11-12 Disposal of Actions Without Trial

Disposal Of Actions Without Trial & Control Of Proceedings By Court
DISPOSAL OF ACTIONS WITHOUT TRIAL
NOTE – SUMMARY JUDGEMENT, STRIKING OUT AND OFFER TO SETTLE!!!

During the course of an action, the defendant may wish to save costs by, ie: making
payment into court, or by offering to settle, etc. In such cases, the proceedings will be
stayed and may be disposed off without trial
What can terminate action without trial -

1. Security for costs – can terminate action without trial stimes
2. failure to give further and better particulars
3. others – see below
4. summary judgement/ O14 – expedited judgement application
5. striking out (writs/ pleadings/ action)
6. offer to settle (OTS)
7. consolidation of proceedgs – eg start 1 action, someone else starts another, so put them
together – this effectively puts an end to one action and parent action will cont as
consolidated action
(A) JUDGMENTS IN DEFAULT OF APPEARANCE (O13) AND DEFENCE (O19)
- Note that Rule 70 of the Professional Conduct Rules applies to judgments in

default.
Entering judgment by default
70. —(1) An advocate and solicitor shall not enter judgment by default pursuant to the
Rules of Court (Cap. 322, R5) against any other party who is on record represented by
another advocate and solicitor, or take any advantage of any delay in filing pleadings
unless written notice of his intention to do so has been given to the other advocate and
solicitor and 2 working days have elapsed after service of such notice.
(2) Any notice under paragraph (1) given on a working day after 4.00 p.m. or on a day
other than a working day shall be deemed to have been given on the next working day.
(3) This Rule shall not operate to extend the time stipulated by any Order of Court for
any action or step to be taken and no notice need to be given under this Rule before any
action or step is taken upon any failure to comply with any such Order of Court.
(4) In this rule, “working day” means any day other than a Saturday, Sunday or public
holiday.
Default of Appearance - ORDER 13

1. Effect. By not entering an appearance, the defendant admits all allegations in the
statement of claim. (Cribb v Freyberger [1919] W N 22)
- Exception: see Order 76, rule 8 i.e. a person under disability – not fair to deem that they
admit all statement of claim
Admission not to be implied from pleading of person under disability (O. 76, r. 8)
8. Notwithstanding anything in Order 18, Rule 13 (1), a person under disability shall not
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be taken to admit the truth of any allegation of fact made in the pleading of the opposite
party by reason only that he has not traversed it in his pleadings.
- Otherwise deemed to have admitted

- 70-80% cases – there is judgement in default of appearance – the mmt exceed time line
of 8 to enter appearance or 14 days to file defence then can file
2. Nature.
- A judgment in default is not a judgment on the merits. (Oppenheim v Mahomed [1922]
1 AC 482).
- It was held that a judgment in default of giving notice of intention to defend creates a
very limited estoppel, precluding the defendant from setting up in a subsequent action a
defence which was necessarily and with complete precision, decided by the previous
judgment (New Brunswick Ry Co v British and French Trust Corp [1939] AC 1).
- def entitled to set aside – default merely means he did not know or did not want to enter
appearance
- if he chooses to file it one day, can still do by applying to set aside judgment but he has
to pay costs
- esp if it is his fault
3. Steps Involved:
o Must give 48 hour notice as required by Rule 70 of the professional conduct rules.
o Apply by SIC supported by affidavit.
o Plaintiff must have served Writ and Statement of Claim
o Plaintiff must wait for time period limited for entry of appearance to expire.
o Plaintiff must file Memorandum of Service under Order 10, rule 1(4).
o Draft judgment to be filed in Form 79.
o Note of Costs (Appendix 2 of Order 59) to be filed.
o Certificate of Non-Appearance (Form 17) to be filed if it is under Order 13.
o Plaintiff must file either affidavit of service or production of writ indorsed by
defendant’s solicitor - to prove that the writ has been served
o If it is a claim for possession of immovable property, certificate by solicitor that no
relief is claimed of the nature specified in Order 83, rule 1 (Order 13, rule 4(1)).
o If Defendant does not enter an appearance, he can get an extract from the Registry and
then apply for default judgment.
o Registry will record the default judgment
General provisions (O. 10, r. 1)

1. —(1) Subject to the provisions of any written law and these Rules, a writ must be
served personally on each defendant.
(3) Subject to Order 12, Rule 6, where a writ is not duly served on a defendant but he
enters an appearance in the action begun by the writ, the writ shall be deemed to have
been duly served on him and to have been so served on the date on which he entered the
appearance.
(4) Where a writ is duly served on a defendant otherwise than by virtue of paragraph (3),
then, subject to Order 11, Rule 3, unless within 8 days after service the plaintiff files a
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memorandum of service in Form 6 containing the following particulars, that is to say, the
day of the week and date on which it was served, where it was served, the person on
whom it was served, and, where he is not the defendant, the capacity in which he was
served, the plaintiff in the action begun by the writ shall not be entitled to enter final or
interlocutory judgment against that defendant in default of appearance or in default of
defence, unless the Court otherwise orders.
3. Types
When can the Plaintiff enter Final Judgment?
• If his claim is a liquidated one (that is, for a specific sum of money). To qualify as
a liquidated demand, the amount must either be ascertained or capable of being
ascertained as a mere matter of arithmetic. Supreme Court Practice 1999, vol 1,
para 6/2/5.
• If his claim is for recovery of immovable property e.g. land
When can the Plaintiff enter Interlocutory Judgment:

• A judgment is referred to as interlocutory if further steps need to be taken in order
to finalise it. For instance the court may give an interlocutory judgment for
unliquidated damages. Such a judgment will be finalised on the assessment of
those damages.
• If his claim if an unliquidated (ie: claim for personal injury or detention of goods)
• Plaintiff must file the Notice of Appointment to attend before the Registry with
witnesses for the assessment of damages.
• Plaintiff must then obtain the extract from the Registry to convert interlocutory
judgment into final judgment.
1. Order 13, rule 1(1): When plaintiff’s claim is for a liquidated demand only – the
plaintiff may enter final judgment if the defendant fails to enter an appearance. If
judgment is entered for an amount larger than is due, the defendant is entitled to have it
set aside (Hughes v Justin [1894] 1 QB 667, unless the judgment is rectified by
amendment (See Order 20 r 11, Muir v Jenks [1913] 2 KB 412). The plaintiff may also
seek an amendment if judgment is entered for an amount which is less than what is due
– Sanders v Hamilton (1907) 96 LT 679.
Claim for liquidated demand (O. 13, r. 1)

1. —(1) Where a writ is endorsed with a claim against a defendant for a liquidated
demand only, then, if that defendant fails to enter an appearance, the plaintiff may, after
the time limited for appearing, enter final judgment against that defendant for a sum not
exceeding that claimed by the writ in respect of the demand and for costs, and proceed
with the action against the other defendants, if any.
(2) A claim shall not be prevented from being treated for the purposes of this Rule as a
claim for a liquidated demand by reason only that part of the claim is for interest accruing
after the date of the writ at an unspecified rate, but any such interest shall be computed
from the date of the writ to the date of entering judgment at the rate of 6% per annum or
at such other rate as the Chief Justice may from time to time direct.
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2. Order 13, rule 2: When plaintiff’s claim is for unliquidated damages only – the
plaintiff may enter interlocutory judgment for damages to be assessed if the defendant
fails to enter an appearance.
Claim for unliquidated damages (O. 13, r. 2)

2. Where a writ is endorsed with a claim against a defendant for unliquidated damages
only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time
limited for appearing, enter interlocutory judgment against that defendant for damages to
be assessed and costs, and proceed with the action against the other defendants, if any
3. Order 13, rule 3: When plaintiff’s claim is for the detention of movable property only
– the plaintiff may enter interlocutory judgment for the delivery of the property or for
their value to be assessed if the defendant fails to enter an appearance.
Claim in detinue (O. 13, r. 3)

3. Where a writ is endorsed with a claim against a defendant relating to the detention of
movable property only, then, if that defendant fails to enter an appearance, the plaintiff
may, after the time limited for appearing, at his option enter either —
(a) interlocutory judgment against the defendant for the delivery of the property or their
value to be assessed and costs; or
(b) interlocutory judgment for the value of the property to be assessed and costs,
and proceed with the action against the other defendants, if any.
4. Order 13, rule 4 – When plaintiff’s claim for possession of immovable property only
– the plaintiff may enter judgment for possession of the immovable property if the
defendant fails to enter an appearance.
Claim for possession of immovable property (O. 13, r. 4)

4. —(1) Where a writ is endorsed with a claim against a defendant for possession of
immovable property only, then, if that defendant fails to enter an appearance, the plaintiff
may, after the time limited for appearing, and on producing a certificate by his solicitor,
or (if he sues in person) an affidavit, stating that he is not claiming any relief in the action
of the nature specified in Order 83, Rule 1, enter judgment for possession of the
immovable property as against that defendant and costs, and proceed with the action
against the other defendants, if any.
(2) Where there is more than one defendant, judgment entered under this Rule shall not
be enforced against any defendant until judgment for possession of the immovable
property has been entered against all the defendants.
5. Order 13, rule 5 – When plaintiff’s claim is for a mixed claim (ie: Rules 1 to 4) – the
plaintiff may enter such judgment in respect of any such claims if the defendant fails to
enter an appearance.
Mixed claims (O. 13, r. 5)

5. Where a writ issued against any defendant is endorsed with 2 or more of the claims
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mentioned in Rules 1 to 4, and no other claim, then, if that defendant fails to enter an
appearance, the plaintiff may, after the time limited for appearing, enter against that
defendant such judgment in respect of any such claim as he would be entitled to enter
under these Rules if that were the only claim endorsed on the writ, and proceed with the
action against the other defendants, if any.
6. Order 13, rule 6 – When plaintiff’s claim is for other claim (ie: not mentioned in Rule
1 to 4), and the defendant fails to enter an appearance – the plaintiff may proceed with
the action as if that defendant had entered appearance and the plaintiff may make an
application by SIC or motion to enter judgment.
Other claims (O. 13, r. 6)

6. —(1) Where a writ is endorsed with a claim of a description not mentioned in Rules 1
to 4, then, if any defendant fails to enter an appearance, the plaintiff may, after the time
limited for appearing and upon filing an affidavit proving due service of the writ on that
defendant and, where the statement of claim was not endorsed on or served with the writ,
upon serving a statement of claim on him, proceed with the action as if that defendant
had entered an appearance.
(2) Where a writ issued against a defendant is endorsed as aforesaid, but by reason of the
defendant’s satisfying the claim or complying with the demands thereof or for any other
like reason it has become unnecessary for the plaintiff to proceed with the action, then, if
the defendant fails to enter an appearance, the plaintiff may, after the time limited for
appearing, enter judgment with the leave of the Court against that defendant for costs.
(3) An application for leave to enter judgment under paragraph (2) shall be by summons
which must, unless the Court otherwise orders, and notwithstanding anything in Order
62, Rule 10, be served on the defendant against whom it is sought to enter judgment.
7. Order 19 rule 7 (one alternative)
Default of defence: Other claims (O. 19, r. 7)

7. —(1) Where the plaintiff makes against a defendant or defendants a claim of a
description not mentioned in Rules 2 to 5, then, if the defendant or all the defendants
(where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff
may, after the expiration of the period fixed under these Rules for service of the defence,
apply to the Court for judgment, and on the hearing of the application the Court shall give
such judgment as the plaintiff appears entitled to on his statement of claim.
(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.
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8. Order 21 rule 2 (the other alternative).
Discontinuance of action, etc., without leave (O. 21, r. 2)

2. —(1) The plaintiff in an action begun by writ may, without the leave of the Court,
discontinue the action, or withdraw any particular claim made by him therein, as against
all or any of the defendants at any time not later than 14 days after service of the defence
on him or, if there are 2 or more defendants, of the defence last served, by serving a
notice in Form 30 to that effect on the defendant concerned.
(2) A defendant may, without the leave of the Court —
(a) withdraw his defence or any part of it at any time;
(b) discontinue a counterclaim, or withdraw any particular claim made by him therein, as
against all or any of the parties against whom it is made, at any time not later than 14
days after service on him of a defence to counterclaim or, if the counterclaim is made
against 2 or more parties, of the defence to counterclaim last served,
by serving a notice in Form 30 to that effect on the plaintiff or other party concerned.
(3) Where there are 2 or more defendants to an action not all of whom serve a defence on
the plaintiff, and the period fixed under these Rules for service by any of those
defendants of his defence expires after the latest date on which any other defendant
serves his defence, paragraph (1) shall have effect as if the reference therein to the service
of the defence last served were a reference to the expiration of that period.
This paragraph shall apply in relation to a counterclaim as it applies in relation to an
action with the substitution for references to a defence, to the plaintiff and to paragraph
(1), of references to a defence to counterclaim, to the defendant and to paragraph (2)
respectively.
(4) If all the parties to an action consent, the action may be withdrawn without the leave
of the Court at any time before trial by producing to the Registrar a written consent to the
action being withdrawn signed by all the parties.
(5) An action begun by writ is deemed to have been discontinued against a defendant if
the memorandum of service referred to in Order 10, Rule 1 (4), is not filed in respect of
the service of the writ on that defendant within 12 months after the validity of the writ for
the purpose of service has expired, and, within that time —
(a) a memorandum of appearance has not been filed in the action by that defendant; and
(b) judgment has not been obtained in the action against that defendant in respect of the
whole or any part of the relief claimed against that defendant in the action.
(6) Subject to paragraph (6A), if no party to an action or a cause or matter has, for more
than one year (or such extended period as the Court may allow under paragraph (6B)),
taken any step or proceeding in the action, cause or matter that appears from records
maintained by the Court, the action, cause or matter is deemed to have been discontinued.
(6A) Paragraph (6) shall not apply where the action, cause or matter has been stayed
pursuant to an order of court.
(6B) The Court may, on an application by any party made before the one year referred to
in paragraph (6) has elapsed, extend the time to such extent as it may think fit.
(7) Paragraph (6) shall apply to an action, a cause or a matter, whether it commenced
before, on or after 15th December 1999, but where the last proceeding in the action,
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cause or matter took place before 1st January 2000, the period of one year shall only
begin on 1st January 2000.
(8) Where an action, a cause or a matter has been discontinued under paragraph (5) or (6),
the Court may, on application, reinstate the action, cause or matter, and allow it to
proceed on such terms as it thinks just.
- Order 13 (in default of appearance to writ) mirrors order 19 (default of pleadings)

- Diff is in procedure –
 o13 – to bring in form 79 – see below: by filing doc
 For order 19 – see below – not to file doc but summons for leave of court to
grant judgement
4. Procedure (this is the only diff bet order 13 and order 19).
- Memorandum of Service to be filed under Order 10, rule 1(4),
 Order 10, rule 1(4): Plaintiff must file Memorandum of Service of the Writ
in Form 11 within 8 days after service – otherwise, Plaintiff is not entitled to
enter final or interlocutory judgment against the defendant in default of
appearance or in default of defence.
- the draft Judgment in Form 79, select the appropriate form in Form 79
FORM 79: Judgments

(a) Default judgment in action for liquidated demand Order 13, rule 1
Order 19, rule 2
(b) Default judgment in action for unliquidated damages Order 13, rule 2
Order 19, rule 3
(c) Default judgment in action relating to detention of movable Order 13, rule 3
property Order 19, rule 4
(d) Default judgment in action for possession of immovable Order 13, rule 4
property Order 19, rule 5
(e) Judgment in default in action for possession of immovable Order 13, rule 4
property, damages and costs Order 19, rule 6
(f) Final judgement after assessment of damages Order 42 rule 5
- Note of Costs (Appendix 2 of Order 59) payable in respect of the default judgment,
- Certificate of Non-Appearance (Form 17) if it is under Order 13, either affidavit of
service or production of writ indorsed by defendant’s solicitor and
- if it is a claim for possession of immovable property, certificate by solicitor that no
relief is claimed of the nature specified in Order 83, rule l (Order 13, rule 4(1)).
- The plaintiff should not apply for judgment in default of appearance where he is
aware that the memorandum of appearance has been filed, albeit beyond the
prescribed period for filing it.
 In Chua Choon Lim Robert v M N Swami of Messrs M N Swami & Yap & Ors
[2000] 4 SLR 494, the High Court regarded the plaintiff’s conduct in making
the application (after he was aware that the memorandum had been filed late) as
‘mischevious’
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5. Setting aside Order 13, rule 8: The Court may set aside or vary any default judgment.
Setting aside judgment (O. 13, r. 8)

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

judgment, it may be set aside for procedural irregularity.
- If it is a regular judgment5, it may be set aside on the merits i.e. that the defence has
real prospects of success.
- Def can set aside judgment in default against him whether in default of appearance or
defence
- Normally applic to set aside premised on
o 1. plaintiff failed in procedure ie proced irregularity eg waited only 7 days OR
o 2. substantive defence/ substantive merits of the case
- take out summons supported by affidavit to set aside
- if judgement stands, ie def loses applic to set aside – def must pay costs.
- If judgement set aside – def won on procedural irreg of plaintiff – plaitnfiff will pay
costs because he was at fault
- If def won application and judgement set aside but succeeded on substantive defence –
def shld pay costs. Def MUST because it was his fault that led to plaintiff entering a
regular judgement. – apply concept of who is at fault
- If defendant applies to set aside the default judgment and does not succeed, defendant
has to pay costs. Indemnity costs against the defendant has to be specially asked for, it’s
not given automatically.
- If it is an irregular judgment (e.g. judgment entered into too early), it may be set aside
for procedural irregularity. The defendant can get costs against the Plaintiff if the
default judgment was irregularly obtained.
o Cases on “irregular judgment” – Evans v Bartlam [1937] AC 480, Irregular
Judgment (Order 2 rule 2(2) ex debito justistiae; Anlaby v Praetorious [1888] 20
QBD 764; White v Weston [1968] 2 AER 981; White Book, paras 13/9/6 and
13/9/8; European Asian Bank v Chia Ngee Thuang [1995] 3 SLR 171.
- If it is a regular judgment, it may be set aside on the merits i.e. that the defence has real
prospects of success.
o Plaintiff gets costs because the defendant did the plaintiff wrong.
o Affidavit of merits must be filed – Farden v Richter [1889] 23 QBD 124; “real
prospect of success” – “The Saudi Eagle” [1986] 2 Lloyds 221; “costs thrown
away”; White Book 13/9/5). Abdul Gaffer v Chua Kwang Yong [ 1995] SLR
484; Hong Leong Finance v Tay Keow Neo [ 1992] I SLR 205; Tuan Haji
Ahmed Abdul Rahmen v Aab – Malaysian Finance Bhd [1996] 1 MLJ 30;
Cosmic Insurance Corp v Ong Kah Hoe [1996] 2 SLR 356. Day and Royal
Automobile Club Motoring Services Ltd, 24th November 1998, Times Law
Report.
Setting aside: -
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Irregular (default) judgment
Evans v Bartlam [1937] AC 480

- The standard indicated by each of their Lordships in Evans v. Bartlam contemplated
that a defendant who is asking the Court to exercise its discretion in his favour should
show that he has a defence that has a real prospect of success. In Evans v. Bartlam
there was an obvious defence under the Gaming Act.
White v Weston [1968] 2 AER 981

- A summons giving notice of county court proceedings was sent to the defendant, in
accordance with Ord. 8, r. 8 (3) of the County Court Rules, on October 28, 1966, at an
address in Ilford which he had left some five months earlier. Accordingly, he had no
knowledge of proceedings in respect of a car accident, which the plaintiff alleged was
due to the defendant's negligence and in which the county court judge on November 25,
1966, awarded the plaintiff £134 damages and costs which, when taxed, amounted to
£86. When the defendant learned of the proceedings he applied to set aside the
judgment. During the course of the hearing the summons was found in the court file; it
was stamped "Unable to meet deft. He resides at address given and would get summons
by post" and signed by the Ilford County Court bailiff; that was followed by "Send
summons by post" and the form on the summons was filled in showing that the
summons was served by posting it on October 28, 1966. On July 26, 1967, the county
court judge set aside the judgment but he ordered that the costs of the November
hearing should be costs in cause. The defendant *648 appealed against the order for
costs on the ground that since he had never been served he was entitled to have the
judgment set aside with no order for costs.
- On the question whether the defendant was properly served:-
- Held, that on the true construction of Ord. 8, r. 8 (3) and section 26 of the Interpretation
Act, 1889, the summons was never served and as a result of this fundamental
defect the defendant had a right ex debito justitiae to have the judgment set aside
without the imposition of any term whether as to costs or otherwise, and
accordingly the order for costs should be set aside.
European Asian Bank v. Chia Ngee Thuang [1995] 3 SLR 171

- In exercising its discretion to set aside the judgment, 2 important factors which the
court considered were:
o the merits of the defendant’s case; and
o if there was a delay in bringing the matter to court, any explanation which the
defendant had proferred for the delay.
Regular (default) judgment (affidavit of merits)
Farden v. Richter [1889] 23 QBD 124

- Facts: Order was made for the defendant to file answers to interrogatories within 3 days
or else judgment might be entered against him. Judgment was entered against
defendant, and he applied to set aside judgment
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- Held: In the absence of an affidavit showing that the defendant had a defence on the
merits, the defendant was not entitled to have the judgment set aside.
The Saudi Eagle [1986] 2 Lloyds 221

- The plaintiff claimed damages for breach of contract by the defendants who refused to
load the cargo. No intention to defend was given and interlocutory judgment was
given. It was common ground that a deliberate decision was taken not to defend the
plaintiff’s claim. The defendants applied to set aside the judgment.
- Held: On the evidence, the defendants had not shown that they had a defence which had
any reasonable prospect of success. The conduct of the defendants in deliberately
deciding not to give notice of intention to defend because it suited their interests not to
do so was a matter to be taken into account in assessing the justice of the case.
Abdul Gaffer v. Chua Kwang Yong [1995] SLR 484

- Held: The principles upon which the court should exercise its discretion under Order
13, rule 8: It is not sufficient to show merely an arguable defence that would justify
leave to defend under Order 14. The discretion to set aside judgment in default is
exercised when the applicant had a defence with a real prospect of success and which
carried some degree of conviction.
- This case established that in making its decision, a court should take into account the
reasons why the appellant had ignored the proceedings and allowed judgment in default
to be entered against it.
Hong Leong Finance v Tay Keow Neo [1992] 1 SLR 205

- MPH Rubin JC - The manner in which a court should exercise its discretion in an
application of this nature, can be extracted from the speeches in Evans v Bartlam. The
guiding principles, bearing in mind that in matters of discretion, no one case can be
authority for another, have been summarized in Alpine Bulk Transport Co Inc v Saudi
Eagle Shipping Co Inc (‘The Saudi Eagle’ ) at p 223 (per Sir Roger Ormrod) as
follows:
o (i) a judgment signed in default is a regular judgment from which,
subject to (ii)below, the plaintiff derives rights of property;
o (ii) the rules of court give to the judge a discretionary power to set aside
the default judgment which is in terms ‘unconditional’ and the court should
not ‘lay down rigid rules which deprive it of jurisdiction’ (per Lord Atkin at
p 480);
o (iii) the purpose of this discretionary power is to avoid the injustice
which might be caused if judgment followed automatically on default;
o (iv) the primary consideration is whether the defendant ‘has merits to
which the court should pay heed’ (per Lord Wright at p 489), not as a rule of
law but as a matter of common sense, since there is no point in setting aside a
judgment if the defendant has no defence and if he has shown ‘merits’ the ...
court will not, prima facie, desire to let a judgment pass on which there has been
no proper adjudication (ibid p 489 and per Lord Russell of Killowen at p 482).
o (v) Again as a matter of common sense, though not making it a condition
precedent, the court will take into account the explanation as to how it came
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about that the defendant ... found himself bound by a judgment regularly
obtained to which he could have set up some serious defence (per Lord Russell
of Killowen at p 482).
Tuan Haji Ahmed Abdul Rahmen v Arab – Malaysian Finance Bhd [1996] 1 MLJ 30
- On 8 July 1988, Arab-Malaysian Finance Bhd (`the respondent`) entered a judgment in
default of appearance against one of its borrowers (`the appellant`) for the sum of
RM4,923,242.69 with interest `at 1% above the prescribed rate ... on a daily rests ...`.
The appellant filed an application to set aside the judgment on the ground that it was
irregularly obtained, as it is provided under O 83 r 4(1) of the Rules of the High Court
1980, that in a charge action begun by writ, judgment in default of appearance
shall not be entered except with the leave of the court. The senior assistant registrar
(`the SAR`) decided in favour of the appellant, and set aside the default judgment.
Dissatisfied, the respondent appealed to the judge in chambers. At the hearing, the
appellant further contended that the default judgment was uncertain, as although the
words `prescribed rate of interest` (`the words`) were mentioned in the judgment, it was
not defined therein, and therefore, the appellant would not be able to ascertain the
amount which he was legally liable to pay (`the appellant`s contention`). The judge
allowed the respondent`s appeal on the grounds that: (i) there was no question of a
contravention of O 83 r 4(1), as the respondent`s action against the appellant was not a
charge action; (ii) the court could not consider the appellant`s contention, as it had not
been raised before the SAR; (iii) the defects in the judgment could be cured in any
event, as the words were clearly defined in the appellant`s loan agreement; and (iv)
there was an inordinate delay on the part of the appellant in filing the application to set
aside the default judgment. The trial judge also ruled that the judgment in this case was
similar to a consent judgment, and thus, the appellant should bring the matter within the
terms on which a consent judgment could be set aside in order to succeed in setting
aside the default judgment. The judge then proceeded to restore the default judgment,
after deleting the words `daily rests basis` from it, even though this application of the
respondent was not before him for disposal, and neither counsel was heard on the
merits. The appellant appealed.
- Held , allowing the appeal:
- (1).It is elementary that an irregular judgment is one which has been entered otherwise
than in strict compliance with the rules or some statute, or is entered as a result of some
impropriety which is considered to be so serious as to render the proceedings a nullity.
The general rule is that when it is clearly demonstrated to the satisfaction of the court
that a judgment has not been regularly obtained, the defendant is entitled to have it set
aside ex debito justitiae, that is to say, irrespective of the merits and without terms.
However, the application to set aside such a judgment should be made: (i) with
reasonable promptitude; and (ii) before the defendant has taken any fresh step after
becoming aware of the irregularity.
- (2).In appeals to a judge in chambers from the decision of a registrar of the High
Court, the judge is not exercising appellate jurisdiction in the same sense as when he
hears appeals from judgments, decisions or orders of the subordinate courts. The
appeals from decisions of the registrar are by way of an actual rehearing and the
judge treats the matter as though it comes before him for the first time. The judge
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is therefore not confined to the points taken before the registrar, so that the rule about
new points being not generally open to an appellant to take on appeal does not apply. It
follows that the judge in this case was wrong in refusing to consider the appellant`s
contention
- (3).Clearly, there had been procedural impropriety in the decision- making process
of the judge, as neither counsel had had the opportunity of being heard, and on this
ground alone, his judgment could not stand.
- (4).The default judgment was still uncertain even though reference was made to the
loan agreement to resolve the ambiguities therein. The appellant would still be
perplexed as to the amount of interest he would have to pay under the default judgment
in order to avoid enforcement proceedings, as the default judgment included an element
of contractual interest at a fluctuating rate, and when such interest was to run depended
upon the absolute discretion of the respondent. By reason of uncertainty, the default
judgment was a nullity.
- (5).It is clear law that the court still retains a discretion to set aside an irregular
judgment despite long delay, provided it is satisfied that: (i) no one has suffered
prejudice by reason of the appellant`s delay; (ii) alternatively, where such prejudice has
been sustained, it can be met by an appropriate order as to costs; or (iii) to let the
judgment to stand would constitute an oppression (see p 42G-H) Atwood v Chichester
(1878) 3 QBD 722 and Harley v Samson (1914) 30 TLR 450 followed.
- (6).In this case, the delay was not fatal to the appellant`s application since the default
judgment was by reason of uncertainty, was nullity. Under the court`s inherent
jurisdiction to prevent abuse of its proceedings, the court has power to set aside the
judgment in default, despite the appellant`s application being out of time. Beale v
McGregor (1886) 2 TLR 311 followed.
Cosmic Insurance Corp v Ong Kah Hoe [1996] 2 SLR 356

