a review of developments in selected areas of civil procedure

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A REVIEW OF DEVELOPMENTS IN SELECTED AREAS OFCIVIL PROCEDURE1

Appeals — Judicial Review — Summary judgment —Injunctions and covenants in restraint of trade —

Performance bonds — Cross-examination on affidavits —Procedural irregularities — Parties — Default judgments —

Duty to litigate all issues — Anton Piller Order —Privileged communications between client and legal adviser —

Judgment in absence of party — Security for costs —Indemnity costs — Execution creditors — Striking out pleadings or

endorsements on writs — Jurisdiction of the Syariah Court —Receiving evidence on unpleaded matters — Principles governing

stay of execution or proceedings

Restrictions on appeal to the Court of Appeal: the relationship betweensection 34(1)(a) and (b) and 34(2) of the Supreme Court of JudicatureAct.

While paragraphs (a), (d) and (e) of section 34(1) bar appeals absolutely,paragraphs (b) and (c) are not entirely exclusionary. In the case of (b), thedefendant may appeal against an order giving him conditional leave todefend an action. In the case of (c), a right of appeal against an interlocutoryorder does arise if the judge below has certified that he requires no furtherargument. As the paragraphs appear disjunctive it might be tempting toargue that the party who seeks to appeal can rely on either (b) or (c).However, the Singapore Court of Appeal has made it clear that this is notthe law. In Seabridge Transport Pte Ltd v Olivine Electronics Pte Ltd,2 thedefendant, who had been granted conditional leave to defend the action,appealed under both paragraphs (b) and (c). The defendant failed to complywith the procedure governing paragraph (c),3 and, therefore, sought torely on paragraph (b) as an independent ground of appeal. The Court ofAppeal did not accept this approach. Karthigesu JA, who delivered thejudgment of the court, ruled that paragraph (c) concerns appeals on allinterlocutory orders made by a judge in chambers by providing for theprocedure to be followed.4 Accordingly, paragraph (b) could not stand onits own. As the order was interlocutory, paragraph (c) had to be satisfiedirrespective of compliance with paragraph (b). His Honour rejected the

Most of the Singapore and Malaysian cases considered in this review were reportedbetween September 1995 and April 1996.[1995] 3 SLR 545.The application for further arguments was not made within the prescribed time. (Anapplication for extension of time was dismissed).[1995] 3 SLR 545, at p 549.

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Review of Developments in Selected Areas of Civil Procedure8 S.Ac.L.J. 397

argument that the words ‘subject to any other provision in this section’made paragraph (c) subject to paragraph (b):

This is tantamount to saying that whilst all other interlocutory ordersmade by a judge in chambers are subject to the provisions of section34(1)(c), an order giving a defendant conditional leave to defend theaction made by a judge in chambers is not subject to the provisionsof section 34(1)(c) simply because it fell within section 34(1)(b). Thisis to put a defendant who is given conditional leave to defend theaction by a judge in chambers in a very special position whichParliament could never have intended and which is not justified bythe scheme of section 34(1).5

His Honour went on to state that the words ‘subject to any other provisionin this section’ refer to section 34(2) which sets out the circumstances inwhich a party may appeal if he obtains the leave of the court.6

This court’s interpretation of these provisions is obviously justified, eventhough it is not entirely consistent with the lay-out and phraseology. First,if section 34(1)(c) is an overriding provision which applies to all interlocutoryorders, it ought to be set out in a separate sub-section rather than groupedas one of the various circumstances in which an appeal does not lie. Indeed,this was the case prior to the amendment of the Supreme Court of JudicatureAct in 1993.7 Secondly, paragraph (b) is essentially exclusionary in nature:it prevents the plaintiff from appealing against an order giving the defendantconditional leave to defend an action. If the inclusionary words at thebeginning of this paragraph (‘except if the appellant is the defendant’) areexcluded, and the terminology makes clear that it is the plaintiff who isdebarred from appealing (without any reference to the defendant), thenthe defendant would not be able to rely on this paragraph as a separatebasis for appeal. That is, although he would not be prevented by paragraph(b) from appealing, he would not be able to contend that it specificallyvests a right of appeal in him which operates independently of paragraph(c). In this proposed framework, only paragraph (c) allows an appeal (ifthe procedure for further arguments is complied with).

As to the relationship between section 34(1)(c) and section 34(2), the words‘subject to any other provision in this section’ at the beginning of section34(1)(c) subject it to section 34(2).8 It follows that a right to appeal pursuantto certification by the judge that he requires no further arguments pursuant

Ibid, at pp 549–550.Ibid, at pp 550.See the former s 34(2) of the SCJA and Seabridge Transport Pte Ltd v Olivine ElectronicsPte Ltd [1995] 3 SLR 545, at p 549.Seabridge Transport Pte Ltd v Olivine Electronics Pte Ltd [995] 3 SLR 545, atpp 549–550.

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to section 34(1)(c) would be subject to the requirement of leave in thecircumstances listed in section 34(2)(a)–(d). For example, if the amount orvalue of the subject-matter at the trial is $30,000 or less, the leave of theCourt of Appeal or a judge would be necessary.9

Principles governing leave to apply for judicial review10

Karthigesu JA, in the course of delivering the judgment of the Court ofAppeal in Chan Hiang Leng Colin v Minister for Information and theArts,11 considered the opinion of Lord Diplock in Inland RevenueCommissioners v National Federation of Self-Employed and SmallBusinesses:12

My Lords, at the threshold stage, for the federation to make out aprima facie case of reasonable suspicion that the Board in showing adiscriminatory leniency to a substantial class of taxpayers had doneso for ulterior reasons extraneous to good management, and therebydeprived the national exchequer of considerable sums of money,constituted what was in my view reason enough for the divisionalcourt to consider that the federation, or, for that matter, any taxpayer,had sufficient interest to apply to have the question whether theBoard were acting ultra vires reviewed by the court. The wholepurpose of requiring that leave should first be obtained to make theapplication for judicial review would be defeated if the court were togo into the matter in any depth at that stage. If, on a quick perusalof the material then available, the court thinks that it discloses whatmight on further consideration turn out to be an arguable case infavour of granting to the applicant the relief claimed, it ought, in theexercise of a judicial discretion, to give him leave to apply for thatrelief. The discretion which the court is exercising at this stage is notthe same as that which it is called upon to exercise when all theevidence is in and the matter has been fully argued at the hearing ofthe application.

Karthigesu JA observed that the phrases ‘a prima facie case of reasonablesuspicion’ and ‘what might on further consideration turn out to be anarguable case’ as being:

... susceptible to two slightly different interpretations. One is that thecourt should quickly peruse the material put before it and considerwhether such material discloses ‘what might on further consideration

This is the position in Malaysia, even though there are no words of subjection. See YapFook Cheong v Burkill (Malaya) Sdn Bhd [1991] 3 MLJ 160.See O 53, r 1(1) (RC).[1996] 1 SLR 609.[1982] AC 617, at p 643.

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turn out to be an arguable case’. The other is that the applicant hadto make out a ‘prima facie case of reasonable suspicion’. In our view,both tests present a very low threshold and it is questionable whetherthere is really any difference in substance between the twointerpretations.13

His Honour went on to rule that what is required is not a prima facie case,but a prima facie case of reasonable suspicion.14

Summary judgment: delay in application

It appears to be well established that the party applying for summaryjudgment should act as soon as possible, and if he does not, he mustexplain his dilatoriness to the satisfaction of the court.15 It has also beenheld that where summary judgment has been obtained despite the absenceof an acceptable explanation, the appeal court is at liberty to set it asideif it thinks fit.16

This traditional approach may be compared to a recent development whichemphasises the avoidance of trial as the primary consideration. In BrinksLtd v Abu-Saleh,17 Jacob J considered that the delay in filing an applicationfor summary judgment, no matter how long, is ‘irrelevant’ if the defendantis not in a position to raise any triable issues or some other reason whythere should be a trial. His Lordship added that in some cases a lateapplication ‘may be commendable as saving both the extra costs and timeinvolved in a full trial’.18 As to the much-endorsed, century-old dictum ofPollock B in McLardy v Slateum19 that the plaintiff must justify delay byshowing special circumstances, Jacob J said:

Whilst that may well have been apposite in the 1890s, when trialswere quicker and cheaper and I suspect Order 14 was more restrictedin its use, I do not think it appropriate today.20

While it is true that the rules do not prevent an application being made ata later stage of the proceedings,21 the plaintiff with an indisputable claimshould be in a position to apply for summary judgment before the defence

Ibid, at p 616.Ibid.See McLardy v Slateum (1890) 24 QBD 504; Britannia Brands (Singapore) Pte Ltd vSushil Premchand [1995] 1 SLR 128.Public Bank Bhd v Malamju Enterprise Sdn Bhd [1989] 2 MLJ 112, at p 114; StandardChartered Bank Malaysia Bhd v Eng Song Huat [1996] 1 MLJ 446.[1995] 1 WLR 1478.Ibid, at p 1481.(1890) 24 QBD 504, at pp 506–507.[1995] 1 WLR 1478, at p 1481.Ord 14, r 1 (RC) and Ord 14, r 1(1) (RHC) merely provide that it may be made afterthe statement of claim has been served and the defendant has entered an appearance.

