (plaintiffs) began an action against the appellant as guarantor for the payment of repair bills. The appellant had left Singapore before the writ and statement of claim were filed. Attempts were then made to serve the writ on the appellant which were unsuccessful. The respondents’ solicitors were later informed that the appellant had left Singapore. On application by the respondents, an order for substituted service was made whereby service was to be effected, inter alia, by posting a copy of the writ together with a copy of the order at No 66 Chun Tin Road, which was the appellant’s home address in Singapore. The appellant then entered conditional appearance through his solicitors. An application was made for the service of the writ to be set aside which was dismissed. The appellant appealed. - Held, C/A dismissing the appeal:

17

o

o

Under Order 62 rule 5 of the Rules of the Supreme Court 1970, where it was impractical for any reason to serve a document personally on a person, the court may order substituted service of that document. Substituted service would then be effected by taking such steps as the court may direct to bring the document to the notice of the person to be served. In considering the question of whether the order for substituted service in this case was adequate to bring the writ and statement of claim to the notice of the appellant, there was the affidavit of the respondents’ solicitors which showed that the appellant had solicitors acting for him, and that they were in a position to state that the time of the appellant’s return was not known. It was also clear from the affidavit and evidence of the appellant’s son that the appellant was in contact with his family and that the writ and statement of claim served at No 66 Chun Tin Road were brought to the appellant’s notice. The requirement of Order 62 rule 5 had thus been satisfied.

e)

Summons

3.

Ordinary service (third form of service – 1. personal 2. substituted 3. ordinary)

(1) O 62, rr 1 & 6 - service of other, non-originating, processes may be by ordinary service ie by leaving the document at the address, by post, by fax, by e-mail (?), by EFS (?) and any other mode as agreed between the parties. Examples of other documents: Statement of claim, defence, summons in chambers etc. When personal service required (O. 62, r. 1) 1. —(1) Any document which by virtue of these Rules is required to be served on any person need not be served personally unless the document is one which by an express provision of these Rules or by order of the Court is required to be so served. (2) Paragraph (1) shall not affect the power of the Court under any provision of these Rules to dispense with the requirement for personal service. Ordinary service: How effected (O. 62, r. 6) 6. —(1) Service of any document, not being a document which by virtue of any provision of these Rules is required to be served personally, may be effected — (a) by leaving the document at the proper address of the person to be served; (b) by post; (c) by FAX in accordance with paragraph (3); (d) in such other manner as may be agreed between the party serving and the party to be served; or (e) in such other manner as the Court may direct. (2) For the purpose of this Rule, and of section 2 of the Interpretation Act (Chapter 1), in its application to this Rule, the proper address of any person on whom a document is to be served in accordance with this Rule shall be the address for service of that person, but if at the time when service is effected that person has no address for service his proper address for the purpose aforesaid shall be — (a) in any case, the business address of the solicitor (if any) who is acting for him in the proceedings in connection with which service of the document in question is to be effected; (b) in the case of an individual, his usual or last known address; (c) in the case of individuals who are suing or being sued in the name of a firm, the principal or last known place of business of the firm within the jurisdiction; or (d) in the case of a body corporate, the registered or principal office of the body. (3) Service by FAX may be effected where — (a) the party serving the document acts by a solicitor; (b) the party on whom the document is served acts by a solicitor and service is effected by transmission to the business address of such a solicitor; (c) the solicitor acting for the party on whom the document is served has indicated in writing to the solicitor serving the document that he is willing to accept service by FAX at a specified FAX number and the document is transmitted to that number; and for this purpose the inscription of a FAX number on the writing paper of a solicitor shall be deemed to indicate that such a solicitor is willing to accept service by FAX at that number in accordance with this paragraph unless he states otherwise in writing; and (d) within 3 days after the day of service by FAX the solicitor acting for the party serving the document serves a copy of it on the solicitor acting for the other party by any of the other methods of service set out in paragraph (1), and if he fails to do so, the document shall be deemed never to have been served by FAX. (4) [Deleted by S 144/2005]

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(5) Nothing in this Rule shall be taken as prohibiting the personal service of any document or as affecting any written law which provides for the manner in which documents may be served on bodies corporate. (2) Hastie & Jenkerson v McMahon [1990] 1 WLR 1575 - the modes prescribed in O 62, r 6 are permissive rather than exhaustive.

4.

Time for service – when is doc considered validly served on that day (1) O 62, r 6A - Where any document is served before midnight on any particular day, it shall be deemed to have been served on that day. (because of EFS – can prepare any time of the day) (any day) Time for service (O. 62, r. 6A) 6A. Where any document is served before midnight on any particular day, it shall be deemed to have been served on that day. -

Effect of Service After Certain Hours (O 62 rule 8) for Non-Originating Processes [made under Personal Service or Ordinary Service]

Effect of service after certain hours (O. 62, r. 8) 8. —(1) Where the service of any document is effected under these Rules on a working day before 4 p.m., it shall, for the purpose of computing any period of time after service of that document, be deemed to have been served on that working day, and, in any other case, on the working day next following. (2) For the avoidance of doubt, nothing in this Rule shall be construed as prescribing the hours within which service must be effected in order to be valid. f)

No Service required in Certain Case: Order 62 r. 10

No service required in certain cases (O. 62, r. 10) 10. Where by virtue of these Rules any document is required to be served on any person but is not required to be served personally, and at the time when service is to be effected that person is in default as to entry of appearance or has no address for service, the document need not be served on that person unless the Court otherwise directs or any of these Rules otherwise provides. g)

Affidavit of Service: O 62 r. 9

Affidavit of service (O. 62, r. 9) 9. An affidavit of service of any document must state by whom the document was served, the day of the week and date on which it was served, where it was served and how, and must be in one of the forms in Form 138. h)

Dispensation of Service: O 62 r. 11

Dispensation of service (O. 62, r. 11) 11. The Court may, in an appropriate case, dispense with service of any document on any person. [includes Originating Processes!!]

i)

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Memorandum of Service - O 10, r.1(4): must be filed within 8 days of service in Form 11 (1) Filed within 8 days of service in form 11 (2) If forget to file – i. Extension of time by way of ex parte SIC if no appearance entered and ii. Extension of time by way of inter partes SIC if appearance entered. If def’s lawyer, why bother to extend of time? Can ask for costs. For every application where not ur fault and u show up, you can ask for costs on client’s behalf. Civil proced and costs intertwined.

Order 10, rule 1(4) (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

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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. Note: Where writ served, no prob abt limitation. Time for limitation will not run But where served and filed, then limitation becomes a prob 4. Service out of jurisdiction – Order 11

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writ already ready. Need order of court to serve on def in foreign country. Need to make sure thst reqts duly met

(a)

O 11, r 1 - Service out of the jurisdiction of any process generally permissible only with leave of court. Where area/island is disputed, get order – err on side of caution.

Cases in which service out of Singapore is permissible (O. 11, r. 1) 1. Provided that the originating process does not contain any claim mentioned in Order 70, Rule 3 (1), service of an originating process out of Singapore is permissible with the leave of the Court if in the action — (a) relief is sought against a person who is domiciled, ordinarily resident, carrying on business or who has property in Singapore; (b) an injunction is sought ordering the defendant to do or refrain from doing anything in Singapore (whether or not damages are also claimed in respect of a failure to do or the doing of that thing); (c) the claim is brought against a person duly served in or out of Singapore and a person out of Singapore is a necessary or proper party thereto; (d) the claim is brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being (in either case) a contract which — (i) was made in Singapore, or was made as a result of an essential step being taken in Singapore; (ii) was made by or through an agent trading or residing in Singapore on behalf of a principal trading or residing out of Singapore; (iii) is by its terms, or by implication, governed by the law of Singapore; or (iv) contains a term to the effect that that Court shall have jurisdiction to hear and determine any action in respect of the contract; (e) the claim is brought in respect of a breach committed in Singapore of a contract made in or out of Singapore and irrespective of the fact, if such be the case, that the breach was preceded or accompanied by a breach committed out of Singapore that rendered impossible the performance of so much of the contract as ought to have been performed in Singapore; (f) (i) the claim is founded on a tort, wherever committed, which is constituted, at least in part, by an act or omission occurring in Singapore; or (ii) the claim is wholly or partly founded on, or is for the recovery of damages in respect of, damage suffered in Singapore caused by a tortious act or omission wherever occurring; (g) the whole subject-matter is immovable property situate in Singapore (with or without rents or profits) or the perpetuation of testimony relating to immovable property so situate; (h) the claim is brought to construe, rectify, set aside or enforce an act, deed, will, contract, obligation or liability affecting immovable property situate in Singapore; (i) the claim is made for a debt secured on immovable property or is made to assert, declare or determine proprietary or possessory rights, or rights of security, in or over movable property, or to obtain authority to dispose of movable property, situate in Singapore; (j) the claim is brought to execute the trusts of a written instrument, being trusts that ought to be executed according to the law of Singapore and of which the person to be served with the originating process is a trustee, or for any relief or remedy which might be obtained in any such action; (k) the claim is made for the administration of the estate of a person who died domiciled in Singapore or for any relief or remedy which might be obtained in any such action; (l) the claim is brought in a probate action within the meaning of Order 72; (m) the claim is brought to enforce any judgment or arbitral award, or any adjudication determination within the meaning of the Building and Construction Industry Security of Payment Act (Chapter 30B);

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(n) the claim is made under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A), the Terrorism (Suppression of Financing) Act (Chapter 325) or any other written law; (o) the claim is a restitutionary one (including a claim for quantum meruit or quantum valebat) or for an account or other relief against the defendant as trustee or fiduciary, and the defendant's alleged liability arises out of any act done, whether by him or otherwise, in Singapore; (p) the claim is founded on a cause of action arising in Singapore; (q) the claim is for a contribution or an indemnity in respect of a liability enforceable by proceedings in Singapore; (r) the claim is in respect of matters in which the defendant has submitted or agreed to submit to the jurisdiction of the Court; or (s) the claim concerns the construction, effect or enforcement of any written law. Bradley Lomas Electrolok Ltd and Another v Colt Ventilation East Asia Pte Ltd and Others [2000] 1 SLR 673 Facts The two appellants were companies incorporated in the UK and were proprietors of a patent (“the patent”) which related to smoke and fire screens and curtains. The respondents, Colt VEA, Colt Intl and CG Ltd were companies within the Colt group of companies. Colt VEA was incorporated in Singapore while Colt Intl and CG Ltd were incorporated in the UK. The appellants commenced a writ action against Colt VEA for infringement of the patent by a certain Colt product which was being sold in Singapore by Colt VEA. Colt VEA filed a defence and counterclaim denying any infringement and alleging that the patent was invalid and should be revoked. Some time later, the appellants obtained a court order to add Colt Intl and CG Ltd as defendants to the action, and to serve the writ out of jurisdiction on the two new defendants. After being served with the writ, Colt Intl and CG Ltd applied to set aside the court order on the ground that they should not be made parties to the action. The application was dismissed by the Senior Assistant Registrar. On appeal, the judge held that Colt Intl was properly made a defendant but not CG Ltd. The appellants appealed against that part of the decision setting aside the service of writ on CG Ltd. Two main issues were raised on the appeal: (a) what was the required standard of proof that a plaintiff must meet before the court would exercise its discretion under O 11 to permit service out of jurisdiction; and (b), whether the appellants tendered sufficient evidence of the requisite standard, to enable the court to infer that there was a common design among Colt VEA, Colt Intl and CG Ltd, as joint tortfeasors. Held, dismissing the appeal: (1) In order to establish jurisdiction under O 11 r 1 of the Rules of Court, a plaintiff must satisfy the test of “a good arguable case” that the case fell within one of the limbs mentioned in r 1. Once the jurisdiction requirement was met, the plaintiff must then show on the evidence that there was “a serious question to be tried” on the merits of the claim. (2) To establish jurisdiction under limb O 11 r 1(f)(i) in particular, a plaintiff must satisfy the court to the standard of a “good arguable case” of (a) the existence of his cause of action in tort, and (b) of the commission of a constituent act or omission in Singapore by the intended defendant who was outside Singapore. Having satisfied that burden, it was not necessary to go into the question of a “serious question to be tried” on the merits as this would have been proved once the higher standard of proof required to establish jurisdiction was satisfied. (3) However, it should be noted that for some other limbs in r 1, the evidence required to satisfy the jurisdictional issue might not touch on the merits of the claim and in such cases, the plaintiff would still need to establish that there was a serious question to be tried on the merits. (4) In the present case, the appellants must show participation by CG Ltd in the tort by way of common design. The fact that CG Ltd owned almost 100% of Colt VEA, that there was common management, that the companies used the same logo and that the accounts of Colt VEA were consolidated with CG Ltd were not enough and were not indicative of participation or involvement of CG Ltd in the tort. Otherwise, it would mean that a holding company would always be implicated in proceedings involving its subsidiaries. (5) Evidence of CG Ltd’s actual involvement in furthering the common design of infringement must be shown before it could be joined in the proceedings as a joint tortfeasor. Here, there was nothing to link CG Ltd to the manufacture of the allegedly infringing product or the sales or import by Colt VEA of the product. The appellants failed to show a good arguable case that O 11 r 1(f)(i) applied and therefore the appeal was dismissed.

(b)

O 11, r 2 - Manner of application for leave of court for service out of jurisdiction: Application is by ex parte Summons in Chambers supported by an affidavit in (Form 7) stating the following deposing to the following: 1. the grounds for the application; 2. the belief that plaintiff has a good cause of action;

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3.

4. 5.

the place or country that the defendant may be found in; where the application is under r1(c), the grounds for the deponent’s belief that there is a real issue which the plaintiff may reasonably ask the Court to try; whether it is necessary to extend the validity of the writ.

Manner of application (O. 11, r. 2) 2. —(1) An application for the grant of leave under Rule 1 must be made by ex parte summons supported by an affidavit in Form 7 stating — (a) the grounds on which the application is made; (b) that in the deponent’s belief the plaintiff has a good cause of action; (c) in what place or country the defendant is, or probably may be found; (d) where the application is made under Rule 1 (c), the grounds for the deponent’s belief that there is between the plaintiff and the person on whom an originating process has been served a real issue which the plaintiff may reasonably ask the Court to try; and (e) whether it is necessary to extend the validity of the writ. (2) No such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of Singapore under this Order. (3) An order granting leave under Rule 1 shall be in Form 8 and shall allow the defendant 21 days to enter an appearance unless the Court otherwise orders or any written law provides.

(c)

Transniko Pte Ltd v Communication Technology Sdn Bhd [1996] 1 SLR 580 - in making the application, there is a duty to make full and frank disclosure. If this is not done, the order may be set aside. Justice Kan Ting Chiu held that in an ex parte application for leave to serve a writ out of jurisdiction, the applicant was under a duty to make full and frank disclosure of all matters material to the application. The duty on the applicant was onerous and if he failed to discharge it, leave granted may be set aside even if the non-disclosure was innocent

(d)

An order granting leave under Rule 1 shall be in Form 8 and shall allow the defendant 21 days to enter an appearance unless the Court otherwise orders or any written law provides Order 11 rule 2(3)

(e)

O 11, r 3(1) to (7) - General provisions for service abroad, in particular, note the following conventions (not very sigf): impt what THAT law recognizes. Not sg law i. O 11, r 3(2) - service of a document must not be contrary to the law of the country in which it is served; and

ii. O 11, r 3(3) - process need not be served personally so long as it is served in accordance with the law of the country in which it is served (ie: In England – service by first class post allowed) ** (“private agent” – law firms)

(f) 1.

2. 3.

O 11, r 4(2) - Service in Malaysia or Brunei through the government of the country; through a Singapore consular authority except where this is contrary to the law of the country; by a method of service authorised by the law of the country for service of originating process in that country.

Order 11, rule 4(2) – deals with the service of originating process in any country with which there does not subsist a Civil Procedure Convention providing for service: Where in accordance with these Rules an originating process is to be served on a defendant in any country with respect to which there does not subsist a Civil Procedure Convention providing for service in that country of process of the High Court, the originating process be served: (i) (ii)

(iii)

through the government of the country, where that government is willing to effect service; through a Singapore consular authority in that country, except where service through such an authority is contrary to the law of the country; by a method of service authorised by the law of that country for service of any originating process issued by that country.

