!CH 2 LTG

Singapore Maritime Academy
Diploma Plus in Maritime Law and Dispute
PCMLD/FT/2A/01
AY2012/2013
Dispute Resolution (MA 8003)
Chapter 2
Litigation
Objective:
By the end of this chapter, students should be able to:
• State the basics of civil procedure of Singapore
• State the basic law with regards to forum selection
• Understand the basics of conflict of laws
Essential Reading
Case management: drawing from the Singapore experience, Civil Justice Quarterly, 2011,
Lionel Leo.
Civil Procedure, 1994, Jeffrey Pinsler, Butterworth
Evidence and the Litigation Process, 3rd student edn, Jeffrey Pinsler SC, LexisNexis (2010)
http://www.singaporelaw.sg/content/CivilProcedure.html (accessed 3 April 2012)
Modern Advocacy Perspectives from Singapore, 2008, Academy Publishing.
Singapore Business Law, 4th edn (2006), Benny S Tabalujan and Valerie Du Toit-Low,
Business Law Asia.
Cases available in the content and footnotes.
Further Reading
Carriage of Goods by Sea, 2nd edn (2011), Prof Stephen Girvin, Oxford.
The Conflict of Law, 14th edn (2006), Vol 1, Dicey, Morris & Collins, Sweet & Maxwell.
Page 1 of 43
Hall of Justice, Supreme Court of Singapore (2006) 1
2.0 Introduction
In common law jurisdiction, adjudication on dispute takes place at a hearing or trial.

Litigation simply means the process of law suit. This text focuses mainly on civil law
suit or civil procedure. The main sources of civil procedure law include the Supreme
Court of Judicature Act, the Subordinate Courts Act and other statutes which have
procedural application or contain procedural provisions, the Rules of Court (RC), 2
practice directions, 3 case law and the inherent powers of the court. Civil procedure in
both the Supreme Court and subordinate courts is governed by the Rules of Court 4.
The provisions in the RC are divided into Orders (O) and, within each Order, into
rules (r).
Note:
In short, in Singapore, the Rules of Court prescribe the procedure for civil litigation
and the Criminal Procedure Code prescribes the procedure for criminal litigation.
2.01 Litigation involves the following various stages:

• When P deems that he was being wronged in law by D and decides to claim from
D for compensation. P hence initiates legal proceedings towards D. This is an
originating process.
• An originating process is a court document which commences a civil action and
there are two types of originating process:
(i) a writ of summons, and
(ii) an originating summons. 5
Note: see 2.1 below.
• The originating process will then followed by D’s (the defendant’s) response, ie D
enters an appearance if he wishes to dispute the claim.
• The remaining processes include:
1
SP Library call no KPP334.2Hal.
2
http://app.supremecourt.gov.sg/default.aspx?pgID=97 : The Rules of Court are made in accordance with the
provisions of the Supreme Court of Judicature Act and regulate and prescribe the procedure and practice to be
followed, mainly in civil proceedings in the High Court and the Court of Appeal. It is the subsidiary legislation
to the Supreme Court of Judicature Act (Cap 322).
3
http://app.supremecourt.gov.sg/default.aspx?pgID=98 : Practice Directions and Registrar's Circulars are
issued by the courts to supplement the Rules of Court by regulating court practice and procedure. Court users
are expected to comply with all Practice Directions and Registrar's Circulars issued by the court. Until 1994,
Practice Directions were issued as discrete documents; since then, however, all Practice Directions have been
consolidated into a publication known as The Supreme Court Practice Directions.
4
The Rules of Court are made in accordance with the provisions of the Supreme Court of Judicature Act and
regulate and prescribe the procedure and practice to be followed, mainly in civil proceedings in the High Court
and the Court of Appeal.
5
See O 5 of the RC.
Page 2 of 43
i. Pleadings – Statement of case: it is the legal basis on which the plaintiff is
claiming against the defendant or the defendant is resisting the claim). It is
usually included in a bundle of court documents which are needed to be
prepared for the judge. The party who sets the action down for trial must
deliver this bundle together with his request to the registrar to set down
the action for trial; 6
ii. Once the pleading process ends (the close of pleadings), the next phase
consists of discovery of documents and summons for directions by the court
– with the former, the parties have opportunity to inspect each other’s
documentary evidence. At this stage, parties may decide whether to go to
trial basis the outcome of the above inspection.
As for the summons for directions, the court and the parties review the
case as a whole to determine what further steps need to be taken and what
further directions by the court are necessary so that the matter is ready for
trial; 7
iii. interlocutory applications for interim or final relief; and
iv. if the case has not been resolved by settlement, ie through negotiation or
mediation, or terminated by summary 8 or other form of interlocutory 9
judgment, the action will be set down for trial. With this respect, litigation
is seemed therefore intended to be the mode of dispute resolution of final
resort.
2.02 After judgment is provided by the court, litigation may continue, usually by the party
who loses the case, through appeal.
Do you agree that litigation is intended to be the mode of dispute resolution of final resort?
Why?
2.03 With regard to advocates and solicitors’ responsibilities toward their clients, see the
following case:
In the road accident case of Lock Han Chng Jonathan v Goh Jessiline, 10 the appellant
claimed compensation in the amount of $375 from the respondent. This was disputed
and finally settled at mediation. However issue then arose as to whether the proper
sum of disbursements should be 290.35 or $230. Further legal proceedings ensued till
the Court of Appeal and resulting substantial amount of court fees and disbursement
and legal fees. The Court of Appeal made the following observations regarding the
6
O 34 r 3 (RC).
7 rd
Ch 17.74, Evidence and the Litigation Process, 3 student edn, Jeffrey Pinsler SC, LexisNexis (2010).
8
Judicial processes which is conducted without the customary legal formalities.
9
Decree or judgment which is given provisionally (in the interim) during a course of legal action.
10
[2007] SGCA 56; [2008] 2 SLR(R) 455.
Page 3 of 43
costs incurred in the course of litigation: 11
45 … Instead, this was a case about dollars and “sense”. There was no
high principle at stake. What was involved here was a paltry sum of about $60.
Yet, both counsel, instead of exercising the degree of responsibility expected of
an officer of the court and advising their respective clients to settle the dispute
with minimum fuss and, therefore, minimum cost, proceeded to broaden the
areas of contention between their clients unnecessarily and in a highly
wasteful manner.
The Court of Appeal continued at CA No 50 of 2007:

6 … This case should never have come this far. It would not, if the
solicitors in this case had acted reasonably in the interests of their clients. A
dispute involving a puny sum of about $60 escalated into contests of wills
between two solicitors, resulting in wastage of judicial time and unnecessary
expenditure in terms of court fees and disbursements which exceeded
$100,000 even before the date of this hearing. We have, in fact, been shown a
letter dated 13 July 2007 from the appellant’s former solicitor stating that his
fees up to the stage of his discharge from these proceedings are in the region of
$150,000. We are troubled by this.
7 This is an incredible case. We have not seen one like it in all our years
in the law. It has brought no credit to counsel involved and the legal system as
a whole. All that the appellant wanted from the defendant was $375 being
$285 for the cost of repairs to his motorcycle and $90 for loss of use, for which
he eventually agreed to settle at $187.50. For this, he was put at risk of having
to pay a sum in excess of $100,000 in legal fees.
The Supreme Court consists of the Court of Appeal and High Court. The
Subordinate Courts consist of the District Court and the Magistrate's Court. The High Court
is a court of first instance, generally for claims beyond the jurisdiction of the Subordinate
Courts (although the High Court is a court of unlimited jurisdiction and may hear any claim
irrespective of the amount or value involved). The District Court’s general pecuniary
jurisdiction is limited to claims up to $250,000. The Magistrates’ Court’s general pecuniary
jurisdiction is limited to claims up to $60,000. There is also the informal process of the Small
Claims Tribunal (which is governed by its own specific rules, not by the procedural rules
which govern the main courts just mentioned) which has jurisdiction over claims up to
$10,000 (which may be increased to $20,000 subject to the written agreement of the parties).
11
[2008] 2 SLR(R) 455.
Page 4 of 43
2.1 Modes of commencing legal Action 12
Most civil actions are commenced by writ. It is a formal document by which the
defendant is directed to enter an appearance within a specific period from the date of
service of the writ. 13 Unless otherwise required by the RC or any written law, legal
proceedings (or the originating process) may be begun either by Writ of Summons or
by Originating Summons, as appropriate.
Originating Process
Writ of Summons Originating Summons
• This mostly applies to civil actions This is appropriate where the dispute is
in contract and tort. non-factual and concerned with matters
• It is mandatory to commence of law where
proceeding by way of a Writ of • there is no substantial dispute of
Summons when substantial dispute of fact, or
fact is likely to arise. • the interpretation of a written
• Dispute in fact include actions instrument or statutory provision;
involving: or
 claims for relief or remedy in/for • if otherwise required under any
any tort, other than trespass to written law or the Rules of Court, ie
land; where an application is to be made
 claims based on allegations of to the Court or a Judge thereof
fraud; under any written law, proceedings
 claims for damages for breach of must be commenced by way of
duty, ie damages in respect of Originating Summons.
death, personal injury or damage
to property; and In comparison with a writ, the
 claims in respect of the Originating Summons procedure is:
infringement of a patent. • cheaper,
• faster, and
• simpler
because it does not involve pleadings
and many interlocutory proceedings.
Note:
An action commenced by Originating Summons may be converted into a Writ action
should it later emerge that there is substantial dispute of fact.
12
http://www.singaporelaw.sg/content/CivilProcedure.html (accessed 3 April 2012).
13
P. 67, Civil Procedure, 1994, Jeffrey Pinsler, Butterworth.
Page 5 of 43
In Drydocks World LLC (formerly known as Dubai Drydocks World LLC) v Tan Boy
Tee, 14 Drydocks World LLC (“the plaintiff”) in originating summons (OS) sued Tan
Boy Tee (“the defendant”) for allegedly breaching the terms in particular cl 2.2.1(i)),
of a Deed of Undertaking dated 29 October 2007, relating to the defendant’s sale to
the plaintiff of his majority shareholdings in a listed company (since delisted) known
as Labroy Marine Limited (“LML”). The plaintiff had also applied by way of
Summons No 2207 of 2010 (“the Application”) to convert the OS to a writ of
summons and for the court to order timelines for the filing of pleadings. The court
dismissed the Application as there was no material disputes of fact 15 and the
applicant hoped by this means to obtain unjustified discovery, where the court
followed the Court of Appeal in Tan Chin Seng and others v Raffles Town Club Pte
Ltd [2002] 2 SLR(R) 465 which held that the “discovery process should not be
allowed to ‘fish a cause of action’, and that “where an allegation is not pleaded,
seeking discovery of a document to back up such an allegation constitutes fishing”. 16
Without reading the judgment of Drydocks World, what is your deduction as to the
reason for the plaintiff to convert the OS to a writ of summons?
Additional Note: (out of context)

