Discovery, Interrogatories, Pretrial Matters A. DISCOVERY 1.

What happens fr time when action commence to time when start drafting affidavits in chief. Pleadings have closed. Before drafting of affidavits in chief – what happens in litigation process Parties first have to discharge oblig of discovery Jurisdiction of courts First schedule para 12 - Discovery and interrogatories. 12. Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court. What must be disclosed O 24 r 1

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 documents which are or have been in his “possession, custody or power” Section 3 of the Evidence Act: definition of “document”   
 “any matter expressed or described upon any substance by means of letter, figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording that matter” (includes an inscription on a metal plate or stone or caricature)

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See also S 378(3) of the CPC – stored images and/ or stored audio material also documents Tape recordings (grant v southwestern and country properties 1975)/ Video recordings (senior v holdsworth; exp Independent television news ltd 1976)/ microfilms computer database (barker v Wilson 1980)/ copies of orig documents (dubai bank v galardari 1992)/ Business books (O24 rule 14) “Possession” refers to the right to possess a document. “Custody” refers to actual physical holding of a document irrespective of litigant's right to possession. Qn of fact “Power” - “a presently enforceable legal right to obtain from whoever actually holds the document inspection of it, without the need to obtain the consent of anyone else”.

per L. Diplock, Lonrho Ltd & Anor & Shell Petroleum Co Ltd Anor [1980] 1 WLR 627 • in this case when one party argd that other party shld prod docs in the possession of foreign subsidiary – UK comp had subsid in rodesia and south Africa – 100% owned. So doc in possession of those countries shld be in their power. Court held that not in their power because foreign comp had their own indep autonomous board so still needed their consent of foreign comp. strange? Court not prepared to go too far. cf. B v B [1978] Fam 181 • doc of comp in power of def director because he is entitled to inspect documents : - ambit of lw as to what is within ambit of party’s power stil in debate lonrho Applied in wee soon kim Anthony v VBS AG 2002 SGHC 206 • 14. I refer to Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627, a decision of the House of Lords. In this case, the plaintiff Lonrho wanted discovery of documents in the possession of the defendant Shell Petroleum’s subsidiary companies in Rhodesia and South Africa. The subsidiary companies refused to disclose the documents on the grounds that they cannot do that without ministerial licence. • 15. The question was raised whether the documents were in Shell Petroleum’s power for the purposes of O.24 of the Rules of the Supreme Court, which is similar to O.24 of our Rules of Court. • Lord Diplock who delivered the judgment of the court stated at p 635 (I)n the context of the phrase "possession, custody or power" the expression "power" must, in my view, mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be


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possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view, nothing in Order 24 to compel a party. and held that the documents were not in Shell Petroleum’s power because Shell Petroleum could not have access without the ministerial licence. 17. In the present case, the plaintiff, as a customer or former customer of the banks, would have a right to the documents, subject to the payment of copying and other related charges. 18. In the event the plaintiff who did not take steps to get the documents from the banks opposed the defendant’s efforts to get them from the same source. …40. Having examined the plaintiff’s objections and finding no merits in them, I granted the defendant’s application.

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diff test wrt what doc need to discover and what you are entitled to extract fr other side by means of application to court 1. court orders you to file a list of docs (client) – at time of fiing, test is -> 2. if you want more doc, file more doc appicaitn – court will apply a broader test in o24 r1.2 – this is the test is Peruvian – far broader than first test.

Order for discovery (O. 24, r. 1) 1. —(1) Subject to this Rule and Rules 2 and 7, the Court may at any time order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to give discovery by making and serving on any other party a list of the documents which are or have been in his possession, custody or power, and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party. (2) The documents which a party to a cause or matter may be ordered to discover under paragraph (1) are as follows: (a) the documents on which the party relies or will rely; and (b) the documents which could — (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case. (3) An order under this Rule may be limited to such documents or classes of documents only, or to only such of the matters in question in the cause or matter, as may be specified in the order. discovery is limited to classes of documents in O 24 r 1(2)  (a) document on which party relies / will rely

(b) document which could (i) adversely affect own case; or (ii) adversely affect / support another party’s case [compare Compagnie Financiere Et Commericale Du Pacifique v Peruvian Guano Co (1882) 11 QBD 55]

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Continuing Obligation O 24 r 8

Duty to discover continues throughout proceedings (O. 24, r. 8) 8. After the making of any order under Rule 1 or 5, the party required to give discovery under any such order shall remain under a duty to continue to give discovery of all documents falling within the ambit of such order until the proceedings in which the order was made are concluded.

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equivalent of the common law principle that giving discovery of documents is a continuing obligation discovery of new documents can be done by means of a supplemental list of documents counsel oblig to advise client ot file on last day if a lot of documents court in interest of justice has taken solicitor at task – if his client fails in discovery oblig. May win case based on withholding docs. Parties are open about disclosingerlvant docs. So solicitor must be careful abt discharging duties to court.

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basis for ordering discovery

Discovery to be ordered only if necessary (O. 24, r. 7) 7. On the hearing of an application for an order under Rule 1, 5 or 6, the Court may, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs. Dolling barker v merret 1990 Wallace smith trust v deloitte Haskins and sells 1997 purpose and nature of discovery

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kuah kok kim v Ernst and young 1997 1 SLR 169 Facts The appellants were minority shareholders of a company who agreed to sell their shares to the majority shareholders at a price to be valued. The respondents were instructed to carry out a non-speaking valuation and they valued the shares at $2.15 per share. The shares were then sold at that price. Subsequently, the appellants obtained a valuation from another accounting firm which valued the shares between $3.17 and $3.26 each and also gave a brief statement of the various methods of valuation which they had used and the methods which they considered inappropriate. The appellants requested the respondents to disclose their basis of valuation but the respondents refused, stating that they were not required to do so as they had agreed to a non-speaking valuation. The appellants commenced proceedings pursuant to O 24 r 7A of the Rules of the Supreme Court 1990 for preaction discovery of documents and working papers which the respondents had referred to or used in determining their valuation, to enable the appellants to decide whether there had been a breach of contract or negligence on the part of the respondents and thus to decide whether to bring an action against them. The assistant registrar granted the application but when the matter came before the trial judge, he allowed the appeal in part and varied the order to exclude working papers and documents created or prepared by the respondent. The appellants appealed. Held 55 We came to a different conclusion. Although the respondents were not required to give reasons for their valuation, this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter. Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings. 56 In deciding whether to order discovery of those documents, we were not concerned with the nature of a non-speaking valuation, but the purpose of the discovery, namely, that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents. If that was the case, then, the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding. ……..59 Again, this argument could not succeed. It was not the court’s function, at this stage of the application, to dwell into the merits of the case and to determine, based on what little available evidence, whether there is a good claim or not. The court’s duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition. 60 It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action. As Denning MR said in Dunning, the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents. 61 In the result, we were of the view that the documents and working papers which were relied upon, referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings; and that they were necessary for disposing fairly of the cause or matter. We therefore allowed the appeal with costs here and in the High Court. The order of the High Court was set aside and we directed that the order of the assistant registrar be restored. reebok international v royal corp 1992 2 SLR 136 The Riddick principle 15 The first principle (for convenience, I shall refer to it as ‘the Riddick principle’) is that where a party to litigation has been ordered to give discovery, the other party may not use the information so obtained for a collateral or improper purpose, ie for any purpose other than the further pursuing of the action in which the discovery is given. In the absence of an express undertaking given to the court, there is implied an undertaking

that the discovering party may not use the information against the other party for any other improper or collateral purpose. The rationale for the undertaking is the encouragement of full and frank disclosure in court proceedings in the interest of administration of justice. The Riddick principle has been applied in cases like Home Office v Harman, Riddick v Thames Board Mills, Halcon International Inc v Shell Transport & Trading Co, Sybron and Sim Leng Chua v JE Manghardt. In Manghardt, this court held, following Riddick, that a defamatory letter disclosed by the defendant in another action before the High Court between the same parties could not be used by the plaintiff to launch a libel action against the defendant. 16 The Riddick principle is not an absolute principle. The court has a discretion to release or modify the undertaking, whether express or implied. In Crest Homes, Lord Oliver of Aylmerton (whose judgment was concurred to by all the other members of the House) said: Your Lordships have been referred to a number of reported cases in which application has been made for the use of documents obtained under Anton Piller orders or on general discovery for the purpose of proceedings other than those in which the order was made. Examples were Halcon International Inc v Shell Transport & Trading Co and Sybron Corp v Barclays Bank plc. I do not...think that it would be helpful to review these authorities for they are no more than examples and they illustrate no general principle beyond this, that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery. 6. determination of issues prioer to discovery

Order for determination of issue, etc., before discovery (O. 24, r. 2) 2. —(1) Where on an application for an order under Rule 1 it appears to the Court that any issue or question in the cause or matter should be determined before any discovery of documents is made by the parties, the Court may order that that issue or question be determined first. (2) Where in an action begun by writ an order is made under this Rule for the determination of an issue or question, Order 25, Rules 2 to 7 shall, with the omission of so much of Rule 7 (1) as requires parties to serve a notice specifying the orders and directions which they desire and with any other necessary modifications, apply as if the application on which the order was made were a summons for directions. 7. pre action discovery 6.1 and 6.3-6.4 = procedure purpose – 6.5 privilege – 6.7a terms of order – 6.6 and 6.9

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Discovery against other person (O. 24, r. 6) 6. —(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons. (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons, which must be served on that person personally and on every party to the proceedings. (3) An originating summons under paragraph (1) or a summons under paragraph (2) shall be supported by an affidavit which must — (a) in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; (b) in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power. (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served. (5) An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order, and on such terms as it thinks just.

(6) An order for the discovery of documents may — (a) be made conditional on the applicant’s giving security for the costs of the person against whom it is made or on such other terms, if any, as the Court thinks just; and (b) require the person against whom the order is made to make an affidavit stating whether the documents specified or described in the order are, or at any time have been, in his possession, custody or power and, if not then in his possession, custody or power, when he parted with them and what has become of them. (7) No person shall be compelled by virtue of such an order to produce any document which he could not be compelled to produce — (a) in the case of an originating summons under paragraph (1), if the subsequent proceedings had already been commenced; or (b) in the case of a summons under paragraph (2), if he had been served with a subpoena to produce documents1 at the trial. (8) For the purpose of Rules 10 and 11, an application for an order under this Rule shall be treated as a cause or matter between the applicant and the person against whom the order is sought. (9) Unless the Court orders otherwise, where an application is made in accordance with this Rule for an order, the person against whom the order is sought shall be entitled to his costs of the application, and of complying with any order made thereon on an indemnity basis. Getting relevant doc before proceedings from  Someone protential party  Or not unvolved directly in litigation Rationale – u are entitled to get doc to check whether have case or not. O 24 r 6 (1) Procedure is the same whether person from whom discovery sought is a potential party or not  - application by Originating Summons and supporting affidavit

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- affidavit to state grounds of application, material facts pertaining to intended proceedings and whether person against whom order sought likely to be a party – O24 r 6(3)(a) - it is necessary to describe or specify the documents sought – O24 r 6(3)(b). describe tpe of class of documents.

Affidavit must also state the relevance of documents sought and state that person is likely to have documents in possession, custody or power It is accepted that at this stage, the Plaintiff may not know whether he has a viable claim against the Defendant. The rule is there to assist the Plaintiff. But Plaintiff must set out substance of claim and also state the cause of action to enable a potential Defendant to know the essence of the complaint. This is to prevent fishing expeditions. Kuah Kok Kim v Ernst & Young [1997] 1 SLR 169, CA – don’t need to specify individual doc. Just describe type of class. Even if the documents are relevant, they must meet criteria under O24 r 7, namely whether the discovery is necessary for fair disposal of the proceedings or for the saving of costs.

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Bayerische Hypo – und Vereinsback AG V APB [2004] SGHC 155 – fair disposal test. Test of relevcancy is bery broad. Court esercises some limits. Bank defrauded, asking for pre action discovery against APB – court said even if doc is relevant, must demonstrate a necessity for disclosure. Counsel argued that want to narrow issues since going ot sue them anyway. Court said that he knew exactly what he was going ot sue for, so he shd just go for normnal discovery in any case since going to trial anyway. Pre trial discovery only created to prevent unnec trials and writs. Not to allow unnec appkications where trial going to proceed anyway. Since party certain.

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discovery between parties and how to disclose order 24 rule 1 List of documents in Form 37 and Affidavit verifying list in Form 38.

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Form of list and affidavit (O. 24, r. 3) 3. —(1) A list of documents made in compliance with an order under Rule 1 must be in Form 37, and must

enumerate the documents in a convenient order and as shortly as possible but describing each of them or, in the case of bundles of documents of the same nature, each bundle, sufficiently to enable it to be identified. (2) If it is desired to claim that any documents are privileged from production, the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege. (3) An affidavit made under Rule 1 (1) verifying a list of documents must be in Form 38.

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List divided into 2 Schedules  Schedule 1 • documents in possession / custody / power


Part 1 : No privilege applies – oblig is to serially list each item. Cannot be generic in labeling, must list each document. *cook v smith – see case

• Part 2 : Privileged documents – not nec to enumerate doc one by one Schedule 2 • documents previously in possession / custody / power •
need to give details of when documents last in possession and what has become of them. – must state. Otherwise opp party can strike out action because no proper discovery.

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Order 24 r3(2) – Privilege dont inadvertently disclose!

The "Patraikos 2" [2001] 4 SLR 308 Facts The plaintiffs’ cargo was damaged when the defendants’ vessel (the ‘vessel’), on which it was loaded, ran aground. The plaintiffs claimed for damage to the cargo, contending, amongst others, that the defendants breached the Hague Rules (the ‘Rules’) by engaging a second officer (‘Orlanda’) who was involved in the grounding of another ship (the ‘Saronikos II’) previously. The plaintiffs were dissatisfied with the defendants’ list of documents for discovery, and successfully applied for a further and better list of documents. The defendants’ appealed against the following set of documents ordered to be disclosed:  (1) Various survey reports regarding the vessel’s construction;  (2) Two faxes from their solicitors (‘SRT’) to their managing agents (‘Dioryx’);  (3) – (5) Various documents relating to the vessel’s seaworthiness; and  (6) Documents pertaining to the grounding of the Saronikos II. o Held, dismissing the appeal: o (1) Discovery of particular documents would only be ordered if they ‘relate to matters in question in the cause or matter’: O 24 r 7(3), Rules of Court. A document related to the matters in question if it - (a) would be evidence on any issue; (b) contained information which might enable the party requiring it to either advance his own case, or to damage his adversary’s; or (c) might fairly lead him to a train of inquiry, which may have either of the consequences in (b). To print it more simply, if it threw light on the case the document related to matters in question. o (2) A ship must meet various criteria before it was deemed ‘seaworthy’. Hence, item (1) documents constituted evidence as to the vessel’s seaworthiness, which was a matter in question. Furthermore, the defendants had implied that they were relevant as they had included them in their list of documents. o (3) The faxes in item (2) would throw light on the true qualifications of the vessel’s Chief Officer (‘Sporidis’) at the time of the grounding. SRT and Dioryx had broached this issue and Dioryx’s practice of employing officers for their experience and not solely on their paper qualifications. Sporidis’ qualifications was relevant as it might support the claim that the defendants failed to properly man the vessel as required by art III r 1(b) of the Rules. Furthermore, the faxes were not privileged as the defendants failed to show that they either reflected their instructions to SRT, or gave an indication of the legal advice that SRT would be giving them. o (4) The documents in items (3), (4) and (5) were matters in question as they related to the vessel’s seaworthiness. Furthermore, there was no evidence that the volume of documents under item (4) would be so massive such as to make discovery oppressive.

