Jagbir Singh s/o Baldhiraj Singh v Lim Keh Thye and Another

Kan Ting Chiu J:

[1] This appeal touches on the operation of O 21 r 2(6) of the Rules of Court (Cap 322, R5, 2006 Rev Ed) which states that:

[2] Specifically, it touches on the question whether a notice of change of solicitors is a step or proceeding under the rule.

[3] The salient facts of the case to the appeal can be stated very briefly. The plaintiff, who was involved in a road accident, filed a claim against the defendants on 30 May 2005. Subsequently, interlocutory judgment was entered against the defendants on 7 August 2006 with damages to be assessed. On 16 May 2008, an application was filed by the solicitors for the defendants for a declaration that the action be deemed discontinued pursuant to O 21 r 2(6). (I shall comment on this later in my judgment.)

[4] In the intervening period, the damages had not been assessed, but there were two developments which the plaintiff contended were steps or proceedings under r 2(6):

(i) On 5 July 2007, a notice of change of solicitors was filed on behalf of the defendants, and

(ii) On 18 July 2007, the plaintiff tendered payment of $600 to the defendants for costs they were ordered to pay on 22 January 2007.

[6] In the course of the arguments before the Assistant Registrar and before me, two quite recent decisions on exactly the same point were referred to. In Chellaiya Chandra v Cheng Song Thiam (Suit No.600011 of 2001), V K Rajah J ruled on 4 February 2005 that a notice of change of solicitors is a step or proceeding under r 2(6). However, in James Lee Chong Hwa v Phang Yen Hoong (MC Suit No. 3546/2002), Lai Siu Chiu J, who heard the matter on an appeal from the Subordinate Courts, ruled on 30 March 2005 that a notice of change of solicitors is not a step or proceeding under the rule. Regrettably, no grounds of decision were delivered in either case.

[7] There is an earlier Singapore decision on the effect of a notice of change of solicitors. This is Gian Singh & Co Ltd v Super Services [1965] 1 MLJ 256 (“Gian Singh”), which dealt with the Rules of Court 1934, specifically Order LXI r 5(1) thereof, that:

[8] Rule 5(1) differs from the present r 2(6) in that under the old rules, a party in proceedings which has been dormant for a year or more can reactivate the proceedings by issuing one month’s notice of its intention to proceed. In the scheme of the current rules, an action is deemed to be discontinued when no step or proceeding which appears from the records maintained by the court is taken for a year.

[9] In Gian Singh, the plaintiffs had sued the defendants in December 1962. The defendants entered appearance in the same month and a notice of appointment of solicitors was filed in the following month, but no defence was filed. In May 1964, a notice of change of solicitors was filed, but still no defence was filed. In September 1964, the plaintiffs entered judgment in default of defence without first issuing a notice of intention to proceed.

[10] The defendants applied to set aside the judgment on the ground that there was a non-compliance with r 5(1), but the judgment was not set aside. Winslow J held at p 259 that:

and that:

implying that the notice of change of solicitors filed was not a proceeding as no notice of intention to proceed was required if the notice of change of solicitors was a proceeding. However, the learned judge went on to state that:

and

Then he went back to the position that the plaintiff should have issued a notice of intention to proceed at pp 259–260 and ruled that:

[11] What was the status of the notice of change of solicitors? On the one hand, by holding that there was a non-compliance, the judge did not regard the notice of change of solicitors as a proceeding. On the other hand, he also ruled the notice of change of solicitors was a proceeding. The case has been cited as authority that a notice of change of solicitors is a proceeding in The “Melati” [2003] 4 SLR 575 and in G P Selvam, Singapore Civil Procedure 2007 (Sweet & Maxwell Asia) without reference to the discordant rulings.

