Beruflich Dokumente
Kultur Dokumente
Facts
The plaintiff, a partnership firm, sued the defendant, a company in the business
of publishing books, magazines and periodicals, for allegedly defaming them in
an article published in two of their magazines. The plaintiff applied for
summons for directions and the court gave certain directions. Pursuant to that
order of court, the parties subsequently filed and exchanged their affidavits of
evidence-in-chief. Both parties omitted to file and deliver a number of affidavits
of their witnesses and the plaintiff also filed and delivered an additional affidavit
of a witness not named in the order of court. The plaintiff subsequently applied
for leave to amend the statement of claim, for an additional 11 new witnesses of
fact to be called (including the witness whose affidavit was previously filed and
delivered), for the affidavits of evidence-in-chief of these witnesses to be filed
and for an extension of time for the filing of the affidavits of evidence-in-chief of
two of the witnesses whose affidavits were not earlier filed and delivered. The
assistant registrar allowed their application, but restricted the matters in the new
affidavits to the evidence already raised in the existing affidavits. The defendant
appealed. The High Court allowed the appeal in part and refused to allow the
plaintiff to include the new witnesses, except for the witness whose affidavit was
already filed and delivered or to grant an extension of time for the plaintiff to file
the affidavits of the two witnesses. The plaintiff appealed.
(11) In the instant appeal, the proceedings were still at a relatively early stage
and no prejudice would be caused to the defendant. Further, the plaintiff, by
placing all the necessary and relevant evidence on record, were acting
consistently with the guiding principles behind the scheme of requiring parties
to serve on each other affidavits of evidence-in-chief of the witnesses. Further,
there was no basis to limit the evidence to that which had already been filed:
at [18].
Case(s) referred to
Briscoe v Briscoe [1968] P 501 (folld)
Henry J B Kendall v Peter Hamilton (1879) 4 App Cas 504 (folld)
Kirkup v British Rail Engineering Ltd [1983] 1 WLR 1165 (distd)
Lee Kuan Yew v Vinocur John [1995] 3 SLR(R) 38; [1995] 3 SLR 477 (folld)
Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 WLR 367
(distd)
Richard Saunders & Partners v Eastglen Ltd [1990] 3 All ER 946 (distd)
Legislation referred to
Rules of Court 1996, The O 25 rr 1, 2, 3
Rules of the Supreme Court (Cap 322, R 5, 1990 Ed) O 25 r 1
Rules of the Supreme Court 1965 (SI 1965 No 1776) (UK) O 38 r 2A, O 38
r 2A(2)
Jimmy Yim and Kelvin Tan (Drew & Napier) for the appellant;
Raymond Lye (E Tay Raymond Lye & Partners) for the respondent.
[Editorial Note: This was an appeal from the decision of G P Selvam J in the High
Court. See [1997] SGHC 2.]
30 June 1997
L P Thean JA:
1 This was an appeal against the decision of a judge in chambers in
which he disallowed the application by the plaintiffs for 11 witnesses of fact
to be called at the trial of the action in addition to those witnesses named in
the order made on the summons for directions and for their affidavits of
evidence-in-chief to be filed, and also for the time to file the affidavits of
evidence-in-chief of two of their witnesses of fact, named in that order, to
be extended. We allowed the appeal, and now give our reasons.
The facts
2 The material events that led to this appeal were as follows. The
plaintiffs, Auto Clean ‘N’ Shine Services (“the plaintiffs”), are a partnership
firm carrying on the business of car grooming in Singapore, which involves,
among other things, waxing, polishing and shampooing motor vehicles.
The defendants, Eastern Publishing Associates Pte Ltd (“the defendants”),
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5 On 26 April 1996, some four months and one week after the assistant
registrar’s order of 19 December 1995 (“the order of court”), the plaintiffs
and the defendants filed and simultaneously exchanged their affidavits of
evidence-in-chief. In all, the plaintiffs filed and delivered to the defendants
affidavits of evidence-in-chief of nine of their witnesses named in the order
of court; they omitted the affidavits of four of their witnesses so named, but
added an affidavit of one witness, Gerald Koo Mun Fook, who was not
named in the order of court. As for the defendants, they filed and delivered
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8 For the sake of completeness, we should add that on 21 June 1996 the
defendants also filed a notice for further directions applying for the
inclusion of an additional witness of fact, one Don Wang How Weng. The
plaintiffs consented to the application, and an order was made accordingly.
