Professional Documents
Culture Documents
Preliminary matters
- 7 key areas that must be sorted through carefully first: The effects of ignoring these considerations include not
only having your case thrown out, but also being liable to disciplinary proceedings.
LOCUS STANDI
Steven Phoa Cheng Loon & Ors v. Highland Properties Sdn Bhd & Ors [2000] 4 MLJ 200
1
- • Facts: Some of the Plaintiffs had assigned their rights and interest in their apartments to various financial
institutions. The apartment block collapsed and the Plaintiffs brought a suit against the defendants for
negligence. Bank takes mortgage but not total title – title passes nearer ompletion. Bet time of purchase and
completion, lag period where title belongs to developer but have already bought equitable interest. So in this
context – title not fully passed.
- Issue: How then could the purchaser sue when he does not have the title?
- • Argument: Whether the Plaintiffs’ rights had been assumed by the financial institutions and thus had no legal
ownership of, or possessory title to the property concerned when the loss or damage occurred.
o => no locus standi to sue
- Held : James Foong J; court sympathetic. On a literal interpretation, there was an assignment of all the
plaintiffs’ rights in the property to the financial institutions. However, he construed the assignment as being an
equitable mortgage or charge – that the Plaintiffs had not assigned their interests absolutely to the financial
institutions. As such, Plaintiffs did have locus standi to pursue the claim.
o Construing the assignment, it was in the nature of an equitable mortgage or charge. Construed in
nature of security arrangement. true intent of banks was to take security and not title. =>
o he Plaintiffs had not assigned their interests absolutely to the financial institutions.
o As such, Plaintiffs did have locus standi to pursue the claims.
CAUSE OF ACTION
• Elements of legal liability
- • Creativity with causes of action – merely because seldom used does not mean that they do not
apply. We should think ‘creatively’ about all the causes of action available; determine which are the
best causes of action to pursue. (i.e.: economic torts / restitution / breach of statutory, fiduciary duty
etc.)
– e.g. economic torts – eg conspiracy: can bring inother tortfeasors who may not on the face of it seem liable
/restitution – seems an amorphous concept. Judges also not very clear. Usually concept of unjust enrichnment.
This is how law can develeop and causes of action be used to surmount potential probs in pleadings! /breach of
statutory duty
More facts required/facts require clarification – factual matrix very impt. Documents must be construed, gaps
filled in, case theory developed. Also to make sure that can stand up to cross examination. Now practice of
having affidavits is good, lawyer knows what witneses will say. By determining the full facts from the client,
you can better determine the best cause of action to pursue.
LIMITATION PERIOD
• Personal injury - 3 years
• Action on judgment - 12 years
• Judgment interest - 6 years
• Recovery of land - 12 years
It is important to note that the limitation period depends on the type of case. In some cases, parties may
contract from an extension of the limitation period.
2
(d) actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or sum
by way of penalty or forfeiture.
(2) An action for an account shall not be brought in respect of any matter which arose more than 6 years before
the commencement of the action.
(3) An action upon any judgment shall not be brought after the expiration of 12 years from the date on which the
judgment became enforceable and no arrears of interest in respect of any judgment debt shall be recovered after
the expiration of 6 years from the date on which the interest became due.
(4) An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of
any Act or other written law shall not be brought after the expiration of one year from the date on which the
cause of action accrued.
(5) For the purposes of subsection (4), “penalty” shall not include a fine to which a person is liable on conviction
for a criminal offence.
(6) Nothing in this section shall apply to —
(a) any cause of action within the admiralty jurisdiction of the High Court which is enforceable in rem other than
an action to recover the wages of seamen; or
(b) any action to recover money secured by any mortgage of or charge on land or personal property.
(7) Subject to sections 22 and 32, this section shall apply to all claims for specific performance of a contract or for
an injunction or for other equitable relief whether the same be founded upon any contract or tort or upon any trust
or other ground in equity
Limitation Act - s 24A – key exception.
Section 24A Limitation Act deals with time limits for negligence, nuisance and breach of duty actions in respect
of latent injuries and damage.
Section 24A allows for extension of the limitation period if one can prove that he had no knowledge of the
injury:
Extension of limitation period. For limitations, usually to advise on whether any exceptns apply
Section 24A - (Amended wef 26/6/1992)
• where injury or damage is latent
Time limits for negligence, nuisance and breach of duty actions in respect of latent injuries and damage.
24A. —(1) This section shall apply to any action for damages for negligence, nuisance or breach of duty
(whether the duty exists by virtue of a contract or of a provision made by or under any written law or
independently of any contract or any such provision).
(2) An action to which this section applies, where the damages claimed consist of or include damages in respect
of personal injuries to the plaintiff or any other person, shall not be brought after the expiration of —
(a) 3 years from the date on which the cause of action accrued; or
(b) 3 years from the earliest date on which the plaintiff has the knowledge required for bringing an action for
damages in respect of the relevant injury, if that period expires later than the period mentioned in paragraph (a).
(3) An action to which this section applies, other than one referred to in subsection (2), shall not be brought after
the expiration of the period of —
(a) 6 years from the date on which the cause of action accrued; or
(b) 3 years from the earliest date on which the plaintiff or any person in whom the cause of action was vested
before him first had both the knowledge required for bringing an action for damages in respect of the relevant
damage and a right to bring such an action, if that period expires later than the period mentioned in paragraph
(a).
(5) Knowledge that any act or omission did or did not, as a matter of law, involve negligence, nuisance or breach
of duty is irrelevant for the purposes of subsections (2) and (3).
(6) For the purposes of this section, a person’s knowledge includes knowledge which he might reasonably have
been expected to acquire —
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to
seek.
(7) A person shall not be taken by virtue of sub-section (6) to have knowledge of a fact ascertainable only with
the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on)
that advice.
