Victor Adam Ibrahim v Tan Kim Seng trading as Hock Huat Engineering

[1] The plaintiff was a passenger in a motor-car which was involved in an accident on 7 November 1998 with a goods vehicle driven by the defendant; he sustained personal injuries.

[2] On 10 October 2001, the writ of summons was filed wherein the plaintiff claimed general and special damages. The defendant entered an appearance to the writ on 5 November 2001.

[3] On 16 November 2001, the defendant applied to strike out the statement of claim on the ground that the special damages the plaintiff had claimed were not particularised. The application was heard on 21 November 2001 but was disallowed; instead, the plaintiff was ordered to amend his statement of claim.

[4] On 23 November 2001, the plaintiff filed his amended writ of summons and amended statement of claim.

[5] On 27 November 2001, interlocutory judgment by consent was entered against the defendant on the basis of 100% liability in favour of the plaintiff; the defendant agreed to pay damages as assessed by the Registrar. Had the plaintiff not filed his writ by 7 November 2001, his claim would have been time-barred under s 24A of the Limitation Act Cap 163.

[6] Thereafter, no steps were taken by the plaintiff to have his claim for damages assessed. According to his lawyer, the parties (through their solicitors) were in correspondence since November 2001 on the plaintiff being sent for further medical examination and on documentation to support his claim.

[7] On 6 February 2003 the plaintiff filed his summons for directions for assessment of damages. The defendant's solicitors objected, contending that the action had been deemed discontinued on 27 November 2002, pursuant to O 21 r 2 of the Rules of Court (the Rules).

[8] On 28 February 2003 the defendant filed summons-in-chambers no. 1193 of 2003 (the defendant's application) praying for a declaration that the plaintiff's claim was deemed discontinued under O 21 r 2 of the Rules.

[9] On 24 March 2003, the plaintiff applied to court under summons-in-chambers no. 1716 of 2003 (the plaintiff's application) for a declaration that O 21 r 2(6) of the Rules (as amended) did not apply. In the alternative, that the action be reinstated and be allowed to proceed pursuant to Order 21 r 2(8) of the Rules.

[10] Both the plaintiff's and the defendant's applications were heard on 26 March 2003 by the Assistant Registrar, who granted an order in terms of the defendant's application and dismissed the plaintiff's application.

[11] The plaintiff appealed against the Assistant Registrar's decision in Registrar's Appeal No. 108 of 2003 (the Appeal), praying that the orders made below be reversed. The appeal came on for hearing on 29 April 2003 before me and I allowed it; the defendant has now appealed against my decision (in Civil Appeal No. 48 of 2003).

[12] Before I address the submissions put forth by the parties, it would be appropriate to set out; the relevant provisions under O 21 r 2 of the Rules, they state:

Rules 6, 6A, 6B and 7 only came into operation on 1 January 2001.

[13] In support of the defendant's application, the defendant himself filed an affidavit wherein he deposed as follows:-

[14] In support of the plaintiff's application, his counsel Michelle Lim filed a lengthy affidavit wherein she deposed to the law (as she understood it) as well as to the following facts:-

I was neither convinced nor impressed by the above affidavit for reasons which I shall set out later.

(i) the plaintiff's arguments

[15] Michelle Lim the deponent of the above affidavit argued the appeal. She submitted that the words taken any step or proceeding in O 21 r 2(6) meant any formal or significant step taken before judgment and will include the last interlocutory step taken before judgment is obtained. In this case, the plaintiff had obtained interlocutory judgment. The summons for directions filed by the plaintiff on 6 February 2003 was a step or proceeding taken after and pursuant, to a judgment. Consequently, it should not be counted for purposes of automatic discontinuance (relying on an extract (at p 162) from the article Automatic Discontinuance under Order 21 Rule 2 - First dormant then dead by magistrate Ms Lim Hui Min (published in [2001] 13 S.Ac.L.J. Part 1 150)). Counsel also cited Bank Bumiputra Malaysia Bhd v Syarikat Gunong Tujoh Sdn Bhd [1990] 1 MLJ 298 where the High Court interpreted the word proceeding in O 6 r 3 (of the Malaysian Rules of the High Court 1980) relying on Mallal's Supreme Court Practice, to mean a step 'towards' judgment.

