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Leave to Appeal to the High Court in

Civil Matters

This article discusses the situations when leave of court is required to bring an appeal to the High Court after: (a) a trial in the Subordinate Courts, whether at the Magistrate’s or District Court level; and (b) a hearing of an interlocutory application or an appeal heard in Chambers by a District Judge. A Notice of Appeal must be filed within 14 days of the judgment or order on appeal. Prior to filing the Notice of Appeal, counsel must consider whether leave to appeal is required.

When is Leave to Appeal Required?

How do you know if leave is required?

Section 21(1) of the Supreme Court of Judicature Act (Cap 322) states:

Appeals from District and Magistrates’ Courts

21. —(1) Subject to the provisions of this Act or any other written law, an appeal shall lie to the High Court from a decision of a District Court or Magistrate’s Court in any suit or action for the recovery of immovable property or in any civil cause or matter where the amount in dispute or the value of the subject matter exceeds $50,000 or such other amount as may be specified by an order made under subsection (3) or with the leave of a District Court, a Magistrate’s Court or the High Court if under that amount.

Parties may appeal to the High Court, as of right, from a decision of the District Court or Magistrate’s Court in the scenarios below:

1 where the suit or action is for the recovery of immovable property; or

2 in any civil cause or matter,

where the amount in dispute or the value of the subject matter exceeds $50,000.

Where the aforesaid circumstances do not apply, appeal to the High Court is subject to leave of court.

Issues Discussed

This article discusses the following:

1 How to determine ‘the amount in dispute or the value of the subject matter’.

2 Situations where the matter in dispute is not quantifiable in monetary terms.

3 The circumstances in which the court will grant leave to appeal.

4 How to apply for leave and the time frames within which the application must be made.

5 What if you fail to apply for leave within the specified time.

The Amount in Dispute or the Value of the Subject Matter

The amount in dispute or the value of the subject matter will depend on who is appealing.

As an example, where a plaintiff claimed damages of $188,872.89 against his immediate employer who was a sub-contractor and against another defendant who was the main contractor, but was only awarded $35,932.43 at trial against the sub-contractor, what is the amount to be considered as ‘the amount in dispute or the value of the subject matter’?¹

If the sub-contractor wishes to appeal and his contention is that he ought not be liable at all, ‘the amount in dispute or the value of the subject matter’ would be $35,932.43.

If the plaintiff wishes to appeal, which amount should be considered?

Is it:

1 the amount adjudged, ie $35,932.43;

2 the difference between the amount claimed and the amount adjudged (ie $188,872.89 less $35,932.43); or

3 the amount of the plaintiff’s initial claim of $188,872.89?

Choo Han Teck J in the case of Hua Sheng Tao v Welltech Construction Pte Ltd² held that the answer is (3). It is pertinent to note that in this case, the plaintiff’s intended appeal was against both the sub-contractor and the main contractor, and the trial judge had dismissed the claim against the main contractor entirely.

In Augustine & Anor v Goh Siam Yong [1992] 1 SLR 767, the Court of Appeal held that where a plaintiff seeks to appeal against a reduction in the amount of damages assessed, the ‘amount in dispute’ for the purposes of s 21(1) of the Supreme Court of Judicature Act is the difference between the original amount assessed by the Deputy Registrar and the reduced amount assessed on appeal by the District Judge in Chambers.

In Sethuraman Arumugam v Star Furniture Industries Pte Ltd (Suit No 7004 of 1999, unreported decision of Kan Ting Chiu J delivered on 27 May 1999), Kan J held obiter that the threshold limit of $50,000 should apply to the amount in dispute in the appeal, rather than the amount in dispute in the original claim.

In Pandian Marimuthu v Guan Leong Construction Pte Ltd [2001] 3 SLR 400, a foreign plaintiff claiming damages for personal injuries in excess of $50,000 was ordered by the District Judge to furnish security for costs in the sum of $5,000. GP Selvam J held that the plaintiff did not require leave to appeal against the order for security for costs, as ‘the amount in dispute’ referred to the amount of the substantive claim in dispute and not to the amount of security which was ordered.

In Abdul Rahman bin Shariff v Abdul Salim bin Syed [1999] 4 SLR 716, Tay Yong Kwang JC (as he then was) held that the ‘amount in dispute or the value of the subject matter’ does not encompass the non-contractual interest and costs elements of a claim for a contractual amount or for damages.

In Overseas Union Insurance Ltd v Home & Overseas Insurance Co Ltd [2002] 2 SLR 497, Tay Yong Kwang JC (as he then was) held that in the case of taxation of bills of costs, the ‘amount in dispute’ is not the substantive claim in the action. Taxation of costs is the ‘matter’ contemplated in s 21 of the Supreme Court Judicature Act and the ‘amount in dispute’ pertains to costs, and this must be computed in the way directed by the Court of Appeal in Augustine’s case discussed above.