- 24 After considering the matters, I find that there is a defence available if the
action is to go to trial which, in the words of Ormrod J in The Saudi Eagle; Alpine
Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyd’s Rep221 at p
223, ‘has a real prospect of success’ and ‘carry some degree of conviction’, criteria
which the Court of Appeal applied in Abdul Gaffer v Chua Kwang Yong [1995] 1 SLR
484 for determining whether a judgment entered in default of appearance can be set
aside. These two cases also establish that in making its decision a court should take
into account the reasons why the appellant had ignored the proceedings and
allowed judgment in default to be entered against it.
- 25 Applying the Saudi Eagle test, I find that the first defendant should be
allowed to defend the action so that the legal basis of the plaintiffs’ claim can be
examined, even though he had no good explanation for ignoring the proceedings.
Accordingly I allow the first defendant’s appeal. The assistant registrar’s order is set
aside, as well as the default judgment against him, and he shall have leave to enter his
appearance in the action within eight days.
- 26 That leaves the question of costs. The first defendant has only himself to blame
for not entering his appearance in the action and allowing judgment in default to be
entered against him. All that he said by way of explanation was, ‘Being unaware of any
rights, I did not instruct any firm of solicitors to enter an appearance or to defend the
12
action herein.’ He remained indifferent and took no action even after the plaintiffs
executed a writ of seizure and sale against him in October 1994 and only took out the
application in September 1995 after the plaintiffs had taken out bankruptcy proceedings
against him. The general and universally accepted rule is that costs always follow the
event unless there are special reasons for depriving the successful litigant of his costs in
part or in full (see Tullio v Maoro [1994] 2 SLR 489). But when the first defendant
chose to ignore proceedings against him, did nothing even after judgment was entered
and executed against him, and only stirred himself when he was threatened with
bankruptcy, costs should not be awarded to him for applying to set aside the judgment.
6. Note:
- Plaintiff shld only wait for 8 days for def to enter appearance, after which can take
action to enter judgement in default of appearance
Default of Defence – ORDER 19
- Note that under Rule 70 of the Professional Conduct Rules, a lawyer has to give the
opposing lawyer 48 hours notice before filing for default of defence.
- Only need to wait for 14 days for def to file defence (after appearance entered)
1. Type.
a) Order 19, rule 2(1) (“liquidated demand only” - “final judgment”)

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

2. —(1) Where the plaintiff’s claim against a defendant is for a liquidated demand only,
then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the
expiration of the period fixed under these Rules for service of the defence, enter final
judgment against that defendant for a sum not exceeding that claimed by the writ in
respect of the demand and for costs, and proceed with the action against the other
defendants, if any.
(2) Order 13, Rule 1 (2), shall apply for the purposes of this Rule as it applies for the
purposes of that Rule.
b) Order 19, rule 3 (“unliquidated damages only” - “interlocutory judgment”)

- Order 19, rule 3: When plaintiff’s claim is for unliquidated damages only – the
plaintiff may enter interlocutory judgment for damages to be assessed if the defendant
fails to serve his defence,
Default of defence: Claim for unliquidated damages (O. 19, r. 3)

3. Where the plaintiff’s claim against a defendant is for unliquidated damages only, then,
if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the
expiration of the period fixed under these Rules for service of the defence, enter
13
interlocutory judgment against that defendant for damages to be assessed and costs, and
proceed with the action against the other defendants, if any.
c) Order 19, rule 4 (“detention of movable property only” - “interlocutory judgment”)

- Order 19, rule 4: When plaintiff’s claim is for the detention of movable property only
– the plaintiff may enter interlocutory judgment for the delivery of the property or their
value to be assessed, if the defendant fails to serve his defence.
Default of defence: Claim in detinue (O. 19, r. 4)

4. Where the plaintiff’s claim against a defendant relates to the detention of movable
property only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff
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,
d) Order 19, rule 5 (“possession of immovable property only” - “judgment”)

- Order 19, rule 5(1): When plaintiff’s claim is for possession of immovable property
only – the plaintiff may enter judgment for possession of the immovable property if the
defendant fails to serve his defence.
Default of defence: Claim for possession of immovable property (O. 19, r. 5)

5. —(1) Where the plaintiff’s claim against a defendant is for possession of immovable
property only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff
and on producing a certificate by his solicitor, or (if he sues in person) an affidavit,
stating that he is not claiming any relief in the action of the nature specified in Order 83,
Rule 1, enter judgment for possession of the immovable property as against that
defendant and for costs, and proceed with the action against the other defendants, if any.
(2) Where there is more than one defendant, judgment entered under this Rule shall not
be enforced against any defendant unless judgment for possession of the immovable
property has been entered against all the defendants.
e) Order 19, rule 6 (“mixed claims” - “enter ... such judgment”)

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

6. Where the plaintiff makes against a defendant 2 or more of the claims mentioned in
Rules 2 to 5, and no other claim, then, if that defendant fails to serve a defence on the
plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules for
service of the defence, enter against that defendant such judgment in respect of any such
14
claim as he would be entitled to enter under those Rules if that were the only claim made,
f) Order 19, rule 7(1) (“not mentioned in rules 2 to 5” - “apply to enter the Court for
judgment”)
- Order 19, rule 7(1): When plaintiff’s claim is for other claim (ie: not mentioned in
Rule 2 to 5) – the plaintiff may apply to the Court for judgment if the defendant fails to
serve his defence.
Default of defence: Other claims (O. 19, r. 7)

7. —(1) Where the plaintiff makes against a defendant or defendants a claim of a
description not mentioned in Rules 2 to 5, then, if the defendant or all the defendants
(where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff
apply to the Court for judgment, and on the hearing of the application the Court shall give
such judgment as the plaintiff appears entitled to on his statement of claim.
(2) Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more
than one defendant, then, if one of the defendants makes default as mentioned in that
paragraph, the plaintiff may —
(a) if his claim against the defendant in default is severable from his claim against the
other defendants, apply under that paragraph for judgment against that defendant, and
proceed with the action against the other defendants; or
(b) set down the action by summons for judgment against the defendant in default at the
time when the action is set down for trial, or is set down by summons for judgment,
against the other defendants.
(3) An application under paragraph (1) must be by summons.
g) Order 19, rule 8: Rules 2 to 7 are applicable to counterclaims by the Defendant. If the
plaintiff fails to serve his defence to the counterclaim – the defendant may enter
judgment accordingly to the Rules 2 to 7.
- Note also that O 19 r 8 is applicable to counterclaims.
Default of defence to counterclaim (O. 19, r. 8)

8. A defendant who counterclaims against a plaintiff shall be treated for the purposes of
Rules 2 to 7 as if he were a plaintiff who had made against a defendant the claim made in
the counterclaim and, accordingly, where the plaintiff or any other party against whom
the counterclaim is made fails to serve a defence to counterclaim, those Rules shall apply
as if the counterclaim were a statement of claim, the defence to counterclaim a defence
and the parties making the counterclaim and against whom it is made were plaintiffs and
defendants respectively, and as if references to the period fixed under these Rules for
service of the defence were references to the period so fixed for service of the defence to
counterclaim.
2. Procedure.
- Order 19, rule 7(2)(3) (have to apply by SIC supported by affidavit – not
automatically entitled to judgement in default of defence).
15
- Also prepare draft judgment in Form 79, Memorandum of Service, Affidavit of Service,
Note of Costs (Appendix 2 to Order 59), if claim for possession of immovable
property, Certificate by solicitor stating not claiming any relief in the action of the
nature specified in Order 83, rule 1 etc.
- Give 48 hour notice under Rule 70 of the Professional Conduct Rules.
- Order 19, rule 7(3) – An application to the Court for judgment under this Rule must be
by summons or motion.
- Prepare draft judgment in Form 79 – select the appropriate form in Form 79 (see:
table above)
- Memorandum of Service.
- Affidavit of Service
- Note of Costs (Appendix to Order 59)
- If the claim is for possession of immovable property under Order 19, rule 5(1) -
Certificate by solicitor stating not claiming any relief in the action of the nature
specified in Order 83, rule 1.
- Indemnity costs has to be specially asked for, its not given automatically.
3. Setting aside.
- Order 19, rule 9 (setting aside judgment - see, Order 13, rule 8 for principles).
- Whether regular or irreg judgement – this determines costs if set aside based on regular
judgement, def msut pay costs. But if irreg judgment, plaintiff pays costs.
- [See case law on Order 13, rule 8 - for principles governing this Rule]

9. The Court may, on such terms as it thinks just, set aside or vary any judgment entered
in pursuance of this Order.
4. Miscellaneous.
- Note that entering of default judgment against the government is not available - AG v
Phang Fook Seng [1999] 3 SLR 641. & Order 73 rule 7(1) – need to apply to court for
leave first.
• Order 73, rule 7(1): Leave of the Court is required before a judgment in default of
appearance or of pleading may be entered against the Government.
Judgment in default (O. 73, r. 7)

7. —(1) Except with the leave of the Court, no judgment in default of appearance or of
pleading shall be entered against the Government in civil proceedings against the
Government or in third party proceedings against the Government.
(2) Except with the leave of the Court, Order 16, Rule 5 (1) (a), shall not apply in the
case of third party proceedings against the Government.
(3) An application for leave under this Rule must be made by summons, and the
summons must be served not less than 7 days before the return day.
AG v. Phang Fook Seng [1999] 3 SLR 641
16
- Facts: The plaintiff had applied under Order 73, rule 7 for leave to enter judgment in
default of defence against the appellant. The Government argued that under this rule,
no default judgment could be entered against the government except with leave of
court, and this meant that the court would judiciously consider the government’s
reasons for not filing a defence. On appeal, the Government took the view that the
merits of the case could be considered without filing of a defence.
- CA Held: As a judgment in default was not a judgment on the merits but was the
expression of the coercive power of the court where it had been obtained by a failure
to follow any of the rules of procedure or orders of the court. The defendant was
given the opportunity to place the merits of his case before the court on an application
to set aside a default judgment. However, the merits were irrelevant when entering
default judgment, because that was a consequence of failure to comply with the
requirements of the rules of procedure.
- The question whether judgment in default of defence should be entered against
the government was one of procedural law only. Once the Government had entered
an appearance, it ought to have filed and served a defence, otherwise judgment in
default thereof would have followed as a matter of course.
Other Types Of Cases:
Admiralty Action
- not like above. Cannot just file std docs. Must apply by summons because in
shippin case, many parties.
- Here summons is special – not summons in chambers. This summons prev called
notice of motion (valid till 2005) – means that go before HC, put on solicitor’s robe
and stand in open court and ask for application. This summons is summons in
OPEN COURT. Court needs ot hear who else has interest in matter
Judgment by default (O. 70, r. 20)

20. —(1) Where a writ is served under Rule 7 (5) on a party at whose instance a caveat
against arrest was issued, then if —
(a) the sum claimed in the action begun by writ does not exceed the amount specified in
the undertaking given by that party or his solicitor to procure the entry of the caveat; and
(b) that party or his solicitor does not within 14 days after service of the writ fulfil the
undertaking given by him as aforesaid,
the plaintiff may, after filing an affidavit verifying the facts on which the action is based,
apply to the Court for judgment by default.
(2) Judgment given under paragraph (1) may be enforced by the arrest of the property
against which the action was brought and by committal of the party at whose instance the
caveat with respect to that property was entered.
(3) Where a defendant to an action in rem fails to enter an appearance within the time
limited for appearing, then, on the expiration of 14 days after service of the writ and upon
filing an affidavit proving due service of the writ, an affidavit verifying the facts on
which the action is based and, if a statement of claim was not endorsed on the writ, a
17
copy of the statement of claim, the plaintiff may apply to the Court for judgment by
default.
Where the writ is deemed to have been duly served on the defendant by virtue of Order
10, Rule 1 (2), or was filed or served under Rule 7, an affidavit proving due service of the
writ need not be filed under this paragraph, but the writ endorsed as mentioned in the said
Rule 1 (2) or endorsed by the Registrar with a statement that he accepts service of the
writ must be filed with the affidavit verifying the facts on which the action is based.
(4) Where a defendant to an action in rem fails to serve a defence on the plaintiff,
then, after the expiration of the period fixed by these Rules for service of the defence
and upon filing an affidavit stating that no defence was served on him by that
defendant during that period, an affidavit verifying the facts on which the action is
based and, if a statement of claim was not endorsed on the writ, a copy of the
statement of claim, the plaintiff may apply to the Court for judgment by default.
(5) Where a defendant to a counterclaim in an action in rem fails to serve a defence to
counterclaim on the defendant making the counterclaim, then, subject to paragraph (6),
after the expiration of the period fixed by these Rules for service of the defence to
counterclaim and upon filing an affidavit stating that no defence to counterclaim was
served on him by the first-mentioned defendant during that period, an affidavit verifying
the facts on which the counterclaim is based and a copy of the counterclaim, the
defendant making the counterclaim may apply to the Court for judgment by default.
(6) No application may be made under paragraph (5) against the plaintiff in any such
action as is referred to in Rule 3 (1).
(7) An application to the Court under this Rule must be made by summons and if, on
the hearing of the summons, the Court is satisfied that the applicant’s claim is well-
founded, it may give judgment for the claim with or without a reference to the Registrar
and may at the same time order the property against which the action or, as the case may
be, counterclaim is brought to be appraised and sold and the proceeds to be paid into
Court or may make such other order as it thinks just.
(8) In default actions in rem evidence may, unless the Court otherwise orders, be given by
affidavit without any order or direction in that behalf.
(9) The Court may, on such terms as it thinks just, set aside or vary any judgment entered
in pursuance of this Rule.
(10) Order 13 and Order 19 (except Rule 1) shall not apply to actions in rem.
• Order 70, rule 20(10) – states that Order 13 and Order 19 (except Rule 1) shall not
apply to action in rem.
• An action in rem must be begun by writ in Form 159: “Writ of Summons in Action In
Rem in the High Court of the Republic of Singapore”
Issue of writ and entry of appearance (O. 70, r. 2)

2. —(1) An action in rem must be begun by writ; and the writ must be in Form 159.
(2) The writ by which an Admiralty action in personam is begun must be in Form 2 and
the words “admiralty action in personam” must be inserted above the space for the
number of the writ.
(3) Order 6, Rule 3, and Order 12 shall apply in relation to such an admiralty action.
18
[Note: Within 8 days after service … cause an appearance to be to be entered.]
1. In default of appearance.
- Apply by summons (Order 70, rule 20(7)) and file affidavit of service, affidavit
verifying the facts on which the action is based and if no statement of claim served,
copy of statement of claim (Order 70, rule 20(3)).
2. In default of defence. Apply by summons (Order 70, rule 20(7)) and affidavit stating that
no defence was served, affidavit verifying the facts on which the action is based and if no
statement of claim, copy of statement of claim (Order 70, rule 20(4)).
Moneylender’s Action – rare. Order governing money lender’s action
Judgment in default of appearance or defence (O. 79, r. 4)

4. —(1) In a moneylender’s action judgment in default of appearance or in default of
defence shall not be entered except with the leave of the Court.
(2) An application for the grant of leave under this Rule must be made by summons, and
the summons must, notwithstanding anything in Order 62, Rule 10, be served on the
defendant.
(3) If the application is for leave to enter judgment in default of appearance, the summons
shall not be issued until after the time limited for appearing.
(4) On the hearing of such an application, whether the defendant appears or not, the Court
—
(a) may exercise the powers of the Court under section 22 (2) of the Moneylenders Act
(Chapter 188);
(b) where it refuses leave under this Rule to enter judgment on a claim or any part of a
claim, may make or give any such order or directions as it might have made or given or
directions as it might have made or given had the application been an application under
Order 14, Rule 1, for judgment on the claim.
- Order 79, rule 4(1) - leave required to enter default judgment by summons (Order 79,
rule 4(2)) and must be served personally on defendant notwithstanding Order 62, rule
10.
- If fail to observe Order 79 – then irregular judgemnt and when def sets aside irreg
judgement, then plaintiff pays costs.
(B) SUMMARY JUDGMENTS – VERY IMPORTANT FOR EXAMS!!!!!!!!!!!!!!!!!!
Summary Judgments under Order 14 (Generally Order 14 can be applied for by Plt,
except Order 14 rule 12 where both sides can apply).
1. Scope.
- Applicable to all claims (liquidated or unliquidated), including those seeking
specific performance.
- However, cannot make application for summary judgment against the
government: see Order 73, rule 5(1)
19
Application by plaintiff for summary judgment (O. 14, r. 1)
1. Where a statement of claim has been served on a defendant and that defendant has
served a defence to the statement of claim, the plaintiff may, on the ground that that
defendant has no defence to a claim included in the writ, or to a particular part of such a
claim, or has no defence to such a claim or part except as to the amount of any damages
claimed, apply to the Court for judgment against that defendant.
Summary judgment (O. 73, r. 5)

5. —(1) No application against the Government shall be made —
(a) under Order 14, Rule 1 or 12, in any proceedings against the Government; or
(b) under Order 14, Rule 5 or 12, in any proceedings by the Government.
(2) Where an application is made by the Government under Order 14, Rule 1 or 5, the
affidavit required in support of the application must be made by —
(a) the solicitor acting for the Government; or
(b) an officer duly authorised by the solicitor so acting or by the department concerned
2. Requirements.
- A SOC must be served and it must be complete and correct (Order 14, rule 1).
 The error in the SOC cannot be corrected or supplemented by affidavit. – at pt
of application, SOC must be correct. Shld have amended SOC way before
applying for o14
 It was held that if the defect is one of substance, the application for summary
judgment will be dismissed. Sheba Gold Mining Co v Trubshawe [1892] 1 QB
674
- Defendant must have served a defence to the statement of claim (Order 14, rule 1)
– new rule. Court to make sure that has both claim and defence at same time filed
- It is important to note that under O 14 r 14, O 14 applications shall not be filed more
than 28 days after the pleadings in the action are deemed to be closed.
 Is 28 days extendable by consent or order of court?
 Strictly 28 days maj wins – United engineers v lee hip hiong (2004) SGHC
190 – court said that 28 days is non negotiable nad cannot be extended by court
order or by parties. Even if pleadings closed and p or def applied to amend
pleadings, court wil only look at first close of pleadings and count 28 days.
Even with amendment of pleadings, close of pleadings date will remain the
same once it has happened.
 Must note time line!!!
Time limit for summary judgment applications (O. 14, r. 14)

14. No summons under this Order shall be filed more than 28 days after the pleadings in
the action are deemed to be closed.
- Normal course is that plt file affidavit, def file defence, plt files reply affidavit.
3. Procedure.
20
Manner in which application under Rule 1 must be made (O. 14, r. 2)
2. —(1) An application under Rule 1 must be made by summons supported by an
affidavit or affidavits.
(2) The summons and the supporting affidavit or affidavits must be filed at the same time,
and must be served on the defendant within 3 days from the date of filing.
(3) The defendant on whom the summons and the supporting affidavit or affidavits
have been served may show cause against the plaintiff’s application by affidavit or
otherwise to the satisfaction of the Court.
(4) If the defendant wishes to show cause against the plaintiff’s application by affidavit,
he must file and serve his affidavit or affidavits on the plaintiff within 14 days after
service of the plaintiff’s summons and affidavit or affidavits.
(5) The plaintiff must, if he wishes to reply to the defendant’s affidavit or affidavits, file
and serve his affidavit or affidavits on the defendant within 14 days after service of the
defendant’s affidavit or affidavits.
(6) No further affidavit shall be received in evidence without the leave of the Court.
(7) Where a party files or serves an affidavit beyond the period of time specified in this
Rule, the Court may make such order as to costs against that party as it considers fit.
(8) An affidavit or affidavits for the purpose of this Rule must contain all necessary
evidence in support of or in opposition (as the case may be) to the claim, or a part of the
claim, to which the application relates, and unless the Court otherwise directs, may
contain statements of information or belief with the sources and grounds thereof.
- A) Summons-in-Chambers and affidavit(s) must depose to all facts supporting the

claim (Order l4, rule 2(1))7.
- Eg Barclays Bank v Piper, The Times, 31st May 1995 – defective affidavits -
Roch L.J. emphasised that even though the objections to the affidavits sworn in
that case were technical, none the less they were perfectly valid objections and
it was important in Order 14 proceedings, where a defendant was deprived of
his opportunity to defend the plaintiff's claim and, in particular, the opportunity
of hearing and cross-examining the plaintiff's witnesses, that all the technical
requirements of an affidavit in support should be observed.
- S Jayakumar v JBJ [1997] 2 SLR 172 – Held - the application under O 14 must
be supported by an affidavit or affidavits and the affidavits must contain all
necessary evidence in support of the claim.
- Summons and affidavit(s) in support must be filed at same time and must be served on
defendant 3 days from the date of filing (Order 14, rule 2(2)). (which will give u
hearing date from court)
- Affidavit in support must contain all necessary evidence.
Chong Yeo & Partners v. Guan Ming Hardware & Engineering Pte Ltd [1997] 2 SLR
729
- Held: The affidavit in support of an application for summary judgment under Order
14, rule 2(8) had to contain all necessary evidence. No reasonable competent solicitor
would have interpreted the rules otherwise. The appellants were thus in breach of the
duty of care owed to the respondent.
21
Wallingford v. Mutual [1880] 5 AC 685 (Lord Blackburn)
- A general allegation of fraud, however strong the words used, where there is no
statement of the circumstances relied on as constituting the alleged fraud, is insufficient
even to amount to an averment of fraud of which any Court ought to take notice.
Therefore, the affidavit must provide definite facts pointing to the fraud.
- If defendant is not defending, then don’t file any affidavit. But if already file defence,
then follows that shld file affidavit in reply to defend. Otherwise what is pt of filing
defence without affidavit
- B) Show cause.
- Defendant can show cause by affidavit (Order 14, rule 2(3)).
- the defendant on whom the summons and the affidavits or affidavits in support
have been served may show cause against the plaintiff’s application by
affidavit or otherwise to the satisfaction of the Court.
- Defendant show cause by filing and serving affidavit(s) on plaintiff within 14 days after
service of plaintiff’s summons and affidavit (Order 14, rule 2(4)).
o White Book para 14/3 –4/3.
Huo Heng Oil Co Sdn. Bhd. v Tang Tiew Yong [1987] 1 MLJ 139
- Held - delivery of a defence does not, in a proper case, preclude a plaintiff from
applying for summary judgment.
- Delivery of a defence does not, in a proper case, preclude a plaintiff from applying for
summary judgment. In McLardy v Slateum (1890) 24 QBD 504 Pollock B, in allowing
an application made after one month of the defence being filed, said (page 506):
- "The view taken by other judges, and by the masters, is that the intention of O XIV r 1,
was that the plaintiff should apply within a reasonable time after the appearance of the
defendant, but that it very often happens that a defence, which has been delivered, itself
discloses facts which make an application under O XIV right and proper. We think
that this is the proper construction of the rule.
- Although the primary intention of the rule may be that an application should be made
before a defence has been delivered in the ordinary course, yet we think that it is not in
all cases compulsory. Therefore our judgment upon this point of law and practice is that
a plaintiff is not necessarily too late in making his application under O XIV, r 1 because
a defence has been delivered."
- In Comptroller-General of Inland Revenue, Malaysia v Weng Lok Mining Co Ltd
[1969] 2 MLJ 98 application for summary judgment was not made till some three
months after the defence was filed. In an application by the defendant to dismiss the
summons for summary judgment on the ground of undue delay in taking out the
summons. Raja Azlan Shah J (as he then was) (now DYMM Sultan of Perak) accepted
the reasons (irrelevant for our purpose) for the delay advanced by counsel for the
plaintiff and held that the delay of a lapse of three months in the circumstance of the
case was not inordinate and did not warrant a dismissal of the application.
- Thus the mere fact that a defence has been filed and delivered and that pleadings are
deemed to be closed do not by themselves preclude a plaintiff from seeking recourse to
22
O 26A for summary judgment in a proper case on the ground that he is too late in
making the application.
- In an action for price of goods sold and delivered, it is not sufficient for the defendant
to merely deny the debt; he must plead any facts which negative the existence of the
debt or which show that the claim is not maintainable on other grounds eg the contract
or order, the delivery, or the amount claimed. (See The Supreme Court Practice 1982
vol 1 para 18/13/5 Bullen & Leake on Precedents of Pleadings 12th Edition page
1278)……. In opposing the application for summary judgment, the respondent
must satisfy the court that with respect to the applicant`s claim there is an issue or
question in dispute which ought to be tried or that there ought for some other
reason to be a trial of that claim (O 26A r 3(1)) But this cannot be achieved by raising
facts which do not constitute a defence to the claim: Hookham v Mayle (1906) 22 TLR
241 nor by a mere general denial of indebtedness: Wallingford v Mutual Society (1880)
5 App Cas 685 HL where Lord Blackburn said (page 704):
- "I think that when the affidavits are brought forward to raise that defence they
must, if I may use the expression, condescend upon particulars. It is not enough to
swear, "I say I owe the man nothing." Doubtless if it was true, that you owed the man
nothing as you swear, that would be a good defence. But that is not enough. You must
satisfy the Judge that there is reasonable ground for saying so." Likewise, the
expression "the defendant puts the plaintiff to proof" is insufficient traverse. (See
Harris v Gamble (1878) 7 Ch D 877. The fact that in para 2 of the defence the
respondent denies the amount claimed does not entitle him to unconditional leave to
defend.
OCWS Logistics Pte Ltd v Soon Meng Construction Pte Ltd [1999] 2 SLR 376
- The defendants have not filed an affidavit to substantiate their defence of setoff. They
relied wholly upon the defence filed. Of course O 14 r 4(1) provides that a defendant
may show cause against an O 14 application by “affidavit or otherwise”. The
burden is on the defendant. A bald assertion in a defence filed may not be
sufficient. It would have to depend on the nature of the defence. As stated in
para 14/4/4 of the Supreme Court Practice:
- The use of the term ‘or otherwise’ is not intended to open wide the door for
giving leave to a defendant who has no real defence; the primary obligation
remains on the defendant to ‘satisfy’ the court that there is a triable issue or
question or that there ought to be a trial for some other reason.
4. Reply.
- Plaintiff can reply (Order 14, rule 2(5)).
- Plaintiff replies by filing and serving his affidavit or affidavits on defendant within 14
days after service of defendant’s affidavit (Order 14, rule 2(5)).
5. Evidence.
- No further affidavit shall be received in evidence after plaintiff’s reply affidavit without
leave of the Court (Order 14, rule 2(6)).
- Court can order production of document or examination of persons on oath (Order 14,
rules 4(2)(a) and (b)).
23
Leave to defend (O. 14, r. 4)
4. —(1) The Court may give a defendant against whom an application under Rule 1 is
made leave to defend the action with respect to the claim, or part of a claim, to which the
application relates either unconditionally or on such terms as to giving security or time or
mode of trial or otherwise as it thinks fit.
(2) On the hearing of such an application the Court may order a defendant showing cause
or, where that defendant is a body corporate, any director, manager, secretary or other
similar officer thereof, or any person purporting to act in any such capacity —
(a) to produce any document; and
(b) if it appears to the Court that there are special circumstances which make it desirable
that he should do so, to attend and be examined on oath.
6. Court’s Role.
- Not for Court to go into merits as complete defence need not be shown. –
Jacobs v Booths Distillery Co (1901) 85 LT 262.

