The Singapore Law Gazette

Step Forward, Stand Still or Drop Dead?

Can an administrative task of extracting a judgment count as a step forward in court proceedings? Or does it merely let the proceedings stand still? Read this article to avoid getting killed by the “drop dead” rule.

Introduction

Law firms acting for plaintiffs handling volume work are familiar with the dreaded deemed-discontinuance provision in Order 21 Rule 2(6) of the Rules of Court:

“Subject to paragraph (6A), if no party to an action or a cause or matter has, for more than one year (or such extended period as the Court may allow under paragraph (6B)), taken any step or proceeding in the action, cause or matter that appears from records maintained by the Court, the action, cause or matter is deemed to have been discontinued.” [Emphasis added]

Deemed discontinuance, unlike the time bar (which is a fixed date), is difficult to track, especially for suits that see sporadic court activity. A live suit may suddenly “drop dead” if, unbeknownst to anyone, more than a year of inactivity has passed. In view of its unpredictability, the rule is aptly, but affectionately, referred to as the “drop dead” rule in Canada.¹ Nancy Carruthers, ‘Ethically Speaking: Procedural and Ethical Obligations under the New “Drop Dead” Rule’ (2012) Volume 1, Issue 2, The Advisory <https://dvbat5idxh7ib.cloudfront.net/wp-content/uploads/2017/01/14162048/Drop-Dead-Rule.pdf> accessed 24 December 2017.

The difficulty with deemed discontinuance was how to define a “step or proceeding”. Until the Court of Appeal decision in Chua Peng Ho v Saravanan a/l Subramaniam (Dependent of the Estate of Lingaswari a/p Koushanan (Deceased) and Others² [2017] SGCA 35. (Chua Peng Ho), there was uncertainty about whether the extraction of a judgment or court order counted as a “step or proceeding”. This uncertainty arose because the courts were undecided on whether a “step or proceeding” needed to be formal and significant.

In this article, the difficulties prior to Chua Peng Ho will be discussed. An analysis of the decision in Chua Peng Ho follows. The article then concludes with a short comparison of our current law with foreign jurisdictions.

Prior to Chua Peng Ho

Extraction Was Not a “Step or Proceeding”

After interlocutory judgment (IJ) is entered, court activity usually ceases until the plaintiff files a summons for directions (SFD). If the plaintiff does not do so within the next one year, the suit is deemed discontinued. The start of the one-year window period within which to file a SFD used to cause difficulty. Should it be the earlier date on which IJ was entered, or the latter date on which the IJ was perfected?

Let us first differentiate between these two dates. The date on which IJ was entered is the date that parties appeared in court to record judgment. After judgment is entered, it has to be perfected.³ Order 42 Rule 9 of the Rules of Court. Until it is perfected, the judge may amend the judgment.⁴Brown Noel Trading Pte Ltd v Singapore Press Holdings Ltd and Others [1993] SGHC 194, [7]. A working definition of what it means to perfect a judgment is as follows:

“The practice in the Supreme Court of British Columbia with respect to all court orders (including decrees and other judgments) is for the judge who makes one (or another judge on his behalf) to initial it and for the Registrar both to sign it and to stamp the seal of the court on it. When these steps have been completed, the order is perfected.⁵Zacks v Zacks (1973) 10 RFL 53, 59 (SCC).” [Emphasis added]

“Perfection” is associated with “extraction” or “engrossment”. The latter two words are substantially the same as perfection. Once an order is extracted, it is perfected.⁶Wiltopps (Asia) Ltd v Drew and Napier and Another [1999] 1 SLR(R) 252, [20]. An order is engrossed after the registrar has approved the draft order submitted by parties.⁷Godfrey Gerald QC v UBS AG and Others [2004] 4 SLR(R) 411, [5]. Applying our working definition, an engrossed order (containing the registrar’s signature) is the same as a perfected order.

Having addressed the definitions, we return to answer our question of whether or not extraction of a judgment counts as a “step or proceeding”. The answer is that the start of the one-year window period within which to file a SFD is the earlier date at which IJ was entered. The authority for this proposition is the High Court decision in Attorney-General, Singapore v Tan Wee Beng⁸ [2002] SGHC 261. (Tan Wee Beng). It was held in this case that upon entering IJ, time starts running for the purpose of deemed discontinuance. The time would not restart even when the IJ was later approved by the registrar and filed in court through E-litigation.