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is served. A late application is a failure to properly utilise the rules (oreven an abuse of process when the procedure is intentionally misused)resulting in the unnecessary prolongation of proceedings and wasted costs.In a sense, the summary procedure is a privilege accorded to the claimantso that he may receive judgment quickly and avoid incurring costs resultingfrom the continuation of proceedings. If he misuses the procedure so as tobe responsible for the harm that the process is intended to avoid theremust be a doubt as to his entitlement to the privilege. On the other hand,a late application may be a ‘lesser evil’ than a pointless trial which wouldunnecessarily utilise the court’s resources, and, therefore, should not bedefeated by delay. What one has here is a variety of considerations whichthe court must consider in all the circumstances to determine the issue ofwhether the plaintiff should only be penalised in costs for making a lateapplication or deprived of the right to use the summary procedurealtogether.

Summary judgment: points of law and documentary construction

In the first Singapore case reported under the previous Order 14A, r 1(1)(now Order 14, r 12(1)), Grinsted v Brittania Brands (Holdings) Pte Ltd22

(which concerned a dispute arising from a contract of employment), thedefendant company applied for a determination whether the terms of theagreement complied with s 168 of the Companies Act.23 The applicationwas made in a notice under the summons for directions:

[1995] 3 SLR 157.Cap 50, 1990 ed.[1995] 3 SLR 157, at p 170. There is also the unreported Singapore case, LeowoodIndustries Pte Ltd v Annho Pte Ltd (Suit No. 2001 of 1991), which concerned issues oflaw and in which reference is made to an English case involving Order 14A. However,Leowood did not concern this provision directly.

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(a)

(b)

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pursuant to O 14A of the Rules of the Supreme Court that thecourt determine this question:

whether by virtue of s 168 of the Companies Act that part of theagreement which provided for payment by the defendants to theplaintiff of various sums and benefits as compensation for hisloss of office is unlawful and violates the said section of the Act;

should the question be determined in the defendants’ favour,

that the plaintiff’s claim be dismissed; and

judgment be awarded to the defendants on their counterclaim.

Affidavits were filed in support of, and in opposition to, the application.Lai Siu Chiu J specifically stated that the application was properly madeunder the Order ‘as a determination of the plaintiff’s claim under section168(1)(a) conclusively disposes of the same without the need for a fulltrial’.24

A vital condition for the operation of the summary adjudication underOrder 14, rule 12 is that it will ‘fully determine ... the entire cause ormatter or any claim or issue therein’.25 The terminology declares that it issufficient if one or more issues can be finally determined, and that it is nota requirement that the whole case be resolved. Nevertheless, the authoritieshave not been entirely consistent about this. In Balli Trading v AfalonaShipping Co Ltd (The ‘Coral’),26 the English Court of Appeal was concernedwith an application under Order 14 relating to, inter alia, the constructionof a bill of lading and charterparty. Beldam LJ referred to Order 14A, rule1(1), which is in substantially the same terms as the Singapore Order 14,rule 12(1),27 and commented, obiter,28 that the provision is intended toapply ‘... only if a question of construction, when decided, will determineall the issues between the parties ...’.29

In the unreported case of Korso Finance Establishment Anstalt v Wedge,30

Leggatt LJ thought that Beldam LJ must have been referring to Order 14,rule1(1).31 Leggat LJ, who delivered the judgment of the court, could notaccept the proposition that the application should not be entertained unlessthe determination of the issue of construction would finally determine theentire matter. His Lordship made the following propositions regarding thecircumstances in which an application for construction of a document mightbe made under the rule: First, such an application would be appropriateeven if evidence is needed to be adduced to assist the court in its task.Secondly, such evidence must be available at time of the hearing of theapplication and not depend on what future discovery might bring forth.Thirdly, the court could entertain the application in the absence of otherevidence if the document can be construed on its own. Fourthly, it issufficient if the construction of the document constitutes an issue in thecause or matter which can be finally determined:

In my judgment the question of construction is well capable ofconstituting an issue in the case or matter. An issue may be said tobe a disputed point of fact or law relied on by way of claim or defence.In the present case the determination of the question of constructionone way or the other will finally determine an important issue, namelywhether the respondents are primarily liable under the agreement. Ifthe determination is in favour of the appellant it will finally determinethe entire matter.

Ie Ord 14, r 12(1)(b).[1993] 1 Lloyd’s Rep 1.The only difference being that in the Singapore rule the word ‘fully’ has been substitutedfor ‘finally’.This was the only reference to O 14 A in the case, which was concerned with an ordinaryO 14 proceeding.Ibid, at p 9.(February 15th, 1994 CA transcript no. 94/387). I am very grateful to Mr. Daniel Johnfor making this transcript available to me.See p 9 of the transcript.

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In the High Court, Stockdale J had taken the view that the case would onlybe finally determined if the construction point was decided in favour of theplaintiff. Therefore, the learned judge ruled that as it could not be said thatthe case would be finally determined whatever the decision reached on theapplication, this was not a proper case for summary disposal.32 Althoughthe Court of Appeal agreed with the observation that the case would onlybe finally determined if the construction point was decided in favour of theplaintiff, it rejected the view that these circumstances ousted summaryadjudication under Order 14A. Leggatt LJ said:

In my judgment, having rightly decided that the issue could properlybe disposed of without evidence and discovery, if he decided on theside of the plaintiffs, it would determine the action. In any event thequestion of construction was a dominant feature of the case, and thejudge ought to have proceeded to determine that issue.33

Although the construction of the document was, as Leggatt LJ pointedout, a ‘dominating feature’ in the case, it is not entirely clear whether hisLordship was saying that this is a standard requirement in every applicationfor summary adjudication of issues of construction under Order 14A. Theeditors of the Supreme Court Practice (1997) have indicated that this is aprerequisite.34 Yet, the relevant rule, as has been mentioned, refers to thedetermination of ‘... the entire cause or matter or any claim or issue therein,’which, on a literal interpretation, would encompass any issue or claimirrespective of its importance to the suit as a whole. An argument againstthis literal interpretation is that if the issue is insignificant there would belittle point taking up the time of the court and the parties and incurringexpenditure on a separate proceeding when it could just as well beadjudicated upon at the main trial. Indeed, it is a general principle that thecourt will not order the separate trial of independent issues unless this willresult in a substantial saving of time and expenditure in respect of the trialof the action.35 Leggatt LJ indicated as much in relation in Korso Finance,where he said: ‘... Order 14A has lately been provided to avoid the expense[involved in this separate proceeding] and to assist parties in the efficientdisposal of their actions.’36

With regard to the power to strike out under Order 18, rule 19, casesinvolving this provision may be relevant to the consideration of Order 14,rule 12 applications. For example, in E (A Minor) v Dorset CC,37 Sir

Ibid. le if the decision went against the plaintiff he would be likely to continue with theaction.See p 9 of the transcript.SCP, 1997, vol 1, para 14A/1–2/4 (see para (3)).See Ord 33, r 2.See p 9 of the transcript.[1994] 3 WLR 853.

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Thomas Bingham M.R. considered the circumstances in which a summaryapplication to strike out is made on the basis of an issue of law:

I share the unease many judges have expressed at deciding questionsof legal principle without knowing the full facts. But applications ofthis kind are fought on the ground of a plaintiff’s choosing, since hemay generally be assumed to plead his best case, and there should beno risk of injustice to the plaintiffs if orders to strike out are indeedmade only in plain and obvious cases. This must mean that where thelegal viability of a cause of action is unclear (perhaps because the lawis in a state of transition), or in any way sensitive to the facts, anorder to strike out should not be made. But if after argument thecourt can be properly persuaded that no matter what (within thereasonable bounds of the pleading) the actual facts, the claim is boundto fail for want of a cause of action, I can see no reason why theparties should be required to prolong the proceedings before thatdecision is reached.38

Again, in X (Minors) v Bedfordshire CC,39 Lord Browne-Wilkinsoncomments bear consideration in relation to Order 14, rule 12:

Actions can only be struck out ... where it is clear and obvious thatin law the claim cannot succeed. Where the law is not settled but isin a state of development (as in the present cases) it is normallyinappropriate to decide novel questions on hypothetical facts.40

.... If on the facts alleged in the statement of claim, it is not possibleto give a certain answer whether in law the claim is maintainablethen it is not appropriate to strike out the claim at a preliminarystage but the matter must go to trial when the relevant facts will bediscovered.41

Injunctions and covenants in restraint of trade

The grant of an injunction to enjoin the defendant from breaching acovenant which restrains his trading activities (restrictive trade covenant)often has the effect of determining the suit when, as is usually the case, theperiod of the covenant is relatively short and, therefore, likely to expirebefore the trial. In these circumstances, a plaintiff who has a particularlystrong case for enforcing the covenant may be prejudiced if he is unableto obtain an injunction on the American Cyanamid balance of conveniencetest. In Office Overload v Gunn,42 the plaintiff brought an action against

Ibid, at p 865.[1995] 3 WLR 152.Ibid, at p 174. Also see Summer v William Henderson [1963] 1 WLR 823; Royster v Cavey[1947] KB 204.[1995] 3 WLR 152, at p 175.[1977] FSR 39.