What if there is No ‘Amount’ or the ‘Value of the Subject Matter’ Cannot be Ascertained?

There may arise situations where the subject matter has no monetary value.

Example

P contracted with C to repair a ship. C failed to pay the repair charges and P arrested the ship. C then entered into a settlement agreement to pay the charges by instalment, upon which P released the ship. C sold the ship to H. C then defaulted on payment.

In an action in rem, P arrested the ship again. H applied to intervene and applied to set aside the warrant of arrest and for damages to be assessed for wrongful arrest which the Assistant Registrar allowed. P appealed to a judge in chambers. The judge affirmed the Assistant Registrar’s decision.³

P appealed. H objected on the basis that P ought to have, but did not obtain leave to appeal because the claim in the in rem action was only $170,000.00. The issue is whether P had to apply for leave  to appeal.

The Court of Appeal stated that the question to ask is: What was the ‘subject matter’ before a judge hearing the appeal? In this case it was: (a) whether the warrant of arrest should be set aside; and (b) whether damages ought to be granted. The Court of Appeal noted that neither of these ‘subject matters’ bore any specific value. Damages were at large at that time. The claim by P in the main action did not limit the damages to be suffered by H. As such, the matter did not fall within s 34(2),⁴ and no leave was required.

Thus, where the subject matter of the claim is incapable of bearing any monetary value, no leave is required.

The Circumstances in which the Court will Grant Leave to Appeal

Where leave to appeal is required as a result of the ‘amount in dispute or the value of the subject matter’ not exceeding $50,000, what does the applicant have to show in order to obtain leave to appeal?

Leave will generally be granted where the following factors are present:

1 prima facie error of law;⁵

2 there is a question of general principle which is decided for the first time;

3 there is a question of law in which a decision by a higher tribunal would be of public advantage;⁶ or

4 where there is a cross-appeal, and the matters in the cross-appeal are so interlinked with the main appeal and as a matter of fairness, leave should be given.⁷

In the case of IW v IX [2006] 1 SLR 135, the Singapore Court of Appeal was asked to consider adopting the English Court of Appeal decision in Smith v Cosworth [1997] 4 All ER 84 where the English Court of Appeal stated the principle that it would not refuse leave unless it was satisfied that the applicant had ‘no realistic prospect of succeeding on appeal’. The Singapore Court of Appeal declined to follow the English position stating that the legislative intent of the Supreme Court of Judicature Act was that there would be only one tier of appeal as a matter of right. Adopting the English position would mean that such a test would in reality be ‘an arguable case’ test and it would not be a difficult one  to satisfy.

How to Apply for Leave?

The application for leave to appeal should be made to a Magistrate’s Court or a District Court (as the case may be).⁸ The application is by way of a summons, preferably supported with an affidavit.

A suggested format of application and affidavit can be found in the  Appendix hereto.

When Must the Application be Made?

The application for leave must be made within seven days⁹ of the judgment, order or decision which is sought to be  appealed against.

To Whom is the Application Made?

Appeal after trial from Magistrate’s Court – application is to a Magistrate’s Court.¹⁰

Appeal after trial on decision in Chambers by District Judge – application is to a District Court.¹¹

In the event that leave of court is refused by the Subordinate Courts, an application may then be made to the High Court, by way of originating summons, within seven days of the refusal.¹²

Once leave to appeal is granted, the appellant will have 14 days from the date of leave being given to file and serve the Notice of Appeal.¹³

What if You Were Not Able to File the Application for Leave to Appeal within the Specified Time?

In the unfortunate circumstance that the application for leave to appeal was not taken within the prescribed time of seven days, all is not lost.

In such circumstances, an application for extension of time to file the application for leave to appeal can be made by way of summons to the Magistrate/District Judge,¹⁴ as the case may be, with a supporting affidavit.

The court will consider the following factors:

1 the length of the delay;

2 the reason for the delay;

3 the merits of the application for leave to appeal; and

4 degree of prejudice to the other party,

in deciding whether or not to grant an extension of time.¹⁵

Leave to Appeal to High Court¹⁶

Checklist

1 What was the issue or subject matter in dispute below?

2 If it relates to:

a recovery of immovable property; or

b a civil cause or matter

where the amount in dispute or the value of the subject matter exceeds $50,000; or

c if the subject matter does not have a monetary value,

then, no leave to appeal is required.

3 If leave to appeal is required, the application must be made within seven days of the judgment, order or decision that is being appealed against.

4 Application is to be made to a Magistrate’s Court or a District Court, ie the court which made the decision that is being appealed against,
by way of a summons supported by affidavit.