3
- Latent ‘Personal Injury’ Cases (normal limitation period is 3 years): After the 3 years have lapsed, if the
plaintiff obtained knowledge of the injury, he has 3 years from the date of obtaining such knowledge to pursue
the action:
- s24A.2
• Other damage
– (if after 6 years), 3 years from date when Plaintiff had knowledge of damage
- ‘Other Types of Damage’ Cases (normal limitation period is 6 years): After the 6 years have lapsed, if the
plaintiff obtained knowledge of the damage, he has 3 years from the date of obtaining such knowledge to
pursue the action:
s 24A (4)
o Knowledge – room for arg as to when he knew or ought to have known
o – knowledge which he might reasonably have been expected to acquire :
24A(4) In subsections (2) and (3), the knowledge required for bringing an action for damages in respect of the
relevant injury or damage (as the case may be) means knowledge —
(a) that the injury or damage was attributable in whole or in part to the act or omission which is alleged to
constitute negligence, nuisance or breach of duty;
(b) of the identity of the defendant;
(c) if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that
person and the additional facts supporting the bringing of an action against the defendant; and
(d) of material facts about the injury or damage which would lead a reasonable person who had suffered such
injury or damage to consider it sufficiently serious to justify his instituting proceedings for damages against a
defendant who did not dispute liability and was able to satisfy a judgment.
Section 24A(6) provides that “knowledge” refers to that which the plaintiff might reasonably have been expected
to acquire:
(i) From facts observable or ascertainable
(ii) From facts ascertainable with the help of an appropriate expert, which it is reasonable for him to seek help
from. (Time bar begins after expert hired/give report. E.g. leaking ceiling, hire expert to ascertain where
exactly it is leaking. Thus it is latent.)
MFH Marine Pte Ltd v. Asmoniah bin Mohamad [2000] 4 SLR 368
Facts:
- Plaintiff suffered injuries at work and shortly after made a claim under the Workmen’s Compensation Act.
The Commissioner for Labour only replied a year later, rejecting his claim for compensation.
- • Only at this point in time did the Plaintiff learn that he could bring a civil action against his employers. •
- He subsequently filed a writ against his employers 3 years and 10 months after the accident.
Argument:
- the action was time barred under the Limitation Act.
District Judge: Held that the Plaintiff should not be time barred since the Commissioner took so long to reply
him. Rajendran J (on appeal) reversed the decision of the District Judge.
Held : S Rajendran J
• 1) The meaning of the word “knowledge” in s 24A (2)(b) of the Limitation Act is confined to the four
categories specified under s 24A (4)(a) to (4)(d).
• 2) Ignorance of the right to commence civil proceedings does not entitle the Plaintiff to rely on the extended
limitation period available under section 24A (2)(b). ignorance of fact of damage is different!
4
Overriding time limit for negligence, nuisance and breach of duty actions involving latent injuries and
damage.
24B. —(1) An action for damages for negligence, nuisance or breach of duty to which section 24A applies shall
not be brought after the expiration of 15 years from the starting date.
(2) For the purposes of subsection (1),
"starting date" means the date (or, if more than one, from the last of the dates) on which there occurred any act or
omission —
(a) which is alleged to constitute negligence, nuisance or breach of duty; and
(b) to which the injury or damage in respect of which damages are claimed is alleged to be attributable (in whole
or in part).
(3) This section bars the right of action in a case to which subsection (1) applies notwithstanding that the cause of
action has not yet accrued before the end of the period of limitation prescribed by this section.
Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 1 All ER 65
- Abstract: The date of accrual of a cause of action in tort for damage caused by the negligent design of a
building is the date the damage came into existence. P engaged D to design a factory chimney for them in
1969. Due to design faults P discovered serious damage in 1977 and it was found that they could not, with
reasonable diligence, have discovered it before 1972. They issued a writ claiming damages for negligence. D
pleaded the Limitation Act 1939.
- Summary: Held, allowing D's appeal, that time began to run from the date the damage came into existence, not
from when it could have been discovered (Cartledge v. E. Jopling & Sons [1963] A.C. 758 applied)
Seow Teck Ming & Anor v Tan Ah Yeo & Anor [1991] SLR 169
- The respondents were personal representatives of one Tay who died in a collision between a motor sampan
belonging to the second appellant Lim and a bumboat belonging to one of the respondents. They claimed
damages against the appellants on behalf of Tay’s dependants and estate. The writ was issued on 30 April
1981, almost three years after the collision. A date of hearing was fixed for 4 August 1988. However, on 26
July 1988, the appellants’ solicitors took out further directions to amend the defence to add the defence of
limitation based on s 8 of the Maritime Conventions Act 1911 (‘MCA 1911’). If applicable, this would have
barred the action upon the expiry of two years from the date of the collision. The assistant registrar gave leave
to amend the defence. The appeal against this decision was initially dismissed, but after hearing further
arguments, the judge allowed the appeal. Civil Appeal. No 76 of 1989 (the first appeal) was the appellants’
appeal against this order. Immediately after the appellants were given leave to amend their defence, the
respondents took out a notice of motion for an order to try the issue as to whether s 8 of the MCA 1911 applied
to this action, and if it did, for an order that the limitation period be extended and the respondents be allowed
to proceed with the action. The judge held that s 8 of the MCA 1911 applied to the action but refused leave to
extend time. The second appeal, Civil Appeal No 18 of 1989, was the respondents’ appeal against this
decision. The two appeals were heard together.
- Held, dismissing the first appeal and making no order on the second appeal:
- (1) In this case, the negligence, if any, of the respondents’ solicitors lay not in giving advice or drafting a
document but in commencing a worthless action. It was entirely foreseeable that the appellants would plead
5
limitation. The action was worthless when commenced as it was time-barred, and would only acquire some
value if the appellants failed to plead limitation at all. The respondents suffered damage when their solicitors
commenced a defeasible action.
- (2) The respondents would, therefore, be prejudiced if the appellants were granted leave to amend their
defence at this stage of the proceedings as whatever claim they may have had against their solicitors for
negligence was time-barred. The loss of the opportunity to pursue a viable claim was sufficient prejudice to
debar the appellants from obtaining leave to amend their defence.