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the defendant restraining him from breaching his covenant not to work orcompete with the plaintiff in a certain area for a period of one year. TheCourt of Appeal granted the injunction on the basis that the plaintiff hada strong ‘prima facie’ case.43 This involved showing that the covenant wasvalid, and that it had been infringed.44 Although Lord Denning M.R.regarded restraint of trade covenants as a special category to which theordinary American Cyanamid principles did not apply, this is no longer theposition. Even as early as the time of Office Overload v Gunn, Bridge LJhad said that the American Cyanamid principles should apply if there wasa dispute on the affidavit evidence or a question of law to be decided.45

According to Bridge LJ, the plaintiffs had been granted the injunction ona prima facie test because of their indisputable case.46

The English Court of Appeal has now put it beyond doubt that the ‘primafacie’ case test does not apply to all restraint of trade cases. In LawrenceDavid Ltd v Ashton,47 the court applied the American Cyanamid principlesin determining whether an injunction should be granted to enforce arestraint of trade covenant. The court distinguished between the situationin which the merits of the plaintiff’s case were clearly established (here the‘prima facie’ test would be applicable), and circumstances in which thereis an obvious dispute which requires a trial (this situation would attract theusual balance of convenience criteria). Balcombe LJ, who delivered theleading judgment,48 endorsed Bridge LJ’s approach by stating:

Clearly if there is no serious issue to be tried because the case in anopen and shut one then it is a case where an interlocutory injunctionshould be granted ...49

... there is no special rule relating to interlocutory injunctions in casesof restraint of trade. The normal rule in the American Cyanamidcase, and the exceptions to that rule, apply. ...50

... It is only if the action cannot be tried before the period of therestraint has expired, or has run a large part of its course, that thegrant of the interlocutory injunction will effectively dispose of theaction, thus bringing the case within the exception to the rule inAmerican Cyanamid, such as was considered by the House of Lordsin NWL Ltd v Woods51 ... and also by [the Court of Appeal] in Cayne

See the judgment of Lord Denning MR with which Lawton and Bridge LJJ agreed. Note,however, Bridge LJ’s qualification below.Also see the judgment of Lord Denning in Fellowes v Fisher [1976] QB 122.[1977] FSR 39, at p 44.Ibid.[1991] 1 All ER 385.Fox LJ agreed.Ibid, at p 393. Also see Lansing Linde v Kerr [1991] 1 ALL ER 418.Ibid, at p 396.See Lord Diplock’s statement above.

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v Global Natural Resources plc52 ... It is then that the judge mayproperly go on to consider the prospects of the plaintiffs succeedingin the action ...53

His Lordship added that the court hearing the application should be ableto arrange for an expedited hearing if there was a danger that the covenantwould otherwise expire before the final determination of the suit. If this isnot possible, his Lordship said, then there would have to be a contest onthe interlocutory application.54 If the trial can be arranged before thecovenant has run most of its course the party seeking to enforce it wouldnot be unfairly deprived. In these circumstances, the American Cyanamidprinciples would apply.55

Balcombe LJ’s dictum was applied by the English Court of Appeal inLansing Linde Ltd v Kerr.56 This case did not involve — in Balcombe LJ’sterminology — an ‘open and shut’ case. The American Cyanamid principleswere applied, but subject to a gloss added by Staughton LJ. His Lordshipthought that the court should employ ‘a wider view of the balance ofconvenience’ which takes into account the strength of the plaintiff’s caseas well as other factors in determining whether an injunction should begranted where a trial cannot be held in time:

If it will not be possible to hold a trial before the period for whichthe plaintiff claims to be entitled to an injunction has expired, orsubstantially expired, it seems to me that justice requires someconsideration whether the plaintiff would be likely to succeed at atrial. In those circumstances it is not enough to decide merely thatthere is a serious issue to be tried. The assertion of such an issueshould not operate as a lettre de cachet by which the defendant isprevented from doing that which, as it later turns out, he has a perfectright to do. ... On a wider view of the balance of convenience it maystill be right to impose such a restraint, but not unless there has beensome assessment of the plaintiff’s prospects of success. ... The judgewas therefore right, in my judgment, to take into account the strengthof Lansing Linde’s claim. He would have been wrong to regard thatas the sole consideration; but he did not do so. He also took intoaccount the narrower aspects of the balance of convenience, such asthe difficulty that Lansing Linde would have in proving damage, anda similar difficulty ... that Mr Kerr would face in claiming damagesfor loss of employment and interruption of his career.57

[1984] 1 ALL ER 225, at p 236. This case is considered below.[1991] 1 All ER 385, at p 395–396.Ibid.See Dairy Crest v Piggot [1989] ICR 92 (speedy trial ordered); Symphony Group vHodgson [1993] 4 ALL ER 143 (parties agreed to early trial).[1991] 1 ALL ER 418, at p 423 and 434.Ibid, at pp 423–424.

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In Singapore, the Court of Appeal in Reed Exhibitions Pte Ltd v KhooYak Chuan Thomas,58 following Lawrence David Ltd v Ashton and LansingLinde Ltd v Kerr,59 has clarified that restrictive covenant cases do notconstitute a special category which attract the exception (the ‘prima facie’test) rather than the rule (the American Cyanamid principles). Thean JA,who delivered the judgment of the Court of Appeal, said that the principlesare ‘equally applicable in considering the grant or refusal of an interlocutoryinjunction to enforce a covenant in restraint of trade as in other cases’.60

The Court of Appeal did not expressly concern itself with whether theprinciples might be qualified in exceptional circumstances; for example,where the applicant has an unarguable claim to an injunction and thecovenant might expire prior to trial. Nevertheless, Balcombe LJ’s view onthis matter was cited with approval.61 Furthermore, as the case before theCourt of Appeal involved a serious issue to be tried,62 the application ofthe American Cyanamid principles was entirely appropriate. Therefore, itcan be said that Reed Exhibitions Pte Ltd v Khoo Yak Chuan Thomas doesnot bar the ‘prima facie’ test altogether, and that it may continue to havea role when justified by the exceptional circumstances outlined in the English

Performance bonds

The principles concerning the grant of an injunction to restrain a call ona performance bond were summarised by Selvam J in Star-Trans Far EastLtd v Norske-Tech Ltd:64

First, the injunction would be granted only in exceptionalcircumstances. As a general rule the court having regard to the purposeof the bond will be disinclined to [grant] it. Secondly, given that theapplication is of an interlocutory nature and even though the evidencewill be by affidavits, the party making the application must come upwith compelling evidence to establish the exceptional circumstances.Thirdly, the rules in American Cyanamid Co v Ethicon Ltd that it issufficient for the plaintiff to establish that he has a good arguableclaim to the right he seeks to enforce and that, because the courtcannot decide on the claim on affidavit evidence, it is enough if the

[1995] 3 SLR 657.[1991] 1 ALL ER 418.[1995] 3 SLR 657, at p 664.Ibid.Ibid, at p 665.The reader might consider other cases concerning enforcement of restrictive tradecovenants such as John Michael Design plc v Cooke [1987] 2 All ER 332 and R v Sec ofState for Transport, ex p Factortame [1991] AC 603, at p 677.[1995] 3 SLR 631.

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plaintiff shows that there is a serious question to be tried, do notapply to the injunction sought [to restrain a call on a performancebond].65

The English Court of Appeal has recently emphasised that it should notalways be assumed that the autonomy of a performance guarantee wouldbe threatened if the beneficiary is placed under a temporary restraint fromenforcing it. In Themehelp Ltd v West,66 the Court of Appeal held (by amajority)67 that the High Court had been entitled to entertain an applicationfor an injunction as the allegation of fraud in relation to the main transactionhad arisen at too early a stage to affect the autonomy of the performanceguarantee.

Waite LJ said:

In a case where fraud is raised as between the parties to the maintransaction at an early stage, before any question of the enforcementof the guarantee, as between the beneficiary and the guarantor, hasyet arisen at all, it does not seem to me that the slightest threat isinvolved to the autonomy of the performance guarantee if thebeneficiary is injuncted from enforcing it in proceedings to which theguarantor is not a party. One can imagine, certainly, circumstanceswhere the guarantor might feel moved to express alarm, or evenresentment, if the buyer should obtain, in proceedings to which theguarantor is not a party, injunctive relief placing a restriction on thebeneficiary’s rights of enforcement. But in truth the guarantor hasnothing to fear. There is no risk to the integrity of the performanceguarantee, and therefore no occasion for involving the guarantor atthat stage in any question as to whether or not fraud is established.It amounts to no more, in the last analysis, than an instance of equityintervening to restrain the beneficiary, until the day when hisconscience stands trial at the main hearing, from enforcement of hislegal rights against a third party.68

The case has important distinguishing features. First, the action was broughtby the buyers against the sellers for fraudulent misrepresentation beforeany demand had been made on the guarantors, Secondly, the guarantorswere not parties to the action.69 Thirdly, the buyers sought injunctive relief

For a case in which exceptional circumstances arose, see Kvaerner Singapore Pte Ltd vUDL Shipbuilding (Singapore) Pte Ltd [1993] 3 SLR 350 (applicants induced breach andrelied on it to call on performance bond). See Star-Trans Far East Ltd v Norske-Tech Ltd[1995] 3 SLR 631, at p 640 for a useful account of the different considerations whichapply to a documentary credit and a performance bond.[1995] 3 WLR 751.Evans LJ dissented.Ibid, at p 764. Balcombe LJ concurred with the judgment of Waite LJ.The instalment payments under the contract of sale were secured by a performanceguarantee.

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against the sellers, not against the guarantors. Nevertheless, it remains forthe courts here to clarify to what extent, if at all, the approach in this caseis consistent with the basic principle that the courts will not normallydistinguish between attempts to restrain banks from making payment andthose dealing with restraint of callers from calling for payment.