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(5) As Orlanda was on the bridge of the Saronikos II when it ran aground, the documents in item (6) were relevant. If they indicated that the grounding resulted from Orlanda’s incompetence or negligence, then the plaintiffs were entitled to use the evidence to argue that the defendants, in engaging Orlanda despite knowing his past employment history, failed to properly man the vessel. Per Curiam Apart from the statutory protection afforded by s 128(1) of the Evidence Act (Cap 97, 1997 Ed) to communications between lawyers and their clients, communications between (a) the client’s legal advisers and third parties, if made for the purpose of pending or contemplated litigation, and (b) the client or his agent and third parties, if made for the purpose of obtaining information to be submitted to the client’s legal advisers for the purpose of obtaining advice on pending or contemplated litigation, were protected as well. Types of privilege:

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Legal professional privilege – most usual. Stock list – ‘all correspondence governed by legal proff privilege ie corresp bet lawyer and client..’ Litigation privilege Privilege against self-incrimination Public interest privilege – O24 r15

Document disclosure of which would be injurious to public interest: Saving (O. 24, r. 15) 15. Rules 1 to 14 shall be without prejudice to any rule of law which authorises or requires the withholding of any document on the ground that the disclosure of it would be injurious to the public interest.

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 Without Prejudice communications Facts upon which privilege is claimed must be set out in the affidavit : Gardner v Irvin [1878] 4 Ex D49 See also O24 r 19 – other party who inspected by mistake not allowed to rely on those doc unless cout grants leave. This is where he only inspected the doc itself Whre included in long klist of doc and handed to other side – no specific rules., need to take out application and how this mistake arose

10. types of docs to be disclosed – order 24 r1.2 Wright v Times Business Publications Ltd & Anor [1991] 3 MLJ 12 These rules are identical with the English rules O 24 rr 7(1) and 8 except that the English O 24 r 8 applies also to discovery before commencement of proceedings. - The principles underlying discovery were enunciated as long ago as 1882 by Brett LJ in The Compagnie Financiere Et Commerciale Du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55. They are as applicable today as they were then under the relevant English Rules of Supreme Court 1875 O XXX1 r 12. At pp 62-63 of the report Brett LJ stated the principle as follows: The doctrine seems to me to go further than that and to go as far as the principle I am about to lay down. It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put the words `either directly or indirectly` because, it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences. Both sides have relied heavily on this oft quoted passage; OCBC to show that the specified class of documents must be relevant to the issue raised by the plea of justification and the particulars relied upon, by placing emphasis on the phrase `it is reasonable to suppose` and Norman Wright by suggesting that any document or class of documents which will show or lead to a train of inquiry which will show the truth or falsity of whether OCBC had caused or permitted a breach of confidence or had either deliberately or through ignorance or carelessness broken any promise of confidentiality to the four bankers or were not able to keep confidential, matters or information which should be kept confidential, would be relevant, since these were the real issues raised by the plea of justification and the particulars relied upon and not that he, Norman Wright, did not check the truth of the assertions he had made as contended by OCBC.

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As is to be expected, both sides are in serious contention as to what is the real issue raised by OCBC`s plea of justification and the particulars relied upon. I will now deal with this question. Mr Gray submits that the `sting` of the libel of which Norman Wright complains is that he was reckless, irresponsible and mischievous because he wrote a letter containing unfounded allegations about OCBC. …..In my view it is crucial to the question of discovery in this appeal to determine the real issue raised by the plea of justification and the particulars relied upon as, if Mr Gray is right Norman Wright would not be entitled to discovery of the classes of documents requested for, they being all internal documents belonging to OCBC of which he had no knowledge when he wrote his letter to the BT and accordingly not relevant. The words of the unreserved apology (set out in full under the sub-heading The background) which gave rise to Norman Wright`s complaint are to be found in the second paragraph and read: BT is satisfied and accepts that the statements concerning the Overseas-Chinese Banking Corp Ltd in the said letter were and are wholly unfounded. (Emphasis added.) The remainder of that paragraph is an expression of belief and the third paragraph is the apology for the alleged consequence of these words. …. Accordingly the classes of documents of which Norman Wright has got discovery by the order of the assistant registrar dated 4 October 1988 have no bearing whatsoever on what I have found to be the true issue in the 1988 proceedings and are therefore totally irrelevant. An examination of the classes of documents all of which relate to the recruiting procedures adopted by OCBC and their internal procedures both generally and specifically to the four named bankers in question for maintaining confidentiality are not only irrelevant but also unnecessary either for disposing fairly of the cause or matter of for saving costs (O 24 r 8) in view of my finding on the issue raised by OCBC`s plea of justification and the particulars relied upon. I find it difficult to imagine how an examination of these classes of documents can lead one to reasonably suppose that they might contain information which may fairly lead to a train of inquiry to damage OCBC`s plea of justification that Norman Wright failed or neglected to check out his assertions before making them. The rule is stated in 13 Halsbury`s Laws of England (4th Ed) para 38 as f ollows: Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue the discovery on that issue is limited to the matter raised in the particulars. The extreme width and lack of specificity of the classes of documents in question led Mr Gray to submit that Norman Wright had little idea of what went on in OCBC and was therefore embarking on a `fishing expedition` in the hope of `trawling` through a volume of unnecessary and irrelevant documents hoping that he would make good his assertions of breach of confidentiality on the part of OCBC, either deliberately or through ignorance or carelessness or being unable to keep confidential, matters which ought to be kept confidential. I cannot but agree. A further argument advanced by Mr Gray was that to allow Norman Wright to have the discovery he had succeeded in getting was to permit him to circumvent the order of Chao Hick Tin JC in the 1987 proceedings. He conceded, however, that I would have to grapple with this question only in the event that I hold that the classes of documents in question were relevant to the issue of justification in the 1988 proceedings. Having reached the conclusions I have, I do not feel it necessary to grapple with this question or to deal with the numerous authorities that were cited to me on this point. However, since both counsel spent much time on this point I proceed to make some observations on the arguments. The substance of Mr Gray`s submission was that even if Norman Wright was entitled to discovery of the particular classes of documents in question, discovery should be denied as the irresistible inference was that Norman Wright`s underlying motive was to provide him with a defence in the 1987 proceedings. He pointed out that the close similarity between the classes of documents sought in the 1988 proceedings and those sought in the 1987 proceedings bore this out. In fact, for all practical purposes they are identical. He further submitted that it was difficult to believe that Norman Wright would have started the 1988 proceedings at all, were it not his desire to achieve a collateral advantage in the 1987 proceedings. Mr Milmo strongly resented these allegations of an ulterior motive which he submitted was mere conjecture on the part of Mr Gray. His submission was that if the particular classes of documents of which discovery was sought in the 1988 proceedings were relevant then it was irrelevant that similar discovery was refused in the 1987 proceedings. Furthermore, there was an implied undertaking that documents obtained in one case would not be used in another case. The court could always protect the party giving discovery by withholding production or inspection to a later date as suggested by Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 471 which I wa s urged to follow. Jenkins J said: It seems to me, however, that in the further and better affidavit of documents which I now propose to order it will be open to the defendant, if so

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advised, to say, with respect to particular documents or a particular class of documents, that those documents are, for this or that reason, especially confidential and that he objects to producing them except on an undertaking by the plaintiff in whatever form the defendant conceives would be adequate for his protection. If, on that, the parties cannot agree as to the form of the undertaking, then the matter can come before the court as a question concerning the terms, if any, which ought to be imposed on the plaintiffs as a condition of having production of those particular documents. I have already drawn attention to the extreme close connection between the 1987 proceedings and the 1988 proceedings and whilst I would not go so far as to say that Norman Wright`s application in the 1988 proceedings were motivated wholly by an unworthy purpose it would not, in my view, be desirable in the circumstances of this case to allow discovery of the very classes of documents which were refused in the 1987 proceedings whilst the appeal in those proceedings was still pending, even if I had found that they were relevant to the 1988 proceedings. In coming to this conclusion I was guided by the words of Lord Oliver of Aylmerton who delivered the main speech in the House of Lords in Crest Homes plc v Marks & Ors [1987] 2 All ER 1074 at p 1078: It is clearly established and has recently been affirmed in this House that a solicitor who, in the course of discovery in an action, obtains possession of copies of documents belonging to his client`s adversary gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of that action on behalf of his client (see Home Office v Harman [1982] 1 All ER 532, [1983] 1 AC 280). It must not be used for any `collateral or ulterior` purpose, to use the words of Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at p 470, approved and adopted by Lord Diplock in Harman`s case [1982] 1 All ER 532 at p 536, [1983] 1 AC 280 at p 302. Thus, for instance, to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking (see Riddick v Thames Board Mills Ltd [1977]3 All ER 677, [1977] QB 881). It has recently been held by Scott J in Sybron Corp v Barclays Bank plc [1985] Ch 229, and this must, in my judgment, clearly be right, that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind. But the implied undertais one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can, in appropriate circumstances, be released or modified by the court. (Emphasis added.) I must not of course pre-empt the Court of Appeal in the 1987 proceedings but as that judgment now stands and having regard to the allegations and counter-allegation of malice and what I discern to be the intensity with which these two proceedings are being conducted I would not be comfortable in relying on the implied undertaking, which it is conceded exists, that some information gleaned from these documents and stored in the mind would not be used u nwittingly in the conduct of the 1987 proceedings.

11. limitation to discovery – order 24 rule 1.3

12. Application for specific discovery can be made against party If not satisfied with discovery made – can take out this order O 24 r 5

Order for discovery of particular documents (O. 24, r. 5) 5. —(1) Subject to Rule 7, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it. (2) An order may be made against a party under this Rule notwithstanding that the party may already have made or been required to make a list of documents or an affidavit under Rule 1. (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has, or at some time had, in his possession, custody or power, the document, or class of document, specified or described in the application and that it falls within one of the following descriptions: (a) a document on which the party relies or will rely; (b) a document which could — (i) adversely affect his own case;

(ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may — (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case. (4) An order under this Rule shall not be made in any cause or matter in respect of any party before an order under Rule 1 has first been obtained in respect of that party, unless, in the opinion of the Court, the order is necessary or desirable.

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Procedure  SIC supported by affidavit. affidavit will state belief of deponent that party from whom discovery is sought has or had possession / custody / power of documents sought Expanded test of relevance for further discovery - O24 r 5(3)  document on which party relies / will rely

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document which could lead to party seeking discovery to a train of enquiry resulting in his obtaining information which may – adversely affect his own case; or – adversely affect / support another party’s case. – => very wide test test adopted from Compagnie Financiere v Peruvian Guano (1882) 11 QBD 55

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document which could adversely affect own case; or adversely affect / support another party’s case

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where court held that document would be relevant if it is reasonable to suppose that it contains information which would either directly or indirectly enable the party (requiring the discovery) either to advance his own case or damage the case of his adversary.

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broadly worded test to ensure that all relevant evidence will be made available to ensure that a dispute can be adjudicated fairly greater latitude as compared with O24 r 1 but discovery must be “necessary for disposing fairly of the matter or for saving costs” – O 24 r 7. Court should inspect the documents and review facts in issue and also whether documents are confidential – Wallace Smith v Deloitte Haskins [1997] 1 WLR 257  – discretion fo court. Litmus test – broad Court must balance need for discovery with risk of abuse of the discovery process - O 24 r 7 Even if documents are relevant, discovery will not be ordered if they are not necessary for the fair disposal of the dispute. – Dolling-Baker v Merret [1990] 1 WLR 1205 – party had dispute with inusrnac epolicy with insurance company. Party found that insurance comp had similar dispute in arbitration with another part on same type of policy. Prob not relevant but even if relevant, not nec for disposal fairly or for saving csots in fact aggravating costs. So if can show good reason why not relevant, can gt them out. also note the need to prevent “fishing” ie seeking discovery of documents without demonstrating their need / relevance.

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Be narrow. Msut demonstrate relevance.pt to paras in pleadings and say that this is directly in issue. Must be clear and precise about what you want. Norman Wright & Ors v OCBC [1992] 2 SLR 710 Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil engineering Pte Ltd [2003] 1 SLR 75

SMS Pte Ltd v Power & Energy Pte Ltd [1996] 1 SLR 767 Facts The respondent cargo owners SMS sued the appellant carriers Energy for damage caused to their cargo which SMS alleged was due to Energy’s breach of contract or breach of duty as bailee or negligence. Energy’s

defence was that: (a) there was no evidence of loss or damage when the good were delivered; and (b) SMS failed to commence their suit within one year of the date of delivery of the goods. At the hearing, Energy applied for the defence to be struck out under O 24 r 16 of the Rules of the Supreme Court (RSC) as SMS failed to comply with the order for discovery. The application to strike out the defence was made orally and not by summons-in-chambers. The trial judge, exercising his discretion, allowed Energy’s oral application and truck out the defence and entered judgment in favour of Energy. SMS appealed, arguing: (a) that the trial judge erred in allowing Energy to make their striking out application orally; and (b) the trial judge should have struck out Energy’s defence because the order for discovery was not an ‘unless’ order. Held …10 At the hearing of the action on 22 February 1995, the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents. This rule provides that if an order for discovery is not complied with, the court may, where the party in breach is a defendant, strike out the defence and enter judgment for the plaintiff. The application was made orally and not by way of a summons-in-chambers. This explanation does inform why no discovery had been provided by the appellants and shows there was no suppression of documents by the appellants. However, even if they did not have any discoverable documents, the appellants could and should have filed a nil list giving such particulars as they could of what documents were once in their possession and then verified the list by affidavit. This they did not do and were wrong not to. Did the appellants’ failure to file a nil list warrant the defence being struck out and judgment being entered? It would be appropriate to do so only if such failure created a real risk that a fair trial of the action would be impossible. Whether this was so is dealt with shortly. 23 Furthermore, in deciding whether or not to strike out the defence, the learned trial judge does not appear to have applied the test whether failure to file the list of documents would have rendered a fair trial of this action impossible. Applying this test and bearing in mind the relevant circumstances enumerated earlier, in this court’s judgment the failure of the appellants to file their list of documents did not render a fair trial of this action impossible. In any event such a list would have been a nil list and the respondents would have been in no better or worse position than they were before the list was filed. If the appellants had filed a nil list verified on affidavit the respondents would have had to accept it unless of course they had evidence to the contrary and subject to their right to ask for discovery of particular documents as provided by O 24 r 7. As Harman LJ said in John Walker & Sons Ltd v Henry Ost & Co [1970] RPC 151, at p 154 ll 45–48. True it is that one cannot, when an affidavit of documents or a list of documents is produced, file an affidavit to say: ‘Well, I do not believe this man has told the truth or disclosed everything he ought to’. This affidavit is, as they say, conclusive. 24 The defence should not, therefore, have been struck out. Instead the respondents should have been called on to prove their case. The appellants had by not filing any affidavits of evidence-in-chief of witnesses elected not to adduce any evidence. The trial court would have had to decide the case on the evidence available at the close of the respondents’ case. 25 The appeal is accordingly allowed and the whole of the judgment dated 22 February 1995 is set aside. This matter is sent back to the district court for a new trial. Pursuant to the provisions of O 24 r 17, the appellants are ordered to file a list of documents, even if it be a nil list, within one month from the date of this judgment failing which their defence herein shall be deemed struck out and the respondents shall be at liberty to enter judgment against the appellants. Banque Cantonale Vaudoise v RBG Resources plc and Another [2004] 4 SLR 856 Facts The first defendant, RBG Resources plc (“RBG”), had engaged in transactions with various banks which had either purchased metals from it or lent money to it on the security of metals. Many of the metals were allegedly stored in warehouses operated by or on behalf of the second defendant, Fujitrans (Singapore) Pte Ltd (“Fujitrans”). The plaintiff, Banque Cantonale Vaudoise (“BCV”), was one of the banks which had transacted with RBG. It had a claim against Fujitrans in respect of various groups of metals, one of which was listed in Schedule 3 of its Re-Amended Statement of Claim (“the Schedule 3 claim”). An assistant registrar granted BCV summary judgment against Fujitrans. Fujitrans appealed. Before the appeal was heard, Fujitrans filed an application for discovery of various categories of documents from BCV. Consequently, the appeal against summary judgment was held in abeyance. An assistant registrar dismissed Fujitrans’ discovery application save for one category of documents. Fujitrans appealed against that decision as it wanted discovery and production of the remaining seven categories of documents. Fujitrans’ position was that it had proceeded with the discovery application first in order to show the court with certainty the information and documents which would be referred to by its banking expert, Howard Palmer (“Palmer”), in his intended affidavit for the appeal against summary judgment. Without knowing the

