Engine Holdings Asia Pte Ltd v JTrust Asia Pte Ltd [2021] SGHC(A) 14

Background

AD/OS 42/2021 (“the present OS”) is an application by Engine Holdings Asia Pte Ltd (“Engine”) for leave to appeal against the decision of the High Court judge (“the Judge”) in HC/RA 209/2021 (“RA 209”). In RA 209, the Judge had affirmed the decision of an Assistant Registrar (“the AR”) in HC/SUM 2413/2021 (“the Striking Out Summons”) not to strike out HC/S 1000/2020.

The respondent to the present OS is JTrust Asia Pte Ltd (“JT”). In 2017, JT filed HC/S 1212/2017 (“the 1st Action”) against eight defendants, alleging that they had unlawfully conspired to defraud JT into investing in Group Lease Public Co Ltd (“GL”). JT sought to recover sums which it had invested in GL via three investment agreements (see JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others [2020] 2 SLR 1256 (“CA Judgment”) at [13]). The High Court judge in the 1st Action had dismissed the claim (see JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others [2020] SGHC 29 (“HC Judgment”) at [25]), but this was overturned by the Court of Appeal which held that the first and second defendants had deceived JT, and that the first to seventh defendants had conspired to defraud JT (see CA Judgment at [202] and [257]). However, the Court of Appeal only granted JT’s claim in part, finding that JT’s claim for US$130 million in damages in relation to the second investment agreement (“2IA”) was premature as the 2IA stipulated that the investment was only due for repayment on 1 August 2021 and it had not been shown that GL would not repay (CA Judgment at [13(b)], [244] and [245]).

In October 2020, JT filed HC/S 1000/2020 (“the 2nd Action”) against Engine and APF Holdings Co Ltd (“APF”), claiming that they were part of the same unlawful means conspiracy as the defendants in the 1st Action. The 2nd Action is the action which is the subject of the present OS for leave to appeal. In the 2nd Action, JT sought to recover the moneys which it did not recover in the 1st Action. In May 2021, Engine filed the Striking Out Summons to strike out the 2nd Action. At the hearing of the summons, Engine advanced three grounds on which to strike out the 2nd Action: (a) the claim is an abuse of process as it should have been brought together with the 1st Action; (b) the claim is legally unsustainable as the loss to JT has not yet accrued, since 2IA had yet to mature; and (c) the claim is factually unsustainable as JT has not asserted that Engine committed any act prior to the date 2IA was concluded, which induced JT to enter into 2IA.

The decisions of the AR and the Judge

The AR dismissed the Striking Out Summons. First, applying the law that a claim could only be struck out on grounds of abuse of process if such abuse was “plain or obvious” (applying Beyonics Asia Pacific Ltd and others v Goh Chan Peng and another and another appeal [2021] SGCA(I) 2 (“Beyonics”) at [50] to [53] and Antariksa Logistics Pte Ltd and others v Nurdian Cuaca and others [2018] 3 SLR 117 (“Antariksa (HCJ)”) at [74] to [79]), he found on the facts that it was not plain or obvious that the 2nd Action constituted an abuse of court process. This was because: (a) JT’s conduct of suing the defendants in the 2nd Action is permitted by s 17 of the Civil Law Act (Cap 43, 1999 Rev Ed) (“CLA”) which expressly permits successive actions against joint tortfeasors; and (b) the documents relied upon by Engine did not prove that JT knew about its involvement in the conspiracy early enough such that JT should reasonably have joined Engine as a defendant in the 1st Action. Instead, JT most likely did not know about Engine’s involvement until September 2019 (one month before the trial of the 1st Action), and it was reasonable not to have joined Engine into the 1st Action at that time.

Second, the AR found that the claim was legally sustainable despite the fact that 2IA had not matured, because the risk that JT would be unable to recover its moneys under the agreement gives rise to a good arguable case that JT has suffered pecuniary loss which constitutes actionable damage.