Cross-examination on affidavits

Where it is sought to cross-examine a party on his affidavit it is essentialfor the applicant to show the court that there are factual issues whichjustify his application. In Tan Sock Hian v Eng Liat Kiang,70 Judith PrakashJC, as her Honour then was, accepted the ruling in Re Cloverbay Ltd (No2)71 that cross-examination of a deponent would only be allowed if hisevidence had been challenged by contrary affidavit evidence showing thatan issue of fact had arisen.72 In Cloverbay, Harman J thought that Hoffman’sJ’s statement in Re Lifecare International plc73 that a party is generallysubject to cross-examination on his affidavit (particularly in proceedingswhich would finally resolve the dispute)74 was too wide and ought to beread subject to the principle just stated.75 Judith Prakash JC also took upHoffman J’s distinction between an application for cross-examination in afinal proceeding and a mere interlocutory matter in Re Lifecare Internationalplc by stating:

... where the application for cross-examination had been made inrelation to an interlocutory matter [as opposed to a final proceeding]the court should be slow to allow it as otherwise it would be allowingthe parties to have a rehearsal before the trial and such rehearsalscould have oppressive effects. Rather than it being the exceptionalcase in which cross-examination is not allowed, where an interlocutorymatter is involved, cross-examination should only be allowed in theexceptional case.76

[1995] 3 SLR 49.[1990] BCLC 499.[1995] 3 SLR 49, at pp 52–53. Also see Re A Debtor (No 37 of 1976, Liverpool); ex pTaylor v The Debtor [1980] 1 ALL ER 129 in which an application to cross-examine inthe course of a final proceeding was rejected as no issues of fact had been raised towarrant the process.[1990] BCLC 222.Ibid, at p 225.

Namely, that cross-examination will only be allowed when the evidence sought to bechallenged has been put in issue by a contrary affidavit.[1995] 3 SLR 49, at p 53. Also see Re A Debtor (No 37 of 1976, Liverpool); ex p Taylorv The Debtor [1980] 1 ALL ER 129.

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Procedural irregularities

In Re An Arbitration,77 the defendants sought to avoid the enforcement ofa foreign arbitration award on the basis of irregularity in procedure. Theplaintiffs conceded that the requirement of Order 69, rule 7(7), that theorder of court be endorsed with a statement specifying period of time inwhich defendants would be able to apply to the court to set aside thearbitration award, had not been complied with. Judith Prakash J held thatthe plaintiffs’ omission was curable under Order 2 as the defendants, havingmade their application to set aside the order within the prescribed time(despite the absence of notice), had not been prejudiced.78

Even where the circumstances of the irregularity would justify the exerciseof the court’s discretion to cure, this may not be the appropriate outcomeif the applicant would fail in the substantive application. In Tan Sock Hianv Eng Liat Kiang,79 Judith Prakash JC, as her Honour then was, decidedagainst curing the irregularity in the respondent’s application for thepetitioner to attend court for cross-examination (on the petitioner’s affidavitin support of her application for maintenance). Her Honour ruled that theirregularity — the failure of the summons to state the grounds of theapplication as required by Ord 32, r 1 and form 62 — was one that mightordinarily be cured by the court. However, as the respondent had notchallenged the petitioner’s evidence (by affidavit or otherwise), he was notentitled to cross-examine the petitioner. This was, in the words of thelearned judge ‘a fundamental defect’ which would not have been cured byallowing the amendment of the summons. Accordingly, as the respondentwould have failed in his substantive application to cross-examine thepetitioner it was pointless for the court to cure the form of the application.

If the order for substituted service or the manner of substituted service isirregular it may be validated by waiver on the part of the person served.In Development & Commercial Bank Bhd v Aspatra Corp Sdn Bhd,80 thesecond defendant had asked for leave to file an appearance and to file astatement of defence, ‘clearly indicating that he wanted to enter into thefray in full swing and that the matter of irregular service was a matter ofthe past; no longer in issue’. Peh Swee Chin FCJ, who delivered thejudgment of the court, said: ‘A person cannot approbate and reprobate, sothat if a person becomes aware of an irregularity of service and thensubsequently takes a further step in the action which could be only usefulif the service had been good, the said irregularity is waived’.81 The case

[1996] 1 SLR 34.Ibid, at p 40.[1995] 3 SLR 49.Ibid.Ibid, at p 480. Also see Fry v Moore (1889) 23 QBD 395; Rein v Stein [1892] 1 QB 753;Boyle v Sacker (1888) 39 Ch D 249.

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also stresses the point that a specific application must be made to challengethe order for substituted service and the service, as the court will notgenerally entertain such an entreaty in collateral proceedings.82

Parties

The scope of rules 6 and 7 of Order 15

There are various provisions in Order 15 concerning joinder and cessationof parties and they have their specific purposes. For example, rule 6(2)concerns the general circumstances in which persons may be joined asparties and cease being such. There is also the restriction there that aperson may not be made a plaintiff without his consent. Rule 7(2) is morespecific as it is essentially concerned with substitution of one party byanother where the interest or liability of the former is now that of thelatter.

A failure to appreciate the respective procedures under these rules canlead to confusion. For example, where a rule 7(2) situation arises it is notnecessary to make a separate application for leave under rule 6(2). InStandard Chartered Bank v Asia Transport Service,83 the English ‘StandardChartered’ bank entered into an agreement to sell its business to theMalaysian ‘Standard Chartered’ Bank. By virtue of this agreement, and acourt order pursuant to statute,84 the power to conduct legal proceedingsand incidental rights were transferred to the Malaysian Bank. Both banksthen jointly applied for an order that the Malaysian Bank be substitutedfor the English Bank in an action against the respondent. Several argumentswere raised against the application. First, the English Bank had no locusstandi as it had divested itself of its rights. Richard Tallala JC’s answer wasthat the English Bank had locus standi by virtue of its right to protect itselffrom potential liability arising from the consequences of the transfer(particularly costs, if the English bank remained the plaintiff). Accordingly,there was nothing wrong in making a joint application in thesecircumstances.85

The respondent also argued that the Malaysian Bank ought to have appliedunder rule 6(2)(b)(ii) to be joined as a party before applying to besubstituted as the plaintiff in the action. His Lordship rejected thiscontention as well. All the Malaysian bank had to do was to make anapplication for substitution under rule 7(2) .86 The learned judge also made

Development & Commercial Bank Bhd v Aspatra Corp Sdn Bhd [1995] 3 MLJ 472, atpp 477–478.[1996] 1 MLJ 157.The Banking and Financial Institutions Act, 1989.[1996] 1 MLJ 157, at p 164.Ibid, at p 163. Also see Toprak Energi (above) and Mercer Alloys Corp v Rolls RoyceLtd [1972] 1 WLR 1520 (which also involved the substitution of a plaintiff).

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8 S.Ac.L.J. Review of Developments in Selected Areas of Civil Procedure 411

the salient point that although a court order had already been made understatute vesting the powers of the English bank in the Malaysian bank, thiswas a substantive rather than a procedural measure, and therefore, it wasnecessary for a separate order to be made under rule 7(2). It should besaid that his Lordship appropriately commented on the unfortunate use ofthe terminology ‘leave to intervene’.87 The word ‘intervention’ and itsderivatives do not reflect the terms or essence of the rules just considered,and tend to sow confusion.

Limitation of actions: the distinction between Order 15, rule 7 and rule 6.

The court will not order joinder of a person as a party under Order 15, rule6 if this would take effect after any relevant period of limitation hasexpired.88 This position must be distinguished from rule 7 circumstances,which do not involve the introduction of a new claim or liability, but rather,the substitution of a party who succeeds to an already existing claim orliability in the proceedings.89 As Millet LJ stated in Yorkshire RHA vFairclough Building Ltd:90

Order 15, rule 7 does not contain, and none of its predecessors everhas contained, any reference to limitation. This is as it should be,since the circumstances in which the rule may be invoked do not giverise to any question of limitation. Even though the rule permits anew party to be substituted for an original party, this does not involvea new cause of action; the new party is substituted because he hassucceeded to a claim or liability already represented in the action andsues or is sued in respect of the existing cause of action. Thesubstitution of the successor does not deprive the defendant of anaccrued limitation defence. There is no good reason why thesubstitution should not be made at any stage of the proceedings andwhether a relevant period of limitation has expired or not; the expiryof the limitation period is completely irrelevant.91

Ibid. His Lordship referred to it as being ‘no more than a matter of speech’.Abdul Gaffer v Chua Kwang Yong [1995] 1 SLR 484, at p 488.Therefore, this form of substitution should be distinguished from what is often referredto as substitution under rule 6 when the court orders a party to cease being a party andjoins a person as a party. Under rule 6 the new party is not succeeding to any existingclaim or liability. See Yorkshire RHA v Fairclough Building Ltd [1996] 1 WLR 210, atpp 215–216.[1996] 1 WLR 210, at p 215.Also see Industrie Chimiche Italia Centrale v Alexander G Tsavliris & Sons Maritime Co(The Choko Star) [1996] 1 All ER 114 which was approved by the Court of Appeal inYorkshire RHA. Note that the contrary dicta of Judge Diamond QC in Toprak EnergiSanayi AS v Sale Tilney Technology Plc [1994] 1 WLR 840 (indicating that the limitationprovisions could apply to rule 7) was rejected by the Mance J in Industrie Chimiche andthe Court of Appeal in Yorkshire RHA.

