Professional Documents
Culture Documents
A. DISCOVERY
- What happens fr time when action commence to time when start drafting affidavits in chief. Pleadings have
closed. Before drafting of affidavits in chief – what happens in litigation process
- Parties first have to discharge oblig of discovery
1. Jurisdiction of courts
- First schedule para 12 - Discovery and interrogatories.
12. Power before or after any proceedings are commenced to order discovery of facts or documents by any
party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court.
o diff test wrt what doc need to discover and what you are entitled to extract fr other side by means of
application to court
o 1. court orders you to file a list of docs (client) – at time of fiing, test is ->
o 2. if you want more doc, file more doc appicaitn – court will apply a broader test in o24 r1.2 – this is the test
is Peruvian – far broader than first test.
3. Continuing Obligation
- O 24 r 8
- equivalent of the common law principle that giving discovery of documents is a continuing obligation
- discovery of new documents can be done by means of a supplemental list of documents
- counsel oblig to advise client ot file on last day if a lot of documents
- court in interest of justice has taken solicitor at task – if his client fails in discovery oblig. May win case
based on withholding docs. Parties are open about disclosingerlvant docs. So solicitor must be careful abt
discharging duties to court.
4. basis for ordering discovery
- Affidavit must also state the relevance of documents sought and state that person is likely to have documents
in possession, custody or power
- It is accepted that at this stage, the Plaintiff may not know whether he has a viable claim against the
Defendant. The rule is there to assist the Plaintiff. But Plaintiff must set out substance of claim and also state
the cause of action to enable a potential Defendant to know the essence of the complaint. This is to prevent
fishing expeditions.
Kuah Kok Kim v Ernst & Young [1997] 1 SLR 169, CA – don’t need to specify individual doc.
Just describe type of class.
- Even if the documents are relevant, they must meet criteria under O24 r 7, namely whether the discovery is
necessary for fair disposal of the proceedings or for the saving of costs.
Bayerische Hypo – und Vereinsback AG V APB [2004] SGHC 155 – fair disposal test. Test of
relevcancy is bery broad. Court esercises some limits.
Bank defrauded, asking for pre action discovery against APB – court said even if doc is relevant,
must demonstrate a necessity for disclosure. Counsel argued that want to narrow issues since
going ot sue them anyway. Court said that he knew exactly what he was going ot sue for, so he shd
just go for normnal discovery in any case since going to trial anyway. Pre trial discovery only
created to prevent unnec trials and writs. Not to allow unnec appkications where trial going to
proceed anyway. Since party certain.
- order 24 rule 1
- List of documents in Form 37 and Affidavit verifying list in Form 38.
- Types of privilege:
Legal professional privilege – most usual. Stock list – ‘all correspondence governed by legal
proff privilege ie corresp bet lawyer and client..’
Litigation privilege
Privilege against self-incrimination
Public interest privilege – O24 r15
Document disclosure of which would be injurious to public interest: Saving (O. 24, r. 15)
15. Rules 1 to 14 shall be without prejudice to any rule of law which authorises or requires the withholding of
any document on the ground that the disclosure of it would be injurious to the public interest.
- If not satisfied with discovery made – can take out this order
- O 24 r 5
-
Order for discovery of particular documents (O. 24, r. 5)
5. —(1) Subject to Rule 7, the Court may at any time, on the application of any party to a cause or matter, make
an order requiring any other party to make an affidavit stating whether any document specified or described in
the application or any class of document so specified or described is, or has at any time been, in his possession,
custody or power, and if not then in his possession, custody or power, when he parted with it and what has
become of it.
(2) An order may be made against a party under this Rule notwithstanding that the party may already have made
or been required to make a list of documents or an affidavit under Rule 1.
(3) An application for an order under this Rule must be supported by an affidavit stating the belief of the
deponent that the party from whom discovery is sought under this Rule has, or at some time had, in his
possession, custody or power, the document, or class of document, specified or described in the application
and that it falls within one of the following descriptions:
(a) a document on which the party relies or will rely;
(b) a document which could —
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining
information which may —
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case.
(4) An order under this Rule shall not be made in any cause or matter in respect of any party before an order
under Rule 1 has first been obtained in respect of that party, unless, in the opinion of the Court, the order is
necessary or desirable.
- Procedure
SIC supported by affidavit.
affidavit will state belief of deponent that party from whom discovery is sought has or had
possession / custody / power of documents sought
- Expanded test of relevance for further discovery - O24 r 5(3)
document on which party relies / will rely
document which could adversely affect own case; or
adversely affect / support another party’s case
document which could lead to party seeking discovery to a train of enquiry resulting in his
obtaining information which may
– adversely affect his own case; or
– adversely affect / support another party’s case.
– => very wide test
- test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55
where court held that document would be relevant if it is reasonable to suppose that it contains
information which would either directly or indirectly enable the party (requiring the discovery)
either to advance his own case or damage the case of his adversary.
broadly worded test to ensure that all relevant evidence will be made available to ensure that a
dispute can be adjudicated fairly
- greater latitude as compared with O24 r 1 but discovery must be “necessary for disposing fairly of the matter
or for saving costs” – O 24 r 7. Court should inspect the documents and review facts in issue and also
whether documents are confidential – Wallace Smith v Deloitte Haskins [1997] 1 WLR 257
– discretion fo court. Litmus test – broad
- Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7
- Even if documents are relevant, discovery will not be ordered if they are not necessary for the fair disposal
of the dispute. –
Dolling-Baker v Merret [1990] 1 WLR 1205 – party had dispute with inusrnac epolicy with
insurance company. Party found that insurance comp had similar dispute in arbitration with another
part on same type of policy. Prob not relevant but even if relevant, not nec for disposal fairly or for
saving csots in fact aggravating costs. So if can show good reason why not relevant, can gt them
out.
- also note the need to prevent “fishing” ie seeking discovery of documents without demonstrating their need /
relevance.
