Singapore Airlines Ltd v CSDS Aircraft Sales & Leasing Inc [2020] SGHC(I) 18

This judgment pertains to two applications: (a) the plaintiff’s application for Further and Better Particulars in SIC/SUM 30/2020 (“SUM 30”); and (b) the plaintiff’s application in SIC/SUM 31/2020 (“SUM 31”) for certain orders and/or directions. I address the applications in turn.

SUM 30

The plaintiff seeks Further and Better Particulars of paragraph 27 of the Amended Defence and Counterclaim, originally served on 24 May 2019 and amended twice since, on 1 July 2019 and 11 June 2020, in the light of what are said to be inadequate further particulars furnished on 21 November 2019 (“Further Particulars”) in response to a request dated 14 October 2019. That request related to the Defence and Counterclaim (Amendment No 1) (which is unchanged in the Defence and Counterclaim (Amendment No 2)) where the following was pleaded:

Order 18 rule 12(3) of the Rules of Court (Cap 332, R 5, 2014 Rev Ed) (“ROC”) provides that the court may order a party to serve on any other party particulars of any claim, defence or other matters stated in his pleading or a statement of the nature of the case on which he relies, and the order may be made on such terms as the court thinks just.

Particulars were sought by the plaintiff as to:

(a) when the cancellations took place and of the full facts, matters and circumstances of the manner in which the defendant, CSDS Aircraft Sales & Leasing Inc, allegedly cancelled the contract with CamAir and the agreement with Turkish Technic;

(b) whether the cancellations were made orally or in writing;

(c) if orally, the names and designation of the parties representatives who made and received the communications on the part of the defendant, CamAir and Turkish Technic; and

(d) if in writing, the identity of the document that contained the relevant communications and the full particulars of such documents.

In the Further Particulars provided on 21 November 2019, the defendant stated that the cancellations took place “[i]n or around December 2018” and that CamAir and Turkish Technic were each contacted by telephone and informed that the defendant or its associated company was unable to complete the contracts as the defendant had not procured the aircraft from the plaintiff. The defendant stated that the particulars sought as to the name and designation of the parties’ representatives were not relevant to the pleaded case, using the same wording as that given in response to the request to identify any documents containing communications of cancellation.

The short point at issue is whether or not the plaintiff is entitled to the particulars that have been refused in relation to the identification of the parties’ representatives, by name and designation, and the identification of any relevant documents recording the alleged cancellations. The defendant maintains that these are matters of evidence, more appropriate to issues of discovery or interrogatories and are not matters of pleading since the plaintiff knows the nature of the case being made against it and is able to plead to it.

In support of that proposition, the defendant contends that the application for these particulars is an abuse of process because further and better particulars are not to be confused with evidence and “if the only object of the summons be to obtain the names of witnesses or some other clue to the evidence of the other party, it will be dismissed”, citing the commentary in Singapore Civil Procedure 2020 (Vol 1) (Chua Lee Ming gen ed) (Sweet & Maxwell, 2020) (“Singapore Civil Procedure 2020”) at para 18/12/51. It is said that the request is merely a “fishing expedition” in circumstances where the plaintiff is perfectly able to plead and answer to the case put. It is said, citing Sharikat Logistics Pte Ltd v Ong Boon Chuan and others [2011] SGHC 196 (“Sharikat Logistics”) at [7] (which in turn cites BA Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd 72 BLR 26, 33), that “[t]he basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to answer it”. Only “material facts” need to be pleaded and evidence is not required (Sharikat Logistics at [8]). “Material facts” are those which are necessary for a party to know the case it has to meet. As put in Element Six Technologies Ltd v Ila Technologies Pte Ltd [2017] SGHCR 16 at [12(b)], “[m]aterial facts are the facts that are necessary for the purpose of formulating a complete cause of action, so that the opposing party is given fair notice of the case to be met and may direct his evidence to the relevant issues”.

There can be no doubt as to the general principles applicable and the distinction to be drawn between pleading facts and evidence. Nonetheless, when facts are pleaded, they must be pleaded with sufficient particularity for the other party to know the case it has to meet and to assess what evidence it needs to adduce to meet that case.

It is for that reason that both practice and the authorities require details of pleaded contracts, variations or cancellations to be given, by reference to what have become fairly standard forms of words. The point is clearly made by Vivian Ramsey IJ in Arovin Ltd and another v Hadiran Sridjaja [2018] 5 SLR 117 (“Arovin Ltd”), citing the commentary in what was then the Singapore Court Practice 2018 (Jeffrey Pinsler gen ed) (LexisNexis, 2018) at para 18/12/10, where an ordinary form of request is set out. That accords with my experience both domestically in the United Kingdom and internationally in arbitration and other courts in which I have sat, where a standard form along these lines is adopted with minor variations:

The learned judge in Arovin Ltd went on to point out the difference between using particulars to seek evidence, namely as to how a matter is to be proved, as opposed to particulars of the facts which are to be proved, referring to the then current Singapore Civil Procedure 2018 (Foo Chee Hock editor-in-chief) (Sweet & Maxwell 2018) at para 18/12/5 (in identical terms in the current commentary) as to what was required when pleading an agreement. At [5] of Arovin Ltd, the judge stated that, in circumstances where there were express understandings reached orally, particulars could properly be requested of the identity of those between whom the oral communications were made as well as the date upon which and the time and place at which the communications took place.