E-litigation

To use the date on which the IJ was entered (being the date the order was made) to kick start the one-year window period may cause difficulty. This date is not immediately apparent from the E-litigation system. When users click on the “documents” tab, the date displayed beside each document is actually the filing date. For an IJ (or any court order), inexperienced users may wrongly assume that this displayed date (being the date of extraction) is the date on which the IJ was entered (being the date the order was made). To obtain the date on which the IJ was entered (being the date the order was made), one needs to go further and click on the electronic copy of the IJ. After the document has loaded, the date on which the IJ was entered (being the date the order was made) is stated in the middle of the document.

This confusion in E-litigation may cause anxiety for plaintiff law firms handling volume work. Staff may not have time to manually record the date on which the IJ was entered. They may get a false sense of security when they see an IJ filed in court only one month ago, and may wrongly assume that deemed discontinuance would take place 11 months thereafter. But upon clicking the electronic copy of the IJ, they get a rude shock when they see that the IJ was actually entered 11 months ago (in which case there would only be one month left before the suit “drops dead”).

Formal and Significant Step?

Another difficulty lies in whether it is necessary for a “step or proceeding” to be formal and significant. In Tan Wee Beng, an engrossment of an IJ was not considered a “step or proceeding”. The learned assistant registrar (AR) cited with approval the article “Automatic Discontinuance under Order 21 Rule 2 – First Dormant, Then Dead …”.⁹ Lim Hui Min, ‘Automatic Discontinuance under Order 21 Rule 2 – First Dormant, Then Dead…’ (2001) 13 Singapore Academy of Law Journal 150, 164. The AR agreed with the author of the article that a “step or proceeding” must be formal and significant:¹⁰Supra note 8 above [26].

“As stated earlier, the Plaintiff has the duty to push his suit to a conclusion. Hence a ‘step or proceeding’ must be a step which is intended to bring the suit closer to a conclusion (in the sense of obtaining a judgment in the matter). In this regard, it must be a ‘formal and significant’ step” [Emphasis added]

Cases after Tan Wee Beng were divided over whether this need for a “step or proceeding” to be formal and significant should be read into Order 21 Rule 2(6) of the Rules of Court. For convenience, a table is listed below summarising the positions adopted by various authorities referred to in Chua Peng Ho:

Authority	Issue relating to “step or proceeding”	Held/Proposition	“Step or proceeding” has to be formal and significant?
Tan Wee Beng (2002, High Court)	Whether the engrossment of an IJ (amongst others: writing letters to other parties and to the court) could be considered as a “step or proceeding”.	The engrossment of an IJ was not a “step or proceeding”.	Yes: [26]: The Court cited academic commentary wherein the author opined that a “step or proceeding” has to be one which “[was] intended to bring the suit closer to a conclusion...” and therefore formal and significant. [30]: The Court held that engrossment of an IJ was not formal and significant as the IJ takes effect on the earlier date of its pronouncement. The engrossment on a later date did not value add and bring the suit closer to a conclusion.
Moguntia-Est Epices SA v Sea-Hawk Freight Pte Ltd11 [2003] SGHC 231. (Moguntia-Est Epices SA) (2003, Court of Appeal)	Whether the service of a writ could be considered a “step or proceeding”.	Service of a writ was not a “step or proceeding”.	No: [16]: The Court held that service was not a “step or proceeding” as it does not appear in court records. See also [23] in the later The“Melati”12 [2004] SGCA 25., where the Court commented on its earlier decision in Moguntia-Est Epices SA: “[it was] held that it was the ‘filing’ and not the ‘service’ which ought to be reckoned with”. Thus, the Court in The“Melati” opined that even though service would move the matter forward, it was not a “step or proceeding” as it did not appear in court records. Conversely, the filing of a writ, which effect will not move the matter forward as much as its service, will be a “step or proceeding” simply because it appeared in court records.
Tan Kim Seng v Ibrahim Victor Adam13 [2003] SGCA 49. (Tan Kim Seng) (2003, Court of Appeal)	Whether further “steps or proceedings” are still required after an IJ on liability is obtained.	Further “steps or proceedings” are still required after an IJ on liability is obtained.14Supra (note 13 above) [33].	Yes: [15]: The Court expressly recognised that “further steps are still required to be taken to bring the action to completion” even after an IJ is obtained. Thus, the Court implicitly recognised that a “step or proceeding” has to be formal and significant in the sense that it brings the action closer to completion. [21]: The Court of Appeal observed that “the court below” had endorsed the position in Singapore Civil Procedure 2003 that a “step or proceeding” had to be formal and significant. (However, it should be noted that the Court of Appeal did not expressly agree with “the court below”15 This key phrase “the court below” becomes important in Chua Peng Ho where the learned district judge observed that it was only “the court below”, and not the Court of Appeal, which had endorsed the position in Singapore Civil Procedure 2003 that a “step or proceeding” had to be formal and significant. that the position in Singapore Civil Procedure 2003 was correct. At most, it was only an implied agreement).
The “Melati”16Supra (note 12 above). (2004, Court of Appeal)	Whether the filing and service of a statement of claim out of time could be considered as a “step or proceeding”.	The filing and service of a statement of claim out of time was an irregular “step or proceeding”, which was nonetheless still a “step or proceeding”17Supra (note 12 above) [20]..	Unclear (ie, yes and no) Yes: [17]: The Court held that filing a statement of claim with the registry is an act that “move(s) the action forward towards resolution” and is therefore formal and significant. No: [22]: The Court of Appeal recognised that filing without service would not move the case forward. [23]: Nevertheless, the Court held that it was the filing which was a “step or proceeding” because it would appear in court records. The Court also held that service of a court document was not a “step or proceeding”, following its earlier decision in Moguntia-Est Epices SA.
Lai Swee Lin Linda v Attorney-General18 [2008] SGHC 17. (Lai Swee Lin Linda) (2008, High Court)	Whether a letter to court requesting further arguments before the Court of Appeal could be considered as a “step or proceeding”.	A letter to court to requesting further arguments before the Court of Appeal was not a “step or proceeding”.	Yes: [6]: The Court observed that a letter to a judge requesting further arguments, if mandated by law, would be a “step or proceeding” as it would be “part of the litigation process to drive the case to its conclusion”. Such a “step or proceeding” would therefore be formal and significant. However, this observation is obiter: on the facts, writing to court to request for further arguments before the Court of Appeal was not mandated by law.
Jagbir Singh s/o Baldhiraj Singh v Lim Keh Thye and another19 [2009] SGHC 166. (Jagbir Singh) (2009 High Court)	Whether filing a notice of change of solicitors could be considered as a “step or proceeding”.	Filing a notice of change of solicitors was a “step or proceeding”.	No: [18]: The Court recognised that “any step or proceeding” will suffice, so long as it appears in court records. The word “any” implies that the step need not be formal and significant.
“Automatic Discontinuance under Order 21 Rule 2 – First Dormant, Then Dead…”20Supra (note 9 above). (2001, academic commentary)	Not applicable (non-case authority)		Yes: Page 164: The learned author opined that a “step or proceeding” has to bring the suit closer to a conclusion (by obtaining a final judgment).
Singapore Civil Procedure 201621 Foo Chee Hock, Singapore Civil Procedure 2016 (Sweet and Maxwell, 2016), [21/5/13].	Not applicable (non-case authority)		Yes: [21/5/13]: “[A] proceeding is essentially any formal and significant step taken before final judgment”.

As can be seen, there was debate whether a “step or proceeding” has to be formal and significant. The stage was set for the Court of Appeal in Chua Peng Ho to clarify this.

The Case

Facts

In Chua Peng Ho, IJ was entered on 4 February 2015. The IJ was extracted on 28 August 2015. The Plaintiff took out a SFD on 28 March 2016. Had deemed discontinuance arose as of 28 March 2016? The Plaintiff submitted that the starting date to assess deemed discontinuance should be 28 August 2015, being the date on which IJ was extracted. From 28 August 2015 to 28 March 2016, there was less than a year and therefore no deemed discontinuance. But the First Defendant submitted that the starting date to assess deemed discontinuance should be 4 February 2015, being the date on which IJ was entered. Between 4 February 2015 and 28 March 2016, more than a year had lapsed, and therefore deemed discontinuance had arisen.

The issue was whether the extraction of an IJ was a “step or proceeding” within the meaning of Order 21 Rule 2(6) of the Rules of Court. If it was, the date of the IJ’s extraction (being 28 August 2015) will represent the start of the one-year window period within which the SFD should be filed. If it was not, the date of the IJ’s extraction (being 28 August 2015) would have been insignificant for this purpose. Accordingly, the start of the one-year window period would be brought back to the date of the last “step or proceeding” taken, which would be the date on which IJ was entered (being 4 February 2015).

Decision

At first instance, the Deputy Registrar held that the extraction of the IJ was not a “step or proceeding”. The date on which the IJ was entered (being 4 February 2015) represented the start of the one-year window period to assess deemed discontinuance. Accordingly, the suit was discontinued on 4 February 2016.²²Saravanan a/l Subramaniam as Dependent of the Estate of Lingaswari a/p Koushanan (Deceased) and Also for the Benefit of the Other Dependents of the Estate of Lingaswari a/p Koushanan (Deceased) v Chua Peng Hoand Another [2016] SGDC 195, [6].

