Order 14: A Limited
Window of Opportunity
A Procedural Guide

With effect from 1 December 2002, a plaintiff who wishes to apply for summary judgment against a defendant is required by O 14 r 1 to wait until that defendant has served a Defence to the Statement of Claim. Further, the new O 14 r 14 provides that ‘No summons [for summary judgment] shall be filed more than 14 days after the (close of pleadings)’.

The purpose of this new summary judgment regime was presumably fourfold: 

(a) to compel the defence to commit itself formally by its pleadings to the defences it intends to raise;

(b) to avoid the plaintiff being taken by surprise after an application for summary judgment has been filed, which will result in disrupting the timetable under O 14 for the exchange of affidavits and delay the determination of the application;

(c) to discourage a plaintiff from taking out a summary judgment application as a matter of course without reflection, which will in weak cases unnecessarily delay the trial timetable while the defendant does nothing more than confirm its right to defend; and

(d) to prevent an action which is heading towards trial from having its timetable derailed by a late summary judgment application. 

Order 14, therefore, contains a limited window of opportunity for a plaintiff to seek summary judgment. As a result of decisions in two cases in 2003, it is now clear that both endpoints of this window are strictly enforced. 

The Opening of the Window

In Samsung Corporation v Chinese Chamber Realty [2003] SGHC 189 (HC, 18 August 2003) and [2003] SGCA 50 (CA, 29 December 2003), the High Court and the Court of Appeal respectively considered the opening of the window. 

In that case, the Respondent sued the Appellant on an architect’s certificate issued under a building contract which contained an arbitration clause. As is usual in these cases, the Respondent’s intention was immediately to seek summary judgment against the Appellant under the certificate. Upon being served with the writ, the Appellant entered an appearance and, before filing a Defence, applied for a stay of the proceedings. At the hearing of the Appellant’s stay application, the Respondent applied orally for leave to file a summons for summary judgment without the Defence being served, so that the stay application and the summary judgment application could, in view of the inevitable overlap in arguments, be heard together. The Assistant Registrar granted the Respondent’s application in the exercise of the court’s inherent jurisdiction. 

On appeal to a judge in chambers, it was held ([2003] 3 SLR 656 at para 14) that the court could not grant such leave in its inherent jurisdiction because that would amount to ‘[failing] to follow the clear directions in the Rules [and be] tantamount to the court re-writing the Rules to fit the “justice” of each case [thereby introducing] uncertainty into court procedures’. 

On further appeal, the Court of Appeal agreed, saying that ‘generally where the Rules of Court have expressly provided what can or cannot be done in a certain circumstance, it is not for the court to override the clear provision in exercise of its inherent powers. No court should arrogate unto itself a power to act contrary to the Rules’. 

The window, therefore, opens when, and only when, a Defence is served. 

The Closing of the Window

As regards the closing of the window, there is anecdotal evidence that applications under O 3 r 4 to extend time to take out a summons under O 14 were readily granted in the transitional period immediately after the new regime came into force. 

However, since the decision of the High Court on 18 March 2003 in Stratech Systems v Motorola Electronics (Suit No 1463 of 2002, RA 228 of 2003) the position appears to be that the court has no jurisdiction to extend time when the window closes under O 14 r 14. 

Although no grounds of decision are available, the basis of the decision must be that the power under O 3 r 4 to extend time does not apply to O 14 r 14 either because: (a) O 14 r 14 is mandatory as it uses the word ‘shall’ instead of the word ‘must’ or ‘may’ which appears in the rest of O 14, or (b) O 14 r 14 is phrased in negative, prohibitory terms and not in positive, permissive terms and therefore does not by its terms fix ‘a period within which a person is required or authorised ... to do any act’, within the meaning of O 3 r 4. 

Conclusion

The position appears to be, therefore, that both the opening of the window and the closing of the window are strictly delimited by the Rules of Court with no discretion left in the court to allow early or late applications, no matter how strong the circumstances. This appears to introduce an inflexibility into the summary judgment regime which undermines its usefulness as a tool to obtain a quick and relatively cheap judgment without trial in appropriate cases. 

With regard to the opening of the window, it appears that an abridgment of time under O 3 r 4 is not available because O 14 r 1 does not prescribe a period of time within which an act is to be done, instead it specifies the sequence in which procedural steps are to be taken: see Re Pilcher (1879) 11 Ch D 905 and Saunders v Pawley (1884) 14 QBD 234 cited in the Singapore White Book, para 3/4/1. 

However, with regard to the closing of the window, it is at least arguable that there is a discretion to extend time because: 

•     regardless of how it is phrased, O 14 r 4 does in substance fix a 14-day period ‘within which a person is required or authorised ... to do any act in any proceedings’ within the meaning of O 3 r 4;

•     the use of the word ‘shall’ in O 14 r 14 does not by itself oust the power to extend time under O 3 r 4. Order 20 r 3(2) and 3(3) and O 25 r 8 both use ‘shall’ in setting time limits, but there is little doubt that the court has the power to extend these time limits on application;

•     Order 3 r 4(5) suggests that the legislative scheme of O 3 r 4 is that the power to extend time is of general application unless expressly excluded under the Rules. Therefore, the power under O 3 r 4 ought in principle to apply to the 14-day period under O 14 r 14;

•     even if O 3 r 4 is not available, the power to extend time under para 7 of the First Schedule to the Supreme Court of Judicature Act (Cap 322) (‘SCJA’)¹ may be available. This power may be slightly wider than the power under O 3 r 4. Periods of time under the Limitation Act (Cap 163) (which is phrased in the negative like O 14 r 14: see s 6 of the Limitation Act) are specifically excluded from the power under para 7. This implies that negative phraseology does not in itself oust this power to extend time; and

•     there is a further, additional general power to extend time under the court’s inherent jurisdiction which may also be available: see R v Bloomsbury & Marylebone County Court ex parte Villerwest [1976] 1 All ER 897. 

The fact remains, though, that in the vast bulk of summary judgment cases there can be no good reason for making applications outside the window period. It, therefore, behoves all practitioners to consider this issue carefully and to consider it at the appropriate time, as failing to apply within the window in a case suitable for summary judgment will compel their client to endure the delay and expense of a full trial.

Vinodh Coomaraswamy
Shook Lin & Bok
E-mail: vinodh@shooklin.com.sg