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Auto Clean ‘N’ Shine Services (a firm)

v
Eastern Publishing Associates Pte Ltd
[1997] SGCA 27

Court of Appeal — Civil Appeal No 142 of 1996

M Karthigesu JA and L P Thean JA
22 May; 30 June 1997
Civil Procedure — Affidavits — Exchange of affidavits of evidence-in-chief —
Guiding principles — Simultaneous exchange of affidavits — Special circumstances
warranting sequential exchange of affidavits — Duty of court to examine all evidence
put forward which was material and relevant
Civil Procedure — Summons for directions — Purpose — Court’s powers — Parties’
obligations to comply with rules and orders of court — Interlocutory orders not final
— Approach to be taken by court

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.

Held, allowing the appeal:

(1) The object of the summons for directions was 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 could be dealt with on interlocutory applications and
had not already been dealt with might, so far as possible, be dealt with, and such
directions might be given as to the future course of the action as appeared best
adapted to secure the just, expeditious and economical disposal of the
proceedings. The rules in O 25 of The Rules of Court 1996 (the “rules”) were
framed to achieve this objective: at [13].
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(2) All matters which must or could be dealt with in interlocutory

applications and which had not already been dealt with must be included in the
summons for directions and the court on hearing the summons for directions
had the duty to consider all such matters: at [13] and [16].
(3) The 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 was designed to achieve a fair
and expeditious disposal of proceedings, to save costs and to eliminate any
element of surprise: at [14].
(4) By the operation of these rules, the parties were 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: at [14].
(5) Parties to litigation must comply with the rules and the orders of court.
Hence, a party seeking to persuade the court to exercise its discretionary power
must provide adequate information and generally fault or neglect of a solicitor in
complying with the rules of court or court orders was not sufficient reason for
the court to grant an indulgence to the defaulting party: at [16].
(6) An order made under the rules at the interlocutory stage was not
immutable and finality could not be achieved at this stage. The court must
always be conscious of the fact that circumstances might and did arise which
resulted 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 had been
given: at [17].
(7) The court 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 stuck between the need to comply with
the rules and the parties’ right to call witnesses whom they deemed necessary to
establish their case. After all, the ultimate purpose of procedure was to guide the
court and litigants towards the just resolution of the case: at [17] and [27].
(8) Where the evidence adduced was unnecessary, irrelevant or vexatious, the
trial judge could deal with the party adducing such evidence in an appropriate
way, such as disallowing the evidence and/or by an order as to costs: at [17].
(9) The duty of the court was to examine all the evidence put forward by the
parties which was 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: at [17].
(10) 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 was warranted. In
those cases, the court was sufficiently perceptive and robust to deal with and sift
out attempts by litigants to reshape their evidence. Further, this could also be
tested by cross-examination and 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: at [20] and [21].
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(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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are a company carrying on in Singapore the business of publishing books,

magazines and periodicals including two monthly magazines known as
Motoring and Golf.
3 The plaintiffs commenced this action against the defendants claiming
damages for libel and malicious falsehood in respect of an article that was
published in the September 1995 issues of the two magazines, Motoring and
Golf. They claimed that certain portions of the article were defamatory of
them in their ordinary and natural meaning and by way of innuendo. In the
alternative, they claimed that the words complained of were false and were
published maliciously, and particulars of falsehood and malice were set out
in the statement of claim. The defendants in their defence pleaded that the
article in question was not defamatory of the plaintiffs, nor did the article
refer to them, and that, in any event, the article was published on an
occasion of qualified privilege. The defendants also denied that the article
contained any falsehoods or was published maliciously. In response, the
plaintiffs filed a reply averring that the defendants were actuated by malice
when they published the article.
4 After the close of pleadings, the plaintiffs took out a summons for
directions under O 25 r 1 of the Rules of the Supreme Court (now O 25 r 1
of The Rules of Court 1996) and the summons was heard before an assistant
registrar on 19 December 1995. The assistant registrar made the usual
orders on the summons as to discovery, inspection of documents and the
number of witnesses to be called at the trial and their evidence on affidavits,
including the following orders that were relevant to this appeal:
4 The affidavits of evidence-in-chief of all witnesses shall be
limited to one affidavit for each witness to be filed and exchanged
within four (4) months and objection to the contents of the affidavit
evidence shall be taken within one (1) month after the exchange of the
affidavit evidence.
5 The trial to be fixed for eight (8) days and to be set down by
31 May 1996.
6 The witnesses whom the plaintiffs intend if necessary to call shall
be limited to the following thirteen (13) witnesses of fact. …
7 The witnesses whom the defendants intend if necessary to call
shall be limited to the following eighteen (18) witnesses of fact …

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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to the plaintiffs affidavits of evidence-in-chief of 15 of their witnesses

named in the order of court; they omitted the affidavits of three of their
witnesses so named.

6 On 27 and 28 May 1996, the defendants filed a series of objections to

the contents of the affidavits filed and served by the plaintiffs on the ground
that they were irrelevant, scandalous, vexatious, prejudicial, embarrassing
and hearsay. One of the objections made was to the entire affidavit of
evidence-in-chief of Gerald Koo Mun Fook, on the ground that he was not
one of the witnesses named in the order of court.