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Service of originating process abroad: Alternative modes (O. 11, r. 3) 3. —(1) Subject to paragraphs (2) to (8), Order 10, Rule 1, and Order 62, Rule 5, shall apply in relation to the service of an originating process out of Singapore. (2) Nothing in this Rule or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country. (3) An originating process which is to be served out of Singapore need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected. (4) Where a certificate under this Rule is produced in relation to the service of an originating process in accordance with Rule 4 or 7, Order 10, Rule 1 (4), shall not apply in relation to that service. (5) An official certificate stating that an originating process as regards which Rule 4 has been complied with has been served on a person personally, or in accordance with the law of the country in which service was effected, on a specified date, being a certificate — (a) by a Singapore consular authority in that country; (b) by the government or judicial authorities of that country; or (c) by any other authority designated in respect of that country, under the Hague Convention, shall be evidence of the facts so stated. (6) An official certificate by the Minister stating that an originating process has been duly served on a specified date in accordance with a request made under Rule 5 shall be evidence of that fact. (7) A document purporting to be such a certificate as is mentioned in paragraph (4) or (5) shall, until the contrary is proved, be deemed to be such a certificate. (8) Where the defendant is in Malaysia or Brunei Darussalam, the originating process — (a) may be served in accordance with Rule 4; or (b) may be sent by post or otherwise by the Registrar to the Magistrate, Registrar or other appropriate officer of any court exercising civil jurisdiction in the area in which the person to be served is said to be or to be carrying on business for service on the defendant, and if it is returned with an endorsement of service and with an affidavit of such service, it shall be deemed to have been duly served. Service of originating process abroad through foreign governments, judicial authorities and Singapore consuls or by other method of service (O. 11, r. 4) 4. —(1) Where in accordance with these Rules an originating process is to be served on a defendant in any country with respect to which there subsists a Civil Procedure Convention providing for service in that country of process of the High Court, the originating process may be served — (a) through the judicial authorities of that country; or (b) through a Singapore consular authority in that country (subject to any provision of the convention as to the nationality of persons who may be so served). (2) Where in accordance with these Rules an originating process is to be served on a defendant in any country with respect to which there does not subsist a Civil Procedure Convention providing for service in that country of process of the High Court, the originating process may be served — (a) through the government of that country, where that government is willing to effect service; (b) through a Singapore consular authority in that country, except where service through such an authority is contrary to the law of that country; or (c) by a method of service authorised by the law of that country for service of any originating process issued by that country. (3) Where a person wishes to serve an originating process in any country — (a) through the judicial authorities of that country under paragraph (1); (b) through a Singapore consular authority under paragraph (1) or (2); or (c) through the government of that country under paragraph (2), that person must file in the Registry a request in Form 9 for service of the originating process by that method, together with a copy of the originating process and an additional sealed copy thereof for each person to be served. (4) Every copy of an originating process served pursuant to paragraph (2) (c) or filed under paragraph (3) must be accompanied by a translation of the originating process in the official language of the country in which service is to be effected or, if there is more than one official language of that country, in any of those languages which is appropriate to the place in that country where service is to be effected: Provided that this paragraph shall not apply in relation to a copy of an originating process which is to be served in a country the official language of which is, or the official languages of which include, English, or is to be served in any country by a Singapore consular authority on a Singapore citizen, unless the service is to be effected under paragraph (1) and the Civil Procedure Convention with respect to that country expressly requires the copy to be accompanied by a translation.

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(5) Every translation served or 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) Documents duly filed under paragraph (3) shall be sent by the Registrar to the Permanent Secretary to the Ministry of Foreign Affairs with a request that he arrange for the originating process to be served by the method indicated in the request filed under paragraph (3) or, where alternative methods are so indicated, by such one of those methods as is most convenient.

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A Malaysian decision from the Court of Appeal (Kuala Lumpur) in Ngan Chin Wen v Panin International Credit [2003] 3 MLJ 279 held that service by private agent of a foreign process is ultra vires of Malaysia’s Order 65 of the Rules of the High Court. (does not respect sovereiegnty of country). Must go through embassy and govt and HC ie in malaysia, do what Malaysia law says.

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Ngan Chin Wen v Panin International Credit (S) Pte Ltd [2003] 3 MLJ 279

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The applicant, a Malaysian, was carrying on business at Kuala Lumpur. The respondent was a company based in Singapore. On 22 December 1999, the respondent obtained judgment in default against the applicant at the High Court in Singapore (`the Singapore judgment`). Service of the writ of summons had been effected on the applicant in Kuala Lumpur by personal service through an employee of Skrine & Co of Kuala Lumpur, the firm of solicitors appointed by the respondent`s solicitors in Singapore to effect service of the writ. An application was filed by the respondent at the High Court of Malaya at Kuala Lumpur to register the Singapore judgment pursuant to s 4(2) of Reciprocal Enforcement of Judgment Act 1958 (`the Act`). The application was dealt with inter partes, with the appellant not only opposing the application but also applying for the respondent`s application to be struck out. The High Court ordered registration of the Singapore judgment and dismissed the appellant`s striking out application. The appellant then filed an appeal to the Court of Appeal against the High Court`s decision. Meanwhile, the applicant applied to the High Court for a stay of execution of its decision pending the appeal to the Court of Appeal, so that the Singapore judgment would not be registered and executed. The High Court refused the application for a stay. This was the applicant`s application for a stay of execution of the High Court`s decision. The ground relied upon by the applicant in support of his application for a stay was that, under O 79 r 4(1)(2) of Rules of Court 1996 (Singapore), a default judgment in a moneylender`s action shall not be entered without the leave of the court and the application for leave must be served on the defendant. The applicant`s contention was that the Singapore judgment was irregular and not valid and ought not to be registered in Malaysia because there was no leave to enter the Singapore judgment. The other point raised by the applicant was that the Singapore High Court had no jurisdiction to enter the default judgment against him because he had never submitted to the jurisdiction of that court. Issues Relevant for our purpose: Was the Service effected through a Local Agent in Malaysia of a S’pore Writ Ultra Vires to Malaysia’s O 65 ROC? Held: (Majority) [Allowing the Appeal] The service of the writ issued by Singapore High Court on the applicant through an agent was ultra vires O 65 of the Rules of the High Court 1980. In the case of United Overseas Bank Ltd v Wong Hai Ong [1999] 1 MLJ 474, the High Court had held, inter alia, that O 11 r 3(8)(a) of the Rules of Court (Singapore) cannot be read as allowing the service of the writ issued by the Singapore High Court in Malaysia by a private agent because that procedure was only allowed in Malaysia in respect of processes originating in Malaysia and not foreign process. However, in Saeed U Khan v Lee Kok Hooi [2001] 5 MLJ 416, the learned High Court judge there disagreed with the ratio in United Overseas Bank `s case. These conflicting decisions had provided a ground for the appellate court to determine the issue, meaning the applicant had an arguable case. (Dissent) (Abdul Aziz JCA)*** (1)In respect of the applicant`s contention that the Singapore High Court would only have jurisdiction if he had submitted himself to its jurisdiction, s 16(1)(a)(ii) of the Supreme Court of Judicature Act (Cap 322) (Singapore) provided, inter alia, that the High Court in Singapore shall have jurisdiction to hear and try any action in personam where the defendant was served with a writ or other originating process `... outside Singapore in the circumstances authorized by and in the manner prescribed by Rules of Court ...`. By virtue of O 11 r 3(8)(a) and O 11 r 4(2) of the Rules of Court 1996 (Singapore), read with O 10 r 1(1) of the RHC, service of the writ on the applicant by an agent had been effected `in circumstances authorized by and in the manner prescribed by Rules of Court Specifically: (i)According to O 11 r 3(8)(a) of the Singapore Rules, `Where the defendant is in Malaysia or Brunei Darussalam, the originating process ... may be served in accordance with r 4`. Paragraph (2) of r 4 provides for the manner of serving an originating process on a defendant in any country with respect to which there does not subsist a Civil Procedure Convention providing for service in that country of process of the Singapore High Court. There was no dispute that Malaysia is such a country. Paragraph (2) of r 4 provides for three modes of service, mode (c) being `by a method of service authorized by the law of that country for service of any originating process issued by that country`. The question that then arises is: by Malaysian law what is the method of service authorized for service of an originating process issued by Malaysia? The Malaysian law is the RHC. If service of the Malaysian process is to be done in Malaysia, one of the required, and therefore authorized, methods is personal service by virtue of O 10 r 1(1) of the RHC, which was how the appellant was served

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(ii) If service of the Malaysian process is to be done outside Malaysia, O 11 r 6 of the RHC provides for several methods of, or rather avenues for, effecting service, one of which, whether or not there subsists a Civil Procedure Convention with respect to the country in which the defendant is to be served, is, according to paras (1)(b)(ii) and (2)(b)(ii), `by the plaintiff or his agent`, which was by whom the writ was served on the appellant in this case, namely by the agent of the respondents, who were the plaintiffs. It would appear from the citing of the aforementioned two cases in the appellant`s skeletal submission that the appellant wanted to say that service by agent on him was not an authorized mode of service under Malaysian law. That is obviously untrue.

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(iii) If one were to go by the authorized method of service outside Malaysia, service `by the plaintiff or his agent` is expressly authorized by O 11 r 6(1)(b)(ii) and 6(2)(b)(ii) of the RHC. If one were to go by the method for service in Malaysia, the method under O 10 r 1(1) of the RHC is personal service. Nothing is said, whether there or in O 62 r 3 of the RHC, which speaks of how personal service is to be effected, as to by whom it is to be effected. Since what is prescribed is the method and not the person, it should not matter by whom the service is effected so Iong as the prescribed method is followed. For service in Malaysia, service by the plaintiff is so obvious an avenue that the rules do not need to expressly authorize it. So is service by the plaintiff s agent (2) If the question of service of the writ in the instant case were to be decided on the basis of O 65 of the RHC, then of course service by agent would not be an authorized mode of service because under O 65, service must be by a process server. However, O 65 of the RHC did not come into play in this case as O 65 was concerned with service of a foreign writ in Malaysia, whereas service for the question of the jurisdiction of the Singapore High Court was to be determined in accordance with s 16(1)(a)(ii) of the Supreme Court of Judicature Act (Cap 322) (Singapore). Furthermore, O 65 did not stipulate that its provisions constituted the only allowed mode of service of a foreign process in Malaysia. In any case, the provisions of rr 3 and 4 of O 65 of the RHC applied only in cases where there was a government-to-government request for service of a foreign process on a person in Malaysia. Order 65 of the RHC did not lay down that service of a foreign process in Malaysia may only be done on a government-to-government request. [the effect of O 11 r 3(8)(a) and r 4(2)(c) of the Singapore Rules is, where the defendant is in Malaysia, to authorize a method of service that is authorized by the law of Malaysia for service of any originating process issued by Malaysia - not by another country and our O 10 and O 11 either allows, by not prohibiting, service by an agent where service of the Malaysian process is to be in Malaysia or expressly allows service by an agent where the Malaysian process is to be served abroad.] Comment:

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- The majority only made passing reference to the issue of service by a local agent and instead focused on the issue of registration of the Singapore Judgment. The dissent in contrast examined the issue extensively. Nonetheless, this is the highest judicial authority emanating from Malaysia on this point so far. As such, the position is now back to UOB v Wong Hai Ong.

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In Fortune Hong Kong Trading Limited v Cosco Feoso (Singapore) Pte Ltd [2000] 2 SLR 717, position above reinforced - the following observations were made on service of process in a foreign jurisdiction: 1. (i) Ultimately, it would depend on whether the country, where the service of process is to be effected, treats the service of process by a private agent as an encroachment upon its sovereign rights; (just ensure that mode of service is recognized by the relevant country concerned) 2. (ii) By O.11, r4(2)(c), our own rules allow for service abroad of our legal process by the method of service of originating process issued by that country, provided of course such method of service of our process is not contrary to any law of that country; and 3. (iii) One cannot readily assume that all foreign jurisdictions would accept service of process by private agents as being proper. O 65, r.2 therefore remains a facilitative provision which sets out an official channel for service of foreign process through the Singapore courts if the foreign jurisdiction requests for such service to be effected.

(g)

O 11, r 3(8)(b) - for service in Malaysia or Brunei through “judicial authority” by post (or otherwise) by the Registrar to the judicial officer of any court exercising civil jurisdiction in the area in which the person is to be served, and if it is returned with an endorsement of service and with an affidavit of such service, it shall be deemed to have been duly served.

Ngan Chin Wen v Panin International Credit (S) Pte Ltd [2003] 3 MLJ 279 Facts:

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The applicant, a Malaysian, was carrying on business at Kuala Lumpur. The respondent was a company based in Singapore. On 22 December 1999, the respondent obtained judgment in default against the applicant at the High Court in Singapore (`the Singapore judgment`). Service of the writ of summons had been effected on the applicant in Kuala Lumpur by personal service through an employee of Skrine & Co of Kuala Lumpur, the firm of solicitors appointed by the respondent`s solicitors in Singapore to effect service of the writ. An application was filed by the respondent at the High Court of Malaya at Kuala Lumpur to register the Singapore judgment pursuant to s 4(2) of Reciprocal Enforcement of Judgment Act 1958 (`the Act`). The application was dealt with inter partes, with the appellant not only opposing the application but also applying for the respondent`s application to be struck out. The High Court ordered registration of the Singapore judgment and dismissed the appellant`s striking out application. The appellant then filed an appeal to the Court of Appeal against the High Court`s decision. Meanwhile, the applicant applied to the High Court for a stay of execution of its decision pending the appeal to the Court of Appeal, so that the Singapore judgment would not be registered and executed. The High Court refused the application for a stay. This was the applicant`s application for a stay of execution of the High Court`s decision. The ground relied upon by the applicant in support of his application for a stay was that, under O 79 r 4(1)(2) of Rules of Court 1996 (Singapore), a default judgment in a moneylender`s action shall not be entered without the leave of the court and the application for leave must be served on the defendant. The applicant`s contention was that the Singapore judgment was irregular and not valid and ought not to be registered in Malaysia because there was no leave to enter the Singapore judgment. The other point raised by the applicant was that the Singapore High Court had no jurisdiction to enter the default judgment against him because he had never submitted to the jurisdiction of that court. Holdings: Held , allowing the application by a majority: (1).( Mohd Saari and Mokhtar Sidin JJCA ) The service of the writ issued by Singapore High Court on the applicant through an agent was ultra vires O 65 of the Rules of the High Court 1980. In the case of United Overseas Bank Ltd v Wong Hai Ong [1999] 1 MLJ 474 , the High Court had held, inter alia, that O 11 r 3(8)(a) of the Rules of Court (Singapore) cannot be read as allowing the service of the writ issued by the Singapore High Court in Malaysia by a private agent because that procedure was only allowed in Malaysia in respect of processes originating in Malaysia and not foreign process. However, in Saeed U Khan v Lee Kok Hooi [2001] 5 MLJ 416 , the learned High Court judge there disagreed with the ratio in United Overseas Bank `s case. These conflicting decisions had provided a ground for the appellate court to determine the issue, meaning the applicant had an arguable case (see pp 286H, 287C, F-G). (2).( Mohd Saari and Mokhtar Sidin JJCA ) The respondent was based in Singapore and did not have assets within the jurisdiction of the Court of Appeal. If the applicant were to settle the judgment sum, which was a substantial amount, there was a strong likelihood that the applicant may not be compensated or restituted in the event of the applicant succeeding in the appeal. This would render the applicant`s appeal nugatory. Further, applying the principles as enunciated in Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd and Alexander v Cambridge Credit Corp Ltd to the facts and circumstances of the present case, it was clear that this was a proper case for stay to be granted (see pp 287G-H, 288F); Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49 and Alexander v Cambridge Credit Corp Ltd [1985] 10 ACLR 42 followed. (3).(per Abdul Aziz JCA dissenting) Section 5 of the Act enabled a judgment debtor to apply for the setting aside of the registration of a foreign judgment upon specific grounds. Order 67 r 5 of the RHC required an order for the registration of a foreign judgment to be served on the judgment debtor and stating therein the period within which an application may be made to set aside the registration. After registration, O 67 r 7 of the RHC required notice of the registration to be served on the judgment debtor and such notice would state the period within which an application may be made to set aside the registration. Order 67 r 10 of the RHC prohibited the issuance of execution on a registered judgment until after that period or, if an application for setting aside was made, until the application was finally determined. The judgment debtor`s interests were protected because he would be given the opportunity to apply to set aside the registration and execution would not issue until after his application was finally determined. It was also clear that the Act, by providing for application for setting aside for the aggrieved judgment debtor, did not envisage the need for an appeal against an order for registration (see pp 288H-289D). (4).(per Abdul Aziz JCA dissenting) The irregularity and consequent invalidity of a foreign judgment was not specified in the Act as a ground for setting aside the registration of the foreign judgment. This was because the courts of one country should not adjudicate on the judgment of the courts of another country. If there were grounds to invalidate a foreign judgment, an application should be made to the original court to set aside the judgment or an appeal be made to the appellate court of the country of the original court. If not, the registering court had to accept the foreign judgment as regular and it cannot entertain any attempt to show that the foreign judgment was not regular. In the instant case, there was no attempt by the applicant to have the Singapore judgment set aside for non-compliance with O 79 r 4(1)(2) of the Rules of Court (Singapore) (see p 290F-H).