- (3) The judge’s decision not to extend the limitation period was wrong. Although the prejudice to the
respondents was a post-writ factor, it had to be taken into account in an application for extension of the
limitation period under the MCA 1911. The judge adopted too narrow a view of the ambit of s 8 in limiting the
relevant factors only to those occurring before the issue of the writ. The relevant factors must be those
obtaining at the time the application was made or heard. Whether or not an extension of time ought to be
granted under s 8 of the MCA 1911 depended on the circumstances of each case; they need not be exceptional
or special.
Aberdeen Asset Management Asia v Fraser & Neave [2001] 4 SLR 441
- Pursuant to a suit commenced against the appellants (‘A & Y’) by the respondents (‘F & N’), the assistant
registrar held that a letter published by A & Y contained words that were defamatory of F & N. A & Y
appealed, and on 21 March 2001, the judge-in-chambers found the words to be defamatory, but modified
slightly the defamatory meaning from that determined by the assistant registrar (the ‘judge’s decision’). On
27 March 2001, A & Y’s solicitors requested for further arguments on the basis that the order made by the
judge was an interlocutory order, pursuant to s 34(1)(c) of the Supreme Court of Judicature Act (Cap 322, 1999
Ed). On 18 April 2001, the solicitors were informed that the judge did not require further arguments. On
8 May 2001, A & Y filed their notice of appeal against the judge’s decision.
- F & N sought to strike out the notice on the ground that it was filed out of time. It argued that under O 57
r 4(a) of the Rules of Court, A & Y had to file their notice within one month from the date of the judge’s
decision, ie, by 21 April 2001.
- A & Y sought an extension of time so that the notice, even if out of time, would remain valid. It contended that
s 34(1)(c) and O 56 r 2(2) applied, and that it had till 9 May 2001 to file its notice.
- Held, granting the application for an extension of time:
- (1) The test for determining whether an order (or judgment) is interlocutory or final was the Bozson test, viz
an order was final where it finally disposed of the rights of the parties, and interlocutory where it did not.
- (2) Applying the Bozson test, the judge’s decision was interlocutory. Although he determined that the words
were defamatory, the rights of A&Y were not disposed of, as they still could plead the defences of justification
and fair comment. However, unless his determination was reversed on appeal, A&Y could not re-open the
issue and canvas afresh the meaning of the words.
- (3) As O 57 r 4(a) required the notice of appeal to be filed and served within one month from the date when
the order was pronounced, A & Y’s notice was filed out of time. O 57 r 4(a), and not O 56 r 2(2), applied. If it
was intended under O 56 r 2(2) that time would only begin to run from the date the judge certified that he
required no further arguments, or from the date it was deemed that the judge had so certified, it would have
expressly provided as such.
- (4) The four factors which the court should consider in determining whether it should exercise its
discretion to extend time to enable an applicant to file a notice of appeal out of time are - (a) the length
of the delay, (b) the reason for the delay, (c) the merits of the appeal, and (d) the degree of prejudice.
- (5) A & Y was granted an extension of time for the following reasons: (a) the delay of some 18 days was due
to its solicitors misconstruing the Rules of Court, (b) the solicitors’ mistake was not gross, (c) its appeal had
merit and was not hopeless as there was room for argument as to the correct meaning of the words, and (d) no
real prejudice would be caused to F & N if the appeal was allowed to continue.
- Per Curiam:
- (1) Section 34(1)(c) required the party intending to appeal to first request from the judge the opportunity to
make further arguments. This was to allow the judge to review his decision and once he decided to affirm it,
the requesting party would have his right to appeal. If the judge decided to hear further arguments, then the
order already made was suspended until the hearing of the further arguments. In such an event, time only
began to run from the date the judge made his decision after hearing further arguments.
- (2) As to whether an appeal had merit, it was not for the court at the interlocutory stage to go into a full-scale
examination of the relevant issues; the threshold was lower and the test was whether the appeal was hopeless.
As to whether prejudice would be caused, the ‘prejudice’ could not possibly refer to the fact that the appeal
would be continued if the extension is granted. It referred to some other factors, eg change of position on the
part of the respondent pursuant to judgment.
6
Limitation Act s 29
- • Postponement of limitation period for fraud
- • Section 29(b) Limitation Act
- Under Section 29(b) Limitation Act, the period of limitation does not run where the right of action is
concealed by the fraud of any such person, until the fraud could with reasonable diligence have been
discovered.
- The cases have held that “fraud” here does not mean “fraud” in the dishonest sense, something less may
suffice. E.g. breach of director’s duty may amount to fraud. Don’t have to prove dishonest intend.
JURISDICTION/APPROPRIATE FORUM
• Section 16 SCJA jurisdiction – fundamental to get juris started. Usually not a problem.
(a) Section 16 SCJA jurisdiction S.16 SCJA states that the High Court shall have jurisdiction to hear and try any
action in personam where –
- The Defendant is served with a Writ or other originating process in Singapore or outside Singapore (in the
manner prescribed by Rules of Court);
- The Defendant submits to the jurisdiction of the High Court;
- Any written law confers such jurisdiction to the High Court.
For jurisdiction, see Sections 16, 17 and 18 SCJA; Section 18 SCJA is relevant as the High Court has
jurisdiction if it has power vested in it under any written law, and under the First Schedule of the SCJA.
• Choice of jurisdiction/law clause is client more likely to sue or be sued? - This should be the first thing that a
solicitor should look for in a contract. Under common law, the existence of a choice of jurisdiction / law clause
is enforceable
• Arbitration clause (New York convention) (New York Convention) – Look at whether an arbitration clause
exists. Under the New York convention, an arbitration award can be enforced in other jurisdictions, except
where it would contravene public policy.
• => Forum non conveniens principle is client more likely to sue or be sued in such a forum?
o current international framework – many countries where legal system very slow; sometimes may
need to decide between sg or very slow juris. If decide on slow juris, may never get to sg, cannot
come back to sg because of itme bar. Some juris where even service takes yrs. Must advise client
carefully and start in same place! safest is to start in sg – so that can move quickly. Get ruling to
see if sg appropriate so that if not, cn move off.
