FEATURE

FEATURE

Extending Time for Order 14 Summons

Case comment on United Engineers (Singapore) Pte Ltd v Lee Lip Hiong and ors [2004] SGHC 190

The article discusses the time limit imposed on filing O 14 applications and suggests possible amendments in light of United Engineers v Lee Lip Hiong.

This decision of Tay Yong Kwang J arose out of an appeal against the assistant registrar’s refusal to allow an extension of time for the filing of an application under O 14 r 1 of the Rules of Court (Cap 322). The decision clarifies the law on two issues: first, that the time limit imposed in O 14 r 14¹ cannot be extended by the Court, and second, that an amendment to pleadings does not reopen the deemed closure of pleadings. As these points have an important bearing on the litigation process, we thought it fit that this decision should be highlighted.

Facts

The plaintiffs commenced an action against the defendants. In turn, the third defendants filed a defence and counterclaim. Pursuant to O 18 r 20, the pleadings in the action were deemed to be closed on 9 March 2004. Accordingly, the last day for taking out a summons for summary judgment under O 14 was 23 March 2004.

On that day, the plaintiffs did not file a summons for summary judgment. Instead, they took out an application to extend time to file and serve the summons. Subsequently, the third defendants also took out a similar application to extend time to file a summary judgment on its counterclaim.

The two applications (‘applications to extend time’) came before an assistant registrar at first instance and she reserved her decision. In the meantime, the third defendants applied to amend their counterclaim by adding one cent to the amount claimed, on the basis that there was a typographical error. They were given leave to amend and the plaintiffs were given a further 14 days to file their amended reply and defence to counterclaim.

Without waiting for the assistant registrar’s decision on the applications to extend time, both parties then filed their respective summons for summary judgment on the basis that the amendment had re-opened the pleadings and had therefore ‘revived’ their right to apply for summary judgment.

The matter came before the same assistant registrar who set aside the summonses for summary judgment and made no order on their applications to extend time. On appeal, Tay J affirmed the decision of the assistant registrar to set aside the summonses for summary judgment and added that the proper order on the applications to extend time should have been a dismissal of the applications.

Holding

In affirming the decision of the assistant registrar, Tay J found that a purposive interpretation of O 14 r 14 made it necessary to conclude that the time bar imposed was an absolute one, which could not be extended by consent of the parties, or by the court.²

In reaching this decision, he referred to Report No 3 of 2002 of the Rules of Court Working Party, which proposed the introduction of O 14 r 14. The purpose of O 14 r 14, as highlighted in the Report, was to ensure that O 14 summonses were not taken out late in the proceedings. It was thought that once the issues were set out in the pleadings, the plaintiff should be able to decide whether to apply for summary judgment or to go for a full trial.

Tay J noted that the purpose of the O 14 procedure was to achieve cost savings by obviating the need for open court trials in cases with unmeritorious defences and should be resorted to at an early stage where the savings in costs would be most marked. Where the case was at an advanced stage, it was highly debatable whether or not it would be more pragmatic to have the finality of an open court trial rather than the uncertainty of parallel O 14 applications with its attendant appeals. As such, Tay J stated that O 14 r 14 was introduced for the purpose of achieving a measure of certainty for parties and for the registrar charged with the management of cases, and its purpose would be negated if the court had the discretion to grant extensions of time and appeals emanating therefrom. He then stated in the concluding paragraph of his decision that proposals may soon be made to extend the 14 day period in O 14 r 14 to 28 days.

As to the argument that the time bar had not arisen because of the amendment to the pleadings, Tay J agreed with the assistant registrar and held that an amendment to the pleadings does not affect the deemed closure of pleadings set out in O 18 r 20. In reaching his decision, Tay J noted that O 18 r 20(1) fixes the deemed closure of pleadings with certainty so that it can fulfil its function as a reference point for the reckoning of time for other rules in the Rules of Court. If there was no certainty to the deemed closure of pleadings, this could lead to absurd results. As an example, Tay J referred to O 20 r 1, which allows pleadings to be amended once without leave of court before pleadings are deemed to be closed. If an amendment to pleadings sets the clock back, so to speak, then parties would once again have liberty to amend without leave of court, once they had obtained leave to make the first amendment. Given the possible conundrums that could arise, Tay J reasoned that the system envisioned by the Rules of Court was to fix the deemed closure of pleadings such that it could not be re-opened.