Be narrow. Msut demonstrate relevance.pt to paras in pleadings and say that this is directly in
issue. Must be clear and precise about what you want.
Norman Wright & Ors v OCBC [1992] 2 SLR 710
Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75
SMS Pte Ltd v Power & Energy Pte Ltd [1996] 1 SLR 767
Facts
The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which
SMS alleged was due to Energy’s breach of contract or breach of duty as bailee or negligence. Energy’s
defence was that: (a) there was no evidence of loss or damage when the good were delivered; and (b) SMS
failed to commence their suit within one year of the date of delivery of the goods. At the hearing, Energy
applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS
failed to comply with the order for discovery. The application to strike out the defence was made orally and
not by summons-in-chambers. The trial judge, exercising his discretion, allowed Energy’s oral application
and truck out the defence and entered judgment in favour of Energy. SMS appealed, arguing: (a) that the trial
judge erred in allowing Energy to make their striking out application orally; and (b) the trial judge should
have struck out Energy’s defence because the order for discovery was not an ‘unless’ order.
Held
…10 At the hearing of the action on 22 February 1995, the respondents applied under O 24 r 16 for the
defence to be struck out and judgment to be entered for the respondents. This rule provides that if an order for
discovery is not complied with, the court may, where the party in breach is a defendant, strike out the defence
and enter judgment for the plaintiff. The application was made orally and not by way of a summons-in-chambers.
This explanation does inform why no discovery had been provided by the appellants and shows there was no
suppression of documents by the appellants. However, even if they did not have any discoverable documents, the
appellants could and should have filed a nil list giving such particulars as they could of what documents were
once in their possession and then verified the list by affidavit. This they did not do and were wrong not to. Did
the appellants’ failure to file a nil list warrant the defence being struck out and judgment being entered? It would
be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible.
Whether this was so is dealt with shortly.
23 Furthermore, in deciding whether or not to strike out the defence, the learned trial judge does not appear
to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action
impossible. Applying this test and bearing in mind the relevant circumstances enumerated earlier, in this court’s
judgment the failure of the appellants to file their list of documents did not render a fair trial of this action
impossible. In any event such a list would have been a nil list and the respondents would have been in no better
or worse position than they were before the list was filed. If the appellants had filed a nil list verified on affidavit
the respondents would have had to accept it unless of course they had evidence to the contrary and subject to
their right to ask for discovery of particular documents as provided by O 24 r 7. As Harman LJ said in John
Walker & Sons Ltd v Henry Ost & Co [1970] RPC 151, at p 154 ll 45–48.
True it is that one cannot, when an affidavit of documents or a list of documents is produced, file an affidavit to
say: ‘Well, I do not believe this man has told the truth or disclosed everything he ought to’. This affidavit is, as
they say, conclusive.
24 The defence should not, therefore, have been struck out. Instead the respondents should have been called
on to prove their case. The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected
not to adduce any evidence. The trial court would have had to decide the case on the evidence available at the
close of the respondents’ case.
25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside.
This matter is sent back to the district court for a new trial. Pursuant to the provisions of O 24 r 17, the appellants
are ordered to file a list of documents, even if it be a nil list, within one month from the date of this judgment
failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter
judgment against the appellants.
Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856
- Facts
- The first defendant, RBG Resources plc (“RBG”), had engaged in transactions with various banks which
had either purchased metals from it or lent money to it on the security of metals. Many of the metals were
allegedly stored in warehouses operated by or on behalf of the second defendant, Fujitrans (Singapore) Pte
Ltd (“Fujitrans”). The plaintiff, Banque Cantonale Vaudoise (“BCV”), was one of the banks which had
transacted with RBG. It had a claim against Fujitrans in respect of various groups of metals, one of which
was listed in Schedule 3 of its Re-Amended Statement of Claim (“the Schedule 3 claim”).
- An assistant registrar granted BCV summary judgment against Fujitrans. Fujitrans appealed. Before the
appeal was heard, Fujitrans filed an application for discovery of various categories of documents from BCV.
Consequently, the appeal against summary judgment was held in abeyance. An assistant registrar dismissed
Fujitrans’ discovery application save for one category of documents. Fujitrans appealed against that decision
as it wanted discovery and production of the remaining seven categories of documents.
- Fujitrans’ position was that it had proceeded with the discovery application first in order to show the court
with certainty the information and documents which would be referred to by its banking expert, Howard
Palmer (“Palmer”), in his intended affidavit for the appeal against summary judgment. Without knowing the
final outcome of the discovery application and the documents to be obtained, Fujitrans’ application for leave
would be speculative.
- Held, dismissing the appeal:
- Fujitrans’ discovery application to the assistant registrar and its appeal against that decision were premature.
By the time Fujitrans filed its discovery application, summary judgment had already been granted to BCV
for the Schedule 3 claim. Accordingly, the office of assistant registrar was functus officio as regards any
subsequent discovery application, save for claims which were not the subject of the summary judgment.
Therefore, the discovery application could not and should not have been made to the assistant registrar: at
[12], [15] and [17].
- The discovery application could have been made to a judge in chambers only in the context of the pending
summary judgment appeal. It should have been made by way of a preliminary application in the appeal
proper, whereupon the question as to whether the appellant should be granted leave to adduce further
evidence would have been considered first. Alternatively, Fujitrans could have filed the applications for
discovery and leave to adduce further evidence contemporaneously and asked that they be heard together: at
[18] and [20].
- If it was speculative to seek leave without having discovery first, it was even more speculative to seek
discovery without obtaining leave first. The discovery application should not have been made first as a
discovery order in favour of Fujitrans would or might affect the outcome of the leave application. It was for
the judge hearing the leave application to decide whether to grant leave or not, and if so, leave could be
granted subject to a successful discovery application: at [22].