- Ord. 14 was not intended to shut out a defendant who could show that there was a
triable issue applicable to the claim as a whole from laying his defence before the
Court, or to make him liable in such a case to be put on terms of paying into Court as a
condition of leave to defend.
- It should merely ascertain whether there are “triable issues” of fact or law i.e.
“reasonable doubt” or “doubt”10.
• If there are triable issues of law or fact, summary judgment will not be given.
Jones v Stone [1894] AC 122 on 124

- Order 14 is "Intended only to apply to cases where there is no reasonable doubt that a
plaintiff is entitled to judgment and where, therefore, it is inexpedient to allow a
defendant to defend for mere purposes of delay." Lord Halsbury in Jones v Stone
describes the standard of proof required for summary judgment as requiring 'no
reasonable doubt'.
Thompson v Marshall [1880] 41 LT 720

- Leave to defend must be given unless it is clear that there is no dispute as to facts or
law which raises a reasonable doubt that the plaintiff is entitled to judgment (Jones
v. Stone [1894] A.C. 122; Thompson v. Marshall (1880) 41 L.T. 720)
Habibullah Mohd Yousuff v. Indian Bank [1999] 3 SLR 650 at p.655

- Held: Under Order 14, rule 3(1), summary judgment should not be given where the
defendant “satisfies the Court … that there is an issue or question in dispute which
ought to be tried”. The power to give summary judgment under Order 14 is intended
only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to
judgment, and where it is inexpedient to allow a defendant to defend for mere purposes
of delay.
24
- On the facts of the case, the appellant had adduced sufficient evidence to raise a triable
issue. The appeal against the granting of the summary judgment was allowed.
- An exception is when dealing with triable issues of law as defendant cannot rely on
arguability of point11.
European Asian Bank Ltd v Punjabi Sind Bank [1983] 2 AER 508
- Lord Justice ROBERT GOFF:
- If the Judge has already decided, on the evidence, that there is a triable issue on a
question of fact it must in the very nature of things be unlikely that this Court will
interfere with his decision and decide that no trial should take place; because, where
such a conclusion has already been reached by a Judge, this Court will be very
reluctant to hold that there is no issue or question which ought to be tried. But where
the appeal raises a question of law, this Court may be more ready to interfere.
Moreover, at least since Cow v. Casey, [1949] 1 K.B. 474, this Court has made it
plain that it will not hesitate, in an appropriate case, to decide questions of law
under O. 14, even if the question of law is at first blush of some complexity and
therefore takes "a little longer to understand ". It may offend against the whole
purpose of O. 14 not to decide a case which raises a clear-cut issue, when full
argument has been addressed to the Court, and the only result of not deciding it will
be that the case will go for trial and the argument will be rehearsed all over again
before a Judge, with the possibility of yet another appeal. The policy of O. 14 is to
prevent delay in cases where there is no defence; and this policy is, if anything,
reinforced in a case such as the present, concerned as it is with a claim by a
negotiating bank under a letter of credit
- Chatbrown Ltd v Alfred MaAlpine Construction (Southem) Ltd 35 BLR 45 on 53 and

54 (can’t find)
Home & Overseas Insurance Co Ltd v Mentor Insurance Co (U.K.) Ltd [1989] 1
Lloyds 473
- Held, by C.A. (PARKER, LLOYD and BALCOMBE, L.JJ.), that
(1) there was no doubt that the question raised was a serious, difficult and important
one which deserved mature consideration; the plaintiff was not entitled to summary
judgment
- Lord Justice Parker - I shall shortly consider the authorities relating to the way in
which the Court should deal with O. 14 applications when countered by an application
for a stay based on an arbitration clause. Before doing so, however, I venture to make
some general observations on the question of O. 14 applications both when standing
alone and when countered by a stay application.
- The purpose of O. 14 is to enable a plaintiff to obtain a quick judgment where
there is plainly no defence to the claim. If the defendant's only suggested defence is
a point of law and the Court can see at once that the point is misconceived the plaintiff
is entitled to judgment. If at first sight the point appears to be arguable but with a
relatively short argument can be shown to be plainly unsustainable the plaintiff is also
entitled to judgment. But O. 14 proceedings should not in my view be allowed to
25
become a means for obtaining, in effect, an immediate trial of an action, which will be
the case if the Court lends itself to determining on O. 14 applications points of law
which may take hours or even days and the citation of many authorities before the
Court is in a position to arrive at a final decision.
In cases where there is an arbitration clause it is in my judgment the more necessary
that full scale argument should not be permitted. The parties have agreed on their
chosen tribunal and a defendant is entitled prima facie to have the dispute decided by
that tribunal in the first instance, to be free from the intervention of the Courts until it
has been so decided and thereafter, if it is in his favour, to hold it unless the plaintiff
obtains leave to appeal and successfully appeals.
- In the case of a commercial arbitration the above remarks apply with even greater
force, perhaps especially when the dispute turns upon construction, or the implication
of terms or trade practice. Arbitrators and umpires in the same business or trade as the
parties are certainly as well or better able than the Court to judge what the parties
must be taken to have meant or intended by the words or phrases they have used, to
judge what the parties would at once have replied if an innocent bystander had asked
what was to happen in a certain event not dealt with by the contract, and to know what
are the practices in the trade. Not only is the defendant entitled to have the dispute
decided in the first instance by such persons but the Court should not in my view, save
in the clearest of cases, decide the question without the benefit of their views.
- In very clear cases a plaintiff is no doubt entitled to his summary judgment
notwithstanding the clause, but when a plaintiff seeks immediate judgment in other
than a clear case and resists the submission of the dispute to the tribunal upon which
he has agreed, one is bound to wonder whether the course which he has taken is
prompted by the knowledge that the chosen tribunal with its more intimate knowledge
of the trade may not reach a conclusion adverse to him in respect of which he might
either fail to obtain leave to appeal or if he did obtain leave, fail to demonstrate any
error.
- The foregoing observations may at first sight appear to conflict with observations in
this Court by Lord Justice Robert Goff in European Asian Bank A.G. v. Punjab and
Sind Bank (No. 2), [1983] 1 Lloyd's Rep. 611 at p. 616; [1983] 1 W.L.R. 642 at p. 654
and by Lord Justice Kerr in Zakhem International Construction Ltd. v. Nippon Kokan
KK, [1987] 2 Lloyd's Rep. 596 and Nichimen Corporation v. Gatoil Overseas Inc.,
[1987] 2 Lloyd's Rep. 46 at p. 51. In the last of these cases Lord Justice Kerr said:
It has been said again and again in this Court in recent years that it is not sufficient to
conclude that the defendants have an arguable case if the issue turns on a point of law,
or other material, which enables the Court to form a definitive view on the rights of
the plaintiffs there and then . . . In a case like the present, the Judge should only give
leave to defend if, after full consideration of the material before him, he is satisfied
that the plaintiff is not entitled to judgment there and then.
The observations which have been made were however not intended, in my judgment,
to indicate any more than that it was insufficient for the defendant to raise an arguable
point of law if that point could be readily demonstrated to be unsustainable. They
cannot be taken as granting to a plaintiff the right to an accelerated and lengthy trial
on a difficult point of law.
26
- In American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396. Lord Diplock when
speaking of applications for interlocutory injunctions said:
The court no doubt must be satisfied that the claim is not frivolous or vexatious; in
other words, that there is a serious question to be tried.
- It is no part of the court's function at this stage . . . to decide difficult questions of law
which call for detailed argument and mature consideration. There are matters to be
dealt with at the trial.
With the substitution of the word "defence" for "claim" in the first sentence of this
citation it is in my view applicable to O. 14 proceedings. If the point of law relied
upon by the defendant raises a serious question to be tried which calls for detailed
argument and mature consideration the point is not suitable to be dealt with in O. 14
proceedings.
Jaya Kumar v Subramaniam, etc [1987] 2 MLJ 432.

- Held - Where the issue raised was one of law and it was clear-cut and could be
decided upon, then the judge hearing it, or, upon an appeal, the appellate court,
had to decide on it rather than to let it go to trial.
- LP Thean J - It has been repeatedly held by the Court of Appeal in England that on an
application under O 14 where the issue raised is one of law and it is clear-cut and can
be decided upon, then the judge hearing it, or, upon an appeal, the Court of Appeal,
should decide on it rather than to let it go to trial. In Verrall v Great Yarmouth
Borough Council [1981] QB 202, Roskill LJ (as he then was) said:
- ... We have often said in this court in recent years that where there is a clear-cut issue
raised in O 14 proceedings, there is no reason why the judge in chambers - or, for that
matter, this court - should not deal with the whole matter at once. Merely to order a
trial so that the matters can be re-argued in open court is to encourage the law`s delays
which in this court we are always trying to prevent. The first point fails.
- Similar observations were made by Robert Goff LJ (as he then was) in European
Asian Bank AG v Punjab and Sind Bank (No 2) [1982] 2 Lloyd`s Rep 241:
- ... Moreover, at least since Cow v Casey [1949] 1 KB 474, this court has made it plain
that it will not hesitate, in an appropriate case, to decide questions of law under RSC
O 14, even if the question of law is at first blush of some complexity and therefore
takes `a little longer to understand`. It may offend against the whole purpose of O 14
not to decide a case which raises a clear-cut issue, when full argument has been
addressed to the court, and the only result of not deciding it will be that the case will
go for trial and the argument will be rehearsed all over again before a judge, with the
possibility of yet another appeal; see Verrall v Great Yarmouth Borough Council
[1981] QB 202, 215, 218, per Lord Denning MR and Roskin LJ. The policy of O 14 is
to prevent delay in cases where there is no defence; and this policy is, if anything,
reinforced in a case such as the present, concerned as it is with a claim by a
negotiating bank under a letter of credit: compare Bank fur Gemeinwirtfchaft
Aktiengeselischaft v City of London Garages Ltd [1971] 1 WLR 149, 158 per Cairns
LJ, a case concerned with a claim on a bill of exchange by a holder in due course.
- Court wil only give interlocutory judgement – “ interloc judgement for plaintiff with
damages to be assessed”. Damages will be assessed on another day.
27
7. Orders Court can make. (And costs that follow.)
- Note that with regards to costs, look at Order 59 for the range of costs awarded.
Different scales apply depending on the court. De minimis arguments on how much
costs you are entitled.
- In interlocutory arguments costs is usually reserved. If $1 damages the party awarded it
has to pay costs.
(a) Dismiss the application with costs –
Costs (O. 14, r. 7)

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

- 1. Statement of Claim was incomplete and incorrect;
Gold Ores Reduction Co v Pain [1892] 2 QB 14

- An indorsement of a claim for interest on a writ of summons, in order to be a good
special indorsement, within the meaning of Order III., r. 6, and Order XIV., r. 1, must
shew, either that the interest claimed is payable under an agreement, or that it is fixed
by statute
- An indorsement on a writ stated that the claim was for instalments on shares in the
plaintiff company, payable under terms of allotment, and for interest thereon at the rate
of 10 per cent. per annum, from the respective dates when the instalments became
payable until payment or judgment, and gave particulars of the instalments, with
interest calculated accordingly, and claimed interest on the principal moneys at 10 per
cent. from date of writ until payment or judgment. It appeared from an affidavit that by
the articles of association 10 per cent. interest was payable:--
Held, that, as the writ did not shew that the interest was payable under an
agreement, there was not a good special indorsement; and the fact that the
affidavit shewed an agreement to pay interest could not make it good, and
judgment could not be entered under Order XIV.
- MATHEW, J.
This appeal must be dismissed. It is most important that a defendant should know
from the writ what the exact claim against him is. The cases which have been
referred to in argument establish that, in order to constitute a good special indorsement,
within the meaning of Order III., r. 6, and Order XIV., r. 1, the writ should shew that
interest claimed is payable under a contract, or, as in the case of a bill of exchange, is an
amount fixed by statute. In the present case the writ does not shew that the 10 per cent.
Interest which is claimed is payable under any contract. A passage in the judgment of
28
the Court in Sheba Gold Mining Co. v. Trubshawe is relied upon for the plaintiffs as
shewing that the affidavits may be looked at in order to prove how the claim arose. That
case, however, was decided on the form of the indorsement, and on the form only; but
the Court, having come to the conclusion that the indorsement was defective, looked at
the affidavits, and found that the plaintiff ought not to have treated the claim for interest
as a liquidated demand.
- A. L. SMITH, J.
I am of the same opinion. The law has been completely settled by the recent decisions,
and it is established beyond doubt that where interest is claimed by a specially indorsed
writ it must either be payable by agreement or fixed by statute. In the present case the
writ was issued in August, 1891. At that time it might have passed muster as a valid
specially indorsed writ; but the law has since been explained in such a way as to shew
that the indorsement is invalid. There is nothing on this writ to shew that the interest is
payable by agreement or fixed by statute, and therefore the indorsement is contrary to
the law as laid down subsequently to the date of the writ. It is contended that the
judgment in Sheba Gold Mining Co. v. Trubshawe shews that the indorsement is not
necessarily conclusive, and that the affidavits may be looked at; but what was said there
was that although the claim might be correct in form, if it appeared in fact that the
interest was claimable only as damages, there would not be a good special indorsement.
This does not support the present plaintiffs' contention.
Sheba Gold Mining Co v Trubshawe [1892] 1 QB 674

- …we think that the claim in the present case departs from the requirements of a special
indorsement in two respects: (1.) it does not shew that the interest is claimed as being
due by contract; (2.) no definite sum is claimed. All the forms given in Appendix C, s.
IV., in which interest is claimed are cases of interest due either by express covenant, or
upon bills or notes. By s. 57 of the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61),
the last-mentioned interest is to be deemed liquidated damages; and we think that a
statement of claim which demands interest, but shews no legal liability to pay it, is
upon general principles defective. Again, all the forms claiming interest mention the
specific sum claimed. We think this is as it should be. It is important that a man, who is
to be proceeded against summarily for judgment, should know exactly how much he
has to pay if he wishes to stay the action, and should not be called upon to take the risks
of calculation. A claim for interest which is not thus specific departs in a material and
important respect from the forms to which a special indorsement is required to
conform.
- … We think that the question what a plaintiff "seeks to recover" is not, upon an
application for judgment under Order XIV., concluded necessarily by the indorsement
on the writ, especially if it be ambiguous. In Rodway v. Lucas [FN23], the indorsement
was indistinguishable from that in the present case. The application there was to set the
judgment aside. The Court held that - after judgment, at any rate - the indorsement was
capable of being construed as covering the case of interest due under a contract, and,
there being no affidavit of merits, refused to set the judgment aside; but they added that,
if a case should arise in which the special indorsement should be resorted to, although
the interest was, in fact, claimable only as damages, they would set aside the judgment,
with costs, as an abuse of the process of the Court. In other words, the Court would
29
disregard the form and look to the substance, and if satisfied upon the affidavits that,
however correct the claim might be in form, the case was one in which the plaintiff had
no business to treat the interest as a liquidated demand, and attempt to get the benefit of
the special indorsement, they would prevent him from resorting to a remedy to which
he was not entitled. It seems to us that the present case falls precisely within this
principle. No one suspects the advisers of the plaintiffs of an intention to strain or
misapply the process of the Court; but it is plain from their own affidavits that they
have, in fact, been attempting to get judgment under Order XIV. for unliquidated
damages in the shape of interest. It matters not in such a case whether the writ be right
or wrong in form. It is not a case in which they have any business to resort to Order
XIV., and they must take the consequences.
- 2. or where the plaintiff knew that the defendant relied on a contention which
would entitle him to unconditional leave to defend (r 7(1)), M Pocock v A.D.A.C
[1952] 1 TLR 29 (can’t find the point in the Westlaw case summary)
- def wins application and he gets costs. Scale does not aply here, which only applies
for judgement given. With dismissal, court will give either fixed or taxed costs.
- Fixed costs more adv to winning party. def’s costs fixed at $xxx to be paid by
plaintiff forthwith. Amt depends on whether what has been asked for is reasonable.
- Plaintiff pays costs because costs follow the event
(b) Judgment (rule 3(1)). – either judgement with costs or judgement without costs
(former more usual)
Judgment for plaintiff (O. 14, r. 3)

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

• 1. there are NO triable issues of fact or law or bona fide defence raised, and if there is
the absence of “some other reason” for there to be a trial.
• Eg if bounced check – then court wil give final judgement with costs fixed at $xxx.
Because damages fixed. Turn to order 59 – scale of costs payable. With final
judgemnt, look at costs on scale.
Roberts v Plant [1895] 1 QB 597

- In an action upon a cheque by payee against drawer the indorsement on the writ was
in accordance with the form prescribed by Order III., r. 6, with the exception that it
30
did not state that notice of dishonour had been given to the drawer. After taking out a
summons for judgment under Order XIV., the plaintiff, without leave, amended the
indorsement by adding a statement that notice of dishonour had been given. An order
was subsequently made giving leave to enter judgment:--
Held, that, there being a good special indorsement at the time of the adjudication on
the summons, the order was rightly made.
- LORD ESHER M.R.
The substance of Order XIV. is that where, with reference to a claim within Order
III., r. 6, the plaintiff can shew to the satisfaction of the judge that he has a clear
case against the defendant, which the defendant cannot possibly answer, the
judge may give the plaintiff leave to enter judgment forthwith, without the
expense and delay which would be involved in letting the case go on to trial in the
ordinary way. That is a stringent power to give, and therefore the Courts have said
that its exercise must be strictly watched, in order to see that the plaintiff has brought
himself within the scope of the provisions of the order; but that does not mean that
effect will be given to every unsubstantial technicality that may be set up by way of
objection to proceedings under the order. The meaning is that care must be taken to
see that the plaintiff has, in accordance with the terms of the order, made out a cause
of action to which the defendant can have no possible defence.
- In the present case it is clear that the defendant gave the plaintiff a cheque upon his
bankers which was dishonoured. The defendant does not deny that he is indebted to
the plaintiff in the amount of the cheque, but he sets up a number of technical
difficulties. He says that, when the writ was issued, the plaintiff had not brought
himself within the terms of Order XIV., because he had not indorsed on the writ a
complete cause of action, not having stated that notice of dishonour was given. It was
argued that there was no power of amendment before adjudication on the summons
taken out; but the proceedings must be commenced afresh, thereby causing useless
expense. In my opinion, the power of amendment in this case is just the same as in
any other case. An amendment ought not to be allowed if it will occasion injustice; but
if it can do no injustice, and will only save expense, it ought to be made. It was said
that under the circumstances of the case the amendment could not be made without
leave. I can see no ground for that contention. I think the plaintiff was entitled to make
the amendment. Therefore, when the case came before the tribunal for adjudication
under Order XIV., the special indorsement was in due form. The defendant, who
cannot deny that he owes the money, says that a fresh summons ought to have been
taken out after the amendment. Could there possibly be a more frivolous technicality?
The result would be a mere waste of money.
- Then the point is taken that the affidavit verifying the cause of action is insufficient. It
is not necessary to decide the question whether the general statement in the first
paragraph of the affidavit, which refers to the particulars indorsed on the writ, would
have been sufficient, having regard to the fact that the indorsement as originally
drawn did not allege notice of dishonour. The affidavit contains an allegation, as one
of the reasons why there could be no defence, that after the dishonour of the cheque
the defendant admitted his liability, and promised to pay the amount by instalments. It
is suggested that the allegation so made only imports that the defendant admitted
liability on the consideration for the cheque, not on the cheque. But that suggestion
31
appears to me frivolous. It has been held that, if a person who has drawn a cheque
after dishonour of it makes such a promise to pay as is here alleged, that promise does
away with the necessity for proving notice of dishonour, and is equivalent to an
admission that such notice has been given. Such a statement unanswered shews that
there can be no possible defence to the action. Therefore, I think that the decision of
the Divisional Court was right, and this appeal must be dismissed.
Anglo-Italian Bank v Wells [1878] 38 LTR 197

- In summary proceedings the court must be careful to give proper protection against
evidence being introduced at the last minute. There was no different standard of
proof required to obtain judgment under Order 14. Proof must be clear and
adequate on the balance of probabilities. Where the judge was satisfied that there
was no defence and no arguable point then it was his duty to give judgment. Therefore
a hope that something would turn up upon further investigation was not a sufficient
reason for refusing to enter judgment.
• 2. Absence of “some other reason” for there to be a trial (rule 3(1)).

• 3. When counterclaim is foreign to the plaintiffs claim which is admitted, thereby
disentitling a stay on the judgment so entered (a counterclaim doesn’t necessarily set
off the main claim, it all depends)
o A.B. Contractors Ltd v Flasherty Bros Ltd [1986] 16 BLR 8; Anglian Building
Products Ltd v W & C French (Construction) [1986] 16 BLR 1 (cannot find both
cases)
• 4. Where liability is clear but damages have to be assessed under Order 37, judgment
can still be given.
• White Book, paras 14/3 – 4/2 and 14/3 – 4/13.
(c) Judgment with stay (rule 3(2)).

