1 Introduction – Principles/ WP/ LPPCR

1.1 Civil procedure overview...........................................................................................................................1

1.2 Nature........................................................................................................................................................2
1.3 Sources of law............................................................................................................................................6
1.4 Principles...................................................................................................................................................7
1.4.1 Principle of engagement: governs how one party engages the court + other party.....................................................7
1.4.2 Principle of fairness through proper notice....................................................................................................................7
1.4.3 Principle governing court’s role in proceedings.............................................................................................................8
1.4.4 Adversarial principle.......................................................................................................................................................8
1.4.5 Principle distinguishing interlocutory and trial proceedings........................................................................................10
1.4.6 Principle of access to justice.........................................................................................................................................10
1.4.7 Jurisdictional principles.................................................................................................................................................10
1.4.8 Principle of disclosure of information..........................................................................................................................11
1.4.9 Principle of expedition > avoidance of delay................................................................................................................11
1.4.10 Principle of compensation by costs..........................................................................................................................11
1.4.11 Principle of finality....................................................................................................................................................13
1.4.12 Principle of settlement.............................................................................................................................................13

1.5 Letter of demand.....................................................................................................................................15

1.6 Without prejudice communications.........................................................................................................16
1.6.1 Opening shot principle- NOT S23 but common law principle......................................................................................18
1.6.2 Multiparty litigation......................................................................................................................................................19
1.6.3 Example scenarios for without prejudice.....................................................................................................................20

1.7 Evaluation/ additional pointers – lawyers must evaluate case with client r17 of LPPCR..........................20

1.1 Civil procedure overview

Main aims of civil justice Pinsler

slides
 “Civil Justice” - Effectuation of rights; ie, the manner in which substantive law rights and liabilities are
manifested through litigation or alternative dispute resolution systems.
How does civil procedure come in
 “Process” (procedure) - Rules (statutory, case law and administrative directions) which govern the process
of litigation.
 Civil justice is realised through the process: Procedure and Evidence are the means by which the
substantive law is given effect.
Examples of civil procedure facilitating the process
 Formulation of claim. Writ and pleadings set the scope of the dispute (claim for breach of contract;

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 contractual defence)
 Disclosure of evidence through procedural mechanisms (discovery and affidavits of evidence in chief)
 Framework at trial for presentation of evidence and arguments leading to judgment on substantive rights
and liabilities which can be enforced.

Civil Procedure’s nature and aims overview: Pinsler’s

PCP 1.001
 Civil procedure may be said to consist of a group of rules and regulations which enable the parties to
pursue or defend legal claims, and provide the process by which rights are realised and liabilities imposed
on the basis of sufficient evidence.
 Its primary objective is the just determination of a claim through judicial resolution or settlement. As to
scope, civil procedure extends to all subjects of the law and the entire process of dispute resolution in the
courts (including certain aspects of enforcement in criminal proceedings), arbitration and even applies prior
to the commencement of proceedings.
 Its flexibility is underlined by its capacity to meet the infinite circumstances which might arise in a
particular case. However, despite the impression given by its own nomenclature, civil procedure is much
more than a composition of black letter rules to be applied mechanistically for the purpose of directing
parties what to do and what not to do.

1.2 Nature

Civil litigation: A system by which litigants resolve their disputes (peacefully) Couture
 Primitive man’s reaction to injustice appears in the form of vengeance. The first impulse of a rudimentary
soul is to do justice by his own hand. Only at the cost of mighty historical efforts has it been possible to
supplant in the human soul the idea of self-obtained justice by the idea of justice entrusted to the
authorities.

Common law adversarial system: Like cricket

Unlike the civil law inquisitorial system, which is like soccer. (In cricket, the umpire decides only when a player shouts,
how’s that? In soccer, the referee makes a decision without prompting.)

Common law procedure: The gatekeeper of justice Sir Jack Jacob, QC

The province of procedure is to assist in the administration of justice by enabling legal rights and duties to be enforced and
defended and to achieve justice on the substantive merits of the case.

[Sir Maurice Amos, KC] Procedure gives effect to the law by providing the machinery through which rights and interests
can be effectuated.

Approach 1: Procedural law is a mere servant to the substantive law (no longer the modern position) Coles
(1906)
 The relation of civil procedure to the substantive law is intended to be that of handmaid rather than
EWCA
mistress. (4) (Collins MR) Note: “Mistress” means lady of the house.

No longer the position locally because of the following reasons:

 Huge increase in litigation and complexity -> court’s resources stretched.
 Compliance with procedure essential to expedition in and efficiency of proceedings. Promotes access to
justice by other litigants. Pinsler’s
 Interests of administration of justice demand compliance with procedure. slide at 10

2
 Lawyers have primary responsibility to assist in administration of justice (Legal Profession (Professional
Conduct) Rules 2015 (“PCR”), r 4) + specific rules on conduct in court (rule 9) - We need to consider the
ethical dimension because the lawyers have so much power now, even is against the interest of justice. Eg.
There is a document against his client’s case

Approach 2: : the integration of substantive law and procedural law to achieve justice ( modern position)
ORB OF JUSTICE Pinsler PCP
Evolution is evident from the evolution of procedure in the statutes. The modern purpose of civil at 1.002
procedure has evolved from a history of multifarious roles.
 In the centuries prior to the English Supreme Court of Judicature Acts of 1873 and 1875, procedure
frequently controlled access to substantive justice through the rigidity of the forms of action and the
hyper-technical requirements of processes such as pleadings.
 The statutory reforms, catalysed by a new consciousness of rights and justice, sought to curtail the
encroaching nature of procedure on the acquisition of substantive relief and to de-prioritise it as a
servient mechanism.
Evolution is also evident in pronouncements in case law
 Main point: The quest for justice, therefore, entails a continuous need to balance the procedural with
the substantive (integration). More than that, it is a continuous attempt to ensure that both are UOB v Ng
integrated, as far as that is humanly possible. Both interact with each other. One cannot survive without Huat(2005)
the other. Therefore, as far as is possible, there must be a fair and just procedure that leads to a fair and SGHC (at
just result. This is not merely abstract theorising. It is the very basis of what the courts do and ought to do. [8-9])
When in doubt, the courts would do well to keep these bedrock principles in mind. [8]
 Caveat: relationship is not an easy one - However, it is true that in the sphere of practical reality, there
Pinsler PCP
is often a tension between the need for procedural justice on the one hand and substantive justice on
at 1.003 -
the other. The task of the court is to attempt to resolve this tension. There is a further task: it is to
1.004
actually attempt, simultaneously, to integrate these two conceptions of justice in order that justice in its
fullest orb may shine forth. [9]

Therefore, ultimate question is whether procedure serves justice.

 Eg, P wishes to amend statement of claim (P’s formal claim against defendants, sets out the material facts
eg. Breach) to make it clearer. This will be allowed if it does not prejudice D. Pinsler’s
 Eg, P wishes to amend statement of claim close to trial to introduce new claim. Unlikely to be allowed if P slide at 11
has no time to properly respond. Ie, prejudice would ensue. (in this situation it might be allowed, eg. If it
is earlier in proceedings)
Ideally, procedure and substantive law work together as the “orb of justice”. But there are tensions
Pinsler’s
within the orb.
slide 14
 At its lowest level, procedure regulates proceedings and does not impact on rights.
o Eg, the periods during which documents must be filed.
 However, more serious or continuing breaches affect the interests of justice and may prejudice other
party. (Eg, UOB case > constant delay of proceedings)
 Justice is broader than substantive law rights in that the manner in which a case is conducted can
substantially affect rights. Eg:
o Where non-compliance with time-limits results in unjustifiable delay
o Failure to plead a case properly takes the other party by surprise.
o Failure to disclose adverse documents in discovery deprives court of relevant evidence -> incorrect
decision.