The same point is made in Surge Electrical Engineering Pte Ltd v Powertec Engineers Pte Ltd [2002] SGHC 280 and in Singapore Civil Procedure 2020 at para 18/12/51 that it matters not if a party is, by reason of the order to produce such required particulars, compelled to disclose the names of its witnesses or some part of the evidence upon which it proposes to rely at trial.

In such circumstances the plaintiff is entitled to the particulars requested, and the defendant is required to identify the individuals who were involved in the cancellation arrangements. The request, following on from the previous answer that the cancellation arrangements were made by telephone in or about December 2018 requires the defendant to state the name and designation of each of the parties’ representatives who made and received the relevant communications and if there was any communication in writing, to identify the documents containing those communications, giving full particulars of the documents in question.

In an affidavit filed on behalf of the defendant, it was suggested that there was inexcusable delay in bringing the application, but the point was not pursued in the defendant’s submissions and has no substance because the parties were, in the interim period between November 2019 and the date of the summons, engaged in attempts to settle this matter, which resulted in an adjournment of various dates fixed for hearings and, moreover, no prejudice could be shown to flow from the delay in any event.

SUM 31

The plaintiff’s application in SUM 31 is for, in the main, the following orders/directions:

(a) that the trial in SIC/S 4/2019 be bifurcated, with the trial on the issue of liability in relation to the plaintiff’s claims and the defendant’s counterclaim be heard separately from, and prior to, the hearing of an assessment of damages for the plaintiff’s claims and the defendant’s counterclaims (if necessary);

(b) in respect of the trial on liability only, that evidence shall be given by way of Affidavits of Evidence-in-Chief, and the taking of oral evidence (including examination-in-chief, cross-examination and re-examination) shall be dispensed with; and

(c) that within four weeks of an order made in respect of SUM 31,

(i) the plaintiff shall file its application to amend its Statement of Claim (Amendment No. 2) filed on 21 May 2020, setting out particulars of its loss and damage; and

(ii) the plaintiff shall provide to the defendant additional documents that it relies on in respect of its loss and damage.

The parties have agreed that I should determine this application on paper without oral submissions pursuant to directions given by the court.

The powers of the court

The relevant provision appears at O 33 r 2 of the ROC that is effective for the Singapore International Commercial Court (“the SICC”) by reason of O 110 r 3 of the ROC, which also provides that the court may, if it considers that doing so is necessary or desirable for the just, expeditious and economical disposal of any proceedings in the court, make such order as the court considers just and appropriate.

Order 33 rules 2 and 3 of the ROC provide as follows:

The power of the Singapore High Court to order a split trial of different issues, and in particular to order a split trial of liability issues from issues of damages is indisputable and its decision as to mode of trial is pre-eminently a matter of case management for the court’s discretionary determination.

Order 38 rules 1 to 3 of the ROC provide, so far as relevant:

Again, it is clear from the above provisions that the Singapore High Court has the power to allow evidence to be given by a number of different means and although, in an ordinary trial, Affidavits of Evidence-in-Chief and cross-examination are the norm, it is open to the court to adopt a procedure akin to that for originating summonses and to dispense with cross-examination and the attendance of witnesses where it is just and convenient to do so. Order 38 rule 2 of the ROC specifically provides for the court not to follow the ordinary procedure and to order otherwise or for the parties so to agree. The court is not bound by the absence of agreement of the parties to a different procedure.

The terms of Orders 33 and 38 of the ROC cited above therefore do not make any exercise of the powers referred to conditional on the consent of the parties. The defendant, however, argues that the position is different in the SICC by reason of the terms of Order 110 of the ROC which specifically apply to it. Order 110 itself, by reason of the words “Subject to this Order” which appear below, provides that it must prevail over the Rules for the High Court which are otherwise incorporated into the practice of the SICC. Order 110, so far as relevant, provides as follows:

Under O 110 r 23 of the ROC, the SICC may specify applicable rules of evidence in the circumstances set out therein. I reproduce O 110 r 23 as follows:

Further, O 110 r 51 of the ROC provides:

The effect of O 110 r 23 of the ROC, in my judgment, is to maintain the provisions of the ROC relating to evidence applicable to the Singapore High Court for the SICC unless the parties otherwise agree on an application to vary them. There is no such agreement here, so that the provisions of Orders 38 and 33 of the ROC continue to apply without the need for the consent of the parties. The court may order split trials and accept evidence on affidavit without cross-examination if it considers it just to do so.