- When there is clearly no defence to the plaintiff’s claim, but the defendant raises a
plausible counterclaim.16 ie court gives judgment on action but because of
counterclaim, judge will wait for case to go to trial and then dispose of it. If
counterclaim is related to judgement, court more inclined to give judgement with stay.
- Order 14 rule 3(2)
- When there is clearly no defence to the plaintiff’s claim, but the Defendant raises a
plausible counterclaim, the Court may grant the plaintiff judgment with a stay of
execution.
Invar Realty Pte Ltd v Kenzo Tange [1990] 3 MLJ 388

- Held – Yung Pung How J - If there was no defence to a claim other than a plausible
counterclaim, than judgment had to be entered on the claim. The overriding
consideration was that if the claim was undisputed other than by means of a
counterclaim, the claimant must not be put to the expense of proving his claim, even if
no great expense would be incurred. The plaintiffs had by their pleadings admitted in
the clearest terms that the second defendants` fees were owed to them, computing this
32
to the very last cent. In the circumstances, the second defendants were entitled to
judgment with a stay of execution.
- White Book, para l4/3-4/13.
(c*) judgment in part stayed pending determination

- Test – nexus between claim and counterclaim
(d) Unconditional leave to defend (rules 3(1) and 4(1))

- usu costs in the cause
- but in theory, plaintiff has lost
Judgment for plaintiff (O. 14, r. 3)

3. —(1) Unless on the hearing of an application under Rule 1 either the Court dismisses
the application or the defendant satisfies the Court with respect to the claim, or part of a
claim, to which the application relates that there is an issue or question in dispute which
ought to be tried or that there ought for some other reason to be a trial of that claim or
part, the Court may give such judgment for the plaintiff against that defendant on that
claim or part as may be just having regard to the nature of the remedy or relief claimed.
Leave to defend (O. 14, r. 4)

4. —(1) The Court may give a defendant against whom an application under Rule 1 is
made leave to defend the action with respect to the claim, or part of a claim, to which the
application relates either unconditionally or on such terms as to giving security or time or
mode of trial or otherwise as it thinks fit.
(2) On the hearing of such an application the Court may order a defendant showing cause
or, where that defendant is a body corporate, any director, manager, secretary or other
similar officer thereof, or any person purporting to act in any such capacity —
(a) to produce any document; and
(b) if it appears to the Court that there are special circumstances which make it desirable
that he should do so, to attend and be examined on oath.
- The Court may grant the defendant unconditional leave to defend when there is:
o 1. Triable Issue of Fact - When a triable issue of fact has been raised: Order 14, rule
3(1) Costs awarded are usually costs in the cause.
Habibullah Mohd Yousuff v. Indian Bank [1999] 3 SLR 650

o The appellant Habibullah Mohamed Yousuff (‘Yousuff’) was a director of Sadeco Sarl
Pte Ltd (‘Sadeco’) Yousuff applied on Sadeco’s behalf to the respondent the Indian
Bank (‘the bank’) for changes to the existing credit facilities that Sadeco had with the
bank. As security, the bank required joint and several guarantees from four individuals,
including Yousuff. In September 1995, Yousuff resigned from Sadeco. His two
requests to the bank to be released from the guarantee were refused. The bank later
sued Sadeco and its guarantors for recovery of sums owed and judgment in default of
appearance was obtained against Sadeco which was wound up. The bank obtained
summary judgment against Yousuff. Yousuff appealed and the High court dismissed his
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appeal on the grounds that - (1) there was no triable issue and (2) there was no ‘some
other reason’ for trial. Yousuff contended that there were ‘unusual features’ in the
bank’s relationship with the companies under the seventh defendant Raja’s control
which substantially enhanced Yousuff’s risk as a guarantor. He also argued that these
‘unusual features’ were known to the bank and since the bank failed to disclose these
matters, He should be discharged from the guarantee.
o Held, allowing the appeal, with unconditional leave to defend:
o (1) All that was necessary at the O 14 stage was for Yousuff to adduce evidence
showing that he had reasonable grounds for setting up a defence based on ‘unusual
features’ surrounding the grant of credit facility. The fact that there was a formal report
of investigation against the chairman of the bank’s head office, the deputy general
manager of the bank’s Singapore branch and Sadeco’s controller Raja for loans made
without regard to security, performance or banking regulations indicated that there were
‘unusual features’ in the grant of credit facility.
o (2) An additional ‘unusual feature’ was the fact that the bank continued to purchase
from Sadeco large amounts of bills drawn on the same drawees even after earlier bills
had been dishonoured upon presentation.
o (3) The bank’s behaviour was even more unusual in the light of its failure to secure
adequate security for the loans to Sadeco. Yousuff’s assets comprised principally
shares in Sadeco which were worth nothing.
o (4) Yousuff’s contention that he was merely a nominee director and the operations
were run by Raja and that the bank owed him a duty to disclose was another reason for
the matter to be tried.
o (5) A ‘principal debtor’ clause did not convert a contract of guarantee into a contract
of indemnity. The bank could not now argue that Yousuff would still be liable as a
principal debtor as its statement of claim proceeded against Yousuff on the basis of his
liability as a guarantor and not as a principal debtor.
o (6) Yousuff had adduced sufficient reasons to raise a triable issue and to be given
unconditional leave to defend.
o Para 21 - Under O 14 r 3(1) of the Rules of Court, summary judgment should not be
given where the defendant ‘satisfies the Court … that there is an issue or question in
dispute which ought to be tried’. The power to give summary judgment under O 14 is
intended only to apply to cases where there is no reasonable doubt that a plaintiff is
entitled to judgment, and where it is inexpedient to allow a defendant to defend for
mere purposes of delay; Jones v Stone [1894] AC 122. Where a defendant shows that
he has a fair case for defence or reasonable grounds for setting up a defence, or
even a fair probability that he has a bona fide defence, he ought to have leave to
defend; Ironclad (Australia) Gold Mining Co v Gardner (1887) 4 TLR 18, Ward v
Plumbley (1890) 6 TLR 198.
- 2. • when a triable issue of fact has been raised (see, cases cited in (v)) above.
 Where both parties equally credible – balance of proof: burden is on plaintiff.
So def will win.
 Court will not penalize plaintitf with costs at this stage even if def gets
unconditional leave to defend. Depends on who wins at end of day. Court will
order costs in the cause.
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o 3. “Some Other Reason” - When there is “some other reason” for trial: Order 14, rule
3(1)
Miles v Bull [1968] 3 AER 632

- it sometimes happens that the defendant may not be able to pin-point any precise issue
or question in dispute which ought to be tried, nevertheless it is apparent that for some
other reason there ought to be a trial for e.g. full discovery or cross-examination is
required.
- The defendant and her husband separated, and the husband thereafter sold the
matrimonial home, in which the defendant was still living, to the plaintiff. The sale
was for the sum of £10,000, completion taking place on the day on which the contract
was made. The plaintiff subsequently brought an action against the defendant for
possession of the property, and sought summary judgment under Order 14. The Master
gave the defendant unconditional leave to defend the action. On appeal by the
plaintiff, the defendant sought to contend by way of defence to the action that the sale
to the plaintiff had been a sham with the object of depriving her of her right, as against
the husband, to occupy the property:-
Held, dismissing the appeal, that, on the evidence before the court, the defendant had
failed to establish that she had an arguable defence to the plaintiff's claim; but that,
since the transaction was one which, in the interests of justice, ought to be carefully
scrutinised, especially as the relevant facts were within the control of the plaintiff,
there "ought for some other reason to be a trial" within the new wording of R.S.C.,
Ord. 14, and the defendant had rightly been given leave to defend the action.
- Mergarry J - It has been contended that the wife should have leave to defend because
she has fairly arguable prospects of establishing that the sale in this case was a mere
sham. This contention, I was told, was advanced for the first time before me. No
alternative ground of defence has been put forward by the defendant. The various
affidavits filed on her behalf contain much matter relating to the matrimonial
proceedings and comparatively little directed to establishing any defence to the Order
14 summons with which I am concerned. The later affidavits filed after the
adjournment contain something, though not much; and in the main this is directed to
the secrecy of the sale rather than it being a sham. Of the grounds of defence now
relied upon. I can see nothing which carries any real weight in establishing the
transaction as a mere sham. It is said that the plaintiff was at all times aware that there
was a matrimonial dispute (a fact which the plaintiff denies) and that the defendant
occupied the premises in question. It is also pointed out that the plaintiff bought
subject to special condition J in the contract. It was further urged in argument that it is
at least unusual for completion to take place on the day upon which the contract was
made. Let full weight be given to all those considerations, and still there is nothing
which begins to establish that the sale was a sham. £ 10,000 is no derisory sum: there
is no suggestion that the plaintiff had not truly become the purchaser: nor is there any
suggestion that the sale was not what it appears to be. When I say "there is no
suggestion" I do not forget what was said in argument; but what I have to bear in mind
is what the evidence shows. The second wave of affidavits, indeed, brought some
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circumstantial evidence to show that the sale was in fact in its essentials an ordinary
conveyancing transaction.
- Accordingly, if the question is whether or not the defendant has an arguable defence to
the claim, I would have to answer No: for as matters stand I can perceive no such
defence. All that can be said is that this is a transaction which ought to be scrutinised
with some care; for plainly it bears something of the appearance of a device to evict
the defendant. A device may, indeed, be a perfectly genuine transaction and so sham:
that it was devised for a particular purpose by no means necessarily implies that it
pretends to be what it is not. However, if a transaction is carried through not for its
own sake, but in order to achieve some ulterior purpose, it may be found on
examination that it has travelled the road from artifice and artificiality to sham.
- In these circumstances, I think that it is necessary to examine the precise wording of
Order 14. Under the former Order 14. r. 1, a defendant could obtain leave to defend if
he satisfied the judge that he had a good defence to the action on the merits, or
disclosed "such facts as may be deemed sufficient to entitle him to defend the action
generally." I do not see how that can be said to be the case here. The language of
Order 14 has, however, been changed, and it is the new language that I must apply.
Under rules 3 and 4 of the present Order 14, the defendant can obtain leave to defend
if (and I read from rule 3 (1)) the defendant satisfies the court "that there is an issue or
question in dispute which ought to be tried or that there ought for some other reason to
be a trial." These last words seem to me to be very wide. They also seem to me to
have special significance where, as here, most or all of the relevant facts are under the
control of the plaintiff, and the defendant would have to seek to elicit by discovery,
interrogatories and cross-examination those which will aid her. If the defendant
cannot point to a specific issue which ought to be tried but nevertheless satisfies
the court that there are circumstances that ought to be investigated, then I think
that those concluding words are invoked. There are cases when the plaintiff
ought to be put to strict proof of his claim, and exposed to the full investigation
possible at a trial; and in such cases it would, in my judgment, be wrong to enter
summary judgment for the plaintiff. In the present case the plaintiff's evidence
initially consisted of a single affidavit in which brevity could scarcely be carried
further. He has now amplified this by further evidence, but this is certainly not
exhaustive or conclusive. The words "there ought for some other reason to be a trial"
seem to me to give the court adequate powers to confine Order 14 to being a good
servant and prevent it from being a bad master. If I may adapt the language of Lord
Parker of Waddington in Daimler Company Ltd. v. Continental Tyre & Rubber Co.
(Great Britain) Ltd., [1916] 2 AC 307 referred to in the notes to Order 14 in the
Supreme Court Practice, 1967, p. 122, if the circumstances of the case are "such as
to require close investigation," this will "preclude the propriety of giving leave to
sign judgment under Order 14, r. 1." The question is thus whether this is such a
case. I think it is. In my judgment "there ought for some other reason to be a trial";
and the reason is that of justice. By carrying through a transaction at unusual speed the
defendant's husband is seeking to enable the plaintiff to do what he himself cannot do,
namely, evict the defendant from her home. The husband has whatever rights the law
gives him, and so has the plaintiff; but in the circumstances of the case I do not think
that it would be just if the plaintiff were able to enforce the rights which he claims
36
without being put to strict proof that they do enable him to evict the defendant. I was
told that, in granting leave to defend, Master Jacob said that the case was "too near the
bone for Order 14." That, if I may say so, seems to me to summarise admirably what I
have tried to express in greater detail. Order 14 is for the plain and straightforward,
not for the devious and crafty. There is here a case for investigation, and so not for
summary decision.
- I also bear in mind what Bramwell L.J. said in Harrison v. Bottenheim (1878) 26
W.R. 362, 363. Even on the old wording of Order 14, "though a man cannot
show a defence, still, if he has shown enough to entitle him to interrogate the
plaintiff, the case is not within Order 14, and should not be pursued without his
being allowed to defend."
- Bramwell L.J. also referred to the remarkable fact that that action was on a bill of
exchange three years old, and so the case was one of a stale claim, a circumstance
perhaps matched by the remarkable promptitude of completion in the case before me.
I do not, of course, decide that this is a case in which leave to administer
interrogatories should be given, for that point is not before me for decision; but with
the relevant facts peculiarly within the knowledge of the husband and the plaintiff, it
seems to me that there is at least a strong prima facie case for the interrogatories,
discovery and cross-examination which will be available if the case goes to trial, but
which will be shut out if there is summary judgment. In those circumstances, I
consider that the right course to take is to dismiss the appeal, and allow the
defendant to defend the action; and this I do.
Concentrate Engineering Pte Ltd v. Control Land [1990] SLR 514

- Held: Chan Sek Keong J (following Miles v. Bull [1969] 1 QB 258), held that the
circumstances disclosed in this case called for further investigation. The
circumstances and audacity with which the fraud was carried out and the absence of
an explanation by the directors of the plaintiffs constituted “some other reason” for a
trial in terms of Order 14, rule 3(1). He held that greater injustice would be done to the
defendants if they were not given leave to defend.
o – but rare. Be circumspect abt using this!
- Triable issue of law has been raised and the Court resolves the point in the defendant’s
favour
 Counterclaim - When defendant sets up a bona fide counterclaim (set off of claim
against counterclaim) arising out of the same subject-matter of the action and connected
with grounds of defence, even if the defendant admits whole of the claim. If the
counterclaim is separate and not arising out of the same subject-matter, the defendant
cannot make the counterclaim, and judgment may be given in favour of the plaintiff.
• White Book, paras 14/3 – 4/10, 14/3 – 4/11, 14/3 – 4/9 and 14/3-4/13.
Morgan & Son Ltd v S Martin Johnson & Co [1949] 1 KB 107

- The plaintiffs by specially indorsed writ claimed from the defendants a certain sum for
the storage of vehicles. The defendants by their affidavit acknowledged that the sum
37
claimed would have been due but for the fact that the plaintiffs had negligently either
delivered one of the vehicles to the wrong person or allowed it to be stolen. The judge
in chambers gave the plaintiffs leave to sign judgment for the amount of their claim, but
granted a stay of execution pending trial of the counterclaim. On the defendants' appeal
- Held, that, as the facts set out in the defendants' affidavit would have supported a
claim to an equitable set off against the plaintiffs' claim, the judge should have
given the defendants unconditional leave to defend the action, and should not have
allowed the plaintiffs to sign judgment.
- Tuckler LJ - In my view, it all comes down to this: in circumstances such as the present,
would a court of equity have granted relief by way of equitable set-off in proceedings
where both claim and what for convenience I call counterclaim were pending before
that court?
(e) Conditional leave to defend (rule 4(1)) (give the defendant his day in court).
- not a win for either
- a) condition met => costs in the cause
- failure => judgement entered. Costs follow the event. Person who applied for order 14
gets costs (by def to plaintiff)
- 1. The Court would grant the defendant conditional leave to defend the action if there is
good ground in the evidence for believing that the defence set up is a sham or if the
court is prepared very nearly to give judgment for the plaintiff
MV Yorke Motors v Edwards [1982] 1 AER 1024

- In an Order 14 context, where a judge was very close to giving summary judgment but
on a shadowy defence was prepared to give leave to defend upon condition of money
being paid into court, what was he to do where a defendant presented evidence that it
was impossible for him to fulfil the condition which the judge was minded to make?
The House of Lords held that the Court of Appeal had been entitled to infer from the
evidence before it that, though it might be difficult it would not be impossible for the
defendant to find the sum required as an earnest of his defence being put forward in
good faith. In that context, where a court was considering the imposing of conditions
for the purposes of giving leave to defend in a tightly balanced application for
summary judgment, the court did then and there have to take a decision as best it
could about what appropriate level of payment into court might be possible.
- Lord Diplock, with whom the other members of the House agreed, accepted the
following propositions:
"(i) where a defendant seeks to avoid or limit a financial condition by reason of his own
impecuniosity the onus is upon the defendant to put sufficient and proper evidence
before the court. He should make full and frank disclosure.
(ii) It is not sufficient for a legally aided defendant to rely on there being a legal aid
certificate. A legally aided defendant with a nil contribution may be able to pay or raise
substantial sums.
(iii) A defendant cannot complain because a financial condition is difficult for him to
fulfil. He can complain only when a financial condition is imposed which it is
38
impossible for him to fulfil and that impossibility was known or should have been
known to the court by reason of the evidence placed before it."
- 2. The Court would also grant the defendant conditional leave to defend when it is
of the opinion that the defence is shadowy.
o See Van Lynn Developments Ltd v Pelias Construction Co [1969] 1 QB 607 (can’t find
the relevant point in the case)
o White Book para 14/3 – 4/13
o Lonian Bank v Courreur [1969] 1 WLR 78 (can’t find)
o The usual form of condition that the Court imposes is – for the defendant to give
security for the action by way of a banker’s guarantee for the sum of the claim.
(note this is different from security for costs).Only then you can proceed to fight the
trial. If you lose the sum is used to pay the other party as damages.
- Must produce banker’s guarantee or security before can defend. This security is not
security for costs but for judgement sum. That is, if plaintiff deemds that sum claimed
is 100,000, def has to prod security for judgment sum of 100,000
- (Ie order 23 – security for costs; this is diff fr security for judgement sum – gurantee
that has money to pay even if he loses)
 in the form of: banker’s guarantee/ payment into court/solicitor’s undertaking
o but note – def can still take out application for security for costs. Under one of the
categories in previous lecture (eg outside jurisdiction)
 court will look at circumstances of the case
 eg the merits – earlier court found that defence was shadowy. Court wil then
think that order 23 application shld not succeed.
 So whenever there is conditional leave to defend, difficult for def to get hold of
security for costs against def – prima facie.
 Though can still take out such application
 Creative elegance – does not tell us how much weight is put on elements to
grant security for costs. Procedurally, def can still ask for security for costs.
8. Miscellaneous.
- • Right to proceed with residue (Order 14, rule 8) – a judgment for part of the claim is
perfectly acceptable.
 e.g. claim for $100,000, final judgment under Order 14 for $30,000, costs at
Order 59, the rest of the sum unconditional leave to defend, whoever wins at
trial gets costs of Order 14 action today.
Right to proceed with residue of action or counterclaim – Order 14, rule 8

8. —(1) Where on an application under Rule 1 the plaintiff obtains judgment on a claim
or part of a claim against any defendant, he may proceed with the action as respects any
other claim or as respects the remainder of the claim or against any other defendant.
(2) Where on an application under Rule 5 a defendant obtains judgment on a claim or part
of a claim made in a counterclaim against the plaintiff, he may proceed with the
counterclaim as respects any other claim or as respects the remainder of the claim or
against any other defendant to the counterclaim.
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- • When judgment for delivering up of a specific movable property is granted, Court can
order delivery up without option to retain it on payment of assessed value (Order 14,
rule 9).
Judgment for delivery up of movable property (O. 14, r. 9)

9. Where the claim is for the delivery up of a specific movable property and the Court
gives judgment under this Order for the applicant, it shall have the same power to order
the party against whom judgment is given to deliver up the property without giving him
an option to retain it on paying the assessed value thereof as if the judgment had been
given after trial.
- • O14 equally applies to Counterclaims (Order 14, rule 5).20 – def is the plaintiff here.
So he can take order 14.
 When the defendant has served a counterclaim, he may also apply to the Court
for summary judgment on the ground that the plaintiff has no defence to the
counterclaim.
Application for summary judgment on counterclaim (O. 14, r. 5)

5. —(1) Where a defendant to an action begun by writ has served a counterclaim on the
plaintiff and the plaintiff has served a defence to the counterclaim, the defendant may, on
the ground that the plaintiff has no defence to a claim made in the counterclaim, or to a
particular part of such a claim, apply to the Court for judgment against the plaintiff on
that claim or part.
(2) Rules 2, 3 and 4 shall apply in relation to an application under this Rule as they apply
in relation to an application under Rule 1 but with the following modifications:
(a) references to the plaintiff and defendant shall be construed as references to the
defendant and plaintiff respectively;
(b) the words “any counterclaim made or raised by the defendant in” in Rule 3 (2) shall
be omitted; and
(c) the reference in Rule 4 (1) to the action shall be construed as a reference to the
counterclaim to which the application under this Rule relates.
Hua Khian Ceramics Tiles v Torie Construction [1992] 1 SLR 884

- Important parts of the case
- Summary judgment
- 21 There will be no hardship or injustice to a claimant who is content to have his
claim determined at the trial together with the cross-claims against him. But delay in
having to wait for the trial in many cases may cause severe or even irreparable loss to
the plaintiff. Lawton LJ in Ellis Mechanical Services Ltd v Wates Construction Ltd at
p 36 said
- One of the perils of commercial life for sub-contractors in the building trade is that
there may develop between the main contractor and the building owner a serious
dispute which leads to one or other of them repudiating the main contract. When that
happens the lifeblood of the building trade, namely money, stops. It seems to me that
40
the administration of justice in our courts should do all it can to restore that lifeblood
as quickly as possible.
- The courts are aware of what happens in these building disputes; cases go either to
arbitration or before an official referee; they drag on and on and on; the cash flow is
held up. In the majority of cases because one party or the other cannot wait any
longer for the money, there is some kind of compromise, very often not based on the
justice of the case but on the financial situation of one of the parties. That sort of
result is to be avoided if possible. In my judgment it can be avoided if the courts
make a robust approach, to the jurisdiction under O 14.
- 22 In the present day context, it is in summary judgment applications that the
defendant raises the set-off defence. In order to make a robust approach it is the duty
of the court to closely examine points of set-off raised by a defendant and to ensure
that the true purpose is not to cause delay to the plaintiff.
- 23 In Invar Realty Pte Ltd v Kenzo Tange Urtec Inc & Anor Yong Pung How J (as
he then was) said that where a defendant objects to an application for summary
judgment based on a cross-claim, the plaintiff’s claim and the defendant’s crossclaim
must be taken separately. If there is no defence to a claim other than a plausible
counterclaim then judgment must be entered on the claim and the crossclaim should
proceed to trial with a stay of execution so that the defendant is not unjustly injured.
- 24 It must be borne in mind that the jurisdiction under O 14 to give leave to
defend and the power to stay execution is essentially a discretionary matter. It is
axiomatic that a defendant who invites the court to exercise the discretionary power
must produce sufficient relevant material for the court to justify a decision in his
favour. Granting a stay of execution is not a matter of course.
Koshida Trading(s) Pte Ltd v Limco Products [1990] 2 MLJ 341

- The plaintiffs were suppliers of RAM microchips (ramchips). The defendants were
manufacturers of personal computers and had been buying ramchips from the
plaintiffs. By the present action, the plaintiffs claimed a sum of money that the
defendants acknowledged they owed. However, the defendants submitted that they
were entitled to unconditional leave to defend as they had a set-off and counterclaim
exceeding $16m arising from the plaintiffs` alleged failure to supply ramchips under
five purchase orders. The action for summary judgment was heard before an assistant
registrar who gave the plaintiff leave to enter final enter final judgment. From this,
the defendants appealed.
- The appeal centred on two issues: (a) whether because of the counterclaim, the
defendants should have been given unconditional leave to defend the whole of the
claim, and (b) whether because of the set-off, the defendants should have been given
unconditional leave to defend part of the claim to the extent of the set-off. The
defendants contended that in law, the moment the plaintiffs acknowledged receipt of
the purchase order by returning the attached duplicate endorsed to the defendants a
binding contract was concluded. The plaintiffs` version of how the business was
conducted was that whenever the defendants wished to obtain supplies of ramchips,
they would send to the plaintiffs their purchase orders setting out the desired quantity,
that the plaintiffs would acknowledge receipt thereof by returning a copy thereof to
the defendants, that this was followed by negotiations on the terms of the orders.
41
Even then there was no binding contract until the plaintiffs delivered the ramchips
order, when invoices and delivery orders would be delivered to the defendants.
- Held , dismissing the defendants` appeal:
- The counterclaims based on two purchase orders had no relation to the plaintiffs`
claim. They were separate transactions from those in respect of which the defendants
admitted liability. These counterclaims would not entitle the defendants to a stay of
execution, much less unconditional leave to defend.
- third party action – def will take out 014. third party can take out o14 if he has a
counterclaim.
- • Judgment on account of defendant not appearing at the hearing of the application can
be set aside (Order 14, rule 11).
 The Court may set aside or vary a summary judgment made against a
party who did not appear at its application – Order 14, rule 11
 Apply by SIC supported by affidavit, but you have to pay costs since you
wasted the court’s time by not turning up.

11. Any judgment given against a party who does not appear at the hearing of an
application under Rule 1 or 5 may be set aside or varied by the Court on such terms as it
thinks just.
- • No summons under Order 14 shall be filed more than 28 days after the pleadings in
the action are deemed to be closed – O 14 r 14.
 Strictly not extendable
Time limit for summary judgment applications (O. 14, r. 14)

14. No summons under this Order shall be filed more than 28 days after the pleadings in
the action are deemed to be closed.
(C) ORDER 14, RULE 12 - DISPOSAL OF CASE ON POINT OF LAW
Determination of questions of law or construction of documents (O. 14, r. 12)

12. —(1) The Court may, upon the application of a party or of its own motion,
determine any question of law or construction of any document arising in any cause or
matter where it appears to the Court that —
(a) such question is suitable for determination without a full trial of the action; and
(b) such determination will fully determine (subject only to any possible appeal) the
entire cause or matter or any claim or issue therein.
(2) Upon such determination, the Court may dismiss the cause or matter or make such
order or judgment as it thinks just.
(3) The Court shall not determine any question under this Order unless the parties have
had an opportunity of being heard on the question.
(4) Nothing in this Order shall limit the powers of the Court under Order 18, Rule 19, or
any other provision of these Rules.
42
Under Order 14, rule 12: The Court may determine:
- Any question of law; or
- Any construction of any document;
- This may be done at any stage of proceedings, if such question is suitable for
determination with full trial; and if such determination will full determine the entire
matter.
- Both parties can apply.
Under Order 14, rule 13: Manner of Application is:

• by way of summons; or
• may be made orally in the course of any interlocutory application to the court
• Take out summons by way of affidavit – but must show that will definitively
resolve the dispute
Manner in which application under Rule 12 may be made (O. 14, r. 13)
13. An application under Rule 12 may be made by summons or (notwithstanding Order
32, Rule 1) may be made orally in the course of any interlocutory application to the
Court.
Principles:
• The determination of the question of law or the construction of document must finally
dispose of the entire cause or matter.
• Order 14, rule 12 may be invoked to determine any claim or issues raised in the action
• Where there are mixed issues of fact and law, an application under Order 14, rule 12 is
inappropriate.
• even if only 1 issue good enough – see case law
43
Barang Barang v. Boey [2002] 3 SLR 158
- The Plaintiff applied for the construction of the terms of the sale and purchase
agreement under Order 14, rule 12 of the Rules of Court.
- Held (dismissing the application):
o There are two requirements for a question of construction to be suitable for
determination under Order 14, rule 12:
 First, it must be possible to finally determine the construction of the
document.
 Second, that the determination will finally dispose of the entire cause
or matter.
o This second requirement underscores Order 14, rule 12(1)(a) which states
that a question is only suitable for determination if a full trial of the action
is not required. Where there are mixed issues of fact and law that requires a
trial, an application under O 14 r 12 is inappropriate.
o On the facts of the case, the determination on whether the mutual release
clauses in the sale and purchase agreement supersedes the non-competition
clause in the service agreement will not finally dispose of the entire matter.
o Two further issues must be determined, namely, whether the Third
Defendant`s business constituted a breach of the non-competition clause and
whether the non-competition clause was void because it is unreasonable. As the
two further issues to be determined are mixed questions of law and fact,
they cannot be determined without a full trial. The application to construe
the clauses in the sale and purchase agreement under Order 14, rule 12 is
inappropriate and it is dismissed.
Grinsted v Brittania Brands (Holdings) Pte Ltd [1995] 3 SLR 157 (can’t find the
relevant point)
Payna Chettiar v. Maimoon bte Ismail [1997] 3 SLR 387

- Held: Order 14, rule 12 was similar to the English Order 14A, rule 1(1). It did not
follow that an application under Order 14, rule 12 should only be made if the decision
would finally determine the entire cause or matter. The wording of Order 14, rule
12(1)(b) was clear that an application could be made to determine the entire cause or
matter or any claim or issue therein.
44
Kamla Lal Hiranand v. Harilela [2000] 3 SLR 696
- Facts: In this case, the question raised was: whether the 1988 document, not being
valid as a will, is nonetheless valid for the purposes of creating and/or evidencing a
trust in the estate of the deceased. The issue was whether this was a proper one for
determination under Order 14, rule 12.
- CA Held: Yes, the question was suitable for determination under Order 14, rule 12(1).
This Rule did not require that the determination would fully determine the entire cause
or matter in the action. It may be invoked to determine any claim or issues raised in
the action. (following Payne Chettier v. Maimoon bte Ismail; Microsoft Corporation
v. SM Summit Holdings)
Microsoft Corporation v. SM Summit Holdings [1999] 4 SLR 529 at 554

1. The plaintiffs claimed against the defendants damages for defamation based on a press
release which the latter had published or caused to be published. The plaintiffs pleaded
that certain words in the press release, in their ordinary and natural meaning, meant and
were intended to mean that the plaintiffs were guilty of criminal conduct.
2. CA Held: They agreed that the natural and ordinary meaning of the alleged defamatory
words was a question which was suitable for determination under Order 14, rule 12.
The CA saw no impediment to the application under Order 14, rule 12 as the
determination of the meaning of the words complained of would fully resolve the issue
as to the meaning of the words in the action.
(D) STRIKING OUT OF PLEADINGS AND ACTIONS ORDER 18, RULE 19 –