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(5).(per Abdul Aziz JCA dissenting) Under s 5(1)(a)(ii) of the Act, our High Court can determine whether the High Court of Singapore had jurisdiction in the circumstances of the case and if the High Court of Singapore had no jurisdiction, the registration of the judgment obtained from the High Court of Singapore would be set aside (see pp 290I-291A). (6).(per Abdul Aziz JCA dissenting) In respect of the applicant`s contention that the Singapore High Court would only have jurisdiction if he had submitted himself to its jurisdiction, s 16(1)(a)(ii) of the Supreme Court of Judicature Act (Cap 322) (Singapore) provided, inter alia, that the High Court in Singapore shall have jurisdiction to hear and try any action in personam where the defendant was served with a writ or other originating process `... outside Singapore in the circumstances authorized by and in the manner prescribed by Rules of Court ...`. By virtue of O 11 r 3(8)(a) and O 11 r 4(2) of the Rules of Court 1996 (Singapore), read with O 10 r 1(1) of the RHC, service of the writ on the applicant by an agent had been effected `in circumstances authorized by and in the manner prescribed by Rules of Court` (see pp 291G-H, 292B-E). (7).(per Abdul Aziz JCA dissenting) If the question of service of the writ in the instant case were to be decided on the basis of O 65 of the RHC, then of course service by agent would not be an authorized mode of service because under O 65, service must be by a process server. However, O 65 of the RHC did not come into play in this case as O 65 was concerned with service of a foreign writ in Malaysia, whereas service for the question of the jurisdiction of the Singapore High Court was to be determined in accordance with s 16(1)(a)(ii) of the Supreme Court of Judicature Act (Cap 322) (Singapore). Furthermore, O 65 did not stipulate that its provisions constituted the only allowed mode of service of a foreign process in Malaysia. In any case, the provisions of rr 3 and 4 of O 65 of the RHC applied only in cases where there was a government-to-government request for service of a foreign process on a person in Malaysia. Order 65 of the RHC did not lay down that service of a foreign process in Malaysia may only be done on a government-to-government request (see pp 294B-E, I-295A). (8).(per Abdul Aziz JCA dissenting) The appellant`s appeal, if successful, would not have been rendered nugatory even though his application for stay was refused as the appellant could seek recovery of the judgment sum paid to the respondent in the Republic of Singapore. There was no evidence to throw doubt on the respondent`s ability to refund the judgment sum (see p 295B-C).

(h)

O 11, r 4(1) - service in any country with which there does subsist a Civil Procedure Convention providing for service: 1. (1) through the judicial authorities of the country; and 2. (2) through a Singapore consular authority (subject to any provision of the convention as to the nationality of the persons who may be so served).

(i)

O 11, r 4(2) - service in any country with which there does not subsist a Civil Procedure Convention providing for service: i. (1) through the government of the country; ii. (2) through a Singapore consular authority except where this is contrary to the law of the country; and iii. (3) by a method of service authorised by the law of the country for service of originating process in that country.

GENERAL RULE - Go through consular auth or courts if do not know the specific procedure

(j)

O 11, r 4(3) - procedure for obtaining service out of the jurisdiction through the judicial or consular authorities and government of that country: i. (1) lodge with the Registry Form 14 with a copy of the originating process and additional sealed copy(ies) for the number of defendants to be served; ii. (2) each copy of the process must be accompanied by a translation in the official language of that country for service; iii. (3) every translation must be certified by a statement of the translator containing his full name, address and qualifications; iv. (4) documents lodged shall be sent by the Registrar to the Permanent Secretary to the Ministry of Foreign Affairs.

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(k)

O 11, r 8 - service of subsequent documents do not require leave once it has been granted for the originating process.

Service of summons, notice or order out of Singapore (O. 11, r. 8) 8. —(1) Subject to Order 69, Rule 5, service out of Singapore of any summons, notice or order issued, given or made in any proceedings is permissible only with the leave of the Court but leave shall not be required in any proceedings in which leave for service of the originating process has already been granted. (2) Rule 2 shall, so far as applicable, apply in relation to an application for the grant of leave under this Rule. (3) Rules 3, 4 and 6 shall apply in relation to any document for the service of which out of Singapore leave has been granted under this Rule as they apply in relation to an originating process.

(l)

O 11, r 9 - service of Subordinate Courts’ documents, other than to Malaysia and Brunei, shall be forwarded by the registrar of the Subordinate Courts to the Registrar of the Supreme Court.

Service abroad of Subordinate Courts documents (O. 11, r. 9) 9. —(1) An originating process issued in the Subordinate Courts which is to be served out of Singapore in a country, other than Malaysia or Brunei Darussalam, shall be sent by the Registrar of the Subordinate Courts to the Registrar of the Supreme Court and shall be served in accordance with these Rules relating to the service out of Singapore of an originating process issued in the Supreme Court. (2) Every certificate of service received by the Registrar of the Supreme Court in respect of such service shall be transmitted by him to the Registrar of the Subordinate Courts.

(m) Ong & Co Pte Ltd v YL Chow [1987] SLR 304 - the Order 11 procedure must be adhered to strictly. Ong & Co Pte Ltd v. YL Chow [1987] SLR 304 – O 11 procedure must be adhered to strictly. - On 20 June 1986, the plaintiffs obtained leave to issue a writ against the defendant and to serve notice of the writ on him at an address in KL, Malaysia. The notice of the writ was served on the defendant personally on 30 July 1986 by a process server employed by a firm of solicitors practising in Kuala Lumpur. On 2 Sep 1986, the defendant applied to set aside the service of the notice of the writ for non-compliance with O 11 r 5 and/or O 11 r 6 of the Rules of the Supreme Court 1970. On 30 January 1987, the senior assistant registrar made an order setting aside the said service. The plaintiff appealed against the said order. - Held, dismissing the appeal: o Rule 5(1) did not expressly say that such personal service might be effected by a private arrangement between the plaintiff and his agent in the country where service was to be effected. o The service of a writ was an exercise in judicial power. The judicial power of a State could only be exercised within the territorial limits of the State over which the courts had jurisdiction o \ule 6(2) of O 11 of the 1970 Rules provided for service (a) through the government of that country where that government was willing to effect service; or (b) through a Singapore consular authority in that country, except where service through such an authority was contrary to the law of that country. o The expression `may` as used in O 11 r 5(8) and r 6(2) connoted permission and not discretion. Without these rules, service of process outside the jurisdiction would not be possible. o By effecting services of the notice of the writ without complying with r 5(8) or r 6(2) of O 11 the plaintiff had in fact disregarded the legal basis upon which the judicial power in Singapore might be exercised in Malaysia. That had to render the purported service a nullity. o Note: Important to determine whether the law allow for service by private agent

(n)

NM Rothchild & Sons (S) Pte Ltd v Plaza Rakyat Sdn Bhd [1995] 3 SLR 374 - if a defendant is outside jurisdiction, but nonetheless accepts service by solicitors in Singapore, the defendant submits to the court’s jurisdiction and may no longer apply to set aside the order granting service out of jurisdiction. (or where def is in sg, then can slap writ on him)

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NM Rothschild & Sons (S) Pte Ltd v. Plaza Rakyat Sdn Bhd [1995] 3 SLR 374

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The Defendant (a company incorporated in Malaysia) appointed the Plaintiff (a merchant ank incorporated in Singapore) to advise and represent it in a scheme for the reverse takeover of a Malaysian public listed company. The Plaintiff brought this action for fees due in respect of the appointment and obtained leave to serve the writ on the Defendant in Malaysia. The Defendant applied, inter alia, to set aside the writ and the order granting leave. The assistant registrar dismissed the applications. The defendant appealed. Held: As the defendant had accepted service through its solicitors in Singapore, it had submitted to the court’s jurisdiction and could not challenge the order granting leave to serve the writ out of jurisdiction. The appeal against the dismissal of the application to set aside the grant of leave was, therefore, misconceived.

5. Service of Foreign Process (Order 65, Rules 2 and 3) - Order 65 deals with the service of any process in connection with civil proceedings originating from a court or tribunal of a foreign country. [i.e. service of foreign court process in Singapore - ie go through govt/embassy/courts OR serve in sg – can accept service of writ by any law firm I.e. For a Foreign Plaintiff suing a Defendant in Singapore, there is no need to follow official processes. Service can be effected as in the manner provided in our rules under O 62 or O 10. [e.g. using a Court Clerk to serve!]

i.

(1) Rule 2 - where there’s no civil procedure convention subsisting and a letter of request from the foreign tribunal is used; and

Service of foreign legal process pursuant to letter of request (O. 65, r. 2) 2. —(1) This Rule applies in relation to the service of any process required in connection with civil proceedings pending before a court or other tribunal of a foreign country where a letter of request from such a tribunal requesting service on a person in Singapore of any such process sent with the letter is received by the Minister and is sent by him to the Supreme Court with an intimation that it is desirable that effect should be given to the request.

ii.

(2) Rule 3 - where there’s a civil procedure convention subsisting. A letter of request from a consular of that country is used.

Order 65, rule 3(1) This rule applies in relation to the service of any process required in connection with civil proceedings pending before a court or other tribunal of a foreign country, being a country with which there subsists a Civil Procedure Convention providing for service in Singapore of process of the tribunals of that country, where a letter of request from a consular or other authority of that country requesting service on a person in Singapore of any such process sent with the letter is received by the Registrar.

iii.

(3) Fortune Hong Kong Trading Limited v Cosco Feoso (Singapore) Pte Ltd [2000] 2 SLR 717. - Facts: An English writ was served out of jurisdiction in Singapore by a private agent by leaving the writ at the defendants’ registered office pursuant to s 387 of the Companies Act, a method of service of a Singapore originating process authorised by our law. - Issue: Whether it was invalid service in that service of a foreign process should be by way of a letter of request under O.65, r.2 if there’s no subsisting civil procedure convention. - Argd that: must use order as stated in order 65 and cannot go through private agent – irregular. - Court held that if in sg soil, don’t need to go through foreign process. Any private agent is ok. (directly contrary to Malaysian position) - Held: The service of foreign process in Singapore need not invariably go through official channels. O.65, r.2 applies only where a letter of request for service is used. If Singapore does not insist on service out of jurisdiction through official channels [see O.11, r.4(2)(c)], it could not have been the intention of O.65, r.2 that service of all foreign process in Singapore must be effected through the official means as provided in that rule.

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What happens when def receives writ - plaintiff must give notice to court ie memorandum of service. Must file within 8 days. What abt def? 6.

Appearance

1.

Why does a defendant enter appearance? – (eng) White Book (1970 edn) para 12/1/2. Appearance is the process by which a person against whom a suit has been commenced shows his intention to defend the suit and submits himself to the jurisdiction of the court. Eg Forum non conveniens – can debate forum in court after def has entered an appearance

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2.

Order 12, rule 1 to 4 (procedure for entering appearance): Rule 1 - Deals with the Mode of entering Appearance; an entry of appearance is required upon the service of a writ and an OS requiring appearance. Rule 2 - Deals with the Memorandum of Appearance; Appearance is entered by filing a Memorandum of Appearance (MOA) in Form 15. (c.f. MOS – memorandum f service) Rule 3- Deals the procedure on receipt of the Memorandum of Appearance; The appearance will be entered into the Registry’s cause book. Rule 4 - Deals with the time-frame for entering appearance; Time-frames for entering appearance - may apply to extend time. Order 12, rule 1

Mode of entering appearance (O. 12, r. 1) 1. —(1) Subject to paragraph (2) and Order 76, Rule 2, a defendant to an action begun by writ may (whether or not he is sued as a trustee or personal representative or in any other representative capacity) enter an appearance in the action and defend it by a solicitor or in person. (2) Except as expressly provided by any written law, a defendant to such an action who is a body corporate may not enter an appearance in the action or defend it otherwise than by a solicitor. (3) An appearance is entered by properly completing a memorandum of appearance, as defined by Rule 2, and a copy thereof, and handing them in at the Registry. (4) If 2 or more defendants to an action enter an appearance by the same solicitor and at the same time, only one memorandum of appearance need be completed and delivered for those defendants.

Order 12, rule 2

Memorandum of appearance (O. 12, r. 2) 2. —(1) A memorandum of appearance is a request to the Registry to enter an appearance for the defendant or defendants specified in the memorandum. (2) A memorandum of appearance must be in Form 10 and both the memorandum of appearance and the copy thereof required for entering an appearance must be signed by the solicitor by whom the defendant appears or, if the defendant appears in person, by the defendant. (3) A memorandum of appearance must specify — (a) in the case of a defendant appearing in person, the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent; and (b) in the case of a defendant appearing by a solicitor a business address of his solicitor within the jurisdiction, and where the defendant enters an appearance in person, the address within the jurisdiction specified under sub-paragraph (a) shall be his address for service, but otherwise his solicitor’s business address shall be his address for service. (4) If the memorandum of appearance does not specify the defendant’s address for service or the Court is satisfied that any address specified in the memorandum of appearance is not genuine, the Court may on application by the plaintiff set aside the appearance or order the defendant to give an address or, as the case may be, a genuine address for service and may in any case direct that the appearance shall nevertheless have effect for the purposes of Order 10, Rule 1 (3), and Order 62, Rule 10.

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Order 12, rule 3

Procedure on receipt of memorandum of appearance (O. 12, r. 3) 3. —(1) On receiving the memorandum of appearance and the copy thereof, an officer of the Registry must in all cases affix to the copy of the memorandum of appearance an official stamp showing the date on which he received those documents and enter the appearance in the cause book, and hand back that copy of the memorandum. (2) Where the defendant enters an appearance, he must on the date on which he enters the appearance send by post to the plaintiff, if the plaintiff sues in person, but otherwise to the plaintiff’s solicitor, at the plaintiff’s address for service, the copy of the memorandum of appearance handed back to him under paragraph (1).

Order 12, rule 4

Time limited for appearing (O. 12, r. 4) 4. References in these Rules to the time limited for appearing are references — (a) in the case of a writ served within the jurisdiction, to 8 days after service of the writ or, where that time has been extended by or by virtue of these Rules, to that time as so extended; and (b) in the case of a writ served out of the jurisdiction, to 21 days after service of the writ as provided for in Order 10, Rule 2 or Order 11, Rule 2 or to such extended time as the Court may otherwise allow.

3.

General rule: Without appearance, no steps can be taken in the proceedings. (a) O 12 r (2)(1) – a MOA is a request to the Registry to enter an appearance of the defendant in the action. (b) O 12 r (2)(2) – MOA must be in Form 10 and must be signed by the solicitor or the defendant in person. (c) O 12 r (2)(3) – the address of the signatory (ie: whether it is the solicitor or the defendant who signed the MOA) must be stated on the MOA. (d) O 12 r 2(6) – the appearance does not constitute a waiver by the defendant on any irregularity committed by the plaintiff. (e) O 12 r 8 – a defendant named in the writ but not served with the writ may serve on the plaintiff a notice requiring the plaintiff to either serve the writ on him or to discontinue within 14 days from the date of the notice. Ie compel plaintiff to serve writ on you or ask for discontinuance (if don’t want name to be hung in system as defendant – when this happens, banks will take note, loans not granted)

Application by defendant where writ not served (O. 12, r. 8) 8. —(1) Any person named as a defendant in a writ which has not been served on him may serve on the plaintiff a notice requiring him within a specified period that is not less than 14 days after service of the notice either to serve the writ on the defendant or to discontinue the action as against him. (2) Where the plaintiff fails to comply with a notice under paragraph (1) within the time specified, the Court may, on the application of the defendant by summons, order the action to be dismissed or make such other order as it thinks fit. (3) A summons under paragraph (2) shall be supported by an affidavit verifying the facts on which the application is based and stating that the defendant intends to contest the proceedings and a copy of the affidavit must be served with the summons. (4) Where the plaintiff serves the writ in compliance with a notice under paragraph (1) or with an order under paragraph (2), the defendant must enter an appearance within the time limited for so doing. 4.

However, there are exceptions:

(a)

Order 6, rule 2(1)(b) – rare scenario - Where there is an endorsement on the writ stating that the claim is for a debt or liquidated demand only, with a statement of the amount claimed in respect of the debt or demand and

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for costs and also with a statement that further proceedings will be stayed if, within the time limited for appearing, the defendant pays up the amount claimed. Endorsement on writ (O. 6, r. 2) 2. —(1) Before a writ is issued, it must be endorsed — (b) where the claim made by the plaintiff is for a debt or liquidated demand only, with a statement of the amount claimed in respect of the debt or demand and for costs and also with a statement that further proceedings will be stayed if, within the time limited for appearing, the defendant pays the amount so claimed to the plaintiff or his solicitor;

(b)

Order 13 rule 8– Where the defendant applies to set aside a judgment entered in default of appearance. Eg def lawyer wants to set aside judgement – take out a summons. If lawyer fails in application to set aside summons, person who gets costs for this application, plaintiff gets the costs of the application (costs to the plaintiff. Straightforward. Rather than costs in the cause.) def may think it unfair. So take out an appeal. Judge at higher court may set aside judgement, having done so – costs here and below to the plaintiff. Because all this trouble entered in default ws fault of def. when writ served on him, he had to enter an appearance but he failed. Only because of this, judgement in efault of appearance entered. So def created all the trouble so even if he succeeds in setting aside the judgement, he must bear costs. General rule – it must be logical. Otherwise appeal may lie.