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Representation of beneficiaries by trustees

The English High Court has ruled that Order 15, rule 14(2) does notenable beneficiaries interested in the suit to take it over from plaintifftrustees who have decided to abandon proceedings against third parties.Peter Baker QC, in Bradstock Trustee Services v Nabarro Nathanson,92

stated that Order 15, rule 14(2):

... does not give an independent power to add beneficiaries whetherascertained or unascertained. It merely makes clear that the seeminglyrestrictive provisions in paragraph (1) are not to inhibit the power ofthe court to join beneficiaries under the other rule, eg Order 15, rule6, or in proceedings for the execution of a trust or the administrationof an estate [ie, pursuant to Order 15, rule 13]. I cannot see it asjustifying the handing over of the conduct of an action against a thirdparty which the trustees have started but wish to abandon.93

According to this decision, rule 14(2) does not create a residuary categoryfor joinder of parties, but merely preserves the integrity of the otherprovisions in Order 15. If so, there is a lacuna in the rules, and beneficiariesin such a situation may not be sufficiently protected. The problem is thatthe other rules of Order 15 may not apply. Rule 7 does not operate in thissituation because it concerns change of parties by reason of death orbankruptcy. According to Peter Baker QC, rule 6(2)(b)(i), which concernsjoinder on the basis that the person’s presence is necessary for effectiveadjudication of the issues, would not operate where the beneficiaries aresolely concerned with taking over the suit. Rule 6(2)(b)(ii) would be justas unhelpful because it envisages the continuation of the suit between theexisting parties, not substitution.

It is suggested that rule 14(2) should be construed to allow a beneficiaryto be joined if this would be justiciable. If this rule is intended to refer toother provisions in Order 15, these would have been stipulated just as rule13 is. Furthermore, as rule 14(2) refers to the joinder of a beneficiary whohas an interest within the scope of rule 14(1), it may be assumed thatjoinder would be based on the terms of rule 14 rather than any other rule.Finally, as has been shown, it may be very difficult to effect joinder underthe other rules of Order 15 in these circumstances.

Representation of deceased person interested in proceedings

In Wong Moy (administratrix of the estate of Theng Chee Khim, deceased)v Soo Ah Choy94, Judith Prakash J noted that Order 15, rule 15(1) includesfour requirements: (a) the application must be made at a time when there

[1995] 1 WLR 1405.Ibid, at p 1410.[1996] 1 SLR 586.

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is an existing court action; (b) a deceased person was interested in thematter in question in the action; (c) he must not have a personalrepresentative; and (d) the person applying to the court under this rulemust be a party to the action.

As to the first requirement, the learned judge explained that the existingcourt action must be between parties who are not suing or being sued onbehalf of the estate of the deceased. The rule gives the court a choice toappoint a representative of the estate of the deceased or to proceed withthe action without doing so:

If there was no pre-existing proceeding between independent thirdparties, then such choice would not exist because without theappointment of the representative there would be no action at allwhich could proceed in his absence.

It appeared to me that O 15, r 15(1) is directed at the situation whereafter an action had been started and both plaintiff and defendantwere litigating it, it became apparent that a deceased person who wasneither the plaintiff nor the defendant, and thus not a party to thelitigation, had an interest in the subject matter of the litigation andtherefore his estate should be represented in the action.95

With regard to the case itself, the plaintiff had sued in her capacity asadministratrix and, therefore, failed to comply with the first and thirdrequirements of the rule.96 Furthermore, as her action was found to be anullity (due to issues of status and capacity) she was not strictly a party tothe proceedings, with the effect that the fourth requirement was not satisfied.Nor could the plaintiff substitute her status as representative of thedeceased’s estate for her status as administratrix. As the learned judgesaid: ‘The purpose of the rule is to allow an additional party who may beaffected thereby to have a say in the litigation and not to replace one partyto the litigation with another’.97

Terms imposed by the court

The court may impose appropriate terms when making an order that aparty be joined or cease to be a party pursuant to Order 15, rule 6(2)(a)and (b).98 As this power is not limited it would seem that the court maymake any order which would be just in the circumstances. For example, itmight, and usually does, order a plaintiff who seeks to be joined as plaintiffto pay the costs of and occasioned by the joinder and costs thrown away

[1996] 1 SLR 586, at p 595.As to the first requirement, she was not the independent third party whose participationin the proceedings would constitute them pre-existing proceedings for the purpose of therule (Ibid, at p 596).[1996] 1 SLR 586, at p 596.See these rules.

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as a result of the joinder.99 The court may order a newly joined party togive security for costs when this is appropriate.100

Default judgments

Abandonment and combination of claims

Order 13, rules 1–4 and Order 19, rules 2–5 concern specific claims (aliquidated demand, unliquidated damages, detinue and possession ofimmovable property). Judgment may be entered in respect of such a claimunder the corresponding rule. Two or more of such claims (mixed claims)may be the subject of a default judgment under a separate rule.101 Whereit is sought to enter judgment in respect of any other claim or two or moreclaims one of which is not prescribed by Order 13, rr 1–4 and Order 19, rr2–5, an application for leave to enter judgment must be made under Order13, rule 6 (default of appearance) or Order 19, rule 7 (default of pleading).The claims are governed by separate rules because the nature of the remedysought involves specific considerations catered to by the respective rule.Nevertheless, the plaintiff who initially puts forward two or more claims isat liberty to abandon those claims which do not come within the ambit ofthe rule. Therefore, it was held by the English Court of Appeal in MorleyLondon Developments Ltd v Rightside Properties Ltd,102 that the plaintiff,having pursued claims including specific performance, unliquidated damagesand an account of moneys received, could enter judgment in default ofdefence pursuant to Order 19, rule 3, having decided only to proceed withhis unliquidated damages claim.

The case of Panwell Investments Pte Ltd v Lau Ee Theow,103 a decision ofthe Singapore High Court, would seem to suggest that an interlocutorydefault judgment may be obtained under rule 3 in respect of a main claimfor unliquidated damages combined with ancillary reliefs. As AmarjeetSingh JC put it in Panwell Investments Pte Ltd v Lau Ee Theow,104 themain claim must be able to ‘stand up independently on its own ... in thelight of its pleaded facts and claims made’.105 In this case, the defendant

On the basis that he could have avoided these proceedings by being involved from theoutset. See Eurocross Sales Ltd v Cornhill Plc [1995] 1 WLR 1517, at p 1523.As when the circumstances are such that he may not pay existing party’s costs. See theconsiderations of the Court of Appeal in Eurocross Sales Ltd v Cornhill Plc [1995]1 WLR 1517; CT Bowring & Co (Insurance) Ltd v Corsi Partners Ltd [1994] 2 Lloyd’sRep 567, at p 581.Ie, rule 5 of Ord 13 and rule 6 of Ord 19.(1973) 117 SJ 876.[1995] 3 SLR 137.[1995] 3 SLR 137.Panwell Investments Pte Ltd v Lau Ee Theow [1995] 3 SLR 137, at p 142 (the courtaccepted the views of Edmund Davies LJ in Morley London Developments Ltd v RightsideProperties Ltd (1973) 117 SJ 876).

99

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sought judgment in default of defence to his counterclaim pursuant toOrder 19, rule 3. His claims for relief included unliquidated damages andenquiries into the circumstances which gave rise to the dispute. His Honourconcluded that the claim for damages, far from being distinct,‘... was whollydependent on the determination by a court on the findings in respect ofthe [other prayers]’.106 The judgment was set aside as the proper procedurewas for the defendant to apply for leave under Order 19, rule 7.

While the decision in the case was undoubtedly correct, the statement ofprinciple distinguishing between a claim which stands on its own (whichmay be combined with ancillary reliefs) and a claim which does not standon its own (which may not be combined with other reliefs on which itdepends), may require elaboration. Order 19, rule 3 requires the claim tobe for ‘unliquidated damages only’ so that the registrar merely has toassess damages. Ancillary reliefs which involve judicial consideration or adetermination of a type different to mere assessment should not be thesubject of this rule, but a basis for an application for leave under rule 7 sothat the appropriate directions may be given.107

Irregular default judgments

In Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd,108

the Federal Court laid down certain propositions with regard to the settingaside of an irregular default judgment. First, the application must be made,in accordance with Order 2, rule 2, ‘with reasonable promptitude’ andbefore the defendant has taken any fresh step after becoming aware of theirregularity.109 Secondly, the court still retains a discretion to set aside anirregular judgment despite long delay, provided it is satisfied that (a) noone has suffered prejudice by reason of the defendant’s delay;(b) alternatively, where such prejudice has been sustained, it can be metby an appropriate order as to costs; or (c) to let the judgment stand wouldconstitute oppression.110

Ibid, at p 141. His Honour also pointed out that it would not be appropriate or practicalfor the registrar to conduct such inquiries at the hearing for the assessment of damages.See p 141.Therefore, in Morley London Developments Ltd v Rightside Properties Ltd (1973) 117SJ 876, the Court of Appeal decided that the plaintiff, having abandoned the claim forspecific performance had automatically withdrawn his prayer for an account (which wasancillary to the claim for specific performance), and for this reason was able to proceedunder rule 3 for unliquidated damages. The claim for an account was not ancillary to theclaim for damages as reported in the judgment at p 142. Also see SCP, 1997, vol 1, para13/6.[1996] 1 MLJ 30.Ibid, at p 36.Ibid, at p 42. Applied by the Court of Appeal in Khor Cheng Wah v Sungai Way LeasingSdn Bhd [1996] 1 MLJ 223, at p 229. Also see Harley v Samson (1914) 30 TLR 450;Atwood v Chichester (1878) 3 QBD 722.