Comment

The net result of Tay J’s holding is that parties can never bring an application under O 14 more than 14 days after the deemed closure of pleadings, whether by consent, amendments (minor or otherwise) or court order. It is not the purpose of this comment to dissect the reasoning behind the holding. Suffice to say that the authors agree with Tay J’s interpretation of both O 14 r 14, as well as the effect of amendments on deemed closure of pleadings under O 18 r 20(1).³ Rather, this comment seeks to argue that there is a case for amending the Rules of Court so as to grant a limited discretion to the courts to allow for the extension of time for filing an O 14 summons.

The resolution of disputes is often delayed by the excesses of satellite litigation arising from numerous interlocutory decisions, and it is undeniable that the litigation process would benefit from a degree of certainty. In the interests of case management and the efficient resolution of cases, the Rules of Court have set out timelines and the courts have strictly enforced compliance with these timelines, so that parties can know with certainty that they can move on to the next stage of the litigation process, without worrying that it may later be rendered nugatory.

The need for case management underlines many of the timelines set out in the Rules of Court. But to temper the potential injustice that can arise due to the multitude of reasons for timelines not being met, the Rules of Court have a default provision under O 3 r 4, which allows the court the discretion to grant extensions of time.

It is submitted that a similar discretion should prevail in regards to O 14 applications as well, as there are situations in which O 14 applications should be allowed to be taken out, even though it is after 14 (or even 28) days after the close of pleadings. Where substantial amendments have been made to the pleadings, this can often turn a situation once untenable for summary judgment, into one where summary judgment is appropriate. Take, for example, the situation where a defendant makes allegations of fraud, undue influence or unconscionable conduct in his defence. As a matter of practice, these allegations are generally deemed unsuitable for determination at a summary trial as they often involve conflicting versions of facts. Now, if these allegations are subsequently removed from the defence more than 14 days after pleadings are closed, the plaintiffs should not be made to go through the costs of an entire trial, when there is a good chance of them succeeding in an O 14 application. It could be argued that the plaintiffs would eventually be able to recover the costs of the action from the defendant. But as any well seasoned lawyer knows, a costs order against an insolvent defendant is brutum fulmen or worth little more than the paper it is printed on.

Ironically, the time bar on O 14 applications may allow deviant defendants to allege particulars in their defence to mislead plaintiffs, in order to prevent a speedy judgment being obtained. Though this would eventually lead to added costs to all parties, a defendant might think it well worth the gamble to avoid an early judgment.

It could be argued that no real injustice would accrue since the merits of the case would be heard in any event. However, while that might be true in theory, it is an undeniable fact that an O 14 application is a boon to a plaintiff starved of funds, who might not be able to bring his case to trial.

Another argument against an absolute time bar is that there are other means of obtaining summary judgment. For example, if a defence is substantially amended, the plaintiffs can always strike out the defence under O 18 r 19. Alternatively, judgment can be obtained on an admission under O 27 r 3.

In this regard, the authors argue that this does not adequately deal with the problem. The O 14 procedure covers different ground from these other two provisions, and judgments can be obtained under O 14, which could not be obtained under the other two provisions. Further, since there are no similar time bars for the other two provisions, the authors would submit that this constitutes an added reason to allow the discretion to extend time for the O 14 applications. Since litigants intent on derailing proceedings could well do so by taking out applications under the other two provisions, the absolute time bar under O 14 would only prejudice plaintiffs who genuinely seek to achieve cost savings from filing an O 14 application.

It must also be noted that the blanket time bar under O 14 r 14 would apparently catch also O 14 r 12 (determination of a question of law or construction of documents). This unfortunately goes against the notion of the saving of time and costs as the determination of questions of law or construction of documents at any stage in the proceedings even if advanced would assist all the parties in handling the matter as well as saving precious judicial time.⁴

Solution

The authors submit that a case has been made out for advocating an amendment to the Rules of Court to expressly allow the court a limited discretion to extend time for O 14 applications to be taken out.

In order to maintain a level of certainty, the authors submit that such a discretion should be exercised on exceptional grounds, akin to the grounds required for extending time for filing a notice of appeal out of time. The analogy to cases involving an extension of time for filing a notice of appeal is appropriate. In both cases, the applicant has had or will have an opportunity for a determination on the merits on the action. Hence, a refusal of leave does not deprive a litigant of that opportunity. Instead, all that he loses is a right of appeal⁵ or an opportunity for summary judgment.

Extrapolating from the cases on extensions of time for filing a notice of appeal, the factors to consider for extending time for filing an O 14 application would include the following:

(1) the length of delay;

(2) the reasons for delay;

(3) chances of the O 14 application succeeding if the extension is granted; and

(4) the degree of prejudice to the defendant if the extension is granted.