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. 5.

Who may enter an appearance:

a) b)

O 12 r 1(1) - entry of appearance either in person or by solicitor. O 12 r 1(2) - entry of appearance shall be by solicitor if it is a body corporate.

6.

Time frames to note in the entry of appearance:

a. Order 12, rule 4 – for service of writ within Singapore, 8 days after the service of the writ (including the day of service) b. Order 10, rule 2(5) – where there is an order to serve writ on the defendant’s agent or manager, 21 days is allowed. Service of writ on agent of overseas principal (O. 10, r. 2) (5) An order under this Rule authorising service of a writ on a defendant’s agent or manager must allow the defendant 21 days, or such extended time as the Court sees fit, to enter appearance. c. Order 11, rule 2(3) – for service of writ outside Singapore under Order 11, 21 days is allowed. Manner of application (O. 11, r. 2) 2.(3) An order granting leave under Rule 1 shall be in Form 8 and shall allow the defendant 21 days to enter an appearance unless the Court otherwise orders or any written law provides. Shipping matter also 21 days.

7.

Order 12, rule 5 (late appearance) –

-

once judgment is entered, MOA shall not be filed except with the leave of court. However, if no judgment has been entered yet, there is nothing to stop the defendant from entering a late appearance. He must subsequently comply with the time frames as set out in the Rules as if he had entered an appearance within the requisite time, except with the leave of court. Entitled to enter on the 9th day, but must file MOS before enters judgement.

-

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Late appearance (O. 12, r. 5) 5. —(1) A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the Court. (2) Except as provided by paragraph (1), nothing in these Rules or any writ or order thereunder shall be construed as precluding a defendant from entering an appearance in an action after the time limited for appearing, but if a defendant enters an appearance after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other thing later than if he had appeared within that time. 8. Order 12, rule 6: Appearance not to constitute a wavier Appearance – does not mean that waived all other rights eg sg not right forum, irreg commited on face of writ. But must file appearance first then challenge Appearance not to constitute a waiver (O. 12, r. 6) 6. The appearance by a defendant in an action shall not be treated as a waiver by him of any irregularity in the writ or service thereof or in any order giving leave to serve the writ out of the jurisdiction or extending the validity of the writ for the purpose of service.

9.

O12 r 7(1) read with O 12 r 6 – Dispute as to jurisdiction / application to set aside the writ etc: (a) where a defendant wishes to dispute jurisdiction of the court or seek any relief on the grounds of the plaintiff’s irregularity, the defendant should still enter an appearance and within the time limited (8 or 21 days) for serving a defence apply to the court for relief eg. setting aside the writ for irregular service, discharge the order extending the validity of writ for service etc. (b) O 12 r 7(2) – the application is by way of a summons and the grounds must be stated in the summons. (c) O 12 r 7(3) – the summons must be supported by an affidavit verifying the facts on which the application is based. Ie always summons + affidavit

Dispute as to jurisdiction, etc. (O. 12, r. 7) 7. —(1) A defendant who wishes to dispute the jurisdiction of the Court in the proceedings by reason of any such irregularity as is mentioned in Rule 6 or on any other ground shall enter an appearance and within the time limited for serving a defence apply to the Court for — (a) an order setting aside the writ or service of the writ on him; (b) an order declaring that the writ has not been duly served on him; (c) the discharge of any order giving leave to serve the writ on him out of the jurisdiction; (d) the discharge of any order extending the validity of the writ for the purpose of service; (e) the protection or release of any property of the defendant seized or threatened with seizure in the proceedings; (f) the discharge of any order made to prevent any dealing with any property of the defendant; (g) a declaration that in the circumstances of the case the Court has no jurisdiction over the defendant in respect of the subject-matter of the claim or the relief or remedy sought in the action; or (h) such other relief as may be appropriate. (2) A defendant who wishes to contend that the Court should not assume jurisdiction over the action on the ground that Singapore is not the proper forum for the dispute shall enter an appearance and, within the time limited for serving a defence, apply to Court for an order staying the proceedings. (3) An application under paragraph (1) or (2) must be made by summons supported by an affidavit verifying the facts on which the application is based and a copy of the affidavit must be served with the summons. (4) Upon the hearing of an application under paragraph (1) or (2), the Court may make such order as it thinks fit and may give such directions for its disposal as may be appropriate, including directions for the trial thereof as a preliminary issue. (5) A defendant who makes an application under paragraph (1) shall not be treated as having submitted to the jurisdiction of the Court by reason of his having entered an appearance and if the Court makes no order on the application or dismisses it, paragraph (6) shall apply as if the defendant had not made any such application. (6) Except where the defendant makes an application in accordance with paragraph (1), the appearance by a defendant shall, unless the appearance is withdrawn by leave of the Court under Order 21, Rule 1, be treated as a submission by the defendant to the jurisdiction of the Court in the proceedings.

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-

Under order 2, non compliance is not irreg that will terminate action – court will try to correct the irreg. some fatal things like limitation but most things can be cured. If writ is irregular and court cures irreg, what relief has defendant? – cost compensation.

10. Appearance under protest – Order 77, rule 4 (Partnerships) -

Appearance under protest – rare but does happen. Issue to be decided. Eg ex partner of firm and firm sued, receives copy of summons. So shld enter appearance under protest but stating that not partner at material time: (a) O 77 r (4)(2) - Where a writ is served on a person liable in a partnership, if he denies that he was the partner liable at the material time, he should still enter an appearance. However, he should state in the MOA that he does so as a person served as a partner in the defendant firm but who denies that he was a partner at any material time. Such an appearance, until it is set aside, is treated as an appearance for the firm. (b) O 77 r (4)(3)(a) – where an appearance under protest is entered, the plaintiff may apply to court to set aside the MOA under protest, on the ground that the partner, named as the defendant in the action, was a partner at the material time. Alternatively, he may leave that question to be tried at a later stage. (c) O 77 r 4(3)(b) – in the same way, the defendant may wish to apply to set aside the writ after having entered an appearance under protest. By taking out summons.

Entry of appearance in an action against firm (O. 77, r. 4) 4. —(1) Where persons are sued as partners in the name of their firm, appearance may not be entered in the name of the firm but only by the partners thereof in their own names, but the action shall nevertheless continue in the name of the firm. (2) Where in an action against a firm the writ by which the action is begun is served on a person as a partner, that person, if he denies that he was a partner or liable as such at any material time, may enter an appearance in the action and state in the memorandum of appearance that he does so as a person served as a partner in the defendant firm but who denies that he was a partner at any material time. An appearance entered in accordance with this paragraph shall, until it is set aside, be treated as an appearance for the defendant firm. (3) Where an appearance has been entered for a defendant in accordance with paragraph (2) then — (a) the plaintiff may either apply to the Court to set it aside on the ground that the defendant was a partner or liable as such at a material time or may leave that question to be determined at a later stage of the proceedings; (b) the defendant may either apply to the Court to set aside the service of the writ on him on the ground that he was not a partner or liable as such at a material time or may at the proper time serve a defence on the plaintiff denying in respect of the plaintiff’s claim either his liability as a partner or the liability of the defendant firm or both. (4) The Court may at any stage of the proceedings in an action in which a defendant has entered an appearance in accordance with paragraph (2), on the application of the plaintiff or of that defendant order that any question as to the liability of that defendant or as to the liability of the defendant firm be tried in such manner and at such time as the Court directs. (5) Where in an action against a firm the writ by which the action is begun is served on a person as a person having the control or management of the partnership business, that person may not enter an appearance in the action unless he is a member of the firm sued.

11. O 10 r 1(3) (appearance gratis -): likely to fall out in application to set aside writ for irreg there are. a.

b.

Where a writ is not duly served on the defendant but he nonetheless enters an appearance, the writ is deemed to be duly served on the date of the entry of appearance. The appearance by a defendant in an action shall not be treated as a waiver by him of any irregularity. (i.e. the defendant can still apply by SIC to set aside the writ). White Book (1970 edn) para 10/1/5 – A person can, at any time, after the issue of a writ or an originating summons, waive service and enter an unconditional appearance. An appearance may be entered “gratis” without previous service even after the validity of the writ for the service has expired. A person should not enter an appearance “gratis” after the plaintiff gives him notice that the writ has been abandoned.

7.

Pleadings

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-

Served writ, entered appearance etc -> docs that set out claim. Plaintiff files statement of claim, def files defence, then plaintiff files reply. Sidetrack – general procedure 1. Always begin with statement of claim. But this can come in 2 versions – when file writ, must at least have full statement of claim or summary of claim. Latter called ‘concise nature of the claim’. If full statement, then plaintiff job done, but if only time to do concise nature of claim (endorsement of claim), still need to prepare statement of claim at later date. Writ cannot be filed and served without a statement of claim or endorsement of claim. (TAKE NOTE FOR EXAM!!!!!!!!!!!!!!!!!!!!!) 2. Then def must file a defence. If def also has another claim against plaintiff, he shld file a defence AND counterclaim – ride on this writ rather than start new writ. 3. Then plaintiff’s next doc is a reply. If no reply, then ends there. If there is a counterclaim, plaintiff must file a defence to the counterclaim. So he may file a reply AND defence to counterclaim. 4. Def wil then file a reply to the defence to the counterclaim. ENDS here. 5. Complication: In sg, in HC, after reply, with leave of court, you can file a rejoinder. Plaintiff already filed reply, if def wants to file another, one, then he files a rejoinder. Sur-rejoinder can be filed by plaintiff after this with leave of court (rare).  Purpose – if feel that plaintiff very wrong and want to lock horns with him. Rare but still granted stimes. 6. Fr one pleading to another, general guide – 14 days.

7a) Definition; Functions Of Pleadings, Etc White Book (1995) para 18A, p 286 – A pleading is a party’s written statement of the facts on which he relies for his claim or defence, as the case may be. - The term pleading does not include a summons or a preliminary act (order 17 for shipping cases; (ie: For collision of ships, no pleadings involved; it is a preliminary act) - Pleadings come into existence only in actions begun by writ and not by any other mode. An originating summons is therefore not a pleading, nor is the affidavit in support thereof. A generally indorsed writ is not a pleading but a statement of claim endorsed on the writ is. o 2 ways of preparing a writ:  Writ endorsed with a summary of the claim (generally indorsed writ) – not a pleading  Writ with full statement of claim - pleading Further and better particulars (FABP) supplied in respect of a pleading are regarded as part and parcel of the pleading. EXAMS!!!!!!!!!! What are Pleadings (only by writ action) Statement of claim endorsed on writ Defence + Counterclaim Reply + Defence to Counterclaim Further and Better Particulars

What are NOT Pleadings Generally indorsed writ Summons or Petitions Originating summons + affidavit Preliminary Act

*If it’s just a writ with indorsement, the next step is for the plaintiff to file statement of claim and not for Defendant to file defence. Functions of pleadings – order 18 1. Bullen & Leake & Jacob’s “Precedents of Pleadings”, 12th edn, pp 6 – 9: a. Pleadings help to define with clarity and precision the issues or questions which are in dispute between the parties and fall to be decided by the court. - In Thorp v. Holdsworth, Jessel M.R. (1876) 3 Ch. D 637 at 639 said, “The whole object of pleadings is to bring the parties to an issue, and the meaning of the Rules was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and

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thereby to diminish expense and delay, especially as regards to amount of testimony required on either side at the hearing.” b. The object of pleadings is to require each party to give fair and proper notice to his opponent of the case he has to meet to enable him to prepare his own case for trial. - In Palmer v. Guadagni [1906] 2 Ch. 494 at 497, “The pleadings must contain fair and proper notice of the issues intended to be raised. This is essential to prevent the other party being taken by surprise. - In Esso Petroleum Co. Ltd v. Southern Corporation [1956] AC 218 at 238, Lord Normand said, “The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them.”  narrow down the issues. Square the perimeter, if not pleaded, you cannot argue the issues in court!!!! c. It is to inform the court what are the precise matters in issue between the parties which alone the court may determine, since they set the limits of the action which may not be extended without due amendment properly made. - In the The Why Not (1868) L R 2 A&E 265 at 266, Phillimore J said, “The pleadings are not to be considered as constituting a game of skill between the advocates. They ought to be so framed as not only to assist the party in the statement of his case but the court in its investigation of the truth between the litigants.” d. Pleadings not only provide a brief summary of the case of each party, which is readily available for reference, and from which nature of the claim and defence may be easily apprehended, but also to contribute a permanent record of the issues and questions raised in the action and decided therein so as to prevent future litigation upon matters, already adjudicated upon between the litigants or those privy to them. -> In other words, pleadings also play the role of determining where res judicata applies. 7b) Statement of claim, etc. Order 18 deals with Pleadings: 1. Order 18, rule 1 – Statement of Claim (SOC) must be filed not later than 14 days after the MOA is filed unless: a) the SOC was endorsed on the writ; or b) the court gives leave to the contrary. * O 18 r 1 writ filed was indorsement which is why say must file SOC within 14 days. -

Where p files on d, he may have served writ with statement of claim. Or p prepared concise nature of claim only, in that instance, after d enters appearance, p has 14 days to serve statement of claim. After d enters appearance, defence shld now come in. if p did not have full statement of claim served on d but merely writ with concise nature, d then enters appearance, now, full statement of claim that shld come in.

Service of statement of claim (O. 18, r. 1) 1. Unless the Court gives leave to the contrary or a statement of claim is endorsed on the writ, the plaintiff must serve a statement of claim on the defendant or, if there are 2 or more defendants, on each defendant, and must do so either when the writ is served on that defendant or at any time after service of the writ but before the expiration of 14 days after that defendant enters an appearance. 2. Order 18, rule 15 deals with the contents of a statement of claim a)

A SOC must state specifically the relief or remedy which the plaintiff claims; but costs need not be specifically claimed. But if bank wants to claim indem costs, must be stated. b) A SOC must contain all facts and allegations giving rise to the cause of action so pleaded; but subject to that, a plaintiff may in his SOC alter, modify or extend any claim made by him in the endorsement of the writ without amending the endorsement. *Not relevant if the lawyer prepares a writ endorsed with a full statement of claim.

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Statement of claim (O. 18, r. 15) 15. —(1) A statement of claim must state specifically the relief or remedy which the plaintiff claims; but costs need not be specifically claimed. (2) A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned; but, subject to that, a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the endorsement of the writ without amending the endorsement. 3. Order 19, rule 1 – Defendant may apply to the court, to dismiss the action or make such other order on such terms, if the plaintiff fails to serve the SOC within the time frame ie 14 days. • Shld file defence if SOC already in, not to set aside the claim! • Application is by SIC supported by affidavit. Default in service of statement of claim (O. 19, r. 1) 1. Where the plaintiff is required by these Rules to serve a statement of claim on a defendant and he fails to serve it on him, the defendant may, after the expiration of the period fixed under these Rules for service of the statement of claim, apply to the Court for an order to dismiss the action, and the Court may by order dismiss the action or make such other order on such terms as it thinks just. * O 19 r 1 only happen if Plaintiff serve writ with summary of claim (indorsement) and not full statement of Claim; writ with no statement of claim => you can apply to set it aside. 7c) Defence 1. Order 18, rule 2(1) – to serve defence on the plaintiff before the expiration of 14 days after the time limited for appearing or after the SOC is served on him, whichever is the later. Defence due only after p serves SOC on him. In practice, most writs come with statement of claim. Service of defence (O. 18, r. 2) 2. —(1) A defendant who enters an appearance in, and intends to defend, an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for appearing or after the statement of claim is served on him, whichever is the later. (2) [Deleted by S 565/2002] * two scenarios 1) Writ filed with full statement of claim, DF enter into appearance in 8 days, DF file defence within 14 days after he enter into appearance. 2) Writ filed with indorsement, defendant need to enter into appearance within 14 days, PF need to file statement of claim within 14 days from date of appearance, within 14 days after the statement of claim is served, defence must be filed. * three scenarios 1) usually, statement of claim => defence => reply; but can have 2) statement of claim => defence + counterclaim => Reply to Defence + Defence to counterclaim => Reply to Defence to counterclaim (last doc); 3) statement of claim => defence + counterclaim => Defence to counterclaim 2. Order 18, rule 8(1) & (2) – matters which must be specifically pleaded subsequent to a SOC (i.e. in a defence, or reply to defence): Matters which must be specifically pleaded (O. 18, r. 8) 8. —(1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality — (a) which he alleges makes any claim or defence of the opposite party not maintainable; (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading. (2) Without prejudice to paragraph (1), a defendant to an action for the recovery of immovable property must plead specifically every ground of defence on which he relies, and a plea that he is in possession of the immovable property by himself or his tenant is not sufficient. 7d) Service of Pleadings Note: Pleadings need not be served personally.