Since 2000, with the implementation of the Electronic Filing Service (EFS), court
documents can be filed electronically. The EFS coupled with the introduction of the
Technology Court and electronic hearings are paving the way for an electronic
litigation system in Singapore. 17 Singapore's courts are widely regarded as being
among the most efficient in the world. 18
2.2 Matters to be considered before Commencing an Action19
Time Limits • An action must be commenced within the limitation periods

prescribed by law. That is to say, an action can only be
commenced if it is not time-bared.
• Generally, actions in:
 contract and tort – limitation period is 6 years, 20
14
[2010] SGHC 248.
15
Ibid, at [37].
16
Ibid, at [34].
17 th
Para 2-503, Singapore Business Law, 4 edn (2006), Benny S Tabalujan and Valerie Du Toit-Low, Business
Law Asia.
18
Case management: drawing from the Singapore experience, Civil Justice Quarterly, 2011, Lionel Leo.
19
20
For example, actions for breach of contract must be commenced within 6 years from the date of the breach.
Same for tort if it is not a personal injury claim.
Page 6 of 43
 personal injury actions (in tort) – limitation period is 3
years, and
 actions to recover land and execute on a judgment –
limitation period is 12 years.
Forum • Before commencing an action, a potential litigant should also

consider if Singapore is the appropriate forum to commence
proceedings or risk having the action stayed i.e., stopped, on the
ground that there is clearly a more appropriate forum elsewhere.
• A party who wishes to stay an action on such a ground will have
to show that it is in the interest of the parties and of justice to try
the case in another forum. The court will have to be persuaded
that the other forum has the most real and substantial connection
to the dispute, taking into account factors such as the governing
law of the transaction and the location of witnesses. However,
this is not a concluding factor to grant a stay as the court will also
need to consider whether substantial injustice will be caused in
sending the plaintiff to a foreign court if a stay of proceeding is
granted.
Court Fees • Court fees are prescribed in a number of statutory regulations

and Hearing and are payable at various stages in civil proceedings.
Fees • Fees are payable when documents are filed with the court.
• Fees are also separately payable in respect of services such as
sealing documents, providing copies of documents and the use of
the court for hearings.
• Presently, court hearing fees are as follows:
Day Claim value =< Claim value > S$1M
S$1M
1st to 3rd day Free Free
4th day S$6,000 per day or S$9,000 per day or
part thereof part thereof
5th day S$2,000 per day or S$3,000 per day or
part thereof part thereof
6th to 10th day S$3,000 per day S$5,000 per day
11th day onward S$5,000 per day S$7,000 per day
2.3 Commencing an Action: from Writ up to Close of Pleadings 21
Writ is a formal document needed to start the case. It is also referred to as claim form
21
Page 7 of 43
in the UK. 22
Issue and Validity of • To commence a writ action, the plaintiff files the writ in
a Writ the Supreme Court Registry, to be signed and sealed by
the Registrar.
• A signed and sealed writ is deemed issued.
• A writ is generally valid for 6 months.
• Where it has to be served out of jurisdiction, it is valid
for 12 months.
• Where it is issued in Admiralty Proceedings, the writ is
valid for 12 months.
• The plaintiff may apply to the court to extend the validity
of the writ for a further period of 6 months at a time.
Service of the Writ • A writ must be served personally on each defendant. 23

• Personal service is effected by leaving a copy of the
document on the defendant if he is an individual and at
the registered address of the defendant if it is a company.
• There are exceptions, for example, where the defendant’s
solicitor has authority to accept service on behalf of the
defendant or where an order for substituted service is
made.
Service of the Writ out • Plaintiff needs leave from the court to serve a writ on a
of Singapore defendant outside Singapore.
• Before a court grants leave, it must be satisfied that the
plaintiff has a good arguable case falling under one of the
limbs of Order 11 rule 1 of the Rules of Court which,
amongst other cases, include instances where relief is
sought against a person who:
 is domiciled, ordinarily resident or carrying on
business or has property in Singapore and/or an
injunction is sought ordering the defendant to do or
refrain from doing anything in Singapore and/or the
claim is brought in respect of a breach committed in
Singapore of a contract made in Singapore.
Further, the court has to be satisfied that there are
serious issues to be tried. If leave is granted, service
outside Singapore has to be in accordance with the
laws of the country in which service is effected.
22 th
Learning Legal Rules, 7 edn (2010), James Holland and Julian Webb (Oxford). Claim form is a new
terminology used in the UK.
23
See RC O5.
Page 8 of 43
Entering Appearance If a defendant is served with the writ, he has 8 days after
service of the writ (or 21 days if the writ was served out of
jurisdiction) to enter an appearance by filing a
Memorandum of Appearance with the court to indicate his
intention to defend the suit.
Pleadings • Before a writ is issued, it must be endorsed with a

statement of claim or, if the statement of claim is not
endorsed on the writ, with a general endorsement
consisting of a concise statement of the nature of the
claim made and the relief or remedy prayed for.
• When the writ only has a general endorsement, the
statement of claim must be served before the expiration
of 14 days after the defendant enters an appearance.
• When the defendant has entered appearance, he is
required to file and serve his defence on the plaintiff 14
days after the time limited for entering an appearance, or
after service of the statement of claim, whichever is later.
• A defendant may make a counterclaim in the same
action brought by the plaintiff in the defence and
counterclaim.
• A plaintiff must serve on the defendant his reply and
defence to a counterclaim, if any, within 14 days after the
defence (and counterclaim) has been served on him.
Discovery and Discovery 24

Interrogatories [see • This is a process which involves ‘bundles’ of documents
also 2.5 below] possessed and controlled by each party and to be handed
over to one another for inspection.
• This process is to ensure one party does not surprise the
other with documents or information during trial.
• When documents are privileged, the party is not under
the obligation to hand over them to the other party.
Interrogatories
• This is a process when a party may seek to have the other
party answer questions relating to the case. 25
• The questions must be answered on oath.
[Note: A document made on oath is called an “affidavit”.]
• This process is to determine certain facts which are
24
RC O24.
25
RC O26 and O26A.
Page 9 of 43
critical to the case.
Close of Pleadings Pleadings are deemed closed 14 days after:

 service of the reply or
 service of defence to the counterclaim.
If neither a reply nor a defence to the counterclaim is served,

pleadings are deemed to be closed at the end of 14 days after
the defence is served.
Third Party If the defendant is of the view that another party is liable to
Proceedings indemnify it and/or otherwise contribute towards the
plaintiff’s claim, the defendant may apply to add that party
as a “third party”, leading to third party proceedings.
2.4 Disposal of Action Without Trial 26
Proceedings may be resolved and/or otherwise summarily terminated and/or

determined and disposed of at an early stage before the trial of the action, for a variety
of reasons.
Default Judgment • defendant fails to enter an appearance or

• having entered appearance, fails to file a defence, within the
time specified in the writ,
the plaintiff may enter default judgment against him. This may
be a final judgment or an interlocutory judgment, depending on
the nature of the claim.
Nanyang Law LLC v Alphomega Research Group Ltd 27
Nanyang Law LLC (“Nanyang”), a firm of advocates and solicitors, represented

Alphomega Group Ltd (“Alphomega”) in suits involving its directors/shareholders.
The suits were heard before Tan Lee Meng J. Midway through the trial before Tan J,
Alphomega terminated the services of Nanyang and replaced Nanyang with Sterling
Law Corporation (“Sterling”) as its counsel. Subsequent to its discharge, Nanyang
sought payment for work done for Alphomega up to the termination. Several invoices
were rendered to Alphomega. However, payment was not forthcoming. Nanyang then
26
27
[2010] 3 SLR 914.
Page 10 of 43
proceeded to tax the solicitor-client costs. Registrar’s certificates were issued, and
Nanyang sought payment of the taxed costs from Alphomega but to no avail. It then
commenced the present action against Alphomega to recover the total outstanding
amount in respect of the registrar’s certificates. The writ of summons (“the Writ”) was
filed and purportedly served by a court clerk of Nanyang on Alphomega at
Alphomega’s principal place of business. As Alphomega did not enter appearance in
respect of the Writ, Nanyang obtained judgment in default of appearance against
Alphomega. Alphomega then filed an application to set aside the default judgment
(“the Application”). After hearing the arguments of both parties, the Assistant
Registrar (“AR”) dismissed the Application and upheld the default judgment (“the
Default Judgment”). Alphomega appealed against the AR’s decision. It argued that the
Default Judgment ought to be set aside as it had a prima facie defence against
Nanyang’s claim and should hence be allowed to defend itself. It alleged, inter alia,
that first, it had a defence of set-off based on moneys inappropriately paid out of its
funds to Nanyang for services Nanyang rendered to Alphomega’s directors in their
personal capacities; second, Nanyang was not entitled to payment for work done as it
did not have the authority or mandate to act on Alphomega’s behalf and that it had
not acted in Alphomega’s best interest; and third, Alphomega had a right to claim
against Nanyang for damages allegedly suffered as a result of Nanyang’s wrongful
actions and negligence. Andrew Ang J found that Alphonmega has an arguable
defence thus allowed the appeal ie set aside the default judgment. (at [25])
Summary • If the defendant has entered appearance and filed a defence,

Judgment but it is clear that the defendant has no real defence to the
claim, the plaintiff may apply to court for summary
judgment against the defendant.
• To avoid summary judgment being entered, the defendant
has to show that the dispute concerns a triable issue or that
there is some other reason for trial. An application for
summary judgment must be filed at the latest within 28 days
after pleadings are deemed to be closed (unless the court
otherwise orders).
United Overseas Bank Ltd v Tru-line Beauty Consultants Pte Ltd 28
United Overseas Bank Ltd (“UOB”) instituted the main action (“Suit 1057”) against
its customer – Tru-line Beauty Consultants Pte Ltd (“the Borrower”) as well as the
Borrower’s guarantors (“the Guarantors”) for sums allegedly outstanding under two
banking facilities granted by UOB to the Borrower (“the Banking Facilities”). UOB
applied for summary judgment and Woo J allowed it as the counterclaim [by Tru-
Line] was suspect and may even turn out to be fraudulent.
28
[2011] 2 SLR 590.
Page 11 of 43
Striking Out • Pleadings may also be struck out summarily.
• An application to strike out any pleading or part thereof,
may be made if it 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.
In Pacific King Shipping Pte Ltd v Glory Wealth Shipping Pte Ltd 29 (“Pacific King”), the
defendant filed petition for the plaintiff charterer and guarantor to winding–up since
the plaintiff was alleged not able to honour the arrears owed to the defendant. The
plaintiff sought to strike out the winding-up petitions filed against them on the
ground that the winding-up petitions were an abuse of process because there was a
bona fide dispute on substantial grounds.
At [4], the High Court held that a winding-up petition is not the appropriate means of
collecting a disputed debt nor is it to be abused as a means of pressure. The issue
before Philip Pillai J is whether there is a bona fide and substantial dispute of the
alleged debt on any of the grounds raised by the plaintiffs. This is the threshold which
the plaintiffs must meet in support of their application to stay or strike out the
winding-up petitions and to obtain the stay or striking out of a winding-up petition,
the debtor company must show that the dispute is bona fide in both a subjective and
objective sense. His Honour noted, however, that the debtor-company need not show
that the debt did not exist – it merely needed to raise a triable issue. As the plaintiffs
failed thus, their application to stay or strike out the winding-up petitions filed by the
defendant was dismissed.
Discontinuance Finally, a party may withdraw or discontinue his action or

and withdrawal defence or counterclaim, as the case may be. This may be done
with or without the court's leave (permission), depending on the
stage of the proceedings.
Yip Kong Ban and another v Lin Jian Sheng Eric and another 30 is a case of an
application by the defendant to reinstate a discontinued 31 action. Choo Han Teck J
held that (supra, at [5]) the court will grant leave to reinstate if there were good
reasons to do so and that no great hardship is caused to the other party. However,
since the defendant not having pursued his claim for damages within 12 months from
29
[2010] 4 SLR 413.
30
[2010] 3 SLR 718.
31
Ibid, at [4].
Page 12 of 43
the preceding judgment, the matter is deemed to have been discontinued and thus the
defendant’s application was not successful.
Pre-Trial This is an informal meeting where parties meet and be