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final outcome of the discovery application and the documents to be obtained, Fujitrans’ application for leave would be speculative. Held, dismissing the appeal: Fujitrans’ discovery application to the assistant registrar and its appeal against that decision were premature. By the time Fujitrans filed its discovery application, summary judgment had already been granted to BCV for the Schedule 3 claim. Accordingly, the office of assistant registrar was functus officio as regards any subsequent discovery application, save for claims which were not the subject of the summary judgment. Therefore, the discovery application could not and should not have been made to the assistant registrar: at [12], [15] and [17]. The discovery application could have been made to a judge in chambers only in the context of the pending summary judgment appeal. It should have been made by way of a preliminary application in the appeal proper, whereupon the question as to whether the appellant should be granted leave to adduce further evidence would have been considered first. Alternatively, Fujitrans could have filed the applications for discovery and leave to adduce further evidence contemporaneously and asked that they be heard together: at [18] and [20]. If it was speculative to seek leave without having discovery first, it was even more speculative to seek discovery without obtaining leave first. The discovery application should not have been made first as a discovery order in favour of Fujitrans would or might affect the outcome of the leave application. It was for the judge hearing the leave application to decide whether to grant leave or not, and if so, leave could be granted subject to a successful discovery application: at [22]. As for the substantive discovery appeal before this court, the main issue was the relevancy of the documents for which discovery was sought. The application for discovery of the remaining seven categories of documents was in fact a fishing expedition. It was obvious that Fujitrans’ discovery application was an attempt to support its appeal against summary judgment. The application was not for saving costs, and was neither desirable nor necessary for disposing fairly of the cause or matter: at [36], [54] and [55]. [Observation: Since Fujitrans would be appealing against this court’s decision in the discovery appeal and it had not filed its leave application, it should apply to a judge in chambers for leave to adduce evidence in respect of the summary judgment appeal, and to include an application for leave to adduce evidence from any successful application for discovery. If the application was to be unsuccessful, then Fujitrans could appeal against that decision to the Court of Appeal, and that appeal should be heard together with the appeal against this court’s decision. Otherwise, the Court of Appeal would have to give a decision which was not in the correct sequence: at [24]. Alternatively, BCV could apply to a judge in chambers for a declaration that Fujitrans should not be permitted to adduce further evidence so that any dissatisfied party could thereafter appeal to the Court of Appeal which could then deal with that appeal and the appeal against this court’s decision in the correct sequence: at [25].]

Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710 Held, dismissing both appeals: (1) In their defence of fair comment in the 1987 action the first and third defendants were not able to particularize the steps OCBC failed to take to ensure that confidential matters were not publicly disclosed, and sought to interrogate the bank on what steps the bank had or had not taken. This was not permissible. The judicial commissioner was right in holding that their interrogatories were fishing. (2) The categories of documents the defendants sought in their application for a further and better list of documents in the 1987 action were extremely wide and virtually none of them bore any relevance to the issues raised by the defences. The aim of this application was no different from that of the application for leave to serve the interrogatories. It was an attempt to mount a comprehensive discovery with the hope of finding something useful for their case. (3) The sting of the libel in the 1988 action was the imputation of recklessness, irresponsibility and mischievousness on Wright’s part in writing the letter to the newspaper. The material issue turned on the state of Wright’s mind at the time he wrote the letter and not whether what he wrote was true or false. The classes of documents in respect of which Wright sought discovery had no bearing on that issue. They were substantially internal documents of OCBC of which he had absolutely no knowledge. They were also not necessary for disposing fairly of the cause or matter or for saving costs. The extreme width and lack of specificity of the classes of documents sought also indicated that Wright was ‘fishing’ for material to make good his assertions of OCBC’s breach of confidentiality.

(4) The two actions were inextricably intertwined and arose out of the same set of facts. To allow Wright discovery of these categories of documents would, in effect, enable Wright to circumvent Chao J’s order in the 1987 action. That was not permissible. (5) The application for further and better particulars of the defence in the 1988 action was substantially framed in the form of interrogatories and covered the same ground as the application for discovery. Wright was accordingly not entitled to the particulars sought. (6) Both the appeals were against the exercise of judicial discretion in relation to interlocutory issues. In the absence of clear error of law or principle, the appellate court should not interfere. No such error of law or principle had been made out. o Can blank out parts of docs where private and confidential – there is law to support this. Court to make sure that no irrelevcant parts. *Gene capital v banker’s trust

First conseq therefore => other party can apply for discovery.

13. Other consequences of failure to comply with discovery order
O 24 r 16 (a) Action dismissed or defence struck out and judgment entered - O 24 r 16(1) (b) Committal of party failing to comply - O 24 r 16(2) (c) Committal of solicitor who fails to notify client of the order for discovery - O 24 r 16(4) - distinct from other duties of solicitor in relation to discovery. (d) inability to rely on undisclosed documents save with leave - O 24 r 16(5) Main Principles – analysis applies throughout civ pro course. any type of order – these apply - • Court will usually make an ‘unless order’ in the first instance. Ie court will say since you haven’t complied, give you x time failing which your claim or defence is struck out. As person who applied for unless order – most pple then apply to court for order that action is struck off. o Silly because this allows pther party to plead oral extension of time - • Disobedience of an unless order is likely to amount to contumelious behaviour (ie. contempt)

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• In order to avoid the dire consequences, onus is on defaulter to show that o 1. there was no intention to ignore the peremptory order and o 2. that the failure to obey was due to extraneous circumstances. Syed Mohamed Abdul Muthaliff v Arjan Bhisham Chotrani [1999] 1 SLR 750 o but court also said not off the hook necessarily – in face of neg, competence or sheer indolence. Ie at heart of it, need to show that had made positive efforts. Must be sufficient efforts. (prej to other side – secondary stage) • Once an unless order is breached, the opposing party can either apply for a final order (see above) or write to the Registry with a suitable draft order (this is correct procedure) . Changhe International Investments Pte Ltd v BIL [2004] 4 SLR 449 • An unless order obtained by consent can only be set aside on grounds similar to that of setting aside of a contract. Wiltopps (Asia) Ltd v Drew & Napier [2000] 3 SLR 244 o applied for extension of time unless order obtained kike consent operates ilke a contract – cannot set it aside. Can only set aside by filing fresh application pleading undue influence, etc. most have fresh proceedings, so never consent to an unless order.

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Wiltopps (Asia) Ltd v Drew & Napier (sued as a firm) and Another [2000] 3 SLR 244 Facts The present action was characterised by five changes of solicitors by the plaintiffs and numerous delays in their conduct of the proceedings. After the writ of summons was filed in May 1993, there was considerable procrastination by the plaintiffs in proceeding with the action. In October 1997, the court ordered affidavits of evidence-in-chief to be filed and exchanged within two months. The order listed the witnesses the plaintiffs

intended to call. After various applications for extension of time for filing the affidavits, the defendants’ solicitors set a deadline by which the exchange of affidavits was to take place. There was no exchange by the plaintiffs by the deadline and the defendants’ solicitors applied for an order that unless the plaintiffs filed and served on the defendants the affidavits of evidence-in-chief of their witnesses within three days, the plaintiffs’ action would be dismissed. At the hearing of the application, the plaintiffs’ solicitors offered to accept the unless order provided that they were given seven days instead of three. This was agreed to by the defendants’ solicitors and a consent order was made which required the plaintiffs to make the necessary exchange within seven days and in default, the plaintiffs’ action would be dismissed with costs without further order. The plaintiffs failed to file the affidavit of one of their witnesses by the stipulated date. The plaintiffs’ solicitors then applied for an extension of time to comply with the unless order. The application was however later withdrawn at the hearing. Subsequently, the defendants’ solicitors applied for and obtained a default judgment dismissing the plaintiffs’ action on the basis of their non-compliance with the unless order. The plaintiffs’ solicitors applied to set aside the default judgment and the application was dismissed by the assistant registrar. The plaintiffs appealed against the decision. Held, dismissing the appeal: (1) The words “by consent” in the unless order could either evidence a real contract between the parties or could evidence an order made without obligation by the parties. In the present case, the words in the unless order gave effect to the contract between the parties. The order had been made on the basis of the plaintiffs solicitors’ offer to consent if they were given seven days instead of three and which offer was accepted by the defendants’ solicitors. There was clearly consideration flowing from the defendants to the plaintiffs. (2) The parties were bound by the unless order that was made with their consent. If the plaintiffs failed to comply with the terms of the unless order, they would be able to avoid the default judgment only if the unless order itself was set aside. A judgment or order by consent was binding until it was set aside and fresh proceedings must be commenced to set aside a consent order. (3) The plaintiffs clearly failed to comply with the terms of the unless order as they did not have the affidavit of one of their witnesses by the prescribed deadline. The application for extension of time of the unless order was withdrawn and thus, the unless order remained in effect. The plaintiffs’ failure to comply with the unless order was due to their own default and not because they were prevented by the defendants’ solicitors. (4) Once the default occurred, the unless order operated to dismiss the action “without further order”. There was no question of setting aside the default judgment which was a consequence of the unless order and the subsequent default. Even if the court had the discretion to interfere with the default judgment, the plaintiffs’ contumacious and contumelious conduct in this case did not justify such exercise in their favour. Per curiam: On the question of whether the court could interfere with a default judgment taken out as a consequence of a breach of an unless order, a consent order which evidenced a real contract between the parties could only be set aside on grounds that would justify the setting aside of a contract. The consent order recorded an agreement supported by consideration and there was no ground for applying different rules to it. To hold otherwise would dilute the utility of such consent orders. Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd [2000] 4 SLR 449 Facts The appellants/plaintiffs defaulted on 2 March 2000 on an unless case management order made by the Registrar. The defendants’ counsel made an application by summons-in-chambers to perfect the unless order. Plaintiffs’ counsel attended the hearing on 8 March 2000, at which the assistant registrar dismissed the plaintiffs’ claim. Plaintiffs’ counsel did not appeal. Later, the plaintiffs engaged new solicitors, who made an application that the Registrar set aside the order of 8 March 2000. At the hearing on 14 June 2000, defendants’ counsel submitted that the effect of the application to overturn the order of 8 March 2000 was in fact an appeal to a fellow assistant registrar to overturn the order of another assistant registrar. The plaintiffs’ rejoinder was that the order of 8 March 2000 should never have been sought as there was already an unless order. The assistant registrar, after hearing the point on jurisdiction, dismissed the plaintiffs’ application without hearing the merits. The plaintiffs appealed. Held, dismissing the appeal: (1) The order of 8 March 2000 by the assistant registrar was right. Procedurally, the assistant registrar in this application could not entertain the plaintiffs’ application and could not normally vary another assistant registrar’s order as he lacked jurisdiction to do so.

(2) An unless order generally took effect without further order. However, the order had to be perfected in the absence of specific rules relating to perfection. (3) There were two paths to perfecting such an order. The first was by filing with the Registry a request by letter accompanied by a draft order of court for judgment or the dismissal of the action as the case might have been as a right arising under the order on the ground that the order had not been complied with. If the draft order was approved and it was faired and extracted, the unless order was perfected. (4) The second was by the party availing itself of the general application procedure of the court to achieve the same end. (5) The order of 8 March 2000 perfected the unless order into a judgment consequent upon its breach. The plaintiffs could not re-litigate the same matter save by way of appeal, which they did not file. The "Bonito" [2001] 3 SLR 32 Facts Following a collision between the appellants’ vessel Bonito and the respondents’ vessel Ah Lam II, the respondents commenced an admiralty action in rem against the appellants. Subsequently, the parties reached a settlement, under which, unless the quantum of damages was agreed, there was to be a reference to the registrar for damages to be assessed. At a pre-trial conference on 27 March 1997, counsel for the appellants informed the assistant registrar that liability had been settled and that the parties were likely to agree on the quantum, once the discovery of documents was completed, and counsel for the respondents said that the prospects of a settlement were good. Nevertheless, the assistant registrar made an “unless order” to the effect that the respondents were to file and serve a notice of discontinuance by 12 July 1997, failing which they were to file by 19 July 1997 a notice for an appointment before the registrar for damages to be assessed, failing which the action was to stand dismissed with costs. Subsequently, the parties required more time for the discovery of documents, and the respondents applied for two extensions of time to file and serve the notice of appointment for assessment of damages. At the hearings on 18 July 1997 and 3 September 1997, orders were made extending the time to 19 October 1997 and 30 November 1997 respectively. In allowing the extensions, the assistant registrar did not expressly make a default provision in either of the orders. In March 1999, the appellants’ solicitors informed the respondents’ solicitors that the action had been dismissed. In April 2000, the respondents filed and served the reference to registrar for assessment of damages without having applied for an extension of time beyond 30 November 1997 to do so. In May 2000, the appellants obtained an order from the assistant registrar to strike out the reference to registrar on 9 June 2000. Subsequently, the respondents applied for an extension of time to file and serve the reference to registrar. This application was heard and dismissed by the assistant registrar. The respondents’ appeals against the decisions of the assistant registrars were allowed by Lim Teong Qwee JC, who granted the extension of time and dismissed the striking out application. The appellants then appealed to the Court of Appeal. They contended that: (1) when the respondents failed to file the reference to the registrar by 30 November 1997, the “unless order” made on 27 March 1997 came into operation and by reason thereof the action was dismissed; and (2) there had been considerable delay on the part of the respondents to apply for the extension of time and they should not be granted the extension. Held, dismissing the appeals: (1) The courts adopted a very strict approach in considering and dealing with an “unless order”. If it was intended to apply the default provision in the order of 27 March 1997 to the two orders of 18 July 1997 and 3 September 1997, then the orders extending the time must say so clearly and unambiguously so that the party affected would know of it, because the consequence of non-compliance of such provision was extremely serious and far reaching. To all intents and purposes, the entire order of 27 March 1997 had been replaced or varied by the two subsequent orders, which contained no default provision. Thus, the action was not dismissed as of 9 June 2000, when the respondents applied for an extension of time to file the reference to the registrar for assessment. (2) There had been some considerable delay on the part of the respondents to apply for the extension of time. Nevertheless, the judge exercised his discretion properly in granting the extension of time. On an overall assessment of what justice required, to deny the respondents the extension of time sought would have the effect of depriving them of their entitlement to damages (to be assessed by the registrar) because of a procedural default which, even if unjustified, had caused the appellants no prejudice for which they could not be compensated by an award of costs. Per Thean JA: At the time of the pre-trial conference on 27 March 1997, the parties had reached a settlement on liability, and the indications from counsel were that they were likely to agree on the quantum of damages. In particular,

according to counsel for the respondents, the prospects of a settlement were good. Neither party were in default. There was really no cause for making the 'unless order', and it ought not to have been made at that stage.

