Being sued in court is a severe business. If you are not prompt and diligent about handling the case properly, it may be very hard, costly, and time-consuming to defend or vindicate yourself later on.
In this article, I discuss frequently asked questions about being sued in a civil litigation case in the Singapore court.
A civil lawsuit is in contrast to criminal legal proceedings (which usually are brought by the Attorney-General’s Chambers and not another individual or entity).
How do I know if I am being sued?
If someone has sued you, that person is known as the plaintiff or claimant. The person being sued is known as the defendant or respondent. The plaintiff would have to file a claim in court.
The court paper to commence the claim would usually be a Writ of Summons (“Writ“). Or it may be an Originating Summons (“OS“). This is known as an originating process. Whether it would be a Writ or OS depends on what type of claim it is and whether the plaintiff thinks it will likely be heavily disputed on the facts (as opposed to just a dispute on the application of legal principles).
In order for a plaintiff to properly commence the process, she must arrange for the Writ of Summons or Originating Summons to be served on you. This is usually done by a process server engaged by the plaintiff’s lawyer or law firm.
If you are an individual person, the service must be done personally on you. In other words, you must actually receive it physically. However, if the plaintiff attempted personal service at least twice on you but could not reach you for example at your last reported residential address, then the plaintiff can apply to the court for substituted service. This means that the court will allow the plaintiff to serve on you by other means such as email, text message, social media, newspaper advertisement, sticking the court papers on the door of your residence, etc. This would then be considered valid service.
The problem is if you were away from Singapore or if you had moved to another residence, you may not be aware of this substituted service. Even if that were the case, the lawsuit against you can still validly continue. But you can appear in the suit later to contest it. I elaborate below.
If you are managing an entity, e.g. a private limited company, a company limited by guarantee or limited liability partnership (LLP), the plaintiff may simply arrange for the court process papers to be served on the registered address of your company or entity.
It is possible that you can be sued without you actually receiving notice of the originating process. One way to check this would be to conduct a litigation search on yourself in the relevant databases. As a litigation lawyer in Singapore, I would have easy access to databases to search whether a person has been involved in any litigation, enforcement of court orders or judgments, insolvency or bankruptcy, probate proceedings, etc.
What should I do if I receive a Writ of Summons or Originating Summons?
Once you have been served with an originating process, you should act promptly to seek legal advice on your case.
This is because there are timelines which start running once you have been served the papers.
If you have been served a Writ, you have generally 8 calendar days from that date to file a Memorandum of Appearance (“MOA”). (There are legal rules on how to calculate the relevant days and timelines.)
If you fail to file a MOA in court by the deadline, the plaintiff can apply to enter default judgment against you. It is like a no-show and walkover in a football game.
You then usually have 14 calendar days from the deadline for the filing of the MOA to file and serve a Defence or a Defence and Counterclaim against the plaintiff.
Again, if you fail to do so, the plaintiff can apply to enter default judgment against you.
Once the plaintiff has successfully obtained default judgment against you, it can enforce judgment against you and your assets.
This could mean, for example, that the plaintiff can apply to have money in your bank account garnished, or your possessions from your home or office seized through a Writ of Seizure and Sale. Or the plaintiff may even apply to make you a bankrupt or have your company wound up.
As you may observe, the timelines are actually rather short. And the consequences can be severe. Imagine this: you could potentially have a judgment against you ordering you to pay millions of dollars to someone even though the other person may not have real legal or evidential basis for this!
Hence, you need to take quick action and seek legal advice on whether you have a good defence and whether you can counter-claim or counter-sue the plaintiff.
What if I already have a default judgment entered against me?
If default judgment has been entered against you, you may still be able to apply to court to set aside the judgment.
This would involve making an application in court with an explanation as to why you did not respond to the suit against you previously.
If there were procedural problems or defects in the grant of the default judgment, the court will ordinarily set aside the judgment, unless the plaintiff can show that you were bound to lose your case in any event.