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Edgar Joseph Jr FCJ added that the court has the inherent jurisdiction togrant a late application to set aside in order to prevent an abuse of itsproceedings. In the case itself, the application, which was made three yearsafter the entry of the irregular judgment, was allowed as it had been nullifiedby errors — including the failure of the court to allow counsel to be heardin relation to the amendment of the judgment. Similarly, in Muniandya/l Thamba Kaundan v D & C Bank Bhd,111 the same court ruled that thefailure to notify party of the adjourned hearing was sufficiently fundamentalto nullify the ex parte orders which had been obtained. Accordingly, thecourt could exercise its inherent jurisdiction to set them aside despite thedelayed application. The point was also made, obiter, that the right to setaside an order of court which is a ‘nullity’ cannot be waived.112

The principles propounded in Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd were also applied by the Court of Appeal in KhorCheng Wah v Sungai Way Leasing Sdn Bhd.113Gopal Sri Ram JCA stressedthat the court would expect a satisfactory explanation before entertaininga delayed application to set aside:

It is a cardinal principle of law, that when a litigant seeks theintervention of the court in a matter that affects his rights, he mustdo so timeously. The maxim vigilantibus, non dormientibus, jurasubveniunt ... is of universal application.114 Even in cases where aright is exercisable ex debito justitiae, a court may refuse relief to anindolent litigant.115

His Lordship added that it is the party responsible for the delay to rendera satisfactory explanation, and whether an explanation is satisfactory mustdepend on the circumstances of each case.116 Finally, it needs to be saidthat in Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd,the Federal Court made it clear that a default judgment allowed to beentered without objection could not be treated as a consent order, as thelatter involves a specific agreement or arrangement between parties.117

[1996] 1 MLJ 374.Ibid, at p 385. Note that the use of the term ‘nullity’ re-introduces the classificationwhich distinguished nullities and irregularities prior to the introduction of the RHC in1980. Some of the problems in this respect are outlined in Khor Cheng Wah v SungaiWay Leasing Sdn Bhd [1996] 1 MLJ 223, at pp 230–232.[1996] 1 MLJ 223, at p 229.Essentially this means: they who wish to come to the law should be vigilant, not asleep(my own translation).[1996] 1 MLJ 223, at p 229.Ibid. In this case, the negligence of the party’s solicitor was not the sole cause of thedelay as the party also was to blame. Furthermore, in the circumstances it would havebeen unjust to the plaintiffs to set aside the judgment (see pp 229–230 of the judgment).The argument that a default judgment entered without objection might favour a defendantbecause it would be more difficult to set aside: A consent order may only be set asideon its own terms or on the basis general contractual principles. See the authorities citedat [1996] 1 MLJ 30, at pp 43–4.

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The duty to litigate all issues

It is obviously desirable that the parties to a dispute ensure that all issueswhich require the court’s attention are raised in a single set of proceedings.To this end, and as a matter of public policy, the legal system does notcountenance a litigation of matters which could have been resolved in theoriginal suit. The rule, formulated more than a century ago,118 was explainedby Sir Thomas Bingham MR in Barrow v Bankside Ltd:119

The rule ... is very well known. It requires the parties, when a matterbecomes the subject of litigation between them in a court of competentjurisdiction, to bring their whole case before the court so that allaspects of it may be finally decided (subject, of course, to any appeal)once and for all. In the absence of special circumstances, the partiescannot return to the court to advance arguments, claims or defenceswhich they could have put forward for decision on the first occasionbut failed to raise. The rule is not based on the doctrine of res judicatain a narrow sense, nor even on any strict doctrine of issue or causeof action estoppel. It is a rule of public policy based on the desirability,in the general interest, as well as that of the parties themselves, thatlitigation should not drag on for ever and that a defendant should notbe oppressed by successive suits when one would do. That is theabuse at which the rule is directed.

A number of points arise in relation to this rule. First, it applies if thematter could have been adjudicated upon by the court (and not merelyraised by the party) in the original proceedings.120 Secondly, ‘negligence,inadvertence and even accident will not excuse non-compliance with therule’.121 Thirdly, as the purpose of the rule is to avoid an abuse of processby one party exposing another to an unnecessary series of trials, the ‘specialcircumstances’ exception applies if the subsequent litigation is necessary.122

Fourthly, in determining whether to allow the subsequent litigation on thebasis of special circumstances, the court will take into account any prejudicewhich the other party might suffer as a result. Sir Thomas Bingham MR,having determined that special circumstances existed to justify furtherproceedings by the plaintiff, indicated that he would probably haveconcluded differently if the defendant had been prejudiced.123 It wouldseem that the fact that the defendant has to face a subsequent legal suit isnot itself a basis for alleging prejudice.124

By Sir James Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, at pp 115–116.The extract of this judgment is set out in Saville LJ’s judgment in Barrow.[1996] 1 WLR 257, at p 260.Ibid, at pp 263, 268.Ibid, at p 263.Ibid.Ibid.Ibid, at pp 263, 268.

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In Barrow, the Court of Appeal decided that the rule did not apply in thecircumstances as the matter sought to be raised by the plaintiff could nothave been litigated in the first proceedings. Sir Thomas Bingham MR wenton to determine, on the assumption that his conclusion was wrong, thatgiven the particular nature of the large group litigation and the complexprocedures involved, the plaintiff had established special circumstances forbringing a fresh action. The scope of the qualification to the rule has notbeen circumscribed125 for the good reason that the courts approach theissue on the basis of what is just in the circumstances of the case.126

Anton Filler Order: the court may consider circumstances not directlylinked to the issues

The court is not limited in its consideration of the circumstances fordetermining whether an order should be granted, which may even extendto matters not directly connected with the issues in the litigation. Forexample, in Coca-Cola Co v Gilbey,127 one of the arguments raised by theone of the defendants was that disclosure would jeopardise his safety andthat of his family.128 Lightman J thought that this was a considerationwhich ought to be taken into account, the weight of which would dependon whether the defendant was a party to the infringement and the needsof the plaintiff:

I accept that the risk of violence if disclosure is made is a factor tobe taken into account. The question at issue is its weight. Informationmay be sought from a person against whom the plaintiff has a causeof action; alternatively, information may be sought from a personagainst whom there is no such cause of action but who has innocentlybecome involved in the tortious acts of others...129 I cannot thinkthat in any ordinary case where the plaintiff has a pressing need forthe information in question, the existence of the risk of violenceagainst the potential informant should outweigh the interest of theplaintiff in obtaining the information. In case of any unlawful threator action directed at a party, a witness or their families, the rule oflaw requires that the law should in no wise be deflected from followingits ordinary course and the court should proceed undeterred. Policeprotection is the appropriate remedy and (if the person responsibleis detected) proceedings for contempt should be instituted.130

Sir Thomas Bingham MR said at p 263: ‘...it is plainly unwise to attempt to define whatmay amount to a special circumstance’.See Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, at p 590: ‘in casejustice should be found to require the non-application of the rule’.[1995] 4 All ER 711.He and his family had been threatened with physical violence.Ie, on the basis of the Norwich Pharmacal principle.[1995] 4 All ER 711, at p 716.

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In the circumstances, his Lordship decided that the plaintiffs interest hadto prevail over that of the defendant (who was a party to the infringementof the plaintiff’s rights).131 The case leaves open the question of how thebalance would be applied in relation to a defendant who is not party to theinfringement,132 and to any defendant in a case which is not ‘ordinary’ inthe context of the above passage. It would seem that the principle whichcompels a witness to give evidence at a trial or hearing despite any threatswhich have been made against him,133 should apply to the defendant facedwith an Anton Filler order or other order of court requiring disclosure.Otherwise, the course of the law could be thwarted at will.

Privileged communications between client and legal adviser: proviso (a)to s 128 of the Evidence Act

Proviso (a) to section 128 of the Evidence Act states that any communicationmade ‘in furtherance of any illegal purpose’ will not be protected byprivilege. A literal interpretation of this provision would suggest that acommunication made for an improper (but non-criminal) purpose, no matterhow immoral, continues to be protected by legal professional privilege.This is not the common law position. In Ventouris v Mountain (The ItaliaExpress)134 Bingham LJ specifically referred to improper conduct beyondthe scope of illegality:

Without the consent of the client, and in the absence of iniquity ordispute between client and solicitor, no inquiry may be made into ordisclosure made of any instructions which the client gave the solicitoror any advice the solicitor gave the client, whether in writing ororally.135

Schiemann LJ, in Barclays Bank plc v Eustice,136 considered this passageas a recognition of ‘the effect of a line of cases which have established thatadvice sought or given for the purpose of effecting iniquity is not privileged’.The Court of Appeal held that the communications between the defendantand his legal adviser, concerning transactions entered into at an undervalueto prejudice the interests of a creditor, could not be protected by legalprofessional privilege. Schiemann LJ stated: ‘I regard this purpose as beingsufficiently iniquitous for public policy to require that communicationsbetween him and his solicitor in relation to the setting up of thesetransactions be discoverable’.137

Ibid.Ie, who is joined on the basis of the Norwich Pharmacal principle.The Evidence Act makes no such exception. See s 120.[1991] 1 WLR 607.Ibid, at p 611.[1995] 1 WLR 1238, at p 1249.Ibid, at p 1252.