VERY IMPT FOR EXAMS!!!
Striking out pleadings and endorsements (O. 18, r. 19)

19. —(1) The Court may at any stage of the proceedings order to be struck out or
amended any pleading or the endorsement of any writ in the action, or anything in any
pleading or in the endorsement, on the ground that —
(a) it discloses no reasonable cause of action or defence, as the case may be;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly,
as the case may be.
(2) No evidence shall be admissible on an application under paragraph (1) (a).
(3) This Rule shall, as far as applicable, apply to an originating summons as if it were a
pleading.
1. Possible orders.
- Order 18, rule 19(1) - The court may order the action to be struck out, have the
pleadings amended, stay the action, a dismissal of the action or judgment to be
entered.22
 The rule applies to a pleading or indorsement (rule l9(1)) as well as OS (rule
19(3)).
45
- The court would allow amendment if some material averment is missing; it will refuse
amendment when the intended amendment, however ingenious, will not cure the defect.
 Rep of Peru v Peruvian Guano Co [1887] 36 Ch D 489 on 496.
2. General principles
- Courts are slow to strike out even if the writ is irregular, usually give leave to amend.
Only advantage is that you get pleadings corrected and get costs from courts.
- Note: A valuable adjunct to Order 18, rule 19 is Inherent Jurisdiction of the Court to
deal with pleadings which are vexatious or frivolous or abuse of process of the Court
(see below).
- Court may not just grant striking out because very draconian – will grant host of other
remedies to remed whoever’s action seems to be failing
o If took right applic to strike out but court ordered another remedy – you will still get
costs if you were not at fault.
 Costs of striking out very high
o If other side does action very badly nad cause of action not there, then striking out
appears to be the wy to go
3. Procedure.
- An application under Order 18, rule 19(1) must be made promptly and as a rule before
pleadings are deemed closed. – AG of Duchy of Lancaster v L & N W Ry [1892] 3 Ch
274.
 After set-down, application may be refused – Cross v Earl Howe [1893] 62 LJ
Ch 342. If you wanna strike out you have to do so early or you may be deemed
to be frustrating the other party.
- O 18 r 19 is applicable to writ actions and originating summons. See rule 19(3).
- Note: It is only for the ground Order 18, rule 19(1)(a) “no reasonable cause of action or
defence” – that summons supported by affidavit is NOT required. No affidavit is
required since the basis of the application should be clear on the face of it. No evidence
is admissible to support that ground. See Order 18 Rule 19(2). See also “The Hsing An”
[1974] 1 MLJ 45. Yusen Air & Sea Services (S) Pte Ltd v KLM Royal Dutch Airlines
[1999] 4 SLR 21.
 The summons is to be supported by affidavit unless the ground is Order 18, rule
l9(1)(a) i.e. it discloses no reasonable cause of action or defence.
 Exception – rule 1a – no reasonable cause of action or defence
 Here, cannot file affidavit for this. As long as say no cause of action, patent
what is being pleaded.
 No affidavit is required under the latter since the basis of the application should
be clear on the face of it.
 No evidence is admissible to support that ground. See rule l9(2).26
“The Hsing An” [1974] 1 MLJ 45

- Held, dismissing the defendants` motion:
46
- (1).That writ of summons disclosed an application for relief which was clearly and
squarely a claim within s 3(1)(a) of the High Court (Admiralty Jurisdiction) Act (Cap 6,
1970 Ed) (the Act) and therefore the court had jurisdiction in rem to entertain the claim.
- (2).The task of the court was to ask itself on the pleadings so far as they have gone,
without reading any affidavit whatsoever, whether there was a triable issue falling
within the list of s 3(1) of the Act and in this case it was quite impossible for the
court to say that the writ of summons disclosed no reasonable cause of action.
- Order 18 r 19 of the Rules of the Supreme Court 1970, empowers the court by a
summary process to stay or dismiss an action or enter judgment against the defendant
where the pleading discloses no reasonable cause of action or defence or where the
action or defence is shown to be frivolous or vexatious or otherwise an abuse of the
process of the court.
- One thing is clear on the many cases that have incorporated the phrase `no reasonable
cause of action or defence` judicially and it is this, that it is not the function of the court
in an interlocutory application of this sort to try the issues. It is the function of the court
to decide simply whether there is a triable issue as opposed to something which is
frivolous, oppressive or an abuse of the process of the court. Order 18 r 19(2) disallows
affidavit evidence on an application alleging that the pleading discloses no reasonable
cause of action.
- In Wenlock v Moloney [1965] 1 WLR 1238 by his writ and statement of claim the
plaintiff claimed damages against the three defendants for conspiring to oust him from
the business of a company. The defendants delivered defences denying the allegations
made against them in the statement of claim. After the pleadings were closed the
plaintiff issued a summons for directions in the ordinary way but before it was heard
the defendants applied to the master under Rules of the Supreme Court O 18 r 19
(which is in similar terms to our O 18 r 19) alternatively under the inherent jurisdiction
of the court, to strike out the pleadings and dismiss the action on the grounds, inter alia,
that the pleadings disclosed no reasonable cause of action. On the hearing of the
application to strike out, ten affidavits were filed, five by the defendants in support of
the application and five by the plaintiff in opposition thereto. The master read the
affidavits, the documents exhibited thereto and considered the issues of fact raised by
the affidavits in a four-day hearing. There was no cross-examination on the affidavits or
oral evidence. In his reserved judgment the master held that the plaintiffs` action was
most unlikely to succeed and he, accordingly, struck out the pleadings and the action.
The plaintiff appealed to the judge in chambers who dismissed the appeal. On appeal to
the Court of Appeal the court refused to look at the affidavits. It was held that the trial
by the master of issues of fact on affidavits to ascertain whether the plaintiff had a
case was a usurpation of the functions of the trial judge and was a wholly
improper procedure and that since the pleadings on their face disclosed a
reasonable cause of action and raised issues of fact which required to be
determined on oral evidence by a judge, the action would not be struck out but
would proceed to trial.
- Sellers LJ in the course of his judgment said (at p 1242 G):If, as here, the only ground
on which the action can be said to disclose no reasonable cause of action is that it is not
one which is likely to succeed, then I doubt whether affidavit evidence was admissible.
47
- It is contended for the defendants that the court can properly admit evidence (1) when it
is considering whether it has jurisdiction or not to see whether it is a real claim and (2)
in an action in rem. I decline to accept this submission.
- So the task of the court is to ask itself on the pleadings as far as they have gone, without
reading any affidavit whatsoever, whether there is a triable issue falling within the list
of s 3(1) of the Act. I find that the pleadings which the plaintiffs have delivered so far,
that is to say the writ, disclose an application for relief which is clearly and squarely a
claim within s 3(1)(a) of the Act and that it is really quite impossible to say that it
discloses no reasonable cause of action. The first relief claimed by the defendants,
therefore, fails.
Yusen Air & Sea Services (S) Pte Ltd v KLM Royal Dutch Airlines [1999] 4 SLR 21
- Per curiam
- Although O 18 r 19 of the Rules of Court did not specify that an application for striking
out had to be made by way of a summons-in-chambers, the usual procedure required
the applicant to apply by way of summons-in-chambers. With the exception of striking
out on the ground that the pleading disclosed no reasonable cause of action or defence,
all striking out applications based on the other grounds should be supported by an
affidavit. There should be a good reason why the usual practice was not followed and
the court should be mindful of the potential prejudice that could be caused to the party
resisting the application.
- For all the other grounds (e.g. scandalous, vexatious, abuse of process of courts, res
judicata (abuse of process), summons supported by affidavit is required: Order 18,
rule 19(2)
3. Approach under O 18 r 19.

- The power will be exercised in “plain and obvious cases” or where a claim or answer is
“obviously unsustainable”27
 Very high threshold – compare 0rder 14 – def merely needs to show triable issue
of fact or law.
 Where Damages will prob be nominal
• (standard very high, usually difficult to succeed) – AG of Duchy of Lancaster v L & N

W Ry Co [1892] 3 Ch 274. See also The Osprey [2000] 1 SLR 281 and Ching Mun
Fung v Liu Cho Chit [2000] 1 SLR 517.
AG of Duchy of Lancaster v L & N W Ry Co [1892] 3 Ch 274

• Lindley LJ - To what extent is the Court to go on inquiring into difficult questions of
fact or law in the exercise of the power which is given it under Order XXV., rule 4? It
appears to me that the object of the rule is to stop cases which ought not to be launched
- cases which are obviously frivolous or vexatious, or obviously unsustainable; and if it
will take a long time, as is suggested, to satisfy the Court by historical research or
otherwise that the County Palatine has no jurisdiction, I am clearly of opinion that
such a motion as this ought not to be made.
48
• AL Smith LJ - I only want to make one remark about Order XXV., rule 4. It seems to
me that when there is an application made to strike out a pleading, and you have to go
to extrinsic evidence to shew that the pleading is bad, that rule does not apply. It is only
when upon the face of it it is shewn that the pleading discloses no cause of action
or defence, or that it is frivolous and vexatious, that the rule applies. In this case it
is manifest that you must go to extrinsic evidence to shew that the pleading is bad,
and directly it comes to that, the rule does not apply.
The Osprey [2000] 1 SLR 281

• The appellants, who were owners of cargo, held a bill of lading evidencing the
shipment of the cargo on board a vessel, which was arrested by the second respondents.
The appellants commenced proceedings against the first respondents (“the
shipowners”) for breach of contract and obtained an interlocutory judgment. The
second respondents had it set aside, while the appellants were allowed to amend their
statement of claim. The second respondents then had that struck out. The appellants
appealed, arguing that the shipowners were the contracting carrier as evidenced by the
bill of lading, which was signed by a company (“Admarine”) as agents.
• Held, allowing the appeal:
• (1) The court’s power to strike out any pleading and dismiss actions under O 18
r 19(1) would only be exercised in plain and obvious cases. A “reasonable cause of
action” has some chance of success when only the allegations in the pleadings are
considered, and the claim would be struck out only if upon examination of the
allegations the alleged cause of action is certain to fail. A “frivolous and vexatious”
cause of action is obviously unsustainable or wrong, or shows a lack of purpose or
seriousness in the party’s conduct of the proceedings. “Abuse of process” signifies that
the process of court must be used bona fide and not as a means of vexation or
oppression. It also includes considerations of public policy and the interests of injustice.
• (2) The appellants had a reasonable cause of action against the shipowners, which
was neither frivolous or vexatious and/or an abuse of process as well. As proceedings
were still at the interlocutory stage, the appellants need not present all the evidence they
would rely on at the trial in support of their claim. Their inability to adduce evidence of
the charterparty did not deprive them of their right to a trial, which would resolve the
issue of the contracting carrier’s identity.
• Important Parts of Judgment
• Striking out
• 6 Under O 18 r 19(1)(a) to (d) of the Rules of Court, the court may strike out any
pleading and dismiss the action on any of the grounds stated there. In this case, the
second respondents’ application for striking out the appellants’ amended statement of
claim was expressed to be based on most of the grounds, namely, that it discloses no
reasonable cause of action, is frivolous and vexatious and/or is an abuse of the process.
It is well-established that the power of striking out will only be exercised in plain and
obvious cases. In Tan Eng Khiam v Ultra Realty Pte Ltd [1991] SLR 798, 803; [1991] 3
MLJ 234, 237, GP Selvam JC (as he then was) said:
• Courts are reluctant to strike out a claim summarily either under O 18 r 19 of the RSC
or the inherent jurisdiction. This is anchored on the judicial policy to afford a litigant
49
the right to institute a bona fide claim before the courts and to prosecute it in the usual
way. Whenever possible, the courts will let the plaintiff proceed with the action unless
his case is wholly and clearly unarguable: see Blue Town Investments Ltd v Higgs &
Hill plc [1990] 1 WLR 696 , [1990] 2 All ER 897 and Oxy Electric Ltd v Zainuddin
[1991] 1 WLR 115, [1990] 2 All ER 902.
• And in Ko Teck Siang v Low Fong Mei & Anor and other actions [1992] 1 SLR 454,
this court approved and followed Wenlock v Moloney [1965] 2 All ER 871, 874 where
Danckwerts LJ said: The position is very clearly expressed by Lord Herschell in
Lawrence v Lord Norreys [1886-90] All ER 858, at p 863. He said: It cannot be doubted
that the court has an inherent jurisdiction to dismiss an action which is an abuse of the
process of the court. It is a jurisdiction which ought to be very sparingly exercised,
and only in very exceptional cases. I do not think its exercise would be justified
merely because the story told in the pleadings was highly improbable, and one
which it was difficult to believe could be proved . …
• The position under two former rules has been incorporated in the present RSC, O 18
r 19 of the new rules. There is no doubt that the inherent power of the court remains;
but this summary jurisdiction of the court was never intended to be exercised by a
minute and protracted examination of the documents and facts of the case, in
order to see whether the plaintiff really has a cause of action. To do that, is to
usurp the position of the trial judge, and to produce a trial of the case in
chambers, on affidavits only, without discovery and without oral evidence tested
by cross-examination in the ordinary way . This seems to me to be an abuse of the
inherent power of the court and not a proper exercise of that power…
• This general rule was reiterated more recently in the case of Gabriel Peter & Partners
v Wee Chong Jin [1998] 1 SLR 374, 383 at para 18 where this court held:
• In general, it is only in plain and obvious cases that the power of striking out should
be invoked. This was the view taken by Lindley MR in Hubbuck & Sons v Wilkinson,
Heywood and Clark [1899] 1 QB 86 at p 91. It should not be exercised by a minute and
protracted examination of the documents and facts of the case in order to see if the
plaintiff really has a cause of action. The practice of the courts has been that, where an
application for striking out involves a lengthy and serious argument, the court should
decline to proceed with the argument unless, not only does it have doubts as to the
soundness of the pleading but, in addition, it is satisfied that striking out will obviate
the necessity for a trial or reduce the burden of preparing for a trial.
• 7 A “reasonable cause of action” has been defined in Drummond-Jackson v British
Medical Association [1970] 1 All ER 1094 by Lord Pearson as a cause of action which
has some chance of success when only the allegations in the pleading are considered.
The claim should be struck out only if upon examination of the allegations, it is found
that the alleged cause of action is certain to fail. This principle was applied in Gabriel
Peter & Partners v Wee Chong Jin (supra) (at para 21).
• 8 As for the words “frivolous and vexatious”, they have been interpreted to mean
actions which are “obviously unsustainable” or “wrong”. In Goh Koon Suan v Heng
Gek Kiau [1990] SLR 1251; [1991] 2 MLJ 307, Yong Pung How CJ said that an action
would be vexatious “if the party bringing it is not acting bona fide and merely
wishes to annoy or embarrass his opponent, or when it is not calculated to lead to
50
any practical result”. The expression “frivolous and vexatious” has also been used to
connote a lack of purpose or seriousness in the party’s conduct of the proceedings.
• 9 The ground of “abuse of the process” is a more general ground which tends to
be more broadly interpreted than the other three grounds found in O 18 r 19(1). It
was observed by this court in Gabriel Peter & Partners v Wee Chong Jin (supra) at
para 22:
• The term, ‘abuse of the process of the Court’, in O 18 r 19(1)(d), has been given a wide
interpretation by the courts. It includes considerations of public policy and the interests
of justice. This term signifies that the process of the court must be used bona fide
and properly and must not be abused. The court will prevent the improper use of
its machinery. It will prevent the judicial process from being used as a means of
vexation and oppression in the process of litigation. The categories of conduct
rendering a claim frivolous, vexatious or an abuse of process are not closed and will
depend on all the relevant circumstances of the case. A type of conduct which has been
judicially acknowledged as an abuse of process is the bringing of an action for a
collateral purpose, as was raised by the respondents. In Lonrho v Fayed (No 5) [1993] 1
WLR 1489, Stuart-Smith LJ stated that, if an action was not brought bona fide for the
purpose of obtaining relief but for some other ulterior or collateral purpose, it might be
struck out as an abuse of the process of the court. [emphasis added]…….
• 20 A party, at this interlocutory stage, is not compelled to lay out all the evidence on
which he will rely at the trial to support his claim. Hence, there was no merit in the
second respondents’ contention that the appellants were not able to show that they had a
reasonable cause of action because their evidence would not likely to improve, even if
the case proceeds to trial. This was hardly the appropriate stage in the proceedings at
which the court should or would be dealing with questions of proof. While the
appellants’ inability to adduce evidence of the charterparty was indicative of, perhaps, a
weak case and may ultimately prove to be detrimental to the success of their claim, we
would not be justified in depriving them of their right to a trial. The determination of
the question of who was the contracting carrier under the bill of lading would be more
appropriately resolved in a proper trial. In our judgment, on the existing evidence
available, the appellants have a reasonable cause of action in contract against the
shipowners. As for the other grounds of “frivolous and vexatious” and/or “an abuse of
the process”, it had not been shown by the second respondents that the appellants were
not acting bona fide in bringing this action or that the claim was brought merely to
annoy or oppress the defendants.
Ching Mun Fong v. Liu Cho Chit [2000] 1 SLR 517

- The Court of Appeal held that the Court’s jurisdiction to strike out a statement of claim,
whether under the Rules of Court or the court`s inherent jurisdiction, was only
exercised in a plain and obvious case. The general approach to an application to
strike out was to consider whether the deficiency or defect, on the basis of which
the application was made, could be cured by an amendment, and if it could, this
rather than the drastic course of striking out would be preferred.
- 12 The jurisdiction to strike out a statement of claim, whether under the Rules of
Court or under the court’s inherent jurisdiction, is only exercised in a plain and obvious
case. In general, the court’s approach to an application to strike out the statement of
51
claim is to consider if the deficiency or defect therein, on the basis of which the
application was made, could be cured by an amendment, and would prefer to allow an
amendment rather than to take the drastic course of striking it out. In Tan Soo Leng
David v Wee, Satku & Kumar Pte Ltd [1994] 3 SLR 481, Karthigesu JA, delivering the
judgment of this court, said at p 487:
- It will be noted that O 18 r 19 gives the judge a discretionary jurisdiction and permits
an amendment of the statement of claim as an alternative. As this court said in Ko Teck
Siang v Low Fong Mei [1992] 1 SLR 454, the discretion for striking out under O 18
r 19 should be exercised sparingly. See also Manuel Misa v Raikes Currie, G Grenfell
Gly (1876) 1 App Cas 554 at p 559, where the House of Lords allowed a new argument
to be taken since it did not require any new material to be introduced into the case. The
failure to plead the want of best endeavours on the part of the first respondents is not
necessarily fatal to the appellant at this stage of the proceedings since that deficiency
can be made good by an amendment to the statement of claim before the trial.
Gabriel Peter & Partners v Wee Chong Jin & Ors [1998] 1 SLR 374
- Held: In general, it is only in plain and obvious cases that the power of striking out
should be invoked. It should not be exercised by a minute and protracted examination
of the documents and facts of the case in order to see if the plaintiff really has a cause
of action.
- The practice of the courts has been that, where an application for striking out involves a
lengthy and serious argument, the court should decline to proceed with the argument
unless, not only does it have doubts as to the soundness of the pleading but, in addition,
it is satisfied that striking out will obviate the necessity for a trial or reduce the burden
of preparing for a trial.
- This is anchored on the judicial policy to afford the litigant the right to institute a bona
fide claim before the courts and to prosecute it in the usual way. Whenever possible, the
courts will let the plaintiff proceed with the action unless his case is wholly and clearly
unarguable: Selvam JC in Tan Eng Khiam v Ultra Realty Pte Ltd [1991] SLR 798 (see
excerpt in The Osprey case above)
- There should not be a minute and protracted examination of the documents and facts of
the case to see whether there is a cause of action. (The Osprey [2000])
- It is also not permissible to try the action on affidavits when facts and issues are in
dispute.28(Wenlock v Moloney [1965] 2 AER 871)
- White Book, paras 18/19/3 and 18/19/4.
4. Inherent jurisdiction.
- In addition to O 18 r 19, under the court’s inherent jurisdiction, it has power to stay or
dismiss action under inherent jurisdiction is on the ground that the pleading is frivolous
or vexatious and/or abuse of process, just as it is under Order 18, rule 19 –
- Gleeson v Wippell & Co. Ltd [1977] 3 AER 54
 Held - that the jurisdiction to strike out, whether inherent or under the rules,
should be exercised only with great caution and only in plain and obvious cases
where it was clear beyond doubt that the action would not succeed;
52
- Under Inherent Jurisdiction, the Court can go into all the facts and affidavits as to
facts are admissible (Willis v Earl Howe [1893] 2 Ch 545 on 551 and 554 (cannot find
on this point), Vinson v Prior Fibres Consolidated Ltd [1906] W.N. 209 (cannot find).
• Jurisdiction will not be exercised except with great circumspection and unless it is
perfectly clear that the plea cannot succeed – Lawrence v Lord Norreys [1890] 15 AC
210, White Book para 18/19/18.
Lawrence v Lord Norreys [1890] 15 AC 21

• It is long established that the pleading of fraud demands rigorous particularity.
• Many authorities attest to this proposition stemming from Lawrence v. Lord Norreys
(1890) 15 App Cas 210at 210.
• The head-note reads in part:
"In such an action, general averments of fraud are not sufficient. The statement of claim
must contain precise and full allegations of facts and circumstances leading to the
reasonable inference that fraud was the cause of the deprivation and excluding other
possible causes. In default of such allegations, the court may, by virtue of its inherent
jurisdiction, dismiss the action as an abuse of the procedure where the claim is
incapable of proof and without any solid basis."
Reichel v Magrath [1889] 14 AC 665

• Reichel had taken proceedings against the Bishop of Oxford and the patrons of a
benefice for a declaration that he was still the vicar of the benefice and that an
instrument of resignation was null and void. He lost before North J and his appeals to
both the Court of Appeal and the House of Lords were dismissed. In the second action
Magrath claimed to be the incumbent of the benefice, having been appointed to fill the
vacancy caused by the resignation of Reichel, but that Reichel refused to vacate the
parsonage houses or glebe lands. He sought declarations and injunctions designed to
evict Reichel. In his defence to that claim Reichel sought to set up the same case as had
been rejected by all three courts in the action he had brought against the Bishop.
Magrath applied to have the defence struck out. He succeeded before the Queen's
Bench judges on the grounds that the matter was res judicata and in the Court of Appeal
on the basis that to set up the same defence was an abuse of the process of the court.
Reichel appealed to the House of Lords. He failed. Lord Halsbury LC said:
"It would be a scandal to the administration of justice if, the same question having been
disposed of by one case, the litigant were to be permitted by changing the form of the
proceedings to set up the same case again. It cannot be denied that the only ground
upon which Mr. Reichel can resist the claim by Mr. Magrath to occupy the village is
that he (Mr. Reichel) is still vicar of Sparsholt. If by the hypothesis he is not vicar of
Sparsholt and his appeal absolutely fails, it surely must be in the jurisdiction of the
Court of Justice to prevent the defeated litigant raising the very same questions which
the Court has decided in a separate action. I believe there must be an inherent
jurisdiction in every Court of Justice to prevent such an abuse of its procedure
and I therefore think that this appeal must likewise be dismissed."
• Lords Fitzgerald and Macnaghten agreed. Lords Watson and Herschell gave concurrent
speeches.
53
Ng Chee Chong v. Toh Kouw [1999] 4 SLR 45
- Held: The CA held that the doctrine of res judicata is to be found in the concept of
abuse of process of the Court. The CA held that in determining whether a case falls
within the scope of res judicata, great care should be exercised as it would amount to
shutting out a subject of litigation.
- The jurisdiction will not be exercised except with great circumspection and unless it is
perfectly clear that the plea cannot succeed.31
5. The 4 Limbs of Order 18, rule 19(1)
5a) O 18 r 19(1)(a). … “it discloses no reasonable cause of action or defence, as the

case may be”
- e.g. absolute privilege32, barrister’s immunity from suit33 and many more.34 case –
whether wrongful birth – CA held no such cause of action
- (No need affidavit, all the other limbs must have affidavit)
• Meaning: No chance of success when only the allegations in the pleadings were
considered.
• The “Hsing An” [1974] 1 MLJ 45 (see above)
• A ‘reasonable cause of action’ has been defined in Drummond-Jackson v British
Medical Association [1970] 1 All ER 1094 by Lord Pearson as a cause of action which
has some chance of success when only the allegations in the pleading are
considered. The claim should be struck out only if upon examination of the
allegations, it is found that the alleged cause of action is certain to fail.
• Moore v Lawson [1915] 31 TLR 418 (See the excerpt from the case of Three Rivers
District Council v. Governor and Company of the Bank of England [2001] UKHL 16
below)
Three Rivers District Council v. Governor and Company of the Bank of England
[2001] UKHL 16
- 117. The 1999 White Book stated at 18/19/10 with reference to r 19(1)(a):
"A reasonable cause of action means a cause of action with some chance of success
when only the allegations in the pleading are considered (per Lord Pearson in
Drummond-Jackson v British Medical Association [1970] 1 WLR 688; [1970] 1 All ER
1094, CA).
- So long as the statement of claim or the particulars (Davey v Bentinck [1893] 1 QB
185) disclose some cause of action, or raise some question fit to be decided by a
judge or a jury, the mere fact that the case is weak, and not likely to succeed, is no
ground for striking it out (Moore v Lawson (1915) 31 TLR 418, CA; Wenlock v
Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA);"
- Therefore if a plaintiff would be entitled to judgment if he were successful in proving
the matters alleged in his pleadings, the statement of claim could not be struck out
under rule 19(1)(a) on the ground that he had no prospect of adducing evidence to
54
prove the matters which he alleged. If a defendant wished to strike out a statement of
claim and to obtain an order for the dismissal of the action on the ground that the
plaintiff had no prospect of proving the case which he alleged in his statement of claim
he had to do so under rule 19(1)(b) and/or (d). A case which illustrates this (although
the application was to strike out, not a statement of claim, but a plea of justification in a
defence) was the application made in McDonald's Corporation v Steel [1995] 3 All ER
615 where the Court of Appeal considered the correct approach to an application under
Ord 18, r 19(d) to strike out a pleading for abuse of process and held, at p 623E-F, that
the power to strike out was a draconian remedy which was to be employed only in clear
and obvious cases where it is possible to say at an interlocutory stage and before full
discovery that a particular allegation was incapable of being proved.
• Gabriel Peter & Partners v Wee Chong Jin & Ors [1998] 1 SLR 374 (see above
excerpt in The Osprey)
• The Osprey [2000] 1 SLR 281 (see above)
Examples
• Absolute privilege
Trapp v Mackie[1979] 1 AER 489

