Professional Documents
Culture Documents
Preparation of trial
1. go through bundle (pleadings etc)
2. go through statements of witnesses
a. affidavits of evid in chief – what witnesses tell u case is abt – reduce in form of affidavit – this is
form of evid given in trial
b. sit down with witness and prepare
c. this is the evid to support ur case at trial
d. lawyer prepared it
e. impt – lang mirrors tt of lawyer – witness, if he disavows everything here – this kills the case!!!
f. So what can go in and how to draft very impt
- Examine all proofs of evidence taken, the correspondence and docs disclosed by both sides. Make sure that
affidavits are ready, and docs in core bundle are prepared.
- Examine each allegation in the pleadings that is disputed and ask how they are to be proved.
- List each of the separate issues for trial and consider the following:
1. The burden of proof (ie: Section 103 – 106 EA). On who, presumptions, how to rebut, res ipsa loquitur etc
2. Whether any witness will attend voluntarily, or should a subpoena be issued
3. If any witness will be unavailable for an indefinite time, whether to instead apply under Order 38, r 3 , for
the evidence of any particular fact to be given at the trial by statement on oath or information or belief; by
the production of documents; or entries in books; or by a newspaper which contains a statement of that fact.
4. Whether any original documents are required to be put in as evidence. If so, who has them? If the originals
are in one’s own possession is it necessary to serve notice to admit? If they are in the possession of the other
side, is a notice to produce necessary? If they are in the possession of a third party, a subpoena duces tecum
may be necessary.
- A writ of subpoena can be issued to compel the attendance of a particular witness who is reluctant to
attend trial.
- Why? – some witneses give evid in support of client case – most of them WANT to tell their story. But
there are some who avoid giving the trial. Shirking the responsibility. When meet such instances, then
need writ of subpoena.
- You do not issue a writ of subpoena unless you have reason to believe that the witness is reluctant to give
evidence – otherwise you would incur unnecessary costs to your client.
(a) Order 38, rule 14 –form and procedure for writ of subpoena.
- The subpoena must be prepared in the prescribed form, and will be issued by the Registry upon the filing of
a praecipe in Form 70 (Praecipe for subpoena).
The praecipe must contain the name and address of the party issuing the writ, if he is acting in
person. Otherwise, the name of the firm and business address of the party’s solicitor must be
stated.
Requirements in the praecipe. O38 r 14 (3)
- 1. Writ of subpoena ad testificandum – requires one or more persons to attend court to give evidence:
Order 38, r 15
Coming to court and testify – ad testificandum
- Not coming out for exams.
- More than one name may be included in one writ of subpoena ad testificandum
- Form 6
More than one name may be included in one subpoena to testify5(O. 38, r. 15)
15. The names of 2 or more persons may be included in one subpoena to testify5.
- 2. Writ of subpoena duces tecum – requires the person to produce documents. Only one person can be
named on the writ and he is not obliged to attend personally: Order 38, r 16
Duces tecum – writ of subpoena compelling production of doc – only one person can be
named in this. EXAM!!!
Form 68
- 3. A combined subpoena ad testificandum and duces tecum - may be issued to require the witness to
give evidence and produce documents: Form 69 – O 38 r 14 – they can be combined in one doc.
- Form 69
- Witness is not compelled to attend court unless a “reasonable sum” is offered for his going to, remaining at,
and returning from Court. (and for a day’s lost earnings)
- A witness is entitled to refuse to attend trial if served writ without offer of sum.
- Difficult/Reluctant witness can fight on this ground, via O38r14(4) (above)
- Ie u have to offer sum of money attached to writ – otherwise person need not attend!
- Rationale – witnesses inconvenienced. Writ states tt u have to be there period, not partr day – very
cumbersome for the witness
- Monies to account – monies fr clients. – remind client tt must put monies to account
o Trial in HC – 150000 to 200000 a day depending on counsel seniority.
o Ur costs – not disbursements!
o So need to have monies to acct to prepare for trial
- Check who witnesses are –
- Preparing a witness –
o Do not give in to temptation to embellish facts for trial. Do NOT coach a witness, you can only
prepare him.
o 3 reasons
1) witness gives Evidence not the lawyer
2) witness will fail to remember, trip up and collapse
3) stilted and unbelievable evidence : judge will know.