- As for the substantive discovery appeal before this court, the main issue was the relevancy of the documents
for which discovery was sought. The application for discovery of the remaining seven categories of
documents was in fact a fishing expedition. It was obvious that Fujitrans’ discovery application was an
attempt to support its appeal against summary judgment. The application was not for saving costs, and was
neither desirable nor necessary for disposing fairly of the cause or matter: at [36], [54] and [55].
- [Observation: Since Fujitrans would be appealing against this court’s decision in the discovery appeal and it
had not filed its leave application, it should apply to a judge in chambers for leave to adduce evidence in
respect of the summary judgment appeal, and to include an application for leave to adduce evidence from
any successful application for discovery. If the application was to be unsuccessful, then Fujitrans could
appeal against that decision to the Court of Appeal, and that appeal should be heard together with the appeal
against this court’s decision. Otherwise, the Court of Appeal would have to give a decision which was not in
the correct sequence: at [24].
- Alternatively, BCV could apply to a judge in chambers for a declaration that Fujitrans should not be
permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of
Appeal which could then deal with that appeal and the appeal against this court’s decision in the correct
sequence: at [25].]
Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710
Held, dismissing both appeals:
(1) In their defence of fair comment in the 1987 action the first and third defendants were not able to
particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed, and
sought to interrogate the bank on what steps the bank had or had not taken. This was not permissible. The judicial
commissioner was right in holding that their interrogatories were fishing.
(2) The categories of documents the defendants sought in their application for a further and better list of
documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the
issues raised by the defences. The aim of this application was no different from that of the application for
leave to serve the interrogatories. It was an attempt to mount a comprehensive discovery with the hope of
finding something useful for their case.
(3) The sting of the libel in the 1988 action was the imputation of recklessness, irresponsibility and
mischievousness on Wright’s part in writing the letter to the newspaper. The material issue turned on the state of
Wright’s mind at the time he wrote the letter and not whether what he wrote was true or false. The classes of
documents in respect of which Wright sought discovery had no bearing on that issue. They were substantially
internal documents of OCBC of which he had absolutely no knowledge. They were also not necessary for
disposing fairly of the cause or matter or for saving costs. The extreme width and lack of specificity of the
classes of documents sought also indicated that Wright was ‘fishing’ for material to make good his assertions of
OCBC’s breach of confidentiality.
(4) The two actions were inextricably intertwined and arose out of the same set of facts. To allow Wright
discovery of these categories of documents would, in effect, enable Wright to circumvent Chao J’s order in the
1987 action. That was not permissible.
(5) The application for further and better particulars of the defence in the 1988 action was substantially framed
in the form of interrogatories and covered the same ground as the application for discovery. Wright was
accordingly not entitled to the particulars sought.
(6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues. In the
absence of clear error of law or principle, the appellate court should not interfere. No such error of law or
principle had been made out.
o Can blank out parts of docs where private and confidential – there is law to support this. Court to
make sure that no irrelevcant parts. *Gene capital v banker’s trust
First conseq therefore => other party can apply for discovery.
- • Once an unless order is breached, the opposing party can either apply for a final order (see above) or write
to the Registry with a suitable draft order (this is correct procedure) . Changhe International Investments
Pte Ltd v BIL [2004] 4 SLR 449
- • An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a
contract. Wiltopps (Asia) Ltd v Drew & Napier [2000] 3 SLR 244
o applied for extension of time unless order obtained kike consent operates ilke a contract – cannot
set it aside. Can only set aside by filing fresh application pleading undue influence, etc. most have
fresh proceedings, so never consent to an unless order.
Wiltopps (Asia) Ltd v Drew & Napier (sued as a firm) and Another [2000] 3 SLR 244
Facts
The present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their
conduct of the proceedings. After the writ of summons was filed in May 1993, there was considerable
procrastination by the plaintiffs in proceeding with the action. In October 1997, the court ordered affidavits of
evidence-in-chief to be filed and exchanged within two months. The order listed the witnesses the plaintiffs
intended to call. After various applications for extension of time for filing the affidavits, the defendants’ solicitors
set a deadline by which the exchange of affidavits was to take place. There was no exchange by the plaintiffs by
the deadline and the defendants’ solicitors applied for an order that unless the plaintiffs filed and served on the
defendants the affidavits of evidence-in-chief of their witnesses within three days, the plaintiffs’ action would be
dismissed. At the hearing of the application, the plaintiffs’ solicitors offered to accept the unless order provided
that they were given seven days instead of three. This was agreed to by the defendants’ solicitors and a consent
order was made which required the plaintiffs to make the necessary exchange within seven days and in default,
the plaintiffs’ action would be dismissed with costs without further order.
The plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date. The plaintiffs’ solicitors
then applied for an extension of time to comply with the unless order. The application was however later
withdrawn at the hearing. Subsequently, the defendants’ solicitors applied for and obtained a default judgment
dismissing the plaintiffs’ action on the basis of their non-compliance with the unless order. The plaintiffs’
solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar.
The plaintiffs appealed against the decision.
Held, dismissing the appeal:
(1) The words “by consent” in the unless order could either evidence a real contract between the parties
or could evidence an order made without obligation by the parties. In the present case, the words in the
unless order gave effect to the contract between the parties. The order had been made on the basis of the
plaintiffs solicitors’ offer to consent if they were given seven days instead of three and which offer was
accepted by the defendants’ solicitors. There was clearly consideration flowing from the defendants to the
plaintiffs.
(2) The parties were bound by the unless order that was made with their consent. If the plaintiffs failed
to comply with the terms of the unless order, they would be able to avoid the default judgment only if the
unless order itself was set aside. A judgment or order by consent was binding until it was set aside and
fresh proceedings must be commenced to set aside a consent order.
(3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the
affidavit of one of their witnesses by the prescribed deadline. The application for extension of time of the
unless order was withdrawn and thus, the unless order remained in effect. The plaintiffs’ failure to comply
with the unless order was due to their own default and not because they were prevented by the defendants’
solicitors.