Third, the claim is factually sustainable despite Engine’s argument to the contrary (see [3] above) as JT’s case is not only that they were induced to enter into 2IA but also that they were induced by Engine to subsequently complete payment obligations under 2IA.

Engine then filed RA 209 to appeal the AR’s decision, but the Judge dismissed the appeal, without providing any reasons.

Thereupon, Engine filed the present OS, seeking that:

(b) It be granted leave to file an affidavit in support of its leave to appeal application (and if allowed, the substantive appeal), to address the following three matters:

(i) JT’s commencement of HC/OS 780/2021 (“the 3rd Action”) on 3 August 2021 against six of the eight defendants in the 1st Action claiming damages for a conspiracy to defraud, arising out of transactions similar to those that were the subject of the 1st Action;

(ii) various cause papers, affidavits, applications, and submissions made in the 3rd Action; and

(iii) an invitation to JT to respond to paragraphs 11 to 27 of the 5th affidavit of one Muneo Tashiro (filed under solicitor’s cover affidavit dated 13 July 2021); and

(c) Upon the grant of leave to file an affidavit, that directions be given for the filing of the said affidavit, for the filing by JT of an affidavit in response, and for the filing by Engine of an affidavit in reply.

Issues

Engine relies on the usual three grounds to seek leave to appeal to this court – namely, that there is:

With respect to the first ground of a prima facie error, Engine seeks to appeal on the basis of errors of both law and fact. However, this is misconceived as the general principle is that the prima facie error must be one of law and not of fact (see IW v IX [2006] 1 SLR(R) 135 at [20] and Hwa Aik Engineering Pte Ltd v Munshi Mohammad Faiz and another [2021] 1 SLR 1288 at [8]). It may be that in exceptional circumstances leave to appeal may also be granted if there is an error of fact which is obvious from the record but it is unnecessary for us to consider this exception because, as we elaborate later, there was no such error in this case.

With respect to the second and third grounds, we note that they are disjunctive but Engine in its written submissions (“EWS”) addressed both grounds together and we will do likewise as it serves no purpose in the present circumstances to address them separately.

In so far as the alleged errors of law that Engine relies on in respect of the first ground overlap with the questions that Engine raises with respect to the second and third grounds, we will address them together. The questions that Engine relies on with respect to the second and third grounds are:

(a) Whether the “plain and obvious” test, which applies generally to striking out applications, also applies specifically to the striking out of an action on the ground of abuse of process based on the extended doctrine of res judicata as stated in Henderson v Henderson (1843) 67 ER 313 (“the 1st Issue”). We will refer to this type of abuse as the Henderson abuse of process.

(b) How the guidelines from the English case of Aldi Stores Ltd v WSP Group plc and others [2008] 1 WLR 748 (“Aldi”) should be applied in Singapore (“the 2nd Issue”).

(c) What the legislative intent behind s 17 of the CLA is (“the 3rd Issue”).

At the outset, we mention a preliminary point. The main thrust of Engine’s application before the AR was that it was a Henderson abuse of process for JT to commence the 2nd Action when it ought to have included Engine as a defendant in the 1st Action. However, according to JT, this argument on Henderson abuse of process had already been raised by Engine in two earlier applications in the 2nd Action.

The first application was HC/SUM 4532/2020, which was JT’s application for a Mareva injunction (“MI”) against Engine filed on 16 October 2020. At an opposed ex parte hearing of that application, Engine had already argued that the 2nd Action was a Henderson abuse of process to resist the application. JT’s point is that as the Judge had granted the MI, this must mean that she was of the view that the 2nd Action was not a Henderson abuse of process.

The second application was HC/SUM 4970/2020 which was an application by JT filed on 13 November 2020 to seek leave to disclose Engine’s affidavit of assets in related proceedings, among other things. At a contested hearing, Engine again argued that the 2nd Action was a Henderson abuse of process. The Judge granted leave to disclose the affidavit in related proceedings.