CF can suggest to witness to reconsider certain points in testimony; phrase in another
way.
o Witnesses who are not lawyers will not speak like a lawyer.
- Preparation:
o Familiarise witness with court layout, order of proceedings bring him to normal trial
proceedings. So that he is comfortable. Accustomed to the environment
o The most friendly, civil, nice cross examiner is the most deadly – do not be lulled into thinking tt
opposition lawyer is helping witness.
o Get them to read /familiarise themselves with affidavits of evidence in chief. Make sure evidence
to be given is the same as what is written in the affidavits. Witness should be familiar and
comfortable with the affidavit, and instantly recognise it to be his own. Cannot coach :- cannot
pose qns/correct witness to tailor answers according to what judge likes.
Language – the witness must be doing the AEIC in the lang he is comfortable with.
• English is the lang tt courts and judges use so they do it in English
• Many witnesses are bilingual – they may ask to speak in Chinese in court with
interpreter – but in fact buying time to come up with contrived answer.
• Ensure tt he understands every single paragraph in AEIC
o Witness gives Evidence to the judge/court, not to the lawyer. “Please tell the court/your Honour”
Judges get irritated when feel tt they get cut out
As lawyer u want court on ur side – so wnt to keep judge with you, examining the
witness
o Terms used to address the judge: - “Your Honour” not “sir”
o Pace to be measured - Remind the witness to speak slowly, take his time, watch the judge’s pen.
o Inform witness of hearing date - make sure the witness turns up on the correct date, time and at the
correct court.
Follow up with phone call
Bring witness down to court
o Make sure the right interpreter is present
- for a witness who is unable to attend trial, examined by judge or R at any other place.
2. Exam in sg – only where nec witness going abord or because of illness, old age or other infirmity likely to
be unabe to attend trial wld order be made
3. exam out of juris -
4. ***********Procedure for lodgement of request – summarise this in the exams when asked for it: - *****
5. Order 39 rule 4
- purpose of PTC –
o resolving issues without going to trial – docs to be produced/ discoveries/ etc/ ask parties to narrow
the issue/ if outstanding iterlocutory matters – to be dealt with at PTC
o if any party in default or order or direction of court, other party can apply for defaulting client’s
case to be struck out and also ask for costs
o so this is very impt stag of litigation process
- At a Pre-Trial Conference (PTC), parties go to Court to update the Registrar on the progress of the case. The
Registrar’s job is to set timelines to encourage the just, expeditious and economical disposal of the case. To
this end he has a wide discretion and wide ranging powers.
- - 2 purposes of the PTC.
o 1) ensure speedy disposal so as to save costs and the Court’s time.
o 2) encourage parties to settle if possible.
- NOT the trial but may effectively determine outcome of trial before the trials
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.
- O 34A r 1(1) - allows the Court, at any time after proceedings have commenced – to make orders, and
summon parties for directions to be given.
- Anytime, court can call parties down and give directions, anything that can save time and cost, for court to
regulate affairs, to save time and cost, to narrow issues, whatever direction court can give to assist parties.
- O 34A r 1(2) & (3) – gives “teeth” to the Court. (2) Court has powers like striking out etc. or such order, to
deal with parties that fail to comply. (3) Costs may also be awarded against the defaulting party; or costs
may be awarded against the solicitor personally.