7
• Commercial considerations for choice of forum – cost; time incurred if make wrong decision
a) familiarity – opt for the one where client is most familiar. Or where lawer is mot familiar
b) assets of defendant is in that juris – so no choice
c) if drafting contract, will be factor – must ask whether client under contract likely to be one in the future
enforcing it or being enforced against. Choice of forum clause merely becomes academic if don’t address
this issue. – termination and choice of law clauses impt
d) state of advancement of legal system – certain undeveloped legal sytems have corruption – clients may
not be playng on same field. May be overdeveloped juris – then suing or being sued makes a difference. If
sue in partr juris, may get more damages. Or may be able to sue based on some other cause of action not
available in Singapore.
e) Politics – in various contries, if sue home groan corporation, may have discounted chances of success –
disadvantaged. May also occur at provincial level. may find judiciary biased.
- now huge issues because of nature of businesses – ‘cross border judicial cooperation’ now a hot topic
PT Ometraco case:
This involved the first bankruptcy case in Indonesia after the introduction of the new Bankruptcy Code. The
Indonesian court did not allow the bankruptcy petition even though a valid debt was due. In the end, the
creditors decided to pursue their action in Singapore.
Singapore’s letter of comfort in Indonesia: Although jurisdiction pointed to Singapore, the action was pursued
in Jakarta because the plaintiff would have lost if the action was pursued in Singapore where the common law
was against the plaintiff.
• Other considerations
(a) When considering jurisdiction, we must also consider other relevant statutes which deal with the
question of jurisdiction. For example, the Land Titles Strata Act ss.93-104 are specific on matters that
can be brought before the Land Titles Board. Other relevant statutes
(b) Government Proceedings Act (S.19 & 24)
(c) Monetary limits – jurisdictional monetary limits; also client’s pecuniary state
(d) Societies Act
(e) High Court Admiralty Jurisdiction Act
Government Proceedings Act
Parties to proceedings.
19. —(1) The Minister shall from time to time publish in the Gazette a list specifying the several Government
departments which are authorised departments for the purposes of this Act, and the name and address for service
of the person who is, or is acting for the purposes of this Act as, the solicitor for each such department, and may
from time to time amend or vary the list.
(2) Civil proceedings by the Government may be instituted either by an authorised Government department in its
own name or by the Attorney-General.
(3) Civil proceedings against the Government shall be instituted against the appropriate authorised Government
department, or, if none of the authorised Government departments is appropriate or the person instituting the
proceedings has any reasonable doubt whether any and if so which of those departments is appropriate, against
the Attorney-General.
(4) Where any civil proceedings against the Government are instituted against the Attorney-General, an
application may at any stage of the proceedings be made to the court by or on behalf of the Attorney-General to
have such of the authorised Government departments as may be specified in the application substituted for him
as defendant to the proceedings; and where any such proceedings are brought against an authorised Government
department, an application may at any stage of the proceedings be made to the court on behalf of that department
to have the Attorney-General or such of the authorised Government departments as may be specified in the
application substituted for the applicant as the defendant to the proceedings.
Upon any such application the court may if it thinks fit make an order granting the application on such terms as
the court thinks just; and on such order being made the proceedings shall continue as if they had been
commenced against the department specified in that behalf in the order, or, as the case may require, against the
Attorney-General.
(5) No proceedings instituted in accordance with this Part by or against the Attorney-General or an authorised
Government department shall abate or be affected by any change in the person holding the office of Attorney-
General or in the person or body of persons constituting the department.
8
Appearance of legal officers.
24. —(1) Notwithstanding the provisions of any written law, in civil proceedings by or against the Government a
legal officer may appear as advocate on behalf of the Government and may make and do all appearances, acts
and applications in respect of such proceedings on behalf of the Government.
(2) Notwithstanding the provisions of any written law, in civil proceedings to which a public officer is a party —
(a) by virtue of his office; or
(b) in his personal capacity, if the Attorney-General certifies in writing that it is in the public interest that such
public officer should be represented by a legal officer,
a legal officer may appear as advocate on behalf of such public officer and shall be deemed to be the recognised
agent of such public officer by whom all appearances, acts and applications in respect of such proceedings may
be made or done on behalf of such public officer.
(3) An advocate and solicitor of the Supreme Court, retained by the Attorney-General in the case of civil
proceedings by or against the Government or a public officer, may appear as advocate on behalf of the
Government or the public officer in such proceedings.
(4) In civil proceedings to which the Attorney-General is a party under section 8 or 9, a legal officer may appear
as advocate and make and do all appearances, acts and applications in respect of such proceedings on behalf of
the Attorney-General.
Societies Act
Jurisdiction.
31. —(1) Any offence under section 14 (2) may be tried by a District Court which may pass the sentence
specified in that section.
(2) Any offence under any other section of this Act or any regulations made thereunder may be tried by a District
Court or by a Magistrate’s Court.
9
Shipping Act (Cap. 179) is recoverable as wages or in the Court and in the manner in which wages may be
recovered;
(o) any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship;
(p) any claim arising out of an act which is or is claimed to be a general average act;
(q) any claim arising out of bottomry;
(r) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or
have been attempted to be carried, in a ship, or for the restoration of a ship or any such goods after seizure, or for
droits of admiralty,
together with any other jurisdiction connected with ships or aircraft which may be vested in the Court apart from
this section.
(2) The jurisdiction of the High Court under subsection (1) (b) includes power to settle any account outstanding
and unsettled between the parties in relation to the ship, and to direct that the ship, or any share thereof, shall be
sold, and to make such other order as the Court thinks fit.
(3) The reference in subsection (1) (i) to claims in the nature of salvage includes a reference to such claims for
services rendered in saving life from a ship or an aircraft or in preserving cargo, apparel or wreck as, under
sections 166 and 167 of the Merchant Shipping Act or any regulations made under section 11 of the Air
Navigation Act (Cap. 6), are authorised to be made in connection with a ship or an aircraft.
(4) Subsections (1) to (3) shall apply —
(a) in relation to all ships or aircraft, whether of Singapore or not and whether registered or not and wherever the
residence or domicile of their owners may be;
(b) in relation to all claims, wheresoever arising (including, in the case of cargo or wreck salvage, claims in
respect of cargo or wreck found on land); and
(c) so far as they relate to mortgages and charges, to all mortgages or charges, whether registered or not and
whether legal or equitable, including mortgages and charges created under foreign law.