14. Discovery against non-party after commencement of action
O 24 r 6(2) Discovery against other person (O. 24, r. 6) 6. —(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons. (2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons, which must be served on that person personally and on every party to the proceedings.

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Application by SIC supported by affidavit o affidavit to describe documents, explain their relevance and state that the person against whom discovery is sought has possession, custody or power of the documents Court will apply the fair disposal/savings of costs test. - Shaw v Vauxhall [1974] 2 All ER 1185 kuah kok kim: The procedure in O 24 r 7A At the outset, we would deal with the preliminary issue as to whether paras (a) and (b) of O 24 r 7A should be read conjunctively or disjunctively. Counsel for the appellant argued that it should be the latter, and explained as follows. Order 24 r 7A of the RSC has its origin in the United Kingdom provision. It is in pari materia to the United Kingdom provision save that the equivalent English provision is limited to personal injury claims, and does not include the word ‘or’ between paras (a) and (b). Thus, as long as para (a) is satisfied, there was no need to comply with para (b). This was also supported by the fact that unlike s 31 of the Administration of Justice Act 1970, in which the United Kingdom provision derives its operative force, s 18(2) of the Supreme Court of Judicature Act (Cap 322) is a wide provision. Thus the court need not satisfy itself that both paras (a) and (b) are fulfilled, as the court has a wide discretionary power to allow pre-action discovery even if para (b) was not satisfied, so long as para (a) was. It would be appropriate at this juncture to look at the United Kingdom provision and compare it with the local provision. Order 24 r 7A of the United Kingdom Rules of the Supreme Court states as follows: An application for an order under section 33(2) of the Act for the disclosure of documents before the commencement of proceedings shall be made by originating summons … and the person against whom the order is sought shall be made defendant to the summons. An application after the commencement of proceedings for an order under section 34(2) of the said Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons, which must be served on that person personally and on every party to the proceedings other than the applicant. A summons under paragraph (1) or (2) shall be supported by an affidavit which must — in the case of a summons under paragraph (1) state the grounds on which it is alleged that the applicant and the person against whom the order is sought are likely to be parties to subsequent proceedings in the High Court in which a claim for personal injuries is likely to be made; in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of a claim for personal injuries made or likely to be made in the proceedings and that person against whom the order is sought is likely to have or have had them in his possession, custody or power. The operation of this rule was derived originally from s 31 of the Administration of Justice Act 1970 (now s 33(2) of the Supreme Court Act) which provided that the power of the court to make an order for the disclosure of documents thereunder should be exercisable ‘in such circumstances as may be specified in the rules’. As explained in the Supreme Court Practice 1995, Vol 1 para 24/7A/1 with regard to the English provision: By the operation of this rule, the parties in personal injury litigation will be able to obtain before trial the disclosure of relevant documents from a non-party, eg medical and hospital records which in other classes of action, they can obtain by means of a subpoena duces tecum to attend and produce such

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documents at the trial. The effect of this rule is thus, in personal injury actions to advance the time for disclosure of relevant documents — by a likely party from the stage after action to the stage before action; and by a non-party from stag e of trial to pre-trial stage. As for the operation of the local O 24 r 7A, s 18(2) of the Supreme Court of Judicature Act (Cap 322) (the SCJA) provides that the High Court shall have the powers set out in the First Schedule. Paragraph 12 of the First Schedule provides: Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court. The prescribed rule is O 24 r 7A which provides that: An application for an order under paragraph 12 of the First Schedule to the Act for the discovery of documents before the commencement of proceedings shall be made by originating summons … and the person against whom the order is sought shall be made defendant to the summons. An application after the commencement of proceedings for an order under paragraph 12 of the First Schedule of the Act for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons, which must be served on that person personally and on every party to the proceedings. A summons under paragraph (1) or (2) shall be supported by an affidavit which must — in the case of a summons under paragraph (1) state the grounds of the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in the High Court; or in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power. Contrary to the appellant’s argument, it can be seen that although para 12 of the First Schedule of the SCJA confers on the court a wide power to order discovery, nevertheless, it is explicitly stated that these powers are to be exercised subject to the proper procedure under the Rules of Court. Thus, one must still look at the RSC in order to find the prescribed procedure and these procedures, whatever they may be, cannot be circumvented by the SCJA, which does not govern the matter. As such, we have to scrutinize O 24 r 7A itself to determine its true meaning and effect. The use of the word ‘or’ between paras (a) and (b) has created some difficulties. It can be seen that the English equivalent does not place the conjunction between the two paragraphs. Construed literally, it would mean that where r 7A(1) applies, the affidavit must satisfy the requirements of either para (a) or para (b), and where r 7A(2) applies, the affidavit must satisfy the requirements of para (b) only. We agree with the trial judge that this cannot be right. On a close examination of r 7A(3), it can be seen the requirements under para (a) are different from those under para (b). Moreover para (a) refers specifically to an affidavit in support of an application under r 7A(1). If the rule was to be construed literally, then the requirements in para (a) can be by-passed if para (b) could be satisfied instead. This surely cannot be right since an affidavit which only satisfies the criteria in para (b) would not be sufficient for the determination of an application under r 7A(1). Conversely, if the affidavit only satisfied para (a) and not para (b), it would also be insufficient for the determination of an application under r 7A(1) since the court would not know which documents the applicant was seeking, whether they were relevant to an intended proceeding, and whether the person against whom discovery is sought is likely to have them. Moreover, the words ‘in any case’ in para (b) indicates that para (b) had to be complied with whether the application was under r 7A(1) or r 7A(2). If so, then para (a) would be rendered redundant, should the two paragraphs be construed disjunctively. As such, we were satisfied that the affidavit in support of an application under r 7A(1) must satisfy both paragraphs, and that the word ‘or’ should be read or construed to mean ‘and’. Thus, contrary to the appellants’ submission, the two paragraphs must be construed conjunctively and not disjunctively. The next question was whether the appellants had complied sufficiently with the procedure in r 7A(3). The respondents argued that the appellant had failed to set out the nature and particulars of their allegations and state the substance of their case against them, as well as specify the documents. Moreover, they were entitled to know the implied terms, and the particulars of negligence and of the duty which they were alleged to have breached.

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Counsel for the respondents referred to Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 where James LJ said at p 460 E –F: In order to take advantage of the section the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is reasonable basis for making it. Ill-founded, irresponsible and speculative allegation or allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings. The respondents also referred to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185 where Buckley LJ said at p 1188 J: I fully agree with what Lord Denning MR has said with regard to the desirability of a prospective plaintiff who proposes to make application for discovery under s 31 of the 1970 Act to formulate the nature of his allegations and his claims in writing before discovery and before launching any application under the section … Omrod LJ further added at p 1189 F–J: But it cuts both ways, and if the prospective plaintiffs are to obtain discovery at an earlier stage than the old fashioned way, then it is clear that the defendants should be able to know at an early stage — at a corresponding stage — what the plaintiff’s case really is. And accordingly I think that the observations in para 366 of the Winn report [ie The Report of the Committee on Personal Injuries Litigation, July 1963] … are extremely important, and if a plaintiff or prospective plaintiff proposes to take advantage of s 31, then he ought to set out the substance of his case … he should commit himself to at least a description of the accident and how it happened, or a statement that he does not know how it happened. It can be seen from the tenor of the cases that where pre-action discovery is sought, the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is. This is because in the nature of pre-action discovery, the plaintiff does not yet know whether he has a viable claim against the defendant, and the rule is there to assist him in his search for the answer. Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition. On the present facts, we agree with the trial judge that the appellants’ affidavit had sufficiently complied with r 7A(3). The affidavit referred to the relationship between the appellants, the respondents and the majority shareholders in the company, and it gave particulars of the number of shares held by the appellants and the majority shareholders. It also stated the background to this application, referring to the letter appointing the respondents as valuers, as well as subsequent correspondences between the appellants and the respondents. The appellants also referred to the valuation report obtained from KPMG Peat Marwick, compared it with the valuation of the respondents’ and stated that there was a substantial difference. They had also stated the potential causes of action against the respondents. As such we were of the view that the appellants had sufficiently stated the grounds for the application and the material facts pertaining to the intended proceedings. We were also satisfied that the respondents appeared ‘likely to be’ parties should proceedings subsequently be commenced for negligence or breach of contractual duty in valuation. Although the affidavit should state the cause of action, it is not necessary to give particulars of it, even though it may be desirable. Indeed the rule does not state that particulars of the cause of action must be given. We do not agree with the respondents that ‘material facts’ under r 7A(3)(a) meant all the facts sufficient to constitute the elements of the cause of action. If the material facts had to be as precise as those normally pleaded in any cause of action, and if the appellants were in a position to depose to an affidavit to this effect, they could well be in a position to commence proceedings immediately. It would not be necessary to provide a scheme for discovery before action. To be so precise would impose too onerous a burden on the appellants. We are of the opinion that as long as the appellants stated the facts sufficiently to explain why pre-action discovery was necessary, this was adequate. The respondents also argued that the appellants had failed to specify or describe the documents in respect of which the order was sought or to show that the documents were relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings, in accordance with r 7A(3)(b). We are of the view that the appellants had complied with the rule. The appellants had stated that they wished to obtain ‘the working papers and documents employed by the defendants in arriving at the said valuation, in order to ascertain the basis of the valuation’. As long as the appellants described the type or class of documents with reasonable precision, and that class of documents were relevant to the cause or intended cause of action, that would be enough. They need not go on to describe and name each and every such document specifically. Indeed, it would be unreasonable

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and impossible for the appellants to do so. Thus, we agree with the trial judge that the appellants’ affidavit had complied with paras (a) and (b) of O 24 r 7A(3). The principles of pre-action discovery What then is the scope of pre-action discovery? This was first laid down in Dunning v Board of Governors of the United Liverpool Hospitals where Denning MR stated: One of the objects of the section is to enable the plaintiff to find out — before he starts proceedings — whether he has a good cause of action or not. This object would be defeated if he had to show — in advance — that he had already got a good cause of action before he saw the documents. In Dunning’s case, it was held that it was immaterial that the likelihood of the claim being made was dependent on the outcome of the discovery. The words ‘likely to be made’ in s 31 of the 1970 Act were to be construed as meaning ‘may’ or ‘may well be made’ if, on examination, the documents in question indicated that the applicant had a good cause of action. The court was not precluded from making an order if the only basis for saying that a claim was not likely was the absence of the documents of which discovery was sought. The reason for the introduction of such a procedure in the United Kingdom was essentially to encourage quick settlement of disputes by early and full disclosure of relevant documents. On the facts, the appellants were able to establish some grounds for seeking pre-action discovery as there was some evidence to show that they may have a cause of action and that the documents were likely to be relevant to an issue pertaining to the cause of action. At the outset, it should be noted that regardless of whether the valuation was a speaking or non-speaking one, the valuer still has to attain the requisite standard of care of an ordinary competent valuer. There is also an implied term in a contract of valuation to exercise reasonable care and skill. Hence, a valuer can be sued in tort or contract for failing to reach the standard demanded of him in valuing the shares. The appellants had obtained another valuation from a reputable firm, KPMG Peat Marwick, which had placed the value of the shares between $3.17 and $3.26 per share, compared to the respondents’ valuation of $2.15 per share. There was a significant disparity between the two valuations. Moreover, KPMG Peat Marwick had also given reasons for the basis of their valuation. We are of the view that the appellants had shown that there was a reasonable basis for their allegations. Moreover, the appellants had shown that this was sufficient to raise a cause of action, albeit not necessarily a good cause of action. The principle on which the discretion must be exercise is found in O 24 r 8, which provides that the court ‘shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs’. The respondents contended that having regard to r 8 and in the exercise of the court’s discretion discovery should not be exercised even if the appellants had complied with the provisions of r 7A. The main thrust of their argument is that the appellants and the majority shareholders had instructed the respondents to provide a non-speaking valuation and it would be wrong in principle and contrary to public policy to order discovery in this case. Since this was meant to be a non-speaking valuation, it would be improper to now force them to disclose these documents and notes which they had prepared or created in aiding them in their decision, thus disclosing the reasons for their valuation. According to the respondents, this would be a breach of contract between the appellants, the respondents and the majority shareholders who had agreed to a non-speaking valuation. We did not agree with the respondents. The basis for having a non-speaking valuation is to prevent the parties for whom the valuation was done (in this case, the majority and minority shareholders of the company) from looking behind the valuation and challenging the correctness of it. Thus, the appellants and the majority shareholders of the company who had agreed to buy and sell their shares must do so at the price determined by the respondents. Even if the valuation was proven to be wrong, neither party can seek to rescind the contract of sale, for as between them, they must be bound by the valuation. This was so held in Campbell v Edwards [1976] 1 All ER 785 and affirmed in Jones v Sherwood Computer Services plc [1992] 2 All ER 170 where the Court of Appeal stated that where such a valuation was done honestly and in good faith without fraud or collusion, it will not be set aside if the valuer made a mistake as that was the agreement between the parties. Indeed, the appellants recognised this and were not seeking to set aside the valuation. However, as the trial judge rightly stated, this does not prevent the appellants, or the majority shareholders, from bringing a separate action against the valuers for negligence or breach of an implied term. In Arenson v Casson Beckman Rutley & Co [1977] AC 405, the House of Lords held that the valuers were not immune from an action against negligence as there was no public policy reason for granting them such immunity. Lord Wheatley thus said at 426B–D: The respondents undertook the request and in due course provided a non-speaking valuation. In that situation certain duties of care in relation to the valuation were incumbent on the respondents. That is