The Striking Out Summons is hence the third time in which Engine has raised the argument of Henderson abuse of process. JT thus seems to be implying that the doctrine of issue estoppel applies to estop Engine from raising the same argument in the Striking Out Summons and related appeals or applications. The AR did not rule on the issue estoppel point, and as mentioned, no reasons were given by the Judge for her decision in RA 209. Before us, JT’s written submissions (“JTWS”) merely mentioned the previous instances when Engine had raised the Henderson abuse of process argument and stopped short of explicitly asserting issue estoppel. In the circumstances, we will say no more about it.

The 1st Issue

Turning to the 1st Issue, it seems to us that Engine has wrongly assumed that the observations made in the English case of Angeli Luki Kotonou v National Westminster Bank plc [2017] 1 All ER (Comm) 350 (“Kotonou”), which were endorsed by a judge in the High Court case of Antariksa (HCJ) at [78], were contrary to the “plain and obvious” test established in Singapore cases such as Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 at [18], and The “Osprey” [1999] 3 SLR(R) 1099 at [6].

In Kotonou, a defendant had applied to strike out a claim on the basis of Henderson abuse of process. After referring to what Buxton LJ had said in Laing v Taylor Walton (a firm) [2007] EWCA Civ 1146 at [11] and [12], Gloster LJ said, at [45], that what was required was “an intense focus on the facts of [the] case” to determine whether in broad terms the new proceedings could be said to fall under the broad rubrics of unfairness and/or the bringing of the administration of justice into disrepute. We will refer to this approach as the “intense focus approach”. Gloster LJ said that this approach involved not merely concentrating on findings of fact but also addressing the much wider question of whether the Henderson abuse of process is engaged (at [45]).

Engine suggests that the intense focus approach is contrary to the “plain and obvious” test as the latter would encourage a court to engage in only a cursory examination of the materials before it, which is what the AR and the Judge allegedly did. It then argues that its application for leave to appeal would give this court the opportunity “to clarify the law to public advantage”.

In our view, Engine’s argument is not valid. First, it is clear that the “plain and obvious” test applies in Singapore. What Engine is trying to do is to ask this court to change the law and not to clarify it.

Second, there is no contradiction between the intense focus approach and the “plain and obvious” test.

Engine disingenuously submitted that Antariksa (HCJ) had endorsed the intense focus approach in Kotonou (at [78]) but omitted to mention that Antariksa (HCJ) had then applied the “plain and obvious” test (at [79]). Engine tried to create the impression that the two approaches are inconsistent and did not mention that the court in Antariksa (HCJ) had no such difficulty.

As mentioned in Antariksa (HCJ) at [79], in applying the “plain and obvious” test at the stage of an application to strike out a claim summarily, the court is not to carry out a minute and protracted examination of the documents and the facts of the case. That is different from saying that the court should not focus intensely on the facts. There is thus no general principle decided for the first time or a question of importance which would materially affect the present case.

Indeed, the AR did not suggest that the intense focus approach was contrary to the “plain and obvious” test. More importantly, it is unfair for Engine to suggest that the AR (and the Judge) had only conducted a cursory examination of the materials before them. What the AR did was to apply the law to the materials before him bearing in mind the stage of the proceedings. He considered the materials carefully. After doing so, he was not able to conclude at that stage that there was a Henderson abuse of process. He did not engage in a minute and protracted examination of the materials as that would usurp the role and function of the trial court. Accordingly, he could only reach a tentative conclusion that JT did not know about Engine’s alleged involvement in the conspiracy until around or slightly before September 2019. This was in line with what JT contended, and militated against Engine’s contention that JT knew much earlier about Engine’s involvement and that JT should hence have taken steps to include Engine as a defendant in the 1st Action. Engine submits that the Judge affirmed the AR’s decision and reasoning. In our view, there was no prima facie error of law (or fact) made by the AR or the Judge.