- Powers court has at the PTC – dismiss action, strike out Defence, counterclaim, may make such order as
deem appropriate (unless orders – if you breach order previously, fail to comply, action dismiss and defence
strike out, order cost)
o Eg if affidavits not prepared, may order action to be struck out/ costs dimissd/
o Orders made at Pre trial stage can effectively determine or conclude the action
o Eg AEICs overdue, failed ot comply with discovery oblig, court can give deadline to comply
after which claim can be struck out
o So if opponent has failed to comply, then can say tt client insisted tt matter proceed – no
extension of time be granted – then go to PTC and inform court tt opponent’s clients failed to
comply with outstanding orders –
- Usu lawyers will alow – favours may be asked later of oter side – u can advise ur own client not to press –
client hsld not be allowed to pressurise lawyer
- For pre trial conf, usu don’t engage in bitter warfare – don’t win on procedure – even if judgement is
awarded, may appeal and sho tt merits of case are strong – u may have to pay the costs personally AND
client may also sue you
Case Law on breach of an “Unless order” (EXAMS) – headnotes alone are sufficient
Syed Mohamed Abdul Muthaliff v. Arjan Bhisham Chotrani [1999] 1 SLR 750
- Respondent lawyer sued the appellants for his legal fees. The respondent got an order that the appellants file
and serve F&BP of their counterclaim within a specified period and that, in default of doing so, the
appellants’ counterclaim be struck out without further order. When the appellants failed to file and serve the
F&BP within the specified time, the court struck out the appellants’ counterclaim. The appellants’ appealed
to the CA
- CA Held: allowing the appeal.
- The CA held that where there has been non-compliance with a pre-emptory order, to avoid a striking-out
order, the onus is on the party in default to show :-
o (1) He made positive efforts to comply, but was prevented from doing so by extraneous
circumstances; and that
o (2) the circumstances of the case justify excusing his default
o The defaulting party has to file an affidavit explaining his reasons for not complying.
o Striking out powers of Court may be exercised where there is intentional and contumelious
default. When considering the consequences of a failure to comply with an unless order, the
relevant question is whether such failure was intentional and contumelious. The Court should not
be astute to find excuses for such failure since obedience to orders of the court was the foundation
on which its authority was founded. Hence a breach of unless order generally amounts to a
contumelious breach, which justifies striking out.
o BUT, If a party could clearly demonstrate that there was no intention to ignore or flout the order
AND that the failure to obey was due to extraneous circumstances, such failure to obey was not to
be treated as contumelious and therefore did not disentitle the litigant to rights which he would
otherwise have enjoyed.
o Contumacy or `perverse and obstinate resistance to authority` would be preferred over `insolent
reproach or abuse` as a criterion to strike out an action; and
o The onus is on the defaulting party to show why his failure to obey the order did not warrant the
striking out of the claim.
o A striking-out order may be nonetheless be ordered if the failure to obey one or a number of orders
was due to negligence, incompetence or sheer indolence.
o “ROC is not meant to be tools of injustice, but are handmaidens to help the Court to achieve
the ultimate objective of achieving justice in every case. Procedural law ought not to be
allowed to rule the Court to such an extent that an injustice is done.”
- => Parties in default of unless order; court held that party is in breach of unless order, court can dismiss
action, defence or counterclaim as the case may be. Because a breach of unless order generally amounts to
contumelious conduct which would justify striking out.
o Court however point out that rules of court are not meant to be tools of injustice. In fact, they are
hand maidens to help the court achieve the ultimate objective of achieving justice as best as it can
in every case.
o Therefore, procedural laws ought not be be allowed to rule the court to such an extent that injustice
is done. The relevant question to consider for the court is whether the failure was intentional and
contumelious.
o Party in breach of unless order must show it had intention to comply but was prevented against its
intention from doing that. Party must show it had no intention to ignore or flout the order and that
failure to obey was due to extraneous circumstances beyond its control.
prior to this case, breach of unless order = no chance of escaping consequences. Now, what a party in default
should do is to submit an affidavit explaining his reasons for not complying.
Note the general position = strike out. Nonetheless, it seems on the facts of this case that only recalcitrant and
terrible breaches will be considered to be intentional and contumelious.