(4) Once the default occurred, the unless order operated to dismiss the action “without further order”. There
was no question of setting aside the default judgment which was a consequence of the unless order and the
subsequent default. Even if the court had the discretion to interfere with the default judgment, the plaintiffs’
contumacious and contumelious conduct in this case did not justify such exercise in their favour.
Per curiam:
On the question of whether the court could interfere with a default judgment taken out as a consequence of a
breach of an unless order, a consent order which evidenced a real contract between the parties could only be set
aside on grounds that would justify the setting aside of a contract. The consent order recorded an agreement
supported by consideration and there was no ground for applying different rules to it. To hold otherwise would
dilute the utility of such consent orders.
Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4
SLR 449
Facts
The appellants/plaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar.
The defendants’ counsel made an application by summons-in-chambers to perfect the unless order. Plaintiffs’
counsel attended the hearing on 8 March 2000, at which the assistant registrar dismissed the plaintiffs’ claim.
Plaintiffs’ counsel did not appeal.
Later, the plaintiffs engaged new solicitors, who made an application that the Registrar set aside the order of
8 March 2000. At the hearing on 14 June 2000, defendants’ counsel submitted that the effect of the application to
overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of
another assistant registrar. The plaintiffs’ rejoinder was that the order of 8 March 2000 should never have been
sought as there was already an unless order. The assistant registrar, after hearing the point on jurisdiction,
dismissed the plaintiffs’ application without hearing the merits. The plaintiffs appealed.
Held, dismissing the appeal:
(1) The order of 8 March 2000 by the assistant registrar was right. Procedurally, the assistant registrar in
this application could not entertain the plaintiffs’ application and could not normally vary another assistant
registrar’s order as he lacked jurisdiction to do so.
(2) An unless order generally took effect without further order. However, the order had to be perfected in
the absence of specific rules relating to perfection.
(3) There were two paths to perfecting such an order. The first was by filing with the Registry a request by
letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have
been as a right arising under the order on the ground that the order had not been complied with. If the draft order
was approved and it was faired and extracted, the unless order was perfected.
(4) The second was by the party availing itself of the general application procedure of the court to achieve
the same end.
(5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach. The
plaintiffs could not re-litigate the same matter save by way of appeal, which they did not file.
Facts
Following a collision between the appellants’ vessel Bonito and the respondents’ vessel Ah Lam II, the
respondents commenced an admiralty action in rem against the appellants. Subsequently, the parties reached a
settlement, under which, unless the quantum of damages was agreed, there was to be a reference to the registrar
for damages to be assessed. At a pre-trial conference on 27 March 1997, counsel for the appellants informed the
assistant registrar that liability had been settled and that the parties were likely to agree on the quantum, once the
discovery of documents was completed, and counsel for the respondents said that the prospects of a settlement
were good. Nevertheless, the assistant registrar made an “unless order” to the effect that the respondents were to
file and serve a notice of discontinuance by 12 July 1997, failing which they were to file by 19 July 1997 a notice
for an appointment before the registrar for damages to be assessed, failing which the action was to stand
dismissed with costs.
Subsequently, the parties required more time for the discovery of documents, and the respondents applied for two
extensions of time to file and serve the notice of appointment for assessment of damages. At the hearings on
18 July 1997 and 3 September 1997, orders were made extending the time to 19 October 1997 and 30 November
1997 respectively. In allowing the extensions, the assistant registrar did not expressly make a default provision in
either of the orders.
In March 1999, the appellants’ solicitors informed the respondents’ solicitors that the action had been dismissed.
In April 2000, the respondents filed and served the reference to registrar for assessment of damages without
having applied for an extension of time beyond 30 November 1997 to do so. In May 2000, the appellants
obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000. Subsequently,
the respondents applied for an extension of time to file and serve the reference to registrar. This application was
heard and dismissed by the assistant registrar. The respondents’ appeals against the decisions of the assistant
registrars were allowed by Lim Teong Qwee JC, who granted the extension of time and dismissed the striking out
application.
The appellants then appealed to the Court of Appeal. They contended that: (1) when the respondents failed to file
the reference to the registrar by 30 November 1997, the “unless order” made on 27 March 1997 came into
operation and by reason thereof the action was dismissed; and (2) there had been considerable delay on the part
of the respondents to apply for the extension of time and they should not be granted the extension.
Held, dismissing the appeals:
(1) The courts adopted a very strict approach in considering and dealing with an “unless order”. If it was
intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and
3 September 1997, then the orders extending the time must say so clearly and unambiguously so that the party
affected would know of it, because the consequence of non-compliance of such provision was extremely serious
and far reaching. To all intents and purposes, the entire order of 27 March 1997 had been replaced or varied by
the two subsequent orders, which contained no default provision. Thus, the action was not dismissed as of 9 June
2000, when the respondents applied for an extension of time to file the reference to the registrar for assessment.
(2) There had been some considerable delay on the part of the respondents to apply for the extension of time.
Nevertheless, the judge exercised his discretion properly in granting the extension of time. On an overall
assessment of what justice required, to deny the respondents the extension of time sought would have the effect
of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default
which, even if unjustified, had caused the appellants no prejudice for which they could not be compensated by an
award of costs.
Per Thean JA:
At the time of the pre-trial conference on 27 March 1997, the parties had reached a settlement on liability, and
the indications from counsel were that they were likely to agree on the quantum of damages. In particular,
according to counsel for the respondents, the prospects of a settlement were good. Neither party were in default.
There was really no cause for making the 'unless order', and it ought not to have been made at that stage.
- when serve docs on you, you are deemed to accept their authencity.
