Here’s a flowchart to summarise the key points.
What are you suing about?
- That’s an important first question. The answer determines the how, the procedure and the who to consult to help you sue.
- If it’s a claim for debts, you can claim in either the Small Claims Tribunal (SCT), the Magistrate’s Court (MC), the District Court (DC) or the High Court (HC), depending on the amount claimed.
- SCT: less than $10,000 or $20,000 if parties agree.
- MC: less than $60,000.
- DC: less than $250,000.
- HC: $250,000 or more.
- The amounts stated above are known as the monetary jurisdictional limits. This is being reviewed by the Ministry of Law and may change in the near future.
- If you want to sue to obtain certain reliefs relating to a company’s affairs, the amount of value involved also determines which court, but the SCT won’t hear such matters.
- If it’s a divorce-related matter or a probate matter (ie relating to a deceased’s estate) or a Mental Capacity Act matter, you’d have to commence proceedings in the Family Justice Court.
- If you want to commence private prosecution of certain criminal offences, you’d have to file a Magistrate’s complaint. Only some offences may be privately prosecuted.
Writ or Originating Summons (OS)
- Generally the type of matter determines whether you commence the legal proceedings or legal action as a Writ of Summons or an OS.
- A writ typically involves a trial of disputed facts.
- An OS typically does not, although in special circumstances, the court can order for cross-examination of witnesses.
- Generally writ actions take a longer time than the OS, because writ actions involve a process known as discovery. That entails parties to the action disclosing material and relevant evidence to one another. Sometimes that could mean having to sift through whole warehouses of documents. That’s going to be terrible for the lawyers, but such is life for lawyers (why don’t we get any sympathy?).
Pre-Action Requirements: Notice, Letter of Demand, etc.
- In some types of matters, it is important for certain acts to be done before one sues the other party.
- For instance, in an application for leave of court to commence a statutory derivative action on behalf of the company, the applicant must give at least 14 days notice to the directors of the company of the intended action. No notice, generally no leave of court.
- In claims for debts, a letter of demand is typically sent to the other party. If not, there may be adverse cost implications on the plaintiff, ie the person suing. This means that the court may award less costs or not even award costs to the plaintiff if he wins, or even award higher costs against the plaintiff if he loses.
- Another thing is, you would have to check if your claim is not time barred by the Limitation Act. Claims relating to contract breaches for example must be brought within 6 years of the cause of the action. After that, good luck to you, unless the defendant for some reason waives the defence of time bar. Analysing the issue of whether your claim falls under one category or not can get really complex.
- Another issue to consider is whether or not Singapore law applies or whether the Singapore courts are the appropriate forum to hear the dispute.
- So in sum, if you’ve got a problem, get advice early.
Service of Originating Process
- Generally what is required when a plaintiff commences proceedings is that an originating process is issued and served on the defendant ie the person being sued. This could be a writ of summons or an originating process.
- Typically, such originating process must be served personally on the defendant. So if it’s an individual person this means physically handing the court document to the person. If it’s a company, it means delivering the document to the registered address of the company.
- If the defendant is not in Singapore, you have a problem. You would need to apply to the court for leave to serve the originating process outside of the jurisdiction ie outside of Singapore. This is because the defendant is not within the Singapore court’s jurisdiction and special reasons must justify it. The application can get complex. The defendant could show up (through his lawyers) and argue that it’s not justified for the Singapore court to allow service of the process on him outside of Singapore. He would argue that the Singapore court is not the appropriate court to hear the matter, that some foreign court is distinctly or clearly more appropriate.
- If the defendant is in Singapore but you can’t find him and thus can’t serve the process on him personally, you can apply to the court for substituted service after at least two attempts at personal service. If the court allows this, you can consider it served on him if eg you stick the process on his last known address, or you serve by way of an email or a Facebook message attaching the process. You must have evidence showing that the defendant will actually get notice of the process.
Defendant’s Appearance in the Action
- After originating process is served on the defendant, the defendant has 8 days to make an appearance in the action, or 21 days if the process was served out of jurisdiction.