Conference encouraged to settle the case without having to go to trial as by
this stage, the parties should be well aware of the strengths and
weaknesses of each side. See 2.6 below.
Primary Dispute • Litigating parties are free to settle their dispute during the
Resolution Centre course of litigation. In fact, many disputes are settled before
(PDRC) reaching trial. The PDRC is created for this purpose.
• PDRC provides court-assisted settlement without having to
go to trial through alternative dispute resolution procedures.
• Such “out-of-court” settlements minimise legal costs and
shorten time period as compared with court settlements.
2.5 Provisional Remedies and Other Interlocutory Matters32
Interlocutory • At any stage of the proceedings, but frequently

Injunction immediately following the issue of the writ, it may be
necessary and/or appropriate for a litigant to apply to
court for an interlocutory injunction directing the other
party to do or refrain from doing something until the
trial of the action.
• The purpose of such an injunction is to protect the
litigant against injury which it would not otherwise be
adequately compensated for in damages if the dispute
was resolved in its favour at trial.
• In cases of urgency, the plaintiff may make an
application even before the issue of the proceedings but
must give notice of the application to the other
concerned parties, unless grounds can be shown that
giving notice would defeat the purpose of the
application.
• To obtain the injunction, the applicant must show that
there is a serious question to be tried with a real
prospect of success, and that the balance of
convenience lies in favour of granting the injunction.
The granting of an injunction is normally made subject
to the plaintiff’s undertaking to pay damages to the
32
Page 13 of 43
defendant in the event the defendant is vindicated, or
the court later decides the injuction should not have
been granted.
Mareva injunction The Mareva injunction 33 is designed to prevent parties

from taking steps to deliberately frustrate the orders of the
Court by dissipating assets (either locally or worldwide) in
order to avoid the risk of having to satisfy any judgment
which may be entered against them in the proceedings.
Notice of the application has to be given to the other
parties concerned, unless there is evidence that such notice
will defeat the purpose of the application.
To obtain a domestic injunction, 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 same principles apply in the case of a
worldwide Mareva injunction, except that insofar as the
defendant’s assets within jurisdiction are concerned, the
plaintiff will have to show that there are no and/or
insufficient assets within jurisdiction to satisfy the claim
and that there are assets outside the jurisdiction.
Anton Piller Order Anton Piller 34 order seeks to prevent a defendant from
destroying incriminating evidence by permitting certain
persons to enter his premises to search for, seize and retain
documents or other items. Such an application is made
without notice. To obtain such an order, 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.
Other Interlocutory Apart from these provisional remedies, there are other
Matters/Applications more standard interlocutory matters/applications which
33
Mareva Compania Naviera S.A. v International Bulkcarriers S.A. [1975] 2 LR 509.
34
Anton Piller K.G. v Manufacturing Processes Limited and others [1975] EWCA Civ 12
Page 14 of 43
may be and/or are typically taken out before a matter is
ready to be set down for trial.
Discovery and An important aspect of litigation is the discovery process

Inspection of through which parties have to give discovery of the
Documents documents which are relevant to the issues in the case and
which are in their possession, custody or power. However,
if one party believes that the other party has given
inadequate discovery, it may apply to Court for specific
discovery of documents.
Security for Costs Another common application is that for security for costs.
The court may order a person in the position of plaintiff to
give security for its opponents’ costs. The defendant has to
show that the plaintiff is ordinarily resident out of the
jurisdiction and/or the plaintiff is a nominal plaintiff who is
suing for the benefit of some other person and there is
reason to believe that he will be unable to pay the costs of
the defendant if ordered to do so and/or the plaintiff’s
address is not stated in the writ or other originating process
or is incorrectly stated and/or the plaintiff has changed its
address during the course of proceedings to evade the
consequences of litigation. If the case falls within one of the
aforesaid cases, the court will, having regard to all the
circumstances of the case, including whether an order will
stifle a genuine claim, decide if it will be just to order
security.
Creative Elegance (M) Sdn Bhd v Puay Kim Seng [1999] 1 SLR 600: 35
The Court of Appeal held that when deciding whether to make an order for security
for costs against a plaintiff, the fact that a plaintiff was ordinarily resident outside
Singapore was only one of the factors that the court should take into consideration.
The Court should take into account all the circumstances of the case, including the
relative strengths and weaknesses of the claim, before concluding whether it was just
to order security for costs. On the facts of this case, security was not ordered against
the plaintiff because it had a genuine claim with reasonable prospect of success, and
requiring security would have stifled its claim.
Significance
This decision clarified that security for costs should not be granted as matter of course
where the plaintiff resided out of jurisdiction. The Court must consider all the factors
in deciding whether security for costs should be given, including the strength of the
35
P. 64, Hall of Justice, Supreme Court of Singapore (2006).
Page 15 of 43
claim.
2.6 Exchanging Evidence and Setting Down For Trial 36
Pre-Trial Conference To facilitate proceedings, the Registrar holds regular pre-

trial conferences 37 (“PTC”). At the PTC, the Registrar will
take stock of the status of the action and give directions to
parties on the next steps to be taken in the proceedings.
The PTC is supplemented by the Summons For Directions
which is filed by the plaintiff to obtain formal directions,
amongst other things, for the exchange of affidavits of
evidence in chief and to fix trial dates.
Exchange of Affidavits Each party has to prepare, file, and exchange affidavits of
of Evidence in Chief evidence in chief of each of its witnesses. These are written
sworn statements by the witnesses which will stand as their
testimony at the trial and on which they will be cross-
examined. The affidavits of evidence in chief are filed and
exchanged before the trial.
Expert Evidence Parties may also exchange expert evidence, by way of an

expert report exhibited to the affidavit. Experts may be
appointed by the court or by parties. It is the duty of an
expert to assist the court on the matters within his
expertise, and this duty overrides any obligation to the
person from whom he has received instructions or by
whom he is paid.
Subpoenas Subpoenas may be issued to ensure the attendance of

witnesses at trial, failing which the affidavits they have
submitted as evidence in chief will be rejected by the court.
Three types of subpoenas may be issued. The first requires
the witness to attend court to give oral evidence, the second
requires the person named to produce documents without
the obligation to attend personally, and the third is a
combined subpoena that requires the witness to give
evidence in court and produce documents.
Setting Down When all interlocutory processes have been concluded and
36
37
RC O34A.
Page 16 of 43
the matter is ready for hearing, parties have to file the
Request for Setting Down Action for Trial together with
the necessary bundles of documents.
2.7 Trial 38
2.7.1 If disputes settlements fail and parties have to go to trial, the plaintiff’s
solicitors will open the plaintiff’s case (unless the burden of proof is on the defendant)
by addressing the court and the plaintiff’s witnesses will take the stand first and be
cross examined. 39
2.7.2 Each witness may be re-examined after his/her cross-examination has ended.
2.7.3 After all the plaintiff’s witnesses have given evidence, the plaintiff’s case is
closed. It is then the turn of the defendant’s witnesses to testify and be cross-examined
and re-examined on their evidence.
2.7.4 After the defendant’s witnesses have completed giving their testimony, parties
will make closing submissions which may, depending on the Judge and complexity of
the matter, be either oral or written.
2.7.5 After a decision has been made and judgment delivered, the Registrar or the
proper officer of the Court will enter in the minute book the judgment given by the
Judge and any order made by the Judge as to costs.
Note:
The trial may last from 30 minutes to weeks depending on the complexity of the case.
The judgment may be given immediately after the trial or, in more complex cases,
adjourn the proceedings before handing down its judgment at a later date. 40
2.8 Assessment of Damages41
2.8.1 In certain cases, including personal injury claims, a judge may grant judgment
on the issue of liability but not make a ruling on the precise quantum of damages that
has to be paid to the successful litigant by the other party.
38
39
RC O35.
40
RC O42.
41
Page 17 of 43
2.8.2 In this situation, the quantum of damages to be awarded is assessed by a
Registrar in a hearing in chambers.
2.8.3 The Registrar will hear evidence from appropriate parties, such as the injured
plaintiff and/or medical experts, to determine the appropriate quantum of damages to
be awarded.
2.8.4 The hearing for assessment of damages follows a similar order of proceedings
used in trials before judges.
2.9 Enforcement42
Writs of A judgment may be enforced by one of a variety of writs of

Execution execution including a Writ of Seizure and Sale of movable and
immovable property, a Writ of Delivery and Writ of Distress.
These writs authorize court officials to take appropriate measures
to give effect to the judgment.
Garnishee The garnishee process may be appropriate where the judgment

Proceedings debtor owes a debt to a third party (the garnishee). When the
judgment creditor garnishes the debt, the garnishee must pay the
money to him instead of to the judgment debtor. To collect the
money representing the debt, the judgment creditor must first
apply for a garnishee order nisi, which may be filed without
involvement of other parties . This leads to "show cause"
proceedings. If the garnishee confirms that there are monies due
and owing to the judgment debtor at the show cause stage, the
Registrar may proceed to make the garnishee nisi absolute and
the garnishee must pay the money to the judgment creditor
instead of the judgment debtor.
American Express Bank Ltd v Abdul Manaff bin Ahmad [2003] 4 SLR 780 43
The point of law raised in this case was whether the Court could order the employers
of the judgment debtors to pay their wages directly to the judgment creditors to
account for the judgment creditors to account for the judgment debtors’ debts, ie
whether wages and salaries could be garnished.
42
43
Page 18 of 43
The High Court held that section 13 of the Supreme Court of Judicature Act
exempted wages and salaries from being garnished.
Significance
The ruling had far-reaching effects in that it protected the wages and salaries that
judgment debtors earned from being used to satisfy a judgment. Otherwise, the
judgment debtors would be left without primary means to support themselves.
Registration of Where the judgment creditor is not able to enforce his judgment
Judgment in Singapore because the judgment debtor has no assets here, he
may be able to enforce it in a country where the latter does have
assets. He might do so by commencing fresh proceedings or, if
possible, by registering his Singapore judgment in the foreign
country (on the basis of reciprocity of enforcement between the
two countries).
Others There are other processes by which a judgment may be enforced
including bankruptcy and company winding up proceedings.
2.10 Costs44
Entitlement to The principle is that "costs follow the event". This means that the
Costs costs of an action are usually awarded to the successful litigant.
This may include fees, charges, disbursements, expenses and
remuneration. An order of costs granted by the court is entirely
discretionary whether in principle or in quantum. The court may
order either fixed costs or taxed costs. Generally, costs can be
taxed when costs are ordered but are not fixed (ie, pre-
determined by fixed scales of costs).
Bases of There are two basis of taxation, the standard basis and the
Taxation indemnity basis. Under the standard basis, the court shall allow a
reasonable amount for all costs reasonably incurred, and any
doubts as to whether costs were reasonably incurred or
reasonable in quantum shall be resolved in favour of the paying
party. Under the indemnity basis, the court shall allow a
reasonable amount for all costs reasonably incurred, and any
doubts as to whether costs were reasonably incurred or
reasonable in quantum shall be resolved in favour of the
receiving party.
44
Page 19 of 43
Taxation At the conclusion of the legal action, the lawyer of the winning
Procedure party submits a bill of costs ordered by the court to be paid by
one party to another (‘Party and Party Costs’). If the bill of costs
is disputed, the bill can be considered by a taxing Registrar and
each item disputed in the bill will be determined by the taxing
Registrar after hearing objections and arguments by each party.
A party entitled to require any costs to be taxed must begin
proceedings for the taxation of those costs by lodging two copies
of the bill of costs at the Registry. On the date fixed for the
taxation, the parties who wish to be heard on the bill will attend
before the taxing Registrar. A solicitor may also have occasion to
submit a bill of costs against his or her client (‘Solicitor and
Client Costs’) eg, when they have a dispute as to the amount of
costs payable.
Bills of costs are taxed for one of the following reasons: (a) the
court has directed taxation; (b) both solicitor and client consent
to taxation of the solicitor's bill; (c) the chargeable party or any
person liable to pay the bill obtains an order for taxation of the
bill by way of a petition within one year of the delivery of the bill.
If the petition is filed by the solicitor, charges are payable after
the expiry of one calendar month and one year from the delivery
of the bill. If the parties are not satisfied with the amount allowed
or disallowed by the taxing Registrar, an application may be filed
for a review by a Judge of the High Court in chambers within 14
days after the taxation hearing.
Costs must follow the event 45
2.11 Appeal Process46
Supreme Court Subordinate Courts
• Appeals take different forms and • With regard to trials, an appeal