First to prove to court that this doc is admissible when prod doc in court. First to have court recog
tt it is a true letter. Proved by witness etc. but stimes may not be easy to prove because witneses
dead, etc
So will have to file notice of non admission within 14 days for time limited for inspection of docs
or actual inspection whichever is later
So shld file notice objecting quickly
In practice many pple don’t concentrate on this
- List of documents to contain a notice to inspect in Form 39
- A party deemed to admit authenticity of documents in list if he does not object to it within 14 days of
the time limited for inspection - O 27 r 4
16. Restriction on use of privileged document, inspection of which has been inadvertently allowed (O. 24,
r. 19)
19. Where a party inadvertently allows a privileged document to be inspected, the party who inspected it may use
it or its contents only if the leave of the Court to do so is first obtained
- Failure to comply with requirement for discovery, etc. (O. 24, r. 16)
16 (4) A solicitor on whom such an order made against his client is served and who fails, without reasonable
excuse, to give notice thereof to his client shall be liable to committal.
(5) A party who is required by any Rule in this Order, or by any order made thereunder, to make discovery
of documents or to produce any document for the purpose of inspection or any other purpose, but who fails
to comply with any provision of that Rule or with that order, as the case may be, may not rely on those
documents save with the leave of the Court.
- Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905
- The law requires solicitors to take positive steps to ensure that his client is aware of the precise
scope of the obligation to make full and proper discovery. This must be done at an early stage of
the litigation. Client must locate all potentially relevant documents and pass them to his solicitor
who will determine if they must be disclosed
- Solicitor must also take steps to ensure that all discoverable documents are preserved.
o Ambit of the duty is illustrated by
- Myers v Elman [1940] AC 282 – sols left it to his clerk to do the discovery. Court took him to
task – deficiency. He was ordered to pay the costs of part of the action. Court has juris over
solicitor as officer of court
- Woods v Martins Bank [1959] 1 QB 55 – sol wrote wrong letter about what client oblig as to
discovery was. Then left someone else to do the discovery. Court said that cannot. Still dereliction
of duty.
- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 – corporate client they have
practice of regularly destroying docs. 3 yr doc destruction policy. Fr time there is prospect of
litigation, advise client of need to maintain and preserve all relevant doc.
o Legal Profession (Professional Conduct) Rules 1998, Rule 58
- An advocate & solicitor shall cease to act for a client if –
• (a) the client refuses to authorise him to make some disclosure to the Court which his
duty to Court requires him to make; or
• (b) having become aware during the course of a case of the existence of a document
which should have been but has not been disclosed on discovery, the client fails forthwith
to disclose it.
But no need to tell court. Judge yourself.
Only oblig to discharge yourself.
18. Implied undertaking not to use documents for a collateral / ulterior purpose
B. INTERROGATORIES
Jurisdiction
SCJA: Discovery and interrogatories.
12. Power before or after any proceedings are commenced to order discovery of facts or documents by any party
to the proceedings or by any other person in such manner as may be prescribed by Rules of Court
iii) purpose
Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710
15 We consider first the appeal in the 1987 action. Chao Hick Tin JC refused to give leave to the appellants to
serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by
OCBC. On the interrogatories, Chao Hick Tin JC stated the well-known principles that interrogatories are
admissible if they support the applicant’s case or destroy the opponent’s case and would only be allowed if they
are considered necessary either for disposing fairly of the cause or matter or for saving costs. He held that in
relation to a defamation action, where the defence of fair comment is raised, a defendant would be allowed to
interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission
Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng & Ors [1974] 1 Mlj 174
I am not informed what is the connection between the answers to these interrogatories and the main question in
issue and their real purpose.
Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants
since 1965. The other five questions are about a transaction between the company and a mining company in
1969, some related matters and payments alleged to have been made by the mining company to the first
defendant sometime in January 1970. From the plaintiff`s own statement of claim he was in the company till
about January, 1970 and question I itself suggests that the first defendant had also been financing him. All these
matters should therefore be within the knowledge of the plaintiff. On this very consideration I cannot see that the
particulars required are necessary at all.
Further, in the action the plaintiff is charging fraud. It is therefore a matter for the plaintiff to prove the
particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those
particulars. To the objection that the questions may incriminate the defendants, the solicitor for the plaintiff
merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant
to the questions, particularly those relating to the transaction with the mining company. From this it is clear that
the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the
transaction with the mining company. In any case, the plaintiff should be able to show the amount involved in the
transaction, since an undertaking has been given that the proper officer of the mining company would give
evidence on the transaction.
The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the
officer of the mining company. I fail to understand this as the defence side has told me that the officer who would
be in a position to give the necessary evidence is none other than Mr AJ Taylor, a former judge of the High Court
in this country, and who is now the legal officer of the mining company. I would disallow the questions on this
very ground, apart from the fact that it has not been shown that the questions would not incriminate the
defendants.
In addition to all the above, on the authority of Ellis v Ambler 36 TLR 410, I do not have to consider the
application at all, as the plaintiff has given no reason for presenting the interrogatories after the pleadings have
closed. In that case, the plaintiff applied for leave to deliver interrogatories after having closed the pleadings. He
gave no reason for the delay. The judge refused leave without even looking at the interrogatories. On appeal, the
court refused to interfere with the discretion of the judge in Chambers. The case is on all fours with the present
case. In fact the present case goes further against the plaintiff. He had all the opportunities to deliver the
interrogatories much earlier as the statement of claim was amended twice. The solicitor while preparing the
amendments should have realised whether or not the interrogatories would be necessary. The solicitor appearing
on behalf of the plaintiff now says it was his fault. Whether or not it was his fault does not answer the question
whether the questions are necessary at all, and does not make the circumstances exceptional for the court to
exercise its discretion in granting leave. Ordinarily in an application for leave to deliver interrogatories after the
pleadings have closed exceptional circumstances must be shown: see Atkins Court Forms 2nd Ed vol 22, page
367. To my mind the circumstances to be shown must be of such a nature that the applicant could not have
foreseen after the exercise of due diligence. None has been shown here.