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not in dispute. Since Hedley Bryne & Co Ltd v Heller & Partners Ltd [1964] AC 465, it is clear, if it ever was in doubt, that all persons who express an opinion which is negligent are liable for that negligence to persons who are within a relationship which is recognised by the law and who have suffered damage as a result thereof. Accordingly, there was no reason why discovery could not be given of the working papers and documents created or prepared by the respondents, as the policy of non-disclosure was to regulate the conduct between the majority and minority shareholders inter se, and not as between the shareholders and the valuers. The next question was whether the documents sought by the appellants were ‘relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings’. This would include both the situation in which without sight of the documents in question, the intending plaintiff may have ample evidence on which to found a claim; and also the situation in which the documents are the evidence essential to the claim or are evidence without which the claim is not so strong — per James LJ in Dunning’s case. Thus, there must be some grounds for seeking pre-action discovery, bearing in mind that the provision should not be used for fishing expeditions, and that the normal course is to get ‘ordinary discovery’ after commencement of proceedings. However, as James LJ added in Dunning’s case: I cannot conceive that the power of the court under s 31 is so restricted that it will not order discovery of documents … on the ground that it is not likely that a claim will be made if the only basis for saying that claim is not likely is the absence of the documents which are sought to be discovered and which will be of assistance in determining whether there exists a genuine basis for making the claim. With regard to the question of relevance, the trial judge decided as follows: The defendants were in January 1993 instructed to give a valuation of the shares of the company at 31 July 1989. In carrying out their instructions it is inconceivable that they referred to no documents. The documents that immediately come to mind would undoubtedly include the financial statements of the company for the period current at or ended on 31 July 1989. Those for earlier periods and even for later periods would almost certainly have been referred to. There may well be other documents such as reports of the directors of the company and reports of other persons touching upon some or more of the balance sheet or profit and loss items. I have no doubt that some discovery must be ordered and my attention has not been drawn to any facts or circumstances to satisfy me that it is not necessary either for disposing fairly of the cause or matter or for saving costs. We agreed with the trial judge’s decision on this point. However, the trial judge went further to say as follows: The defendants say that they are not required to give reasons for their valuation. Giving discovery of such documents is not giving reasons. They are accountants. They are skilled professional people. No doubt that is why they have been instructed for this purpose. There is more to arriving at an opinion of the value of the shares than merely looking at the company’s financial statements and reports of other persons. The defendants would have formed a view as to the appropriate method to use and they would have created a number of documents. These documents created by them may well be likely to disclose the reasons for their valuation and I think that this class of documents stand on a different footing from documents created by others. Since the defendants are not required to give reasons discovery of such documents cannot be necessary for disposing fairly of the cause or matter. Such documents would not be relevant to an issue likely to arise out of the claim likely to be made in the intended proceedings. I would say that at this stage it would appear not to be in the interest of justice to order discovery of such documents … For these reasons I varied the assistant registrar’s order for discovery by excluding the working papers and documents created or prepared by the defendants. We came to a different conclusion. Although the respondents were not required to give reasons for their valuation, this did not mean that the documents and working papers created or prepared by them would not be necessary for disposing fairly of the cause or matter. Nor would that fact mean that such documents would not be relevant to an issue arising or likely to arise out of the claim to be made in the intended proceedings. In deciding whether to order discovery of those documents, we were not concerned with the nature of a nonspeaking valuation, but the purpose of the discovery, namely, that the appellants wanted to find out if they had a good cause of action in tort or contract against the respondents. If that was the case, then, the reasons or basis for the valuation would be relevant to an issue arising or likely to arise in an intended proceeding. As we had stated earlier, the fact that it was a non-speaking valuation would not affect the respondents’ duty of care or liability towards the appellants. It prevented the appellants and the majority shareholders, as between themselves, from challenging the correctness of the decision. However, it was precisely these

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documents which would reveal the manner in which the valuation was arrived at, and thus to assist the appellants in deciding whether they have a good cause of action. In addition, the respondents argued that pre-action discovery should not be given for the working papers and documents created or prepared by the respondents because it was generally difficult to prove negligence or failure to attain the professional standard of skill and care which a valuer had impliedly agreed to observe. If a valuer had adopted one of the standard techniques of professional valuers, he would not be liable for failing to use some alternative method which other valuers use. In this instance, the respondents might well have used a different method from KPMG Peat Marwick. Moreover, a valuer is not liable merely because he overvalues or undervalues; there is a permissible margin of error within which his valuation can fall. The respondents therefore observed that even if discovery was given, the appellants may well decide that they do not have a good cause of action. Again, this argument could not succeed. It was not the court’s function, at this stage of the application, to dwell into the merits of the case and to determine, based on what little available evidence, whether there is a good claim or not. The court’s duty is only to ensure that the application was not frivolous or speculative or that the applicants were on a fishing expedition. It is precisely because the appellants feel that they have a claim that they are seeking pre-action discovery to determine whether the documents would ground their cause of action. As Denning MR said in Dunning, the object of pre-action discovery would be defeated if the appellants had to show in advance that they had already got a good cause of action before they saw the documents. In the result, we were of the view that the documents and working papers which were relied upon, referred to or used by the respondents were relevant to an issue likely to arise out of the claim which was likely to be made in the intended proceedings; and that they were necessary for disposing fairly of the cause or matter. We therefore allowed the appeal with costs here and in the High Court. The order of the High Court was set aside and we directed that the order of the assistant registrar be restored.

15. Deeming of authenticity of documents

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Order for discovery of particular documents (O. 24, r. 5) 5. (3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has, or at some time had, in his possession, custody or power, the document, or class of document, specified or described in the application and that it falls within one of the following descriptions: (a) a document on which the party relies or will rely; (b) a document which could — (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may — (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case.

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when serve docs on you, you are deemed to accept their authencity.

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First to prove to court that this doc is admissible when prod doc in court. First to have court recog tt it is a true letter. Proved by witness etc. but stimes may not be easy to prove because witneses dead, etc

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So will have to file notice of non admission within 14 days for time limited for inspection of docs or actual inspection whichever is later  So shld file notice objecting quickly  In practice many pple don’t concentrate on this List of documents to contain a notice to inspect in Form 39 A party deemed to admit authenticity of documents in list if he does not object to it within 14 days of the time limited for inspection - O 27 r 4

Admission and production of documents specified in list of documents (O. 27, r. 4) 4. —(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in

evidence of any document, a party on whom a list of documents is served in pursuance of any provision of Order 24 or any order made thereunder shall, unless the Court otherwise orders, be deemed to admit — (a) that any document described in the list as an original document is such a document and was printed, written, signed or executed as it purports respectively to have been; and (b) that any document described therein as a copy is a true copy. This paragraph does not apply to a document the authenticity of which the party has denied in his pleading. (2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection of those documents expires, whichever is the later, the party to whom the list is served serves on the party whose list it is a notice stating, in relation to any documents specified therein, that he does not admit the authenticity of that document and requires it to be proved at the trial, he shall not be deemed to make any admission in relation to that document under paragraph (1). (3) A party to a cause or matter by whom a list of documents is served on any other party in pursuance of any provision of Order 24 or any order made thereunder shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession, custody or power. (4) Paragraphs (1) to (3) apply in relation to an affidavit made in compliance with an order under Order 24, Rule 5, as they apply in relation to a list of documents served in pursuance of any provision of that Order or any order made thereunder. Notices to admit or produce documents (O. 27, r. 5) 5. —(1) Except where Rule 4 (1) applies, a party to a cause or matter may within 14 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit the authenticity of the documents specified in the notice. (2) If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any document therein specified he must, within 14 days after service of the notice, serve on the party by whom it was given a notice stating that he does not admit the authenticity of the document and requires it to be proved at the trial. (3) A party who fails to give a notice of non-admission in accordance with paragraph (2) in relation to any document shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders. (4) Except where Rule 4 (3) applies, a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter. (5) A notice to admit, a notice of non-admission and a notice to produce documents shall be in Forms 53, 54 and 55, respectively. 16. Restriction on use of privileged document, inspection of which has been inadvertently allowed (O. 24, r. 19) 19. Where a party inadvertently allows a privileged document to be inspected, the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained

17. Duties of the solicitor – important!!! Failure to comply with requirement for discovery, etc. (O. 24, r. 16) 16 (4) A solicitor on whom such an order made against his client is served and who fails, without reasonable excuse, to give notice thereof to his client shall be liable to committal. (5) A party who is required by any Rule in this Order, or by any order made thereunder, to make discovery of documents or to produce any document for the purpose of inspection or any other purpose, but who fails to comply with any provision of that Rule or with that order, as the case may be, may not rely on those documents save with the leave of the Court. Koh Teck Hee v Leow Swee Lim [1992] 1 SLR 905 - The law requires solicitors to take positive steps to ensure that his client is aware of the precise scope of the obligation to make full and proper discovery. This must be done at an early stage of the litigation. Client must locate all potentially relevant documents and pass them to his solicitor who will determine if they must be disclosed  - Solicitor must also take steps to ensure that all discoverable documents are preserved. Ambit of the duty is illustrated by

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- Myers v Elman [1940] AC 282 – sols left it to his clerk to do the discovery. Court took him to task – deficiency. He was ordered to pay the costs of part of the action. Court has juris over solicitor as officer of court - Woods v Martins Bank [1959] 1 QB 55 – sol wrote wrong letter about what client oblig as to discovery was. Then left someone else to do the discovery. Court said that cannot. Still dereliction of duty.

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- Rockwell Machine Tool Co v Ep Barrus [1968] 1 WLR 693 – corporate client they have practice of regularly destroying docs. 3 yr doc destruction policy. Fr time there is prospect of litigation, advise client of need to maintain and preserve all relevant doc. Legal Profession (Professional Conduct) Rules 1998, Rule 58  - An advocate & solicitor shall cease to act for a client if – • (a) the client refuses to authorise him to make some disclosure to the Court which his duty to Court requires him to make; or (b) having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery, the client fails forthwith to disclose it. But no need to tell court. Judge yourself. Only oblig to discharge yourself.

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18. Implied undertaking not to use documents for a collateral / ulterior purpose Court insist that other side x abuse documents Why this implied undertaking not to use docs beyond case –  1. these are private docs 2. court jealous abt parties complying with discovery. So flipside is that upon production, they are not abused. => pro,mote discovery Microsoft Corporation v SMN Summit Holdings Ltd [1999] 4 SLR 529 implied undertaking not to use documents disclosed by the other party for a collateral or improper purpose ie other than for the purpose of the proceedings in which discovery was made, unless leave of Court is granted. breach can result in contempt proceedings and/or injunction to restrain unjustified use leave of Court is only granted in very exceptional circumstances (because of public interest involved) Reebok International Ltd v Royal Corp [1992] 2 SLR 136 – see above The implied undertaking does not apply if a party voluntarily discloses the documents (not being compelled to do so) Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR 833 – parties filed affidavit in support – issue of which liquidator shld be appted. One party filed affidavit and attached to docs. Court said that docs in affidavit – no implied undertaking not to abuse because those not prod pursuant to order of court to prov discoveyr; they prod of their own accord. Ie if you file affidavit withot compulsion then implied undertaking is off. From a ptent case: “16. The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process. It is in no sense implied as a result of dealings between the parties. The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action. Had he thought of it, he might well have wanted full freedom to do what he liked with the material, particularly if his own discovery is non existent or very limited. So the obligation is not to be likened to a term implied in a contract between the parties to the litigation. On the contrary, it is an obligation to the court, not the other party, which is implied. It is for that reason that its breach is treated as contempt.

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Microsoft Corporation v SMN Summit Holdings Ltd [2000] 1 SLR 343;

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The obligation is imposed as a matter of law. The point was put clearly by Hobhouse J. in Prudential Assurance Co. v. Fountain Page Ltd. [1991] 1 WLR 756 at 764:

"This undertaking is implied whether the court expressly requires it or not. The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information. However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from. It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanction which the court may impose (viz. contempt of court) and can be relieved or modified by an order of the court." 17. The reasons for the creation of such an obligation were summarised by BrowneWilkinson V-C in Derby v. Weldon (No. 2) (The Times 20 October, 1988): "The approach of English law is that discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy in relation to his own documents. As a result of the public interest in ensuring that all relevant information is before the Court in adjudicating on the claim in the action, that right of privacy is invaded and the litigant is forced, under compulsion by the process of discovery, to disclose his private documents. But, such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given, the Court is astute to prevent a document so obtained from being used for any other purpose. As a result the law is well established that the recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not, without the consent of the Court, to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed. ... A breach of the implied undertaking is a contempt of Court." 18. It is because a party is required to make disclosure for the purpose of particular proceedings that the court will protect it against further dissemination. I think it would be just as much a contempt of court for, say, a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so. Certainly the implied undertaking applies to the parties' lawyers. The contrary was not suggested.


19. inspection of documents o24r9-14 Inspection of documents referred to in list (O. 24, r. 9) 9. A party who has served a list of documents on any other party in compliance with an order under Rule 1 must allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copies thereof and, accordingly, he must when he serves the list on the other party also serve on him a notice in Form 39 stating a time within 7 days after the service thereof at which the documents may be inspected at a place specified in the notice. Inspection of documents referred to in pleadings and affidavits (O. 24, r. 10) 10. —(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof. (2) The party on whom a notice is served under paragraph (1) must, within 4 days after service of the notice, serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice, and stating which (if any) of the documents he objects to produce and on what grounds. Order for production for inspection (O. 24, r. 11) 11. —(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) — (a) fails to serve a notice under Rule 9 or, as the case may be, Rule 10 (2); (b) objects to produce any document for inspection; or (c) offers inspection at a time or place such that, in the opinion of the Court, it is unreasonable to offer inspection then or, as the case may be, there, then, subject to Rule 13 (1), the Court may, on the application of the party entitled to inspection, make an order in Form 42 for the production of the documents in question for inspection at such time and place, and in such manner, as it thinks fit. (2) Without prejudice to paragraph (1), but subject to Rule 13 (1), the Court may, on the application of any party to a cause or matter, order any other party to permit the party applying to inspect any documents in the

possession, custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder. (3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession, custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder. Order for production to Court (O. 24, r. 12) 12. —(1) At any stage of the proceedings in any cause or matter the Court may, subject to Rule 13 (1), order any party to produce to the Court any document in his possession, custody or power that falls within one of the following descriptions: (a) documents on which a party applying relies or will rely; (b) documents which could — (i) adversely affect a party’s case; or (ii) support a party’s case; and (c) documents which may lead to a train of inquiry resulting in the obtaining of information which may — (i) adversely affect a party’s case; or (ii) support a party’s case. (2) The Court may deal with the document when produced in pursuance of an order made under paragraph (1) in such manner as it thinks fit. Production to be ordered only if necessary, etc. (O. 24, r. 13) 13. —(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing Rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. (2) Where on an application under this Order for the production of any document for inspection or to the Court privilege from such production is claimed or objection is made to such production on any other ground, the Court may inspect the document for the purpose of deciding whether the claim or objection is valid. Production of business books (O. 24, r. 14) 14. —(1) Where the production of any business books for inspection is applied for under any of the foregoing Rules, the Court may, instead of ordering the production of the original books for inspection, order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books. (2) Any such affidavit shall state whether or not there are in the original book any, and, if so what, erasures, interlineations or alterations. (3) Notwithstanding that a copy of any entries in any book has been supplied under this Rule, the Court may order production of the book from which the copy was made. B. INTERROGATORIES Jurisdiction SCJA: Discovery and interrogatories. 12. Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court Order 26 – interrogatories between parties

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i) What are interrogatories? Asking qns of other side – rarely used, only when dispute is very factual eg fraud case method of discovery of material facts by which written questions are delivered by one party to another relating to a matter in question between them in the cause or matter ii) When are interrogatories useful? rarely used as a matter of practice. where one party must rely on another as a sole source of information. e.g. Plaintiff injured in accident in which there are no independent witnesses and where he cannot recall the events.