Engine also submits that the AR’s “tentative conclusion” suggested that he had failed to discharge his duty to determine whether the 2nd Action was a Henderson abuse of process or not. We are of the view that this is an unwarranted submission. It is not in every case that a court will reach a definite conclusion on such an issue at this stage of the proceedings. Indeed, it is the other way round, ie, that it is quite often the case that a court is not able to reach a definite conclusion on the issue at this stage of the proceedings and the court may then emphasise that its conclusion is tentative so as not to tie the hands of the trial court. The AR’s remark was appropriate and fair to the contesting parties and it is a pity that Engine has sought to make something out of it.

Engine also submits in the alternative that if the court below had taken an intense focus on the facts, then it would have used its wide range of inherent powers to direct the trial of a preliminary issue concerning Henderson abuse of process. This is another suggestion of a prima facie error but again it is not an error of law. At best, this is an error (if at all) concerning an application of the law to the materials. Besides, Engine has not been able to establish why a court in these circumstances would necessarily direct the trial of a preliminary issue. No such direction was sought before the AR. In any event, it is not possible to say that such a direction should have been made. On the contrary, it may be argued that such a direction would be inappropriate as it would mean that the taking and construing of evidence would be split into two tranches with overlapping of witnesses, first for the preliminary issue and the second for the rest of the claim. It is also questionable whether it is appropriate to split the evidence between two stages as the evidence for the preliminary issue might overlap with the evidence for the rest of the claim. Engine’s argument about the absence of such a direction is a distraction which clearly does not come within any of the three grounds for which leave to appeal should be granted.

The 2nd Issue

We come now to the 2nd Issue. It raises the question of whether and when a claimant who is aware that it may have another claim (whether against an existing party to the proceedings or another person who is not yet a party) is to raise this issue with the court hearing the existing proceedings for the claim, the existing defendant and/or the potential defendant (“the Raising Requirement”), and the consequence of an omission to do so. In the present case, it is common ground that JT did not disclose to the court or to Engine before the trial of the 1st Action that it might have a claim against Engine based on similar facts as in the 1st Action.

Engine refers to the principles in Aldi and suggests that Aldi is authority for the proposition that the Raising Requirement is mandatory. In Aldi, Thomas LJ mentioned at [29] that the proper course for a claimant in such a situation is to raise the issue with the court (hearing the existing proceedings). The learned judge went on to suggest at [31]:

Engine argues that there are at least three different ways in which the Aldi principle has been treated by the courts: (a) it has been endorsed in English and Australian cases stemming from the case of Stuart v Goldberg Linde (a firm) and others [2008] 1 WLR 823 (“Stuart”); (b) the Aldi principle was doubted in Antariksa Logistics Pte Ltd and others v Nurdian Cuaca and others [2016] SGHCR 10 (“Antariksa (HCAR)”) which is a decision by an assistant registrar; and (c) the decision of Antariksa (HCJ) which held that a plaintiff who failed to include a defendant in an earlier action had to have good reason for doing so.

Engine submits that the Raising Requirement is mandatory. This implies, without explicitly stating, that the consequence of failure to comply with the Raising Requirement is that a subsequent action will be construed as a Henderson abuse of process. This must be what Engine means as otherwise, the Raising Requirement would not truly be mandatory. Yet, neither Aldi nor the English cases that Engine refers to in support of its argument bear out this proposition. For the present purposes, we need refer only to some of the English cases.

First, while it may be said that the views expressed by Thomas LJ in Aldi itself suggests that the Raising Requirement is mandatory, it is important to bear in mind that the learned judge did not go on to say that an omission to meet that requirement would necessarily mean that the subsequent action is a Henderson abuse of process.

Next, in Stuart, the claimant had successfully sued two defendants for breach of an undertaking to pay a certain sum. Subsequently, the claimant issued proceedings against the same two defendants for misrepresentation and inducing breach of contract. The defendants applied to strike out parts of the particulars of claim on the basis that it was a Henderson abuse of process.