(5) Nothing in subsection (4) shall be construed as extending the cases in which money or property is recoverable
under any of the provisions of the Merchant Shipping Act (Cap. 179).
WARRANT TO ACT
Cannot assume that have authority fr client. Evidentially, burden of proof in your favour that you hve auth to
act. Lawyers have been called up by society for discip action for not acting without auth.
Also protecting you fr negligence – entire proceedings commenced without auth will be struck out.
Protects you fr discip action and akso negligencve therefore. But does not nec mean that you do have auth.
• Order 64 rule 7 (1) - every solicitor shall obtain a warrant to act
• Order 64 rule 7(2) - without warrant, prima facie no authority
CLIENTS’ CONCERNS/NEEDS
• Advising on what the law is, the lawyer must do and is expected to do.
• What makes a lawyer a professional and what makes a lawyer good is the ability to
– tailor advice to suit client
– strategize with and for client – making use of law for client’s best interest
– recommend practical solutions to problems
10
• Money – civil cases. This is usually the most impt. Must be addressed at start so that client knows how much
he is fighting over. There must be a certain thereshold before telling your client that it is worth it to sue. If less
than 5000, shldnt bother suing. Not worth the itme and cost!
• Time Is the effort required worth it? Is time on your client’s side
• Psychology – fear of being in the witness box, fear of litigation, etc?
clients may be timid, problematic! How you relate to client becomes very impt. Clients may get pressured
when they receive docs fr other side. Must manage expectations of client. Prepare him psychologically.
Prepare client for full trial – show him another trial to prepare him. May also rehearse with him! corporate
hierarchy may also create tension.
• Publicity/public relations – reputational concerns. Coporations tend to be very sensitive to this. Banks don’t
like to litigate, partly due to cost and partly because of reputation. Usually they settle out of court. Is publicity
your client’s fear or is it an advantage? As a way to provide value added services to clients you could advise
clients on how to manage public relations when legal issues are concerned – don’t make organizations appear
bad. E.g NKF where publicity can kill
• Clients’ ultimate real objective – to sieve this out and then avoid unnecessary costs. The objective may be to
save reputation; protect confidentiality; revenge, anger, and not for judgment.
• Non-legal avenues of recourse –
a) market competition – resolve issue in market place. Rather than sue
b) there may be potential win win in commercially mediated fashion. Duty on lawyer to find common grd
between parties. Find middle grd for both parties. Judges encourage this and appreciate it when lawyers
facilitate settlement. Lawyers are officers to court and shld find answer and a win win solution.
c) instead of civil litigation, can issue a private summons for a criminal charge.
CONFLICT OF INTEREST
1) Legal conflict of interest – Such a conflict occurs when the solicitor is privy to information of the opposing
party. Sometimes, it may not be clear whether there is a conflict of interest
- In such cases, the solicitor may (i) make an application to court for directions; (ii) obtain a ruling from the Ethics
Committee of the Law Society.
2) Commercial conflict of interest – Solicitors may not wish to act against their Firm’s valued clients (not a legal
conflict).
– acting against firm’s valued clients
Examples under Order 11 (order 11 is not automatic, lawyer will try to argue as many of these as possible)
When the Person sued is an ordinary resident in Singapore
11
When the Person sued has property in Singapore (ie: US company with subsidiary in Singapore)
Contract made in Singapore, governed by Singapore law, agreed forum in Singapore
Breach of contract committed in Singapore
Tort committed in Singapore
Cause of action arising in Singapore
See the rule
Lee Kuan Yew v Tang Liang Hong & Anor and other Actions (3) [1997] 3 SLR 178
- Facts :
o Eleven Plaintiffs and Two Defendants
o Question was whether property beneficially owned by the 1st Defendant. Each Plaintiff separately
represented, completed research, and done discovery separately
- Held :
o Impossible to consolidate. Normally this wld be donie and if did so, only one set of lawyers allowed
to represent all plaintiffs. If so, those other Plaintiffs without lawyers would have no recourse to
recover costs of their solicitors,so not fair to plaintiff because conseq on their legal repn and ability to
receover costs startng from coimmencement of action
o It was generally impossible to consolidate actions where the plaintiffs were represented by different
solicitors who each completed their research, getting-up and were in the process of discovery. If
consolidation was ordered, only one set of solicitors would have represented the lead plaintiff with
the unfair consequence that the other plaintiffs would have had to pay the costs of their solicitors
without recourse against the defendants. When considering partial consolidation, the court took into
account the right of each plaintiff to retain the services of his own solicitors to advance his cause. It
would have been unjust and too overbearing to compel all the plaintiffs to agree to one set of
solicitors.
12
o A partial consolidation, which Teo [Tang Liang Hong’s wife, who was joined as a second defendant
as it was alleged that she held assets on trust for Tang] wanted, would have entailed the element of
unwarranted compulsion. Instead of a partial consolidation, the court ruled in light of all the
circumstances of the case and the future probable course of the trial that the trial was to be tried at the
same time within the meaning of O 4 r 1(1) of the Rules of Court.
- Held : as compromnise, next best alternative to consolidation is to try all at same time.
a) Evidence led in one action will be treated as evidence in all actions.
b) Repetitions in cross-exam will not be allowed.
c) As deterrent, Judge will penalise with costs if lawyers are obstructive or unreasonable.
d) Also combined basis approach for documents for ease of reference. – fr opening statements to bundle of
docs to core bundle of doc. They shld agree to common set rather than multiple set.
e) Costs for solicitors other than lead solicitors will be less. In practice, pple know who lead counsel and
lead plaintiff is. If not, they will discuss and reach consensus, and that firm will then do all the
consolidation work etc
Court will try to achieve result that achieves the impact of consolidation – help parties move the action
along, no strict principle – moves fr case to case as to whether can have common bundle etc
13
related to the appellant’s application for judicial review and her claim for the costs of an earlier
action in which she sought leave to issue certiorari (“the public law action”).