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If no injustice, then it can be forgiven and party be allowed to rectify its decision BUT will likely have to pay
costs

Point 1: balance depends on the factual scenario of each case - Lee Chee
Wei v Tan
The judicial response to procedural default must be considered in the context of the circumstances of the
Hor Peow
case and calibrated by reference to the paramount rationale of dispensing even-handed justice.
Victor
[2007]

Point 2: (relationship between procedural & substantive justice is not an easy one): Sun Jin (2011) SGCA - Approving UOB
(2005) SGHC: While this principle of striking a balance between the competing interests of procedural justice and
substantive justice is simple to state, it is by no means easy to apply in practice. [21]
1st type of cases: whether to grant a procedure to someone who was actually not entitled to

 Approving UOB (2005) SGHC: The rules of procedure are intended to ensure that 1 of the 2 twin pillars of LHL v SDP
justice is achieved, viz, procedural justice. The other pillar is that of substantive justice. [36] (2007)
 Significantly, the observations just quoted were reproduced in their entirety in one of the leading local SGCA,
commentaries on civil procedure (cites Pinsler). [36]
(-) Facts: (likewise approving the UOB general principle of integration) the Court of Appeal dismissed the
application for an extension of time to file a notice of appeal because the SDP’s case was ‘hopeless’. Ie, the
granting of an extension of time (procedure) would not result in justice.

(-) Facts: The bank had petitioned for the respondent to be wound up. The respondent applied for a stay of UOB v Ng
the winding-up proceedings pending his related appeal concerning a decision rejecting his application for a Huat
scheme of arrangement with creditors. The issue was whether a litigant (the company) should obtain a stay [2005]
of the winding up proceedings against it so that it could appeal the decision against a scheme of
arrangement (which the company wanted).

Ratio: The High Court disagreed with the respondent’s argument that he had a procedural right to a stay.
Normally, as a matter of procedure, a stay would be granted to permit an appeal. But not in this case
because of the company’s delaying tactics and the reality that it would not succeed on appeal. The just
result in these circumstances (to prevent injustice to UOB to whom the company really did owe money)
was to refuse to the stay. Ie, the procedure for stay would not result in justice but in injustice.

Reasoning: ([15],[18])
 The High Court disagreed with the respondent’s argument that he had a procedural right to a stay. Judge
took into account the numerous attempts which the respondent had made (including a string of
applications over the course of more than a year) to avoid the winding up. It was clear from his previous
conduct in the proceedings that the respondent’s purpose was to use the appeal (which was “doomed to
fail”) to cause further delay in the winding-up proceedings. In deciding against a stay, his Honour balanced
the positions of the parties and declared in favour of the petitioner.
 The nub of this case is that a party cannot claim that he is entitled to take a step in the proceedings
irrespective of the circumstances of the case. The court will determine whether such a step would be
consistent with substantive justice and will look at the positions of both parties for this purpose
(balance). Furthermore, the court will not allow a party to misuse procedure.
 Usually, the court will grant a stay if there is a possibility that a scheme of arrangement may arise. But
Phang JC said no, although this is a procedure that the debtor may be entitled to engage because this

4
 procedure would lead to injustice for the creditor who is clearly owed the money.
Facts: the orb of justice principle in the context of the pleading - The Plaintiff claimed rescission for
Liberty Sky
misrepresentation. The Defendant did not challenge rescission in his defence. Ie, he did not plead the
Investment
impossibility of rescission. However, in the circumstances of the case, the Plaintiff was fully aware of the
defence and in fact addressed it. Therefore, the omission by the Defendant to plead the defence (which is s Ltd v
required by Ord 18 r 8) did not take the Plaintiff by surprise. Aesthetic
Medical
The Court of Appeal applied the “Orb of justice” principle, affirming Sun Jin (at [14]): A balance has to be Partners
struck between, on the one hand, instilling procedural discipline in civil litigation and, on the other, [2020]
permitting parties to present the substantive merits of their case notwithstanding a procedural irregularity: SGCA
see the observation of this court

(+) Application: The Court of Appeal affirmed the High Court’s decision to consider the defence (at [17]):
“Notwithstanding [The Defendant’s] failure to plead the particulars of the bars to rescission, the balance lies
in favour of allowing [The Defendant] to present the merits of his case. We are therefore of the view that
there is no procedural impediment to the consideration of [The Defendant’s] argument centering on bars to
rescission (which the Judge correctly ruled upon)”.

Reasoning: The Court of Appeal also said of the pleading process: The entire spirit underlying the regime of
pleadings is that each party is aware of the respective arguments against it and that neither is therefore
taken by surprise. [The Plaintiff’s] submission that [The Defendant’s] failure to plead the bars to rescission
prevented it from running the argument that restitutio in integrum was possible, is antithetical to the very
spirit of the rules of pleading themselves. This is because the specific facts and circumstances germane to
that argument were actually within [The Plaintiff’s] exclusive knowledge.

(+) Therefore, the case justifies the position taken in previous cases to the effect that even if a pleading
rule is not complied with, the court may disregard the breach if this would be the just result (as it was in
this case because the Plaintiff was not taken by surprise).
(+) AXM shows how the court cannot simply ignore a legal principle in achieving a just result (in this case,
AXM v AXO
by backdating an order for maintenance). The Court of Appeal proceeded to consider how to achieve a
[2014]
just result procedurally without breaching legal principle. (at [30-37]
SGCA
 Order was backdated because of the protracted long hearing (23 months since interim judgement) +
husband continued to bear burden paying maintenance payments
 Final maintenance order for wife and children could have would have included consideration of the
respective parties’ resources and outstanding obligations as altered by the operation of the Interim
Maintenance Order.
 Such an order would have operated prospectively but would have accounted for the Husband’s depleted
resources due to his maintenance obligations under the earlier Interim Maintenance Order.
 it was therefore within this court’s appellate power to substitute the DJ’s technically erroneous order with
a technically correct order which achieves the same effect (albeit not in the same amount ordered by the
DJ). This court’s appellate power includes the power to “make any order which ought to have been given
or made, and make such further or other orders as the case requires”, even if such an order was not
specifically sought in the notice of appeal (see ss 37(5) and 37(6) of the Supreme Court of Judicature Act.

Another situation in which the UOB principle can apply concerns the consequences of not complying with a Ang Sin
procedural rule. For example, an appellate court will not normally hear an appeal on a point of law not Hock
argued in the court below (the procedural rule). [2010]
SGCA
(+) In Ang Sin Hock, the Court of Appeal permitted the appellant to raise a point of law before it (whether
certain correspondence resulted in a fresh contract) even though this point was not argued in the court
below. The Court of Appeal decided that the procedural rule would not lead to a just result because the

5
 pleadings included all the facts that were required for this point to be argued. In other words, as all the
facts were already laid out, the respondent was not surprised (and therefore prejudiced) by the new
point and the CA was in just as advantageous a position as the HC to hear the matter. Ie, the failure to
comply with the procedural rule (points of law raised before the Court of Appeal must have been raised in
the High Court) did not cause injustice. Hence, the court could consider this particular issue as a new point
of law pursuant to O 57 r 13(4) of the Rules of Court

(-) C.f CASES THAT WILL CAUSE INJUSTICE  so judge ignored procedural rules to just result
Facts: the failure to plead the facts that establish proprietary estoppel precluded the 1st Respondent from V Nithia
relying on this doctrine. In overruling the High Court (which had held that the 1st Respondent could rely on
the doctrine despite not pleading the facts), the Court of Appeal ruled that allowing the 1st Respondent to
rely on proprietary estoppel in the absence of pleaded facts caused injustice to the appellant who was
not in a position to respond. Therefore, in this case, the failure to abide by the procedural rule (pleading
the facts underlying proprietary estoppel) caused injustice

Ng Chee
Also agreed in Ng Chee Weng: The court’s primary concern in deciding whether or not to overlook a Weng
procedural error (in this case by allowing an amendment to the pleadings) depends on whether the decision
would be just. The mere fact that the other party can be compensated in costs is not an invariable basis for
permitting an amendment.

1.3 Sources of law

Statutes such as the Supreme Court of Judicature Act (Cap 322), State Courts Act (Cap 321) Civil Law Act Pinsler’s slide
(Cap 43), Interpretation Act (Cap 1) and Limitation Act (Cap 163). 15

Subsidiary legislation (Rules of Court)

 These Rules shall have effect in relation to all proceedings in the Supreme Court and State Courts,
insofar as the matters to which these Rules relate are within those Courts’ jurisdiction. (O 1 r 2(1))
Rules of Court (including forms in Appx A).
– Developed at end of 19th century in England on the basis of pre-existing judicial practices and
procedures. Eventually resulted in RSC 1965. Singapore RSC 1970 based on English RSC 1965. Pinsler’s slide
– Now Singapore Rules of Court 2014. Many amendments since 1970 15
– The Rules apply generally. Excluded in relation to certain proceedings which are governed by their own
particular rules: criminal, matrimonial, bankruptcy, winding-up; parliamentary elections. (O 1, r 2(2).)
Case law and Practice Directions
 Practice directions are intended to be no more than a direction for administrative purposes. A practice
direction does not have the force of a rule of court and cannot vary the force of the latter. (Odex [30])
Pinsler PCP
 While practice directions issued by the court are not part of the rules of court, they can be just as at 1.006
significant. Indeed, the complexity and technicality of litigation is such that practice directions, by
delineating the purposes of the rules and providing the necessary details for compliance, are often
critical to their operation. Although practice directions do not have the status of subsidiary legislation.
attention to them is not only mandated by the rules but fortified by an array of sanctions.