Sir Anthony Clarke MR sitting in the Court of Appeal said (in Stuart at [96] to [97]):

At [101], he also said:

Sedley LJ said, at [77]:

However, Lloyd LJ expressed a more nuanced view, which was also noted in Antariksa (HCJ) at [99]. At [70] of Stuart, Lloyd LJ said that the claimant should have written a warning letter (to the defendants) and that this would have been a prudent and proper course to take. The question was whether the omission to do so was an abuse of process. He then said at [71]:

Next, in Gladman Commercial Properties v Fisher Hargreaves Proctor and others [2013] EWCA Civ 1466 (“Gladman”), a claimant in a second action was a defendant in an earlier action. In the earlier action, it had made counterclaims against certain parties only. Thereafter it commenced the second action against other parties in respect of the same misrepresentations that had been alleged in the earlier action. In the earlier action, it had been alleged that some of the other parties (in the second action) had made the misrepresentations on behalf of the defendants to the counterclaim in the first action.

Briggs LJ referred to the judgment of Thomas LJ in Aldi and the judgments of Sedley LJ and Sir Anthony Clarke MR in Stuart and said, at [64]–[66]:

We turn to the decision of Antariksa (HCAR) which also involved the question of Henderson abuse of process. The assistant registrar said, at [67]–[69]:

The assistant registrar dismissed an application to strike out a second action against a defendant who was not a party in the first action (at [71]). The assistant registrar also dismissed similar striking out applications made by other defendants who were also not parties in the first action (see Antariksa (HCJ) at [3] and [54]). The unsuccessful defendants appealed to a judge of the High Court which resulted in the decision in Antariksa (HCJ). There the learned judge said at [100] to [101]:

For present purposes, it is unnecessary to set out his elaborations at [102] to [106]. He went on to say at [107] to [112]:

On the facts, the judge allowed the appeals of the unsuccessful defendants seeking to strike out the claim (at [152]) on the ground of Henderson abuse of process. The further appeals of the plaintiffs to the Court of Appeal were dismissed without written grounds of decision.

Engine submits that the observations of the judge at [100] and [108] of Antariksa (HCJ) were different from those of the assistant registrar at [69] of Antariksa (HCAR). We disagree with that submission. The judge had explicitly stated that he was in agreement with the assistant registrar (at [100] and [108]). The factors laid out by the judge at [112] to determine when a second action would be an abuse of process did not deviate from the overall proposition that the failure by a claimant to give notice of a potential claim to the court and to the other party does not necessarily render the subsequent action an abuse of process.

As for a comparison of the English approach and the Singapore approach, there was in substance more agreement than disagreement. While it could be argued that there is a difference in approach on the question whether there is a duty to make disclosure in all circumstances, there is no difference on the more important question, ie, the consequence of an omission to disclose.

It will be remembered that notwithstanding the strong language used by Thomas LJ in Aldi, he stopped short of saying that it was mandatory in every circumstance for a claimant to disclose that he has a potential claim (either against the same party or another party) based on similar facts as in the existing proceedings. Neither did he say that the omission to do so would necessarily mean that the subsequent action is an abuse of process.

Likewise, in Stuart, Sir Anthony Clarke MR had only said that the approach in the English Civil Procedure Rules was that an omission to put cards on the table would mean that the claimant would run the “risk” that his second action would be held as an abuse of process. It was Sedley LJ who used the expression “high risk”, while Lloyd LJ took a more nuanced view, as we have mentioned (see [33] to [36] above). In any event, it was clear that none of the three judges even remotely suggested that an omission would necessarily mean that the second action is an abuse of process.

That was also the position of Briggs LJ in Gladman. While he said that it was “mandatory” to disclose, he only said that failure to do so would mean that a claimant runs “a risk” that the second claim would constitute an abuse of process (see [37] and [38] above).