5 If the application for leave to appeal is made after the seven-day period, you will have to file an application for extension of time to file the application for leave to appeal. Factors which the court will consider in deciding whether to grant you an extension of time include:

a length of delay;

b reason(s) for delay;

c merits of application for leave to ppeal; and

d degree of prejudice to other party.

6 The affidavit that is filed in support of your application for leave to appeal should set out:

a the nature of the dispute between the parties that was decided by the trial judge/District Judge in Chambers;

b the decision of the trial judge/District Judge in Chambers and the part of the decision for which leave to appeal is being sought;

c the amount in dispute or the value of the subject matter;

d the issue of law involved. For example, set out whether:

i there was a prima facie case of error of law that has a bearing on the decision of the trial court;

ii there is a question of general principle which is to be decided for the first time;

iii there is a question of law of importance upon which a decision by a higher tribunal would be to the public advantage; or

iv there is a question of law on which there is a conflict of judicial authority and a pronouncement from a higher court is desirable; and

e any other reasons why leave to appeal should be given. For example, the other party is also appealing and there is a strong factual nexus   between the claim of the other party and your counterclaim.

APPENDIX

Form 1

Suggested summons for application for leave to appeal to High Court under s 21(1) of the Supreme Court of Judicature Act

IN THE SUBORDINATE COURTS OF THE REPUBLIC OF SINGAPORE

M C/D C Suit No. of 200 )

Between

ABC

… Plaintiff

And

XYZ

… Defendant

SUMMONS

LET all parties concerned attend before the Magistrate/District Judge on the day of 200 at .m. on the hearing of an application on the part of the abovenamed (Plaintiff/Defendant as the case may be) for an order, as follows:-

a. that the (Plaintiff/Defendant) be granted leave, under section 21(1) of the Supreme Court of Judicature Act (Cap. 322), to   bring an appeal to the High Court against the decision of His/Her Honour made on   the _____ day of _____________ 200___ ; and

b. costs of this application be costs in the appeal.

The grounds of this application are set out in the affidavit of ________________ filed herewith.

Dated this ______ day of __________ 200 __.

Entered No. of 200 __

Clerk:

DEPUTY REGISTRAR

This summons is taken out by (name of law firm) of (address), Singapore __________, solicitors for the Plaintiffs/Defendants.

To: The Defendants/Plaintiffs (as the case may be)

and/or their solicitors

(Name of Law Firm)

(Address)

(Ref: )

Form 2

Suggested affidavit in support of application for leave to appeal

IN THE SUBORDINATE COURTS OF THE REPUBLIC OF SINGAPORE

M C/D C Suit No. of 200 )

Between

ABC

… Plaintiff

And

XYZ

… Defendant

AFFIDAVIT IN SUPPORT OF APPLICATION FOR LEAVE TO APPEAL

I, __________________(name), NRIC No: __________, (occupation), of (address), do make oath/affirm and say as follows:-

1. I am the (Plaintiff/Defendant) herein (or, am duly authorised to make this affidavit on behalf of the Plaintiff/Defendant).

2. I am making this affidavit for the purposes of seeking leave from this Honourable Court to appeal against the decision of the learned Magistrate/District Judge made on ___________ at the hearing of this matter (or the Plaintiff’s/Defendant’s Summons No of ).

3. The issues before the learned Magistrate/District Judge at the hearing were as follows:-

(State all the issues that came for determination at the application or hearing, and not just the issues that applicant wishes to appeal against. Set out material paragraphs of affidavit or evidence or documents.)

4. On that day, the learned Magistrate/District Judge ordered as follows:-

(Exhibit a copy of the Order of Court, if available. A draft Order of Court between parties may suffice, since this application has to be taken up before the expiry of 7 days from the Order made.)

5. I am dissatisfied with the said decision and wish to appeal against the whole decision made by the learned Magistrate/District Judge (or against part of the said decision, stating the parts that you wish to appeal against).

6. I am advised by my solicitors that since the amount in dispute and/or the subject matter of this appeal does not exceed $50,000, I would require leave to appeal against the aforesaid decision.

7. The basis of my application for leave to appeal is as follows:-

There was a prima facie error of law

(State the principle of law applied by the Magistrate/District Judge below and state the error of law)

There is a question of general principle which is decided for the first time

(State general principle or question of law. State that this matter has not been decided by any Court before other than the Court which the appeal emanates from. State why the public at large would benefit from a decision from the High Court on this point.)