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where parties have different versions of the same set of circumstances, interrogatories can be used as a way of obtaining admissions so as to narrow the issues in dispute iii) purpose

Discovery by interrogatories (O. 26, r. 1) 1. —(1) A party to any cause or matter may, in accordance with the following provisions of this Order, serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either — (a) for disposing fairly of the cause or matter; or (b) for saving costs. Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal [1992] 2 SLR 710 15 We consider first the appeal in the 1987 action. Chao Hick Tin JC refused to give leave to the appellants to serve the interrogatories on OCBC and refused to order a further and better list of documents to be furnished by OCBC. On the interrogatories, Chao Hick Tin JC stated the well-known principles that interrogatories are admissible if they support the applicant’s case or destroy the opponent’s case and would only be allowed if they are considered necessary either for disposing fairly of the cause or matter or for saving costs. He held that in relation to a defamation action, where the defence of fair comment is raised, a defendant would be allowed to interrogate as to the truth of the matters or particulars pleaded in order to obtain an admission Sheikh Abdullah Bin Sheikh Mohamed V Kang Kock Seng & Ors [1974] 1 Mlj 174 I am not informed what is the connection between the answers to these interrogatories and the main question in issue and their real purpose. Question 1 enquires whether the first defendant had been the financier of the plaintiff and the other defendants since 1965. The other five questions are about a transaction between the company and a mining company in 1969, some related matters and payments alleged to have been made by the mining company to the first defendant sometime in January 1970. From the plaintiff`s own statement of claim he was in the company till about January, 1970 and question I itself suggests that the first defendant had also been financing him. All these matters should therefore be within the knowledge of the plaintiff. On this very consideration I cannot see that the particulars required are necessary at all. Further, in the action the plaintiff is charging fraud. It is therefore a matter for the plaintiff to prove the particulars of fraud set out in his statement of claim and not for any of the defendants to supply him with those particulars. To the objection that the questions may incriminate the defendants, the solicitor for the plaintiff merely says that it is necessary to the plaintiff`s case that he should get definite answers from the first defendant to the questions, particularly those relating to the transaction with the mining company. From this it is clear that the plaintiff is fishing for evidence as to whether or not the defendants made a vast sum of money out of the transaction with the mining company. In any case, the plaintiff should be able to show the amount involved in the transaction, since an undertaking has been given that the proper officer of the mining company would give evidence on the transaction. The solicitor then mentions that the plaintiff is somewhat apprehensive of the evidence that may be given by the officer of the mining company. I fail to understand this as the defence side has told me that the officer who would be in a position to give the necessary evidence is none other than Mr AJ Taylor, a former judge of the High Court in this country, and who is now the legal officer of the mining company. I would disallow the questions on this very ground, apart from the fact that it has not been shown that the questions would not incriminate the defendants. In addition to all the above, on the authority of Ellis v Ambler 36 TLR 410, I do not have to consider the application at all, as the plaintiff has given no reason for presenting the interrogatories after the pleadings have closed. In that case, the plaintiff applied for leave to deliver interrogatories after having closed the pleadings. He gave no reason for the delay. The judge refused leave without even looking at the interrogatories. On appeal, the court refused to interfere with the discretion of the judge in Chambers. The case is on all fours with the present case. In fact the present case goes further against the plaintiff. He had all the opportunities to deliver the interrogatories much earlier as the statement of claim was amended twice. The solicitor while preparing the amendments should have realised whether or not the interrogatories would be necessary. The solicitor appearing on behalf of the plaintiff now says it was his fault. Whether or not it was his fault does not answer the question whether the questions are necessary at all, and does not make the circumstances exceptional for the court to exercise its discretion in granting leave. Ordinarily in an application for leave to deliver interrogatories after the pleadings have closed exceptional circumstances must be shown: see Atkins Court Forms 2nd Ed vol 22, page

367. To my mind the circumstances to be shown must be of such a nature that the applicant could not have foreseen after the exercise of due diligence. None has been shown here. On any consideration I can see no ground for granting this application. It is dismissed with costs. Application dismissed. iv) How to apply O26 r 2

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Serve a list of questions in Form 49 with a note specifying time (not less than 28 days) in which they are to be answered If other party fails to provide answers, Court can make such order as it thinks just including an order that an action be dismissed or a defence struck out and judgment entered

O 26 r 6 O 26 r 3(2)  If other party does not wish to answer, must take out application for interrogatories to be withdrawn within 14 days of service

v) -

Court’s discretion to order interrogatories test of relevance and necessity similar to that for discovery O 26 r 1 interrogatories must be necessary for disposing fairly of the matter or for saving costs. Eg no need to call witness etc  must demo real saving of time and costs order 26 rule 1.1 and 26A rule 2

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Overseas-Chinese Banking Corporation Ltd v Wright & Ors [1989] 3 MLJ 73 Held allowing the plaintiffs` appeal: (1).Interrogatories were admissible if they came to support the applicant`s case or to impeach or destroy the opponent`s case. (2).Interrogatories would only be allowed as should be considered necessary either for disposing fairly of the matter or for the saving of costs. If the admission of a fact could be proved by a witness who would be called at the trial, interrogatories would not, as a rule, be allowed because they would add to the costs. (3).Where the defence of fair comment was raised, a defendant would be allowed to interrogate as to the truth of the matter or particulars pleaded in order to obtain an admission. (4).The answers to interrogatories 1, 3, and 5 were self-evident and could have been easily obtained by putting the questions to the witnesses for the plaintiffs. The plaintiffs were also not in a position to answer interrogatory 4. (5).The defence had failed to set out specific instances of the plaintiffs` negligence. If they had particularized specific instances of negligence, then interrogatories could be raised on those specific instances of negligence. (6).By interrogatories 6 and 7, the defendants were in effect asking the plaintiffs, `please tell us what steps you have not taken so I could show negligence on your part and thus substantiate my comment as fair comment.` This was a clear case of fishing. (7).The defendants hoped that through the interrogatories process, they would be able to stumble upon something which would show their comment to be fair. This was not a legitimate function of interrogatories. A person who had defamed another could not by the plea of fair comment be allowed to pry into the affairs of the injured. (8).Although it was not necessary to decide the point, as a matter of logic, if the defendant wished to rely on certain facts to support his plea of fair comment, those facts must, at least, have been at the back of his mind when making the comment. (9).As regards the order for the plaintiffs to serve a further and better list of documents, generally, a list of documents once verified, would be conclusive. But a party may be ordered to give a further and better list where it appeared from the list itself, or from the documents referred to in it, or from admissions made, that the party had other documents in his possession, custody or power. (10).The facts did not indicate that there were other documents of the plaintiffs which fell within any of the above categories. Even if there were such documents, those that came into existence after the alleged libel had been published could have no bearing where the plea was fair comment. (11).The defendants` application for a further and better list of documents had exactly the same aim as their application for interrogatories, and was no less a fishing expedition than the interrogatories.

irrelevant and unnec interrogatories – order 26 rule 1.3 Discovery by interrogatories (O. 26, r. 1) 1. (3) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness. vi) No interrog against govt order 26 rule 3.3 Interrogatories without Order (O. 26, r. 3) 3. —(1) Interrogatories without order may be served on a party not more than twice. (2) A party on whom interrogatories without order are served may, within 14 days of the service of the interrogatories, apply to the Court for the interrogatories to be varied or withdrawn and, on any such application, the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order). (3) Interrogatories without order shall not be served on the Government.

vii)

Privilege

viii) Interrog between parties Form and nature of interrogatories (O. 26, r. 2) 2. —(1) Where interrogatories are served, a note at the end of the interrogatories shall specify — (a) a period of time (not being less than 28 days from the date of service) within which the interrogatories are to be answered; (b) where the party to be interrogated is a body corporate or unincorporate which is empowered by law to sue or be sued whether in its own name or in the name of an officer or other person, the officer or member on whom the interrogatories are to be served; and (c) where the interrogatories are to be served on 2 or more parties or are required to be answered by an agent or servant of a party, which of the interrogatories each party or, as the case may be, an agent or servant is required to answer, and which agent or servant. (2) Subject to Rule 5 (1), a party on whom interrogatories are served shall, unless the Court orders otherwise on an application under Rule 3 (2), be required to give within the period specified under Rule 2 (1) (a) answers, which shall (unless the Court otherwise directs) be on affidavit. (3) Interrogatories without order when served shall be in Form 48 save for the reference to an Order of Court. The answer to interrogatories without order shall be in Form 50 save for the reference to an Order of Court. (4) Ordered interrogatories when served shall be in Form 48. The order for interrogatories shall be in Form 49 and the answers to ordered interrogatories shall be in Form 50. Interrogatories without Order (O. 26, r. 3) 3. —(1) Interrogatories without order may be served on a party not more than twice. (2) A party on whom interrogatories without order are served may, within 14 days of the service of the interrogatories, apply to the Court for the interrogatories to be varied or withdrawn and, on any such application, the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order). (3) Interrogatories without order shall not be served on the Government. Ordered interrogatories (O. 26, r. 4) 4. —(1) Where an application is made for leave to serve interrogatories, a copy of the proposed interrogatories shall be served with the summons in Form 44 or 47 or the notice under Order 25, Rule 7, as the case may be, by which the application is made. (2) In deciding whether to give leave to serve interrogatories, the Court shall take into account any offer made by the party to be interrogated to give particulars, make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered. Objections and insufficient answers (O. 26, r. 5) 5. —(1) Without prejudice to Rule 3 (2), where a person objects to answering any interrogatory on the ground of privilege, he may take the objection in his answer. (2) Where any person, on whom ordered interrogatories have been served, answers any of them insufficiently, the Court may make an order requiring him to make a further answer, either by affidavit or on oral examination as the Court may direct. (3) Where any person, on whom interrogatories without order have been served, answers any of them insufficiently, the party serving the interrogatories may ask for further and better particulars of the

answer given and any such request shall not be treated as service of further interrogatories for the purposes of Rule 3 (1). ix) Failure to comply Failure to comply with Order (O. 26, r. 6) 6. —(1) If a party fails to answer interrogatories or to comply with an order made under Rule 5 (2) or a request made under Rule 5 (3), the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly. (2) Without prejudice to paragraph (1), where a party fails to answer ordered interrogatories or to comply with an order made under Rule 5 (2), he shall be liable to committal. (3) Service on a party’s solicitor of an order to answer interrogatories made against the party shall be sufficient service to found an application for committal of the party disobeying the order, but the party may show in answer to the application that he had no notice or knowledge of the order. (4) A solicitor, on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client, shall be liable to committal. x) Liability of solicitor Failure to comply with Order (O. 26, r. 6) 6(4) A solicitor, on whom an order to answer interrogatories made against his client is served and who fails without reasonable excuse to give notice thereof to his client, shall be liable to committal. xi) Use of answers to interrogatories at trial O26 rule 7 Use of answers to interrogatories at trial (O. 26, r. 7) 7. A party may put in evidence at the trial of a cause or matter, or of any issue therein, some only of the answers to interrogatories, or part only of such answer, without putting in evidence the other answers or, as the case may be, the whole of that answer, but the Court may look at the whole of the answers and if of opinion that any other answer or other part of an answer is so connected with an answer or part thereof used in evidence that the one ought not to be so used without the other, the Court may direct that that other answer or part shall be put in evidence. Special classes of interrogatories a) Pre-action interrogatories Interrogatories against other person (O. 26A, r. 1) 1. —(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons. (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons, which must be served on that person personally and on every party to the proceedings. (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must — (a) in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and (b) in any case, specify the interrogatories to be administered and show, if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both. (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served. (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order, and on such terms as it thinks just.

(e) O 26A r 1(1) (f) Procedure for application O26A r1.3-4 Interrogatories against other person (O. 26A, r. 1) 1. —(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons. (2) An application after the commencement of proceedings for an order to administer interrogatories to a person who is not a party to the proceedings shall be made by summons, which must be served on that person personally and on every party to the proceedings. (3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must — (a) in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and (b) in any case, specify the interrogatories to be administered and show, if practicable by reference to any pleading served or intended to be served in the proceedings that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both. (4) A copy of the supporting affidavit shall be served with the originating summons or summons on every person on whom the originating summons or summons is required to be served. (5) An order to administer interrogatories before the commencement of proceedings or to administer interrogatories to a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order, and on such terms as it thinks just. (g) application by OS with supporting affidavit (h) requirements of affidavit similar to that of preaction discovery ie state grounds and material facts and whether person is likely to be a party (i) must also show relevance of questions to issues arising or likely to arise b) Interrogatories against non-parties - O 26A r 1(2) - application by SIC with supporting affidavit. - affidavit must be personally served on the person and on every party to the proceedings. C. SUMMONS FOR DIRECTIONS - O 25 purpose

Summons for directions (O. 25, r. 1) 1. —(1) With a view to providing, in every action to which this Rule applies, an occasion for the consideration by the Court of the preparations for the trial of the action, so that — (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof, the plaintiff must, within one month after the pleadings in the action are deemed to be closed, take out a summons in Form 44 (referred to in these Rules as a summons for directions) returnable in not less than 14 days. Auto Clean 'N' Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409 In disallowing the plaintiffs’ applications, the learned judge took into account what he described as ‘three basic matters in relation to summons for directions’. First, all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions. Only unforeseen matters should be the subject of subsequent interlocutory applications. There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or, in the words of the judge, ‘affidavits to re-shape evidence after sighting the opponent’s evidence’. Second, a party asking