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(a) 1 r 4 – Definition of pleadings in the Rules of Court: "pleading" does not include an originating summons, a summons or a preliminary act; (b) 18 rr 1, 2, 3 and 14 – time periods for service: a) SOC to be served within 14 days from the date of entry of appearance if the SOC writ was not served with the writ – r 1. b) Defence to be served within 14 days from the date of entry of appearance if the SOC was served with the writ, if not, within 14 days from the date of service of the SOC – r 2. c) Reply (if any) to be served within 14 days from the date of service of the defence – r 3. WHO & WHAT Order 18, rule 1

Plaintiff / Service of SOC

Order 18, rule 2

Defendant / Service of DEFENCE

Order 18, rule 3

Plaintiff / Service of REPLY

TIME LIMIT FOR SERVICE OF PLEADING Service of statement of claim (O. 18, r. 1) 1. Unless the Court gives leave to the contrary or a statement of claim is endorsed on the writ, the plaintiff must serve a statement of claim on the defendant or, if there are 2 or more defendants, on each defendant, and must do so either when the writ is served on that defendant or at any time after service of the writ but before the expiration of 14 days after that defendant enters an appearance. Service of defence (O. 18, r. 2) 2. —(1) A defendant who enters an appearance in, and intends to defend, an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for appearing OR after the statement of claim is served on him, whichever is the later. (2) [Deleted by S 565/2002]

Service of reply and defence to counterclaim (O. 18, r. 3) 3. —(1) A plaintiff on whom a defendant serves a defence must serve a reply on that defendant if it is needed for compliance with Rule 8; and if no reply is served, Rule 14 (1) will apply. (2) A plaintiff on whom a defendant serves a counterclaim must, if he intends to defend it, serve on that defendant a defence to counterclaim. (3) Where a plaintiff serves both a reply and a defence to counterclaim on any defendant, he must include them in the same document. (4) A reply to any defence must be served by the plaintiff before the expiration of 14 days after the service on him of that defence, and a defence to counterclaim must be served by the plaintiff before the expiration of 14 days after the service on him of the counterclaim to which it relates.

(c) A Reply by the plaintiff is necessary if it falls within O 18, r 8 ie matters which must be specifically pleaded – r 8. eg illegality, limitation, fraud etc. reply MUST be filed. Otherwise discretionary. Reply not mandated and optional. Matters which must be specifically pleaded (O. 18, r. 8) 8. —(1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality — (a) which he alleges makes any claim or defence of the opposite party not maintainable; (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading.

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(2) Without prejudice to paragraph (1), a defendant to an action for the recovery of immovable property must plead specifically every ground of defence on which he relies, and a plea that he is in possession of the immovable property by himself or his tenant is not sufficient.

(d)

Order 18, rule 4 No pleading subsequent to a reply or a defence to counterclaim shall be served except with leave of the court – r 4. (1) Eg. Re-joinder (filed by plaintiff), or sur-rejoinder (filed by defendant). (2) Eg. If the defendant wants to counterclaim, he serves a “Defence and Counterclaim”. Plaintiff in turn files a “Reply and Defence to Counterclaim” or “Defence to Counterclaim” if he has no reply to the defendant’s defence. The defendant can then file a “Reply to Defence to Counterclaim”. For that, leave of court is required under O 18 r 4. Pleadings subsequent to reply (O. 18, r. 4) 4. No pleading subsequent to a reply or a defence to counterclaim shall be served except with the leave of the Court.

(e)

Time periods for pleadings to be served continue even during court vacations in June and December every year – NO LONGER APPLICABLE – r 5. –

Service of pleadings during court vacation (O. 18, r. 5) 5. [Deleted] 7e) Contents A) Material facts only 1. O 18 r 7(1) – it is a statement in summary form of the “material facts”. Facts, not evidence, to be pleaded (O. 18, r. 7) 7. —(1) Subject to this Rule and Rules 10, 11 and 12, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits. (2) Without prejudice to paragraph (1), the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material. (3) A party need not plead any fact if it is presumed by law to be true or the burden of disproving it lies on the other party, unless the other party has specifically denied it in his pleading. (4) A statement that a thing has been done or that an event has occurred, being a thing or event the doing or occurrence of which, as the case may be, constitutes a condition precedent necessary for the case of a party is to be implied in his pleading. 2. In Bruce v Odhams Press Ltd [1936] 3 All ER 287 at 294 per Scott LJ – “Material” means necessary for the purpose of formulating a complete cause of action; and if any one material statement is omitted, the statement of claim is bad. => Therefore, facts that cover the ingredients of the cause of action are material facts, and must be pleaded. EXAMS!!!!!!!!!!!!!!! 3. In Waghorn v George Wimpey & Co. Ltd [1970] 1 All ER at 474 – Where the evidence at the trial establishes facts different from those pleaded, eg by the plaintiff as constituting negligence, which are not just a variation, modification or development of what has been alleged but which constitute a radical departure from the case as pleaded, the action will be dismissed. Ie if plead facts diff fr what is reqd for cxause of action – def will force you to amend writ or your statement of claim is struck out and therefore your action will be dismissed. 4. White Book (1995) para 18/7/6 – It cannot be too often stated that the relevant matters must be stated briefly, succinctly, and in strict chronological order (eg if have several causes of actions and diff facts – good practice is to just go on chronological o0rder and cuase of action to be inferred by the reader). Pleadings should be as brief as the nature of the case will admit.

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B) Not Evidence 1. O 18 r 7(1) – pleadings are not meant to include evidence: “ ….. but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.” 2. Williams v Wilcox [1838] 8 A & E 313 per Lord Denman CJ: “It is an elementary rule in pleading that, when a statement of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of proving it, or the evidence sustaining the allegation.” Also in Stuart v Gladstone [1879] 10 Ch D 644. • Material facts – nec to support; Evid – subordinate facts 3. Davy v Garrett (1878) 7 Ch. D 473 – It is wrong to set out in the pleading admissions made by the opponent. 4. As stated in the White Book (1995) para 18/7/8, in practice, it is not always easy to draw the line between facts and evidence. C) Pleadings must NOT contain Law O 18 r 7(1) – “contain only” 1) “ …. every pleading must contain, and contain only, a statement in a summary form of the material facts ….”

2)

N.W. Salt Co. Ltd v Electrolytic Alkali Co. Ltd [1913] 3 KB 444 on 425 – legal arguments are not to be found in pleadings. – • Eg Ie just state that there was a ‘punch that flew fr def to p’ – don’t talk about intention etc. don’t plead authorities as well.

3)

Re Vandervell’s Trusts (No 2) [1974] 3 All ER 205 – legal result should not be pleaded.

4) -

White Book (1995) para 18/7/7 – There is a vital distinction between pleading law, which is not permitted, and raising a point of law in a pleading, which is permitted under Rule 11, and is frequently necessary. Pleading law tends to complicate the pleading and obscure the facts giving rise to the case being advanced; raising a point of law may define or isolate an issue or question arising on the facts as pleaded. Eg encouraged to raise res ipsa loquitur – this is not pleading law, merely stating a pt of law.

-

5) O 18 r 11 - “A party may by his pleading raise any point of law.” Points of law may be pleaded (O. 18, r. 11) 11. A party may by his pleading raise any point of law D) Documents and Conversation – Order 18, rule 7(2) 1. O 18 r 7(2) – effect or purport must be stated unless words themselves are material: “… the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material.” • Don’t cut and paste too much because clutters a pleading. 2. Harris v Ware [1879] 4 CPD 125 – In an action for libel, the precise words of the document are material. Also for slander – the precise words must be pleaded and stated. E) Other necessary inclusions • If feel that there are material facts, shld include it. – rule of thumb – provide it. If don’t provide, when other side asks for it and you provide it, you may have to bear costs esp when you resisted the provision of those partrs.

•

The inclusions are incorp as part of your claim. Good to have a neat defence – one single document. .

Particulars of pleading (O. 18, r. 12) 12. —(1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words — (a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

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(b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies. Particulars of pleading (O. 18, r. 12) 12. —(1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words — (a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and (b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies. (1A) Subject to paragraph (1B), a plaintiff in an action for personal injuries shall serve with his statement of claim — (a) a medical report; and (b) a statement of the special damages claimed. (1B) Where the documents to which paragraph (1A) applies are not served with the statement of claim, the Court may — (a) specify the period of the time within which they are to be provided; or (b) make such other order as it thinks fit (including an order dispensing with the requirements of paragraph (1A) or staying the proceedings). (1C) For the purposes of this Rule — "medical report" means a report substantiating all the personal injuries alleged in the statement of claim which the plaintiff proposes to adduce in evidence as part of his case at the trial; "a statement of the special damages claimed" means a statement giving full particulars of the special damages claimed for expenses and losses already incurred and an estimate of any future expenses and losses (including loss of earnings, loss of Central Provident Fund contributions and loss of pension rights). (2) Where it is necessary to give particulars of debt, expenses or damages and those particulars exceed 3 folios, they must be set out in a separate document referred to in the pleading and the pleading must state whether the document has already been served and, if so, when, or is to be served with the pleading. (3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just. (4) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that party to serve on any other party — (a) where he alleges knowledge, particulars of the facts on which he relies; and (b) where he alleges notice, particulars of the notice. (5) An order under this Rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason. (6) Where the applicant for an order under this Rule did not apply by letter for the particulars he requires, the Court may refuse to make the order unless of opinion that there were sufficient reasons for an application by letter not having been made. (7) The particulars requested or ordered and supplied must be served in accordance with Form 29. 1. O 18 r 12(1) – “necessary particulars”, absence of which may result in applications for further and better particulars * Plead specifically + provide facts supporting it; Plead misrepresentation = facts how misrepresentation took place; particularize the facts, if not O18 r 12 (FnBP) + cost (telling you your pleadings is inadequate. * sometimes actions lost because of Fn BP, make your case look bad because so many questions. 2. O 18 r 12(1A) – “personal injuries” claim (runner cases) must be served with medical report and statement of special damages to be claimed. Eg taxi bills, requests for police report etc 3. O 18 r 16 – defence of tender (rare): Defence of tender (O. 18, r. 16) 16. Where in any action a defence of tender before action is pleaded, the defendant must pay into Court in

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accordance with Order 22 the amount alleged to have been tendered, and the tender shall not be available as a defence unless payment into Court has been made.

• •

“I tender this amount to you because I want to settle.” Bullen & Leake, 12th edn, pp 1314 – 1316: “The defence of tender consists in the defendants having been always ready and willing to pay the debt and having tendered it before action to the plaintiff, who refused to accept it. … A tender must be unconditional.” – rare. But defence of tender MUST be unconditional. Ie plaintiff faltly refused to accept it.

4. O 18 r 17 – defence of set-off: Defence of set-off (O. 18, r. 17) 17. Where a claim by a defendant to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim made by the plaintiff, it may be included in the defence and set-off against the plaintiff’s claim, whether or not it is also added as a counterclaim. * Defence of set off is as good as counterclaim. E.g. PF claims $100, DF defence of set off of $60. PF may get only $40. 5. O 18 r 18 (counterclaim) – the rules on pleading specifically (r 8), providing particulars (r 12) and stating particularly the reliefs and remedies sought (r 15) apply to counterclaims and defence to counterclaim in the same way. Ie Time frame to file – all these main rules will apply whether claim or counterclaim. Counterclaim and defence to counterclaim (O. 18, r. 18) 18. Without prejudice to the general application of this Order to a counterclaim and a defence to counterclaim or to any provision thereof which applies to either of those pleadings specifically — (a) Rules 12 (1A), (1B) and (1C) and 15 (1) shall apply to a counterclaim as if the counterclaim were a statement of claim and the defendant making it a plaintiff; (b) Rules 8 (2), 16 and 17 shall apply, with the necessary modifications, to a defence to counterclaim as they apply to a defence. 7f) Answering Pleadings: Admission, Traverses, Denials, Confession And Voidance, Objections In Point Of Law, Special Defence 1. Meaning of: a. Traverse (see Bullen & Leake, 12th edn, p 79) – • A traverse in the defence is a denial of an allegation of fact made in the SOC. It negates such an allegation, and it operates to contradict what is alleged and to put it in issue. It casts upon the plaintiff the burden of proving the allegations denied. • “Bad defence” – when this happens, other side will ask for more particulars. b. Confession and avoidance (see Bullen & Leake, 12th edn, p 88) – • The term “confession and avoidance” is the description of a plea in the defence which, while expressly or impliedly admitting or confessing or assuming the truth of the material facts alleged in the SOC, seeks at the time to avoid or destroy the legal consequences of those facts, by alleging fresh or additional facts to establish some legal justification or excuse, or some other ground for avoiding or escaping legal liability. c. Objection on point of law or demurrer (see Bullen & Leake, 12th edn, p 48-49) – • Every party is permitted to raise a point of law, as opposed to pleading law, to help to define or isolate an issue or question of law on the facts as pleaded. An objection in point of law must be taken clearlyand explicitly, and the point itself should be precisely defined. * traverse (denial of); objection on point of law (demurer), we deny each and every (bad defence, should say para 1 is demurer, etc) 2. O 18 r 13(1) – deemed admitted unless traversed or there is joinder of issue – where both parties lock horns. Eg by denial of particular action there is already a joinder.

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Admissions and denials (O. 18, r. 13) 13. —(1) Subject to paragraph (4), any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under Rule 14 operates as a denial of it. (2) A traverse may be made either by a denial or by a statement of non-admission and either expressly or by necessary implication. (3) Subject to paragraph (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as the case may be; and a general denial of such allegations, or a general statement of non-admission of them, is not a sufficient traverse of them. (4) Any allegation that a party has suffered damage and any allegation as to the amount of damages is deemed to be traversed unless specifically admitted. 3. O 18 r 13(2) – a traverse may be made either by a denial or by a statement of non-admission and either expressly or by necessary implication. 4 . O 18 r 13(3) – every allegation of fact must be specifically traversed, a general statement of non-admission of them is not a sufficient traverse of them. 5. O 18 r 13(4) – damages claimed deemed to be traversed, need not specifically traverse. Though usually opractice is to ‘deny’ all damages, interest, etc 6. O 18 r 14(1) – if there is no reply to a defence, there is an implied joinder of issue on that defence. Close of pleadings – occurs after “Reply” to defence is served; OR after “Defence” is served and no Reply is served within 14 days; OR after the Defence to Counterclaim” is served. Denial by joinder of issue (O. 18, r. 14) 14. —(1) If there is no reply to a defence, there is an implied joinder of issue on that defence. (2) Subject to paragraph (3) — (a) there is at the close of pleadings an implied joinder of issue on the pleading last served; and (b) a party may in his pleading expressly join issue on the next preceding pleading. (3) There can be no joinder of issue, implied or express, on a statement of claim or counterclaim. (4) A joinder of issue operates as a denial of every material allegation of fact made in the pleading on which there is an implied or express joinder of issue unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation. 7. O 18 r 14(2) – at the close of pleadings, there is an implied joinder of issue on the pleading last served. -

The significance of “close of pleadings” is that certain things cannot be done once this has happened. See 14.2 and 14.3 above

8. O 18 r 14(4) – effect of joinder is equivalent to denial of every material fact. VERY IMPORTANT FOR EXAMS!!!!!!!!!!!!!!!!!!!!!!! – hereafter 7g) Further & Better Particulars Of Pleadings - (O. 18, r. 12) * FnBP is important, especially procedures, know how to ask for FnBP 1. Functions of particulars: (a) To inform the other side of the case that they have to meet as distinguished from the mode in which the case is to be proved; (b) To prevent the other side from being taken by surprise at trial; (c) To enable the other side to know with what evidence they ought to be prepared and to prepare for trial; (d) To limit the generality of the pleadings, the claim or the evidence; (e) To limit and define the issues to be tried and as to which discovery is required; and (f) To tie the hands of the party so that he cannot without leave go into any matters not included.

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(highlighting your auth – value added service, don’t need to do this for opponent!) 2. O 18 r 12(3) – the court may order particulars to be served and to stand as part of the pleadings. Order 18, rule 12(3) (3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just. (4) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that party to serve on any other party — (a) where he alleges knowledge, particulars of the facts on which he relies; and (b) where he alleges notice, particulars of the notice. * Need not reamend pleading to incorporate FnBP, usually after service of defence then you file your FnBP, apply for FnBP by SIC, before you apply for FnBP, write to other side to give FnBP before you apply to court. 3. O 18 r 12(5) – an order for F&BP is usually made after the service of the defence. (stimes defence may before filing ask for more fact first) Ask for more facts. Normally defendant will do so after defence. Order 18, rule 12(5) (5) An order under this Rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason. 4. O 18 r 12(6) – the requesting party should first make the request by letter giving reasonable time. At least 14 days!!!!! (extr circumstances – 7 days) -

A formal letter of request for F&BP must be given to the other party; and the other party must be given reasonable time to produce the F&BP (ie: 14 days / 10 days/ 7 days; 24 hours is not reasonable; less than 7 days is not compassionate – lawyer needs to find client. Party will look at each request, valid? He can give some but not others. Requesting party will drop particulars if it is given. No? Apply to court for FnBP. Form 35 (supply of particulars) becomes part of your pleading.)