If there were no procedural problems or defects in the grant of the default judgment, you will need to prove to the court that there are arguable issues in your case or issues which need to go to trial to be determined in order for the court to set aside the default judgment.
I have seen cases where the defendant was sued but did not take prompt action. Judgment was then entered against the defendant. Then, when the defendant wanted to do something about the case, some time had already passed. And the cost of setting aside the default judgment is an unnecessary additional cost which could have been avoided from the start.
What do I do if I want to defend the suit?
You should prepare all the relevant information and evidence and obtain good legal advice on the legal issues and procedures, the merits of your case based on the available evidence, and the strategy to defend yourself against the claim.
The Defence (and Counterclaim) is a very important foundation to your case. You need to ensure it is properly drafted and that all the material facts have been set out and particularised.
I have seen cases where defendants failed to properly conduct legal research on viable defences and went on to raise or plead defences which are completely wrong at law. When they appear at trial, only then do they realise that the defence is not even legally tenable.
There have also been reported cases and decisions where defendants failed to raise or plead certain material facts. At trial, they tried to introduce evidence regarding such facts. However, the courts disallow them from relying on such evidence adduced at the last minute because it is considered prejudicial to the other party to the litigation.
This may seem circular or tautological, but whether certain facts and evidence are relevant and/or material is dependent on the legal principles and case theory.
A case theory is a detailed and coherent narrative of what happened in the case involving both a legal theory and a factual theory.
This involves both deductive reasoning (applying legal principles to your case) and inductive reasoning (from the information and evidence made available by you to your lawyer).
Further, if the Defence (and Counterclaim) is not properly considered or drafted, it may even be struck out by the plaintiff on the basis that it contains no valid defence to the plaintiff’s claim. The plaintiff may also apply to the court for summary judgment. This means that the court would determine the case and rule in favour of the plaintiff without a trial.
There is a difference between (i) how the law views certain facts; and (ii) how non-lawyers view those same facts. There are also rules on whether certain evidence may be admissible in court or not.
Understanding these differences is crucial to formulating a strong defence and strategy.
You may also have a valid counterclaim against the plaintiff. It is important to raise the counterclaim in the same lawsuit if the counterclaim relates to the plaintiff’s claim against you. Otherwise, there may be legal rules which apply to prohibit you from bringing the matter up later in a subsequent suit.
What legal tactics can I use to make the plaintiff’s claim fail?
There are various tools in the lawyer’s playbook to help you increase the likelihood of success of your defence.
These have to be properly considered within a larger overarching litigation strategy, taking into account your risk and cost appetite.
At the end of the day, it is for the court to determine the case based on the correct application of legal rules to the evidence available.
However, some possible tools and tactics to challenge the plaintiff’s case and its conduct of the case include:
- Mareva or freezing injunctions to freeze the other party’s assets if there are good grounds–this must be done early and urgently;
- Anton Piller or search orders to seize evidence in the other party’s possession if there is a valid basis for this–this must be done early and urgently;
- Other injunctions to maintain a certain status quo pending the resolution of the matter so that certain legal rights or interests will not be prejudiced–this must be done early and urgently;
- Seeking further & better particulars (“F&BP“) of the other party’s pleadings to clarify the issues and the other party’s positions;
- Applying to court to order the plaintiff to furnish monetary security for costs (“SFC“), i.e. your potential legal costs if you succeed in your defence;
- Applying to strike out the plaintiff’s claim or for summary judgment or determination without trial;
- Seeking specific discovery or disclosure of certain documents which should be in the plaintiff’s possession, custody or power–the absence of which would be indicative of the evidence or lack thereof;
- Seeking interrogatories before trial, i.e. questions of fact which the other party must answer to clarify the factual positions;
- Objections to the admissibility of certain key evidence on grounds of, for example, hearsay or a requirement to prove the authenticity of certain documents;
- Proficient cross-examination at trial.
If you need a Singapore litigation lawyer to help you defend a suit in court, feel free to contact me.