• Abstract: Where a public inquiry is set up by statutory authority and conducted
judicially, witnesses giving evidence before it may be absolutely immune from civil
proceedings arising from their evidence. The appellant was dismissed as a
headmaster by the local education authority, of which the respondent was chairman.
Pursuant to the appellant's petition, the Secretary of State set up an inquiry, with
Queen's Counsel as commissioner, under the Education (Scotland) Act 1946 to
investigate the dismissal. The inquiry was held in public, the procedure adopted being
similar to that in a court of law; evidence was given, inter alia, by the respondent. The
commissioner concluded that the dismissal was reasonably justifiable and reported
accordingly to the Minister who accepted such conclusion. (As a matter of practice
although such a report's conclusion was not binding upon the Minister, it was rare for
him not to accept it.) The appellant brought proceedings against the respondent alleging
that he had given maliciously false evidence to the inquiry thereby influencing its
decision. The respondent succeeded in having the action dismissed on the grounds of
this evidence being absolutely privileged.
• Summary: Held, dismissing the appellant's appeal that absolute privilege could apply
to evidence given in proceedings which, although they did not finally determine
the issues raised, formed part of the decision-making process; the nature of this
inquiry indicated that such privilege would apply.
• Barrister’s immunity from suit
Rondel v Worsley [1967] 3 AER 993
55
• Summary: A barrister is not liable to his client for professional negligence in respect of
his conduct and management of litigation whether in court or at an earlier stage. Quaere
(1) whether immunity extends to cover work unconnected with court cases; (2) whether
immunity ought not to extend to a solicitor doing litigation work which could have
been done by counsel. The appellant was tried on a charge of having caused grievous
bodily harm to a certain named person and was convicted. He had been represented by
the respondent, a barrister who had appeared on a "dock brief." Later the appellant
issued a writ and statement of claim against the respondent claiming damages for
professional negligence in the respondent's dealing with the evidence.
• The master ordered the statement of claim to be struck out as disclosing no reasonable
cause of action, and his order was upheld by Lawton J. and by the Court of Appeal.
• On further appeal, held, dismissing the appeal, that a barrister's conduct and
management of litigation (whether in court or at an earlier stage) could not give rise to
a claim for professional negligence; this position was a result of public policy in that
(a) a barrister ought to be able to carry out his duty to the court fearlessly and
independently; (b) actions for negligence against barristers would inevitably amount to
retrials and thus prolong litigation, contrary to the public interest, and (c) a barrister
was obliged to accept any client if a proper fee was paid and could not refuse a client
on any other ground. Per Lords Reid, Morris of Borth-y-Gest and Upjohn: public
policy does not require the extension of this immunity to work of a non-litigious
nature. Per Lords Reid, Morris of Borth-y-Gest, Pearce and Upjohn: a solicitor ought to
be given the same immunity in litigious work which could have been done by a
barrister as the barrister would have had if engaged.
5b) O 18 r 19(1)(b). … “it is scandalous, frivolous or vexatious”

- pleadings are “scandalous” if, for e.g., it is irrelevant or where there are unnecessary
details35.
- It is “frivolous or vexatious” if for e.g., when it is time-barred36 or just to get costs.37
• “Scandalous” – Pleadings are “scandalous” if, for e.g., it is irrelevant or where they
contain offensive or unnecessary details – Blake v Albion Assurance Society [1876]
45 L.J.C.P. 663 (cannot find). See also Ruberry v Grant [1872] LR 13 Eq 443 (not
scandalous if relevant) (cannot find), White Book para 18/19/14.
• See also AG, etc v L & NW Ry (obviously frivolous or vexatious, above).
• The words ‘frivolous and vexatious’ have been interpreted to mean: Actions that
are “obviously unsustainable” or “wrong”: The Osprey [2000]
- In Goh Koon Suan v Heng Gek Kiau & Ors [1990] SLR 1251 [1991] 2 MLJ 307
, Yong Pung How CJ said that an action would be vexatious “if the party
bringing it is not acting bona fide and merely wishes to annoy or embarrass
his opponent, or when it is not calculated to lead to any practical result”.
• The expression “frivolous and vexatious” has also been used to connote a lack of
purpose or seriousness in the party’s conduct of the proceedings.
56
• It is “frivolous or vexatious” if for e.g., when it is time-barred or just to get costs.
o When it is Time barred - Ronex Properties v John Laing Construction Ltd [1982]
3 AER 961 c.f. Riches v DPP [1973] 2 AER 935 (inherent jurisdiction).
o Make persons parties just to get costs – Burstall v Beyfus [1884] 26 Ch D.
Ronex Properties v John Laing Construction Ltd [1982] 3 AER 961

- Held, dismissing the appeal, that an application for a claim to be struck out on the
ground that it disclosed no cause of action could only properly be made where it
was manifest that there was an answer immediately destructive of the claim; that,
since a defence under the Limitation Acts barred the remedy and not the claim and that
defence had to be pleaded, the application to strike out the pleadings was misconceived
- Donaldson LJ
- Limitation
- Under R.S.C., Ord. 18, r. 19, the power to strike out any pleading or the endorsement of
any writ in the action or anything contained therein is exercisable:
"on the ground that - (a) it discloses no reasonable cause of action or defence, as the
case may be; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice,
embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the
process of the court; ..."
- In the case of an application under (a) above, which is the present case, no evidence is
admissible.
Authority apart, I would have thought that it was absurd to contend that a writ or
third party notice could be struck out as disclosing no cause of action, merely
because the defendant may have a defence under the Limitation Acts. Whilst it is
possible to have a contractual provision whereby the effluxion of time eliminates a
cause of action - and there are some provisions of foreign law which can have that
effect - it is trite law that the English Limitation Acts bar the remedy and not the
right; and, furthermore, that they do not even have this effect unless and until
pleaded. Even when pleaded, they are subject to various exceptions, such as
acknowledgment of a debt or concealed fraud, which can be raised by way of reply.
Concealed fraud has, we are told, been pleaded by the plaintiffs in this case as against
the defendants, but whether the personal representatives will or can adopt a similar
attitude vis-à-vis Clarkes can only really emerge if ever they get to the stage of
delivering a reply in the third party proceedings. Accordingly, authority apart, I
would have unhesitatingly dismissed the application to strike out upon this
ground. The answer might well have been different if Clarkes had relied upon any
ground other than failure to disclose a reasonable cause of action, but in that event all
concerned could have adduced evidence and we would have been able to explore the
factual basis upon which it is said that the Limitation Acts do, or as the case may be do
not, apply.
… Where it is thought to be clear that there is a defence under the Limitation Acts, the
defendant can either plead that defence and seek the trial of a preliminary issue or, in a
very clear case, he can seek to strike out the claim upon the ground that it is frivolous,
vexatious and an abuse of the process of the court and support his application with
evidence. But in no circumstances can he seek to strike out on the ground that no
cause of action is disclosed.
57
- STEPHENSON L.J.
- I agree and desire only to add a few observations on the limitation point. There are
many cases in which the expiry of the limitation period makes it a waste of time and
money to let a plaintiff go on with his action. But in those cases it may be impossible to
say that he has no reasonable cause of action. The right course is therefore for a
defendant to apply to strike out the plaintiffs' claim as frivolous and vexatious and an
abuse of the process of the court, on the ground that it is statute-barred. Then the
plaintiff and the court know that the Statute of Limitations will be pleaded; the
defendant can, if necessary, file evidence to that effect; the plaintiff can file evidence of
an acknowledgment or concealed fraud or any matter which may show the court that
his claim is not vexatious or an abuse of process; and the court will be able to do, in I
suspect most cases … strike out the claim and dismiss the action.
- That cannot be done here because the third party's summons alleged no reasonable
cause of action only and an amendment would have given the second defendants the
opportunity of meeting the plea of the statute with a plea of concealed fraud which has
been raised in the plaintiffs' reply to the amended defence of the first defendants served
shortly before the hearing of this appeal.
- The judge was clearly justified in not striking out the claim on the ground that the
question whether the second defendants' claim was statute-barred should be
decided after "a proper analysis of the damage suffered and full argument as to
the law, both of which cannot occur without a trial." and the further possibility that
there may be an answer to a plea of the statute in section 26 (b) of the Limitation Act
1939 makes it even plainer that the claim should not be struck out now.
Riches v DPP [1973] 2 AER 935

- Summary: Where on an application to strike out a claim as an abuse of the court's
process, a defendant is clearly going to rely on the Statute of Limitations, and there is
nothing before the court to show that the plaintiff can escape from it, his claim will be
struck out. Criminal proceedings were commenced by the DPP against R in 1963. In
1964 he was convicted and ordered to pay costs. In 1965 the conviction was quashed by
the Court of Appeal. In 1972 R brought an action against the DPP for malicious
prosecution. The action was struck out as being an abuse of the court's process and
barred by the Statute of Limitations. On appeal, held (1) that the defendant clearly
proposed to rely on the Statute of Limitations, there was nothing before the court
to show that the plaintiff could escape from that, and the claim would be struck
out; (2) that there was no ground for saying that because a prosecution had been
instigated by the DPP, that there must have been reasonable and probable grounds.
Burstall v Beyfus [1884] 26 Ch D

- Solicitors were joined as parties, though no reasonable causes of action could be shown
against them, for the purpose of costs or discovery
5c) O 18 r 19(1)(c). …. “it may prejudice, embarrass, or delay the fair trial of the
action”
- if, for e.g., it offends the rules of pleading,38 not clear how much is denied or
admitted.39
58
• Prejudice, embarrassment – if, for e.g., it
o offends the rules of pleading – Per Brown LJ in Knowles v Roberts (1888) 38
ChD 263 on 270.
o not clear how much is denied or admitted – British & Colonial Land Assn v
Foster [1887] 4 TLR 579 (can’t find)
o Carpenter v Ebbewhite [1939] 1 KB 347 (joined insurance company to get
declaration to the effect that insurance company was liable to satisfy judgment).
Knowles v Roberts (1888) 38 ChD 263

- In an action to enforce the compromise of a former action brought in assertion of rights
of water, as to which disputes had arisen, Plaintiff will not be allowed, by setting out in
his statement of claim the allegations as to his right and the corresponding liabilities of
the Defendant which were contained in his former statement of claim, to relitigate the
questions raised in the former action, and intended to have been finally disposed of by
the compromise. Such allegations were accordingly ordered to be struck out under
Order XIX., r. 27, as embarrassing and unnecessary…
Carpenter v Ebbewhite [1939] 1 KB 347

- The plaintiffs, having been injured in a collision between their motor bicycle and a
motor-car and alleging that their injuries were due to the negligence of the driver of the
car, brought an action against the registered owner of the car, the driver thereof, and the
insurers who had insured the registered owner and any person driving the car with his
consent, claiming as against the registered owner and the driver damages for
negligence, and as against the insurers a declaration that they were obliged to satisfy
any judgment obtained by the plaintiffs against the other two defendants or either of
them.
- The defendants made an application that the plaintiffs' claim as against the insurers
should be struck out, and in support of the application they alleged and gave evidence
that before the date of the collision the registered owner of the car had sold it to the
driver:-
- Held, by the Court of Appeal (Greer, Slesser and MacKinnon L.JJ.), affirming an order
of the Master and of the Judge at Chambers, that the application should be granted and
the plaintiffs' claim for a declaration of liability against the insurers struck out;
- Per Greer L.J. on the ground that the Court had no power to make a declaration of the
liability of the insurers to satisfy a judgment for the plaintiffs against the defendants
where no actual dispute between the plaintiffs and the insurers as to that liability had as
yet arisen or could arise before such judgment had been obtained;
- Per Slesser L.J. on the ground that to allow the plaintiffs to include in the action a
claim against the insurers, and thus to disclose at the trial the fact that a defendant
was insured, would in the circumstances "tend to prejudice, embarrass or delay
the fair trial of the action" within the meaning of the Rules of the Supreme Court,
Order XIX., r. 27.
5d) O 18 r 19(1)(d). “it is otherwise an abuse of the process of the Court”.
59
- Res judicata. It has been held to mean whether there is any “improper use of judicial
machinery”.40 For e.g., where there are no facts to support the claim41, litigate again
over an identical question which has already been decided against a party42 and joining
solicitors to an unsustainable claim43.
- (Most common limb is limb a. lawyers may plead in the alternative. But the more
limbs you plead, the more limbs u need to argue and support
o Def gets costs if he wins
o Plaintiff gets fixed costs to be paid forthwith if striking out action is
unsuccessful)
• Abuse of the court – refers to a type of conduct which has been judicially
acknowledged by the Courts as an abuse of the process of the court and one which
is brought for a collateral purpose.
• The Court will prevent the improper use of its machinery and will prevent the
judicial process from being used as a means of vexation and oppression in the
process of litigation: Castro v Murrey [1875] 10 Ex 213 (can’t find).
• See also Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin (see excerpt in
The Osprey above), - what constitutes abuse. Jeyaretnam J Benjamin v Lee Kuan Yew
[2001] 4 SLR 1 – delay did not amount to abuse of process.
JBJ v. Lee Kuan Yew [2001] 4 SLR 1

• The respondent (‘LKY’), and several others, separately sued the appellant (‘JBJ’) for
defamation (respectively, ‘the present action’ and ‘Suit 225/97’). Suit 225/97 was heard
first, and judgment was reserved. LKY, but not JBJ, indicated that he agreed to be
bound by the court’s determination in Suit 225/97 as to the meaning of the defamatory
words.
• Both parties in Suit 225/97 appealed against the judge’s decision. After the Court of
Appeal gave its decision on 17 July 1998, LKY took no further steps or proceedings for
some two years and four months. On 7 December 2000, LKY’s solicitor wrote to JBJ’s
solicitor asking if JBJ agreed with the Court of Appeal’s determination of the meaning
of the words, to which no reply was received. On 14 December 2000, LKY filed an
application under O 14 r 12 of the Rules of Court for an order that the meaning of the
defamatory words in the present action was that as found by the Court of Appeal
(‘LKY’s application’). JBJ then applied to strike out the present action for want of
prosecution, which was dismissed by both the senior assistant registrar and the High
Court. He appealed.
• Held, dismissing the appeal:
• (3) An action would be struck out or dismissed for want of prosecution where – (a) the
plaintiff’s default had been intentional and contumelious, (b) there had been inordinate
and inexcusable delay on the plaintiff’s or his lawyer’s part giving rise to a substantial
risk that a fair trial was impossible or that the defendant would suffer serious prejudice;
or (c) there had been an abuse of court process, such as wholesale disregard of the rules
60
of court or court procedure; if so, it was unnecessary to consider whether the limitation
period had expired, or for the defendant to invoke either limb of the principles laid
down in Birkett v James.
• (4) An action would not normally be struck out for inordinate and inexcusable delay if
the limitation period applicable to the action had not expired and fresh proceedings for
the same cause of action could still be brought as the fresh proceedings would simply
cause more expense and delay.
• (5) Although LKY should have, but did not, applied for a fresh date for the trial of the
present action, such default or inaction was not contumelious conduct. Further, the
absence of explanation as to why no action was taken did not give rise to an inference
of such conduct. There was no evidence that – (a) LKY’s conduct was intentional and
contumelious, or (b) he had disobeyed any court order or procedure or rules of court,
and neither did JBJ show that LKY had acted in such a way.
• (6) LKY’s delay was inordinate and inexcusable as it was long and no reason or
explanation was given as to why no application was made for a fresh trial date.
• (7) LKY’s delay did not give rise to a substantial risk that a fair trial was impossible or
that serious prejudice would be caused to JBJ. In contesting the present action, none of
JBJ’s defences would be prejudiced by the delay, nor would it prejudice a fair trial of
any of the issues involved. The unavailability of the particular Queen’s Counsel sought
by JBJ did not amount to prejudice as he could have engaged other Queen’s Counsels
to represent him. Furthermore, the delay was not an abuse of court process as there was
no breach of, or non-compliance with any court order, or procedure, or rules of court.
• (8) Even if LKY’s action was struck out, he could bring fresh proceedings based on
the same cause of action as the limitation period in the present action had not expired.
Hence, striking out would be of no benefit to JBJ and would only result in further costs
and expenses being incurred.
• Per Curiam
• Deliberate failure to comply with an order of court, or a series of separate inordinate
and inexcusable delays in complete disregard of the rules of court and with full
awareness of the consequences, amounted to contumelious conduct. Such conduct also
involved an element of scorn and intentional disregard of the rules of court or a court
order.
• For e.g., where there are no facts to support the claim
Steamship Mutual Assn Ltd v Trollope & Colls (City) Ltd, 33 BLR 77
- Abstract: P employed D1 as contractors, D2 as architects and D5 as structural engineers
in connection with the construction of an office block. The works were completed in
1975. In 1977 and 1981 problems appeared in the air-conditioning system. In 1982 P
issued a writ and seven months later served a statement of claim on all the Ds except
D5. In 1985 defects in the walls of the building appeared, unrelated to the air-
conditioning defect. In June 1985 notice of intent to proceed was served on D5 who
applied for the action against them to be dismissed for want of prosecution. P applied
for leave to amend the statement of claim served against the other Ds to plead the wall
defects.
61
- Summary: Held, that (1) the action against D5 should be struck out pursuant Rules of
the Supreme Court Order 18, r. 19 as abuse of the process since a writ should not be
issued against a party when it is not intended to serve a statement of claim against
them but where the writ is issued only to protect the position.
• Or e.g. litigate again over an identical question which has already been decided
against a party – Stephenson v Garrett [1898] 1 QB 677, joining solicitors to an
unsustainable claim – Goh Koon Suan v Heng Gek Kian & Ors [1991] 2 MLJ 307;
Grovit & Ors v Doctor & Ors [1997] 1 WLR 640 (striking out case brought in abuse of
process).
Stephenson v Garrett [1898] 1 QB 677

• In an action in a county court judgment was recovered for a sum of money and costs,
but before the costs were taxed the plaintiff agreed, on a representation of the poverty
of the defendant, to accept a smaller sum than that for which judgment had been given,
and executed a deed releasing the defendant from the judgment debt and costs.
Subsequently the plaintiff carried in his bill of costs, and applied to the county court
judge for an order to tax, upon the ground that the release had been obtained by
misrepresentation. The judge, after hearing evidence, found that the execution of the
deed had been obtained by misrepresentation, and made an order that the costs should
be taxed, and should be paid together with the balance remaining due under the
judgment. The defendant in that action thereupon brought the present action in the
High Court for a declaration that he had been released from the judgment debt and
costs, and for an injunction to restrain further proceedings to enforce payment thereof:
• Held, that as the question raised in this action was identical with that decided by
the county court judge upon the interlocutory application, and had been decided
by a court of competent jurisdiction, the action ought to be stayed as frivolous and
vexatious and an abuse of the process of the Court.
Goh Koon Suan v Heng Gek Kian & Ors [1991] 2 MLJ 307
• Held - A proceeding was vexatious when the party bringing it was not acting bona fide
and merely wished to annoy or embarrass his opponent or when it was not calculated to
lead to any practical result. Abuse of the process of the court was a term generally
applied to a proceeding which was wanting in bona fides and was frivolous, vexatious
or oppressive. In the instant case, the plaintiff`s action against the second to fifth
defendants was: (a) unsustainable and could not possibly hope to achieve any result;
(b) not instituted in good faith as the plaintiff`s solicitors knew that the second to fifth
defendants had to hand over the 10% deposit and sale proceeds to their client; (c) in the
opinion of the court, meant to embarrass the second to fifth defendants.
Grovit & Ors v Doctor & Ors [1997] 1 WLR 640

• Abstract: G appealed against the dismissal of his appeal against a decision that his libel
writ and statement of claim should be struck out for want of prosecution on the grounds
that G had no intention of bringing the litigation to a conclusion. G contended that his
conduct did not amount to an abuse of process under the first limb of the test in Birkett
v James [1978] A.C. 297 and that, whilst there had been inordinate and inexcusable
62
delay, no serious prejudice had been caused to the defendant so as to satisfy the second
limb of the test.
• Summary: Held, dismissing the appeal, that abuse of process was by itself a ground
for striking out or staying proceedings which operated independently of the first limb
of the test in Birkett. The requirement in the second limb of the test that the delay must
cause serious prejudice to the defendant had been the subject of criticism, but until
new rules were introduced it might be preferable not to impinge on the principles laid
down in Birkett. In the meantime, both defendants and the court had the means to deal
with delay, through the use of peremptory orders and unless orders. On the facts, the
Court of Appeal had been entitled to conclude that the reason for G's inactivity was
that he did not intend to pursue the proceedings, and such conduct constituted an
abuse of process.
• White Book, para 18/19/17.
- Whether amendment of pleadings to be disregarded – if after close, then

disregarded. Take orig close of pleadings and disregard any pleadings that
happened after close.
- If amendment happened before close of pleadings, then counting of 28 dyas fr
close must include amendment. No close of pleadings yet. Factor in whatever
amendments that happened.
(E) DISCONTINUANCE AND WITHDRAWAL– ORDER 21
Withdrawal of Appearance
- A party who has entered an appearance in an action may withdraw the appearance at
any time with the leave of the Court. See Order 21, rule l.
Withdrawal of appearance (O. 21, r. 1)

1. A party who has entered an appearance in an action may withdraw the appearance at
any time with the leave of the Court.
- However, withdrawal of appearance usually applies to an appearance entered by

mistake or accident but not otherwise. –
Somportex v Philadelphia Chewing Gum Co [1968] 3 AER 26.

- Summary: Leave to withdraw a conditional appearance will not be granted to a
party who, upon proper legal advice and without mistake, has entered such an
appearance and has failed in an attempt to set aside the writ. A Co (an English
company) issued a writ against B Co (an American company) claiming damages for
breach of contract, and leave was obtained to serve notice of the writ out of the
jurisdiction. B Co, acting upon the advice of London solicitors, entered a conditional
appearance under the Rules of the Supreme Court Ord. 12, r. 7; it was deposed on
behalf of B Co that this was done purely on a tentative basis and without prejudice to B
Co's right to contest the jurisdiction of the English court. B Co issued a summons for
63
the setting aside of the writ; this was dismissed but the judge granted B Co leave to
withdraw their conditional appearance under RSC, Ord. 21, r. 1.
- On appeal by A Co against the judge's grant of leave, held, allowing the appeal, that
leave ought not to be granted.
Discontinuance of an action
1. Without leave.
Discontinuance of action, etc., without leave (O. 21, r. 2)

2. —(1) The plaintiff in an action begun by writ may, without the leave of the Court,
discontinue the action, or withdraw any particular claim made by him therein, as against
all or any of the defendants at any time not later than 14 days after service of the defence
on him or, if there are 2 or more defendants, of the defence last served, by serving a
notice in Form 30 to that effect on the defendant concerned.
(2) A defendant may, without the leave of the Court —
(a) withdraw his defence or any part of it at any time;
(b) discontinue a counterclaim, or withdraw any particular claim made by him therein, as
against all or any of the parties against whom it is made, at any time not later than 14
days after service on him of a defence to counterclaim or, if the counterclaim is made
against 2 or more parties, of the defence to counterclaim last served,
by serving a notice in Form 30 to that effect on the plaintiff or other party concerned.
(3) Where there are 2 or more defendants to an action not all of whom serve a defence on
the plaintiff, and the period fixed under these Rules for service by any of those
defendants of his defence expires after the latest date on which any other defendant
serves his defence, paragraph (1) shall have effect as if the reference therein to the service
of the defence last served were a reference to the expiration of that period.
This paragraph shall apply in relation to a counterclaim as it applies in relation to an
action with the substitution for references to a defence, to the plaintiff and to paragraph
(1), of references to a defence to counterclaim, to the defendant and to paragraph (2)
respectively.
(4) If all the parties to an action consent, the action may be withdrawn without the leave
of the Court at any time before trial by producing to the Registrar a written consent to the
action being withdrawn signed by all the parties.
(5) An action begun by writ is deemed to have been discontinued against a defendant if
the memorandum of service referred to in Order 10, Rule 1 (4), is not filed in respect of
the service of the writ on that defendant within 12 months after the validity of the writ for
the purpose of service has expired, and, within that time —
(a) a memorandum of appearance has not been filed in the action by that defendant; and
(b) judgment has not been obtained in the action against that defendant in respect of the
whole or any part of the relief claimed against that defendant in the action.
(6) Subject to paragraph (6A), if no party to an action or a cause or matter has, for more
than one year (or such extended period as the Court may allow under paragraph (6B)),
taken any step or proceeding in the action, cause or matter that appears from records
maintained by the Court, the action, cause or matter is deemed to have been discontinued.
(6A) Paragraph (6) shall not apply where the action, cause or matter has been stayed
pursuant to an order of court.
64
(6B) The Court may, on an application by any party made before the one year referred to
in paragraph (6) has elapsed, extend the time to such extent as it may think fit.
(7) Paragraph (6) shall apply to an action, a cause or a matter, whether it commenced
before, on or after 15th December 1999, but where the last proceeding in the action,
cause or matter took place before 1st January 2000, the period of one year shall only
begin on 1st January 2000.
(8) Where an action, a cause or a matter has been discontinued under paragraph (5) or (6),
the Court may, on application, reinstate the action, cause or matter, and allow it to
proceed on such terms as it thinks just.
- 21, r 2 allows discontinuance of action begun by writ or any claim therein without leave
of court if it is discontinued not later than 14 days after service of defence. – file
notice of discontinuance good enough
- Under rule 2(2)(a), a defendant can without leave withdraw defence at any time. The
party seeking to discontinue should file Form 36 with costs implications under O 59 r
10(1) read with O 59 r 3. O 21, r 2(4) allows parties at any time before trial to produce
before the Registrar a copy of the written consent of all parties to discontinue.
- NB: Equally applies to a Counterclaim.
- Order 21, rule 2(2) - The DEFENDANT may, without leave of Court:
- Withdraw his defence at any time (rule 2(2)(a))
- Discontinue a counterclaim, or withdraw any claim, at any time no later than 14
days after service of the defence.
- The defendant must serve notice in Form 30
• The party seeking to discontinue should file form 30 with cost implications under O 59
r 10 (1) read with O 59 r 3.
When a party may sign judgment for costs without an order (O. 59, r. 10)
10. —(1) Where —
(a) a plaintiff by notice in writing and without leave either wholly discontinues his action
against any defendant or withdraws any particular claim made by him therein against any
defendant; or
(b) an action, a cause or matter is deemed discontinued,
the defendant may, unless the Court otherwise orders, tax his costs of the action, cause or
matter and if the taxed costs are not paid within 4 days after taxation, may sign judgment
for them. The reference to a defendant in this paragraph shall be construed as a reference
to the person (howsoever described) who is in the position of defendant in the proceeding
in question, including a proceeding on a counterclaim.
When costs to follow the event (O. 59, r. 3)