On any consideration I can see no ground for granting this application. It is dismissed with costs. Application
dismissed.
vii) Privilege
x) Liability of solicitor
- purpose
Auto Clean 'N' Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409
- In disallowing the plaintiffs’ applications, the learned judge took into account what he described as ‘three
basic matters in relation to summons for directions’. First, all matters that must or can be dealt with in
interlocutory applications and which have not already been dealt with must be included in a summons for
directions. Only unforeseen matters should be the subject of subsequent interlocutory applications. There
was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or, in the words of
the judge, ‘affidavits to re-shape evidence after sighting the opponent’s evidence’. Second, a party asking
the court to exercise a discretionary power in his favour must provide the court with maximum possible
information. In other words, the party must provide good reasons to serve as material upon which the court’s
discretion may be exercised. Third, while clients should not be made to suffer through fault or neglect of
their solicitors to comply with the rules of procedure or court orders, this was usually not a sufficient reason
for the court to grant an indulgence to the defaulting party; otherwise, solicitors could always defeat the
effect and purpose of the rules and orders through their negligence. The learned judge was of the view that,
save for the new witness Henry Loh, the plaintiffs were not entitled to their application on the ground that
they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an
earlier stage, why it was necessary to call the new witnesses, and why the two named witnesses could not
have filed their affidavits of evidence in chief in time.
- The appeal
- Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned
judge. However, he submitted that the learned judge erred in failing to have sufficient regard to another
cardinal principle that is central to our legal system, and that is, the prerogative of each party to call all
witnesses he deems fit in support of his case: Briscoe v Briscoe [1967–68] P 501, at p 504. He argued that,
when this prerogative is being exercised by a party long before the actual trial, as in this case, the court
should be slow to deny the party the right to call the witnesses, unless it would result in serious prejudice to
the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence
in reply, if such a need should arise. In this case, there was no such prejudice.
- We were in substantial agreement with this argument. As expressly spelt out in O 25 r 1, the object of the
summons for directions is to provide an occasion for consideration by the court of the preparations for the
trial of the action, so that all matters which must or can be dealt with on interlocutory applications and have
not already been dealt with may, so far as possible, be dealt with, and such directions may be given as to the
future course of the action as appear best adapted to secure the just, expeditious and economical disposal of
the proceedings. The rules in O 25 are framed to achieve this objective. The court on hearing the summons
for directions has the duty to consider all matters which must or can be dealt with on interlocutory
applications and have not been already dealt with: O 25 r 2. In so far as evidence to be adduced at the trial is
concerned, O 25 r 3 sets out a comprehensive list of matters which the court has to consider. Rule 3, in so far
as relevant to this appeal, provides:
- On the hearing of the summons for directions, the Court shall consider the appropriate orders or directions
that should be made to simplify and to expedite the proceedings and particularly —
- the period within which the parties have to file and to exchange affidavits of the evidence in chief of all
witnesses named in the summons for directions who may give evidence at the trial and the bundles of
documents referred to therein;
- whether the number of witnesses shall be limited to those specified in the order and whether the evidence-in-
chief of the witnesses specified be each limited to a single affidavit;
- he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on
sufficient cause being shown to obtain an affidavit of that witness‘s evidence-in-chief and the manner in
which the said evidence shall be disclosed to the other parties prior to the trial. …
- Thus these rules empowered the court to give directions on, among other things, the exchange of affidavits
of evidence in chief between the parties. The scheme of adducing evidence in chief by way of affidavits is
designed to achieve a fair and expeditious disposal of proceedings, to save costs and to eliminate any
element of surprise: see Lee Kuan Yew & Anor v Vinocur & Ors and another action [1995] 3 SLR 477, at p
484. By the operation of these rules, the parties are required to disclose substantially their evidence at the
early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses
of their cases. This in turn would facilitate and encourage them to come to a settlement.
- In considering the question of simultaneous exchange of witnesses’ statements under the English O 38 r
2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of
evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p
373, Lord Donaldson of Lymington MR had this to say:
- Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the
conduct of litigation, taking the form of increased positive case management by the judiciary and the
adoption of procedures designed (a) to identify the real issues in dispute and (b) to enable each party to
assess the relative strengths and weaknesses of his own and his opponent’s case at the earliest possible
moment and well before any trial. Not only does this tend to make for shorter trials and save costs, even
more important it facilitates and encourages settlements. The most important change has been the
requirement that, save in exceptional cases, witness statements be exchanged prior to the trial.
- Reverting to the instant case, we respectfully agree with the learned judge on the following: that all
matters which must or can be dealt with in interlocutory applications and which have not already
been dealt with must be included in the summons for directions, that a party seeking to persuade the
court to exercise its discretionary power must provide adequate information; and that generally fault
or neglect of a solicitor in complying with the rules of court or court orders is not sufficient reason for
the court to grant an indulgence to the defaulting party. Lastly, parties to litigation must comply with
the rules and the orders of court.
- That having said, it must be appreciated that an order or orders made under these rules at the interlocutory
stage are not immutable and certainly at that stage finality cannot be achieved. With reference to complying
with O 25 r 3, the court must always be conscious of the fact that circumstances may and do arise which
result in parties being unable to name all their witnesses at the stage of the summons for directions and,
consequently, leave should be given to allow the parties to introduce new witnesses subsequent to the
directions that have been given. There are multiple reasons for this, such as the failure of parties in giving
proper or adequate instructions to their solicitors at the initial stage, failure of the parties and those advising
them in properly weighing or assessing the evidence, subsequent amendments to pleadings, discovery of
evidence relevant to the claim or defence or some other new development arising. Whatever the case may
be, we think that the courts should not adopt an unduly rigid or restrictive approach in considering the
directions to be given concerning matters pertaining to the trial or hearing. Instead, a balance should be
struck between the need to comply with the rules and the parties’ right to call witnesses whom they deem
necessary to establish their case. It may well be that the additional evidence to be adduced by the parties
may assist in illuminating the issues before the court or result in the expeditious disposal of the proceedings.