Inherent power: Nothing in these Rules limits or affects the inherent powers of the Courts. (O 92 r 4) Pinsler PCP
at 1.006
 Apart from legislation and practice directions, the courts themselves produce an abundance of
procedural law in the form of interpretation of legislative procedure and pre-existing case law or in the

6
 development of new procedural approaches. Sometimes, a judicial initiative may lead to the
modification or introduction of a rule or practice direction.
 The phrase “nothing in these [r]ules shall be deemed to limit or affect the inherent powers of the
[c]ourt” should not be interpreted to mean that the court is given a licence to override the rules of Managemen
court whenever it wishes to do so, for such a view would undermine the status of the rules as a t Corporation
primary source of procedural law and their certainty of application. Rather, the power is to be Strata Title v
exercised in exceptional circumstances when there is a pressing need to ensure a just outcome. Lee Tat
o For example: the court’s inherent power has been said to be the basis on which it may exercise its Development
residuary discretion to control the consequences of a “consent unless order”. It has also been [2011]
decided that a court may exercise its inherent power to re-open and rehear a concluded case if there
has been a breach of a rule of natural justice which justifies such an outcome

1.4 Principles

 Macro principles: broad principles underlying the nature, structure and objectives of civil procedure.
 Micro principles: specific principles relating to each topic which can be formulated on the basis of statutory and case
law. (eg. The law of injunctions)

1.4.1 Principle of engagement: governs how one party engages the court + other party

 Action and service: (writ and originating summons and documents in the course of proceedings) > if serve Pinsler
writ can acknowledge the claim and settle, if want to defend need to respond with a defence and the slides at 18
plaintiff can reply. If do not put in defence, then plaintiff can get a default judgement
o Electronic filing of documents
o Consequences if party does not respond (eg default judgments) : Eg, No appearance by defendant to
writ, No defence in response to statement of claim
 Appearance and default judgments:
 Interlocutory affidavits: Respondent’s affidavit in response to claimant’s affidavit.
 Trial affidavits: AEIC

1.4.2 Principle of fairness through proper notice

General rule: Inter partes applications. Exception: Ex parte applications in certain circumstances Pinsler
slide 19
 In certain situations, an ex parte application (which involves the applicant alone at the hearing) is
necessary because there is no opponent at that point in time. For example, when an application is made
for leave to serve a writ out of the jurisdiction or to renew the validity of the writ.
 The ex parte application is also appropriate when notice of the application would defeat its very
purpose. For example, where the plaintiff seeks a Mareva injunction to prevent the defendant from
disposing of his assets or a search and preservation order to avoid the destruction of critical evidence. As
these injunctions only come into effect on communication of the court’s order, the intervening period may
provide the defendant with a sufficient opportunity to obstruct the process. An ex parte application may
only be made if the matter is “urgent” and the court expects to be satisfied that this condition has been Pinsler PCP
fulfilled at 1.008
What procedures here?
 Procedure necessary to involve other party (eg application for leave to serve originating process out of
jurisdiction)
 Pre-action relief (eg pre-action discovery)
 Urgent application, or application which would be defeated by giving other party notice ( eg Mareva

7
 injunction, search order)
o For example, where the plaintiff seeks a Mareva injunction to prevent the defendant from disposing
of his assets or a search and preservation order to avoid the destruction of critical evidence
A fundamental principle underlying the ex parte application is that the applicant must make “full and frank”
disclosure to the court to redress the imbalance resulting from the absence of the opposing party. The
applicant must disclose to the court any issue, fact or argument (within his reasonable sphere of knowledge)
which could adversely affect his application. For this purpose, he must put himself in the position of the
opposing lawyer and reasonably consider what material points and facts the latter might have put forward
in opposition to the application.[58] Such a responsibility emanates from his duty to the court (as an officer
of the court)[59] and to the aims of justice > r55(c) of the LP(PC)Rules

1.4.3 Principle governing court’s role in proceedings

Adversarial system with inquisitorial elements: Key contention – is the balance well calibrated between the Pinsler
two extremes (adversarial v inquisitorial). Arises from how the courts encourage parties to settle slide 20

Example: Power to make orders and give directions for just, expeditious and economical disposal of O 34A r 1
proceedings
 Notwithstanding anything in these Rules, the Court may, at any time after the commencement of any
proceedings, of its own motion direct any party or parties to those proceedings to appear before it, in
order that the Court may make such order or give such direction as it thinks fit, for the just, expeditious

and economical disposal of the cause or matter. (O 34A r 1(1)) (it gives the courts extensive powers, to
possibly take over proceedings but in reality it has never really been exercised). This is inconsistent to the
notion that the lawyers should be the one at liberty to manage the case.
 Where the Court makes orders or gives directions under paragraph (1), it may take into account whether
or not a party has complied with any relevant pre-action protocol or practice direction for the time being
issued by the Registrar. (O 34A r 1(1A))
 Where any party fails to comply with any order made or direction given by the Court under paragraph (1),
the Court may dismiss the action, strike out the defence or counterclaim or make such other order as it
thinks fit. (O 34A r 1(2))
 The Court may, in exercising its powers under paragraph (1), make such order as to costs as it thinks fit. (O
34A r 1(3))
 Any judgment, order or direction given or made against any party who does not appear before the Court
when directed to do so under paragraph (1) may be set aside or varied by the Court on such terms as it
thinks just. (O 34A r 1(4))
Note: This is such a powerful instrument that it has never been used. Courts has plenty of power to play an
inquisitorial role but the common law culture prevents them from doing so, courts often us O 34A to call up
the parties to get them to hurry up. That might change in due course

Example: Pre-trial conferences O 34A r 2

 Without prejudice to Rule 1, at any time before any action or proceedings are tried, the Court may direct
parties to attend a pre-trial conference relating to the matters arising in the action or proceedings. (O 34A
r 2(1))
 At the pre-trial conference, the Court may consider any matter including the possibility of settlement of all
or any of the issues in the action or proceedings and require the parties to furnish the Court with any such
information as it thinks fit, and may also give all such directions as appear to be necessary or desirable for
securing the just, expeditious and economical disposal of the action or proceedings. (O 34A r 2(2))

8
1.4.4 Adversarial principle

 Governs the role of lawyers and their clients in adversarial litigation: Need for ethical control; otherwise, Pinsler’s
win at all costs mentality slide at 23
 Therefore, the importance of ethical rules governing relationship between lawyers in court proceedings and
lawyer’s duty to the court
Breach?
 Breach of ethical rule may lead to disciplinary proceedings.
 Breach of procedural rule may lead to sanctions against lawyer as well as client (O 59 rr 7 and 8 of RoC).

Lawyer’s duty to client: LPPCR, rr

5, 6, 17
 5: Honesty, competence and diligence – a) The relationship between a legal practitioner and his or her
client imports a duty to be honest in all dealings with the client. b) A legal practitioner must have the
requisite knowledge, skill and experience to provide competent advice and representation to his or her
client. c) A legal practitioner has a duty to be diligent in the advice and information given to his or her client,
and in the manner the legal practitioner represents the client.
 6: A legal practitioner’s duty to act in the best interests of the legal practitioner’s client includes a
responsibility to maintain the confidentiality of any information which the legal practitioner acquires in the
course of the legal practitioner’s professional work.
 17: A legal practitioner must act in the best interests of his or her client, and must charge the client fairly
for work done.