9 On 18 July 1996, the plaintiffs’ two notices for further directions came
on for hearing. The assistant registrar allowed the application to include the
11 new witnesses of fact and ordered that their affidavits of evidence-in-
chief be filed and served within 30 days of the date of the order. However,
he restricted the matters in the new affidavits to the evidence already raised
in the affidavits of evidence-in-chief that had already been filed by the
plaintiffs on 26 April 1996. The assistant registrar further ordered that the
time for the plaintiffs’ witnesses, Connie Teo Ping Ling and Low Choon
Yee, to file their affidavits of evidence-in-chief be extended by 30 days. As
with the new witnesses, restriction was also imposed on their affidavits, ie
that the affidavit evidence of these two witnesses was to be limited to the
evidence raised in the affidavits of evidence-in-chief that had already been
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filed. The assistant registrar also extended the date for setting down the
action for trial to 31 October 1996.
Decision below
10 The defendants appealed to a judge in chambers against the orders
made by the assistant registrar. On 14 August 1996, the learned judge heard
the appeal and allowed it in part. The learned judge refused to allow the
plaintiffs to include the new witnesses, except one witness named Henry
Loh. The learned judge also refused to grant the plaintiffs an extension of
time to file the affidavits of evidence-in-chief of Connie Teo Ping Ling and
Low Choon Yee.
11 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 reshape evidence after sighting
the opponent’s evidence”. Second, a party asking 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
12 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 [1968] P 501, at 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
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(a) 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;
14 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 v Vinocur
John [1995] 3 SLR(R) 38, at [23]. 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.
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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.
18 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-in-chief 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.
19 We should add that in respect of one of the plaintiffs’ witnesses,
Gerald Koo Mun Fook, his affidavit of evidence-in-chief together with the
other affidavits of evidence-in-chief was actually filed and exchanged with
the defendants’ affidavits on 26 April 1996. Therefore, we saw no reason for
refusing the application to include him as a “new” witness.
20 Counsel for the defendants urged us to bear in mind the learned
judge’s warning that the court must be wary of any attempt by the plaintiffs
to reshape their evidence after having seen the defendants’ affidavit
evidence. We accept that there is always a possibility of a party having seen
the affidavits of evidence-in-chief of the opposing side reshaping his own
evidence. But this phenomenon – if at all it be a phenomenon – is not new.
It occurs time and again in applications for summary judgments and other
applications heard by a judge in chambers or in any cause or matter
commenced by originating summonses, where evidence is given by
affidavits alone and sequential affidavits are filed and served by one party
on the other. Our courts have been sufficiently perceptive and robust to
deal with and sift out attempts by litigants to reshape their evidence. In this
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case, if the plaintiffs sought to reshape the evidence to meet the case of the
defendants, it can be tested in cross-examination and no doubt the trial
judge would be in a position to assess the veracity and credibility of the
evidence on the totality of the evidence before him.
21 The learned judge expressed the view that there was no room in the
scheme of O 25 of the Rules of Court for the sequential exchanging of
affidavits of evidence-in-chief. With respect, this is too strict a view to take.
The true view is that the court would normally order a simultaneous
exchange of affidavits of evidence-in-chief between the parties, save only in
special circumstances where the sequential exchanging of affidavits of
evidence-in-chief is warranted.
22 Counsel contended that in this case the plaintiffs have failed to show
any special circumstances that would justify granting them the liberty to file
their affidavits of evidence-in-chief sequentially. Counsel relied on the
English cases: Mercer v Chief Constable of the Lancashire Constabulary
[1991] 1 WLR 367, Kirkup v British Rail Engineering Ltd [1983] 1 WLR
1165, Richard Saunders & Partners v Eastglen Ltd [1990] 3 All ER 946.
These cases concerned the circumstances under which the court would
depart from making the usual order that the witness statements of facts (the
English equivalent of our affidavits of evidence-in-chief) be exchanged
simultaneously and, instead, order the witness statements to be exchanged
sequentially. The issue here was not whether the court should order
sequential exchange of affidavits of evidence-in-chief between the parties,
but whether a party should be allowed to call additional witnesses and file
their affidavits of evidence-in-chief after a simultaneous exchange of
affidavits had already taken place. The situation here was quite different,
and all these cases were therefore distinguishable.
23 Nonetheless, these cases are in some way helpful in showing that
sequential exchange of affidavits of evidence-in-chief may be warranted in
certain circumstances. In Mercer, two cases were involved. The plaintiffs
brought separate actions against the defendant claiming damages for
wrongful arrests and false imprisonment and in the first case for malicious
prosecution as well. On a summons for directions in the first case the
district registrar ordered simultaneous exchange of witness statements and
the defendant appealed to the judge in chambers. In the second case, the
registrar adjourned the summons to the judge in so far as it concerned the
exchange of witness statements. The judge ordered, inter alia, simultaneous
exchange of witness statements in both cases. His decision was affirmed on
appeal. Lord Donaldson of Lymington MR said at 376:
The normal rule should be that the exchange of witness statements
shall be simultaneous. This is, I think, inherent in the concept of an
‘exchange’ of witnesses’ statements, but in any event flows from the
fact that what is involved is a process of discovery and not of pleading
and the undesirability of either party being in a position to seek some
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