There is a question of law upon which a decision by a higher tribunal would be of public advantage

(State question of law and upon tthat no higher tribunal has decided on this question OR that there are two decisions of equal footing and thus a decision of a higher tribunal would be of public advantage in terms of certainty of law)

There is a cross-appeal, and the matters in the cross-appeal are inter-linked and in the interest of fairness, leave should be given

(State that the other party is appealing and where possible exhibit their Notice of Appeal. State and show how the appeal and cross-appeal are inter-linked)

8. In the aforesaid premises, I humbly pray that leave to appeal be granted.

Sworn/Affirmed in Singapore )

on this day of )

200 . )

Before Me,

A Commissioner for Oaths

Form 3

Suggested summons application for extension of time to file application for leave to appeal

(As in Form 1, add the following:-)

… for an order that:-

a. the Plaintiff/Defendant (as the case may be) be granted an extension of time to make this application under section 21 of the Supreme Court of Judicature Act (Cap.322);

b. (continued with the prayers as suggested in Form 1)

Form 4

Suggested affidavit in support of application for extension of time to file application for leave to appeal

(To add before paragraph 2 in Form 2, as follows:-)

2. I seek an extension of time to make this application for leave to appeal. The merits of my application for leave to appeal are set out further below in this affidavit.

3. I was not able to file the application for leave to appeal (which was to have been filed on or before ______(date) due to (state reasons). The length of the delay was ___ days/weeks (and justifiable or excusable for the following reasons).

4. To my knowledge, the other party to these proceedings have not suffered any prejudice that cannot be sufficiently compensated by an order for costs.

5. …….

Form 5

Originating summons to High Court for leave to appeal

IN THE HIGH COURT OF THE REPUBLIC OF SINGAPORE

Originating Summons No of 20

In the Matter of Section 21(1) of the Supreme Court of Judicature Act (Cap 322) and in the matter of MC/DC Suit No of 20

Between

(Proposed Appellant) ... Plaintiff

And

(Proposed Respondent)

... Defendant

ORIGINATING SUMMONS

(As per Form 4 of the Rules of Court. The orders sought may be as follows.)

a. the Plaintiff be granted leave, pursuant to section 21(1) of the Supreme Court of Judicature Act, to appeal to the High Court against the decision of His/Her Honour made on the day of 20 in MC/DC Suit No of 20 ; and

b. costs of this application be costs in the appeal.

District Judge James Leong

District Judge Jeffrey Sim

Magistrate Ngoh Siew Yen

Subordinate Courts

Joseph Liow

Straits Law Practice LLC

Notes

1 The facts are from the case of Hua Sheng Tao v Welltech Construction Pte Ltd [2003] 2 SLR 137.

2 Ibid at page 143.

3 Hailisen Shipping Pte Ltd v Pan-United Shipyard Pte Ltd [2004] 1 SLR 148.

4 Section 34(2) of the Supreme Court of Judicature Act states:

(2) Except with the leave of the Court of Appeal or a Judge, no appeal shall be brought to the Court of Appeal in   any of the following cases:

(a) where the amount or value of the subject matter at the trial is $250,000 or such other amount as may be   specified by an order made under subsection (3) or less;

5 The case of Goh Kim Heong & Anors v AT & J Company Pte Ltd [2001] SGHC 270 clarified the use of the words   ‘prima facie case of error’ used in the case of Anthony Savarimiuthus, post Kan Ting Chu J adopted the decision of   Tay Yong Kwang JC in Abdul Rahman Shariff v Abdul Salim Syed [1999] 4 SLR 716. The words required the   applicant to demonstrate that the prima facie error was one of error of law.

6 Pang Hon Chin v Nahar Singh [1986] 2 MLJ 145 and Anthony s/o Savarimiuthu v Soh Chuan Tin [1989] 3 MLJ 5;   [1989] SLR 607; Lee Kuan Yew v Tang Liang Hong [1997] 3 SLR 489, Court of Appeal.

7 Hua Sheng Tao, supra.

8 Rules of Court, O 55C r 2(1)(a) and O 55D r 4(2)(a) and (3)(a).

9 Rules of Court, ibid and note also O 3 r 2(5) in relation to the computation of the seven-day period.

10 Rules of Court, O 55D r 4(3).

11 Supra r 4(2), O 55C r 2(1)(a).

12 Rules of Court, O 55C r 2(1)(b) and O 55D rr 4(2)(b) and (3)(b).

13 Rules of Court, O 55C r 2(2) and O 55D r 4(4).

14 The application is to be made in the Subordinate Courts. In Tan Soo Giem v Yeo Ching Chua [2004] 1 SLR 408, the plaintiff argued that the defendant’s application for extension of time to file an application for leave to appeal   should have been filed in the High Court and not the Subordinate Courts. Lai Kew Chai J held that the Subordinate   Courts had the jurisdiction to hear an application for extension of time to file an application for leave to appeal. The case of Chen Chien Wen Edwin v Pearson [1991] SLR 578 was distinguished.

15 Tan Soo Giem, supra; Ng Huat Engineering Pte Ltd v Jurong Town Corp [2003] SGHC 12.

16 Prepared by Subordinate Courts and Law Society of Singapore. This checklist is for general information only. The law stated is current as at 1st February 2006.