 A lawyer (has a) duty of unflinching and undivided loyalty to the client. This duty has correctly been Ezekiel
described as a foundational responsibility on which the integrity of the legal profession and the public (2019)
interest in securing proper legal representation depend (citing Pinsler). [48] C3J

Lawyer’s duty to court - Principles LPPCR, rr

9–13
 A legal practitioner has a duty to assist in the administration of justice, and must act honourably in the
interests of the administration of justice.
 A legal practitioner has an obligation to ensure that any work done by the legal practitioner, whether
preparatory or otherwise, relating to proceedings before any court or tribunal, will uphold the integrity of
the court or tribunal and will contribute to the attainment of justice.
 A legal practitioner must always be truthful and accurate in the legal practitioner’s communications with
any person involved in or associated with any proceedings before a court or tribunal.
 A legal practitioner must not present, or permit to be presented, any evidence or information which the
legal practitioner knows to be false.
 A legal practitioner must, in any proceedings before a court or tribunal, conduct the legal practitioner’s case
in a manner which maintains the fairness, integrity and efficiency of those proceedings and which is
consistent with due process.
 A legal practitioner must comply with all applicable laws and practice directions in the conduct of the legal
practitioner’s case.
Further rules eg. Responsibility for client’s conduct

Lawyer’s duty to other lawyers LPPCR, rr

7, 27
 7: To each other- a) A legal practitioner must always accord to another legal practitioner the proper respect
due to the latter as a member of a noble and honourable profession. (b) A legal practitioner must deal with
another legal practitioner in good faith and in a manner which is dignified and courteous, so that the

9
 matters on which they have been instructed can be properly and satisfactorily concluded or resolved in the
best interests of their respective clients. (c) A legal practitioner must not deal with another legal
practitioner in any manner that may adversely affect the reputation and good standing of the legal
profession or the practice of law in Singapore.
 27: In general - (a) A legal practitioner involved in any court proceedings (whether as a counsel, a witness or
otherwise) must relate to another legal practitioner in a manner which promotes the administration of
justice. (b) A legal practitioner is responsible to an opposing legal practitioner for maintaining due process
and promoting the administration of justice.

Lawyer’s duty to other persons: (a) A legal practitioner who deals with any person must, regardless of LPPCR, r 8
whether that person is involved in any matter with which the legal practitioner is concerned, be honest and
courteous, and behave in a manner befitting the legal practitioner’s professional standing. (b) A legal
practitioner must behave in a manner consistent with the public interest. (c) A legal practitioner must treat
with fairness any person who is not represented by another legal practitioner.

1.4.5 Principle distinguishing interlocutory and trial proceedings

Conduct of interlocutory proceedings (vs conduct of trial proceedings)

 Hearing in chambers
 Applications by summons
 Hearing based on affidavit evidence
No right of public access. However, court has discretion to permit interested parties to attend (LHL [8]; Supreme Court PD,
para 13A; State Courts PD, para 113).

Purposes of interlocutory proceedings

 To obtain immediate remedies (eg, injunction; interim payment)
 To protect one’s position (eg, defendant asking for security for costs; plaintiff asking for Mareva order to prevent
dissipation of defendant’s assets or Search order to preserve evidence) [overlaps with 1]
 To bring about early termination of proceedings (eg, for lack of jurisdiction, arbitration clause, baseless claim or
defence)
To prepare for trial (eg, pleadings, discovery, affidavits of evidence of witnesses; setting down)

1.4.6 Principle of access to justice

 Who to commence action?

 Vexatious proceedings
 Right of appeal? Prohibitions and leave to appeal

Lawyer’s duty to facilitate public access to justice via Pro Bono work and lawyer doing the best for their LPPCR, r
client (see rule below) 4(e)

Lawyer’s duty to facilitate client’s access to justice (through honesty, competence and diligence) LPPCR, r 5

Right of access to justice Bremer

(1981)
 Every civilised system of government requires the state to make available to all its citizens a means for
UKHL
the just and peaceful settlement of disputes between them as to their respective legal rights. The means
are courts of justice to which every citizen has a constitutional right of access in the role of P to obtain
the remedy to which he claims to be entitled. Whether or not to avail himself of this right of access to

10
 the court lies exclusively within P’s choice. If P chooses to do so, D has no option in the matter; D’s
subjection to the jurisdiction of the court is compulsory. It would stultify the court’s role if it were not
armed with power to prevent its process being misused in such a way as to diminish its capability of
arriving at a just decision of the dispute. (147) (Lord Diplock)

1.4.7 Jurisdictional principles

 Disputing that the court has jurisdiction: eg. Is it a matter which the Singapore Court may adjudicate upon? (SCJA,
SCA and Rules of Court) > Principle (a) : Link to Singapore as statutorily defined.
 Contending that the court should not exercise jurisdiction (eg, forum non conveniens, multiplicity of suits, arbitration
or mediation clause) > Principle (b): Propriety of exercising jurisdiction
 Relying on ADR agreement (Arbitration Act, international Arbitration Act, Mediation Act)
 Jurisdiction of the various courts (SGSCT, SGMC, SGDC or SGHC) > Principle(c): Link between amount of claim/value
of subject matter to the level of court
 Transfer of proceedings

1.4.8 Principle of disclosure of information

 Parties expected to back up their cases Pinsler

 Disclosure of information between the parties (primarily relevant documents and oral evidence in slide 29
affidavits of the evidence in chief (AEICs)) enables the court to decide case properly.
 Critical to full argument and proper cross-examination at trial.
 Disclosure often has an important impact on amicable resolution of the case because parties become
aware of the cases they face.
 Disclosure to the court in ex parte (‘one-sided’) applications and principle of utmost good faith (eg,
application for service out of jurisdiction; extremely urgent injunction).
o Hardly used because > you can’t win in this situation because if you don’t disclose, the D can always
apply to set aside the injunction. Also have to pay him all the costs, it will be very costly for you

1.4.9 Principle of expedition > avoidance of delay

Power to make orders and give directions for just, expeditious and economical disposal of proceedings O 34A r
1(1)
 Notwithstanding anything in these Rules, the Court may, at any time after the commencement of any
proceedings, of its own motion direct any party or parties to those proceedings to appear before it, in
order that the Court may make such order or give such direction as it thinks fit, for the just, expeditious
and economical disposal of the cause or matter.

Power to extend or abridge time (eg. When client is uncontacble when overseas) O 3 r 4(1)
 The Court may, on such terms as it thinks just, by order extend or abridge the period within which a
person is required or authorised by these Rules or by any judgment, order or direction, to do any act in
any proceedings.

Lawyer’s duty to assist in the administration of justice LPPCR, rr

4, 9

1.4.10 Principle of compensation by costs

‘Party and Party’ (‘P & P’) costs Pinsler

slides 31-
 ‘If the plaintiff is successful, he is compensated for the legal expenses that he incurred in having to

11
 bring his case before the court in order to obtain redress for the wrong that he suffered at the hands 35
of the defendant. If the defendant is successful, he is made whole [compensated] for the legal costs that
he incurred in having to resist the baseless claim brought by the plaintiff against him.’ Deepak Sharma v
Law Society of Singapore [2017], at [40].
 But full compensation not normal as there is a distinction between what the party is awarded and the
amount he must pay his lawyer: difference between ‘party and party costs’ and ‘solicitor and client
costs’.
Key principle: Compensatory principle also promotes access to justice:
 [It] enhances access to justice by ensuring that successful litigants are not put out of pocket by having to
seek recourse through the legal system in order to vindicate or defend their rights, as the case may be. A
litigant with a meritorious cause may be deterred from participating in litigation altogether if he knows
that he will not be able to recover his legal expenses even if he prevails at the close of the proceedings.
[Deepak Sharma, at [41].]
 Alternative – indemnity: Also see Then Khek Koon v Arjun Permanand Samtani [2014], at [165]:
o The incidence of costs in civil litigation is governed by the indemnity principle. The indemnity
principle gives the winning party in civil litigation an indemnity in respect of his costs from the
losing party, subject always to an overriding discretion vested in the court.
o Defining the indemnity in this way operates ex post to protect a litigant who conducts the litigation
reasonably but nevertheless loses by limiting his liability for costs to reasonable costs. The
indemnity thus defined also operates ex ante as an assurance to all potential litigants that their
worst-case risk if they lose will be limited to reasonable costs. That mitigates the indemnity
principle’s deterrent effect and enhances access to justice.
 Caution against over extending of barriers: ‘unmerited barriers in the path of recovering reasonably
incurred costs might well have the chilling effect of deterring parties, in future, from legitimately
pursuing or defending their rights.’ [Ng Eng Ghee v Mamata Kapildev Dave [2009] at [1].]
c.f. Costs may be punitive in nature
 Cases O 59 r 7 (costs against a party) and r 8 (costs against the lawyer)
 Other rules and practice directions that specifically provide cost orders for non-compliance
(SIDE NOTE: pro bono can still claim costs)