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the court to exercise a discretionary power in his favour must provide the court with maximum possible information. In other words, the party must provide good reasons to serve as material upon which the court’s discretion may be exercised. Third, while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders, this was usually not a sufficient reason for the court to grant an indulgence to the defaulting party; otherwise, solicitors could always defeat the effect and purpose of the rules and orders through their negligence. The learned judge was of the view that, save for the new witness Henry Loh, the plaintiffs were not entitled to their application on the ground that they did not provide a satisfactory explanation as to why they could not have named all the witnesses at an earlier stage, why it was necessary to call the new witnesses, and why the two named witnesses could not have filed their affidavits of evidence in chief in time. The appeal Counsel for the plaintiffs before us did not take issue with the general principles adumbrated by the learned judge. However, he submitted that the learned judge erred in failing to have sufficient regard to another cardinal principle that is central to our legal system, and that is, the prerogative of each party to call all witnesses he deems fit in support of his case: Briscoe v Briscoe [1967–68] P 501, at p 504. He argued that, when this prerogative is being exercised by a party long before the actual trial, as in this case, the court should be slow to deny the party the right to call the witnesses, unless it would result in serious prejudice to the opponent that cannot be remedied by costs or by allowing the opponent to adduce new or fresh evidence in reply, if such a need should arise. In this case, there was no such prejudice. We were in substantial agreement with this argument. As expressly spelt out in O 25 r 1, the object of the summons for directions is to provide an occasion for consideration by the court of the preparations for the trial of the action, so that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may, so far as possible, be dealt with, and such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal of the proceedings. The rules in O 25 are framed to achieve this objective. The court on hearing the summons for directions has the duty to consider all matters which must or can be dealt with on interlocutory applications and have not been already dealt with: O 25 r 2. In so far as evidence to be adduced at the trial is concerned, O 25 r 3 sets out a comprehensive list of matters which the court has to consider. Rule 3, in so far as relevant to this appeal, provides: On the hearing of the summons for directions, the Court shall consider the appropriate orders or directions that should be made to simplify and to expedite the proceedings and particularly — the period within which the parties have to file and to exchange affidavits of the evidence in chief of all witnesses named in the summons for directions who may give evidence at the trial and the bundles of documents referred to therein; whether the number of witnesses shall be limited to those specified in the order and whether the evidence-inchief of the witnesses specified be each limited to a single affidavit; he mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain an affidavit of that witness‘s evidence-in-chief and the manner in which the said evidence shall be disclosed to the other parties prior to the trial. … Thus these rules empowered the court to give directions on, among other things, the exchange of affidavits of evidence in chief between the parties. The scheme of adducing evidence in chief by way of affidavits is designed to achieve a fair and expeditious disposal of proceedings, to save costs and to eliminate any element of surprise: see Lee Kuan Yew & Anor v Vinocur & Ors and another action [1995] 3 SLR 477, at p 484. By the operation of these rules, the parties are required to disclose substantially their evidence at the early stage of the proceedings and they would then be able to assess the respective strengths and weaknesses of their cases. This in turn would facilitate and encourage them to come to a settlement. In considering the question of simultaneous exchange of witnesses’ statements under the English O 38 r 2A(2) of the Rules of the Supreme Court (which is somewhat similar to our exchange of affidavits of evidence-in-chief) in Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 W L R 367 at p 373, Lord Donaldson of Lymington MR had this to say: Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation, taking the form of increased positive case management by the judiciary and the adoption of procedures designed (a) to identify the real issues in dispute and (b) to enable each party to assess the relative strengths and weaknesses of his own and his opponent’s case at the earliest possible moment and well before any trial. Not only does this tend to make for shorter trials and save costs, even more important it facilitates and encourages settlements. The most important change has been the requirement that, save in exceptional cases, witness statements be exchanged prior to the trial.

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Reverting to the instant case, we respectfully agree with the learned judge on the following: that all matters which must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in the summons for directions, that a party seeking to persuade the court to exercise its discretionary power must provide adequate information; and that generally fault or neglect of a solicitor in complying with the rules of court or court orders is not sufficient reason for the court to grant an indulgence to the defaulting party. Lastly, parties to litigation must comply with the rules and the orders of court. That having said, it must be appreciated that an order or orders made under these rules at the interlocutory stage are not immutable and certainly at that stage finality cannot be achieved. With reference to complying with O 25 r 3, the court must always be conscious of the fact that circumstances may and do arise which result in parties being unable to name all their witnesses at the stage of the summons for directions and, consequently, leave should be given to allow the parties to introduce new witnesses subsequent to the directions that have been given. There are multiple reasons for this, such as the failure of parties in giving proper or adequate instructions to their solicitors at the initial stage, failure of the parties and those advising them in properly weighing or assessing the evidence, subsequent amendments to pleadings, discovery of evidence relevant to the claim or defence or some other new development arising. Whatever the case may be, we think that the courts should not adopt an unduly rigid or restrictive approach in considering the directions to be given concerning matters pertaining to the trial or hearing. Instead, a balance should be struck between the need to comply with the rules and the parties’ right to call witnesses whom they deem necessary to establish their case. It may well be that the additional evidence to be adduced by the parties may assist in illuminating the issues before the court or result in the expeditious disposal of the proceedings. If, however, it really turns out at the trial that the evidence adduced is unnecessary, irrelevant or vexatious, the trial judge is in full control and is in a position to deal with the party adducing such evidence in an appropriate way, such as by disallowing the evidence which is being elicited from the witness and/or by an order as to costs. It must always be borne in mind that the duty of the court is to examine all the evidence put forward by the parties which is material and relevant to the dispute between the parties and not to shut out potentially material and relevant evidence by a strict adherence to the rules of civil procedure. Reverting to this case, we saw no difficulty in allowing the plaintiffs to call the additional witnesses to give evidence and in granting an extension of time for the plaintiffs’ two witnesses, Low Choon Yee and Connie Teo Ping Ling, to file their affidavits of evidence-in-chief. The proceedings are still at a relatively early stage and no prejudice would be caused to the defendants. In particular, the action had not even been set down for trial, and clearly the defendants would have sufficient time and opportunity to consider, and, if necessary, to respond to the evidence. There would thus be no element of surprise. Quite the contrary, by placing all the necessary and relevant evidence on record, the plaintiffs are acting consistently with the guiding principle behind the scheme of requiring parties to serve on each other affidavits of evidence-inchief of the witnesses, which is conveniently summed up by the phrase ‘placing the cards on the table’. In this connection, we agreed with the criticism expressed by the learned judge that he could not comprehend the limitation imposed by the assistant registrar, ie that the evidence was to be confined to the evidence already stated in the affidavits filed. That limitation, with respect, was meaningless and ought not to have been imposed. Time:

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Plaintiff to take out summons for directions within 1 month after the close of pleadings If Plaintiff fails to do so, Defendant can also apply or alternatively, may apply for action to be dismissed

procedure: see above rule 1.1 actions to which order 25 does ot apply – rule 1.2a-g

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Order 24 rule 1 (2) This Rule applies to all actions begun by writ except — (a) actions in which the plaintiff or defendant has applied for judgment under Order 14; (b) actions in which the plaintiff or defendant has applied under Order 18, Rule 22 for trial without pleadings or further pleadings and directions have been given under that Rule; (c) actions in which an order has been made under Order 24, Rule 2 for the trial of the issue or question before discovery;

(d) actions in which directions have been given under Order 29, Rule 7; (e) actions in which an order for the taking of an account has been made under Order 43, Rule 1; (f) actions which have been referred to the Registrar for trial; (g) actions for which automatic directions are provided by Rule 8; and (h) non-injury motor accident actions as defined in Order 59, Appendix 2 Part V, filed in the Subordinate Courts. (3) [Deleted by S 551/99] conseq of failure of plaintiff to take out SFD

 O 25 r 1(4)-f Order 25 rule 1 (4) If the plaintiff does not take out a summons for directions in accordance with paragraphs (1) and (2), the defendant or any defendant may do so or apply for an order to dismiss the action. (5) On an application by a defendant to dismiss the action under paragraph (4), the Court may either dismiss the action on such terms as may be just or deal with the application as if it were a summons for directions. 
Law Mun & Ors V Chua Lai Seng & Ors [1984] 2 Mlj 328 • The first issue here is whether this action which is already part heard should now be dismissed for the failure of the Plaintiffs to take out a Summons for Directions under O 25 r 1 (4) or for alleged want of prosecution for failure to set down the action for trial or to give notice of trial as provided by O 34 r 2(2) and r 8(1) respectively. • …The omission to take out the Summons for Directions was a somewhat more difficult point. Mr Suppiah`s argument is that O 25 r 1(1) is mandatory and that O 25 r 1(4) gave the Defendant an option to apply for an order to dismiss the action. He seems to imply that not having the privilege of discovery by way of Affidavits of Documents, Interrogatories, and Inspection had seriously prejudiced the first Defendant in his preparation for the trial of this action. • The Plaintiffs on the other hand relied upon O 25 r 2(a), the material words of which read:- … • My reading of the meaning of these rules is that the application for Summary judgment became a notional Summons for directions when the order granting conditional leave was made, and O 25 rr 2 to 7, must be applied mutatis mutandis to this situation. It is a misconception for the defendant to contend, as was done in this case, that O 25 r 1(4) gives him an option only to apply for a dismissal of the action in such a situation. The defendant is also entitled under O 25 r 1(4) to apply for any directions he thinks necessary for the proper conduct of the trial and that option was open to him at all material times on and after 16 February 1984. A number of applications were in fact made on behalf of the first Defendant before the hearing date, but it was never contended until 17 April 1984 that a Summons for Directions should be taken out. • With the greatest respect to Counsel for the first Defendant this was too late to try and turn the clock back. Once the trial began the general directions which may have been of moment earlier, must of necessity have turned to the specific. If there is any particular document that needs to be discovered even at a late stage or any special direction that needs to be issued in the interests of justice the court in a proper case will always entertain the application if not under any specific rules (See e.g. O 24 rr 7 and 8, O 26 rr 2 and 9) then under the inherent jurisdiction of the court. This is not an ordinary case. The Affidavits filed in connection with the application for summary judgment were very voluminous on both sides and perhaps one may be excused for having taken the view that both sides had disclosed every document relevant to the claim or the defence as the case may be. As Solicitor for both parties, one may be excused perhaps for thinking that the first Defendant would have known of the identity and existence of any other documents which were relevant to this matter and have commented on them in his Affidavits if there were such documents in existence. But there is no reference to any specific facts or documents in the Affidavit in support of the application before me, and I am unable to hold that the Defendant has been prejudiced by the omission to go through the motions of taking out a Summons for Directions in the present case. Accordingly I hold that there is no substance in the first point also.

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Application to counterclaims – rule 1.6

Order 25 rule 1 (6) In the case of an action which is proceeding only as respects a counterclaim, references in this Rule to the plaintiff and defendant shall be construed respectively as references to the party making the counterclaim and the defendant to the counterclaim. Duty and power of court

Duty to consider all matters (O. 25, r. 2) 2. —(1) When the summons for directions first comes to be heard, the Court shall consider whether — (a) it is possible to deal then with all the matters which, by Rules 3 to 7, are required to be considered on the hearing of the summons for directions; or (b) it is expedient to adjourn the consideration of all or any of those matters until a later stage. (2) If when the summons for directions first comes to be heard, the Court considers that it is possible to deal then with all the said matters, it shall deal with them forthwith and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applications and have not already been dealt with are also then dealt with. (3) If, when the summons for directions first comes to be heard, the Court considers that it is expedient to adjourn the consideration of all or any of the matters which, by Rules 3 to 7, are required to be considered on the hearing of the summons, the Court shall deal forthwith with such of those matters as it considers can conveniently be dealt with forthwith and adjourn the consideration of the remaining matters and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applications and have not already been dealt with are dealt with either then or at a resumed hearing of the summons for directions. (4) If, on the summons for directions, an action is ordered to be transferred to the Subordinate Courts, nothing in this Order shall be construed as requiring the Court to make any further order on the summons. (5) If, on the summons for directions, the action or any question or issue therein is ordered to be tried before the Registrar, the Court may, without giving any further directions, adjourn the summons so that it can be heard by the Registrar, and the party required to apply to the Registrar for directions may do so by notice without taking out a fresh summons. (6) If the hearing of the summons for directions is adjourned without a day being fixed for the resumed hearing thereof, any party may restore it to the list on 2 days notice to the other parties. -

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Principles all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with, must be included in a Summons for directions only unforeseen matters should be the subject of subsequent interlocutory applications

Auto Clean ‘N’ Shine Services v Eastern Publishing Associates Pte Ltd [1997] 3 SLR 409

Common directions given by courts - Form 46 1) consolidation 2) amendment of pleadings 3) further and better particulars 4) specific discovery 5) interrogatories 6) witnesses, factual and expert 7) affidavits of evidence in chief 8) setting down, trial period and dates

interlocutory applications on SFD rule 7 Duty to make all interlocutory applications on summons for directions (O. 25, r. 7) 7. —(1) Any party to whom the summons for directions is addressed must so far as practicable apply at the hearing of the summons for any order or directions which he may desire as to any matter capable of being dealt with on an interlocutory application in the action and must, not less than 7 days before the hearing of the summons, serve on the other parties a notice in Form 46 specifying those orders and directions in so far as they differ from the orders and directions asked for by the summons. (2) If the hearing of the summons for directions is adjourned and any party to the proceedings desires to apply at the resumed hearing for any order or directions not asked for by the summons or in any notice given under

paragraph (1), he must, not less than 7 days before the resumed hearing of the summons, serve on the other parties a notice specifying those orders and directions in so far as they differ from the orders and directions asked for by the summons or in any such notice. (3) Any application subsequent to the summons for directions and before judgment as to any matter capable of being dealt with on an interlocutory application in the action must be made under the summons by 2 clear days notice to the other party stating the grounds of the application.

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Automatic directions apply to actions for personal injuries (excluding admiralty and medical negligence) and actions arising out of accidents on land due to a collision or apprehended collision: O25 r 8

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NB. Does not apply to actions where parties have applied for judgment under O 14 - O 25 r8(7) NB. For non-injury motor accident actions under O 59, Appendix 2 Part V - O25 r1A

D. SETTING DOWN O 34

Application and interpretation (O. 34, r. 1) 1. This Order applies to actions begun by writ and, accordingly, reference in this Order to an action shall be construed as references to an action so begun.

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Time set at summons for directions order 34 rule 2.1 conseq of failure by plaintiff to set down s34 rule 2.2

Time for setting down action (O. 34, r. 2) 2. —(1) Every order made on a summons for directions shall fix a period within which the plaintiff is to set down the action for trial and must contain an estimate of the length of the trial and specify the number of witnesses, if any. (2) Where the plaintiff does not, within the period fixed under paragraph (1), set down for trial, the defendant may set the action down for trial or may apply to the Court to dismiss the action for want of prosecution and, on the hearing of any such application, the Court may order the action to be dismissed accordingly or may make such order as it thinks just. (3) An action set down for trial must contain an estimate of the length of the trial and specify the number of witnesses (if any) and shall, subject to any directions under Rule 4, specify the list in which the action is to be put. docs to be lodged when setting down o34 r3

File a request in Form 61 and bundle containing writ, pleadings, previous directions given and a certificate in Form 62 that all affidavits of evidencein- chief required to be exchanged have been so exchanged

Filing documents when setting down (O. 34, r. 3) 3. —(1) In order to set down for trial an action, the party setting it down must deliver to the Registrar, a request in Form 61 that the action may be set down for trial together with a bundle for the use of the Judge consisting of one copy of each of the following documents: (a) the writ; (b) the pleadings (including any affidavits ordered to stand as pleadings), any notice or order for particulars and the particulars given; (c) all orders made on the summons for directions; and (d) a certificate in Form 62, signed by all parties to the action or their solicitors, to the effect that all affidavits of the evidence-in-chief of witnesses ordered or required to be exchanged pursuant to Order 25 have been so exchanged. (2) The bundle must be bound up in the proper chronological order and have endorsed thereon the names, addresses and telephone numbers of the solicitors for the parties or, in the case of a party who has no solicitor, of the party himself.