o The respondent applied to set aside the appeal against the striking-out order on the following grounds: (a)
there had not been proper consolidation of the two appeals; (b) the appellant had not complied with s
34(1)(c) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“the SCJA”) vis-à-vis the
striking-out order; and/or (c) the appellant had filed and/or served her notice of appeal against the striking-
out order out of time.
o Held, setting aside the appeal against the striking-out order:
o (1) The appellant’s consolidation of the appeals was irretrievably flawed. It could not ever have
been intended for O 4 r 1 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) (“ROC”) to apply to
appeals. Order 4 r 1 referred to “causes or matters” that had yet to be tried and “causes” and
“matters” did not fall within the natural meaning of an “appeal” but, rather, were concerned with
trials. Indeed, the appellant was not at liberty to unilaterally consolidate the appeals without an
order of court and then seek what was in effect ex post facto leave from the court to consolidate the
appeals pursuant to O 4 r 1: at [19] and [20].
o (2) Where a party wished to appeal against orders made in different actions, the ROC required
separate notices of appeal to be issued for each order, even if the actions had been tried together.
This would not be an appropriate case for the court to exercise its discretion under O 2 r 1(2) of the
ROC to cure this irregularity as the appellant’s reasons for consolidating the appeals centred on
financial convenience. Further, the appeal against the striking-out order was also “hopeless”: at
[24] to [26].
Parties to action
o • All appropriate parties must be before the Court
o • Refer to Order 15 Rules of Court – allows court to bring them in or parties to apply to court to bring them in
Joinder, misjoinder/ Non-Joinder
o In property dispute for eg - Legal owners/ beneficial owner/ occupants – tenants etc. court may have to make
judgement against more parties. Must address court in relation to those parties and court may feel that they be
jpined as parties to action because feel that concerns them
o • Court may order a person to be joined if:
– that person’s presence is necessary to ensure that all matters in that cause is effectually and
completely determined
– where there is a question/issue relating to any relief claimed which the court feels is just to determine
between the person and other parties to that cause
o • Application for joinder/misjoinder must be made a.s.a.p and with supporting affidavit
14
o A ‘misjoinder’ refers to having the wrong ‘party’ to the suit. A ‘non-joinder’ refers to the failure to join a
‘party’ in the suit
- Order 15, rule 6(1) states that an action is not defeated by reason of mis-joinder or non-joinder of the parties.
- Order 15, rule 6(2) states that the Court may order a party to cease being a party if he was improperly or
unnecessarily joined. The Court may also order a person to be joined if:
(a) that person’s presence is necessary to ensure that all matters in that cause or matter may be effectually
and completely determined and adjudicated upon; or
(b) where there is a question or issue relating to any relief claimed which the court feels it just to determine
between the person and other parties to that cause.
- Order 15, rule 6(3) states that application for joinder or misjoinder must be made as soon as possible and
supported by affidavit.
- Order 15, rule 6(4) states that no person shall be added as a Plaintiff without his consent which must be made
in writing.
- If the person refuses to be joined as a Plaintiff, he must be made a Defendant (even though he is joined in
order to get a benefit together with the Plaintiff) (This is a weird rule – must in most cases, the person is
more likely to agree to be a joint plaintiff. Very often in oppressive action under s.216CA, the company is
joined as a Defendant because the company needs to be bound by any order of the court. In such cases,
the company will not agree to consent to be a joint plaintiff since the directors are the wrongdoers in
control of the company)
- Court will not allow joiner to parties after limitation period.
15
- Held, dismissing the appeal:
- (2) This was an appropriate case for leave to be granted for a new party to be added as: (a) there was
sufficient overlap between the facts supporting the existing claim and the claim against Gaffar; and (b)
adding Gaffar became necessary to prevent injustice to Chua.
- (3) Gaffar did not not have an unassailable defence of limitation. The court had a very wide discretion to
add a party under O 15 r 6 of the Rules of the Subordinate Courts (‘the Rules’) which must be construed to
bring all parties to the dispute relating to one subject matter before the court at the same time so that the
dispute could be determined without delay and inconvenience of separate trials.
- (4) Although the Limitation Act (Cap 163) did not specifically provide the court with discretion to disapply
limitation as in the English equivalent, it was necessary to consider all relevant circumstances of the case.
Reading s 4 of the Limitation Act with O 18 r 7 of the Rules, limitation had to be specifically pleaded as a
defence.
- (5) The court would refuse to exercise the discretion to add a party only if serious embarrassment or
injustice would be caused. Here, the proceedings had from the very beginning been properly formulated.
There was no prejudice to Gaffar’s defence, and his employer and the insurers had been put on notice of
Chua’s claim within the limitation period of three years. They were accordingly not caught in a situation of
facing a stale claim after having got rid of relevant papers and evidence, a situation which the defence of
limitation was intended to prevent. The likely prejudice to Gaffar had to be balanced against the hardship and
costs to be suffered by Chua of having to proceed against his solicitors in the event Gaffar’s case was
allowed
- So when joining, have to consider whether it makes action time barred. Thus in practice better to join more at
the beginning and then unjoin later if not needed.
Pegang Mining Company Ltd V Choong Sam & Ors [1969] 2 Mlj 52 (Privy Council On Appeal From
Malaysia)
- Lord Diplock (delivering the judgment on behalf of the board) –
- “It is nevertheless submitted on behalf of the company as an alternative ground of appeal from the Federal
Court`s interlocutory order that the Federal Court had no jurisdiction to add the contractor as a party because
he had no sufficient interest in the subject matter of the proceedings.
- The Federal Court has the same power to add an additional party to an appeal as the High Court has to add a
party to an action. This power is conferred by O 16, r 11, which is in the same terms as the former O 16, r 11,
of the English Rules of the Supreme Court.
- To come within the words of the rule the party to be added must be one "who ought to have been joined, or
whose presence before the court may be necessary in order to enable the court effectually and completely to
adjudicate upon and settle all the questions involved in the cause or matter".
- These words have been the subject of voluminous judicial exegesis and Amon v Raphael Tuck & Sons Ltd
[1956] 1 QB 357 contains a useful collection of citations to Devlin J of many of the authorities prior to 1956.