Distinction between “party and party” costs (P&P costs) and “solicitor and client costs” (S&C costs) Pinsler
slide 33
 Therefore a successful party would ordinarily be entitled to claim costs from his opponent (commonly
referred to as party and party costs) and both parties would have to pay the bills of their respective
lawyers (generally known as solicitor and client costs)
Pinsler
 The two primary concerns of party and party costs are liability and quantum. Once a party has been PCP
adjudged liable for costs in respect of any matter arising in the proceedings, the issue of quantum arises 26.006
for consideration
 Solicitor and client costs are the fees and costs payable by the client to the solicitor pursuant to contract.
How does a lawyer charge? (via billable hours with the lawyer!!)
 Because of the compensatory principle, a party can never obtain more costs than he pays his lawyer.
[Mohamed Amin bin Mohamed Taib & Ors v Lim Choon Thye & Ors [2011], at [24].]
 In practice, P & P costs are significantly less than S & C (Solicitors costs) costs. Therefore, not really
compensatory. Contract doesn’t say the party & party costs, this is determined on the basis of appendix
G. Only P & P cost is claimable from the losing party
 CREATES A TENSION: are you suggesting that law firms are OVERCHARGING!!?
 Guidelines on P&P costs: Appx G of SupCt PDs (Luminus folder). > can be billable hours or a lump sum >

12
 usually is half.

Complex calculation of costs:

 Costs may be agreed between the parties, fixed by rules or assessed by the court. Pinsler
 Fixed costs may be specific or within a scale (range) slide 34-
o Eg of specific costs: Filing a writ in Supreme Court ($1000/ $500 [depends on amount of claim]); DC 35
($150) and MC ($100) [Appx B, Item 1 & O 91 r 1]
o Appx B includes 100+ items of fixed costs (court fees).
o Eg of specific costs : Where writ is served and defendant pays amount claimed: HC ($2,000), DC
($1500), MC ($800) [O 59, Appx 2, Pt 1(1)(a) read with Pt 2 para (a).]
 Baseline is that the costs are complicated.
 Assessment by the courts:
o The assessment depends on the court involved and the nature of the application.
o For example, the application for an amendment of a writ of summons or pleading would ordinarily
cost very much less than an application for an interim injunction primarily because of the distinction
Pinsler
between the amount of work and complexity involved in these matters. With regard to the
PCP
application for the amendment, the court would normally order the applicant to pay the costs if it
26.009
was occasioned by him. Concerning an interim injunction to restrain an activity until trial, an
appropriate order (depending on the facts and issues) may be costs in the cause.
o In particularly complex or extensively litigated matters, the court may consider that the more
thorough process of taxation is appropriate.

1.4.11 Principle of finality

 Res judicata (cause of action estoppel, issue estoppel, res judicata in the extended sense) Res judicata is Pinsler
based on the important principle of public policy that a cause of action, or an issue necessary to the slides at
resolution of a cause of action, which has been finally and conclusively adjudicated on the merits by a 36
court of competent jurisdiction may not be re-litigated by the same parties. [Lee Tat v Management
Corporation]
 Appeals in interlocutory processes and trials > there is always a right to appeal - Key is what happen during
the proceedings which we will examine below
 Res judicata in the broad and narrow sense
o If action or issue has been previously determined by a court, it cannot be relitigated (res judicata in the
broad sense: cause of action estoppel and issue estoppel). Eg, P sues D for breach of contract. P loses.
Cannot bring same action again. Also cannot raise a decided issue in that litigation (eg, capacity to
contract).
o If matter could have been raised and decided in an earlier action, then cannot be brought up again (res
judicata in the narrow sense). > if not it can go on forever Eg, P sues D for breach of contract but not in
tort. P loses case. P not entitled to sue in tort if he could have raised tort in the earlier action.
o Link to striking out > if a party raises an issue that is governed by res judicata, the other party may
request for a striking out
o The key to res judicata in a narrow sense is that if it could have been brought on multiple cause of
action, then it must be brought in one action to prevent wastage of resources. That’s why it is
important in the statement of claims that you need to list down all the causes.

1.4.12 Principle of settlement

A dispute should be resolved fairly and justly according to the needs of the parties and the circumstances Pinsler
PCP

13
of the case. Chapter 2
 The judicial determination of a dispute normally ensures that the principles of justice are properly applied
and that the parties receive the legal benefits offered to them. However, litigation should only be resorted
to if necessary as it may not provide the desired outcome, is often costly, time-consuming, and may
require an emotional commitment beyond the expectation of the client. The lawyer is duty-bound to
effectively assess the issues and properly evaluate the options in order to secure the client’s best
interests. A variety of considerations have to be taken into account in determining whether litigation is a
viable option.
 The amicable resolution of a dispute fairly reached through negotiation, mediation or other mechanism is
often preferable to its determination by litigation. Such an outcome is advantageous primarily because the
parties achieve a level of satisfaction without having to suffer the vulnerabilities of litigation. At the same
time, the court’s resources may be more properly applied to cases which are more difficult or even
impossible to settle.
 The amicable resolution of a dispute continues to be a priority even after legal proceedings are
commenced. Apart from negotiation, mediation and other dispute resolution processes, the rules of court
and practice directions provide various mechanisms which promote this objective.
Pros and cons
Pinsler at
 Pros:
slide 37
o Within party control.
o Consensual resolution may be preferable to legal remedy which is not ideal (eg employer and
employee may renegotiate contractual terms to continue relationship).
o Avoidance of prohibitive costs of litigation and adverse publicity.
o Saves time, effort, anxiety and the avoids the risk of an adverse decision. Settlement resolves the
case more quickly.
 Cons:
o May not be fair settlement because of ineffective negotiation or improper pressure (such as the
other party’s threat to do something) or the costs of litigation.
o Law may have provided a more just result through application of just principles.
o Settlement does not advance or develop the law.
o If the case involves public interest issues or uncertainty in the law, a judicial determination would
be appropriate.
Lawyer’s duty to client in respect of ADR LPPCR, r
17
 A legal practitioner must act in the best interests of his or her client, and must charge the client fairly for
work done. (r 17(1))
 A legal practitioner must:
o Explain clearly and properly to his or her client a proposal of settlement, or any other offer or
position taken by any other party, which affects the client. (r 17(2)(c))
o Where his or her client does not understand English, ensure that any offer or proposal of
settlement is explained to the client in a language or dialect that the client understands. (r 17(2)(d))
o In an appropriate case, together with his or her client:
 Evaluate whether any consequence of a matter involving the client justifies the expense of, or
the risk involved in, pursuing the matter; and (r 17(2)(e)(i))
 Evaluate the use of alternative dispute resolution processes. (r 17(2)(e)(ii))
o Advise his or her client on the relevant legal issues in a matter, to enable the client to make an
informed decision about how to act in the matter. (r 17(2)(f))

Rules of Court and Practice Directions encourage settlement

14
 O 22A (offer to settle)
 O 22 (payment into court)
 O 59 r 5(c) (court shall consider attempts at ADR in awarding costs)
 Supreme Court PD, Part IIIA (ADR)
 State Courts PD, Part VI (ADR)

Presumption of ADR in State Courts State

Courts
 A “presumption of Alternative Dispute Resolution” applies to all civil cases. For this purpose, the Court:
PD, para
o encourages parties to consider ADR options as a “first stop”, at the earliest possible stage; and
35
(para 35(9)(a))
o will, as a matter of course, refer appropriate matters to CDR or other forms of ADR. (para 35(9)(b))
o Presumption of ADR applies to other cases: (1) those which are subject to the simplified process
under Order 108 of the RoC and (2) those which are not subject to that process. [Procedure is there
to state how to start an action]
o Simplified process under Order 108 (PDs 35(13)-(15)) > not all cases will go through. Usually for
those under $60,000
o Cases not subject to simplified process (PDs 35(16)-(18))
 “ADR should be considered at the earliest possible stage. Court-sponsored ADR services give the parties
the opportunity to resolve their disputes faster and more cheaply compared to litigation. These services
are collectively termed “Court Dispute Resolution” (CDR) … and … are convened under Order 34A of the
Rules of Court (PD 35(2))
o They have their own practice directions
o Supreme court doesn’t get involved in mediation, the parties are really trying to settle
o But in the state courts, CDR takes centre stage.
 CDR involves mediation (see PDs 35(4) and 41) or neutral evaluation (see PDs 35(4) and 42). > see which
parties’ case is stronger
 Parties may also resolve dispute by private mediation or the Law Society’s Arbitration Scheme (see PD
35(3)).