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Notice of setting down to be served on the other parties

Notification of setting down (O. 34, r. 5) 5. —(1) A party to an action who sets it down for trial must, within 24 hours after doing so, notify in Form 63 the other parties to the action that he has done so. (2) It shall be the duty of all parties to an action entered in any list to furnish without delay to the Registrar all available information as to the action being or being likely to be settled, or affecting the estimated length of the trial, and, if the action is settled or withdrawn, to notify the Registrar of the fact without delay. docs to be lodged before trial o34 r3A

Filing documents prior to trial (O. 34, r. 3A) 3A. —(1) The following documents must be filed not less than 5 days before the trial of an action: (a) the originals of the affidavit of the evidence-in-chief of all witnesses; (b) a bundle of all documents that will be relied on or referred to in the course of the trial by any party, including any documents that are exhibited to the affidavits of the evidence-in-chief of all witnesses; and (c) where the trial is in the High Court, opening statements of all parties as may be prescribed in any practice directions for the time being issued by the Registrar. (2) Each party shall file the affidavits of the evidence-in-chief of that party’s witnesses. (3) The contents of the bundle of the documents referred to in paragraph (1) (b) shall be agreed on between all parties as far as possible and this bundle of agreed documents shall be filed by the plaintiff. (4) If the parties are unable to agree on the inclusion of certain documents, those documents on which agreement cannot be reached shall be included in separate bundles, and each such bundle shall be filed by the party that intends to rely on or refer to the documents in that bundle at the same time as the bundle of documents referred to in paragraph (1) (b). (5) The documents contained in bundles must be arranged chronologically or in some logical order and must be paginated. (6) Care must be taken to avoid duplication within the same bundle. (7) The contents and format of every bundle of documents filed in pursuance of this Rule shall comply with the requirements laid down in any practice directions for the time being issued by the Registrar. (8) Any party may apply at any time to the Registrar for directions as to the filing, bundling and organisation of documents intended to be used at the trial of the action, and, on such application, the Registrar may make such order or give such direction as he thinks is necessary to achieve the just, expeditious and economical conduct of the trial of the action. power of court to make orders and give directions o34 A r1

Directions relating to lists (O. 34, r. 4) 4. Nothing in this Order shall prejudice any power of the Chief Justice or the Senior District Judge, as the case may be, to give directions — (a) specifying the lists in which actions, or actions of any class or description, are to be set down for trial and providing for the keeping and publication of the lists; (b) providing for the determination of a date for the trial of any action which has been set down or a date before which the trial thereof is not to take place; and (c) as to the making of applications (whether to a Court or a Judge or the Registrar) to fix, vacate or alter any such date, and, in particular, requiring any such application to be supported by an estimate of the length of the trial and any other relevant information.

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O 34 r 2(2) - where P fails to set down, D may set down or may apply to dismiss the action for want of prosecution Affidavits of evidence-in-chief and bundles of documents to be filed not less than 5 days before trial - O 34 r 3A(1)

E. PRE-TRIAL CONFERENCE Power to make orders and give directions for the just, expeditious and economical disposal of proceedings (O. 34A, r. 1) 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. (1A) 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. (2) 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. (3) The Court may, in exercising its powers under paragraph (1), make such order as to costs as it thinks fit. (4) 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. Pre-trial conferences to be held when directed by the Court (O. 34A, r. 2) 2. —(1) 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. (2) 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. (3) The Court, having made directions under Rule 2 (2) or Rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit. (4) Any judgment or order made under Rule 2 (3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just. (5) [Deleted by S 283/97] (6) At any time during the pre-trial conference where the parties are agreeable to a settlement of some or all of the matters in dispute in the action or proceedings, the Court may enter judgment in the action or proceedings or make such order to give effect to the settlement. Notification of pre-trial conferences (O. 34A, r. 3) 3. All parties shall be informed of the date and time appointed for the holding of the pre-trial conference by way of a notice in accordance with Form 64, and each party shall comply with any directions contained in such notice. Attendance at pre-trial conferences by solicitor or in person as directed by the Court (O. 34A, r. 4) 4. Parties to the action or proceedings may be represented at the pre-trial conference by their solicitor, if any, but may, if they so desire, with the leave of the Court, attend the pre-trial conference personally, at the time originally appointed or as adjourned, in addition to their solicitor. Adjourned and subsequent pre-trial conferences (O. 34A, r. 5) 5. A pre-trial conference may be adjourned from time to time, either generally or to a particular date, as may be appropriate. Failure to appear of one or more of the parties (O. 34A, r. 6) 6. —(1) If, at the time appointed for the pre-trial conference, one or more of the parties fails to attend, the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit. (2) An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court, on the application of that party, on such terms as it thinks just. (3) Without prejudice to the preceding paragraphs of this Rule, where one or more of the parties to the action or proceedings fails to attend the pre-trial conference, the Court may, if it thinks fit, adjourn the conference. Non-disclosure (O. 34A, r. 7) 7. No communication of facts disclosed or of any matter considered in the course of a pre-trial conference in any action or proceedings shall be made to the Court conducting the trial of the action or proceedings.

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Failure to appear at a PTC - O 34A r6 – action may be struck out Non-disclosure at trial - O 34A r7 – informal process. Whatever is said in PTC cannot be told to trial judge – but you can use if you reduce it into writing ie get it into a letter so that it becomes correspondence

F. DISMISSAL FOR WANT OF PROSECUTION

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automatic discontinuance – order 21 r2 21 r 2(6) –

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where a year has lapsed since the last step or proceeding in the action, the action is deemed to have been discontinued Court may extend the one year period on application of a party prior to the expiration of this period this does not apply if there is a stay order in force

grds for dismissal

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [2001] 4 SLR 1 Facts The respondent (‘LKY’), and several others, separately sued the appellant (‘JBJ’) for defamation (respectively, ‘the present action’ and ‘Suit 225/97’). Suit 225/97 was heard first, and judgment was reserved. LKY, but not JBJ, indicated that he agreed to be bound by the court’s determination in Suit 225/97 as to the meaning of the defamatory words. Both parties in Suit 225/97 appealed against the judge’s decision. After the Court of Appeal gave its decision on 17 July 1998, LKY took no further steps or proceedings for some two years and four months. On 7 December 2000, LKY’s solicitor wrote to JBJ’s solicitor asking if JBJ agreed with the Court of Appeal’s determination of the meaning of the words, to which no reply was received. On 14 December 2000, LKY filed an application under O 14 r 12 of the Rules of Court for an order that the meaning of the defamatory words in the present action was that as found by the Court of Appeal (‘LKY’s application’). JBJ then applied to strike out the present action for want of prosecution, which was dismissed by both the senior assistant registrar and the High Court. He appealed. Held, dismissing the appeal: (1) JBJ’s contention that LKY failed to comply with O 3 r 5 of the Rules of Court was rejected as s 16(1)(c) of the Interpretation Act (Cap 1, 1999 Ed) was not applicable. First, s 16(2) c concerned only substantive, and not procedural, rights, and amendments to procedural rules affected the rights of parties retrospectively. Second, a ‘contrary intention’ was expressed in the Rules of Court as to the preservation of rights under O 3 r 5 by virtue of O 21 r 2(6) and (7), which were enacted simultaneously with the repeal of O 3 r 5. Additionally, r 2(6) was further amended, and applied to the present action by virtue of r 2(7). Section 18 did not apply as well as it related to the expiration, and not repeal, of written law. (2) LKY’s application was necessary and was a genuine step or proceeding in the action for the purposes of O 21 r 2(6), as JBJ, unlike LKY, never agreed to abide by the court’s determination of the meaning of the defamatory words. (3) An action would be struck out or dismissed for want of prosecution where – (a) the plaintiff’s default had been intentional and contumelious, (b) there had been inordinate and inexcusable delay on the plaintiff’s or his lawyer’s part giving rise to a substantial risk that a fair trial was impossible or that the defendant would suffer serious prejudice; or (c) there had been an abuse of court process, such as wholesale disregard of the rules of court or court procedure; if so, it was unnecessary to consider whether the limitation period had expired, or for the defendant to invoke either limb of the principles laid down in Birkett v James. (4) An action would not normally be struck out for inordinate and inexcusable delay if the limitation period applicable to the action had not expired and fresh proceedings for the same cause of action could still be brought as the fresh proceedings would simply cause more expense and delay. (5) Although LKY should have, but did not, applied for a fresh date for the trial of the present action, such default or inaction was not contumelious conduct. Further, the absence of explanation as to why no action was taken did not give rise to an inference of such conduct. There was no evidence that – (a) LKY’s conduct was intentional and contumelious, or (b) he had disobeyed any court order or procedure or rules of court, and neither did JBJ show that LKY had acted in such a way. (6) LKY’s delay was inordinate and inexcusable as it was long and no reason or explanation was given as to why no application was made for a fresh trial date. (7) LKY’s delay did not give rise to a substantial risk that a fair trial was impossible or that serious prejudice would be caused to JBJ. In contesting the present action, none of JBJ’s defences would be prejudiced by the delay, nor would it prejudice a fair trial of any of the issues involved. The unavailability of the particular Queen’s Counsel sought by JBJ did not amount to prejudice as he could have engaged other Queen’s Counsels to represent him. Furthermore, the delay was not an abuse of court process as there was no breach of, or non-compliance with any court order, or procedure, or rules of court.

(8) Even if LKY’s action was struck out, he could bring fresh proceedings based on the same cause of action as the limitation period in the present action had not expired. Hence, striking out would be of no benefit to JBJ and would only result in further costs and expenses being incurred. Per Curiam Deliberate failure to comply with an order of court, or a series of separate inordinate and inexcusable delays in complete disregard of the rules of court and with full awareness of the consequences, amounted to contumelious conduct. Such conduct also involved an element of scorn and intentional disregard of the rules of court or a court order. The "Tokai Maru" [1998] 3 SLR 105 Facts The respondents (“the owners”) were the owners of a vessel, the ‘Tokai Maru’. The first appellants (“the main charterers”) chartered the vessel from the owners and sub-chartered it to the plaintiffs (“the sub-charterers”) who placed their goods on board the vessel. During the sub-charter, the owners withdrew the vessel from the main charterers, made off with the sub-charterers’ goods and sold part of the goods. The sub-charterers sued the owners for conversion of their goods. The owners alleged in their defence that the main charterers had instructed them with regard to the sale. The owners commenced third party proceedings against the main charterers. An order of court was made on a third party summons requiring the main charterers, inter alia, to file and exchange the affidavits of evidence-in-chief of their witnesses within four months. The main charterers delayed filing their affidavit by nine months and applied for a retrospective extension of time. Meanwhile, the owners applied to strike out the main charterers’ defence. The trial judge disallowed the main charterers’ application for an extension of time on the ground that the delay was not justified. He also ordered their defence be struck out on the ground that their pleadings disclosed no reasonable defence. The main charterers appealed against both decisions. Held, allowing the appeals: (1) On the issue whether an extension of time should have been granted, the trial judfe’s adoption of the approach in Ratnam v Cumarasamy was rejected as the instant case concerned an application to file an affidavit out of time, and not an application to appeal out of time. (2) Both the main charterers’ application and the owners’ application were inextricably linked in that the main charterers’ defence would naturally be struck out if the application to extend time was refused. Both applications should therefore be considered together in determining what justice required, and the case was best viewed in the round. (3) The rules of civil procedure guided the courts and litigants towards the just resolution of the case and should be adhered to. Nonetheless, a litigant should not be deprived of his opportunity to dispute the plaintiff’s claims and had a determination of issues on the merits as a punishment for a breach of these rules unless the other party had been made to suffer prejudice which could not be compensated for by an appropriate order as to costs. (4) Save in special cases or exceptional circumstances, it could rarely be appropriate then, on an overall assessment of what justice required, to deny a defendant an extension of time where suchdenial would have the effect of depriving him of his defence This was especially so when it was due to a procedural default, even if unjustified, which caused the plaintiff no prejudice, for which he could not be compensated by an award of costs. (5) As to whether the delay of nine months was justified, a mere assertion that the person in charge of the action forgot about the matter or neglected it or was too busy to get on with it was not an acceptable explanation for the delay. The main charterers’ explanations were unsatisfactory and the delay was unjustified. (6) The court did not characterise the delay as an abuse of process. The order with which the main charterers failed to comply was of a non-peremptory nature. The outcome might had been different if the order have been an ‘unless order’. The delay caused no prejudice to the owners. Nor were the circumstances so exceptional as to warrant dismissing the application for an extension of time. (7) A reasonable defence meant one which had some chance of success, when only the allegations in the pleadings were considered. The hearing of the application should not therefore involve a minute examination of the documents or the facts of the case in order to see whether there was a reasonable defence. To do that was to usurp the position of the trial judge and the result was a trial in chambers, on affidavits only, with discovery and without oral evidence tested by cross-examination in the ordinary way. The mere fact that the defence was weak and not likely to succeed was no ground for striking it out, so long as the pleadings raised some questions to be decided by the court. In short, the defence had to be obviously unsustainable on its face to justify an application to strike out. In this case, the main charterers had a reasonable defence on the face of the pleadings. The mainstay of the defence was a simple denial that they were the bailees of the sub-charterers’ goods, that they had misrepresented to the owners that they were the owners of the marine gas oil, that they had not authorised the

sale of the oil, and that they did not owe any money to the owners. These assertions, if proven at the trial, would afford a full defence.

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Grds for reinstating action On application, Court may reinstate the action or allow it to proceed on terms it thinks just - O 21 r 2(8) See generally Joshua Benjamin Jeyaretnam v Lee Kuan Yew [2001] 4 SLR 1 – application to strike out claim was dismissed. – DECIDED under old regime. At time, order in force. Lapse of 2 yrs and 4 mths when plaintiffs (PAP) had not taken step in proceedgs. JBJ took action to strike it out. Court held that that main consideraitn was whther def was prejudiced by sth and tis cannotbe compensated in costs. Eg witness died in the meantime. Other considetion – whether rlimitation period expired.  Main considerations: • i. defendant had failed to show that he was prejudiced by the delay (namely prejudice not compensatable by costs); and • ii. limitation period for the Plaintiff’s action had not expired therefore Plaintiff was at liberty to bring the action again even if struck out and this would only incur further costs note – plaintiff’s case struck out. He applies to revive action. He manages to show that imitation period not expired and you are not prejudiced. This does not mean game over for def. you can show abuse of process -> Abuse of process and contumelions conduct (a wholesale disregard for the rules) stands on its own. => can stil strike out even if poaintiff satisfies 1 and 2 above. Principles apply as above main principles.   For this head, need not show either prejudice or fact of limitation having expired. Note that pre-writ delay can compound any post-writ delay : Birkett James [1978] AC297 Above principles are likely to apply to application to reinstate action under O 24 r 2(8)

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This would only be made out in exceptional cases: The Tokai Maru [1998] 3 SLR 105.

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