Order 18, rule 12(6) (6) Where the applicant for an order under this Rule did not apply by letter for the particulars he requires, the Court may refuse to make the order unless of opinion that there were sufficient reasons for an application by letter not having been made. 5. O 18 r 12(7)- particulars to be served in accordance with Form 29. If other side x reply after reasonable notice, then an take out summonsOrder 18, rule 12 (7) The particulars requested or ordered and supplied must be served in accordance with Form 29. 6. Application to court is by summons in chambers (an affidavit in support is optional – attach letter as exhibit to affidavit to show that reaoanble notice aleady given). 7. Voluntary particulars: Voluntary particulars become part of pleadings. Voluntary particulars can only be given without the need of leave of court only if the party can also amend his pleadings without leave of court. -

Therefore, if the party requires leave to amend his pleadings, he will also require leave of court to give voluntary particulars.

-

Multi-Pak v Intraco [1992] 2 SLR 793 – As a general rule, the failure to object to the filing of voluntary particulars per se cannot amount to a waiver.

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-

-

As particulars form part of pleadings, a party wishing to include them, must, except where an amendment without leave is permitted by the Rules, obtain leave to add them. In this case, the voluntary particulars were struck out since they were served during court vacation without leave of court. (Note: The Rules now allow pleadings to be served during court vacation without any leave. O 18 r 5 was deleted.)

Note: There is no need to incorporate F & BP into the pleadings as it automatically forms part of the pleadings For further reference, see White Book, paras 18/12/1 and 18/12/23

7h) Power Of Amendment – ALSO VERY IMPT. Note recent amendment in july 2006 * sometimes after statement of claim, you forgot to include some particulars, so you can choose to volunteer particulars. (assumes amend pleadings without leave. If you need leave of court to amend pleadings, SIC + affidavit. FnBP is so that disputes is clearly defined within parameters.) – need leave when not allowed to amend,. If allowed, then no need leave to amend order 20 – 5 rules * r 1 (writ only), r 3(all types of pleadings), r 5 (catch all, amend writ or pleadings with leave). 1. O 20 rr 1 & 3 – amendments without leave – ie no need to go to court, can amend as matter of right: a. Rule 1 (WRIT ONLY WITHOUT LEAVE) – may amend the writ once before the pleadings close but he must also serve the amended pleading if it had been served. . (Note: Pleadings close 14 days after the last pleading has been filed) If the writ has been served already, then the amended writ must be served on each of defendant to the action. Where it falls within one of the 3 instances below ie: (1) adding, altering, substituting a party etc; (2) adding or substituting a new cause of action; (3) amending a SOC endorsed on the writ. => Amendment without leave only if writ has not been served on ANY party. •

Note: Cost implications for amending with leave of court – party who seeks to amend must bear costs.

Amendment of writ without leave (O. 20, r. 1) 1. —(1) Subject to paragraph (3), the plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed. (2) Where a writ is amended under this Rule after service thereof, then, unless the Court otherwise directs on an application made ex parte, the amended writ must be served on each defendant to the action. (3) This Rule shall not apply in relation to an amendment which consists of — (a) the addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued; (b) the addition or substitution of a new cause of action; or (c) (without prejudice to Rule 3 (1)) an amendment of the statement of claim (if any) endorsed on the writ, unless the amendment is made before service of the writ on any party to the action. b. Rule 3 (ANY PLEADING ONLY WITHOUT LEAVE) - a party may amend any pleading once before the pleadings close but he must also serve the amended pleading. - Exception - Trafalgar Tours Ltd & Ors v Henry & Anor [1990] 2 Lloyds Rep 98 CA – Where leave of court is required to serve the writ out of the jurisdiction on one of several parties, amending a writ without leave of court is not permitted. Amendment of pleadings without leave (O. 20, r. 3) 3. —(1) A party may, without the leave of the Court, amend any pleading of his once at any time before the pleadings are deemed to be closed and, where he does so, he must serve the amended pleading on the opposite party. (2) Where an amended statement of claim is served on a defendant — (a) the defendant, if he has already served a defence on the plaintiff, may amend his defence;

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(b) the period for service of his defence or amended defence, as the case may be, shall be either the period fixed under these Rules for service of his defence or a period of 14 days after the amended statement of claim is served on him, whichever expires later. (3) Where an amended defence is served on the plaintiff by a defendant — (a) the plaintiff, if he has already served a reply on that defendant, may amend his reply; and (b) the period for service of his reply or amended reply, as the case may be, shall be 14 days after the amended defence is served on him. (4) In paragraphs (2) and (3) references to a defence and a reply include references to a counterclaim and a defence to counterclaim respectively. (5) Where an amended counterclaim is served by a defendant on a party (other than the plaintiff) against whom the counterclaim is made, paragraph (2) shall apply as if the counterclaim were a statement of claim and as if the party by whom the counterclaim is made were the plaintiff and the party against whom it is made a defendant. (6) Where a party has pleaded to a pleading which is subsequently amended and served on him under paragraph (1), then, if that party does not amend his pleading under paragraphs (1) to (5), he shall be taken to rely on it in answer to the amended pleading, and Order 18, Rule 14 (2), shall have effect in such a case as if the amended pleading had been served at the time when that pleading, before its amendment under paragraph (1), was served. -

Leave of court required regardless of the above provisions when it involves service out of jurisdiction.

2. O 20 r 5 (AMENDMENT OF THE WRIT/PLEADING WITH LEAVE) – HOW TO GET LEAVE OF COURT Amendment of writ or pleading with leave (O. 20, r. 5) 5. —(1) Subject to Order 15, Rules 6, 6A, 7 and 8, and this Rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct. (2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so. (3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued. (4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued. (5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

(1)

R 5(1) – at any stage on such terms as to costs and as may be just etc – even at trial, but before judgement given. at trial ess likely given but still can apply for it. genera rule – the later you amend, the less likely it will be allowed; (2) R 5(2) – may apply to amend even after limitation period has passed (because after serving writ, it crystalises the issue so limitation no longer an issue); (3) R 5(3) – an amendment to correct the name of a party may be allowed notwithstanding that it is alleged that the effect is to substitute in a new party if the court is satisfied that the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person. (bedok chia, should be chia bedok; not new identity, just error) - IMPT CA CASE - In Lim Yong Swan v Lim Jee Tee [1993] 1 SLR 500, in relation to this sub-rule, the court (CJ Yong) held that "the underlying thrust of the paragraph is that in truth and in substance, the litigant is known, although there is a nominal defect in form …. what has been done is in effect a mere correction of the nomenclature with which the party is labelled. The other party at all material times knew in fact and in substance who the opposing litigant was." (4) R 5(4) – altering the capacity in which he is making a claim. In Lim Yong Swan, in relation to this sub-rule, the court held that "the amendment is nominal."

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(5)

R5(5) an amendment may be allowed notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment. o e.g. breach my contract + defame me, I want to add in new course of action. O 20, r 5(5) allows this. o  In Lim Yong Swan, in relation to this sub-rule, the court held that the sub-rule recognises the existence of a set of facts for which relief is claimed to admit the addition or even substitution of a so-called "new" cause of action after the expiry of the limitation period. A new cause of action arises out of the same or substantially the same facts if there is a sufficient overlap between the facts supporting the existing claim and those supporting the new claim.**** ie just look for overlap. Don’t need to have all the facts matching!!! As long as there is ANY overlap. Rules take a lax perspective.

Lim Yong Swan v. Lim Jee Tee [1993] 1 SLR 500 (Impt case) • Facts: An agreement dated 13 May 1981 provided for the appellant to sell certain properties to the respondents. The agreement contained 2 special conditions stipulating circumstances in which the respondents could withdraw from the sale. • Special condition A covered the event if unsatisfactory replies to legal requisitions. Special condition B covered the even of a notice of intended acquisition/or acquisition order being issued, made or served. Both special conditions provided for the return of the deposit paid if the right of withdrawal was exercised. • On 31 August 1981, the respondents withdrew from the agreement on the ground that a legal requisition had received an unsatisfactory reply. The appellant then forfeited the deposit. A declaration in the Gazette dated 22 May 1982 stated that the Government gave notice of its intention to acquire the properties. • On 30 July 1983, the respondents commenced an action against the appellant for recovery of the deposits moneys. The claim was based on special condition A. • The properties were acquired on 2 September 1983. On 12 August 1991, the respondents applied to amend the statement of claim to raise 2 new, time-barred causes of action for the recovery of the deposit based on special condition B and frustration of contract. The CA refused to grant leave to amend: • CA: o In relation to Order 20, rule 5(5), CJ Yong said that rule 5 signifies the trend toward giving effect to substance rather than to form. It recognises the existence of a set of facts for which relief is claimed to admit the addition or even substitution of a so-called “new” cause of action after the expiry of the limitation period. o CJ Yong said that what is common in Order 20, rule 5(3), 5(4) and 5(5) is this: For an application to come within any of the paragraphs, there must already be asserted in the writ or the pleading, a set of allegations which, in spite of the expiry of the limitation period, reasonably identify the party suing or sued, which is capable of conveying the capacity of the party to sue or which permits the addition or substitution of another cause of action. In other words, the matter of identity, capacity or cause of action are already asserted or implied, from the inception of the writ or the filing of the pleading, and it is merely a matter of correction to make explicit what is implicit. o The CA held that an application under Order 20, rule 5(5) for leave to add a new cause of action that it time-barred must satisfy 2 conditions: • (i) it must arise out of the same or substantially the same facts, and • (ii)it must be just to allow the amendment. o The CA held that a new cause of action arises out of the “same or substantially the same facts” if there is sufficient overlap between the facts supporting the existing claim and those supporting the new claim. (Note: There does not have to be complete overlap) o The CA held that in deciding if justice required the grant of leave to amend, the court would consider the applying party’s need to amend and any prejudice to the opposing party’s interest. o The former (ie: applying party’s need to amend) involved considering any injustice that would be cause if leave be refused, but it did not involve a consideration of the merits of the new cause of action save where the claim is bound to fail or bound to succeed. In considering prejudice to the opposing party, the court will consider any prejudice, whether arising before of after the new cause of action became time-barred, resulting from the amendment, including the fact that the opposing party would be deprived of the defence of limitation.

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o o o

•

The burden of persuading the court that it is just to grant leave lies on the applicant but the decision is one of impression and discretion. The facts supporting the new causes of action in the present appeal did not overlap with the facts supporting the original cause of action (ie: the new causes of action sought to be added did not arise from the same or substantially the same facts) Further, the new causes of action were based on the premise that the agreement remained in existence at the time of the government’s declaration to acquire the property. The premise was not true and the proposed amendments therefore did not raise any reasonable causes of action and leave to amend should not be granted.

 It was held in no uncertain terms in Abdul Gaffer v Chua Kwang Yong [1994] 2 SLR 645; Decision of the Court of Appeal at [1995] 1 SLR 484 that o the court can only grant leave to amend after limitation period has expired if the cause of action comes within the 3 situations mentioned in O 20 r 5(3) - name, (4) - capacity or (5) – new cause of action. (Unless fit into this catgory, not other amendments entertained) o There is no general power to grant leave to do so. o In addition, the court held that under sub-rule (5), it cannot apply to the situation where a new defendant is proposed to be added to an existing action. o Where the limitation period has expired, Order 16, rule 6(2) can only be applied subject to the limitation rule – (Note: Order 16 r 6(2) deals with third parties – third party can only be added pursuant to certain conditions, elaborated in Rule 16 – dealt with in next lecture)

3. Identifying the amendments of pleadings (see Practice Direction No. 3 of 2006 with effect 17 July 2006): a. Amendment No. 1 – in black; (save ink) b. Amendment No. 2 – in red; c. Amendment No. 3 – in green; d. Amendment No. 4 – in blue; and e. Amendment No. 5 – in brown. In the past, first defence – defence. Then amended defence. Re-amended defence. Then re-re-amended defence. Goes on. Changes: i. CalL it defence, then defence (amendment no 1). Then defence (amendment no 2) ii. Colour. Used to be red the first time round. Now black the first time round for amendment.

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8.

DEFAULT OF PLEADINGS

1.

O 19 r 1 (default in serving statement of claim) - defendant may apply by SIC supported by affidavit to dismiss the action etc. if plaintiff and don’t file statement of claim. Def will say – have not filed soc within 14 days and will take out summons with affidavit to dismiss the action. If writ endorsed with full SOC, can def still take out this apliction for non filing of SOC? NO. writ already endorsed with full SOC. This rule only applies where writ endorsed with summary of claim. Def waits for SOC but nth filed then files applic to dismiss action for no SOC. Note: Plaintiff must serve SOC within 14 days. This rule applies only to an endorsed writ (ie: no detailed claim attached to the writ). This is because. if the writ had already come attached with a SOC, then there is no need to wait for the SOC. Remember the 2 ways in which a claim by Writ can be made: • •

Writ of Summons + detailed Statement of Claim Endorsed Writ (ie: summary of the claim on the writ) – in this case, the Plaintiff will have to file a detailed SOC within 14 days.

Default in service of statement of claim (O. 19, r. 1) 1. Where the plaintiff is required by these Rules to serve a statement of claim on a defendant and he fails to serve it on him, the defendant may, after the expiration of the period fixed under these Rules for service of the statement of claim, apply to the Court for an order to dismiss the action, and the Court may by order dismiss the action or make such other order on such terms as it thinks just.

2.

O 19 rr 2 – 7 (default in serving defence (DF entered into appearance but no defence)) - plaintiff may act in accordance with the relevant sub-rule to enter judgment against the defendant ie:

(a) R 2 (liquidated demand only) – enter final judgment. 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. (b) R 3 (unliquidated damages only) – interlocutory judgment with damages to be assessed. EXAM!!!!!! – often damages are unquantified, so you need to go for an interlocutory judgement. Ie pre trial judgement. 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) R 4 (claim in detinue ie detention of immovable property only) – interlocutory judgment with damages to be assessed.

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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) R 5 (claim for possession of immovable property only) – enter judgment for possession of the immovable property. 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) R 6 (mixed claim) – proceed in accordance with each sub-rule. 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)

R 7 (other claims, not under rr 2 – 5) – apply by SIC to enter judgment. (the catch all)

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. 3.

O 19 r 8 (default in serving defence to counterclaim) – as per para 2 above. Def will file. Two separate actions. The claim itself will still continue.

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 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

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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.

4.

Procedure to enter such judgment in default of defence:

(a) Form 79: This form deals with the orders for judgments in default (b) Affidavit of Service: This is usually an affidavit from your Court’s clerk – that 1. writ served by way of personal service and 2. SOC filed and served but that defence not yet in; (c) Memorandum of Service – O 10 r 1(4) – Form 6 – to show that served on def; General provisions (O. 10, r. 1) (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. (d) Note of Costs: This deals with how much you claim for costs – stating costs incurred up to this stage based on scaled costs (appdx to order 59 stating what are things incurred eg cost of writ etc. if cannot find personally, then substituted service – advertising fees etc); (e) If claim for possession of immovable property, certificate by solicitor stating not claiming any relief in the action of the nature specified in O 83 r 1. Application and interpretation (O. 83, r. 1) 1. —(1) This Order applies to any action (whether begun by writ or originating summons) by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being an action in which there is a claim for any of the following reliefs: (a) payment of moneys secured by the mortgage; (b) sale of the mortgaged property; (c) foreclosure; (d) delivery of possession (whether before or after foreclosure or without foreclosure) to the mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property; (e) redemption; (f) reconveyance of the property or its release from the security; (g) delivery of possession by the mortgagee.

•

*** Give 48 hrs to opp before enter judgement in default. To protect each other. Stimes snowed under and may forget that there is deadline, so giving of notice by lketter will allow opp to be alerted and see whether he has forgotten to do what he has to do, failure to comply with this rule may render case of misconduct.

•

A lot of cases have judgments in default! – sub courts – 60000 actions a yr (civil), about 55000 have judgements entered in default => Maj req judgement in default

9. CLOSE OF PLEADINGS – EXAM!! – identify milestone where rights may change. 1. O 18 r 20 (when pleadings are closed) 2. Order 18, rule 20(1) – states that pleadings in an action are deemed to close at: • 14 days after service of Reply • 14 days after service of Defence to Counterclaim (if there is no Reply) • 14 days after service of the Defence to SOC (if no Reply and no Defence to Counterclaim) Close of pleadings (O. 18, r. 20) 20. —(1) The pleadings in an action are deemed to be closed — (a) at the expiration of 14 days after service of the reply or, if there is no reply but only a defence to counterclaim, after service of the defence to counterclaim; or

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(b) if neither a reply nor a defence to counterclaim is served, at the expiration of 14 days after service of the defence. (2) The pleadings in an action are deemed to be closed at the time provided by paragraph (1) notwithstanding that any request or order for particulars has been made but has not been complied with at that time.

3.