Lea Tool & Moulding Industries v. CGU International Insurance [2001] 1 SLR 413
- At various PTCs, the Plaintiffs were ordered by the Registrar to take steps to move the case forward. After 5
PTCs, the Registrar made an unless order in relation to the orders stated above. On 26 March 1997, Mr
Tham (a representative of the plaintiffs) personally filed the defendants` bundle of documents on behalf of
the plaintiffs. The Defendants drew attention to Order 5 rule 6(2) of the which did not permit the Plaintiffs
(as a body corporate) to properly file the Defendants` bundle of documents through Mr Tham. On 1 April
1997 a default judgment was entered pursuant to the unless order. The plaintiffs applied to the Registrar
seeking an order to set aside the judgment. The AR dismissed the application. The plaintiffs appealed.
- Held (allowing the appeal): Procedural laws are ultimately handmaidens to help the court to achieve
the ultimate and only objective of achieving justice as best it can in every case. They should not be
permitted to rule the court to such an extent that injustice is done. In this case of filing by a company
unrepresented by a firm of solicitors, it is not an immutable rule of procedure that any step taken in any
proceeding by a corporate litigant had to be done by a solicitor or else the step taken by an officer of and on
behalf of the corporate litigant counts for nothing.
- => For latter two cases, parties held to be in breach of unless order –>
- Unless perform sth within certin time, parties in breach
o Courts held in both cases – where breach – court has power to strike out the claim or counterclaim
as the case may be because breach of unless order usu amts to contumelious default
o Contumelious default is usu assumed therby giving court power to strike out claim or counterclaim
- Court went on to hold however, tt ROC are not meant to be tools of injustice
o “These are handmaidens to help the court achive the ultimate objective of achieving justice as best
as it can in every case”
o procedural laws ought not to be allowed to rule the court to such an extent that injustice is done.
- Follwing fr this, where there is a breach of unless order, relevant qn to consider is whether the failure was
intentional and contumelious.
o The party in breach must onversely show that it had the intention to comply and was prevented
against its intention from doing so.
o The party in default must how tt there was no intention to ignore or flout the order and that the
failure to obey was due to extraneous circumstances beyond its control such tt the failure to obey
wld not be treated as contumelious.
- In other words –
o 1. Need to show positive efforts to comply and tt despite this, cld nt comply because of
circusmtnaces byond contor
o Merely writing letters is NOT enough
o Courts say tt need to use also handphone, or go and see client personally. Cannot just rely on snail
mail. Must show positive efforts to comply and that DESPITE this, circumstances beyond control
o Must do what was reasonable
- Together with tokai maru –
o 2. Also pt out to courts merits of client’s claim and tt in three cases, court mindful of fact tt rules of
court are handmaidens and meant to promote justice enad in normal course of events, litigant shld
not be deprived of opportunity to go to court
- BUT this is not the cruncher
o 3. Say tt we will bear the costs of extension of time and all costs occasioned by default – then court
will say
o ie contrition backed up by offer to pay!!
o Court will ask – are you paying out of client’s pocket or firm – if fault is on firm – then u shld pay
– if fault is shared – shld still stand up (first ensure tt firm willing to indemnify)
(c) Order 34A, rule 6 – deals with the event of failure by any party to appear at PTC
(d) Order 34A, rule 7 – deals with non-disclosure of communication at pre-trial conference
- rationale :- to encourage parties to come clean so as to encourage settlement.
Non-disclosure (O. 34A, r. 7)
7. No communication of facts disclosed or of any matter considered in the course of a pre-trial conference in any
action or proceedings shall be made to the Court conducting the trial of the action or proceedings.
Documents lodged prior to trial: Agreed Bundle, Plaintiff’s and Defendants’ Bundles
Filing documents when setting down (O. 34, r. 3)
3. —(1) In order to set down for trial an action, the party setting it down must deliver to the Registrar, a request
in Form 61 that the action may be set down for trial together with a bundle for the use of the Judge consisting of
one copy of each of the following documents:
(a) the writ;
(b) the pleadings (including any affidavits ordered to stand as pleadings), any notice or order for particulars and
the particulars given;
(c) all orders made on the summons for directions; and
(d) a certificate in Form 62, signed by all parties to the action or their solicitors, to the effect that all affidavits of
the evidence-in-chief of witnesses ordered or required to be exchanged pursuant to Order 25 have been so
exchanged.