If, however, it really turns out at the trial that the evidence adduced is unnecessary, irrelevant or vexatious,
the trial judge is in full control and is in a position to deal with the party adducing such evidence in an
appropriate way, such as by disallowing the evidence which is being elicited from the witness and/or by an
order as to costs. It must always be borne in mind that the duty of the court is to examine all the evidence
put forward by the parties which is material and relevant to the dispute between the parties and not to shut
out potentially material and relevant evidence by a strict adherence to the rules of civil procedure.
- Reverting to this case, we saw no difficulty in allowing the plaintiffs to call the additional witnesses to give
evidence and in granting an extension of time for the plaintiffs’ two witnesses, Low Choon Yee and Connie
Teo Ping Ling, to file their affidavits of evidence-in-chief. The proceedings are still at a relatively early
stage and no prejudice would be caused to the defendants. In particular, the action had not even been set
down for trial, and clearly the defendants would have sufficient time and opportunity to consider, and, if
necessary, to respond to the evidence. There would thus be no element of surprise. Quite the contrary, by
placing all the necessary and relevant evidence on record, the plaintiffs are acting consistently with the
guiding principle behind the scheme of requiring parties to serve on each other affidavits of evidence-in-
chief of the witnesses, which is conveniently summed up by the phrase ‘placing the cards on the table’. In
this connection, we agreed with the criticism expressed by the learned judge that he could not comprehend
the limitation imposed by the assistant registrar, ie that the evidence was to be confined to the evidence
already stated in the affidavits filed. That limitation, with respect, was meaningless and ought not to have
been imposed.
- Time:
Plaintiff to take out summons for directions within 1 month after the close of pleadings
If Plaintiff fails to do so, Defendant can also apply or alternatively, may apply for action to be
dismissed
Order 24 rule 1
(2) This Rule applies to all actions begun by writ except —
(a) actions in which the plaintiff or defendant has applied for judgment under Order 14;
(b) actions in which the plaintiff or defendant has applied under Order 18, Rule 22 for trial without pleadings or
further pleadings and directions have been given under that Rule;
(c) actions in which an order has been made under Order 24, Rule 2 for the trial of the issue or question before
discovery;
(d) actions in which directions have been given under Order 29, Rule 7;
(e) actions in which an order for the taking of an account has been made under Order 43, Rule 1;
(f) actions which have been referred to the Registrar for trial;
(g) actions for which automatic directions are provided by Rule 8; and
(h) non-injury motor accident actions as defined in Order 59, Appendix 2 Part V, filed in the Subordinate Courts.
(3) [Deleted by S 551/99]
Law Mun & Ors V Chua Lai Seng & Ors [1984] 2 Mlj 328
• The first issue here is whether this action which is already part heard should now be
dismissed for the failure of the Plaintiffs to take out a Summons for Directions under O
25 r 1 (4) or for alleged want of prosecution for failure to set down the action for trial or
to give notice of trial as provided by O 34 r 2(2) and r 8(1) respectively.
• …The omission to take out the Summons for Directions was a somewhat more difficult
point. Mr Suppiah`s argument is that O 25 r 1(1) is mandatory and that O 25 r 1(4) gave
the Defendant an option to apply for an order to dismiss the action. He seems to imply
that not having the privilege of discovery by way of Affidavits of Documents,
Interrogatories, and Inspection had seriously prejudiced the first Defendant in his
preparation for the trial of this action.
• The Plaintiffs on the other hand relied upon O 25 r 2(a), the material words of which
read:- …
• My reading of the meaning of these rules is that the application for Summary judgment
became a notional Summons for directions when the order granting conditional leave was
made, and O 25 rr 2 to 7, must be applied mutatis mutandis to this situation. It is a
misconception for the defendant to contend, as was done in this case, that O 25 r 1(4)
gives him an option only to apply for a dismissal of the action in such a situation. The
defendant is also entitled under O 25 r 1(4) to apply for any directions he thinks
necessary for the proper conduct of the trial and that option was open to him at all
material times on and after 16 February 1984. A number of applications were in fact
made on behalf of the first Defendant before the hearing date, but it was never contended
until 17 April 1984 that a Summons for Directions should be taken out.
• With the greatest respect to Counsel for the first Defendant this was too late to try and
turn the clock back. Once the trial began the general directions which may have been of
moment earlier, must of necessity have turned to the specific. If there is any particular
document that needs to be discovered even at a late stage or any special direction that
needs to be issued in the interests of justice the court in a proper case will always
entertain the application if not under any specific rules (See e.g. O 24 rr 7 and 8, O 26 rr
2 and 9) then under the inherent jurisdiction of the court. This is not an ordinary case. The
Affidavits filed in connection with the application for summary judgment were very
voluminous on both sides and perhaps one may be excused for having taken the view that
both sides had disclosed every document relevant to the claim or the defence as the case
may be. As Solicitor for both parties, one may be excused perhaps for thinking that the
first Defendant would have known of the identity and existence of any other documents
which were relevant to this matter and have commented on them in his Affidavits if there
were such documents in existence. But there is no reference to any specific facts or
documents in the Affidavit in support of the application before me, and I am unable to
hold that the Defendant has been prejudiced by the omission to go through the motions of
taking out a Summons for Directions in the present case. Accordingly I hold that there is
no substance in the first point also.
- Application to counterclaims – rule 1.6
Order 25 rule 1
(6) In the case of an action which is proceeding only as respects a counterclaim, references in this Rule to the
plaintiff and defendant shall be construed respectively as references to the party making the counterclaim and the
defendant to the counterclaim.