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As to the degree of iniquity required to deprive the client of the privilege,the court accepted that it could involve ‘all forms of fraud and dishonestysuch as fraudulent breach of trust, fraudulent conspiracy, trickery and shamcontrivances’.138 There is much to be said for this principle. A person whowishes to rely on a privilege conferred by the law should be required toconduct himself appropriately in relation to matters giving rise to thisright. Furthermore, if the privilege operates in the face of iniquity, thepotential litigant may be encouraged in his wrongdoing by the knowledgethat evidence concerning the misdeed can not be disclosed. In Singapore,the term ‘illegal’ in proviso (a) to section 128 would not, on a strictly literalinterpretation, include iniquitous conduct which is not criminal.

Judgment in absence of party

Where judgment is given at trial in the absence of a party pursuant toOrder 35, rule 1(2), the court, in determining whether to allow a subsequentapplication to set it aside, will not merely take into account the merits ofthe case. In Vallipuram Gireesa Venkit Eswaran v Scanply InternationalWood Product (S) Pte Ltd,139 interlocutory judgment was entered againsta third party who had not appeared at the trial (although he was legallyrepresented for the first three days).140 The third party also failed to appearat the hearing for the assessment of damages despite having been notified.It was only when proceedings were taken for the registration of thejudgment141 in Malaysia that the third party began to act by applying forthe judgment to be set aside.142 Having ruled that the judgment could notbe set aside on the basis of irregularity,143 Judith Prakash J went on toconsider whether the judgment ought to stand even though the issuesbetween the defendant and third party had not been fully adjudicatedupon. Referring to Order 35, rule 2, Her Honour said that the third partyought to have applied to set aside the interlocutory judgment within sevendays after the trial as prescribed by the rules,144 or for an extension of time(if acceptable reasons could given for the delay).145 Instead, the applicationwas made two years after the conclusion of the trial. The third party had

The court cited, inter alia, Crescent Farm (Sidcup) Sports Ltd v Sterling Offices [1972]Ch 553, at p 565; Gamlen Chemical Co (UK) Ltd v Rochem Ltd (unreported), 7 December1979, to this effect.[1995] 3 SLR 150.His lawyer applied for, and was granted, a discharge on the third day.Which had become final after the damages had been assessed.Having obtained an adjournment of Malaysian proceedings on the basis of his intentionto set aside the judgment in Singapore.The court held that the judgment had not been entered for a larger amount than thatactually due, as alleged.As prescribed by Ord 35, r 2(2) of the former RSC. Note that by virtue of the new Ord35, r 2(2) (RC), the period is now 14 days after the date of the judgment or order.The application to the court could have been made pursuant to Ord 3, r 5. [1995] 3 SLR150, at p 155.

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not offered an acceptable explanation for its failure to participate in thetrial and at the hearing assessment of damages,146 and showed a lack ofbona fides. Her Honour explained that in these circumstances it would notbe appropriate for the court to examine the merits of the case and that theprinciples which govern an ordinary default judgment did not apply:

In my opinion, the third party would not have succeeded in anapplication for an extension of time in which to apply to set aside thejudgment against it. That being the case, it really had no ground forthe application before me. I did not think that it was possible toequate the situation here to a default judgment. Even if it was adefault judgment, it was a very special kind of default judgment towhich the usual rules would not, in my opinion, apply. Theargument...that in the case of a default judgment the important pointis the merits of the litigants’ case and that the court should give everyopportunity to the litigants to put forward their case is, in my view,wholly inappropriate in a situation where, without any explanationwhatsoever, a litigant has at a very late stage voluntarily decided toend its involvement in the proceedings and has deliberately embarkedon a course which would mean that its case would not be put forwardto the court. In the present instance, the third party had everyopportunity to fully explore the merits both of the defendants’ caseagainst it and of its own defence. At the eleventh hour, for reasonsit did not deign to share with the court, it withdrew from furtherparticipation in the proceedings. The third party cannot now comeback to the court and insist that the court examines the merits of thethird party’s case and gives it leave to proceed because it has ameritorious defence without giving any explanation for the course ofconduct which led to the judgment against it being given.147

Security for costs

In Omar Ali bin Mohd v Syed Jafaraisadeg bin Adbulkadir Alhadad,148

Chao Hick Tin J accepted the established principle that the court has adiscretion to determine whether to make an order for security of costs andthe appropriate amount to be provided. Under ground (a) of Order 23,rule 1(1),149 a foreign plaintiff will only be ordered to give security if this

The third party’s excuse that it had not realised that the judgment was enforceable inMalaysia, and therefore did not participate in the proceedings was not justified. [1995]3 SLR 150, at p 155.[1995] 3 SLR 150, at pp 155–156. Also see Perwira Habib Bank Malaysia Bhd v WastecolManufacturing Sdn Bhd [1988] 3 MLJ 215 (judgment in default of appearance not setaside because, inter alia, of the defendant’s failure to explain and apparent lack of bonafides).[1995] 3 SLR 388.The plaintiff is ordinarily resident out of jurisdiction.

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outcome serves justice. Although the likelihood of the plaintiff succeedingis a major factor in the court’s consideration of the justice of the case, itwill not embark on a detailed examination of the merits of the parties’respective positions unless there is a ‘high degree of probability of successor failure’.150

This approach must be correct, for in the absence of a clear indication ofwho is likely to succeed the court would not, without the benefit of theevidence, be in a position to effectively consider the merits. It would followthat the likelihood of the plaintiff succeeding would not be the primaryconsideration where the merits of the case are not obvious.

The conduct of the parties may have a role in the court’s consideration ofwhether it would be just to order security. For example, if the defendantshave unreasonably forced the plaintiff into bringing legal proceedings itmay not be just to require the latter to provide security.151 Correspondingly,if the plaintiff has acted oppressively in commencing an action, or couldhave avoided legal proceedings by acting reasonably, the court might bemore inclined to make an order in the defendant’s favour. Where theplaintiff has unreasonably increased the defendants’ costs by utilisingunnecessary procedures, by his failure to expedite proceedings or otherwise,an order for security for an amount reflecting these circumstances may bejustified. A defendant who is responsible for incurring his own costs maynot have much standing in respect of his application for security, or atleast, in claiming an amount of security over and above what the plaintiffshould be liable for. In determining whether an order for security ought tobe made and, if so, the amount which is to be provided, the court is freeto take into account any circumstances which would be relevant to theconsideration of an outcome which is in the interests of justice.

In Envis v Thakkar,152 the English Court of Appeal stated that a personcould only be ordered to give security on this ground if there is ‘someelement of deliberate duplicity or window dressing operating to thedetriment of the defendant’. The court gave the example of ‘someone witha real cause of action who, in order to cheat the defendant, deliberatelydivested himself of all right to retain any benefit from the action’.

Ibid, at p 393. Also see Porzelack Kg v Porzelack (UK) [1987] 1 ALL ER 1074, atp 1077; Aeronave v Westland Charters Ltd [1971] 3 ALL ER 531, at p 533.[1995] 3 SLR 388, at pp 396–397, 398.Times, 2/5/1995 (judgment dated 7 April, 1995).

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Indemnity Costs

Factors which justify indemnity costs include litigation which is conductedby the paying party in a dishonest, acrimonious or otherwise impropermanner, and the absence of merit.153 The Singapore High Court has ruledthat there must be compelling reasons for such an order to be made.154

Execution creditors: priority of claims

Paragraph (f) of Order 46, rule 17(3) provides that where two or moreexecution creditors have claims against the same defendant, the claims areto be prioritised according to the time of issue of the writs of execution.As the paragraph does not determine priority as between writs issued inthe High Court and subordinate courts, it would seem that the ‘time ofissue’ rule would apply in these circumstances as well. This was the viewof Selvam J in Amara Hotel Properties Pte Ltd v Tremor Entertainment PteLtd,155 where his Honour refused to accept the argument that a writ ofexecution issued in the High Court should have priority over a subordinatecourt writ of execution irrespective of their dates of issue.156 Accordingly,a writ of execution issued in the subordinate court prior to one taken outin the High Court, would, in the ordinary case, take priority over the latter.

Priority among execution creditors is primarily determined by thesubstantive law. Statutory provisions may confer specific priorities. Hence,in United Overseas Bank Ltd v Promotion & Sales Centre157 the CPF Board’sclaim took priority pursuant to s 68(1) of the Central Provident FundAct.158 This would not have been the result had UOB maintained its positionas a secured creditor by realising its security through a mortgagee sale,rather than the process of execution.

Striking out pleadings or endorsements on writs

In Active Timber Agencies Pte Ltd v Allen and Gledhill,159 Rubin Jre-iterated the principle that in determining whether there is a reasonablecause of action the court would not embark on an enquiry into the relativestrengths of the parties’ cases. Rather, it would consider whether it has

Anne Joseph Aaron v Cheong Yip Seng (suit no 999 of 1989). (This is the supplementaljudgment (concerning costs) handed down by Lai Siu Chiu J on 30th June, 1995).Ibid. See p 7 of the unreported judgment. Her Honour decided that there were nocompelling reasons in this case.[1996] 1 SLR 454, at p 456.His Honour pointed out that claims are assigned to the High Court and subordinatecourts according to the size of the claim and that the judgments of both courts are of‘equal strength’ (p 456).[1996] 1 SLR 374.Cap 36.[1996] 1 SLR 478.