operate at various levels. generally lies from a magistrate’s
• In the Supreme Court, an appeal court or a district court to the High
from a decision of a registrar Court.
(usually on an interlocutory matter) • As in the case of the High Court,
lies to a judge in chambers. interlocutory matters are decided by
45
See Lim Kok Boon (Lin Guowen) v Lee Poh King Melissa [2012] SGHC 77, at [23].
46
Page 20 of 43
• Unless prohibited by statute, a the registrars.
further appeal lies to the Court of • An appeal against the decision of a
Appeal (leave may have to be registrar lies to a district judge in
obtained for this purpose). chambers and from the district judge
• An appeal also lies to the Court of to a High Court judge in chambers.
Appeal from the decision of a High • An appeal to the High Court must
Court judge at trial (if not satisfy certain conditions or leave
prohibited and leave is obtained must be obtained. For example, leave
when this is required). For example, must be obtained to file an appeal to
a party who is dissatisfied with a the High Court where the claim is
decision of the High Court may $50,000 or less.
appeal to the Court of Appeal to set • The High Court has supervisory and
aside or vary the decision if the revisionary jurisdiction over the
value of the subject matter at trial subordinate courts. It may call for
exceeds S$250,000. Where the value and examine the record of any civil
of the subject matter is S$250,000 or proceedings before any subordinate
less, the approval of the court must court for the purpose of ‘satisfying
be obtained. itself as to the correctness, legality or
propriety of any decision recorded or
passed, and as to the regularity of any
proceedings of the subordinate court’.
• The High Court may direct a new
trial or give other orders as are
necessary to ensure that ‘substantial
justice is done’.
AD v AE [2004] 2 SLR 505: 47

Here, the Court of Appeal held that the power to extend time should be exercised in
the same manner regardless of the nature of the proceedings, even if the custody of a
child was in question. The Court of Appeal ruled that a more liberal rule to extend
time for service of a Notice of Appeal would not only undermine the rules providing
the timelines, but would also create uncertainty as to the child’s welfare.
Significance
This case established that the court places the same value on the adherence to the
timelines for which an appeal should be filed regardless of the nature of the
proceedings.
Lim Kok Boon (Lin Guowen) v Lee Poh King Melissa [2012] SGHC 77
This appeal from the district court raises the issue as to when time for an appeal
starts to run - the date when the District Court makes the order or the date when the
District Judge (“DJ”) refuses to hear further arguments. This is the sole issue on
47
Page 21 of 43
appeal. There is no alternative prayer to extend time if the notice of appeal is held to
be filed out of time. This has not been a live issue in the High Court for some time
now and I am surprised to hear from the Appellant that it continues to raise its head
ever so often in the Subordinate Courts.
Note:
During the appeal process, the appellate court will hear the case based on written
record, without the evidence being submitted again. Usually, the appellate court
focuses on legal arguments (matter of law) and will not question the factual aspects of
the trial judge’s findings. 48
2.12 Other Civil Proceedings and Processes49
The processes described thus far concern general litigation. There are special rules,
governing various categories of disputes. These include (and these are only some
examples of many possible proceedings) matters such as: admiralty proceedings;
probate proceedings; matrimonial proceedings; government proceedings; and
insolvency proceedings.
2.13 Forum selection
Introduction
2.13.1 The question: Why do you choose to sue where? is being answered in the following:
• Where there is favourable limitation of liability.
• Where the money is
• Where the favourable jurisdiction is established.
• Where the avails with a favourable law.
The above are factors which potentially ‘stimulate’ a Plaintiff (P) to carry forum
shopping. When a defendant (D) does likewise, he carries out reverse forum shopping.
Try to attempt the question below before continuing your reading.
Q: In reverse forum shopping, which one of the four ‘stimulants’ above do you think
will interest the D more and Why?
Hence, D who is alleged to be liable to P (liability defendant), will become the

‘plaintiff’ to ask the court to give declaration that he is not liable, or if the declaration
48 th
Para 2-515, Singapore Business Law, 4 edn (2006), Benny S Tabalujan and Valerie Du Toit-Low, Business
Law Asia.
49
Page 22 of 43
fails, to allow for the limitation of liability adopted by the shopped forum. It seems
from the above that the liability defendant has become the limitation plaintiff!
Q: Will you be able to reconcile the above? If so, explain.
Limitation of Liability
2.13.2 The Bramley Moore, 50 was a case where the plaintiff tug owner of the Bramley Moore
took an action on limitation of liability praying that he should be able to limit his
liability basis tonnage calculation on the Bramley Moore alone following the then
statute and obtained judgment of Cairns J. The second defendant, owner of the Millet,
which sunk due to the collision, appealed against the judgment. The
appellant/defendant contended that:
1. Owner of Bramley Moore cannot limit their liability at all.
2. Alternatively, they can limit their liability by reference to the combined tonnage of
the whole flotilla-the tug and the two barges Millet and Buckwheat. The limit of
liability on this basis is £14,188 15s. 9d.
3. In the further alternative they can limit their liability by reference to the
combined tonnage of the tug and the barge Millet. The limit of liability on this
basis is £9,325 5s. 9d.
Background: The tug Bramley Moore, with two barges, the Buckwheat and the Millet
(which did not belong to the owners of the Bramley Moore), in tow, was southbound
in the River Mersey when the Millet came into collision with the m.v. Egret. The
Millet was sunk. In an action by her owners against the Egret and the Bramley Moore,
both the latter vessels were found equally to blame, judgment being given for the
Millet against the Egret, and for the Egret on their counterclaim against the Bramley
Moore for half their damages, including any damages paid by them to the Millet or
others. In a limitation action by the Bramley Moore against the Millet and the Egret,
the issue was tried whether, under section 503 of the Merchant Shipping Act, 1894 (as
amended), the limit of liability should be calculated by reference to the tonnage of the
tug alone or to the combined tonnages of tug and one or both tows. Cairns J held that
the limit of liability of the tug should be governed by her tonnage alone, which was
£4,388 ls. Od.
Q: What do you think is the basis of the defendant’s contentions? 51
Lord Denning MR 52 held that [The] principle underlying limitation of liability is that
the wrongdoer should be liable according to the value of his ship and no more. A
small tug has comparatively small value and it should have a, correspondingly low
measure of liability, even though it is towing a great liner and does great damage. I
50
Alexandra Towing Co Ltd v Millet and Egret [1964] P 200 (CA).
51
The appellant/defendant’s contentions were so that the respondent/plaintiff would have to compensate
any amount more than that govern by his tug’s tonnage, ie £4,388 ls. Od.
52
P. 220, supra.
Page 23 of 43
agree that there is not much room for justice in this rule: but limitation of liability is
not a matter of justice. It is a rule of public policy which has its origin in history and
its justification in convenience. At any rate, the legislature extended it in 1958 and
made it clear that in such a case as the present the owners of the tug can limit their
liability according to the tonnage of the tug.
Author’s note:
I agree with Lord Denning’s opinion. It is because if not for public policy, the
defendant might not get a single cent if the plaintiff were to declare insolvency.
2.13.3 There are three international conventions that govern limitation of liability. They are:
• International Convention relating to the Limitation of the Liability of Owners of
Sea-Going Ships, 1957 which provides for smaller amount of limitation, ie the
smaller the ship in size, the smaller the liability. However, if the the occurrence
giving rise to the claim resulted from the actual fault or privity of the owner: ie if
ship owner is at fault, and not the crew, then, the former cannot rely on limitation
of liability. South Africa is the only convention country.
• Convention on Limitation of Liability for Maritime Claims, 1976 provides larger
limit which is quite impossible to break. Singapore adopts it on 01 May 2005. (see
ss 134 – 144, Merchant Shipping Act (Cap 179) and its Schedule)
• Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime
Claims 1976 provides very large limit which is impossible to break. 53
2.13.4 The danger that shipowner might seek to limit his liability to a ridiculously small
amounts is being prevented through prescription in international carriage of goods by
sea conventions such as the Hague, Hague-Visby, Hamburg, and Rotterdam Rules. 54
Forum Non Conveniens 55