[12] The policy consideration behind the rule for deemed discontinuance is quite clear; it is a case-management measure to ensure that actions filed in court are proceeded with diligently, and that those that are not will be deemed to be discontinued, even if the parties have not settled or abandoned the action. Deemed discontinuance can occur even when the parties are attending to the dispute. This is so because deemed discontinuance will set in when no step or proceeding is taken in an action, cause or matter that appears from records maintained by the Court. Activities such as exchanges of correspondence or meetings between parties are not to be taken into consideration as they do not appear in records maintained by the courts. Such matters may be relied upon in applications under r 2(6B) where:

and applications for reinstatement under r 2(8):

[13] Some reported cases touching upon r 2(6) and deemed discontinuance were cited in the submissions. They included the decision of the Court of Appeal in Tan Kim Seng v Ibrahim Victor Adam [2004] 1 SLR 181 (“Tan Kim Seng”) and Woon Tek Seng v V Jayaraman a/l V A Vellasamy [2008] 3 SLR 43. However, neither case considered the effect of a notice of change of solicitors. The former case determined that r 2(6) applies to proceedings even after an interlocutory judgment is entered (but not after a final enforceable judgment is obtained), and the latter case dealt with a party’s right to commence a fresh action after an action has been deemed discontinued. While these are important decisions on the operation of r 2(6), they do not offer guidance on the effect of a notice of change of solicitors.

[14] In seeking to have the Assistant Registrar’s decision over-turned, the defendants submitted that:

[15] A careful reading of Tan Kim Seng will show that the Court of Appeal did not approve the quoted passage from Singapore Civil Procedure 2007, and had merely stated that the court below had relied on it.

[16] Another decision of the Court of Appeal, The “Melati” [2004] 4 SLR 7, is more helpful. In this case, the Court considered an argument that the filing of a statement of claim could not be a step under r 2(6) because the filing of a statement of claim, without it being served, did not move a case forward. The Court rejected the argument. It stated in its judgment that:

[17] The Court’s pronouncement made it clear that an entry in the court’s records was a step or proceeding even if it did not on its own bring the action forward. While the filing of the writ marked the commencement of the action, the action can only proceed after the writ was served.

[18] Is the notice of change of solicitors the defendants filed a step or proceeding under r 2(6)? It was a step in the action the defendants had to take because O 64 of the Rules of Court required the defendants to file the notice of change of solicitors. There is no reason to exclude the filing of a notice of change of solicitors from the open category of any step or proceeding.

[20] This argument was founded on the premise that an act done in pursuance of an order made in an interlocutory application should also qualify as a step or proceeding on which Barclay Davit Co., Ltd. v. Taylor & Sons [1946] 2 All ER 41 (“Barclay Davit”) was cited as authority.

[21] Barclay Davit was concerned with the operation of O 26 r 1 of the English Rules of Court that:

[22] The material facts of the case are set out in the headnote to the report, that:

and the decision of Romer J is summarised in holding (i) of the report that:

[23] The defendants referred to Lim Hui Min’s article Automatic Discontinuance Under Order 21 Rule 2 – First Dormant, Then Dead … (2001) 13 S.Ac.L.J 150 where the writer discussed Barclay Davit and proposed at p 166 that:

[24] The Assistant Registrar rejected this alternative argument and I agree with her. Barclay Davit dealt with a materially different rule from r 2(6). The rule under consideration in Barclay Davit, ie O 26 r 1, was concerned with any “proceeding in the action” without reference to the records maintained by the courts.

[25] Rule 2(6) refers to any step or proceeding that appears from the records maintained by the Court. Those words should not be extended to include steps or proceedings which are not in the court records, and are taken pursuant to matters appearing in the records. That was not what the drafters of the rules had intended by the language that they used. The Court of Appeal in The “Melati” had made it clear that “we cannot ignore the explicit words of O 21 r 2(6) that the “step” must be one which appears from the records maintained by the court” (see [16] hereof), and had ruled that the service of a writ was not a step or proceeding because it did not appear in the records of the court.

[26] Notwithstanding the clear rules in O 21, the parties to an action may take different positions on whether an action has been deemed discontinued, and whether it is necessary to file an application under r 6(8) or to file a fresh action to pursue the matter. In such circumstances, a ruling of the court is sought.

[27] The proper party to apply for a ruling is a party to the action. In this case, as it was the defendants who wanted a ruling, they should make the application. The defendants’ solicitors can file the application on their behalf, but the application should be made in the name of the defendants, and the solicitors should not make the application in their own name, as they had done. This issue was not raised before the Assistant Registrar or on appeal before me, and I refer to this issue to draw attention to the mistake that had been made and not as a ground for dismissing the appeal because the error could have been corrected if it was brought up.