Devlin J`s analysis of those authorities led him to reject the view expressed by Lord Esher MR in Byrne v
Brown (1889), 22 QBD 657 that the rule ought to be given a wide interpretation so as "to secure that, when a
court can see in the transaction brought before it that the rights of one of the parties will or may be so affected
that under the forms of law other action may be brought in respect of that transaction, the court shall have
power to bring all the parties before it, and determine the rights of all in one proceeding".
- Devlin J himself accordingly propounded in Amon`s case a much narrower interpretation of the rule which it is
unnecessary to repeat here for it was over-ruled, in their Lordships` view rightly, by the Court of Appeal in
Gurtner v Circuit [1968] 2 QB 587 a case decided after the date of the judgment of the Federal Court of
Malaysia in the present case.
- The cases illustrate the great variety of circumstances in which it may be sought to join an additional party to
an existing action. In their Lordships` view one of the principal objects of the rule is to enable the court to
prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to
adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. To
achieve this object calls for a flexibility of approach which makes it undesirable in the present case, in which
the facts are unique, to attempt to lay down any general proposition which could be applicable to all cases.
- It has been sometimes said as in Moser v Marsden [1892] 1 Ch 487 and Re LG Farbenindustrie AG [1944]
Ch 41 that a party may be added if his legal interests will be affected by the judgment in the action but
not if his commercial interests only would be affected. While their Lordships agree that the mere fact that a
person is likely to be better off financially if a case is decided one way rather than another is not a sufficient
16
ground to entitle him to be added as a party, they do not find the dichotomy between "legal" and "commercial"
interests helpful. A better way of expressing the test is: will his rights against or liabilities to any party to the
action in respect of the subject matter of the action be directly affected by any order which may be made in the
action?”
Meng-Eu Lim Judy v RSP Investments (S) Pte Ltd [1999] 1 SLR 231
- The plaintiff Lim claimed against the defendant RSP Investments damages for wrongful termination of a
contract of employment. Subsequently, Lim applied to add RSP Architects as second defendant on the ground
that misrepresentations of RSP Architects had induced her to enter into the contract with RSP Investments.
The application, which was opposed by RSP Investments, was granted by the assistant registrar pursuant to O
15, r 6(2)(b) of the Rules of Court 1996. RSP Investments appealed. The court considered whether, for r
6(2)(b)(ii) to apply, there must be a common question or issue between Lim and RSP Investments, as well as
between Lim and RSP Architects.
- Held, dismissing the appeal:
- (1) Under r 6(2)(b)(ii), the question or issue between Lim and RSP Architects need not be the same as the
cause or matter between Lim and RSP Investments, so long as the former arose out of or was related to or
connected with any relief or remedy claimed in the cause or matter, and it was just and convenient that the two
matters should be determined together. ‘Relating to or connected with’ in r 6(2)(b)(ii) did not necessarily mean
that the issue with the proposed new party must have a bearing on the relief claimed in the action or vice versa,
so long as there was a link, factual or otherwise. Such a construction was not too wide, as it was always subject
to the overriding consideration of ‘just and convenient’ before a joinder could be granted.
- (2) In this case, there was a clear factual link. It was eminently just and convenient that Lim’s claims against
RSP Investments and RSP Architects should be joined and there was no prejudice to either of them on account
of the joinder.
Joinder Of Causes Of Action (Note that this is different from Joinder of parties)
- if 3 etc claims, don’t need 3 etc suits, all can be joined so long as other party is sued in correct capacity
- • If more than one cause of action against same Defendant, practical and convenient to join causes of action in
one suit.
- • Order 15 rule 1 -
– Defendant is alleged to be liable in the same capacity in respect of all causes of action
– Defendant alleged to be liable in capacity of executor/administrator for one or more causes of action
and in personal capacity but with reference to the same estate
17
- (1).Under O 15 r 1(1)(a) of the Rules of the High Court 1980 (`the RHC`) read with O 15 r 5(1), a plaintiff
may in one action claim relief against the same defendant in respect of more than one cause of action if the
plaintiff claims, and the defendant is alleged to be liable, in the same capacity in all the causes of action. But
if it appears to the court that the joinder of causes of action or of parties may embarrass or delay the trial or
is otherwise inconvenient, the court may order separate trials or make such other order as may be expedient.
- (2).Here the plaintiffs or their solicitors had not given any explanation as to why it was thought fit to bring
three actions instead of one, applying O 15 r 1 of the RHC, and there was no suggestion that by reference to
O 15 r 5, to bring one action would embarrass or delay the trial or be otherwise inconvenient.
- • If actions not joined when they are appropriate, and multiple suits commenced, Plaintiff penalised for
costs. Lawyers have knowledge of this! Not fair to client to pay cost, so lawyers shld bear cost
- Lawyer may have to bear costs personally.
- Order 59 rules 7 and 8
- Therefore better to join if appropriate.
Counterclaim
- • Counterclaim against Plaintiff and a 3rd party permissible (eg P, a partner, sue D. D has counterclaim against
P’s partnership, may counterclaim against partnership.). usually happens for partnership.
18
- Order 15, rule 2(1) allows the Defendant to file a counterclaim instead of starting a new action. The
counterclaim is to be attached to his Defence.
- Order 15, rule 2(3) states that a counterclaim may be proceeded with even if the claim is stayed, discontinued,
dismissed or judgment given. (Therefore, a counterclaim has a life of its own. It remains alive even if the main
claim is dismissed.)
- Order 15, rule 3 deals with Counterclaim against Additional Parties - A counterclaim against the Plaintiff
AND a 3rd party is also permissible. (Example: The plaintiff (a partner in a partnership) may sue the defendant.
The defendant, who has a counterclaim against the plaintiff’s partnership, may also counterclaimed against the
partnership)
- To be distinguished from third party proceedings (Order 16). MUST DISTINGUISH!! Between order 16
and 15!
Person under disability must sue, etc., by litigation representative3 (O. 76, r. 2)
2. —(1) A person under disability may not bring, make a claim in, defend, make a counterclaim in, or intervene
in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on
him, except by his litigation representative3.