2.13.5 Forum non conveniens (Latin for "inconvenient forum" or "inappropriate forum") is
a discretionary power of mostly common law courts to refuse to hear a proceeding
that has been brought before it. The courts will refuse to take jurisdiction over matters
where there is a more appropriate forum available to the parties. The legal concept of
forum non conveniens is not exclusive to common law nations: The Maritime Courts
of the Republic of Panama, although not a common law jurisdiction, also have similar
power. The doctrine is also used both internationally and domestically. It is an
important organizing principle in the field of conflict of laws. 56
In a simple manner, it means – although an action has been properly brought before
the court, the court has the power to stay the action as the court deems that there is in
53
See Article 6.
54
See Girvin, Ch 30.
55
RC O12 r7.
56
http://www.mcgill.ca/maritimelaw/print/52 accessed 30 Mar 2012.
Page 24 of 43
existence another available forum which has competent jurisdiction which is clearly
and distinctly more appropriate to hear and determine the claim in respect of which
the action was brought within the jurisdiction: 57 for the “interests of all the parties,
and for the ends of justice, the case may more suitably be tried elsewhere.”58
2.13.6 One of the leading cases for this doctrine is Spiliada Maritime Corp v Cansulex Ltd. 59
In 1980 a Liberian owned vessel was chartered to carry a cargo of bulk sulphur from
Vancouver, British Columbia, to Indian ports. The shipowners alleged that the cargo
was wet when loaded and as a result caused severe corrosion to the vessel. They
obtained leave ex parte to serve proceedings on the shippers in Vancouver or
elsewhere in Canada on the ground that it was an action to recover damages for
breach of a contract governed by English law. The shippers issued a summons under
R.S.C., Ord. 12, r. 8, asking that the ex parte order be discharged on the ground, inter
alia, that the case had not been shown to be "a proper one for service out of the
jurisdiction" under R.S.C., Ord. 11, r. 4(2). 60 At the hearing of the application
Staughton J., who had already started to hear the trial of a similar action for damages
involving the same shippers in respect of another ship, the Cambridgeshire,
considered, inter alia, the availability of witnesses, potential multiplicity of
proceedings and the fact that the accumulated experience of counsel and solicitors
derived from their participation in the Cambridgeshire action would lead to savings of
time and money. He dismissed the application.
On the shippers' appeal, the Court of Appeal held that it was impossible to
conclude that the factors considered by the judge, when taken together, showed that
the English court was distinctly more suitable for the ends of justice, and that a
further factor, not considered by Staughton J., that if the present proceedings were set
aside the shipowners would be faced with a defence of limitation in British Columbia,
was a neutral factor. The Court of Appeal allowed the [shippers’] appeal and set aside
the [shipowners’] writ.
The shipowners appealed to the House of Lords and Their Lordship
overturned the judgment of the Court of Appeal and allowed the former’s appeal:
… that in order to determine whether a case was a proper one for service out
of the jurisdiction under R.S.C., Ord. 11, r. 4(2), the court had, as in
applications for a stay of proceedings founded on the ground of forum non
conveniens, where the action was as of right by service on a defendant within
the jurisdiction, to identify in which forum the case could most suitably be
tried for the interests of all the parties and for the ends of justice; that,
accordingly, the judge having identified the correct test and considered the
relevant factors, including the advantages of efficiency, expedition and
57
See Forum Conveniens [1993] S.Ac.L.J. 5, David Chong Gek Sian.
58
P. 2, Forum Conveniens [1993] S.Ac.L.J. 5, David Chong Gek Sian, quoting Lord Kinnear in Sim v. Robinow
(1892) 19 R. 665 at 668.
59
[1987] AC 460.
60
R.S.C., Ord. 11, r. 4(2): "No such leave shall be granted unless it shall be made sufficiently to appear to the
court that the case is a proper one for service out of the jurisdiction under this Order."
Page 25 of 43
economy in bringing the action in England following the Cambridgeshire
action, and therefore the Court of Appeal had no grounds for interfering with
the exercise of his discretion.
Q: According to the House of Lords in Spiliada, the judge had identified the correct
test and considered the relevant factors, including the advantages of efficiency,
expedition and economy in bringing the action in England following the
Cambridgeshire action. Which part of the reasons of Staughton J do you think the
House of Lords referred to?
2.13.7 The basic principle is that a stay will only be granted on the ground of forum non
conveniens where the court is satisfied that there is some other available forum,
having competent jurisdiction, which is the appropriate forum for the trial of the
action, ie in which the case may be tried more suitably for the interests of all the
parties and the ends of justice. 61
2.13.8 The principles set out in Spiliada have been approved and applied a great many times
by the Singapore courts. 62 The principles set out in Spiliada were summarised in
CIMB Bank Bhd v Dresdner Kleinwort Ltd 63 as follows:
The gist of these principles is that, under the doctrine of forum non conveniens, a
stay will only be granted where the court is satisfied that there is some other
available and more appropriate forum for the trial of the action. The burden of
establishing this rests on the defendant and it is not enough just to show that
Singapore is not the natural or appropriate forum. The defendant must also
establish that there is another available forum which is clearly or distinctly more
appropriate than Singapore. The natural forum is one with which the action has
the most real and substantial connection. In this regard, the factors which the court
will take into consideration include not only factors affecting convenience or
expense (such as the availability of witnesses) but also other factors such as the law
governing the transaction and the places where the parties respectively reside or
carry on business. If the court concludes, at this stage of the inquiry (‘stage one of
the Spiliada test’), that there is no other available forum which is clearly more
appropriate for the trial of the action, it will ordinarily refuse a stay. If, at this stage,
it concludes that there is some other available forum which prima facie is clearly
more appropriate for the trial of the action, it will ordinarily grant a stay, unless
there are circumstances by reason of which justice requires that a stay should
nevertheless be refused. In this connection, the court will consider all the
circumstances of the case. For this second stage inquiry (‘stage two of the Spiliada
test’), the legal burden is on the plaintiff to establish the existence of those special
circumstances. [Emphasis added]
Note:
61
[1987] AC 460, at [476C].
62
Jio Minerals FZC and others v Mineral Enterprises Ltd [2011] 1 SLR 391 at [38]
63
[2008] 4 SLR(R) 543, at [26].
Page 26 of 43
• You will see that the Spiliada test requires burden of proof from each party at
different stage!
• For more of forum shopping and the Spiliada test on shipping (admiralty) case,
see the recent case of The Reecon Wolf [2012] SGHC 22.
Illustrations 64
1. A, a Scotsman living in Scotland, is injured in an accident while employed by X, an

English company, at its Scottish factory. A is medically treated in Scotland, and all
witnesses of fact live and work in Scotland. Medical and other expert witnesses are
available in Scotland. A’s action in England against X for negligence is stayed. 65
2. A Turkish ship, owned by X, a Turkish state corporation, and a Cuban ship, owned by A,
a Cuban state corporation, collided in Turkish territorial waters. Both ships are damaged
in the collision. X sues A in the Turkish courts. Subsequently A arrests in England
another ship owned by X and commences and action in rem against X in England. The
Turkish court is the natural and appropriate forum, and A is unable to establish that there
is some personal or juridical advantage which would be available only in England and
which is of such importance that it would cause injustice to deprive A of it. The action in
England is stayed. 66
Anti-suit Injunction
2.13.9 Anti-Suit Injunction
In the area of conflict of law, anti-suit injunction is an order issued by a court or
arbitral tribunal that prevents an opposing party from commencing or continuing a
proceeding in another jurisdiction or forum. If the opposing party contravenes such
an order issued by a court, a contempt of court order may be issued by the domestic
court against that party.
It is often used as a means to prevent forum shopping. In recent years many
jurisdictions have placed a high standard to obtain an injunction such as where the
proceedings are "oppressive or vexatious". 67
Anti-suit injunction (ASI) – P of A seek injunction at A court to stop the proceeding

in country B. The injunction is issued in court in A. No country court will tell the
other country not to do. However, court A address to one of the litigant (D) not to
bring the proceeding in B. If B refuses, Court A can hold B in contempt in the court of
A.
64 th
Para 12-082, The Conflict of Law, 14 edn (2006), Vol 1, Dicey, Morris & Collins, Sweet & Maxwell.
65
MacShannon v Rockware Glass Ltd [1978] AC 795.
66
The Abidin Daver [1984] AC 398.
67
http://www.mcgill.ca/maritimelaw/print/52 accessed 30 Mar 2012.
Page 27 of 43
Other note: P @ SIN, uses anti-anti-suit injunction if know D going to proceed in UK to
prevent the proceeding in UK!
In his text: Jurisdiction Clauses and Forum Non Conveniens in the Carriage of Goods
by Sea, Professor William Tetley QC states: 68
Anti-suit injunctions are closely related to forum non conveniens. Where a party has
already taken suit in a foreign jurisdiction or is about to do so, and the foreign court
has taken, or is about to assume, jurisdiction, a defendant in that foreign action may
seek to have the forum court issue an injunction (sometimes also called a “restraining
order”) ordering the party to whom it is addressed (and who is subject to the personal
jurisdiction of the forum court) to discontinue or not to commence his foreign
proceedings, under pain of contempt of court. 69 The forum court will only grant an
anti-suit injunction where it is convinced that it is an appropriate forum for the
litigation, because of its real and substantial connection with the case, which involves
a forum non conveniens type of analysis. In general, because anti-suit injunctions
interfere, at least indirectly, with the jurisdiction of foreign courts, contrary to the
principle of comity, 70 they are issued only sparingly, for example, where the foreign
proceedings are viewed by the domestic court as vexatious or oppressive or
unconscionable. 71 They have also been issued, however, to prevent parties from
68
Ch XVII, pp 67-68, supra.
69
Fn 412 in the original text: The acceptance of anti-suit injunctions has become widespread. For the U.K., see,
for example, British Airways Board v. Laker Airways Ltd. [1985] A.C. 58 (H.L.); Airbus Industrie GIE v. Patel
[1999] 1 A.C. 119, [1998] 1 Lloyd’s Rep. 631 (H.L.); Donohue v. Armco [2002] 1 Lloyd’s Rep. 425 (H.L.). For the
U.S., see, for example, In re Unterweser Reederei, GmbH 428 F.2d 888 (5 Cir. 1970), rev’d on other grounds,
407 U.S. 1 (1972); Laker Airways Ltd. v. Sabena Belgian World Airlines 731 F.2d 909 (D.C. Cir. 1984); Farrell
Lines Inc. v. Ceres Terminals Inc. 1998 AMC 334 (S.D. N.Y. 1998), aff’d 161 F.3d 115, 1999 AMC 305 (2 Cir.
1998). For Australia, see CSR Ltd. v. iCigna Ins. Australia Ltd. and Others (1997) 146 A.L.R. 402 (H.C. of Aust.).
For Canada, see Amchem Products Inc. v. British Columbia (Workers’ Compensation Board) [1993] 1 S.C.R. 897.
See other examples cited in Tetley, International Maritime and Admiralty Law, 2003 at pp. 414-415.
70
Fn 413 in the original text: See, for example, Airbus Industrie GIE v. Patel [1999] 1 A.C. 119 at p. 138, [1998]
1 Lloyd’s Rep. 631 at p. 640, where the House of Lords referred to the “… indirect interference with the foreign
court which an anti-suit injunction entails.” See also Turner v. Grovit (Case No. C-159/02), April 27, 2004
(E.C.J.), infra.
71
Fn 414 in the original text: See, for example, SNI Aérospatiale v. Lee Kui Jak [1987] A.C. 871 at p. 893 (P.C.);
Airbus Industrie v. Patel [1999] 1 A.C. 119 at p. 123, [1998] 1 Lloyd’s Rep. 631 at p. 637 (H.L.); British Airways
Board v. Laker Airways Ltd. [1985] A.C. 58 at p. 95 (H.L.); South Carolina Ins. Co. v. Assurantie Maatschappij ‘de
Zeven Provincien’ [1987] A.C. 24, [1986] 2 Lloyd’s Rep. 317 (H.L.). In the U.S., the Fifth, Seventh and Ninth
Circuits have issued anti-suit injunctions where the foreign proceedings are vexatious, oppressive or will
otherwise cause inequitable hardship. See, for example, In re Unterweser Reederei, GmbH 428 F.2d 888 (5 Cir.
1970), rev’d on other grounds, 407 U.S. 1 (1972). The Second, Sixth and District of Columbia Circuits, on the
other hand, have held that an anti-suit injunction should be granted only to protect the domestic court’s own
jurisdiction or to prevent evasion of its public policy. See Laker Airways Ltd. v. Sabena Belgian World airlines
731 F.2d 909 (D.C. Cir. 1984); China Trade & Development Corp. v. M.V. Choon Yong 837 F.2d 33, 1988 AMC
880 (2 Cir. 1987): Gau Shan Co. v. Bankers Trust Co. 956 F.2d 1349 (6 Cir. 1992). In Canada, in Amchem Corp. v.
British Columbia (Workers’Compensation Board) [1993] 1 S.C.R. 897, the Supreme Court of Canada held that
no motion for an anti-suit injunction should be entertained unless and until the defendant has tried and failed
to have the foreign proceedings stayed or dismissed by the foreign court on grounds of forum non conveniens.
In addition, the injunction should only be granted if the forum court decides that the foreign court, had it
Page 28 of 43
breaching exclusive foreign jurisdiction or foreign arbitration clauses in contracts,
including bills of lading. 72
Illustrations 73
1. X, a British citizen, enters into an English contract with A. He breaks it and by fraud
obtains a Turkish judgment against A. The court grants and injunction restraining X
from enforcing the judgment. 74
Extract from headnote of the case:

The fact that a British subject has actually obtained judgment in a foreign Court does not
prevent an English Court from granting an injunction restraining its enforcement where
it is shown to have been obtained by a breach of contract or by fraud. In granting an
injunction in those circumstances the English Court does not seek to assert jurisdiction
over the foreign Court; it proceeds upon the principle that the person seeking to enforce
the judgment is in conscience debarred from attempting to do so.
2.13.10 Case Studies
Evergreen International SA v Volkswagen Group Singapore Pte Ltd 75
Facts
The issue in this originating summons (“OS”) was whether an anti-suit injunction should be
granted to restrain the defendants from pursuing an action in Belgium.
Plaintiffs: Registered owners of the Ever Glory.