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‘some prospect of success when only allegations in the pleadings wereconsidered.’160 His Honour also referred to the observations of Lindley LJin A-G of the Duchy of Lancaster v London and North Western RailwayCo161: ‘... so long as the statement of claim or the particulars disclose somecause of action or raise some question to be decided by a judge or jury, themere fact that the case is weak and not likely to succeed, is no ground forstriking it out ... the object of the rule is to stop cases which ought not tobe launched — cases which are obviously unsustainable or patently frivolousor vexatious ...’.162 An application to strike out on the basis of ground (a)of Order 18, rule 19(1) would not be acceded to if the court is not in aposition to decide because the legal issues have yet to be established byfacts evidence of which is only available on subsequent discovery, or becausethe legal principles themselves are uncertain. Where, however, the issuesraised by the pleadings are clear, the court will not hesitate to grant theapplication where this is justified.163 As to ground (b) of Order 18, rule19(1), the court will consider the party’s conduct during the course of thecase for the purpose of determining whether the pleading or endorsementon the writ is ‘scandalous, frivolous or vexatious’. In Active Timber AgenciesPte Ltd v Allen and Gledhill,164 Rubin J affirmed this principle by statingthat ‘... the court is entitled to and ought to look at the whole history ofthe matter’.165

Jurisdiction of the Syariah Court

The High Court has no jurisdiction to hear and try any civil proceedingwhich comes within the jurisdiction of the Syariah Court constituted underthe Administration of Muslim Law Act.166 The approach of the court when

Citing Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 to thiseffect. This is the Malaysian position. See Lim Kit Siang v Pemangku Ketua Polis Daerah,Butterworth [1988] 2 MLJ 648, at p 650; Government of Malaysia v Lim Kit Siang [1988]2 MLJ 12, at p 19.[1892] 3 Ch D 274, at p 277.This principle would encompass a claim for a remedy which the court is not empoweredto grant (Dreyfuss v Peruvian Guano Co (1889) 41 Ch D 151) and a claim which doesnot satisfy the legal basis for the remedy (Johnston v Johnston (1884) 33 WR 239). Formore detailed observations on the terminology ‘cause of action’ in relation to this rule,see the Tuan Haji Ishak bin Ismail v Leong Hup Holdings Bhd [1996] 1 MLJ 661, at pp678–680. Also see Ban Guan Sdn Bhd v United Malaysian Steel Mills Bhd [1977] 2 MLJ52, at p 53; Tan Keat Seng Kitson v Kerajaan Malaysia [1996] 1 MLJ 454; Sim Kie Chonv Superintendent of Pudu Prison [1985] 2 MLJ 385.See E (A Minor) v Dorset CC [1994] 3 WLR 853, at p 865; X (Minors) v BedfordshireCC [1995] 3 WLR 152, at p 174. The relevant extracts are considered supra, under‘Summary judgment: points of law and documentary construction’.[1996] 1 SLR 478, at p 487.Also see Goh Koon Suan v Heng Gek Kiau [1991] 2 MLJ 307 (above), in which theSingapore High Court considered the correspondence between the parties and thepleadings, and Re Vernazza [1959] 2 All ER 200 (HC), [1960] 1 All ER 183 (CA), inwhich the history of the case was gleaned from affidavits.SCJA, s 16 (1), (2); s 35 of the Administration of Muslim Law Act (Cap 3).

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confronted with a prima facie conflict of jurisdiction between the HighCourt and Syariah Court is to determine whether the Syariah Court hasjurisdiction over the proceeding by virtue of s 35 of the Administration ofMuslim Law Act. If it does, the High Court may not hear the case. Thepurpose of s 16(2) of the Supreme Court of Judicature Act, which expresslydisqualifies the High Court from hearing cases over which the SyariahCourt has jurisdiction, is to prevent a clash of jurisdiction between thesecourts.167 In Hafiani bte Abdul Karim v Mazlan bin Redzuan,168 Kan TingChiu J considered the Syariah Court’s jurisdiction in the context of variationof custody orders. His Honour expressed the view that if the Syariah Courtmakes such an order then it would be for that court rather than the HighCourt to vary it, on the basis that the order should be subject to the samelegal regime. However, the matter might be heard by the High Court,rather than the Syariah Court, if the parties so desire:169 ‘If one partywants a change of forum and regime and the other party agrees or acquiescesto it, the change can be made, but if one or both parties want to have thematter decided under the same regime, no change should be imposed bythe courts.’170

Receiving evidence on unpleaded matters

A useful summary of the circumstances in which the court will considerevidence on unpleaded matters was given by Gopal Sri Ram JCA inBoustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd.171

First, the main duty of the pleader is to set down the material facts whichestablish his allegation. It is not essential for him to state ‘any specialformula in staccato’172 which represents those facts. For example, it is notvital to plead estoppel if the facts giving rise to this legal doctrine areestablished in the pleading, thereby giving the opposing party sufficientnotice of it.173 Secondly, even where the material facts relating to an issuehave not be stated in the pleading the court may permit it to be raised inthe interest of justice.174 Thirdly, if evidence is admitted on an unpleaded

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See Salijah bte Ab Lateh v Mohd Irwan Abdullah [1996] 1 SLR 63, at pp 72–74. Alsosee Muhd Munir v Noor Hidah [1991] 1 MLJ 276 (which was followed in Salijah); SalehaBibi v Abdul Gani [1995] 2 SLR 62; Rahimah bte Hussan v Zaine bin Yusoff [1995]2 SLR 391.[1996] 1 SLR 378.Ibid, at p 381.Ibid, at p 383. Also note the references to certain significant unreported cases in thisjudgment.[1995] 3 MLJ 331. Note that Hsu Seng v Chai Soi Fua [1990] 1 MLJ 300, in which theHigh Court thought that an oral explanation by counsel concerning his knowledge wasacceptable, must be doubtful authority in the light of Ng Hee Thoong. See the commentsof K Ratnam JC in Standard Chartered Bank Malaysia Bhd v Eng Song Huat [1996]1 MLJ 446, at p 451.See Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563, at p 571.See Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd, [1995]3 MLJ 331, at p 341.Ibid, at p 342. Also see the cases cited there.


point without objection and argument is directed on the matter, the courthas ‘the bounden duty ... to consider the evidence and the submissions andcome to a decision on the issue’.175 His Lordship explained the underlyingprinciples:

It is to be emphasised that the categories of cases in which a courtmay permit an unpleaded point to be argued are not closed and thatthe foregoing three classes of cases are but mere illustrations of amuch wider principle. It is this. A court may permit a litigant toargue that his opponent is estopped from raising a particularcontention if it is in the interests of justice to do so. It is really amatter within the discretion of the particular judge who, when decidingwhere the justice of the case lies, must have due regard to all thecircumstances of the case, including any injury or prejudice that maybe caused by the affected party being taken by surprise. If a courtcomes to the conclusion that no injustice will be occasioned bypermitting a party to raise estoppel as an issue, it may be justiifed indeparting from the salutary rule contained in such decisions as HajiMohamed Dom v Sakiman [1956] MLJ 45 and Anjalai Ammal vAbdul Kareem [1979] 1 MLJ 22 that imposes upon a judge the dutyto strictly decide a case upon and only upon the issues raised in thepleadings and not upon an unpleaded case. Nevertheless, courts mustensure that the occasions upon which such a departure may bepermitted are rare. For otherwise the rule which declares that a partyis bound by its pleadings will be rendered meaningless.

That the justice of the case should be the overriding consideration isaxiomatic. After all, courts exist to do justice according to the law asapplied to the substantial merits of a particular case. And rules of courtand practice are created to facilitate the attainment of justice, not itsobstruction.176

Principles governing stay of execution or proceedings: a Malaysiandevelopment

The principle that ‘special circumstances’ must be established before thecourt will grant a stay of execution (pending appeal) or proceedings wasdisapproved of by the Court of Appeal in See Teow Guan v Kian JooHoldings Sdn Bhd177 in favour of a less stringent and more basic test: thata stay should be granted if it is likely that an appeal, if successful, wouldbe rendered nugatory. Gopal Sri Ram JCA, who delivered the judgmentof the court, stated:

... the paramount consideration governing an application for a stay,whether of execution or of proceedings, or, in the case of an

Ibid.Ibid.[1995] 3 MLJ 598.

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application for some other form of interim preservation of the subjectmatter of an appeal, such as the grant of an injunction or otherappropriate relief ... is that the appeal to this court, if successful,should not be rendered nugatory. If upon balancing all the relevantfactors, this court comes to the conclusion that an appeal would berendered nugatory without the grant of a stay or other interimpreservation order, then, it should normally direct a stay or grantother appropriate interim relief that has the effect of maintaining thestatus quo.178

But cases may arise where, in determining the critical question ofwhether an appeal would be rendered nugatory, this court comes tothe conclusion that the point concerned in the pending appeal isobviously unarguable. In such cases it would not, as I perceive thelaw, be a proper exercise of discretion for this court to shut its eyesto the practical realities of the situation, and to nevertheless proceedto grant a stay.179

Ibid, at p 610. Support for this approach was drawn from the judgment of Chan SekKeong JC, as his Honour then was, in Dickson Trading (S) Pte Ltd v Transmarco Ltd[1989] 2 MLJ 408, at p 415; and the judgment of Kirby P in the Court of Appeal of NewSouth Wales in Alexander v Cambridge Credit Corp Ltd (1985) 10 ACLR 42, at p 48.Also see Mohamed Mustafa v Kandasami (No 2) [1979] 2 MLJ 126, at p 127 to the sameeffect.Ibid, at p 611.LL.B (Hons); LL.M; Advocate and Solicitor of the Supreme Court; Barrister (MiddleTemple); Associate Professor, Faculty of Law, National University of Singapore.

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JEFFREY PINSLER*

*

a review of developments in selected areas of civil procedure

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