(2) The bundle must be bound up in the proper chronological order and have endorsed thereon the names,
addresses and telephone numbers of the solicitors for the parties or, in the case of a party who has no solicitor, of
the party himself.
Agreed Bundle
- Order 34, rule 3A(1)(b) – includes the ‘Agreed Bundle’: where both parties agree to the documents
included in the bundle.
- Can take var bases/ forms of agreement – can agree tt docs are authentic/ truth of contents of docs have to
be proved./ dispense with proof of authenticity/ but not with need to have truth of it proved
- The agreement usually extends only to the authenticity of the documents for the purpose
of proving their existence. But there is no agreement as to the truth of the contents of the
documents. The parties may dispute the facts contained in the document.
- or agree on these docs but NOT with the truth of the documents
- you must be clear abt the agreement – expressly
- unless u agree, merely a bundle of docs common to both parties
- but formal admission of doc not taken to be dispensed with umless parties have agreed
expressly
- they must expressly agree what bundles to contain and bases of the agreement
- must ensure tt parties k now what has been agreed to pertaining to docs
Goh Ya Tien v. Tan Song Gou [1981] 2 MLJ 317
- Deals with how the parties may agree on documents to be put together as the “Agreed Bundle” and the
effect of such an agreement. The Court held that if a party only intends to agree to the authenticity of his
opponent’s documents, he must expressly indicate this.
- Both parties may not be able to agree to all the documents which they wish to tender. In such a situation, the
documents will have to be placed in a separate bundle. The bundles are usually referred to as “plaintiff’s
bundle” and “defendant bundle”.
***Jet Holding Ltd and Others v Cooper Cameron (g) Pte Ltd and another 2006 SGCA 20*** impt for
exams!!
- Plaintiffs claimed damages against c for breach of contract, and against c and s for neg breach of duty; total
claim was in region of some 22 million US dollars trial judge found def liable to plaintiffs
- However judge found tt plaintiff’s main basis to prove loss (damages bundle) not properly admitted to evid
o This bundle was not agreed
o not admitted
o truth ont proved
o (prior to trial, bundle must be agreed to be admitted without need of formal proof or if not, get
maker of statement to court to admit to the statement)
o otherwise, end up with possib tt cannot prove claim because docs not formally admitted! Even
though docs in this case voluminous
- Thus judge refused to consider any part of damage bunde in assessing extent of loss caused by defs breaches
- Award plaintiffs damages in amt of 1 million, which was proven during trial, and further sum of 10 sing
dollars as nominal damages in respect of other pleaded damages
- Plaintiffs appealed
- Sg CA upheld ruling of trial judge
- Citing s66 evid act, court held tt as general rule, all docs must b proved by pri evid – sec evid only
admissible in evid in cirucmsntces set ou in s67 of act
- Court observed tt at NO stage in proceedings before tiral judge were orig docs in damages bundle produced.
Further noted tt reqts in s67 of act not satisfied as wld warrant the introduction of sec evid. Court further
ruled tt even if damages bundle admitted, the truth of its contents must still be proved.
- CA held
o It must be emphasised tt whilst formal proof of docs concerned is dispensed with by agreed
bundle of docs, the truth of their contents will still have to be proved in the absence of any
agreement or admission to the contrary.
- Court noted tt counsel for the plaintiffs sought – indirectly at least – to suggest tt it was both impractial as
well as unfair to expect the plaintiffs to satisfy the evidence provisions (ss66/67) esp since no of docs
was voluminous.