(2) Subject to these Rules, anything which in the ordinary conduct of any proceedings is required or authorised
by a provision of these Rules to be done by a party to the proceedings shall or may, if the party is a person under
disability, be done by his litigation representative3.
(3) A litigation representative3 of a person under disability must act by a solicitor.
- Order 76, rule 1 states that “person under disability” means a person who is an infant or a patient; and that
“patient” means a person incapable of managing himself or his affairs.
o : - litigation representative reqd
- Order 76, rule 2(1) states that:
o For a ‘person under disability’ to sue – requires “his next friend”
o For a ‘person under disability’ to defend – requires ‘guardian ad litem”
- Order 76, rule 2(1)
o A person under disability may not bring, or make a claim in, any proceedings except by his next
friend and may not defend, make a counterclaim or intervene in any proceedings, or appear in any
proceedings under a judgment or order notice of which has been served on him, except by his
guardian ad litem.
- Order 76, rule 2(3) states that “A next friend or guardian ad litem of a person under disability must act by a
solicitor. – safeguard, prevent abuse. That litigation representative must have a solicitor – to protect interest of
infant or disabled person to ensure no ill behaviour by litigation representative
- Appointment of litigation representative3 (O. 76, r. 3)
Suit
- Partners may sue or be sued in name of partnership (O. 77 r. 1).
- Order 77, rule 1
o Subject to the provisions of any written law, any 2 or more persons claiming to be entitled, or alleged
to be liable, as partners in respect of a cause of action and carrying on business within the jurisdiction
may sue, or be sued, in the name of the firm (if any) of which they were partners at the time when the
cause of action accrued.
- • Use of firm name is tool of convenience, a firm is still not a separate legal entity
- • As names of firm may be confused with individuals, add “sued as a firm”
19
- This provision merely seeks to provide a convenient approach for court action; it does NOT give the firm a
new separate legal entity. The advantages of this rule is that there is no need to (i) set out all the names of the
partners individually; and (ii) the writ may be served at the business address. As names of firm may be
confused with individuals, add “sued as a firm”. E.g. Wong Chan & Tan (sued as a firm).
- Read RCB searches (ACRA?) carefully when suing partnerships - check exactly who were partners when, and
when cause of action accrued. Also double check the partnership deeds.
Appearance
- Appearance CANNOT be entered in name of firm. (O. 77 r. 4(1)) must be entered in name of partners!
Because of partnership law – recog the partners resp at time cause of actionb accrued
- Order 77 rule 4(1) deals with Entry of Appearance in an action against the firm: It states that appearance
cannot be entered in the name of the firm. The aim of this rule is to ensure that every partner of the firm is
aware of the lawsuit, because composition of the partnership may change.
20
Provisions applicable to registered societies.
35. The following provisions shall apply to all registered societies:
(a) the movable property of a society, if not vested in trustees, shall be deemed to be vested for the time being in
the governing body of the society, and in all proceedings civil and criminal may be described as the property of
the governing body of the society by their proper title;
(b) every such society may sue or be sued in the name in which it was registered under this Act;
(c) a writ of summons or other legal process may be served on a society by serving it on an officer of the society,
or by leaving it at, or sending it by registered post to, the registered address of the society;
(d) except as otherwise provided in section 36, no judgment in any suit against a registered society shall be put
into force against the person or property of any officer or member of the society but only against the property of
the society;
(e) any member who is in arrears of subscriptions which, according to the rules of the society, he is bound to pay,
or who takes possession or detains any property of the society contrary to those rules, or who injures or destroys
any property of the society, may be sued for the arrears or for the damage accruing from his wrongful possession,
detention, injury or destruction of that property by and in the name of the society;
(f) any member of the society who steals, purloins or embezzles any money or other property, or wilfully and
maliciously destroys or injures any property of the society, or forges any deed, bond, security for money, receipt
or other instrument whereby the funds of the society may be exposed to loss, shall be subject to the same
prosecution, and, if convicted, shall be liable to be punished in like manner as any person, not a member, would
be subject and liable to in respect of the like offence;
(g) in the absence of any specific provision in the rules of a society any number not less than three-fifths of the
members for the time being resident in Singapore of the society may determine that it shall be dissolved
forthwith, or at a time agreed upon, and all necessary steps shall be taken for the disposal and settlement of the
property of the society and its claims and liabilities according to the rules of the society applicable thereto, and if
none, then as the governing body finds expedient:
Provided that in the event of any dispute arising among the members of the governing body or the members of
the society, the adjustment of its affairs shall be referred to the High Court, and the Court shall make such order
in the matter as it thinks fit;
(h) no society shall be dissolved unless three-fifths of the members so resident as aforesaid have expressed a
wish for such dissolution by their votes delivered in person or by proxy at a general meeting convened for the
purpose.
21
- Representative actions are usually used in the UK for unincorporated associations. In Singapore, most
unincorporated associations are registered as societies under the Societies Act. Representative actions in
Singapore like the Raffles Town Club, representing 5000 PF but only 10 go court to give evidence. The rest
will concur.
- Note that the concept of “representative actions” is different from the concept of “class actions” in the United
States. In the US, the persons in the class need not be identified, whereas the persons in a representative action
inn Singapore must be identified.
- • When D against whom action would have lain dies, and cause of action survives, BUT
o • No probate or letters of administration granted AND
o • Time bar setting in
- The question then arises – Who to sue? And what can you do to prevent the action from being time barred?
22
o in some cases no one wants to be reptive or there may be squabbling
- • Order 15 rule 6A(1) permits personal representative of the deceased to be sued although not named. These
cases apply when there is no one who have come forward to represent the estate of the deceased
- • Title “Personal Representative of X, deceased” (Order 15 rule 6A(2)) preserves time bar, then go to common
law – get the representatives
- • Order 15 rule 6A(6) - Public Trustee may be appointed but only to accept service, unless Public Trustee
consents
o You cannot enter judgment in default of appearance against the OA. (lacuna)
o Order 15, rule 6A(6) provides that where the Public Trustee is appointed to represent the deceased’s
estate, the appointment shall be limited to his accepting service of the writ or OS, unless the Public
Trustee otherwise consents.
23