[16] Counsel also referred to similar provisions in England and their interpretation by English courts. The equivalent rule in England appears in The County Court Rules 1991 (CCR) as Order 17 rule 11; Order 17 refers to pre-trial review while rule 11 provides for automatic directions. The automatic directions applied to all actions (including personal injury claims) save for 18 exceptions set out under rule 1 therein. The automatic provisions included directions for discovery, expert witnesses, hearing dates etc. The closest equivalent to our r 2(6) is found in O 17 r 9 which states:

If no request is made pursuant to paragraph 3(d) [fix a date for hearing within 6 months after close of pleadings] within 15 months of the day on which pleadings are deemed to be closed (or within 9 months after the expiry of any period fixed by the court for making such a request), the action shall be automatically struck out.

[17] Counsel cited the Court of Appeal decision in Gomes v Clark [1997] P.I. Q.R. 218 where Lord Woolf MR held that the automatic discontinuance provisions under the CCR had no application to post-judgment proceedings, where the judgment was by consent. The ruling was restated by the appellate court in Bannister v SGB PLC [1997] 4 AER 129 as well as in Limb v Union Jack Removals Ltd (in liquidation) [1998] 2 AER 513 where the appeal in Partington v Turners Bakery (at p 529) was dismissed.

(ii) the defendant's submissions

[18] Counsel for the defendant relied on local cases as well as on other passages from Lim Hui Min's article, for his opposite argument that the action had been automatically discontinued and, the court should not exercise its discretion and allow the plaintiff to reinstate his claim. The cases cited were Norisham bin Minggu v Sim Eng Koon [D C Suit 8616 of 1992) and Attorney-General Singapore v Tan Wee Beng [Suit No. 625 of 2001], both unreported. In Norisham's case, District Judge Foo in allowing the plaintiff's application to reinstate his action (for personal injuries arising from a road accident) under O 21 r 2(8), held (see para 11 of her decision) that O 21 r 2(6) applied to an action where there is an interlocutory order for damages to be assessed. Her decision was adopted by Assistant Registrar Kenneth Yap in Tan Wee Beng's case where he inter alia, dealt with an application for striking-out for want of prosecution.

[19] Counsel also sought to distinguish O 17 r 11(9) of the CCR; he submitted that our O 21 r 2(6) is much wider in scope than the English rule. He pointed out that unlike the UK rule, O 21 r 2(6) applies to all types of actions, at any stage of the proceedings and, it merely requires any step or proceeding to be taken, rather than a specific step, within a one-year period.

[20] As for the complaint of Michelle Lim (para 14 (ii) supra) that she/the plaintiff had been misled into believing that the defendant would be taking further steps in the proceedings, counsel pointed out that his firm's letter to the plaintiff's solicitors was dated 29 January 2003, well after the action was deemed to be automatically discontinued (on 27 November 2002). In any event he had written to the plaintiff's solicitors on 11 February 2003 to say

In the light of the fact that your client's claim is deemed under Order 21 Rule 2 (6) of the Rules of Court to have been discontinued, our clients have no need to file Summons for Directions.

Further, after interlocutory judgment was entered on 27 November 2001 (the trigger date) and before 27 November 2002 (the guillotine date), the plaintiff took no steps.

[21] As for reinstatement of the plaintiff's action, counsel urged the court to follow the English approach in Bannister v SGB PLC (supra) where the guiding principles for reinstating proceedings (under O 17 r 11 of the CCR), were set out by Saville LJ; he said:-

[22] Counsel added that the plaintiff must satisfy each of the above limbs sequentially and if he cannot satisfy the first limb, the Court does not have to consider the subsequent limbs and, his application must fail.

[23] I am in full agreement with counsel for the defendant on the three (3) hurdles the plaintiff must overcome sequentially, before he can be allowed to reinstate his action if it was deemed discontinued. If the guidelines set out in Bannister's case were applied to the facts of this case, the plaintiff would fail miserably, even on the first limb. I had indicated earlier (para 14) that I found little merit in the reasons put forward by the plaintiff's counsel, for the obvious delay in the prosecution of his claim; I shall now give my reasons.