- However, such arg fr practicality and fairness must have a legal basis.
o Ie have to be clear on what is agreed and what is not – if not agreed, what is impt to do!
o Signal to all lawyers tt if want to rely oin agreed bundle, need to ensure tt bundle is agreed to. If
not, problem of proving case. In this case, bundles pertained specifically to damages, because of
this, cour awarded one dollar for damages when worth a lot more
o In light of this judgement, the finger of liabilty pted at the solicitors. Client deprived of substantive
damages arising fr sol’s negligence!
o In normal course of events parties will try to agree otherwise to prove truth (makers of statement
to swear ot it etc) – very costly, losing party to pay
o Only way is to say tt other party is estopped fr saying tt bundle is not formally admitted
But this arg at trial is risky – dependnt on judge agreeing with you on what is reasonable
conduct to be inferred
Mere fact tt other party quiet may not amt to estoppel or acquiescence
In the sitn if docs tendered and put to other side and ther side not raised objection, given
right st of circumstances, cld be inferred tt other party has waived right to challenge
BUT this is reliant on judge making assessment of facts to conclude tt this shld be the
case based on fairness, etc
So far better to just agre on bundle before trial – EXPRESS AGREEMENT
- However, the court recognised the Imptance of balance
- In this regard, it noted
o We are therefre of the view tt whilst, as an impt pt of departure, a party seeking to introd docs into
evid ought to comply with provn in EA, if dosc are in fact marked and admitted into evid without tt
party in fact satisfying the reqt in ea and where no objn taken by other party at tt partr pt in time,
then tt other party cannot obj to admission of said docs later
o Last mentioned proposition applies in a fortiori manner when party who had not objected to
introdn of docs subseq cross exmines relevant witnesses on these docs in an attempt to discredit the
truth of contents stated therein
o Note tt whilst partr arg was in fact raised in plaintiff’s written submissions, they were not direct
focus during oral arg bfore this court
o (note tt this is exception only to genral rule)
- Held, allowing Cameron’s appeal with regard to the issue of indemnity in part and dismissing the plaintiffs’
and Stork’s appeals:
(1) There was no agreement to dispense with formal proof of the claims for damages. In order for the plaintiffs’
argument that the defendants had waived authenticity to succeed, there had to be clear evidence of an agreement
by the parties concerned to the effect that the authenticity of the documents in question was not an issue. There
was nothing in the series of correspondence relied on by the plaintiffs which suggested that counsel for the
defendants had in fact resiled from, or compromised in any way, the objections that they had taken during the
trial itself. In addition, the exchange that took place before the Judge appeared to be rather ambiguous, at best. In
fact, the precise opposite had occurred in the form of clear objections taken by the defendants and which were
noted by the Judge herself. Most importantly, the Judge herself made a clear finding to the effect that the parties
had not entered into the agreement so strenuously argued for by counsel for the plaintiffs. She was the best
person to assess whether or not the defendants had objected to the Damages Bundle because she was present
throughout the proceedings: at [27], [29], [30] and [33].
(2) Whilst the contents of an affidavit would be deemed to include the contents of the documents exhibited to
it, the question of whether such documents could themselves be admitted into evidence as authentic documents
would depend on whether or not they satisfied the relevant criteria contained in the EA or fell within the relevant
exceptions contained therein. If, in fact, documents such as those involved in the present appeal were
automatically admitted into evidence by virtue of the fact that they were exhibited to the affidavit concerned
without more, this would enable parties to circumvent the relevant rules and principles embodied within the EA
which were intended to ensure that only the best evidence was admitted into evidence. In an extreme situation,
wholly bogus documents could be admitted simply because the deponent of the affidavit had exhibited them to
the affidavit itself: at [36].
(3) The rules and principles of evidence, particularly as embodied within the EA, played an important part in
the administration of justice and were not mere window-dressing. Sections 63 to 67 of the EA (in particular s 66)
had, as their core rationale, the aim of ensuring that the best evidence was available before the court. In the
present appeal, it was clear, first, that the requirement of “primary evidence” in s 66 had not been satisfied. At no
stage in the proceedings before the Judge were the original documents produced. Secondly, it was equally clear
that the requirements in s 67, which allowed secondary evidence to be given, were not satisfied either. On this
ground alone, the Judge was correct in finding that the documents in the Damages Bundle had not been admitted
into evidence: at [36], [38] and [73].