Defendants: Owners or insurers of the cargo carried on the Hual Trinita.
On 17 September 1998, a collision occurred between the Ever Glory and the Hual Trinita in
Singapore territorial waters. On 18 September 1999, the plaintiffs commenced an action in
applied the forum’s principles of forum non conveniens, would have had a reasonable basis for concluding that
there was no clearly more appropriate alternative forum, and that the injunction is necessary to prevent and
injustice.
72
Fn 415 in the original text: Continental Bank NA v. Aeakos Compania Naviera SA [1994] 1 Lloyd’s Rep. 505
(C.A.) (exclusive jurisdiction clause in loan agreement); The Bergen [1997] 1 Lloyd’s Rep. 380 and The Bergen
(No. 2) [1997] 2 Lloyd’s Rep. 710 (bill of lading jurisdiction clause); The Angelic Grace [1995] 1 Lloyd’s Rep. 87
(C.A.), leave to appeal to House of Lords refused (charterparty arbitration clause); The Epsilon Rosa [2003] 2
Lloyd’s Rep. 509 (C.A.) (bill of lading arbitration clause).
73 th
Para 12-084, The Conflict of Law, 14 edn (2006), Vol 1, Dicey, Morris & Collins, Sweet & Maxwell.
74
Ellerman Lines Ltd v Read [1928] K.B. 144 (CA).
75
[2004] 2 SLR 457.
Page 29 of 43
rem against Hual Trinita in Singapore. A settlement on liability was reached and collision
liability was apportioned at 50:50. The owners of Hual Trinita also commenced action against
Ever Glory in Singapore which was settled in November 1999.
On 2 October 1998, the plaintiffs commenced a limitation action in Singapore against all
persons, including the defendants, having potential claims arising out of the collision. The
decree of limitation was granted on 24 September 1999. The plaintiffs applied for a
determination of their tonnage limitation and on 3 November 1999 obtained a declaration
that their liability was limited to $2,411,227.56 plus interest under the International
Convention relating to the Limitation of the Liability of Owners of Sea-Going Ships 1957
(“the 1957 Convention”). The plaintiffs paid into court the limitation fund sum on 4
November 1999. The defendants were aware of the limitation proceedings and were kept fully
informed of every step taken in the proceedings.
The defendants did not participate in the limitation action, challenge the decree nor prove
their claims against the limitation fund. On 24 September 1999, they proceeded to arrest the
Ever Reach, a sister ship of the Ever Glory, in Belgium and commenced an action in tort
against the plaintiffs in Belgium as Belgian courts would apply a higher limit based on the
Convention on Limitation of Liability for Maritime Claims 1976 (“the 1976 Convention”)
which was assessed at $13m. The Belgian courts would not recognise the Singapore decree
and limitation fund.
The plaintiffs have applied, in Belgium, to set aside the arrest of the Ever Reach and the action
was still pending. The plaintiffs applied to the Singapore courts for an anti-suit injunction to
restrain the defendants from continuing their action in Belgium while the fourth to 74th
defendants applied to set aside the order for service out of jurisdiction of this OS.
In deciding whether to grant an anti-suit injunction, the court ought to consider: 76

(a) whether the defendants were amenable to the jurisdiction of the Singapore courts;
(b) the natural forum for resolution of the dispute between the parties;
(c) the alleged vexation or oppression to the plaintiffs if Belgian proceedings are to
continue; and
(d) the alleged injustice to the defendants as an injunction would deprive the
defendants of the advantages sought in foreign proceedings.
(a) whether the defendants were amenable to the jurisdiction of the Singapore courts
Being amenable to the jurisdiction of the local courts simply means being liable or
accountable to this jurisdiction. As such, so long as any local courts have in personam
jurisdiction over a party, either through the proper service of documents or through
submission to the jurisdiction, this first criteria would be satisfied. 77 In the court’s view, the
plaintiffs have satisfied the first criteria to the grant of an injunction. Personal jurisdiction
76
[2004] 2 SLR 457 at [16].
77
At [22], supra, citing Yong CJ delivering the decision of the Court of Appeal in Koh Kay Yew (at [17]).
Page 30 of 43
over the defendants was established through the service of the originating summons on the
defendants. 78
(b) the natural forum for resolution of the dispute between the parties
Natural forum is defined as “that with which the action had the most real and substantial
connection”. The same definition was adopted by the Singapore Court of Appeal in Eng Liat
Kiang v Eng Bak Hern. 79 The English Court of Appeal in The Albaforth80 held that the place
where the tort was committed is prima facie the natural forum for the determination of the
dispute. In this case, counsel for the plaintiffs submitted that:
• The collision occurred in Singapore territorial waters.
• After the collision, both vessels discharged their respective cargoes in Singapore.
• Damage repairs were also undertaken in Singapore.
• Salvage services were provided by Semco Salvage & Marine Pte Ltd, a Singapore
company.
• Both masters of the colliding vessels were prosecuted in Singapore. They pleaded
guilty in the criminal proceedings and were each fined $5,000.
• Both colliding vessels litigated their respective claims in Singapore.
• Surveyors involved in the collision damage survey and cargo surveys were from
Singapore.
• The bulk of the evidence is here in that the great majority of the witnesses and other
evidential sources such as VTIS records are in Singapore.
• The occurrence of the collision in Singapore in a sense was fortuitous, but as the Privy
Council said in Lee Kui Jak, that carried with it the consequence that the applicable
law governing the defendants’ claim in tort against the plaintiffs is the law of
Singapore.
Basis the above, the court was satisfied that the plaintiffs have on the facts shown Singapore
to be the natural forum for the determination of liability and quantum between the parties.
The defendants’ claims against the plaintiffs are for damages in tort. The tort was committed
in Singapore and it is the law of Singapore that gave rise to a cause of action.
(c) the alleged vexation or oppression to the plaintiffs if Belgian proceedings are to continue;
and (d) the alleged injustice to the defendants as an injunction would deprive the defendants of
the advantages sought in foreign proceedings
It is to be noted that an injunction will not be granted simply because Singapore is shown to
be the natural forum. It will be granted to prevent injustice, and in the context of this case, it
means that the effect of litigating in Belgium is vexatious or oppressive. The court had also to
consider whether an injunction will deprive the defendants of a legitimate juridical advantage
to a greater extent than the oppression caused to the plaintiffs. Whilst an injunction acts to
78
At [25], supra.
79
[1995] 2 SLR(R) 851 at [19].
80
[1984] 2 Lloyd’s Rep 91.
Page 31 of 43
restrain the defendants, by doing so, it indirectly impinges upon the ability of the Belgium
courts to act. Hence, the principle of comity becomes one to which careful regard must be
had. 81
The court held that the vexatious or oppressive conduct of the defendants lies in their
unlawful challenge to the plaintiffs’ right to choose the limitation forum and the invasion or
attack on the plaintiffs’ legal rights conferred by the limitation decree and limitation fund.
The limitation decree, which is a declaratory order, is binding and conclusive whether or not
any consequential relief is given under O 15 r 16 of the ROC. 82 See also Halsbury’s Laws of
Singapore, Vol 10, para 120.216.
Note:
Vexatious – brought without sufficient grounds for winning, purely to cause annoyance to
the defendant.
Oppression – harsh and authoritarian
The court should grant an anti-suit injunction to protect its own jurisdiction or prevent
evasion of its public policy. In the circumstances, there was justification for the court to
protect the plaintiffs’ legitimate interests and give effect to policies under the legislature and
its orders, especially here where an arrest was made under a system of law that acknowledged
a different limitation regime and would not recognise a limitation decree of a court of
competent jurisdiction: The Belgian courts would not recognise the Singapore decree and
limitation fund. 83
Note:
Limitation decree had already been obtained from the Singapore court by the plaintiffs. If the
Singapore court were to allow the defendants’ proceeding in the Belgian courts, it would in
turn cause injustice to the plaintiffs. The court 84 added that [not] only will Singapore be
ineffective in the use of its own law, the protection of the plaintiffs’ legal rights and the court’s
protection of its orders are the purview of the Singapore court. The application for a
restraining order is made in this country as Belgium has no concept of forum non conveniens.
Hence, if, so the argument runs, the defendants are compelled to litigate their claims in
Singapore; their recovery will be reduced since the difference in the size of the funds under
the two limitation regimes is about $11m. They will therefore suffer a legitimate juridical
disadvantage if they have to make their claims in Singapore. The plaintiffs’ response is that
81
[1995] 2 SLR(R) 851 at [32].
82
[1995] 2 SLR(R) 851 at [46]. See also Halsbury’s Laws of Singapore, Vol 10, para 120.216.
83
As Sir Christopher Staughton said (at 460) in The Herceg Novi [1998] 2 Lloyd’s Rep 454 (and his statement is
valid and relevant to an anti-suit injunction application): … jurisdiction could often be obtained by arresting a
ship in a 1976 country, and if that action were allowed to proceed despite there being a more appropriate
forum where 1957 prevailed, the 1957 country would be left with no effective use for its own law.
84
[1995] 2 SLR(R) 851 at [55].
Page 32 of 43
this point has been authoritatively decided both in Singapore and in England that such an
argument does not amount to a legitimate disadvantage. It is said that a party who forum
shops in a 1976 Convention country to avoid the 1957 Convention applicable in Singapore is
seeking to gain an unfair or illegitimate advantage.
The court made some additional observations: 85

• Firstly, the defendants did not, when they had the opportunity to do so, oppose the
limitation action under a regime with a greater prospect of breaking limit to recover
their full claim. They did not protect their common law right of action for all damages
sustained by reason of the occurrence. The plaintiffs have discharged the burden of
proving that the occurrence did not result from their fault or privity and are entitled
to limit their liability based on the 1957 Convention. If the defendants had broken
limit in Singapore, the matter would have ended here. Conversely, it is wrong to
deprive through foreign proceedings the plaintiffs’ legal rights conferred by the decree
and limitation fund and at the same time allow the defendants a second bite of the
cherry in foreign proceedings.
• Secondly, limitation of liability is founded on public policy reasons. As Lord Denning
MR in The Bramley Moore [1964] P 200 succinctly pointed out (at 220):
The principle underlying limitation of liability is that the wrongdoer should be
liable according to the value of his ship and no more. … I agree that there is
not much room for justice in this rule: but limitation of liability is not a matter
of justice. It is a rule of public policy which has its origin in history and its
justification in convenience.
• Thirdly, as Rix J in Caspian Basin acknowledged, the 1957 Convention is not an
unjust regime and jurisdictions which adhere to that system are not less civilised for
doing so. The fact that s 136 Merchant Shipping Act provides for 1957 limit may well
be a disadvantage to the defendants in Singapore, but it cannot be properly termed an
injustice. Selvam J in The Owners of the Ship or Vessel Ming Galaxy v The Owners of
the Ship or Vessel or Property Herceg Novi [1998] SGHC 303, when asked to stay a
Singapore action for London where a higher limit is available in England, made the
following observations which are similarly relevant to the present case on anti-suit
injunction:
Then comes the question of substantial justice. This is based on the higher
limitation fund under English law. The defendants say that if the Singapore
action continues they will be deprived of the higher limitation fund under
English legislation. …
The true meaning and effect of the defendants’ submission based on the
question of substantial justice is that something is lacking in the system of
justice of Singapore as regards limitation of liability. I am not aware of a
decision anywhere whereby a court has stayed an action legitimately brought
before it on the ground that there is something wanting in its system of justice
and that better justice will be done in another jurisdiction. For my part it would
85
[1995] 2 SLR(R) 851 at [60].
Page 33 of 43
be wrong in principle to do so because I cannot accept that the law of Singapore
is unjust to either party. As the Singapore legislature had deemed it just [to]
retain the lower limitation when there is no actual fault or privity this Court
must give effect to that legislation and the merits of that legislation are not
justiciable before this Court. …
[emphasis is original]
It is clear that the Belgium proceedings have that effect of undermining and interfering with
the plaintiffs’ rights and the judicial process of this court. This interference can only be
defined as vexatious and oppressive. Hein Michael Keiser, in his affidavit filed on 14 March
2001, disclosed that the defendants’ solicitors were already in discussions with the English
solicitors of the Hual Trinita in December 1998 on how best to pursue the plaintiffs in a 1976
Convention country, in particular Holland or Belgium. After considering the facts, the court
concluded that whilst the defendants arrested Ever Reach in Belgium as of right, their
conduct was, for the reasons stated, an invasion or attack on the plaintiffs’ rights with the
consequence that the plaintiffs were vexed and oppressed by the defendants’ conduct thereby
creating the equity and justifying the grant of the injunction. When one has regard to all the
circumstances, the defendants knew and intended that a separate limitation fund be created.
They knew and intended that by pursuing the Belgium proceedings (and not in United
Kingdom or Hong Kong where the plaintiffs’ vessels called undoubtedly to avoid possibly the
same result as in The Herceg Novi) it will place pressure on the plaintiffs to force them to
accept 1976 limit and that will disadvantage the plaintiffs legally and commercially. 86
All these reasons add up to a case of oppression. Balancing all the factors more injustice
would be done to the plaintiffs if the defendants are allowed to proceed in Belgium rather
than would be done to the defendants if they were restrained from proceeding in Belgium. 87
The injunction application of the plaintiffs was allowed.
Other Cases (in brief):