3. —(1) Subject to the following provisions of this Order, no party shall be entitled to
recover any costs of or incidental to any proceedings from any other party to the
proceedings except under an order of the Court.
(2) If the Court in the exercise of its discretion sees fit to make any order as to the costs
of or incidental to any proceedings, the Court shall, subject to this Order, order the costs
to follow the event, except when it appears to the Court that in the circumstances of the
case some other order should be made as to the whole or any part of the costs.
65
(3) The costs of and occasioned by any amendment made without leave in the writ of
summons or any pleadings shall be borne by the party making the amendment, unless the
Court otherwise orders.
(4) The costs of and occasioned by any application to extend the time fixed by these
Rules, or any direction or order thereunder, for serving or filing any document or doing
any other act (including the costs of any order made on the application) shall be borne by
the party making the application, unless the Court otherwise orders.
(5) If a party on whom a notice to admit facts is served under Order 27, Rule 2, refuses or
neglects to admit the facts within 14 days after the service on him of the notice or such
longer time as may be allowed by the Court, the costs of proving the facts shall be paid
by him, unless the Court otherwise orders.
(6) If a party —
(a) on whom a list of documents is served in pursuance of any provision of Order 24; or
(b) on whom a notice to admit documents is served under Order 27, Rule 5,
gives notice of non-admission of any of the documents in accordance with Order 27, Rule
4 (2) or 5 (2), as the case may be, the costs of proving that document shall be paid by
him, unless the Court otherwise orders.
(7) Where a defendant by notice in writing and without leave discontinues his
counterclaim against any party or withdraws any particular claim made by him therein
against any party, that party shall, unless the Court otherwise directs, be entitled to his
costs of the counterclaim or his costs occasioned by the claim withdrawn, as the case may
be, incurred to the time of receipt of the notice of discontinuance or withdrawal.
(8) Where a plaintiff accepts money paid into Court by a defendant who counterclaimed
against him, then, if the notice of payment given by that defendant stated that he had
taken into account and satisfied the cause of action or, as the case may be, all the causes
of action in respect of which he counterclaimed, that defendant shall, unless the Court
otherwise directs, be entitled to his costs of the counterclaim incurred to the time of
receipt of the notice of acceptance by the plaintiff of the money paid into Court.
(9) Where any person claiming to be a creditor comes in to prove his title, debt or claim
in relation to a company in pursuance of any such notice as is mentioned in Order 88,
Rule 10, he shall, if his claim succeeds, be entitled to his costs incurred in establishing it,
unless the Court otherwise directs, and, if his claim or any part thereof fails, may be
ordered to pay the costs of any person incurred in opposing it.
(10) Where a claimant is entitled to costs under paragraph (9), the amount of the costs
shall be fixed by the Court unless it thinks fit to direct taxation and the amount fixed or
allowed shall be added to the claimant’s debt.
• Order 21, rule 2(4): deals with Withdrawn by Consent by both parties – The Rule states
that if all parties to an action consent, the action may be withdrawn without leave of
the Court at any time before trial by producing to the Registrar a written consent
of all parties.
2. With leave.
- Where it does not fall under rule 2 (O 21 r 3(1)), for e.g., other originating processes,
leave is required.
- The application is by SIC (O 21 r 3(2)).
66
Discontinuance of action, etc., with leave (O. 21, r. 3)
3. —(1) Except as provided by Rule 2, a party may not discontinue an action (whether
begun by writ or otherwise) or counterclaim, or withdraw any particular claim made by
him therein, without the leave of the Court, and the Court hearing an application for the
grant of such leave may order the action or counterclaim to be discontinued, or any
particular claim made therein to be struck out, as against all or any of the parties against
whom it is brought or made on such terms as to costs, the bringing of a subsequent action
or otherwise as it thinks just.
(2) An application for the grant of leave under this Rule may be made by summons.
- The court on hearing such summons will make an order “on such terms as to costs, the
bringing of a subsequent action or otherwise as it thinks just.”
Rohde & Liesenfeld v Jorg Geselle & Ors [1998] 3 SLR 772.
- Held: Order 21, rule 3(1) conferred on the court a wide discretion to order that the
action or claim be discontinued on such terms as it thought just.
- The Court would normally grant leave if no injustice was caused to the defendant and
he was not deprived of some advantage which he had already gained in the litigation.
- The court would be ready to grant him adequate protection to ensure that any advantage
he had gained was preserved. In granting leave to withdraw a claim with or without
condition, public interest, where appropriate, would also be considered.
- If plaintiff pays costs, def takes next step – he is entitled to ask for taxed costs on
standard basis (p and p costs). If no agreement bet plaintiff and def, take out bill of
costs – send to taxing registrar for taxation etc
3. Miscellaneous.
- • 21 r 3 (Court may order costs against party discontinuing).
- Order 21, rule 2(5) – An action is deemed to have been discontinued if the
memorandum of service has not been filed; memorandum of appearance has not
been filed; and no judgment has been entered, with the usual costs implications
under O 59 r 10(l)(b).
 def can then apply for plaintiff to pay costs
 exception: Action has been stayed by court (r 2(6A)). Affected parties can apply
to extend time (r 2(6B)).
- Order 21, rule 2(6) – An action is deemed to have been discontinued if no party to
the action has, for more than one year, taken any steps or proceedings in the action
with the usual costs implications under O 59 r 10(l)(b). Exception: Action has been
stayed by court (r 2(6A)). Affected parties can apply to extend time (r 2(6B)).
4. effect of discontinuance
- 21 r 4 (the fact of discontinuance is no defence to a subsequent action unless the Court
otherwise orders).
 Note that discontn does not affect merits of the case
67
 Discontinuance is just procedural, not substantive. Plus at discontinuance he is
given costs and therefore he doesn’t lose out.
Effect of discontinuance (O. 21, r. 4)

4. Subject to any terms imposed by the Court in granting leave under Rule 3, the fact that
a party has discontinued or is deemed to have discontinued an action or counterclaim or
withdrawn a particular claim made by him therein shall not be a defence to a subsequent
action for the same, or substantially the same, cause of action.
- 21 r 5 (stay of subsequent proceedings if costs of first action not paid).
Stay of subsequent action until costs paid (O. 21, r. 5)

5. —(1) Where a party has discontinued or is deemed to have discontinued an action
or counterclaim or withdrawn any particular claim made by him therein and he is
liable to pay any other party’s costs of the action or counterclaim or the costs
occasioned to any other party by the claim withdrawn, then, if before payment of
those costs, he subsequently brings an action for the same, or substantially the same,
cause of action, the Court may order the proceedings in that action to be stayed
until those costs are paid.
(2) An application for an order under this Rule may be made by summons or by notice
under Order 25, Rule 7.
- 21 r 6 (all SICs need leave of Court to be withdrawn).
Withdrawal of summons (O. 21, r. 6)

6. A party who has taken out a summons in a cause or matter may not withdraw it without
the leave of the Court.
(F) PAYMENT INTO COURT

- white elephant. Rare in practice
- Confined to Defendant only - Rarely used now after the introduction of Order 22A
Offer to Settle
- Helps to minimise your costs risk and your damages risk. But see cost benefit under
Order 22A
1. Object.
- An offer to dispose of the claim on terms.
A. Martin French v Kingswood Hill Ltd [1961] 1 QB 96 on 103 and Yip Kok Meng
Calvin v Lek Kan [1993] 2 SLR 134, 142.
- Devlin LJ - A payment into court is simply an offer to dispose of the claim on
terms. If the defendant were free to formulate the terms himself, he could make his
offer in whatever form he liked. He could offer either to settle the claim less the set-off,
or he could offer to settle the claim by itself, leaving the set-off alive to form the subject
of a counterclaim or another action. But if he seeks to effect his compromise under
68
the rules which permit a payment into court, he must make his offer according to
the rules. So the answer to the question must be sought by ascertaining and construing
the terms of the rule under which the payment into court is made. That means
construing R.S.C., Ord. 22, r. 1 (1), for that rule not only provides for payment in but
also prescribes the form of words that must be used in the notice of payment in. The
form of words used, and which had to be used in this case, is: The defendants "say that
that sum ... is enough to satisfy the plaintiff's claim." The plaintiff's claim cannot be
affected by the amount of the set-off. What he recovers may be, but not, unless he
admits the set-off, what he claims. The defendant, when he pays into court in these
terms, is not therefore paying in such sum as he thinks the plaintiff may be likely to
recover at the end of the day, but a sum to satisfy the plaintiff's claim as it then stands.
Ord. 22, r. 5, makes provision for the plaintiff paying in against the counterclaim, if he
wants to, but there is no provision for balancing one against the other.
Yip Kok Meng Calvin v Lek Kan [1993] 2 SLR 134

- Held - Whilst it was technically correct that a claim for interest was not a ‘cause of
action’ within the meaning of O 22 r1(1), the court was not obliged to disregard the
monetary value of an interest award which all parties were aware would, in all
probability, be made but could justifiably take the same into account when considering
how its discretion should be exercised.
- 31 It is commonplace that the judicial exercise of a discretion requires the court to take
into account relevant matters and to ignore irrelevant matters. Where the defendant
has made a payment in under O 22 r 1, the relevant matter to be considered is the
amount paid in as compared with the amount eventually awarded. Up till 1986
when the court’s practice in relation to the award of interest changed, the amount
adjudged in a running down action as due to the plaintiff was only the amount assessed
as special and general damages. That was the aggregate which had to be weighed
against the quantum paid in.
- 32 The position now is entirely different. It is usual for a successful plaintiff in a
running down case to be awarded interest on the amount of his damages from the date
of the writ up to the date of judgment. The award is made to compensate the plaintiff
for having been kept out of his money. Defendants and, even more, their solicitors are
aware of this situation. They know that unless they can show special circumstances, for
example, unreasonable and unjustified delay on the part of the plaintiff in prosecuting
the action, such interest will be awarded almost as a matter of course. This knowledge
was demonstrated in the present action when counsel for the defence, quite rightly, did
not even attempt to argue against the award of interest in favour of the plaintiff.
- 33 The payment-in procedure was instituted to provide a method of resolving the
dispute between the parties without recourse to the delay and expense of a trial. It
enables the defendant, by paying into court the amount which the defendant reasonably
estimates would be awarded to the plaintiff at the trial, to put the plaintiff at the risk of
incurring costs. My opinion is that a defendant would not, in the present regime, be
acting reasonably if in estimating the amount recoverable by the plaintiff in a running
down action he did not include interest calculated at the rates usually adjudged by the
court. Such interest calculation need, however, be made only for the period ending with
69
the date of the payment in as, if the plaintiff accepts the money, his action would end
then and no further interest would accrue. In my view it is, therefore, entirely relevant
for the court in assessing the difference, if any, between the amount paid in by the
defendant and that awarded to the plaintiff, to take into account the interest that would
have been payable to the plaintiff had the award for damages been made on the date of
payment in.
- 34 The English have dealt with this problem in a different way. In the English O22 r
1 there is an additional para 8 which does not appear in the Singapore O22 r 1. The
English paragraph reads:
- 8 For purposes of the this rule, the plaintiff’s cause of action in respect of a debt or
damages shall be construed as a cause of action, in respect also of such interest as might
be included in the judgment, whether under s 25(A) of the Act or otherwise if judgment
were given at the date of the payment into Court.
- 35 In its commentary on the above at para 22/1/11 the White Book states: Paragraph
(8) was introduced primarily to counteract the ruling in Jefford v Gee … that a claim
for interest … was not in itself ‘a cause of action’ and formed no part of the debt or
damages claimed, so that a defendant making a payment into court in satisfaction under
R 1, did not need to include any additional sum to cover the interest which may be
awarded by the trial judge in respect of the period prior to the payment into court …
Under this provision [the new para (8)], the defendant of course is not bound to pay into
court any sum in respect of interest, but if he fails to do so and if an award of interest is
eventually made he will be at risk on the question of costs, having paid into court an
inadequate sum … The operation of para (8) will have the effect that the trial judge may
have to make a special calculation of interest at the end of the trial for the purpose of
deciding whether the payment into court was adequate at the time it was made in order
to determine what order for costs should be made.
- 36 Whilst it is technically correct that a claim for interest is not ‘a cause of
action’ within the meaning of O 22 r 1(1), in my opinion that is not the end of the
matter. The discretion given to the court enables it to recognize and give effect to
shifts in judicial and legal philosophy and practice. In my judgment the court is
not obliged to disregard the monetary value of an interest award which all parties
were aware would, in all probability, be made but can justifiably take the same
into account when considering how its discretion should be exercised.
2. effect
- There is no admission on the merits and no estoppel is created.
- The payment in to settle should not be pleaded, unlike defence of tender before action,
and must not be communicated to the court until liability and damages have been
decided (O 22 r 7).
Non-disclosure of payment into Court (O. 22, r. 7)

7. Except in an action to which a defence of tender before action is pleaded, and except in
an action all further proceedings in which are stayed by virtue of Rule 3 (4) after the trial
or hearing has begun, the fact that money has been paid into Court under Rules 1 to 6
shall not be pleaded and no communication of that fact shall be made to the Court at the
trial or hearing of the action or counterclaim or of any question or issue as to the debt or
70
damages until all questions of liability and of the amount of debt or damages have been
decided.
- This Order applies to applies to actions for “debt or damages” only (O 22 r 1(1)) and
not to actions for account. – Nichols v Evens [1883] 22 Ch D 611. For other actions
(e.g. injunction) can use Calderbank letters i.e. “without prejudice save as to costs”
letters (Calderbank v Calderbank [1975] 3 AER 333; Computer Machinery Co Ltd v
Drescher [1983] 3 AER 153; Cutts v Head [1984] 1 AER 597. White Book para 22/1/6.
- An incentive for the defendant to make payment into court to settle is probably to
minimise his exposure to costs.
Nichols v Evens [1883] 22 Ch D 611

- Fry J - In my judgment that order applies, as is shewn by rule 1, only to a case in which
the Plaintiff is strictly seeking to recover a debt or damages, where the whole demand
applies to money. If the Plaintiff seeks an account it is impossible to satisfy that
demand by any specific payment of money.
Computer Machinery Co Ltd v Drescher [1983] 3 AER 153

- Per curiam: in any proceedings where a defendant makes an offer to submit to an
injunction, give an undertaking or afford any other relief "without prejudice" or
"without prejudice save as to costs" the court ought to enforce the terms on which
the offer is made in order to encourage compromises and shorten litigation; and
an offer "without prejudice save as to costs" has the advantage of preventing the
offer from being inadmissible on costs, thereby assisting the court towards justice in
making the order as to costs, especially where relief other than money is sought (dictum
of Cairns L.J. in Calderbank v. Calderbank [1976] Fam. 93 followed).
Cutts v Head [1984] 1 AER 597

- Summary: "Without prejudice" letters written in an attempt to settle an action are
admissible at the end of the case on the question of costs (Calderbank v. Calderbank
[1976] Fam. 93 applies).
3. Procedure.
Payment into Court (O. 22, r. 1)

1. —(1) In any action for a debt or damages any defendant may at any time after he has
entered an appearance in the action pay into Court a sum of money in satisfaction of the
cause of action in respect of which the plaintiff claims or, where 2 or more causes of
action are joined in the action, a sum or sums of money in satisfaction of all or any of
those causes of action.
(2) On making any payment into Court under this Rule, and on increasing any such
payment already made, the defendant must give notice thereof in Form 31 to the
plaintiff and every other defendant (if any); and within 3 days after receiving the
notice the plaintiff must send the defendant a written acknowledgment of its receipt.
(3) A defendant may, without leave, give notice of an increase in a payment made under
this Rule but, subject to that and without prejudice to paragraph (5), a notice of payment
71
may not be withdrawn or amended without the leave of the Court which may be granted
on such terms as may be just.
(4) Where 2 or more causes of action are joined in the action and money is paid into
Court under this Rule in respect of all, or some only of, those causes of action, the notice
of payment —
(a) must state that the money is paid in respect of all those causes of action or, as the case
may be, must specify the cause or causes of action in respect of which the payment is
made; and
(b) where the defendant makes separate payments in respect of each, or any 2 or more, of
those causes of action, must specify the sum paid in respect of that cause or, as the case
may be, those causes of action.
(5) Where a single sum of money is paid into Court under this Rule in respect of 2 or
more causes of action, then, if it appears to the Court that the plaintiff is embarrassed by
the payment, the Court may, subject to paragraph (6), order the defendant to amend the
notice of payment so as to specify the sum paid in respect of each cause of action.
(6) Where a cause of action under section 10 of the Civil Law Act (Chapter 43) and a
cause of action under section 20 of that Act are joined in an action, with or without any
other cause of action, the causes of action under those sections shall, for the purpose of
paragraph (5), be treated as one cause of action.
(7) For the purposes of this Rule, the plaintiff’s cause of action in respect of a debt
or damages shall be construed as a cause of action in respect, also, of such interest as
might be included in the judgment, if judgment were given at the date of the
payment into Court.
Defendant may at any time after he has entered an appearance in the action pay into
court. See O 22 rr 1 to 8.
- Order 22 r 1(1) - The defendant must have entered an appearance in the
action
 Order 22, rule 1(1) (“debt or damages”, “after he has entered appearance”, “pay
into Court”).
 Order 22, rule 1(2) (Form 37 - notice of payment in or increase of such payment
in).
 Order 22, rule 1(4) (must specify in respect of which cause of action it is paid
in).
 Order 22, rule 1(5) (if don’t state and thereby embarrass plaintiff, Court can
order notice to be amended so as to specify).
 Order 22, rule 2 (if defendant counterclaims, must state whether payment in
takes counterclaim into consideration).
 Order 22, rule 3(1) (plaintiff can accept within 14 days after notice of payment
in or last notice - Form 32 Notice to every defendant NB: must be before trial or
hearing begins).
 Order 22, rule 3(2) (after trial or hearing has begun, payment into Court or such
increase must be accepted within 2 days after receipt of notice of payment in).
 Order 22, rule 3(4) (upon acceptance, action stayed).
 Order 22, rule 3(6) (subject to rules 4 and 10 and Order 76, rule l2, entitled
toreceive payment of that sum).
72
 Order 22, rule 5 (if not accepted in accordance with rule 3 i.e. not within 14 day
or 2 day time-frames, need Order of Court to pay out money in Court).
 Order 22, rule 4 (generally need leave of court to pay out money)
 Order 22, rule 8 (paid in pursuant to an Order of Court, must obtain Order of
Court to pay out)
• Order22, rule 1(5) - if don’t state and thereby embarrass plaintiff, Court can
order notice to be amended so as to specify.
• Within 3 days of receiving the notice, the Plaintiff must send the defendant a
written acknowledgement of its receipt.
Payment in by defendant who has counterclaim – Order 22, rule 2

• Order 22, rule 2 - If the defendant has made a counterclaim against the
plaintiff for a debt or damages, and he pays money into Court under Order 22,
the notice of payment must specify whether the payment into Court has
taken into account the counterclaim
Payment in by defendant who has counterclaimed (O. 22, r. 2)

2. Where a defendant, who makes by counterclaim a claim against the plaintiff for a debt
or damages, pays a sum of money into Court under Rule 1, the notice of payment must
state, if it be the case, that in making the payment the defendant has taken into account
and intends to satisfy —
(a) the cause of action in respect of which he claims; or
(b) where 2 or more causes of action are joined in the counterclaim, all those causes of
action or, if not all, which of them.
Acceptance of the Money paid into Court – Order 22, rule 3

• Order 22, rule 3(1) - If before trial or hearing begins - The Plaintiff can accept
money within 14 days after notice of payment or last notice by giving notice in
Form 38 to every defendant to the action before trial or hearing begins.
• Order 22, rule 3(2) - If after trial or hearing has begun – payment into Court or
such increase must be accepted within 2 days after receipt of notice of payment in
before the Judge begins to deliver judgment
• Order 22, rule 3(4) - Upon the plaintiff’s acceptance of the payment into Court, all
further proceedings in the action shall be stayed.
• Order 22, rule 3(6) – (subject to rules 4 and 10 and Order 76, rule 12, entitled to receive
payment of that sum).
• Order 22, rule 5 – (if not accepted in accordance with rule 3 i.e. not within 14 day or 2
day time-frames, need Order of Court to pay out money in Court).
Acceptance of money paid into Court (O. 22, r. 3)

3. —(1) Where money is paid into Court under Rule 1, then subject to paragraph (2),
within 14 days after receipt of the notice of payment or, where more than one payment
has been made or the notice has been amended, within 14 days after receipt of the notice
of the last payment or the amended notice but, in any case, before the trial or hearing of
the action begins, the plaintiff may —
73
(a) where the money was paid in respect of the cause of action or all the causes of action
in respect of which he claims, accept the money in satisfaction of that cause of action or
those causes of action, as the case may be; or
(b) where the money was paid in respect of some only of the causes of action in respect
of which he claims, accept in satisfaction of any such cause or causes of action the sum
specified in respect of that cause or those causes of action in the notice of payment,
by giving notice in Form 32 to every defendant to the action.
(2) Where after the trial or hearing of an action has begun —
(a) money is paid into Court under Rule 1; or
(b) money in Court is increased by a further payment into Court under that Rule,
the plaintiff may accept the money in accordance with paragraph (1) within 2 days after
receipt of the notice of payment or notice of the further payment, as the case may be, but,
in any case, before the Judge begins to deliver judgment.
(3) Rule 1 (5) shall not apply in relation to money paid into Court in an action after the
trial or hearing of the action has begun.
(4) On the plaintiff accepting any money paid into Court all further proceedings in the
action or in respect of the specified cause or causes of action, as the case may be, to
which the acceptance relates, both against the defendant making the payment and against
any other defendant sued jointly with or in the alternative to him shall be stayed.
(5) Where money is paid into Court by a defendant who made a counterclaim and the
notice of payment stated, in relation to any sum so paid, that in making the payment the
defendant had taken into account and satisfied the cause or causes of action, or the
specified cause or causes of action in respect of which he claimed, then, on the plaintiff
accepting that sum, all further proceedings on the counterclaim or in respect of the
specified cause or causes of action, as the case may be, against the plaintiff shall be
stayed.
(6) A plaintiff who has accepted any sum paid into Court shall, subject to Rules 4 and 10
and Order 76, Rule 12, be entitled to receive payment of that sum in satisfaction of the
cause or causes of action to which the acceptance relates.
Money remaining in Court (O. 22, r. 5)

5. If any money paid into Court in an action is not accepted in accordance with Rule 3,
the money remaining in Court shall not be paid out except in pursuance of an order of the
Court which may be made at any time before, at or after the trial or hearing of the action;
and where such an order is made before the trial or hearing the money shall not be paid
out except in satisfaction of the cause or causes of action in respect of which it was paid
in.
Order 22, rule 4 –

• rule 4(1)(a) read with rule 4(2), generally need leave of court to pay out
money unless plaintiff discontinues the action and obtains consent of those
defendants who did not pay the money in.
• Order 22, rules 4(l)(b) and (c) – (need Order of Court to pay out money).
74
Order for payment out of money accepted required in certain cases (O. 22, r. 4)
4. —(1) Where a plaintiff accepts any sum paid into Court and that sum was paid into
Court —
(a) by some but not all of the defendants sued jointly or in the alternative by him;
(b) with a defence of tender before action; or
(c) in satisfaction either of causes of action arising under sections 10 and 20 of the Civil
Law Act (Chapter 43) or of a cause of action arising under the said section 20 where
more than one person is entitled to the money,
the money in Court shall not be paid out except under paragraph (2) or in pursuance of an
order of the Court, and the order shall deal with the whole costs of the action or of the
cause of action to which the payment relates, as the case may be.
(2) Where an order of the Court is required under paragraph (1) by reason only of
paragraph (1) (a), then, if, either before or after accepting the money paid into Court by
some only of the defendants sued jointly or in the alternative by him, the plaintiff
discontinues the action against all other defendants and those defendants consent in
writing to the payment out of that sum, it may be paid out without an order of the Court.
(3) Where after the trial or hearing of an action has begun a plaintiff accepts any money
paid into Court and all further proceedings in the action or in respect of the specified
cause or causes of action, as the case may be, to which the acceptance relates are stayed
by virtue of Rule 3 (4) then, notwithstanding anything in paragraph (2), the money shall
not be paid out except in pursuance of an order of the Court, and the order shall deal with
the whole costs of the action.
Order 22, rule 8 – (paid in pursuant to an Order of Court, must obtain Order of
Court to pay out)
Money paid into Court under order of Court (O. 22, r. 8)

8. —(1) Subject to paragraph (2), money paid into Court under an order of the Court or a
certificate of the Registrar shall not be paid out except in pursuance of an order of the
Court.
(2) Unless the Court otherwise orders, a party who has paid money into Court in
pursuance of an order made under Order 14 —
(a) may by notice to the other party appropriate the whole or any part of the money and
any additional payment, if necessary, to any particular claim made in the writ or
counterclaim, as the case may be, and specified in the notice; or
(b) if he pleads a tender, may by his pleading appropriate the whole or any part of the
money as payment into Court of the money alleged to have been tendered,
and money appropriated in accordance with this Rule shall be deemed to be money paid
into Court in accordance with Rule 1 or money paid into Court with a plea of tender, as
the case may be, and this Order shall apply accordingly.
4. Costs.
- Order 59, rule 10(2) and Order 59, rule 3.
- After 4 days from payment out and unless the Court otherwise orders, plaintiff may tax
his costs incurred to the time of receipt of the notice of payment into Court and 48
hours after taxation may sign udgment for his taxed costs.48
75
- See O 22 r 1(7) on the inclusion of interest in the payment into court.49
When a party may sign judgment for costs without an order (O. 59, r. 10)
10. (2) If a plaintiff accepts money paid into Court in satisfaction of the cause of action,
or all the causes of action, in respect of which he claims, or if he accepts a sum or sums
paid in respect of one or more specified causes of action and gives notice that he
abandons the others, then subject to paragraph (4), he may, after 4 days from payment out
and unless the Court otherwise orders, tax his costs incurred to the time of receipt of the
notice of payment into Court and 48 hours after taxation may sign judgment for his taxed
costs.
- For examples, see Findlay v Railway Executive [1950] 2 AER 969, Wagman v Vare
Motors Pte Ltd [1959] 1 WLR 853 and Roache v News Group Newspaper Ltd & Other,
Times, 23rd November 1992.
Findlay v Railway Executive [1950] 2 AER 969

- Summary: A defendant who has paid money into Court which has not been taken out
and exceeds the sum awarded to the plaintiff is a successful litigant or a successful
party, who, in the absence of special circumstances, should receive his costs. Per
Cohen, L.J.: "I think it could only be [right to make the defendants pay the costs after
the date of payment in] where there was something in the conduct of the defendants
which justified the plaintiff in proceeding to trial". The defendants admitted liability in
proceedings brought by the plaintiff in respect of injuries suffered by him in a railway
accident. They paid GBP 920 into Court. That money was not taken out of Court. At the
trial Byrne, J., awarded the plaintiff GBP 867 5s. 1d. damages and gave him the costs.
Held, on appeal, as the defendants were the successful litigants or parties, and as there
were no circumstances entitling the Judge to deprive the successful defendants of their
costs, the order as to costs could not stand, and the appeal had to be allowed
Wagman v Vare Motors Pte Ltd [1959] 1 WLR 853

- The defendants to an action for damages for personal injuries resulting from a road
collision paid GBP 575 into court, and the judge awarded precisely that sum as
damages. The judge refused to make any order as to costs, stating that he had never
thought of giving less than GBP 575 but that there had been times when he had thought
of giving more than that amount.
- Summary: Held, allowing the defendants' appeal as to costs, it was not a good basis
for the exercise of the judge's discretion to say that possibly a larger amount might
have been awarded; the costs after the date of payment in should be the
defendants'.
- Order 22, rule 8 – (if money is paid in pursuant to Order of Court, must obtain
Order of Court to pay out).
- See O 22 r 1(7) on the inclusion of interest in the payment into court - Yip Kok Meng
Calvin v Lek Yong Han [1993] 2 SLR 134 (see above)
76
(G) OFFER TO SETTLE – very impt in practice!!!! – ORDER 22A (unique to
Singapore, applies where case comes to court c.f. Calderbank letter sent way before
matter comes to court).
- Win action – p to p costs. Usually on std basis.