- Principles
1. all matters that must or can be dealt with in interlocutory applications and which have not already been dealt
with, must be included in a Summons for directions
2. only unforeseen matters should be the subject of subsequent interlocutory applications
Auto Clean ‘N’ Shine Services v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409
- Automatic directions apply to actions for personal injuries (excluding admiralty and medical
negligence) and actions arising out of accidents on land due to a collision or apprehended collision: O25 r 8
NB. Does not apply to actions where parties have applied for judgment under O 14 - O 25
r8(7)
NB. For non-injury motor accident actions under O 59, Appendix 2 Part V - O25 r1A
D. SETTING DOWN
- O 34
- O 34 r 2(2) - where P fails to set down, D may set down or may apply to dismiss the action for want
of prosecution
- Affidavits of evidence-in-chief and bundles of documents to be filed not less than 5 days before
trial - O 34 r 3A(1)
E. PRE-TRIAL CONFERENCE
Power to make orders and give directions for the just, expeditious and economical disposal of proceedings
(O. 34A, r. 1)
1. —(1) Notwithstanding anything in these Rules, the Court may, at any time after the commencement of any
proceedings, of its own motion direct any party or parties to those proceedings to appear before it, in order that
the Court may make such order or give such direction as it thinks fit, for the just, expeditious and economical
disposal of the cause or matter.
(1A) Where the Court makes orders or gives directions under paragraph (1), it may take into account whether or
not a party has complied with any relevant pre-action protocol or practice direction for the time being issued by
the Registrar.
(2) Where any party fails to comply with any order made or direction given by the Court under paragraph (1), the
Court may dismiss the action, strike out the defence or counterclaim or make such other order as it thinks fit.
(3) The Court may, in exercising its powers under paragraph (1), make such order as to costs as it thinks fit.
(4) Any judgment, order or direction given or made against any party who does not appear before the Court when
directed to do so under paragraph (1) may be set aside or varied by the Court on such terms as it thinks just.
Pre-trial conferences to be held when directed by the Court (O. 34A, r. 2)
2. —(1) Without prejudice to Rule 1, at any time before any action or proceedings are tried, the Court may direct
parties to attend a pre-trial conference relating to the matters arising in the action or proceedings.
(2) At the pre-trial conference, the Court may consider any matter including the possibility of settlement of all or
any of the issues in the action or proceedings and require the parties to furnish the Court with any such
information as it thinks fit, and may also give all such directions as appear to be necessary or desirable for
securing the just, expeditious and economical disposal of the action or proceedings.
(3) The Court, having made directions under Rule 2 (2) or Rule 3 may either on its own motion or upon the
application of any party, if any party defaults in complying with any such directions, dismiss such action or
proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit.
(4) Any judgment or order made under Rule 2 (3) may be set aside by the Court, on the application of the party,
on such terms, if any, as it thinks just.
(5) [Deleted by S 283/97]
(6) At any time during the pre-trial conference where the parties are agreeable to a settlement of some or all of
the matters in dispute in the action or proceedings, the Court may enter judgment in the action or proceedings or
make such order to give effect to the settlement.
Notification of pre-trial conferences (O. 34A, r. 3)
3. All parties shall be informed of the date and time appointed for the holding of the pre-trial conference by way
of a notice in accordance with Form 64, and each party shall comply with any directions contained in such
notice.
Attendance at pre-trial conferences by solicitor or in person as directed by the Court (O. 34A, r. 4)
4. Parties to the action or proceedings may be represented at the pre-trial conference by their solicitor, if any, but
may, if they so desire, with the leave of the Court, attend the pre-trial conference personally, at the time originally
appointed or as adjourned, in addition to their solicitor.
Adjourned and subsequent pre-trial conferences (O. 34A, r. 5)
5. A pre-trial conference may be adjourned from time to time, either generally or to a particular date, as may be
appropriate.
Failure to appear of one or more of the parties (O. 34A, r. 6)
6. —(1) If, at the time appointed for the pre-trial conference, one or more of the parties fails to attend, the Court
may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such
other order as the Court thinks fit.
(2) An order made by the Court in the absence of a party concerned or affected by the order may be set aside by
the Court, on the application of that party, on such terms as it thinks just.
(3) Without prejudice to the preceding paragraphs of this Rule, where one or more of the parties to the action or
proceedings fails to attend the pre-trial conference, the Court may, if it thinks fit, adjourn the conference.
Non-disclosure (O. 34A, r. 7)
7. No communication of facts disclosed or of any matter considered in the course of a pre-trial conference in any
action or proceedings shall be made to the Court conducting the trial of the action or proceedings.
- On application, Court may reinstate the action or allow it to proceed on terms it thinks just - O 21 r 2(8)
- See generally Joshua Benjamin Jeyaretnam v Lee Kuan Yew [2001] 4 SLR 1 –
application to strike out claim was dismissed. – DECIDED under old regime.
At time, order in force.
Lapse of 2 yrs and 4 mths when plaintiffs (PAP) had not taken step in proceedgs. JBJ took action to
strike it out. Court held that that main consideraitn was whther def was prejudiced by sth and tis
cannotbe compensated in costs. Eg witness died in the meantime. Other considetion – whether
rlimitation period expired.
Main considerations: -
• i. defendant had failed to show that he was prejudiced by the delay (namely prejudice not
compensatable by costs); and
• ii. limitation period for the Plaintiff’s action had not expired therefore Plaintiff was at
liberty to bring the action again even if struck out and this would only incur further costs
- note – plaintiff’s case struck out. He applies to revive action. He manages to show that imitation period not
expired and you are not prejudiced. This does not mean game over for def. you can show abuse of process
->
- Abuse of process and contumelions conduct (a wholesale disregard for the rules) stands on its own. => can
stil strike out even if poaintiff satisfies 1 and 2 above. Principles apply as above main principles.
This would only be made out in exceptional cases: The Tokai Maru [1998] 3 SLR 105.
For this head, need not show either prejudice or fact of limitation having expired.
- Note that pre-writ delay can compound any post-writ delay : Birkett James [1978] AC297
- Above principles are likely to apply to application to reinstate action under O 24 r 2(8)