The Herceg Novi and Ming Galaxy [1998] 2 Lloyd’s Rep 454 (CA)
Ming owners gave notice of motion to stay the English action on the grounds that
(1) England was not the appropriate forum, and
(2) there were proceedings pending elsewhere, that is to say in Singapore.
The court viewed that it is quite impossible to say that substantial justice is not available in
Singapore, seeing that there is a significant body of agreement among civilized nations with
the law as it is there administered. If the other forum is not the natural forum, then court has
to decide if it is the more appropriate forum. Court looks at appropriateness, not
convenience.
The Kapitan Shvetsov [1998] 1 Lloyd’s Rep 199 (HKCA)

The Russian would be disadvantage in Singapore due to the limitation regime as Singapore
86
[1995] 2 SLR(R) 851 at [64].
87
[1995] 2 SLR(R) 851 at [65].
Page 34 of 43
adopted the 1957 limitation convention whereas Hong Kong, 1976.
Note:
Jurisdiction Agreement
We have to ask ourselves: is there a valid jurisdiction agreement in the contract?
Forum Conveniens/Natural Forum

2.13.11 The Singapore court’s power to stay its proceedings by reason of its “not being the
appropriate forum the proceedings ought not to be continued” is underpinned by the
common law principle enunciated in The Spiliada that generally a trial should be
heard in its natural forum, i.e., the forum best suited to try the case for the interests of
all the parties and the ends of justice. 88 See also para 2.13.10 (b) above.
2.13.12 A defendant who has been served with process within the jurisdiction seeking a stay
of proceedings has to show that there is another available and competent forum
which is clearly the more appropriate forum for the trial of the action. At this stage
the court looks primarily to factors of convenience and expense and the connections
of the parties and the issues in the case to determine the forum with which the action
has the most real and substantial connection. If no clearly more appropriate forum is
shown to exist, stay would ordinarily be refused. If there is such a forum, then the
local proceedings will be stayed unless the circumstances show that the stay would
deprive the plaintiff of substantial justice; the mere deprivation of the legitimate
advantages of the plaintiff in having the trial in the forum is not decisive. 89
2.13.13 The Rainbow Joy – Philippines being the natural forum/forum conveniens
The appellant, a Philippine national, had been employed by the respondent, a one-
ship Panamanian company, to work as a second engineer on its ship, which flew the
flag of Hong Kong. The appellant had signed an employment contract in the
Philippines incorporating the standard form approved by the Philippine Overseas
Employment Administration (‘the POEA contract’). As is common practice in such
cases, he signed another contract with his employer to comply with the laws of Hong
Kong (‘the Hong Kong contract’). The POEA contract contained a choice of
Philippine law clause, as well as a clause that referred all disputes between the parties
exclusively for determination in the Philippines, to be heard by the National Labour
Relations Commission (‘NLRC’) or arbitrators. The Hong Kong contract did not
contain any express choice of law or jurisdiction clauses.
The appellant suffered injury to his eye in the course of employment while
repairing the ship when it was off the coast of Myanmar. He eventually received
medical treatment in the Philippines. He initiated proceedings against the respondent
88
Natural Forum and the Elusive Significance of Jurisdiction Agreements (The Rainbow Joy), Professor Yeo
Tiong Min, Singapore Journal of Legal Studies [2005] 448–461.
89
Supra.
Page 35 of 43
before the NLRC claiming US$80,000, but discontinued these after suing the
respondent in Singapore claiming US$460,000 in compensation for negligence and
breach of contract. The respondent applied to stay the proceedings on three grounds:
(1) that the appellant had agreed to arbitrate in the Philippines;
(2) that the appellant had agreed to the exclusive jurisdiction of the Philippines; and
(3) that the Philippines was the natural forum for the dispute.
The assistant registrar stayed the action on the third ground alone, and did not find it
necessary to go into the other two grounds. The stay was upheld by the High Court
for the same reasons.
The appellant appealed to the Court of Appeal basis the following two grounds:
(1) that forum non conveniens did not apply where the plaintiff could not resort to a
“court of law” in the foreign country (ie the doctrine of forum non conveniens was not
applicable because the proceedings which he could institute in the Philippines were
before a special tribunal and not an ordinary court of law); and
(2) that the circumstances did not in any event justify a stay, because, in particular:
(a) the defendant had no real defence to the claim;
(b) both the contract and tort claims were governed by Hong Kong law;
(c) no reliance should be placed on the POEA contract as the respondent was
not a party thereto;
(d) the employment agreement was governed by Hong Kong law; and
(e) the Philippine tribunal did not have jurisdiction over the tort claim. 90
The Court of Appeal rejected both the above and held that: 91
(1) The doctrine was based on the principle of comity between nations, not between
courts of law of nations. The notion of comity would be subverted if the forum of one
country did not give credence to an alternative forum which had been created and
accorded adjudication powers by another country. The critical question here was not
so much the label attached to the forum but its competence to try the dispute in that
country. As a matter of principle and based on the authorities cited, the appellant’s
contention that the doctrine only applied where the alternative forum was a court of
law failed: at [18] to [20], [24].
(2) In weighing the balance of convenience under the doctrine, the issue of whether
there was a defence to the claim was not a relevant consideration as the court should
not be required to go into the merits. This was because the juridical basis of a stay
based on the doctrine was different from that of a stay based on an exclusive
jurisdiction clause. Under the doctrine, the object was determining which forum was
the more appropriate one. On the other hand, a party had to show exceptional
circumstances to be excused from his commitment to the exclusive jurisdiction
clause, and the averment that the defendant had no defence to the claim could
constitute exceptional circumstances. On the facts, it could not be seriously
90
Supra, p. 449.
91
[2005] 3 SLR(R) 719, at 720-721; [2005] SGCA 36
Page 36 of 43
contended that the appellant’s claim in tort could be determined without a trial: at
[27] and [28].
(3) Where parties had specified the governing law in the contract of employment, the
contractual term should prevail. The fact that the appellant had also sued in tort did
not mean that the forum selection clause should no longer apply: at [31] and [36].
(4) The appellant could not have been ignorant that Hang Woo was entering into the
contract as the ship manager of the respondent. From his experience as a seafarer, he
would have known that Hang Woo was the ship manager and could not be the
principal. Moreover, the respondent’s expert on Philippine law indicated that there
was, in the Philippines, the principle of undisclosed principal who could sue and be
sued on the contract even though not expressly named therein: at [38] to [40].
(5) The Hong Kong Agreement had no jurisdiction or governing law clause. All that
the clause relied on by the appellant seemed to say was that there was a separate
agreement annexed thereto and its terms should not be less favourable than Hong
Kong law. There was also no evidence that what was provided in the POEA contract
was worse off than under the ECO. Even if the ECO were more favourable than the
POEA terms, Philippine law did not prohibit the incorporation of the ECO terms by
agreement: at [45] to [47].
(6) The only link the appellant had with Singapore was that he joined the vessel in
Singapore, returned to the Philippines via Singapore and the writ was served on the
vessel in Singapore. None of them had any real relevance. On the contrary, the case
had overwhelming connection with the Philippines: the crew of the vessel were
Filipino; the medical witnesses were mainly from the Philippines; the employment
contract was governed by Philippine law; the need for interpretation for those who
might speak only Tagalog would be avoided; a performance bond had been furnished
by Hang Woo’s manning agent in the Philippines to the Filipino authorities; and the
respondent had agreed to submit to the jurisdiction of the Philippines: at [52].
Note:
Comity - The doctrine requiring courts of one state to recognize the laws and judgments of
competent courts of another state, in order to secure the reciprocal recognition by that
foreign state of the laws and the judgments of the first state. 92
2.14 Choice of Jurisdiction – Six Steps to Follow 93
Choice of jurisdiction problems may be settled by the following six steps taken in order:
92
Glossary of Conflict of Laws, Professor William Tetley, QC.
93
Jurisdiction Clauses and forum non conveniens in the Carriage of Goods by Sea, Professor William Tetley, QC.
Page 37 of 43
1. Firstly, the court seized with the case must decide if it has jurisdiction by virtue of the
legislation which created it. Only if it has jurisdiction may it proceed; otherwise, of
course, it must dismiss the suit, out of hand. In some jurisdictions, however, a court
which may not have jurisdiction on the merits may have jurisdiction by statute to
decide a question of stay.
2. Secondly, the court must look to the law which applies to the case before it, to
determine if there is a direction in that law as to jurisdiction. For example, the
Australian Carriage of Goods by Sea Act 1991 holds invalid any clauses in most sea
carriage documents ousting Australian jurisdiction.
3. Thirdly, the court must decide if the other jurisdiction, to which it is called upon to
defer, is appropriate and whether the balance of convenience favours the case being
heard there, i.e. if it is reasonable.
4. Fourthly, if there is a jurisdiction clause in the contract (the bill of lading), the terms
and specific wording of that clause must be considered carefully. If the jurisdiction
clause is not in the bill of lading (or other immediate evidence of the contract), but in
some document (such as a charterparty), the incorporation by reference and notice of
the incorporation must be considered carefully, to verify that such incorporation is
complete and valid.
5. Fifthly, the court's consideration will also be affected if the suit has been commenced
by an action in rem and an arrest of a ship, which arrest normally gives jurisdiction in
the place of the arrest.
6. Sixthly, if the new jurisdiction is deemed to be convenient and proper in the
circumstances, the court will stay the suit by an order which will preserve the rights of
the parties. Otherwise the court will retain the suit in its own jurisdiction and will
refuse the motion for stay.
2.14.1 International Carriage of Goods Conventions and Choice of Jurisdiction 94
1) The Hague Rules 1924

The Hague Rules 1924 95 have no provision dealing with jurisdiction or arbitration of cargo
claims. Nevertheless, both types of clauses have generally been held valid by courts in bill of
lading disputes, provided they are clear and unambiguous. Such clauses ordinarily call for
suit or arbitration in the jurisdiction most convenient to the carrier, very often in the place of
the carrier’s principal place of business. 96 Bills of lading under the Rules are often not signed
94
Ch III, Jurisdiction Clauses and forum non conveniens in the Carriage of Goods by Sea, Professor William
Tetley, QC.
95
Fn 16 in the original text: International Convention for the Unification of Certain Rules of Law Relating to
Bills of Lading, adopted at Brussels, August 25, 1924, and in force as of June 2, 1931 (commonly known in
English-speaking countries as the "Hague Rules"). See the official French text reproduced in Tetley, Marine
Cargo Claims, 3 Ed., Les Éditions Yvon Blais, Inc., Montreal, 1988 at pp. 1111-1120, and an English translation,
ibid. at pp. 1121-1129.
96
Fn 17 in the original text: See, e.g., the BIMCO Liner Bill of Lading (Conlinebill 2000”), as amended, of
November 2000 at clause 4. See also BIMCO's non-negotiable Liner Sea Waybill (LINEWAYBILL"), issued by
BIMCO, August 22, 1997 at clause 3. For the texts of these two forms, see Tetley, International Maritime and
Page 38 of 43
by the shippers, consignees or endorsees, who therefore do not have the
jurisdiction/arbitration provisions brought specifically to their attention, unless they have a
regular course of dealing with the carrier and are then presumed to be aware of the fact that
such a clause is typically found in such a document.
2) The Hague/Visby Rules 1968/1979