Order 18, rule 20(2) –Pleadings are deemed closed even if the request for F&BP has not yet been complied with. (Note that when the F&BP come in, becomes part of pleadings).

–

will still close as if not pending request. If factor in fbp, very confusing as to when pleadings actually close. Only logical, if date depends on no of requests, then makes it ongoing and dnt know whether to close pleadings. ie to know when pleadings close, just ask which is the last compulsory pleading – this stops at the defence (SOC, defence). Defence is compulsory pleading. Reply is NOT compulsory pleading, only optional. Rules x req u to seek leave to file. Pleadings x closed where you have rejoinder and surjoinder.

–

4. Effect: a) Not allowed to amend pleadings without leave after this b) ***If closed, given 28 days to file beyond which cannot file. 10. TRIAL WITHOUT PLEADINGS EXAMS!!!! 1. O 18 r 22 (trial without pleadings) – very rare occurrence - the court may direct parties to prepare a statement of issues in dispute with or without the assistance of the court. Trial without pleadings (O. 18, r. 22) 22. —(1) Where in an action to which this Rule applies any defendant has entered an appearance in the action, the plaintiff or that defendant may apply to the Court by summons for an order that the action shall be tried without pleadings or further pleadings, as the case may be. (2) If, on the hearing of an application under this Rule, the Court is satisfied that the issues in dispute between the parties can be defined without pleadings or further pleadings, or that for any other reason the action can properly be tried without pleadings or further pleadings, as the case may be, the Court shall order the action to be so tried, and may direct the parties to prepare a statement of the issues in dispute or, if the parties are unable to agree to such a statement, may settle the statement itself. (3) Where the Court makes an order under paragraph (2) or where it dismisses an application for such an order, it may give such directions as to the further conduct of the action as may be appropriate, and Order 25, Rules 2 to 7 shall, with the omission of so much of Rule 7 (1) as requires parties to serve a notice specifying the orders and directions which they desire and with any other necessary modifications, apply as if the application under this Rule were a summons for directions. (4) [Deleted by S 281/91]   

Trial by affidavit – plaintiff files on story, def files another and then plaintiff reply, then go to trial. Normally court will direct that statement of issues be prepared. Easier than pleadings! Application by SIC supported by affidavit (waive FnBP). Happens when the case is very urgent, try not to have trial but settle instead.

11. Third Party Procedure (order 16) ----EXAM!!!!!!!!!!!!!!!!!!!!!



Def can bring in third party, and third party may bring in yet another party to be sued as defendant (4th party) mostly in High Court proceedings.

1.

Objects of Order 16: To prevent multiplicity of actions and to enable the court to adjudicate on disputes between all parties to them in one action (Barclays Bank v Tom [1923] 1 KB 221 on 223 and 225. (b) To prevent the same question from being tried twice with possibly different results (per Blackburn J in Benecke v Frost [1876] 1 QBD 419 on 422). (c) For further reference, see White Book, para 16/1/1.

(a)

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Example of Third Party Proceedings There is the Plaintiff (owner of HDB flat), Defendant (contractor for renovations of the HDB flat) and a Third Party (sub-contractor). The Defendant may claim that he is not responsible for the Plaintiff’s claim, but that the sub-contractor is the one responsible. The Defendant may bring in the subcontractor as a Third Party. Note: There could also be Fourth and Fifth Party proceedings.

2. -

Independent nature of third party proceedings: 16 r 3(3) – the third party (TP) Notice is to be treated as a writ and the proceedings begun thereby an action and the defendant issuing were a plaintiff and the person being issued is the defendant in the TP action. – Therefore, Defendant in the main action becomes the ‘Plaintiff’ in respect to the Third Party Proceeding. 3RD party notice treated as writ => like an originating process, therefore need to serve by personal service. If not, by substituted service. Just that subsumed within original action. A Third Party Proceeding is independent in nature – because it has its own pleadings. Explanation on Third Party Proceedings o The defendant in the main action, who issues the Third Party Notice, becomes the plaintiff. o The Third Party may file a counterclaim against the Defendant of the main action (who is considered the plaintiff in the third party action). o Therefore, there is in effect two actions: The main action, and the third party action.

Issue and service of, and entry of appearance to third party notice (O. 16, r. 3) 3.(3) Subject to paragraphs (1) and (2), the following provisions of these Rules, namely, Order 6, Rule 3 (2), Order 10 (except Rule 1 (4)), Order 11 and Order 12, shall apply in relation to a third party notice and to the proceedings begun thereby as if — (a) the third party notice were a writ and the proceedings begun thereby an action; and (b) the defendant issuing the third party notice were a plaintiff and the person against whom it is issued a defendant in that action.

3.

Bringing in a third party – issue and service and entry of appearance

(a) O 6 r 3(2) – registrar shall assign serial no., signed, sealed and dated upon issuance – this starts the third party action. Registrar shall assign a serial number to the writ and shall sign, seal and date the writ whereupon the writ shall be deemed to be issued. Issue and service of, and entry of appearance to third party notice (O. 16, r. 3) (2) There must be served with every third party notice a copy of the writ or originating summons by which the action was begun and of the pleadings (if any) served in the action.

(b)

O 10 r 1(1) - personal service of TP Notice – except O 10 r 1(4) ie Memorandum of Service. A Third Party Notice must be served by personal service because it is treated as a writ

Order 10, rule 1(1) Subject to the provisions of any written law and these Rules, a writ must be served personally on each defendant. * Originating process. Can’t find him? substituted service, Paris? Service out of jurisdiction, O 11 applies. Base overseas? Give him 21 days to enter into appearance

(c)

O 11 – rules governing service out of jurisdiction will apply.

(d) O 12 – rules governing appearance to be entered will apply.

(e)

Stott v West Yorkshire Road Car Co Ltd [1971] 3 All ER 534 – If the main action is settled as between the plaintiff and the defendant, the third party proceedings by the defendant against the third party can still proceed in the same way as if they had been started by a separate action, and it is not necessary for a new action to be brought.

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(f) See White Book, para 16/1/23 – a TP can counterclaim - defendant and TP can interrogate each other (the defendant in the action will be the defendant in the tp’s counterclaim) - TP directions on discovery may be given - a TP may ask for an issue to be tried between himself and the plaintiff in the same proceedings etc. “Interrogatories” – asking qns, giving pted ans to pted qns, proced for this.

4.

O 16 r1(1)(a)(b) and (c) – 3 grounds for issuing a TP Notice:

Third party notice (O. 16, r. 1) 1. —(1) Where in any action a defendant who has entered an appearance — (a) claims against a person not already a party to the action any contribution or indemnity; (b) claims against such a person any relief or remedy relating to or connected with the original subject-matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or (c) requires that any question or issue relating to or connected with the original subject-matter of the action should be determined not only as between the plaintiff and the defendant but also as between either or both of them and a person not already a party to the action, then, subject to paragraph (2), the defendant may issue a notice in Form 16 or 17, whichever is appropriate (referred to in this Order as a third party notice), containing a statement of the nature of the claim made against him and, as the case may be, either of the nature and grounds of the claim made by him or of the question or issue required to be determined. a. 1st Ground (1) O 16 r 1(1)(a) – any contribution or indemnity. (2) Form 16 or 17. (3) White Book, para 16/1/3 & 16/1/4 – In effect a claim to contribution is a claim to partial indemnity. A right to contribution usually arises as between joint debtors, joint contractors, joint trustees, joint sureties, joint wrongdoers etc. A right to indemnity may arise from express contract, from statute or by implication of law eg. where an act is done by one person at the request of another, and in consequence of such an act, the person doing it suffers loss.



“contribution” implies part of the total amount (install tap); while “indemnity” refers to the full amount (supply and install tap)



In most cases shld be indemnity – beyond 1 st def’s arena to control. if he plays a part in monitoring erformenace of faulty gadget, then may be contribution.

b. 2nd Ground (1) O 16 r 1(1)(b) – issues substantially the same as some relief or remedy claimed by the plaintiff. (2) Form 16 or 17. (3) White Book, para 16/1/2 – It is not necessary that the facts should be the same or substantially the same. It may be enough that they are similar ….. and so is the fact that the TP claim is designed to determine who should ultimately bear the loss alleged to have been suffered by the plaintiff …. (As long as overlap substantially the same) c. 3rd Ground– catch all (1) O 16 r 1(1)(c) – any question or issue relating to or connected with the original subject-matter of the action should be determined not only as between the plaintiff and the defendant but also as between either or both of them and a person not already a party to the action. Ie whoever shld be brought in just bring in to resolve issue once and for all. (2) Form 16 or 17. d. With/without leave; how to obtain leave (summons supported by affidavit) whether leave to issue TP Notice is required: (if not yet served defence, then no need notice) * Go by no leave method if possible, save procedure & cost. But everything against government, need leave. Personal service day he is served; substituted service, day he’s pasted advertisement is day he is made a party (1) O 16 r 1(2) – The Defendant does not require leave of court to issue Third Party Notice if:  The action was begun by writ; and  The Defendant issued the Third Party Notice before serving his defence on the plaintiff. Order 16, rule 1(2)

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2) A defendant to an action may not issue a third party notice without the leave of the Court unless the action was begun by writ and he issues the notice before serving his defence on the plaintiff. Possible exam question Can an Originating Summons action have a third party proceeding? Ans: Yes, but he would need the leave of court. (2) O 73 r 8 – leave is required if intended TP is the government. – anything that deals with govt leave is prob required. Third party notice (O. 73, r. 8) 8. —(1) Notwithstanding anything in Order 16, a third party notice (including a notice issuable by virtue of Order 16, Rule 9) for service on the Government shall not be issued without the leave of the Court, and the application for the grant of such leave must be made by summons, and the summons must be served on the plaintiff and the Government. (2) Leave to issue such a notice for service on the Government shall not be granted unless the Court is satisfied that the Government is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the departments and officers of the Government concerned. (3) O 16 r 2(1) – leave obtained by ex parte summons in Form 18. Application for leave to issue third party notice (O. 16, r. 2) 2. —(1) Application for leave to issue a third party notice may be made by ex parte summons in Form 18 but the Court may direct the summons to be served. (2) An application for leave to issue a third party notice must be supported by an affidavit stating — (a) the nature of the claim made by the plaintiff in the action; (b) the stage which proceedings in the action have reached; (c) the nature of the claim made by the applicant or particulars of the question or issue required to be determined, as the case may be, and the facts on which the proposed third party notice is based; and (d) the name and address of the person against whom the third party notice is to be issued. (4) O 16 r 2(2) – matters that must be contained in affidavit in support: (a) nature of P’s claim; (b) stage of proceedings(so that court knows whether leave is required); (c) nature of D’s claim/ or particulars of the question or issues to be determined, as the case may be, and the facts on which the proposed third party notice is based; and; (d) name and address of the person against whom the TP Notice is to be issued. (5) O 16 r 6 – TP proceedings can be set aside at any stage by the court. Setting aside third party proceedings (O. 16, r. 6) 6. Proceedings on a third party notice may, at any stage of the proceedings, be set aside by the Court. (6) O 16 r 3(2) – in addition to notice, a copy of writ or OS and pleadings (if any) must be served together. Order 16, rule 3(2) (2) There must be served with every third party notice a copy of the writ or originating summons by which the action was begun and of the pleadings (if any) served in the action. e. O 16 r 1(3) – TP becomes party to action from time of service of notice. Order 16, rule 1(3) (3) Where a third party notice is served on the person against whom it is issued, he shall as from the time of service be a party to the action (referred to in this Order as a third party) with the same rights in respect of his defence against any claim made against him in the notice and otherwise as if he had been duly sued in the ordinary way by the defendant by whom the notice is issued. f. Memorandum of Appearance by TP. 8 days for local 21 days if outside juris ie same time frame applies.

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g. TP Directions – need to file directions: Third party directions (O. 16, r. 4) 4. —(1) If the third party enters an appearance in Form 19, the defendant who issued third party notice must, by summons in Form 20 to be served on all the other parties to the action, apply to the Court for directions. (2) If no summons is served on the third party under paragraph (1), the third party may, not earlier than 7 days after entering an appearance, by summons in Form 20 to be served on all the other parties to the action, apply to the Court for directions or for an order to set aside the third party notice. (3) On an application for directions under this Rule the Court may — (a) if the liability of the third party to the defendant who issued the third party notice is established on the hearing, order such judgment as the nature of the case may require to be entered against the third party in favour of the defendant; (b) order any claim, question or issue stated in the third party notice to be tried in such manner as the Court may direct; or (c) dismiss the application and terminate the proceedings on the third party notice; and may do so either before or after any judgment in the action has been signed by the plaintiff against the defendant. (4) On an application for directions under this Rule the Court may give the third party leave to defend the action, either alone or jointly with any defendant, upon such terms as may be just, or to appear at the trial and to take such part therein as may be just, and generally may make such orders and give such directions as appear to the Court proper for having the rights and liabilities of the parties most conveniently determined and enforced and as to the extent to which the third party is to be bound by any judgment or decision in the action. (5) Any order made or direction given under this Rule must be in Form 21 and may be varied or rescinded by the Court at any time. (1)

O 16 r 4(1) – if appearance entered, defendant must apply for direction – Form 26 (Summons for TP Directions). Because he is effectively the plaintiff here.

(2)

O 16 r 4(2) – if defendant fails to apply for directions, TP may apply to court for directions not earlier than 7 days after entering appearance. This effectively fixes the time within which the defendant should apply for directions if they do not wish the TP to do so instead.

* DF pays costs for bringing in wrong TP, can be fixed or taxed at $100.

(3)

O 16 r 4(2) – as an alternative for asking for directions, TP may also apply to set aside the TP Notice. Because he thinks def is delaying the action. (apply for summons supported by affidavit)

h. Court may make the following orders under either O16 rule 4(3) or 4(4) under the application for directions: (1) R 4(3)(c) – dismiss the application for directions and terminate the proceedings on the TP Notice (because def does not seem sincere, etc). (2) R 4(3)(a) – where the liability of the TP to the defendant giving the notice is established, order appropriate judgment to be entered for the defendant against the TP. Where court satisfied that no merits to defence at all, court can also enter judgement by consent of parties. (3) R 4 (3)(b) – order any claim, question, or issue to be tried in such a manner as the court may direct, as between the plaintiff, and defendant and third party. So that both actions will run concurrently in parallel fashion. (4) R 4(4) – give the TP leave to appear at the trial and take such part therein as may be just. Trial bet plaintiff and def which strictly speaking nth to do with TP. (5) R 4(4) – generally make such orders and give such directions as may appear proper for having rights and liabilities of the parties most conveniently determined and enforced. Expediency is the key. i. Consequences of default of TP. Default of third party, etc. (O. 16, r. 5) 5. —(1) If a third party does not enter an appearance or, having been ordered to serve a defence, fails to do so —

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(a) he shall be deemed to admit any claim stated in the third party notice and shall be bound by any judgment (including judgment by consent) or decision in the action in so far as it is relevant to any claim, question or issue stated in that notice; and (b) the defendant by whom the third party notice was issued may, if judgment in default is given against him in the action, at any time after satisfaction of that judgment and, with the leave of the Court, before satisfaction thereof, enter judgment against the third party in respect of any contribution or indemnity claimed in the notice, and, with the leave of the Court, in respect of any other relief or remedy claimed therein. (2) If a third party or the defendant by whom a third party notice was issued makes default in serving any pleading which he is ordered to serve, the Court may, on the application by summons of that defendant or the third party, as the case may be, order such judgment to be entered for the applicant as he is entitled to on the pleadings or may make such other order as may appear to the Court necessary to do justice between the parties. (3) The Court may at any time set aside or vary a judgment entered under paragraph (1) (b) or paragraph (2) on such terms (if any) as it thinks just. (1) O 16 r 5(1) – default by TP in entering appearance or serving defence – deemed to admit any claim stated in the TP Notice and shall be bound by any judgment (including consent judgment) etc. (2) O 16 r 5(2) – default by TP or defendant in serving pleadings – party not in default may apply by SIC to enter judgment or for any order necessary to do justice. For 3rd paty, def is plaintiff in tp proceedings. Plaintiff in this case has remedy against tp not by o19 but can enter judgement by way of summons against TP. Same as for defendant. **Note once again need to give 48 hrs notice. This is sol to sol conduct. (3) O 16 r 5(3) – court can at any time set aside or vary judgment entered under O 16 r 5(1)(b) and r 5(2). P and def situation – plaintiff enters judgement in default under O19 procedure. See earlier. j. O 16 r 7 – non default judgment may be entered against TP at or after trial of the main action. Judgment between defendant and third party (O. 16, r. 7) 7. —(1) Where in any action a defendant has served a third party notice, the Court may at or after the trial of the action, or, if the action is decided otherwise than by trial, on an application by summons, order such judgment as the nature of the case may require to be entered for the defendant against the third party or for the third party against the defendant. (2) Where in an action judgment is given against a defendant and judgment is given for the defendant against a third party, execution shall not issue against the third party without the leave of the Court until the judgment against the defendant has been satisfied. k. Claims and issues between a defendant and some other party (very rare): Claims and issues between a defendant and some other party (O. 16, r. 8) 8. —(1) Where in any action a defendant who has entered an appearance — (a) claims against a person who is already a party to the action any contribution or indemnity; (b) claims against such a person any relief or remedy relating to or connected with the original subject-matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or (c) requires that any question or issue relating to or connected with the original subject-matter of the action should be determined not only as between the plaintiff and himself but also as between either or both of them and some other person who is already a party to the action, then, subject to paragraph (2), the defendant may, without leave, issue and serve on that person a notice containing a statement of the nature and grounds of his claim or, as the case may be, of the question or issue required to be determined. (2) Where a defendant makes such a claim as is mentioned in paragraph (1) and that claim could be made by him by counterclaim in the action, paragraph (1) shall not apply in relation to the claim. (3) No appearance to such a notice shall be necessary if the person on whom it is served has entered an appearance in the action or is a plaintiff therein, and the same procedure shall be adopted for the determination between the defendant by whom, and the person on whom, such a notice is served of the claim, question or issue stated in the notice as would be appropriate under this Order if the person served with the notice were a third party and (where he has entered an appearance in the action or is a plaintiff) had entered an appearance to the notice.