[24] From the chronology of events set out in the affidavits to support the plaintiff's and defendant's applications, it is plain that the delay in the expeditious prosecution of this claim was entirely the plaintiff's doing. Even the writ of summons was filed late, one month before the claim was time-barred. The plaintiff’s reason for doing so was remarkable; he had been negotiating his claim direct with the defendant's insurers. One would have thought that the negotiating process comes after not before, the legal process.

[25] The plaintiff's dilatory conduct ran foul of O 37 r 1 of the Rules which requires a party obtaining interlocutory judgment to apply, within one month from the date of judgment (in this case on or before 26 December 2001), to the Registrar for directions. It is noteworthy that the plaintiff's application for directions for assessment of damages was filed some 14 months later and even then, only when prompted by the defendant's solicitors. His solicitor's argument that reinstating the plaintiff's claim would not cause prejudice to the defendant (as damages would be assessed at exactly the same time they would have been had the plaintiff complied with the timetable in O 21 of the Rules) flies in the face of O 37 r 1.

[26] The plaintiff's counsel had deposed at length to the difficulties the plaintiff had faced in providing discovery/documents to the defendant to substantiate his claim. The short answer to her excuse is, the law stipulates that he who claims must prove. I could not fathom what insurmountable difficulties the plaintiff could possibly have faced which took him so long to quantify his claim for damages. Even if the plaintiff's claim for loss of earnings was on a stratospheric level, there was no reason why (if his claim was bona fide) he should be encountering the many problems his solicitor claimed. If he has accountants, why then the delay in producing accounts to substantiate his claim? The plaintiff's professed difficulties also ran counter to his solicitor's affidavit (para 21) wherein she deposed that the plaintiff had, as early as 27 September 2001 (before he filed his writ) quantified his claim on a very reasonable basis and forwarded copies of his notices of assessment to the defendant/the defendant's solicitors. I had confined my perusal of the cause papers for this suit to the plaintiff's and the defendant's applications and the (amended) statement of claim. Consequently, I have no knowledge of the plaintiff's occupation or the business of his two (2) companies. It should make no difference however to the burden of proof, whether the plaintiff is an ordinary wage earner or a high net-worth individual.

[27] If I had dismissed the appeal, I would not have allowed the plaintiff's claim to be reinstated, as he would not have passed the three (3) tests enunciated in Bannister's case. I allowed the appeal even though I did not accept the plaintiff's reasons for the delay in assessment, purely because of the conflict between O 21 r 2(6) of the Rules and other legislation.

[28] Section 19(c) of the Interpretation Act (Cap 1) states:

while s 6(3) of the Limitation Act Cap 163 (the Act) states:-

[29] The Rules are part of the subsidiary legislation passed pursuant to the Supreme Court of Judicature Act Cap 322. If O 21 r 2(6) is interpreted to include interlocutory judgments, it would be inconsistent with s 6(3) of the Act which states that a judgment is valid for twelve (12) years. The Act makes no distinction between interlocutory and final judgments nor is the word judgment defined. An interlocutory judgment is final as regards liability. As the Act did not confine the validity of a judgment only to final judgments, how can O 21 r 2(6) apply to say the claim underlying a judgment is deemed discontinued when the judgment itself is valid for 12 years? I should point out that in England, the much vilified CCR were eventually superceded by the Civil Procedure Rules 1998.

[30] My view that O 21 r 2(6) cannot/does not apply to interlocutory judgments is reinforced by the commentary in our local White Book (Singapore Civil Procedure [2003]) where at p 394 (against the reference 21/5/13) to the question What qualifies as a step or proceeding, the learned authors (who also relied on Bank Bumiputra Malaysia Bhd v Syarikat Gunong Tujoh Sdn Bhd) stated:

A proceeding is essentially any formal and significant step taken before judgment. It should refer to the last interlocutory proceeding taken by a party i.e. an act done while the matter is still in controversy before judgment is obtained.