The Hague/Visby Rules 1968/1979, 97 like the original Hague Rules, contain no provisions on
jurisdiction or arbitration. Again, however, such clauses are generally upheld by courts and
may be set up against parties to the bill of lading or similar document of carriage, whether or
not those parties have really taken cognizance of their terms.
3) The Hamburg Rules 1978

The Hamburg Rules 98 at art. 21(l) set out rules governing where suit may be taken and
limiting the right of contracting parties or of the courts to agree to other jurisdictions. In
particular, art. 21(1) authorizes the cargo claimant, at his option, to take suit before the court
of: 1) the principal place of business or (if there is no such place) the habitual residence of the
defendant; 2) the place where the contract of carriage was made if the defendant has a place
of business, branch or agency there the contract through which the contract was made; 3) the
port of loading; 4) the port of discharge; and 5) any additional place designated for that
purposes in the contract of carriage by sea.
Art. 21(2) solves the difficult problem of jurisdiction being acquired by the arrest of the ship
in rem. The arrest is valid but, at the petition of the defendant, the suit must be transferred to
an acceptable jurisdiction defined in art. 21(1) upon the defendant providing adequate
security to ensure payment of any subsequent judgment.
Art. 21(5) permits the parties, by agreement, to designate the place of suit after a claim under
the contract of carriage by sea has arisen.
2.15 Admiralty Proceedings

In Singapore, the procedure for admiralty proceedings is available in the Rules of
Court, Order 70, rr1 – 43.
Admiralty Law, 2003, Appendices “P” and “Q”, at pp. 861-862 and 863-864 respectively. See also two sample
clauses in S. Mankabady, ed., The Hamburg Rules on the Carriage of Goods by Sea, Sijthoff, Leyden/Boston,
1978 at p. 98.
97
Fn 18 in the original text: Protocol to Amend the International Convention for the Unification of Certain
Rules Relating to Bills of Lading, adopted at Brussels, February 23, 1968 (in force June 23, 1977) (commonly
known as the "Visby Protocol 1968" and the Protocol to Amend the International Convention for the
Unification of Certain Rules Relating to Bills of Lading as modified by the Amending Protocol of 23rd February
1968, adopted at Brussels, December 21, 1979 (in force February 14, 1984) (commonly known as the "Visby
S.D.R. Protocol 1979"). The Hague Rules 1924, as amended by the Visby Protocol 1968 and the Visby S.D.R.
Protocol 1979, are commonly known as the "Hague/Visby Rules 1968/1979".
98
Fn 19 in the original text: United Nations Conventions on the Carriage of Goods by Sea, signed at Hamburg
on March 31, 1978, and in force November 1, 1992.
Page 39 of 43
2.16 Citing Legal Authorities in Court 99
Common law judges cite legal authorities in judgments. Common lawyers likewise
cite legal authorities during court proceedings to substantiate and support their
arguments and legal grounds. See para 2.16.2 below.
As the legal industry becomes progressively more competitive, lawyers should

constantly seek to reduce unnecessary costs to their clients. By filing excessively large
bundles of authorities albeit is an unfortunate trend, should be avoided as necessary.
2.16.1 Legal authorities

Generally, any material which a court can rely on in reaching its decision can be
referred to as an “authority”. Authorities are classified into two categories:
(a) Primary authority – any law that the court relies on, such as cases, statutes,
regulations, constitutional provisions, etc.
(b) Secondary authority – any non-law that the court draws on, such as legal
encyclopaedias, textbooks, periodicals, dictionaries, loose-leaf services and other legal
treatises.
2.16.2 Primary authorities can be mandatory or persuasive.

(a) Mandatory primary authorities consist either of enacted law (such as statutes,
regulations or constitutional provisions) or judgments that are binding on the
presiding court under the principles of stare decisis.
(b) Persuasive primary authorities would comprise of judgments that the presiding
court is not bound by, such as decisions of a lower court, or those of another
jurisdiction.
2.16.3 Secondary authorities are, by their very nature, never mandatory. Although they may
in certain cases be highly persuasive, they must be used with caution as primary
authorities should be relied on as far as possible.
2.16.4 While it is axiomatic that every proposition of law should be supported by some form
of legal authority, lawyers should exercise their discretion judiciously when deciding
which authorities to cite in court. Otherwise, the citing of irrelevant or unpersuasive
authorities may add to the clients’ costs, and in extreme case, expose the offending
practitioner to a special order for costs.
2.16.5 Lawyers have a duty to cite all relevant authorities to the court, to enable it to arrive at
an informed decision. The significance of this duty was illustrated in Sutanto Henny v
99
The content in para 2.16 is vastly cited from Citing Legal Authorities in Court (2004) 16 SAcLJ 168 by Low
Siew Ling.
Page 40 of 43
Suriani Tani (also known as Li Yu). 100 In this case, counsel had referred Belinda Ang
Saw Ean J to the dictum in an English decision to support his argument.
Unfortunately, he failed to draw the judge’s attention to the fact that this dictum was
later disapproved in another English decision, prompting her to comment that “this
remiss is unsatisfactory as the dictum was an added reason for ruling in the plaintiff’s
favour.” 101
2.16.6 The offending solicitors’ is bound by Order 59, r8(1) of the Rules of Court of their
personal liability for costs which provide that:
… where it appears to the Court that costs have been incurred unreasonably
or improperly in any proceedings or have been wasted by failure to conduct
proceedings with reasonable competence and expedition, the Court may make
against any solicitor whom it considers to be responsible (whether personally
or through an employee or agent) an order —
(a) disallowing the costs as between the solicitor and his client; and
(b) directing the solicitor to repay to his client costs which the client has been
ordered to pay to other parties to the proceedings; or
(c) directing the solicitor personally to indemnify such other parties against
costs payable by them.
2.16.7 The following is a brief summary of the suggested guidelines for the citation of legal
authorities in court:
Primary authorities: Secondary authorities: Extrinsic materials in

statutory interpretation:
All mandatory and Counsel should generally The conditions in s 9A(2)
persuasive primary be more circumspect in of the Interpretation Act 102
authorities – whether their citation of secondary must be satisfied before
favourable or not – should authorities. Leading texts extrinsic materials are
be cited. Where there are are readily citable as referred to. Any extrinsic
local authorities directly persuasive authority. materials cited should
on point, these should be Articles should only be generally fall within the list
cited in preference over cited in special in s 9A(3), unless the
cases from other circumstances. Even then, circumstances of the case
jurisdictions. Counsel counsel should ensure that are exceptional or the
should ensure that the any articles cited are material sought to be
authorities cited are not written by eminent adduced is especially
repetitive, and are directly, authors and published in probative. As before,
and not merely obliquely, established journals. counsel should restrict
100
[2004] SGHC 7.
101
Ibid at [20].
102
Cap 1, 2002 Rev Edn.
Page 41 of 43
relevant to the case, unless Private legal opinions their citation of material to
there are no direct should generally not be those that are truly
authorities available in cited as authority. relevant and authoritative.
support. Obviously, any material
produced should not be
cited out of context, and
should be directly relevant
to the case.
Appendix I
Litigation Process 103
Enforcement
Judgment
Trial
Discovery
Pleadings
Commencement
© Capt Cheong Kwee Thiam 2012
103 th
Diagram 2H, para 2-501, Singapore Business Law, 4 edn (2006), Benny S Tabalujan and Valerie Du Toit-
Low, Business Law Asia.
Page 42 of 43
Updated 8 May 2012
Disclaimer: This lesson notes are for academic use only. It is not a law advisory document.
Hence, readers shall not act on the contents set out therein. If advice is required, please
consult a Singapore lawyer or one of the writers of the relevant article or briefing as cited
therein.
Page 43 of 43

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Singapore Maritime Academy

Diploma Plus in Maritime Law and Dispute

Dispute Resolution (MA 8003)

In common law jurisdiction, adjudication on dispute takes place at a hearing or trial.

2.01 Litigation involves the following various stages:

Note: see 2.1 below.

The Court of Appeal continued at CA No 50 of 2007:

Additional Note: (out of context)

2.2 Matters to be considered before Commencing an Action19

Time Limits • An action must be commenced within the limitation periods

Forum • Before commencing an action, a potential litigant should also

Court Fees • Court fees are prescribed in a number of statutory regulations

2.3 Commencing an Action: from Writ up to Close of Pleadings 21

Service of the Writ • A writ must be served personally on each defendant. 23

Pleadings • Before a writ is issued, it must be endorsed with a

Discovery and Discovery 24

Close of Pleadings Pleadings are deemed closed 14 days after:

If neither a reply nor a defence to the counterclaim is served,

2.4 Disposal of Action Without Trial 26

Proceedings may be resolved and/or otherwise summarily terminated and/or

Default Judgment • defendant fails to enter an appearance or

Nanyang Law LLC v Alphomega Research Group Ltd 27

Nanyang Law LLC (“Nanyang”), a firm of advocates and solicitors, represented

Summary • If the defendant has entered appearance and filed a defence,

United Overseas Bank Ltd v Tru-line Beauty Consultants Pte Ltd 28

Discontinuance Finally, a party may withdraw or discontinue his action or

Pre-Trial This is an informal meeting where parties meet and be

2.5 Provisional Remedies and Other Interlocutory Matters32

Interlocutory • At any stage of the proceedings, but frequently

Mareva injunction The Mareva injunction 33 is designed to prevent parties

To obtain a domestic injunction, the plaintiff must show

Discovery and An important aspect of litigation is the discovery process

2.6 Exchanging Evidence and Setting Down For Trial 36

Pre-Trial Conference To facilitate proceedings, the Registrar holds regular pre-

Expert Evidence Parties may also exchange expert evidence, by way of an

Subpoenas Subpoenas may be issued to ensure the attendance of

2.8 Assessment of Damages41

Writs of A judgment may be enforced by one of a variety of writs of

Garnishee The garnishee process may be appropriate where the judgment

Costs must follow the event 45

2.11 Appeal Process46

Supreme Court Subordinate Courts

• Appeals take different forms and • With regard to trials, an appeal

AD v AE [2004] 2 SLR 505: 47

2.12 Other Civil Proceedings and Processes49

2.13 Forum selection

Try to attempt the question below before continuing your reading.

Hence, D who is alleged to be liable to P (liability defendant), will become the

Q: Will you be able to reconcile the above? If so, explain.

Q: What do you think is the basis of the defendant’s contentions? 51

Forum Non Conveniens 55

1. A, a Scotsman living in Scotland, is injured in an accident while employed by X, an

Anti-suit injunction (ASI) – P of A seek injunction at A court to stop the proceeding

Extract from headnote of the case:

2.13.10 Case Studies

Evergreen International SA v Volkswagen Group Singapore Pte Ltd 75

Plaintiffs: Registered owners of the Ever Glory.

In deciding whether to grant an anti-suit injunction, the court ought to consider: 76

The court made some additional observations: 85

Other Cases (in brief):

The Kapitan Shvetsov [1998] 1 Lloyd’s Rep 199 (HKCA)

Forum Conveniens/Natural Forum