However, the effect of O 110 r 51 of the ROC is that the SICC cannot dispense with oral arguments save in the circumstances set out therein, none of which apply here because the current position is that the defendant does not accede to the request to do so, despite having originally suggested this for the whole trial on liability and damages.

The court’s decision

In a letter dated 15 May 2020 (“the 15 May letter”), the defendant’s lawyers suggested that the trial of all the issues take place on paper alone without any oral evidence or the presence of lawyers to make oral submissions. On 22 May 2020, the plaintiff replied to say that the issues of damages required cross-examination of witnesses and proposed a split trial in which liability issues were determined on paper (as the defendant had suggested), but that the issue of damages be heard separately on the normal basis, ie, with oral evidence and cross-examination. In the defendant’s reply letter dated 26 May 2020, it adopted an “all or nothing” approach in response, ie, that either all of the issues were addressed by written submissions or not at all.

The basis upon which it had been suggested by the defendant – in the 15 May letter – that the whole dispute be determined on paper alone can be seen from the following terms of that letter:

It is clear therefore that the defendant desired all aspects of the dispute to be determined on paper alone, a step beyond the manner now proposed by the plaintiff for the liability aspect only, which does not seek for all submissions be made in writing without opportunity for oral argument.

In Scintronix Corp Ltd v Ho Kang Peng and another [2011] SGHC 28, the court held that in recent years the “[c]ourts in Singapore, as their counterparts in England, have been more amenable to bifurcate hearings”. I cite the relevant paragraphs as follows (at [25]–[26]):

The overall position here is straightforward. There is an argument as to which party is in repudiation of the Aircraft Purchase Agreement of 19 September 2018. Both parties agreed at one point that this could be resolved on the documentary exchanges between the parties, and nothing has changed in that respect. The defendant has not suggested (and any such suggestion would ring hollow in the light of the 15 May letter set out above) that there is any evidence of the plaintiff’s witnesses in their affidavits which needs probing in cross-examination on issues of liability. Whilst the issue as to which party is in repudiation is in itself by no means straightforward, the witness evidence, above and beyond the documentary exchanges, is not suggested by either party to be in any way determinative of the result. The evidence in the affidavits, apart from exhibiting the documents, is not critical to the outcome and neither party maintains that it is. The evidence of the witnesses of fact is effectively uncontested or irrelevant to the main issues and falls within the ambit of what is suggested in Wan Lai Ting v Kea Kah Kim [2014] 4 SLR 795 at [21] and Industrial & Commercial Bank Ltd v PD International Pte Ltd [2003] 1 SLR(R) 382 at [17]–[23] (see also Arab Monetary Fund v Hashim (No 7) [1993] 1 WLR 1014). The evidence needed for the determination of liability has been agreed – by the parties’ lawyers in mutual exchanges in correspondence – to be documentary, as exhibited to the affidavits or pleadings.

Each party has a claim for damages on the basis of the other’s repudiation. It is obvious that if liability is decided in a split trial, there will then only be a need to investigate and decide the claim of one of the two parties to damages. The plaintiff has not yet given particulars of its claim for damages, but the defendant has done so, claiming US$6.5m for lost profits and US$1m for damage to reputation. The defendant’s case gives rise to the need for oral evidence and testing on cross-examination, as argued at paragraph 21 of the plaintiff’s submissions in its letter of 25 June 2020. That appears to me to be incontestable and the defendant does not now suggest otherwise. There is thus a clear distinction between the liability claim where no live evidence is needed from either side and the defendant’s damages claim where live evidence is required. Whether or not the plaintiff’s damages claim requires live evidence is currently unknown. The savings involved in not having to explore both the plaintiff’s and the defendant’s claim for damages for repudiation, and instead only having to determine the issue of damages in respect of one of them after liability has been found one way or the other, are clear.

The plaintiff, in its own application in SUM 31, seeks an order that it file an application to amend its Statement of Claim (Amendment No 2) setting out the particulars of its loss and damage, and provide to the defendant additional documents that it relies on in respect of its loss and damage, within four weeks of an order made in respect of SUM 31. I agree that this is a sensible proposal.

I need say no more on the issue of a bifurcated trial and the question of evidence in that regard. The plaintiff succeeds in its application for the orders sought as set out at [15] above.

It is however plain that, unless the parties so agree, the attendance of lawyers to argue the case cannot be dispensed with, although a virtual hearing of oral submissions can be arranged if required, in view of the COVID-19 situation.

Jeremy Lionel CookeInternational Judge