Pre-action protocol
(See section 2.3 below)
 The objective is settlement but it is a specific procedure. Parties will write letters to each other stating their
respective cases. This is before the commencement of proceedings
 Extremely important to have these protocols to standardise
 Cannot start at action without a pre-action protocol
 Non-injury motor accident claims (“NIMA”) (St Ct PD, para 37 and Appx C)
 Personal injury claims (St Ct PD, para 38 and Appx E)
 Medical negligence claims (St Ct PD, para 39 and Appx D)
 Defamation claims (St Ct PD, para 143 and Appx K)

Simplified process in SGMC

(See section 2.4 below)

15
1.5 Letter of demand

Lawyer can only demand things recoverable by due process of law LPPCR, r
8(4)
 When a legal practitioner issues a letter of demand, the legal practitioner must not demand in the
letter anything that is not recoverable by due process of law.

Lawyer must not threaten criminal or disciplinary proceedings: Where any civil claim made against a LPPCR, r
person, by a client of a legal practitioner, remains unsatisfied, the legal practitioner must not threaten the 8(5)
institution of any criminal or disciplinary proceedings against the person.
 Eg, cannot threaten person that he will be reported to police even if potential criminal proceedings (eg
where fraud is alleged).
 E.g. cannot state that unless he pays he will be prosecuted or will go to prison.
 May state that recipient is obliged to comply with an order of court or statutory provision and that
failure would constitute an offence and/or result in a penalty.
 There is a certain threshold that the lawyer cannot cross – as the law does not allow anything that is
akin to intimidation
Note: Lawyer can state that recipient is liable to criminal or contempt proceedings.

Example: Letter of Demand

Dear Sir
1. We act on behalf of James Lim.
2. We are instructed by our client that pursuant to an exchange of email communications between our client and
yourself on the 10th September, 2019, you agreed to purchase a painting (“Roses in a Field” by the artist, Rosemary Tan)
from our client for the price of $50,000. The said painting was delivered to you personally on 20 th September, 2019. In
accordance with the terms of the agreement you were legally obliged to pay the said price to our client by 1 st October
2019.
3. We are informed by our client that you have yet to pay the said amount which has now been due to our client for over
3 months.
4. We have instructions to commence legal proceedings against you for the amount of $50,000 as well as interest and
costs unless our client receives the said amount by

16
1.6 Without prejudice communications

Without prejudice privilege No admission is relevant if it is made: Evidence

Act, s
 Upon an express condition that evidence of it is not to be given; or (s 23(1)(a)) why would you exclude
23(1)
such evidence since it is quite weighty on the issue – this is because it is meant to encourage settlement,
the law is trying to achieve this
 Upon circumstances from which the court can infer that the parties agreed together that evidence of it
should not be given. (s 23(1)(b)): Parties agree together that evidence not be given
 one needs to look at the state of mind of the party at the time he writes the letter because the whole point
of s 23 is to ascertain the intention of the party concerning his communication. Pinsler
Pre-requisite: Must be an “Admission” is defined by s 17(1) of the EA. Normally reliable because it is made EALP
against one’s own interest. Admissible under s 21 of EA. 15.007

Note: For s 23(1)(a), the words “without prejudice” are usually used: is generally regarded as indicative of the
intention to settle, it is not an absolute criterion [Wong Nget Thau v Tay Choo Foo [1994]]. However, the
court will scrutinise whether the letter evinces a true intention to settle and is not intended to avoid
disclosure.
 The policy of the courts and legislation in common law countries in recognising the ‘without prejudice’
rule is to encourage parties engaged in disputes to try to settle their disputes as far as possible without
resorting to litigation. Conversely, the parties should not be discouraged in genuine attempts at peaceful
resolution by any trepidation that their communications during negotiations may be used to their
prejudice in due course during legal proceedings.
 The other policy and rationale for the rule is that there is an implied agreement between the parties to
not refer to settlement negotiations during proceedings.
Notes:
(1) Section 23 of the EA concerns admissions that are not admissible at trial. This is clear from s 2(1) of the
EA which states that Parts 1-3 do not apply to affidavits (ie, interlocutory affidavits). Therefore, s 23 does not
apply to the admissibility of admissions in interlocutory proceedings.
(2) At common law, without prejudice communications can be admitted in interlocutory proceedings as
long as they are not used to prove the admission. For example, where they are relied on not for any
admission but for showing something else such as delay. Here the court is not looking at the content of the
communication but the fact that it was made. The court does not taken into account the admission in the
communication (it ignores it) for the purpose of the application. In Family Housing v Michael Hyde [1993]. a
party was permitted to rely on without prejudice communications to challenge an application to strike out a
case for delay. That decision established an exception to the without prejudice rule where a party seeks to
explain that the delay was caused by the settlement negotiations. [Another exception which we did cover in
class is where there is an issue over whether the parties have settled their case. The court must look at the
settlement communications for this purpose.]
(3) Arguably, the common law is not inconsistent with s 23 because s 23 applies to trials.

Justifications for without prejudice privilege: (1) Public policy of settlement and (2) implied agreement Mariwu
(2006)
 S 23 is a statutory enactment of the common law principle relating to the admissibility of “without
SGCA
prejudice” communications based on the policy of encouraging settlements. [24]
 The without prejudice rule has 2 justifications:
o The public policy of encouraging parties to negotiate and settle their disputes out of court.
An implied agreement arising out of what is commonly understood to be the consequences of offering or

17
agreeing to negotiate without prejudice. [24]

Generally, communications between parties which are made on a “without prejudice” basis in the course Quek
of negotiations for a settlement are not admissible. Presumption of without prejudice privilege where the Nicky
words “without prejudice” are used, places burden on opposing party (2009)
SGCA [22]
 Even though a piece of correspondence is not marked “without prejudice”, it may still be excluded if it is
made in the course of negotiations to settle a dispute. [22]
 However, where the correspondence concerned is in fact marked “without prejudice”, the presence of
these words would place the burden of persuasion on the party who contended that these words should
be ignored. [22]

Certainly, the courts will not allow the use of the 'without prejudice' terminology to cloak the Sin Lian
communication with privilege if the real purpose is not to settle but to protect it from disclosure . Heng
Nevertheless, where a communication includes words of express reservation such as 'without prejudice', it (2007)
is for the party challenging the privilege to prove to the satisfaction of the court that the words should not SGHC
be given their intended effect.
If there is no ‘without prejudice’: court should have a neutral mind and observe all circumstance to see if
the without prejudice arises, they can infer that there is an intention to settle between the parties (or the
same thing that it should be taken out of court). This is made clear by s23(1)(b)
 The words “without prejudice” would place the burden of persuasion on the party who contended that
the relevant words should be ignored. [60]
 In the absence of such words, I consider that the court should approach the inquiry with no predilection
one way or the other, and should examine all the circumstances to determine whether the privilege
arises. [60]

Condition 1: Without prejudice privilege operates only if there is an admission against the maker’s Evidence
interest - Where one party enters into negotiations with another to explore the possibilities of settlement, it Act, s
makes sense of course to attempt to convince the opponent of the weaknesses of his position; but it is not 23(1)
unusual – even common – to seem to acknowledge possible weaknesses in one’s own case.
 No admission is relevant… (s 23(1))
 An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or
relevant fact, and which is made by any of the persons and under the circumstances hereinafter
mentioned. (s 17(1))

 At common law, without prejudice privilege applies only to admissions against the maker’s interests. UOB
(Similarly, under the EA.) [111] (2017)
SGHC

Condition 2: Without prejudice privilege operates only if there is a dispute: The privilege cannot be Sin Lian
invoked where no dispute in fact exists. [40] Heng
(2007)
Note: If the dispute has been settled, the privilege no longer operates and evidence can be adduced in an
SGHC
application for summary judgment.