(4) In addition to failing on their various arguments as to authenticity, the plaintiffs also failed to overcome the
objections from hearsay. They did not bring themselves within any of the potentially applicable exceptions to the
rule to hearsay. First, s 35 of the EA, which related to computer output as evidence, appeared to be more germane
to the issue of liability, as opposed to the quantum of damages. In addition, the requirements of s 32(b) of the EA
had not been satisfied. In particular, it was a question of fact whether or not there were grounds for holding that
the relevant evidence could not be procured without unreasonable delay or expense within the meaning of s 33 of
the EA: at [75], [78], [79] and [81].
44 By way of preliminary observation, although it is true that a copious number of documents were
involved in the present proceedings, it is equally true that any problems of authenticity could have been
surmounted (as they often are in cases of this nature) by an agreed bundle of documents, although
(unfortunately) this was not the case here. However, it must be emphasised that whilst formal proof of the
documents concerned is dispensed with by an agreed bundle of documents, the truth of their contents will
still have to be proved in the absence of any agreement or admission to the contrary. In this regard, the
observations in the Singapore High Court decision of Goh Ya Tian vTan Song Gou [1980–1981] SLR 578 at
581, [12] are too broad inasmuch as they suggest that the proof of the truth of the contents of the
documents concerned is also dispensed with and, to that extent, ought not to be followed.
45 Indeed, when counsel for Stork, Mr Alvin Yeo SC, was posed a question as to practicality when so many
documents were involved, he referred precisely to the solution in the form of an agreed bundle of documents;
where there was no such agreed bundle, which situation he conceded was the right of any party in litigation to
insist upon, Mr Yeo argued that parties (again, pursuant to their respective rights in litigation) had the prerogative
of objecting to any documents tendered – with any sanctions lying in the sphere of an order for costs. As we
explain below, we are of the view that this last-mentioned point is (subject to the issue of timing) generally
correct. If the parties cannot come to the more felicitous arrangement where there is in fact an agreed bundle,
then each must face the consequences of a potentially “messier” situation in so far as the admission of documents
into evidence is concerned. Unfortunately, this was precisely the situation here – but with a slight (albeit vitally
significant) difference. The defendants were within their legal rights to object to the Documents tendered by the
plaintiffs. But we did not perceive counsel for the plaintiffs to be arguing that the Damages Bundle should have
been admitted on the basis that no objections had in fact been taken by the defendants in the instant case to it. As
we have seen, counsel for the plaintiffs relied, instead, on the argument to the effect that the defendants had in
fact agreed to admit the Damages Bundle, which was a somewhat different argument and indeed imposed, in our
view, a heavier onus of proof on the plaintiffs and which we did not accept.
a) Order 35, rule 1(1) – failure by both parties to appear at the trial.
b) Order 35, rule 1(2) – failure by one party to appear at the trial
Judgment, etc., given in absence of party may be set aside (O. 35, r. 2)
2. —(1) Any judgment or order made under Rule 1 may be set aside by the Court on the application of any party
on such terms as the Court thinks just.
(2) An application under this Rule must be made within 14 days after the date of the judgment or order
d) Judge may give directions as to order of speeches rule 4(1) otherwise default proced applies:
(1) Order 35, rule 4(1) – deals with the order of speeches at the trial
- The plaintiff opens his case with an address to the Court introducing the issues and facts – Order 35, rule
4(1).
- Practice Direction – opening speech must be filed 2 days before the trial
Order 38, rule 1 – evid in chief in action begun by writ by affidavit; cross exam and reexam
Evidence Act
Examination-in-chief, cross-examination and re-examination
139. —(1) The examination of a witness by the party who calls him shall be called his examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his cross-examination.
(3) Where a witness has been cross-examined and is then examined by the party who called him, such examination shall be called
his re-examination.
Order of examinations and direction of re-examination
140. —(1) Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined, then, if the party
calling them so desires, re-examined.
(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the
facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by
permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-
examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.
Cross-examination of person called to produce a document
141. A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be
cross-examined unless he is called as a witness.
Witnesses to character
142. Witnesses to character may be cross-examined and re-examined.
Leading questions
143. Any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as
to which the witness is to testify, is called a leading question.
When they must not be asked
144. —(1) Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-
examination, except with the permission of the court.