- Normally do you pay costs or get costs. – losing party pays. Under o22A, if make offer
to settle and depending, as losing party, not only do not have to pay costs but get costs
fr winning party. Not only get costs but at certain stage even get costs beyond standard
basis ie indemnity basis.
- Ie order 22A upset the cost regime. Even losing party – if make good offer to settle,
may get costs on indemnity costs!
- Special sg provision.
1. Scope.
- A party to any proceedings may serve on any other party an offer to settle any one or
more of the claims in the proceedings on the terms specified in the offer to settle.
- Lawyers usu make offer globally
- Where eg claim is 30000, offer for 20000, went to trial, judgement turned out to be
25000. def at fault here so he must pay costs – his offer was less than judgement sum.
Cost on std basis
- Where eg claim 30000, offer for 20000, refused to accept, judgement sum for 18000, so
plaintiff penalized for not accepting the offer which was more. So plaintiff will get usu
party and party costs on std basis BEFORE offer made. But after offer made and he
refused to accept it, costs shld be paid by plaintiff on basis tt he refused to accept good
offer.
2. Procedure
- The offer to settle shall be in Form 33 (r 1). An offer to settle may be made at any time
before the Court disposes of the matter in respect of which it is made (r 2).
 The earlier you offer, the cost window to benefit is greater
 So offer as early as possible
- It may be withdrawn using Form 34 (r 3(3)). The offer is not to be disclosed (r 5).
- Acceptance of the offer is in Form 38C (r 6).
- Any party can do OTS. Even plaintiff.
- An offer to settle shall be open for acceptance for a period of not less than 14 days after
it is served.
 Some OTS are contg offers which kep going until judgement
- If an offer to settle is made less than 14 days before the hearing of the matter, it shall
remain open for a period of not less than 14 days unless in the meanwhile the matter is
disposed of (r 3(3)).
- Where an offer to settle does not specify a time for acceptance, it may be accepted at
any time before the Court disposes of the matter in respect of which it is made (r 3(5)).
- An offer to settle which does not specify a time for acceptance may be withdrawn at
any time after the expiry of 14 days from the date of service of the offer on the other
77
party provided that at least one day’s prior notice of the intention to withdraw the
offer is given (r 3(2)).
- An offer to settle with a party under disability must be approved by the court under O
76 r 10.
 Also special rules for govt and admiralty cases
OFFER
o Order 22A, Rule 1 - A party to the proceeding may make an offer to settle in Form 33.
Offer to settle (O. 22A, r. 1)

1. A party to any proceedings may serve on any other party an offer to settle any one or
more of the claims in the proceedings on the terms specified in the offer to settle. The
offer to settle shall be in Form 33.
a) Order 22A (2) – The offer can be made at any time before the Court disposes of the
matter (can be before or during trial as long as before the court gives judgment).
Timing (O. 22A, r. 2)

2. An offer to settle may be made at any time before the Court disposes of the matter in
respect of which it is made.
b) An offer to settle shall be open for acceptance for a period of not less than 14 days
after it is served. If an offer to settle is made less than 14 days before the hearing of
the matter, it shall remain open for a period of not less than 14 days unless in the
meanwhile the matter is disposed of (r 3(1)).
c) An offer to settle which does not specify a time for acceptance may be withdrawn at
any time after the expiry of 14 days from the date of service of the offer on the
other party provided that at least one day’s prior notice of the intention to
withdraw the offer is given (r 3(2)).
d) It may be withdrawn using Form 34 (r 3(3)).
e) Where an offer to settle does not specify a time for acceptance, it may be accepted
at any time before the Court disposes of the matter in respect of which it is made (r
3(5)).
Time for acceptance and withdrawal (O. 22A, r. 3)

3. —(1) An offer to settle shall be open for acceptance for a period of not less than 14
days after it is served. If an offer to settle is made less than 14 days before the hearing of
the matter, it shall remain open for a period of not less than 14 days unless in the
meanwhile the matter is disposed of.
(2) Subject to paragraph (1), an offer to settle which is expressed to be limited as to the
time within which it is open for acceptance shall not be withdrawn within that time
without the leave of the Court. An offer to settle which does not specify a time for
acceptance may be withdrawn at any time after the expiry of 14 days from the date of
78
service of the offer on the other party provided that at least one day’s prior notice of the
intention to withdraw the offer is given.
(3) The notice of withdrawal of the offer shall be in Form 34.
(4) Where an offer to settle specifies a time within which it may be accepted and it is not
accepted or withdrawn within that time, it shall be deemed to have been withdrawn when
the time expires.
(5) Where an offer to settle does not specify a time for acceptance, it may be accepted at
any time before the Court disposes of the matter in respect of which it is made.
f) Order 22A, rule 5: deals with Non-disclosure of the offer – An offer to settle shall not
be filed and no statement of the fact that an offer has been made shall be
contained in any pleading or affidavit.
Without prejudice Rule (O. 22A, r. 4)

4. An offer to settle shall be deemed to be an offer of compromise made without prejudice
save as to costs.
Non-disclosure (O. 22A, r. 5)
5. —(1) An offer to settle shall not be filed and no statement of the fact that such an offer
has been made shall be contained in any pleading or affidavit.
(2) Where an offer to settle is not accepted, no communication respecting the offer shall
be made to the Court at the hearing of the proceeding until all questions of liability and
the relief to be granted, other than costs, have been determined.
ACCEPTANCE
g) Order 22A, rule 6: deals with the Manner of Acceptance – An offer to settle shall be
accepted by serving an acceptance of offer in Form 38C on the party who made the
offer.
Manner of acceptance (O. 22A, r. 6)

6. —(1) An offer to settle shall be accepted by serving an acceptance of offer in Form 35
on the party who made the offer.
(2) Where a party to whom an offer to settle is made rejects the offer or responds with a
counter-offer that is not accepted, the party may thereafter accept the original offer to
settle, unless it has been withdrawn or the Court has disposed of the matter in respect of
which it was made.
(3) Where an offer is accepted, the Court may incorporate any of its terms into a
judgment.
h) An offer to settle with a party under disability (e.g. mentally unsound, infant) must
be approved by the court under, Order 76 r 10 to ensure that such party is not
prejudiced.
3. Costs.
- Rule 9 – read how it works. The diff factual matrixes

- But typical rationale -
79
- One of the typical situations is this: if an offer under this Order (22A) is made is not
accepted and the judgment in favour of the offeror turns out to be better than the offer
made, the offeror gets cost on the standard basis up to the date the offer was
served and on an indemnity basis thereafter.50
 If plaintiff is offeror then the above applies
 But if defendant is the one who offers. Plaintiff will only get costs fr itme
started writ up to time he got the offer. But after the offer made which plaintiff
did not accept, def will get costs. Because good offer made was rejected.
- Ie incentive to offer reasonably.
- Rationale of order 22A – just, economical and fair disposal of case
- Applies even for slight margins
 NIMA cases; PIMA cases
- See more instances below:
o Rule 9(1). Where an offer to settle made by a plaintiff (a) is not withdrawn and has
not expired before the disposal of the claim in respect of which the offer to settle is
made; and (b) is not accepted by the defendant, and the plaintiff obtains a judgment not
less favourable than the terms of the offer to settle, the plaintiff is entitled to costs on
the standard basis to the date an offer to settle was served and costs on the indemnity
basis from that date, unless the Court orders otherwise.
o Rule 9(3). Where an offer to settle made by a defendant (a) is not withdrawn and has
not expired before the disposal of the claim in respect of which the offer to settle is
made; and (b) is not accepted by the plaintiff, and the plaintiff obtains judgment not
more favourable than the terms of the offer to settle, the plaintiff is entitled to costs on
the standard basis to the date the offer was served and the defendant is entitled to costs
on the indemnity basis from that date, unless the Court orders otherwise.
Costs (O. 22A, r. 9)

9. —(1) Where an offer to settle made by a plaintiff —
(a) is not withdrawn and has not expired before the disposal of the claim in respect of
which the offer to settle is made; and
(b) is not accepted by the defendant, and the plaintiff obtains a judgment not less
favourable than the terms of the offer to settle,
the plaintiff is entitled to costs on the standard basis to the date an offer to settle was
served and costs on the indemnity basis from that date, unless the Court orders otherwise.
(2) Where an accepted offer to settle does not provide for costs —
(a) where the offer was made by the plaintiff, he will be entitled to his costs assessed to
the date that the notice of acceptance was served;
(b) where the offer was made by the defendant, the plaintiff will be entitled to his costs
assessed to the date he was served with the offer, and the defendant will be entitled to his
costs from the date 14 days after the date of the service of the offer assessed up to the
date that the notice of acceptance was served.
(3) Where an offer to settle made by a defendant —
(a) is not withdrawn and has not expired before the disposal of the claim in respect of
which the offer to settle is made; and
(b) is not accepted by the plaintiff, and the plaintiff obtains judgment not more favourable
than the terms of the offer to settle,
80
the plaintiff is entitled to costs on the standard basis to the date the offer was served and
the defendant is entitled to costs on the indemnity basis from that date, unless the Court
orders otherwise.
(4)
(a) Any interest awarded in respect of the period before service of the offer to settle is to
be considered by the Court in determining whether the plaintiff’s judgment is more
favourable than the terms of the offer to settle.
(b) Any interest awarded in respect of the period after service of the offer to settle is not
to be considered by the Court in determining whether the plaintiff's judgment is more
favourable than the terms of the offer to settle.
(5) Without prejudice to paragraphs (1), (2) and (3), where an offer to settle has been
made, and notwithstanding anything in the offer to settle, the Court shall have full power
to determine by whom and to what extent any costs are to be paid, and the Court may
make such a determination upon the application of a party or of its own motion. .
4. Case Law
• The offer to settle should be a serious and a genuine offer and not just to entail the
payment of costs on an indemnity basis.
• An offer to have the effect contemplated in Order 22A, rule 9 must contain an element
which would induce or facilitate settlement
The Endurance I [1999] 1 SLR 661

• Held: The rationale behind Order 22A was to encourage the termination of litigation by
agreement of the parties – more speedily and less expensively than by judgment of the
court at the end of the trial.
• It is axiomatic to the proper application of Order 22A that the offer to settle should be
a serious and a genuine offer and not just to entail the payment of costs on an
indemnity basis. This is particularly so where the claim is for an unliquidated sum to
be ascertained.
• An assessment of damages, even where liability is a matter of course, can give rise to
numerous complexities and result in protracted hearings and expense. It must follow
that to offer to settle at a percentage of the unliquidated sum to be ascertained or of
damages to be assessed cannot be a serious and a genuine offer to settler but is
made to take an unfair advantage of Order 22A, rule 9. What is required is for the
plaintiff to make his own estimate of what the unliquidaed sum ought to be or his
own assessment of what the damages ought to be and to offer that sum as being a
fair and reasonable sum which the defendant ought to pay in settlement of his
claim.
Singapore Airlines Ltd v. Fujitsu Microelectronics (Malaysia) Sdn Bhd (No.2) [2001] 1
SLR 532
- Facts: The respondent sued SIA for loss package. The appellants argued that they were
entitled [pursuant to Order 22A, rule 9(3)], to costs for the action on an indemnity basis
from the date of their offer to settle. This was because the judgment sum was not more
favourable than the offer to settle. The CA rejected this argument.
81
- CA Held: It is axiomatic to the proper application of Order 22A that an offer to settle
should be a serious and genuine offer and not just to entail the payment on an
indemnity basis. On the facts, the actual loss incurred amounted to US$286,344.14,
whereas the Convention applied to limit the appellants’ liability to only $312. The
appellant’s offer to settle was for $347. It was ludicrous to suggest that any sensible
would go through trial of some 20 days only to defend a claim for $312.
- An offer to have the effect contemplated in Order 22A, rule 9 must contain an element
which would induce or facilitate settlement. In the circumstances, the offer to settle was
not really an offer to settle, as it did not contain any incentive to settle. Nor was there a
genuine effort to settle the crux of the dispute which was related to the difference
between actual value of the lost package and the sum laid down in the Convention.
- The order on costs against the respondent for the action (from the date of the offer), as
well as the appeal, would be on a standard basis.
Singapore Airlines Ltd v. Tan Shwu Leng [2001] 4 SLR 593

- Facts: The Plaintiff claimed $1.1 M. The offer to settle by SIA was $350K. Assessment
before the Registrar (4 ½ days) was $316K. On appeal, this amount was increased to
$352,279. The Plaintiff, however, was awarded only nominal costs of $1000 for work
done after the date of SIA’s offer to settle, even though judgment award better than
offer to settle.
- CA Held: Order 22A, rule 12 gave the court wide discretion to do justice between the
parties even where an offer to settle amount less than judgment. Here, the court rightly
awarded the plaintiff nominal costs, after considering that the difference between
the ‘offer to settle’’ and judgment was marginal. That plaintiff had 6 months to
consider offer to settle and his claim was manifestly excessive causing assessment
proceedings to go on for 4 ½ days.
Summary of case law

1. Cost consequences under Order 22A, rule 9 – Applies to the benefit of the Plaintiff
when the judgment he obtained is more favourable than the unaccepted offer to
settle.
2. Even in the event of (1), the court still has discretion under Order 22A, Rule 12 to
disallow the Plaintiff costs on the indemnity basis.
Discretion of Court (O. 22A, r. 12)

12. Without prejudice to Rules 9 and 10, the Court, in exercising its discretion with
respect to costs, may take into account any offer to settle, the date the offer was made, the
terms of the offer and the extent to which the plaintiff’s judgment is more favourable than
the terms of the offer to settle.
3. An offer to settle must be a ‘serious and genuine’ offer and must contain elements
which induce and facilitate settlement.
(H) JUDGMENTS ON ADMISSION (O 27) (very rare in practice)
82
- • A party may give notice by his pleading or in writing that he admits the truth of the
whole or any part of the case of any other party (r 1).
 Admission must be clear cut and unequivocal
Admission of case of other party (O. 27, r. 1)

1. Without prejudice to Order 18, Rule 13, a party to a cause or matter may give notice, by
his pleading or otherwise in writing, that he admits the truth of the whole or any part of the
case of any other party
- • A party to a cause or matter may not later than 14 days after the cause or matter is set
down for trial serve any other party to a notice requiring him to admit, for the purpose
of that cause or matter only, the facts specified in the notice (r 2(1)).
Notice to admit facts (O. 27, r. 2)

2. —(1) A party to a cause or matter may not later than 14 days after the cause or matter
is set down for trial serve on any other party a notice requiring him to admit, for the
purpose of that cause or matter only, the facts specified in the notice.
(2) An admission made in compliance with a notice under this Rule shall not be used
against the party by whom it was made in any cause or matter other than the cause or
matter for the purpose of which it was made or in favour of any person other than the
person by whom the notice was given, and the Court may at any time allow a party to
amend or withdraw an admission so made by him on such terms as may be just.
(3) A notice to admit facts under paragraph (1) must be in Form 51 and an admission
of facts under paragraph (2) in Form 52.
- • Where admissions of fact are made by a party, any other party to the cause or matter
may apply to the Court for such judgment on the admissions made without waiting for
the court’s determination of any other question, and the Court may give such judgment
(r 3).. Court has to peruse the defence and agree. It is not suitable when there is an
admission of law.
Judgment on admission of facts (O. 27, r. 3)

3. Where admissions of fact are made by a party to a cause or matter either by his
pleadings or otherwise, any other party to the cause or matter may apply to the Court for
such judgment or order as upon those admissions he may be entitled to, without waiting
for the determination of any other question between the parties, and the Court may give
such judgment, or make such order, on the application as it thinks just.
• • It may be obtained against one of several defendants.
Jenkins v Davies [1875- 1876] LR 1 Ch D 696

• A statement of defence was delivered in an action brought against a husband and wife
upon a joint and several promissory note given by them, which, purporting to be the
defence of both Defendants, raised no defence as regarded the husband:-
Held, upon motion for judgment, that the Plaintiffs were entitled under Order XL., rule
83
11, to final judgment against the husband without writing for the determination of the
case against the wife.
- O 27 can also apply to the defendant against plaintiff upon latter’s admissions in
pleadings– Pascoe v Richards [1881] 50 LJ Ch 337 (can’t find).
- A person applying for such a judgment must have a clear case. – Hughes v London,
Edinburgh & Glasgow Assurance Co [1891] 8 TLR 81 (can’t find).
- Judgment under O 27 can be entered only where defendant has made admissions of
fact.54 – not law!!!! – S Jayakumar & 4 Ors v JBJ [1997] 2 SLR 172.
S Jayakumar & 4 Ors v. JBJ [1997] 2 SLR 172

- Held, granting interlocutory judgment for the plaintiffs and for damages to be assessed:
- (1) The court’s discretionary power to give judgment under O 27 r 3 was exercisable
only where a defendant made admissions of fact. If the matter involved questions of
law, admissions of fact alone could not decide the matter. The rule excluded admissions
of non factual matters such as comments, opinions and admissions of law or mixed
facts of law. Defamation cases of the present kind were unsuitable for an application
under O 27 r 3 as such cases involved matters of law, questions of mixed law and fact
and opinions.
(I) CONTROL OF PROCEEDINGS BY COURT (O 4, R 1)
1. Objective for Consolidation of Proceedings
- The main purpose of consolidation is to save costs and time
Payne v. British Time Recorder Co [1921] 2 KB 1 at 16

- Scrutton LJ - Broadly speaking, where claims by or against different parties involve or
may involve a common question of law or fact bearing sufficient importance in
proportion to the rest of the action to render it desirable that the whole of the
matters should be disposed of at the same time the Court will allow the joinder of
plaintiffs or defendants, subject to its discretion as to how the action should be tried.
- Where two or more matters are pending, if it appears to the Court that —
- • some common question of law or fact arises in both or all of them;
- • the rights to relief claimed arise out of the same series of transactions; or
- • for some other reason it is desirable to make an order under this Rule,
- the Court may order that the matters be tried at the same time – consolidation - or one
immediately after another or stayed an of them until determination of any other of
them.
 Court will choose one action as the consolidated action and drop the
ancillary action
 So this helps terminate action
2. Grounds for Consolidation – Order 4, rule 1
84
Consolidation, etc., of causes or matters (O. 4, r. 1)
1. —(1) Where 2 or more causes or matters are pending, then, if it appears to the Court —
(a) that some common question of law or fact arises in both or all of them;
(b) that the rights to relief claimed therein are in respect of or arise out of the same
transaction or series of transactions; or
(c) that for some other reason it is desirable to make an order under this Rule,
the Court may order those causes or matters to be consolidated on such terms as it thinks
just or may order them to be tried at the same time or one immediately after another or
may order any of them to be stayed until after the determination of any other of them.
(2) An order for consolidation must be in Form 1 and shall direct that the cause or matter
in which the application is made shall thence forward be carried on in such other cause or
matter and that the title of such other cause or matter be amended by adding thereto the
title of the cause or matter in which the application is made.
(3) Upon such order being made, the file of the cause or matter in which the application is
made shall be transferred to and added to the file of such other cause or matter, and the
copy of the order shall be left in place of the file so transferred, and a memorandum of
the transfer shall be entered in the cause book against the cause or matter so consolidated.
- Order 4, rule 1 - provides the grounds on which the Court may order the
consolidation the actions:
(a) Order 4, rule 1(1)(a) – some common question of law or facts arises in both or all of
the cases
(b) Order 4, rule 1(1)(b) – the rights to relief claimed are in respect of or arise out of the
same transaction or series of transactions
(c) Order 4, rule 1(1)(c) – for some reason it is desirable to make an order under this
Rule.
- Order for consolidation must be in Form 1
3. Orders of the Court – Order 4, rule 1(1)

- Under Order 4, rule 1, the orders which the Court may make are:
(a) for the consolidation of the matters on such terms as the Court thinks just;
(b) for the matters to be tried at the same time;
(c) for the matters to be tried one immediately after another;
(d) for the matters to be stayed until after the determination of any of the matters.
4. Consequences of making an order under Order 4

(a) Title changed – The title of the matter shall be amended by adding the title of the
cause or matter in which the application is made: Order 4, rule 1(2)
(b) Documents are transferred to other file: Order 4, rule 1(3)
85
Lee Kuan Yew v. Tang Liang Hong [1997] 3 SLR 178, at 182-183
- On the question of consolidation, it was generally impossible to consolidate actions
where the plaintiffs in the actions had been and continued to be represented by
different solicitors who had, in each case, completed their research, getting-up
and, had been in the process of discovery of documents and other information.
- If an order for consolidation were made, only one set of solicitor would have
represented the lead plaintiff with the unfair consequences that the other plaintiffs
would have had to pay the costs of their solicitors without recourse against the
defendants.
5. When Proceedings can be Consolidated

- Can consolidate action - where plaintiffs are the same and the defendants are the same,
or where the plaintiffs or defendants or all are different: Horwood v. British Statement
Publishing Co Ltd [1929] (cannot find)
6. When Proceedings cannot be Consolidated

- Two actions cannot be consolidated where - the plaintiff in one action is the same
person as the defendant in another action, unless one action can be ordered to stand as
counterclaim or 3rd party proceedings in other – generally impossible to consolidate
actions in which different solicitors have been instructed to represent different
plaintiffs: Leevis v. Daily Telegraph (No.2) [1964] 2 QB 610, White Book para 4/9/1.
- Goh Chok Tong v. Jeyaretnam Joshua Benjamin [1997] 2 SLR 679
o No consolidation where there are a large number of co-plaintiffs and all of them
separately represented by different solicitors.
86

11-12 Disposal of Actions Without Trial

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11-12 Disposal of Actions Without Trial

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Disposal Of Actions Without Trial & Control Of Proceedings By Court

DISPOSAL OF ACTIONS WITHOUT TRIAL

NOTE – SUMMARY JUDGEMENT, STRIKING OUT AND OFFER TO SETTLE!!!

What can terminate action without trial -

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

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

Default of Appearance - ORDER 13

- Otherwise deemed to have admitted

General provisions (O. 10, r. 1)

When can the Plaintiff enter Interlocutory Judgment:

Claim for liquidated demand (O. 13, r. 1)

Claim for unliquidated damages (O. 13, r. 2)

Claim in detinue (O. 13, r. 3)

Claim for possession of immovable property (O. 13, r. 4)

Mixed claims (O. 13, r. 5)

Other claims (O. 13, r. 6)

7. Order 19 rule 7 (one alternative)

Default of defence: Other claims (O. 19, r. 7)

Discontinuance of action, etc., without leave (O. 21, r. 2)

- Order 13 (in default of appearance to writ) mirrors order 19 (default of pleadings)

FORM 79: Judgments

Setting aside judgment (O. 13, r. 8)

- Order 13, rule 8 (setting aside of judgment so entered by SIC) – If it is an irregular

Evans v Bartlam [1937] AC 480

White v Weston [1968] 2 AER 981

European Asian Bank v. Chia Ngee Thuang [1995] 3 SLR 171

Regular (default) judgment (affidavit of merits)

Farden v. Richter [1889] 23 QBD 124

The Saudi Eagle [1986] 2 Lloyds 221

Abdul Gaffer v. Chua Kwang Yong [1995] SLR 484

Hong Leong Finance v Tay Keow Neo [1992] 1 SLR 205

Cosmic Insurance Corp v Ong Kah Hoe [1996] 2 SLR 356

Default of Defence – ORDER 19

a) Order 19, rule 2(1) (“liquidated demand only” - “final judgment”)

Default of defence: Claim for liquidated demand (O. 19, r. 2)

b) Order 19, rule 3 (“unliquidated damages only” - “interlocutory judgment”)

Default of defence: Claim for unliquidated damages (O. 19, r. 3)

c) Order 19, rule 4 (“detention of movable property only” - “interlocutory judgment”)

Default of defence: Claim in detinue (O. 19, r. 4)

d) Order 19, rule 5 (“possession of immovable property only” - “judgment”)

Default of defence: Claim for possession of immovable property (O. 19, r. 5)

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

Default of defence: Mixed claim (O. 19, r. 6)

Default of defence: Other claims (O. 19, r. 7)

Default of defence to counterclaim (O. 19, r. 8)

Setting aside judgment (O. 19, r. 9)

Judgment in default (O. 73, r. 7)

AG v. Phang Fook Seng [1999] 3 SLR 641

Other Types Of Cases:

Judgment by default (O. 70, r. 20)

Issue of writ and entry of appearance (O. 70, r. 2)

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

Judgment in default of appearance or defence (O. 79, r. 4)

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

Summary judgment (O. 73, r. 5)

Time limit for summary judgment applications (O. 14, r. 14)

- A) Summons-in-Chambers and affidavit(s) must depose to all facts supporting the

Jacobs v Booths Distillery Co (1901) 85 LT 262.

Jones v Stone [1894] AC 122 on 124

Thompson v Marshall [1880] 41 LT 720

Habibullah Mohd Yousuff v. Indian Bank [1999] 3 SLR 650 at p.655

- Chatbrown Ltd v Alfred MaAlpine Construction (Southem) Ltd 35 BLR 45 on 53 and

Jaya Kumar v Subramaniam, etc [1987] 2 MLJ 432.