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(4) Rule 4 (2) shall have effect in relation to proceedings on a notice issued under this Rule as if for the words “7 days after entering an appearance” there were substituted the words “14 days after service of the notice on him”. (1) O 16 r 8(1) – defendant, having entered an appearance, may serve a Notice, containing a statement of the nature and grounds of his claim against that person if it falls within one of the 3 limbs below: (a) in contribution or indemnity against a person who is already party to the action; or (b) the reliefs or remedies sought are substantially the same as that claimed by the plaintiff; or (c) any question or issue in the main action be determined not only between the plaintiff and the defendant but also as between either or both of them and some other person who is already a party to the action. (2) O 16 r 8 (1) – no leave is required. (3) O 16 r 8(3) – no appearance by that some other party is required if it is the plaintiff or if that some other person has entered an appearance in the main action. (4) O 16 r 8(2) – R 8 does not apply if defendant could have made the claim by counterclaim. l. 4th or 5th Party Notice: – TP may issue 4th or 5th Party Notice. Claims by third and subsequent parties (O. 16, r. 9) 9. —(1) Where a defendant has served a third party notice and the third party makes such a claim or requirement as is mentioned in Rule 1 or Rule 8, this Order shall apply, with the modification mentioned in paragraph (2) and any other necessary modifications, as if the third party were a defendant; and similarly where any further person to whom, by virtue of this Rule, this Order applies as if he were a third party makes such a claim or requirement. (2) The modification referred to in paragraph (1) is that paragraph (3) shall have effect in relation to the issue of a notice under Rule 1 by a third party in substitution for Rule 1 (2). (3) A third party may not issue a notice under Rule 1 without the leave of the Court unless the action in question was begun by writ and he issues the notice before the expiration of 14 days after the time limited for appearing to the notice issued against him. 12. Security For Costs – only def can apply, or parties in capacity of defendant, not plaintiff. ---- VERY IMPORTANT FOR EXAMS!!!!!!!!!!!!!!! -----

-

-

Only the defendant can apply for security. Afraid that the defendant will defend action successfully and not get back costs, eg. If the plaintiff is not in Singapore or goes bankrupt. ‘Security for costs’ is a good weapon to used against the plaintiff in preparing for a trial. If the Plaintiff loses the case, at least the Defendant has party-to-party costs, to pay for his lawyer’s fees. This procedure is a technique to test the Plaintiff’s means and will to proceed. Security for costs is only given to the defendant by the plaintiff. Rationale - Allowed to ensure that plaintiff def has money to pay back def in costs – so that if plaintiff sues vexatiously and loses trial, then at least def has asked plaintiff to put costs in his hands. If plaintiff wins, then def will return the security for costs back to plaintiff. Ie to protect defendants fr reckless plaintiffs. But even though only def can apply for security, in third party action, third party can also apply for security for costs. Counterclaim, plaintiff can ALSO apply if def files counterclaim. In fourth party action, fourth party can also file security for costs. Factors to consider o When you make application, the earlier the better – hidden consideration o See tutorial for other factors o Negotiate – advise client/ negotiate payment in parts – pleadings/affidavit/main action (3 stages) – cheaper to give less security each time. But to pay bank at interim stage Note that s23 only sets out the preconds – court will still ex discretion even after you satisfy conds

1. O 23 r 1 – 4 grounds to support an application for security for cost. – applies to whatever status of plaintiff

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Security for costs of action, etc. (O. 23, r. 1) 1. —(1) Where, on the application of a defendant to an action or other proceeding in the Court, it appears to the Court — (a) that the plaintiff is ordinarily resident out of the jurisdiction; (b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so; (c) subject to paragraph (2), that the plaintiff’s address is not stated in the writ or other originating process or is incorrectly stated therein; or (d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation, then, if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant’s costs of the action or other proceeding as it thinks just. 1a) O 23 r 1(1): a. Discretionary vis “if, having regard to all the circumstances of the case, the court thinks it just to do so.” -

These words point to the Court having the ‘discretion’ to decide whether or not to order security of costs against the plaintiff. The following cases suggest how the court may exercise this discretion: o Crozat v Brodgen [1894] 2 QB 30 at 33 – Investigation of the merits of the case was justified only because the plaintiffs demonstrated a very high probability of success. If there is a strong prima facie presumption that the defendant will fail in his defence to the action, the court may refuse him any security for costs. o Sir Lindsay Parkinson & Co. Ltd v Triplan Ltd [1973] 2 All ER 273 at285-286 – a major matter for consideration is the likelihood of the plaintiff succeeding. This is not to say that every application for security for costs should be made the occasion for a detailed examination of the merits of the case. o d. Porzelack KG v Porzelack (UK) Ltd [1987] 1 All ER 1074 – parties should not attempt to go into the merit of the case unless it can be clearly demonstrated one way or another that there is a high degree of probability of success or failure. : - Generally – meanings are the same. 1b) 1st ground a) 23 r 1(a) – that the plaintiff is ordinarily out of jurisdiction. b) Lek Swee Hua & Anor v American Express Int. Inc [1991] 2 MLJ p 151 – The status of a permanent resident was by no means conclusive or even convincing. The question was whether he was ordinarily resident in Singapore. IMPT!!!!! CONSIDER no of days or mths in which he is in sg. 1c) 2nd ground a. O 23 r 1(b) – that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so. b. Semler v Murphy [1968] Ch 183 – a plaintiff who has assigned the benefit of an action may be a nominal plaintiff. c. Lloyd v Hathern Station Brick Co. (1901) 85 L T 158 – an insolvent plaintiff who assigns to a trustee for the benefit of his creditors all his estate, and covenants to prosecute the action, is merely a nominal plaintiff and must give security. d. Fellows v Barett (1836) 1 Keen 119 – The next friend of a person under a disability is not a nominal plaintiff – this is procedure, does not make u nominal plaintiff - and he cannot be compelled to give security. e. Rainbow v Kittoe [1916] 1 Ch 313 – an administrator, suing in a representative capacity, is not a nominal plaintiff. – again this is procedure 1d) 3rd ground

a) b)

O 23 r 1(c) – that the plaintiff’s address is not stated in the writ or other originating process or is incorrectly stated in the writ. Swanzy v S [1858] 27 LJ Ch 419 – O 23 r 1(c) is an embodiment of the decision here.

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c)

d)

O 23 r 1(2) – if the plaintiff’s failure to state his address or the misstatement thereof was made innocently and without intention to deceive, the court will not order security to be furnished. Chellew v Brown [1923] 2 KB 844 – a master mariner with no permanent home gave his sister’s address – no intention to deceive the court because since moved fr time to time, diff to give stated address, inf act by supplying sister’s address, was being accountable.

6. 4th Ground a) 23 r 1(1)(d) – that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of litigation. b) Knight v Ponsonby [1925] 1 KB 545 – Security will not be ordered from a plaintiff who has indorsed a sufficient address on his writ, and has afterwards removed from that address, and is prevented by poverty and adversity from acquiring a fresh permanent address. (more common in London than in sg) => with these grds, licence to apply 1e) Others a) O 23 r 3 – Order 23 is without prejudice to the provisions of any written law which empowers the Court to require security to be given for the costs of any proceedings. b) s 388 (1) of the Companies Act: (only applicable to plaintiff which is company): “Where a corporation is plaintiff in any action or other legal proceeding the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.” – ie to show that def is unable to pay its debts. May have plaintiff which is comp unable to pay debts but also comp outside juris – can invoke both under this sn and under O23. c) s 36(1) of the Societies Act: “Where a registered society or any of its officers purporting to act on its behalf is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the society or the officer will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs and stay all proceedings until the security is given. O 23 of the Rules of Court and s 388 of the Companies Act:

a)

distinction between O 23 of the Rules of Court and s 388(1) of the Companies Act - Creative Elegance (M) Sdn Bhd v Puay Kim Seng & Anor in Civil Appeal No. 155 of 1998, 13 January 1999, decision delivered by L P Thean JA at para 13: “There is, of course, a difference in the wordings of the two provisions (O23 and s388(1)), but the difference lies in the condition to be satisfied before the respective provisions can be invoked.” i. Malaysian comp in this case out of juris and may not be able to pay debts - so both cld be invoked. ii. Not a good case anymore!! outdated

b) b. the test to be used when considering whether security for cost should be granted – Test / Principles to be applied when considering whether security for cost should be granted under Order 23 and S.388 Companies Act are the same: – The Court is to consider all the circumstances and decide whether it is just to order security of costs against the plaintiff Creative Elegance (M) Sdn Bhd This is the case head note, as a general overview of the case. Facts The appellant Creative Elegance (M) Sdn Bnd (‘CE’), a Malaysian company, sued the respondents (‘the suppliers’) for not supplying watches according to their representations and contractual descriptions. They claimed damages for misrepresentation and breach of contract. The suppliers counterclaimed on a dishonoured cheque for RM 17,720 issued by CE. They also applied for an order requiring CE to provide security for costs on the ground that CE were ordinarily resident outside jurisdiction. The assistant registrar dismissed the application. The High Court allowed the application and ordered provision for security for costs by way of a bank guarantee within 14 days failing which their statement of claim would be struck out. CE appealed. They were unable to provide the necessary security for costs.

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Held, allowing the appeal: 1. The fact that CE were ordinarily resident out of jurisdiction did not attract an order for security for costs as a matter of course. It might by itself tip the balance in favour of granting such order. One of the relevant circumstances was the strength or weakness of CE’s claim. This applied whether the court was considering an application under Order 23 r 1(1) (a) of the Rules of Court or s 388 of the Companies Act (Cap 50). In either case, the court would also examine all circumstances before concluding whether it was just to order security for costs. 2. On the facts, CE had shown that they had a bona fide claim against the suppliers with reasonable prospect of success on their claim. In view of the prevailing economic condition, they were unable to provide security for costs as ordered. To allow the order to remain would stifle their claim. at para 13: - “Once the condition under the respective provision is satisfied, the court’s discretion is invoked, whether the discretion is one under O 23 r 1(1)(a) or under s 388 the same principles are applicable: the court considers all the circumstances and decide whether it is just to order the plaintiff to provide security for costs and the extent of such security.” - Ie once the conditions under Order 23 or S.388 CA are satisfied, same test will apply regardless of whatever door is open to order security. (O23 or s388)

c)

“the incorrect approach” - Creative Elegance (M) Sdn Bhd at para 25: “It is certainly not correct to say that in an application under s 388 the test is whether the plaintiff has a bona fide claim with reasonable prospect of success and that in an application under O 23 r 1(a) the test is whether the plaintiff is likely to succeed in the sense that he has a high probability of success. At any rate, the difference between these two so called tests is really marginal. Neither of them alone is a test by which the court determines to exercise its discretion. Hence, it is not the law that once the plaintiff has shown that he has a bona fide claim with a reasonable prospect of success or that he is likely to succeed in the sense that he has a high probability of success, it follows as a matter of course that the court will not make an order for security for costs. Such a fact, if established prima facie, is only one of the circumstances that the court will take into consideration in determining whether in exercise of its discretion an order for security for costs should be made or should be refused. The court has to examine all the other circumstances and come to the conclusion whether it is just that an order for security for costs should or should not be granted.”

d) The decision in - Creative Elegance (M) Sdn Bhd:  Facts: “26. The crux of the appellants’ case was that the respondents had represented to the appellants that the watches supplied would have either brass or stainless casing and a plating of either 3 micron 18K gold or 1 micron 18K gold, and that the appellants had relied on this misrepresentation in purchasing the watches. It was alleged that the watches supplied did not conform with the representations made as to the casing and plating ….  Application of one of the tests ie “the prospects of success” (c.f. reasonable likelihood or high likelihood): 31. It is sufficient to say that on the materials before us the appellants had shown that they had a bona fide claim against the respondents and a reasonable prospect of success on the claim.



The Court of Appeal took into account 2 other circumstances: o the prevailing bad economic condition; and o the feasibility to enforce judgment against the appellants in Malaysia.Other circumstances: 32. It seems to us that in view of the prevailing economic condition there is no possibility of the appellants providing the security for costs as ordered, and such an order if remained would undoubtedly stifle their claim. (asian eco crisis at this pt. court not prepared to stifle claim of comp which seemed to have genuine claim) 33. Lastly, the appellants are still carrying on business in Malaysia and it is open to the respondents, if they succeed in this action, to enforce the order for payment of costs there. This is clearly a factor that should be taken into consideration. (sg and Malaysia – reciprocal enforcement)



Held: 34. Having regard to all the relevant circumstances, it would be unjust to make an order for security for costs. We accordingly allowed the appeal and set aside the order of the learned judicial commissioner.”

* court make PF give security, PF may not be able to give, will stop action there (Co. can’t pay security of cost), court think PF got a good case here, so may not make PF give security for costs (don’t want to frustrate right!)

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Summary of the Situation after Creative Elegance case: • • •

Decide whether you are invoking Section 388 CA or Order 23 – different conditions must be satisfied. Once Order 23 or Section 388 CA invoked, the principles applicable are the same. Must look at all the circumstances; not just the possibility of success.

2. Procedure a. O 23 r 1 – file SIC in the action supported by an affidavit. (2) The Court shall not require a plaintiff to give security by reason only of paragraph (1) (c) if he satisfies the Court that the failure to state his address or the mis-statement thereof was made innocently and without intention to deceive. b. O 23 r 2 – the order for security to be given will also deal with “manner, at such time, and on such terms.” Manner of giving security (O. 23, r. 2) 2. Where an order is made requiring any party to give security for costs, the security shall be given in such manner, at such time, and on such terms (if any), as the Court may direct. (1) “manner” – common modes: (a) furnish bankers guarantee to the satisfaction of the defendant; (b) payment into court; (c) solicitors’ undertaking. (2) “at such time” – usually ranging from 14 – 28 days (even if very hurried court will give at least 7 days); (3) “on such terms” – common peremptory orders usually given after 1 default: (a) failing which the action is stayed; (b) failing which the action is dismissed etc. (4) Common phrasing of the order for security to be furnished: “Plaintiff to furnish security for costs in the sum of $X by DD/MM/YY by way of a banker’s guarantee(/etc) to the satisfaction of the defendant failing which the action is stayed with costs of the application fixed at $XX to be paid by the plaintiff to the defendant forthwith.” 

Ie def who wins will get costs of application AND the security for costs.

3. Applicability to non-party and counterclaims: (a) Applicability to “non-party” (commonly a bank – stimes to provide documents etc)– Order 23, rule 1(3) (3) Where, on the application of a defendant to an action or other proceeding in the Court, it appears to the Court — (a) that a party, who is not a party to the action or proceeding (referred to hereinafter as a “non-party”), has assigned the right to the claim to the plaintiff with a view to avoiding his liability for costs; or (b) that the non-party has contributed or agreed to contribute to the plaintiff’s costs in return for a share of any money or property which the plaintiff may recover in the action or proceeding, and the non-party is a person against whom a costs order may be made, then, if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the non-party to give such security for the defendant’s costs of the action or other proceeding as the Court thinks just. (4) An application for an order under paragraph (3) shall be made by summons, which must be served on the non-party personally and on every party to the proceedings. (5) A copy of the supporting affidavit shall be served with the summons on every person on whom the summons is required to be served. (b) Applicability to “counterclaims” – Order 23, rule 1(6) (6) The references in paragraphs (1), (2) and (3) to a plaintiff and a defendant shall be construed as references to the person (howsoever described on the record) who is in the position of plaintiff or defendant, as the case may be, in the proceeding in question, including a proceeding on a counterclaim.

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For eg. in respect of the defendant’s counterclaim, the defendant is the plaintiff in the counterclaim and the plaintiff (in the action) being the defendant in the counterclaim is entitled to apply for security for costs against the defendant.

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