- If he does not make an appearance, then the plaintiff can apply for a default judgment, ie in default of appearance. So it’s like a free win, but the defendant can later show up and apply to set aside the judgment. But he will need good reasons. Like show that he was never properly served the originating process. For companies, they must appear in the action represented by a lawyer; otherwise the company director must apply to the court for leave to be represented by the director.
- After a defendant appears, generally he would have 2 weeks to file a Defence. He could also counterclaim against the plaintiff. But he may choose to not do so, and instead choose to challenge the jurisdiction of the Singapore court. He could argue that the Singapore court is not the appropriate forum. This is the doctrine of forum non conveniens. If he succeeds, the court would stay the Singapore proceedings. If he fails, the proceedings go on.
- After the Defence is filed, the plaintiff files the Reply. That is typically the last of the pleadings. Pleadings are documents filed by parties setting out the material facts which they will rely on for their case. The statements of fact are simply statements and not yet supported by evidence. Evidence is disclosed at the next stage, discovery.
- At this stage, parties have to disclose all relevant material evidence. Under Singapore law, which follows the common law system, parties have to disclose evidence which they will rely on as well as evidence which are beneficial to other parties including their opposing parties. This is a continuing obligation up to the resolution of the action.
- If one party knows that the other party has evidence which is relevant and material to the issues in the action, but the other party has not disclosed such evidence, the former party can apply to the court for specific discovery.
Other Interlocutory Applications
- There are various other plausible applications which a party can make prior to trial or the final determination of the matter.
- One application is that under Order 14 of the Rules of Court for summary judgment. This is where the plaintiff thinks that the defendant has no reasonable defence to his claim. Or an application for summary determination of law. This is where a legal issue may be determined pre-trial which if resolved would determine an issue in the matter or the whole matter.
- Another is under Order 18 rule 19 for striking out pleadings. There are various grounds for this. At the highest, a defendant can apply to strike out the plaintiff’s entire statement of claim and thus action on the basis that (among other things) they disclose no reasonable cause of action, or the claim is scandalous, frivolous or vexatious. The grounds under Order 18 rule 19 are that the pleadings: discloses no reasonable cause of action or defence and/or is scandalous, frivolous or vexatious and/or tends to prejudice, embarrass or delay the fair trial of the action and/or is otherwise an abuse of the process of the court.
- Another 2 important interlocutory applications are that for a Mareva injunction (freezing order) and an Anton Piller order (search order).
- The former is to freeze the defendant’s assets to prevent him from dissipating his assets to evade execution of a judgment if obtained against him. The plaintiff must show that he has a good arguable case against the defendant, the defendant has assets within jurisdiction, and there is a real risk of dissipation of assets from the jurisdiction which would render judgment obtained in the proceedings nugatory. The plaintiff can seek a domestic or a worldwide injunction, ie applying to assets in other countries, provided the plaintiff can show that the value of the defendant’s assets in Singapore is insufficient.
- The latter is to preserve evidence and prevent the defendant from destroying it. The plaintiff will then be able to enter the defendant’s premises, search and seize evidence. The plaintiff must satisfy the court that it has an extremely strong prima facie case, the potential damage to the plaintiff which the grant of an order could avert is very serious, there is clear evidence that the defendant has in its possession incriminating documents or items and there is a real possibility that the defendant may destroy such material before an application with notice to the other parties can be made.
Trial or Hearing
- After all the interlocutory applications have been resolved, the matter proceeds to trial or the hearing of the matter, as the case may be.
- For the purposes of the trial, evidence will generally be led by witnesses through affidavits of evidence in chief (AEIC). The AEICs will be exchanged between parties before trial. At trial, the witnesses will be cross-examined on their AEICs.
- If it’s an OS, it will be a hearing on the basis of affidavit evidence and legal arguments will be made to the court on that evidence.
- The court will then determine the matter on the law and evidence.
- At any time, any party can withdraw or discontinue. Parties can also settle their matter out of court (eg through mediation or negotiations) and thus withdraw or discontinue the action. Or they can seek to get the court to make a consent order or a Tomlin order agreed to between parties.
The above is just a simplified summary of civil justice procedure. There are various other nuances and complexities to conducting litigation. There is a whole arsenal of civil procedural tools and approaches in order for a party to achieve his objectives as quickly and as cost-effective as possible.
Estimated timelines for a typical court claim are in the chart below.