Dispute can be as to liability or quantum > i.e. where liability is admitted, there can be without prejudice Sin Lian
communications regarding quantum. This is because the policy reasons for w/p privilege <see Mariwu Heng
above> still apply with the same force since it is just as important to the avoidance of the litigation of such (2007)
matters. SGHC

18
 Even assuming there was an admission as to liability, there could well remain a substantial dispute over
the amounts payable. The privilege would apply to negotiations on quantum in such circumstances. [48]
Even though 1 party may have admitted liability, as long as there remains a dispute as to the extent of that
liability, the policy interests are implicated. [50] If the negotiations in respect of liability succeed, but those
as to quantum break down, and the matter proceeds to trial for an assessment of damages, it would be
patently unfair for evidence of such negotiations to be admitted. [52]
Note: This means that if liability and quantum are not both settled, there remains a dispute (as to quantum),
and the privilege operates.
(-) Fact application at [39]: There was no admission of liability here as the letters The letter was in substance
intended to shift the discussion to a new phase directed at finding a commercial solution to the impasse.
And either way it would have been protected by the first shot principle

Condition 3: Without prejudice privilege only operates on communications made in the course of UOB
settlement (and not pursuant to settlement) Where a communication was made in direct response to an (2017)
invitation to negotiate a settlement, it would form a basis for the court to find that the communication SGHC
forms part of settlement negotiations unless the contrary appears.
Facts: P sues inter alios D1–3. P, D2 and D3 settle. A term of settlement was for D2 to file an affidavit about
D1’s involvement. D1 applies for discovery of settlement communications between P, D2 and D3.
Held: (- for W/P) Discovery not ordered (as litigation privilege operated).
 Without prejudice privilege does not subsist because the affidavit was made pursuant to, and not in the
course of, the settlement negotiations. [113] The settlement agreement contemplates that the affidavit is
to be created after the settlement agreement is concluded. [110] Without prejudice privilege generally
does not protect the product of the settlement negotiations, ie the settlement itself. [109]

EXCEPTION 1- ADMISSION OF LIABILITY = no W/P In relation to condition (2): Even where a communication seems to
form part of settlement negotiations, it remains open to the party seeking to rely on the communication to show that it
contains an admission of liability such that there was no longer a dispute between the parties If that is shown,
“without prejudice” privilege will not apply as “[t]here is no legitimate policy interest to protect appeals for leniency
or mercy” [Sin Lian Heng at [44]] To constitute an admission of liability, the debtor must clearly acknowledge his liability.
A mere admission against a party’s interest (ie, a statement which suggests an inference detrimental to his case) is not
necessarily also an admission of liability. The latter refers to a situation where a debtor had effectively “[thrown] his
hands up and [pleaded] for mercy”, such that it could be said that “the “flag of truce” [had given] way to the “white flag
of surrender”” (Sin Lian Heng at [44] and [45]). As with any admission, an admission of liability must be unequivocal.

19
 Examples:

EXCEPTION 2: To determine if compromise reached and the terms of the agreement

One key exception (which is crucial to the determination of the present appeal) is where “without prejudice”
communications are admitted to determine whether there was a compromise reached and, if so, what the terms of that
concluded compromise agreement were [Quek Nicky at [24]]
(- W/P did not apply at [25] of Quek Nicky) the First Letter and the Second Letter should be admitted as they were
necessary to establish (when read together with HLS’s 28 August Letter): (a) whether the parties had reached an
agreement to vary the terms of the original S&P Agreement; and (b) the terms of the said agreement. The first letter was
an offer to pay 94% of the purchase price while 2 nd letter was a reply that this should be made by a stipulated timeline.
Hence these 2 letters arguably should be admitted

Q: whether parties can admit “half a letter” has not been decided before . There is no discussion of principle on this
point. But in Sim Lian Heng Menon JC at [51] cited Robert Walker LJ stating that it would be undesirable to “dissect out
identifiable admissions and withhold protection from the rest of without prejudice communications” - Whether you can
redact must depend on the facts. Ie, is it possible to separate the privileged communications from other content?

Summary of the principles: Sin Lian

Heng
(a) “Without prejudice” privilege would apply to the communications if they were part of a course of
settlement negotiations. Whether they should be considered part of a course of settlement negotiations
depended on both their context and their content.
(b) If the communications contained a clear admission of liability such that no dispute remained, they could
not be considered to be part of a course of settlement negotiations.
(c) However, if the communications contained a clear admission that some liability existed, but a dispute
remained as to the quantum of the liability, they could still be considered to be part of a course of
settlement negotiations and thus protected by “without prejudice” privilege.

1.6.1 Alternative W/P - Opening shot principle: NOT S23 w/p but common law principle

At common law, without prejudice privilege protects opening shot (letters designed to open such Sin Lian
negotiations, or letters or discussions which attempt to convince the opponent of the strengths of the Heng
other's position, but which also recognize weaknesses, in the hope that some settlement can be effected (2007)
once each other's positions are on the table at [40) Key conundrum: because it does not actually come within
20
 s23 + you can’t apply (b) because there is no relationship yet, you can’t infer that there was an intention to SGHC
settle
 You rarely have without prejudice on a letter of demand, because it is critical and you want it to be shown
in court that you have made a demand before suing, also it doesn’t need to be as such, it can be made in
the later letters
 Also strategically not appropriate > you want to show that the client’s rights have been abused.
 Eg, In painting case (above), what if P or his lawyer writes first letter (the initiating communication)
expressing his willingness to accept $25,000 in full and final settlement.
 Neither s 23(1)(a) or (b) appears to be satisfied. But according to Sin Lian Heng, the first communication
may be privileged.
Facts: Parties held meetings. P then wrote letter offering settlement without expressly reserving privilege.
Held: First letter protected at common law > the letter was in fact intended to shift the discussion to a new
phase directed at finding a commercial solution to the impasse. Therefore, the letter clearly fell within the
protection afforded by the first shot principle, attempting to compromise disputes as to quantum.
 Negotiations must begin somewhere, and if the public policy is to encourage settlement, then the initiating
communication must itself be protected from disclosure in the event that settlement is not reached.
Otherwise, it would have a chilling effect on those contemplating the initiation of negotiations. [32]
 it did not contain an admission of liability. Rather, it was written to initiate negotiations on reaching a
commercial solution acceptable to both parties. [47]
Note 1: The first letter was not protected by the Evidence Act, s 23.
Note 2: Strictly speaking, the first letter was not the opening shot, as there were already meetings. Also, this
happens quite often because once you go to a lawyer, it takes on an adversarial nature. Parties will want to
try and work out first SO you could say that s23 actually applied if you take into account the previous
discussions between the parties

1.6.2 W/P in Multiparty litigation

** S23(1) does not cover multiparty litigation, so must resort to common law At common law, without Rush
prejudice privilege protects communications between some parties, even if other parties are unwilling to (1988)
settle UKHL,
approved
Facts: P sues D1 and D2. P and D1 settle. D2 applies for discovery of settlement communications between P
in
and D1. Held: (+) W/P applies Discovery not ordered.
Mariwu
 In multi-party litigation, not infrequently, 1 party takes up an unreasonably intransigent attitude that (2006)
makes it extremely difficult to settle with him. It would place a serious fetter on negotiations between SGCA [28]
other parties, if they knew that everything that passed between them would ultimately have to be
revealed to the 1 obdurate litigant. (1305) (Lord Griffiths)

Parties may agree to waive the protection accorded by “without prejudice” privilege but without UOB
prejudice privilege must be waived by all parties (2017) v
Lippo
Facts: P sues inter alios D1–3. P, D2 and D3 settle. D1 applies for discovery of settlement communications
SGHC
between P, D2 and D3. This agreement referred to an affidavit that had been affirmed by D2 (on behalf of
himself and D3) concerning D1’s role in the alleged wrongful conduct that was the basis of P’s action  This
can be viewed as a settlement agreement. D1 applied for specific discovery of this affidavit and this
application was resisted on the basis of WP privilege and litigation privilege.
Held: Discovery not ordered (as litigation privilege operated). (-) But WP did not apply for other reasons

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  Without prejudice privilege belongs properly to both parties to settlement negotiations. There is no issue
with P independently asserting without prejudice privilege over the affidavit, even if D2 and D3 do not do
the same. [107] Allowing any 1 of the disputants to unilaterally disclose the documents would defeat the
aim of protecting the safe haven of confidentiality under the privilege. [106]
 Although the case was decided on the basis that litigation privilege operated so as to preclude disclosure
of the affidavit, the court considered whether the affidavit was also subject to WP privilege. Negotiating
parties can rely on WP privilege in such circumstances. On the facts, WP privilege did not apply because
affidavit made pursuant to rather than in the course of settlement negotiations. [See note.]. Without
prejudice here was misconceived and hence did not apply. If you do this affidavit, we won’t proceed
against you
o Also the affidavit did not contain any admissions by D2 against his or D3’s interest although it was
made with reference to D1 [111]-[112].
o *The settlement agreement itself contemplated the creation of the affidavit after the conclusion of the
settlement agreement. Therefore, the affidavit could not be regarded as containing admissions in the
course of the negotiations. The affidavit merely set out the final outcome of the negotiations and
referred to the first defendant’s involvement in and liability for the alleged wrongful conduct.