In addition, the party seeking the extension of time should put some material before the court justifying the delay, and this should not merely point to mere inadvertence or carelessness. Further, it must be shown that it would be just and economical in all the circumstances to allow the extension.

We then address the question of whether parties should be allowed to consent to an extension of time for filing an O 14 summons. Under O 3 r 4(3), parties can consent to the extension of the period in which a person is required to serve, file or amend any pleading or document. O 3 r 4(3) does not apply to two timelines — the period for which an action is required to be set down, and the period for which a notice of appeal is required to be filed. In the interest of case management and continuing the analogy with notice of appeals, it is submitted that parties should not be allowed to consent to an extension of time for the filing of O 14 applications. As such, any amendment that creates a discretion to grant an extension of time should make it patently clear that the time for filing an O 14 summons cannot be extended by consent of the parties.

Conclusion

The authors recognise that the proposed solution has the potential to give rise to satellite litigation when parties apply and appeal the refusal of leave. Further, such applications may take a considerable amount of time as the merits of the application would have to be discussed with some depth. However, it is submitted that the Courts should not shy away from such a task on the basis of these considerations. In any case, as argued above, the disadvantages of satellite litigation would not be completely eradicated by the use of an absolute time bar, since a litigant bent on derailing proceedings can always do so under other provisions which allow for judgment without trial.

The courts exist at the end of the day to do justice not only to the system, but also between the parties. If the parties treat the O 14 procedure as merely a tool in their arsenal of delaying tactics, then the courts should rise up to the challenge in dealing with such applications. But where parties genuinely believe that taking out the application would lead to overall cost savings, the courts should at least have the discretion to consider whether it is justifiable. In the meantime, the authors can only emphasise to practitioners the importance of complying with O 14 r 14.

Assistant Registrars Vincent Leow and Lee Kee Yeng*

Supreme Court

t. O 3 r 4(3) does not apply to two timelines — the period for which an action is required to be set down, and the period for which a notice of appeal is required to be filed. In the interest of case management and continuing the analogy with notice of appeals, it is submitted that parties should not be allowed to consent to an extension of time for the filing of O 14 applications. As such, any amendment that creates a discretion to grant an extension of time should make it patently clear that the time for filing an O 14 summons cannot be extended by consent of the parties.

Conclusion

Assistant Registrars Vincent Leow and Lee Kee Yeng*

Supreme Court

Endnotes:

¹ O 14 r 14:

No summons under this Order shall be filed more than 14 days after the pleadings in the action are deemed to be closed.

² He further added that even if he was wrong in so concluding, he would not have exercised his discretion to extend time on the facts of this case.

³ In this regard, it must noted that it is still not clear whether O 3 r 3 applies to the date of deemed closure of pleadings. O 3 r 3 reads ‘Where the time prescribed by these Rules, or by any judgment, order or direction, for doing any act expires on a day other than a working day, the act shall be in time if done on the next working day.’ Our submission is that it does not apply. The wording of O 18 r 20 simply fixes a time for the deemed closure of pleadings. There is no requirement for an act to be done or a prohibition against an act being done: further see Tay J’s comments on the fact that there is no difference between these two in his grounds at [28]. As such, it appears to fall outside the scope of O 3 r 3. Parties need to take note of this because an erroneous counting of the last day of filing would bar them from filing an O 14 summons.

⁴ Although it is always open to the parties to highlight this to the Court who may of its own accord decide that it will determine such a point (or under O 33 r 2). It should be added that it would be rare that the Court would, prior to the actual trial, actually so decide as to do so may appear to be taking too interventionist a step unless both parties consent to the application.

⁵ It is acknowledged that the loss of a right to appeal is more serious than a loss of a right to summary judgment as a right to appeal (especially from a Registrar’s decision) is a chance for a reconsideration on the merits of the action. However, it is submitted that similar principles can nonetheless be drawn from a comparison of both applications.

* This article had its genesis in a presentation given at a recent Judicial Officers’ Meeting. We would like to record our appreciation to all our collegues for all their various views expressed at that meeting that helped to hone this comment. Further, we would like to thank Justice Tay Yong Kwang and Deputy Registrar Foo Chee Hock for their insightful comments and suggestions on an earlier draft of this comment. It goes without saying that all mistakes and omissions remain solely ours. Lastly, the views expressed in this article reflect only that of the authors and do not neccessarily reflect the position of the  Supreme Court.