Thus, for all Engine’s emphasis on a mandatory requirement to disclose, there was really no suggestion even by the English authorities that an omission to do so would necessarily mean that the second claim would be an abuse of process. It is a fact-sensitive inquiry and the omission is only a factor to be taken into account. The weight of the factor depends on the circumstances in which the disclosure was not made. It is not helpful to describe an omission as giving rise to a high risk that the second claim would constitute an abuse of process without appreciating why the omission occurred in the first place. Therefore, there is no material general principle which is disputed and to be decided either for the first time or which would be to public advantage.

In the present case, the AR had applied the law to the facts based on the stage of the proceedings before him, and the Judge affirmed the AR’s decision. Having considered the notes of arguments before the AR and the Judge, and EWS and JTWS, there was no prima facie error, whether of law or fact.

The 3rd Issue

We now come to the 3rd Issue. Engine highlights that there is at present no reported decision on whether s 17 of the CLA should be considered in determining whether there is a Henderson abuse of process and how that provision interfaces with s 18 of the CLA. It argues that this will be a question of general principle decided for the first time and on which clarification of the law will be to public advantage. Engine also argues that the AR and the Judge erred in attributing significant weight to s 17 of the CLA.

It is clear to us that Engine is being disingenuous in its argument. Section 17 of the CLA states:

Section 18 of the CLA states:

All that the AR had said in respect of s 17 of the CLA was that the mere fact of successive actions against joint tortfeasors did not necessarily mean that the 2nd Action was a Henderson abuse of process. This is because such actions are contemplated by s 17 of the CLA. The AR in fact accepted Engine’s contention that Henderson abuse of process is not abrogated by s 17 of the CLA.

Indeed, Engine itself does not suggest that s 17, when read with s 18 of the CLA, means that a claimant will necessarily be precluded from commencing successive actions based on substantially the same facts whether as against the same defendant in the first action or another defendant. Accordingly, its third issue regarding 17 of the CLA is a contrived one. There is no general principle decided for the first time or a question of importance which would materially affect the present case.

As for the point that the AR said that significant weight must be placed on s 17 of the CLA, nothing material turns on this. That was his way of emphasising that the mere existence of a successive action is not enough to constitute a Henderson abuse of process. We are also satisfied that, based on the notes of argument in RA 209, it cannot be said that the Judge placed undue weight on s 17 of the CLA. There was no prima facie error of law or fact.

We now come to Engine’s other allegations of prima facie errors. We have already addressed some of them above. Engine argues that other errors had been made because:

We will refer to these alleged errors as “the remaining alleged errors”.

As regards the first of the remaining alleged errors, Engine argues that since the deadline to make payment under the 2IA had not yet expired, there was no accrued loss to JT and hence the 2nd Action was not legally sustainable. It argued before the AR and the Judge that to allow JT to proceed with the 2nd Action would be a collateral attack on the CA Judgment (where the court did not grant damages in respect of the 2IA as the loss had not accrued (see [2] above)). However, JT had argued before the AR and the Judge that although the loss under the third investment agreement had similarly not yet accrued at the time the 1st Action had been filed, the Court of Appeal had allowed the claim to proceed (see JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others [2018] 2 SLR 159 in respect of an MI (“MI Judgment”) at [62]). Later, after a trial and upon appeal, the Court of Appeal eventually allowed that claim as the loss had accrued by the time of the appeal (CA Judgment at [13(c)], [243] and [246]). The situation might well be different if by the time of the hearing of the substantive claim, the loss had still not accrued. Further, for the 2nd Action, JT was relying on other evidence to show that the risk of loss under the 2IA had already occurred.

The AR had considered the MI Judgment, which was a Court of Appeal decision involving an appeal by some defendants in the 1st Action against the granting of a MI against them. He also considered the CA Judgment. In the MI Judgment, the Court of Appeal suggested that a risk that JT might not recover its investment constituted a good arguable case that JT had suffered some pecuniary loss which constitutes actionable damage (at [62]). In the CA Judgment, the Court of Appeal allowed the claim in respect of the third investment agreement (see [2] above). The AR agreed with JT that the 2nd Action was not legally unsustainable. Having dismissed RA 209, the Judge must have agreed with the AR on this point. Having considered both judgments, we are of the view that there was no prima facie error of law by the AR or the Judge.