1.6.3 Example scenarios for without prejudice

Would the following communications (in the painting case) be excluded at trial pursuant to s 23 of EA?
 D replies in writing that he never agreed to buy the vase and denies liability. (not covered because it is not an admission)
 D replies in writing admitting that he owes the sum claimed ($50,000). There is no longer a dispute here. There is an admission
though. P can get summary judgement, there is not going to be a trial. If someone said that he has done something, that’s what
it should be
 D replies that the vase has cracks and is only worth $25,000. He states that he is willing to pay this amount in full and final
settlement. There is a dispute and there is an admission. The question is whether he had used the words w/o prejudice.
o If yes, most likely covered under s23, unless P can argue that it should be ignored which is almost impossible since there is
clearly an intention to settle.
o If no, court will apply a neutral mind and see whether parties intended and infer whether there is a settlement eg. See from
the later correspondence whether there was indeed progression on settlement
 What if P included offer to accept a lesser amount in his initial letter?
o This is unusual because you don’t really put an offer in your letter of demand
o Must use Sim Lian Heng BUT it involves preceding discussion between the parties. Can distinguish or analogise
o Might follow the approach in part c) as well > whether the words without prejudice

1.7 Evaluation/ additional pointers – lawyers must evaluate case with client r17 of LPPCR

Lawyer must evaluate case with client LPPCR, r 17

 A legal practitioner must act in the best interests of his or her client, and must charge the client fairly for
work done. (r 17(1))
 A legal practitioner must:
o Explain clearly and properly to his or her client a proposal of settlement, or any other offer or
position taken by any other party, which affects the client. (r 17(2)(c))
o Where his or her client does not understand English, ensure that any offer or proposal of
settlement is explained to the client in a language or dialect that the client understands. (r 17(2)
(d))
o In an appropriate case, together with his or her client:
 Evaluate whether any consequence of a matter involving the client justifies the expense of, or
the risk involved in, pursuing the matter; and (r 17(2)(e)(i))

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  Evaluate the use of alternative dispute resolution processes. (r 17(2)(e)(ii))
 Advise his or her client on the relevant legal issues in a matter, to enable the client to make
an informed decision about how to act in the matter. (r 17(2)(f))
READ - Refer to JP’s new article: Lawyer can say no to proceed with a case even if client insists because it is
against the administration of justice. Rule 17(1) says that lawyers owe a duty to the court as well. Have to
weigh judge’s duty to the court and duty to the client
Costs consequences: SGCA ordered the law practice (which initiated an appeal without having properly Lam Hwa
evaluated the merits of the case with its clients) to pay indemnity costs to the respondent in respect of the (2014)
proceedings before the Court of Appeal and the High Court SGCA
Facts: D’s lawyers appealed without properly evaluating case with D.
Held: D’s lawyers ordered to bear P’s costs on indemnity basis. [42]
Note: The consequences for the lawyers were procedural, not disciplinary.

An incredible/exceptional case – disproportional cost to gains Facts: P sued D in the SGMC and settled at Lock
$187.50 with costs and disbursements. Due to disputes over $60.35 in disbursements, parties appealed to Jonathan
the SGCA, by which time P’s lawyer’s fees ran to $150k. – should enable client to make an informed (2007)
decision SGCA
 This case should never have come this far. It would not, if the solicitors in this case had acted reasonably
in the interests of their clients. A dispute involving a puny sum of about $60 escalated into contests of
wills between two solicitors, resulting in wastage of judicial time and unnecessary expenditure in terms
of court fees and disbursements which exceeded $100,000 even before the date of this hearing. We are
troubled by this. (Appendix, [6])
 This is an incredible case. We have not seen one like it in all our years in the law. It has brought no credit
to counsel involved and the legal system as a whole. All that P wanted from D was $375 being $285 for
the cost of repairs to his motorcycle and $90 for loss of use, for which he eventually agreed to settle at
$187.50. For this, he was put at risk of having to pay a sum in excess of $100,000 in legal fees. (Appendix,
[7])

Principle: Lawyers have a professional obligation to ensure that a proper risk-benefit evaluation is Singapore
undertaken at each stage of legal proceedings. (at [175]) > has effect on costs orders Shooting
Associatio
This obligation is also codified in r 17(2)(e)(i) of the Legal Profession (Professional Conduct) Rules 2015 (S
n and
706/2015) (“the LPPCR”), which states that a legal practitioner “must, in an appropriate case, together with
others v
his or her client … evaluate whether any consequence of a matter involving the client justifies the expense
Singapore
of, or the risk involved in, pursuing the matter”.
Rifle
Facts: In the present case: the present litigation was disproportionately conducted by SRA in several ways. Associatio
 Firstly, the claim was ultimately ill-founded for lack of actionable loss or damage. Most strikingly, even n [2019]
if SRA had succeeded in the conspiracy claim, the most it stood to recover, on its best case, was a sum SGCA
of $63,200, far below the threshold for a claim to be mounted in the High Court.
 Secondly, the litigation was also disproportionately conducted by SRA because of its failure to pursue
more cost-efficient alternatives (eg. a defective application to the High Court for declaratory relief)
 Thirdly, although SRA ultimately succeeded in defending SSA’s counterclaim for an indemnity in respect
of the cost of demolishing the Proprietary Range, the reasons courts have given for dismissing the
counterclaim are quite different from those which SRA offered hence no real controversy exists to
substantiate SRA’s application for declaratory relief
 Hence courts ruled that each party should bear costs due to the disproportionate manner in which the

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 litigation was conducted by SRA as well as the appellants’ deplorable conduct,.
 The law firm then put up a claim for conspiracy to injure but that was absolutely baseless. There was
too much desire for vindication and vengeance.
Hence, It is important to deduce whether the client wants a remedy and whether there is sufficient
evidence to support that remedy  You need have a bona fide remedy and you have an evidence for it>
then you have a right to go to court

 Spirit for r17 requires the advocate and solicitor to be more than a mere supplier of information when Pinsler
a decision needs to be taken. Although r 17 does not expressly refer to evaluation between the advocate Litigation
and solicitor and his client, it should be construed purposively to require the advocate and solicitor to and the
explain the developments and advise the client on the way forward. For example, it would not be right Client’s
for an advocate and solicitor to inform the client (the defendant) that the plaintiff has amended his right to
pleading to include another cause of action and not discuss the amendment of the defence in response. make an
Compliance with the letter rather than the spirit of r 17 should not absolve the advocate and solicitor informed
 A client who has a valid cause of action and who has complied with all necessary procedures may decide choice
to take his case through the courts even though the expense of doing so could exceed his claim. The [2008]
advocate and solicitor is only expected to act reasonably and sensibly in evaluating the client's position
and advising what his course of action should be. In this respect, the advocate and solicitor must take
reasonable care to effectively communicate his information and advice according to the needs of each
particular client
 The LP(PC)R recognises the right of the client to be properly informed and advised concerning the
possible consequences of any course of action. Eg. Rule 40 refers specifically to the advocate and
solicitor's responsibility to evaluate the case with the client. the legal environment is complex and clients
are utterly dependent on the information and advice provided by their lawyers." Accordingly, the
advocate and solicitor must advise his client as soon as possible of any risk or disadvantage which
ought to be taken into account in making an informed decision as to any possible or planned course of
action.
 The doctrine of informed choice goes to the heart of justice because the client's ultimate concern is
that he should take the necessary steps to achieve his objectives. The advocate and solicitor's critical
role in this respect must be matched by his responsibility to provide all the necessary information and
advice which the client expects in order to make the correct decision.

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