(2) The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been
already sufficiently proved.
When they may be asked
145. —(1) Leading questions may be asked in cross-examination, subject to the following qualifications:
(a) the question must not put into the mouth of the witness the very words which he is to echo back again; and
(b) the question must not assume that facts have been proved which have not been proved, or that particular answers have been
given contrary to the fact.
(2) The court, in its discretion, may prohibit leading questions from being put to a witness who shows a strong interest or bias in
favour of the cross-examining party.
Order 38 Rule 10
Court documents admissible or receivable in evidence (O. 38, r. 10)
10. —(1) Office copies of writs, records, pleadings and documents filed in the Registry shall be admissible in
evidence in any cause or matter and between all parties to the same extent as the original would be admissible.
(2) Without prejudice to the provisions of any written law, every document purporting to be sealed with the seal
of the Supreme Court or the Subordinate Courts, as the case may be, shall be received in evidence without further
proof, and any document purporting to be so sealed and to be a copy of a document filed in, or issued out of, the
Supreme Court or the Subordinate Courts shall be deemed to be an office copy of that document without further
proof unless the contrary is shown.
f) General
- if ill, make sure that MC certifies that not fit to go to court. May want to go to court to produce MC.
- At the conclusion of the Plaintiff’s case, the defendant can submit that there is no case to answer. I.e. when
all the plaintiff’s witness had given evidence, defendant’s counsel forms the view that the key elements of
the plaintiff’s cause of action have not been made up. And on that basis, Defendant submits that there is no
case for the defendant to answer.
- Unlike in criminal cases, a defendant rarely makes a submission of no case to answer. This is because
the defendant solicitor must undertake not to call any further evidence, even in the event that the
submission is not upheld.
Rationale – it is undesirable for a judge (being a judge of fact) to make any ruling on the
evidence until the process for its adduction is complete.
- be very certain that defendant is going to succeed and plaintiff had not made any case. Make submission of
no case to answer when plaintiff had not made up case (best to ask client).
- If the court upholds the submission of no case to answer, the P has not made out his case, and judgment will
be entered for the D. However, if the submission is rejected, the court finds there is sufficient evidence to
make out the P’s case. The D cannot raise evidence to prove his defence, and hence judgment will be entered
for the P.
- Need undertaking tt will never call other evid – because u stand or fall on evid tt u put before the court
- Very diff fr crim proceedings
o In civil trial, this is the one and only shot – that is IT
Cases
Laurie v Raglan [1942] 1 KB 152
Yuill v Yuill [1945] P 15
- On appeal, undertaking is still present and binding. Hence the party who made the submission still cannot
raise any evidence, can only argue that the legal elements are not made out.
- form 79
Form of judgment, etc. (O. 42, r. 5)
5. —(1) If, in the case of any judgment, a form thereof is prescribed in Form 79, the judgment must be in that
form.
(2) The party entering any judgment shall be entitled to have recited therein a statement of the manner in which
the writ or other originating process by which the cause or matter in question was begun was served.
(3) An order must be marked with the name of the Judge or the Registrar by whom it was made and must be
sealed.
- committal order 45
- extraction proced
Preparation of judgment or order (O. 42, r. 8)
8. —(1) Where the party in whose favour a judgment or order is given or made is represented by a solicitor, a
copy of the draft shall be submitted for approval to the solicitor (if any) of the other party who shall within 2
days of the receipt thereof, or within such further time as may in any case be allowed by the Registrar, return
such copy with his signed consent or any required amendments thereto.
(2) When the solicitor omits to return the copy of the draft within the time prescribed, he shall be deemed to have
consented to the terms thereof.
(3) In any case where the solicitors concerned are unable to agree upon the draft, any one of them may obtain an
appointment before the Registrar, of which notice shall be given to the other, to settle the terms of the judgment
or order.
(4) Every judgment or order shall be settled by the Registrar, but in the case of a judgment or order made by a
Judge, any party may require the matter in dispute to be referred to the Judge for his determination.
(5) Where the other party has no solicitor, the draft shall be submitted to the Registrar.