As for the second of the remaining alleged errors (see [57(b)] above), this was not an error of law. The AR had noted that JT was relying not only on conduct prior to the conclusion of the 2IA but conduct of Engine subsequent to the conclusion of the 2IA which allegedly induced JT to subsequently complete its payment obligations under the 2IA. Again, in dismissing RA 209, the Judge must have also agreed that the claim is not factually unsustainable. Hence, there was also insufficient basis at present to support even an allegation of prima facie error of fact.

As for the third of the remaining alleged errors (see [57(c)] above), this overlaps with Engine’s application before us to file an affidavit to refer to the 3rd Action and the cause papers filed therein (“the 3rd Action documents”) and to invite JT to respond to certain paragraphs of the fifth affidavit of one Muneo Tashiro.

In our view, the Judge’s decision not to allow Engine to file an affidavit was not an error of law and it was also not a prima facie error of fact. There is also no merit in Engine’s application before us to file the said affidavit.

The question as to whether JT had been specifically invited to address certain paragraphs of an affidavit is immaterial. It is a matter of fact whether JT had responded or not and a specific invitation to do so will not carry the matter further.

As for Engine’s intention to refer to the 3rd Action documents, Engine mentioned various reasons:

(a) To show that JT had not included Engine as a party to that action and hence did not genuinely believe that Engine was a legitimate defendant. There was also some argument as to whether Engine’s involvement was stated in any of the cause papers.

(b) To show that Engine is being shut out from defending itself against allegations of conspiracy.

(c) To show that the 3rd Action is commenced by way of an originating summons and this gravely prejudices Engine which is again shut out from challenging JT’s allegations via a trial.

We reject Engine’s application for leave to file an affidavit. The non-inclusion of Engine as a party in the 3rd Action is not disputed. Furthermore, the effect of the non-inclusion is equivocal. It could be because Engine was already a party in the 2nd Action. It is also equivocal even if Engine was not specifically mentioned in the 3rd Action documents as a conspirator.

We also find Engine’s second and third reasons spurious. Engine is a party in the 2nd Action and not the 3rd Action. It is for Engine to defend itself in the 2nd Action and not the 3rd Action even if allegations of conspiracy have been made against it in the 3rd Action as part of the claims against the defendants in the 3rd Action. If Engine wishes to apply to be joined as a co-defendant in the 3rd Action, that is a separate matter. Thus, whether the 3rd Action is by way of an originating summons or not is irrelevant to Engine. Ironically, Engine’s purported wish to challenge JT’s allegations via a trial could arguably be said to be contrary to its present course of action in the 2nd Action which is to stop JT’s claim against it from being ventilated at a trial.

In so far as Engine had said that JT’s “Further Affidavit” would also be relevant to show JT’s true state of mind with regard to Engine’s role in the alleged conspiracy when JT filed proceedings in other jurisdictions, Engine did not elaborate on what it meant. If it was referring to a possible further affidavit from JT in response to paragraphs 11 to 27 of Muneo Tashiro’s fifth affidavit, this was speculative. If Engine was referring to something else which it did not adequately elaborate on, then its point is useless.

In our view, Engine’s attempt to refer to the 3rd Action documents would have muddied the waters if it had been allowed.

We also reject Engine’s argument that the Judge’s decision to refuse to allow it to file a further affidavit showed that the Judge had lost sight of her duty to consider all the circumstances of the case. The duty to consider all the circumstances of a case does not translate into a duty to allow each party to file whatever affidavit it wishes. Indeed, case management responsibilities suggest that a court should be careful not to allow parties to file affidavits just because they allege that it is necessary to do so. Furthermore, there was no prima facie error of law or fact on the Judge’s part.

Conclusion