7 On 7 June 1996, the plaintiffs applied by way of a notice for further

directions seeking an order for the following, namely, the date for setting
down the action for trial be extended to 31 October 1996; leave be granted
for certain amendments to be made to the statement of claim; ten new
witnesses of fact be called at the trial of the action; and their affidavits of
evidence-in-chief be filed. One of the ten witnesses named in the
application was Gerald Koo Mun Fook whose affidavit had already been
filed and served on the defendants on 26 April 1996. The plaintiffs also
sought an extension of time for the filing of affidavits of evidence-in-chief
of two of the four witnesses, Connie Teo Ping Ling and Low Choon Yee,
who were named in the order of court but whose affidavits were not filed
and served on the defendants on 26 April 1996. On 18 June 1996, the
plaintiffs applied by way of a second notice for further directions for
another new witness to be added to the list of witnesses to be called at the
trial and for the affidavit of evidence-in-chief of this witness to be filed and
served. In support of their applications, an affidavit by the solicitor acting
for the plaintiffs in this matter was filed, to which we shall advert in some
detail in a moment.

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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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.

13 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:
(1) 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 —

(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;

(b) whether the number of witnesses shall be limited to those

specified in the order and whether the evidence-in-chief of the
witnesses specified be each limited to a single affidavit;

(c) the 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; …

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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15 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 WLR 367 at 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.

16 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.
17 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
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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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tactical advantage by delaying service of its witness statements until it

has been served with witness statements by the other side.
24 In Kirkup, the plaintiff claimed against his employer damages for
deafness suffered by him as a result of his exposure to excessive noise in the
course of his employment. The Master on a summons for direction ordered
the plaintiff to disclose to the defendants first his expert’s report and
thereafter the defendants to disclose to the plaintiff their expert’s report.
The plaintiff appealed and the judge upheld the Master’s order. On further
appeal, the Court of Appeal dismissed it. The court held (at 1170) that in
the majority of personal injury cases simultaneous disclosure of experts’
reports was convenient and just, but in that case the sequential exchange of
reports was fair, as the area of inquiry covered a long period going back to
1952 and involved an investigation of the plaintiff’s place of work and
working conditions, and the state of knowledge of the consequences about
excessive noise, thus making it difficult for the defendants to prepare their
expert’s report without details of these matters.
25 In Richard Saunders ([22] supra), the Master refused to make an order
under O 38 r 2A of the English Rules of Supreme Court for exchange of
witnesses’ statements of evidence. The judge on appeal made an order for
the simultaneous exchange of statements. The learned judge held, inter alia,
that the normal practice is for the court to order simultaneous exchange of
proofs of oral evidence irrespective of whether the evidence is technical or is
source material, unless it is inappropriate for such an order to be made.
26 Counsel for the defendants next contended that the reasons given by
the plaintiffs to explain why the ten new witnesses could not have been
named earlier (save for Henry Loh) and why Connie Teo Ping Ling and
Low Choon Yee could not have filed their affidavits of evidence-in-chief
within time were rightly regarded by the judge as being insufficient to
justify the exercise of the court’s discretion in their favour. We did not agree
with counsel’s contention. The learned judge was critical of the affidavit of
the plaintiffs’ solicitor filed in support of the two notices for further
direction. He considered that the affidavit was wholly inadequate. The
material paragraphs of the affidavit are as follows:
3 In the course of taking instructions from the plaintiffs to prepare
their affidavits of evidence in chief, it became apparent to the plaintiffs’
solicitors that it will be necessary to include several additional
witnesses of fact to show the chain of events leading to the defamation,
the consequences and damages resulting from such defamation and to
establish certain facts in support of the plaintiffs’ claim. For example,
one witness, Henry Loh, was only able to come forward to give his
statement after he had ended his employment with the defendants on
31 May 1996.
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438 SINGAPORE LAW REPORTS (REISSUE) [1997] 2 SLR(R)

4 It was also found that the plaintiffs’ witnesses of fact, namely,

Koh Lay Choo Kelen and Ng Mui Nah are not able to give evidence on
behalf of the plaintiffs.
5 Two of the plaintiffs’ witnesses of fact, namely Connie Teo Ping
Ling and Low Choon Yee were unable to file their affidavits in chief
within the time stipulated in paragraph 4 of the Order of Court
referred to herein [the assistant registrar’s order dated 19 December
1995] as the Plaintiffs were unable to contact the former and the latter
was out of the country until May 1996.
The contents of this affidavit could, of course, have been improved and the
deponent should have condescended to further particulars and provided
more information. But in the circumstances of this case, we found that what
the deponent had stated was sufficient for the purpose.
27 Before concluding, we think it is instructive to emphasise that courts
should not take too rigid an approach in applying the rules of civil
procedure with the result that the ultimate purpose of our copious rules of
procedure becomes obscure. More than a hundred years ago,
Lord Penzance made the following observation in the case of Henry
J B Kendall v Peter Hamilton (1879) 4 App Cas 504 at 525:
Procedure is but the machinery of the law after all — the channel and
means whereby law is administered and justice reached. It strangely
departs from its proper office when, in place of facilitating, it is
permitted to obstruct, and even extinguish, legal rights, and is thus
made to govern where it ought to subserve.
This observation is still valid and applicable today. In the words of
Lord Woolf in his final report to the Lord Chancellor on the civil justice
system in England and Wales titled Access to Justice (July 1996) at para 10:
Every word in the rules should have a purpose, but every word cannot
sensibly be given a minutely exact meaning. Civil procedure involves
more judgment and knowledge than the rules can directly express. In
this respect, rules of court are not like an instruction manual for
operating a piece of machinery. Ultimately their purpose is to guide the
court and litigants towards the just resolution of the case. Although the
rules can offer detailed directions for the technical steps to be taken,
the effectiveness of those steps depends upon the spirit in which they
are carried out. That in turn depends on an understanding of the
fundamental purpose of the rules and the underlying system of
procedure.

Headnoted by Vincent Leow.