On appeal, District Judge Tan May Tee (DJ Tan) held that a “step or proceeding” need not move a case towards resolution,²³Supra (note 22 above) [42]. i.e., it need not be formal and significant. To qualify as a “step or proceeding”, it is sufficient for that step to be necessitated by the Rules of Court, and for it to appear on Court records.²⁴Supra (note 22 above) [31]. DJ Tan also held that the extraction of an IJ is a step that would move the action towards resolution.²⁵Supra (note 22 above) [47]. The date on which the IJ was extracted (being 28 August 2015) represented the start of the one-year window period. Accordingly, the suit was still alive as of 28 March 2016.²⁶Supra (note 22 above) [52].

The First Defendant appealed to the High Court and then the Court of Appeal. Both courts affirmed DJ Tan’s decision.

Reasons

The Court of Appeal issued a short ex tempore judgment. The Court was in entire agreement²⁷Supra (note 2 above) [8]. with the lengthier judgment by DJ Tan. Thus, let us examine the reasons by DJ Tan.

First, Tan Wee Beng, which was relied on heavily by the First Defendant, was not binding on DJ Tan. The learned AR’s comments in Tan Wee Beng about the extraction of an IJ not being a formal and significant “step or proceeding” were obiter²⁸Supra (note 22 above) [23].. This is because, on the facts of Tan Wee Beng, no deemed discontinuance had actually occurred. To support her view that Tan Wee Beng was not binding on her, DJ Tan cited an instance in DC Suit 624/2011 where the District Court had departed from Tan Wee Beng²⁹Supra (note 22 above) [13] – [14] ..

Second, DJ Tan preferred the position in Jagbir Singh³⁰Supra (note 19 above). instead. Jagbir Singh was binding on her as it was the latest decision from a High Court judge³¹Supra (note 22 above) [41].. In Jagbir Singh, the filing of a notice of change of solicitors was a “step or proceeding”. The High Court opined that as long as any “step or proceeding” is required by the Rules of Court, it would be deemed a “step or proceeding”³²Supra (note 19 above) [18]. (emphasis added). There is no need for it to be formal and significant.

Third, DJ Tan read the two Court of Appeal decisions in Moguntia-Est Epices SA³³Supra (note 11 above).and The “Melati”³⁴Supra (note 12 above). side by side. DJ Tan used Moguntia-Est Epices SA to clarify [17] of The “Melati”, which suggested that a “step or proceeding” had to be formal and significant.³⁵Supra (note 22 above) [28]–[29].Moguntia-Est Epices SA emphasised that it was the filing of a writ, rather than its service, that counted as a “step or proceeding”³⁶Supra (note 11 above) [16].. The“Melati”, which came later, approved this point in Moguntia-Est Epices SA.³⁷Supra (note 12 above) [23]–[24]. Therefore, DJ Tan opined that [17] of The “Melati” actually meant that, in its factual context, the filing of a statement of claim was a “step or proceeding” which not only appeared from court records, but also happened to move the matter towards resolution.³⁸Supra (note 22 above) [28]. The Court of Appeal agreed with DJ Tan’s reasoning on this point.³⁹Supra (note 2 above) [4].

Fourth, after having reconciled two Court of Appeal decisions, DJ Tan moved on to consider Tan Kim Seng⁴⁰Supra (note 13 above).. DJ Tan relied on Jagbir Singh, where Kan Ting Chiu J observed that the Court of Appeal in Tan Kim Seng did not endorse the proposition in the White Book that a “step or proceeding” had to be formal and significant. Only “the court below” in Tan Kim Seng had relied on it.⁴¹Supra (note 19 above) [15]. The binding effect of Tan Kim Seng was thus easily nullified.

Comparison with Foreign Law

Extraction of decrees nisi

Following Chua Peng Ho, the extraction of a decree nisi (or interim judgment) in matrimonial proceedings is a “step or proceeding” and has to be undertaken within one year of the date of order⁴² Rule 430(9) Family Justice Rules (FJR) imports Order 21 Rule 2(6) of the Rules of Court into matrimonial proceedings See, also the Table of Derivations (within the FJR) for Rule 430.. In this regard, our law is different from the law of foreign jurisdictions.

For example, the Australian authority of Coyle v Coyle⁴³ [1923] VLR 632 (VSC). held that an application to perfect a decree nisi for dissolution of marriage was not a proceeding within the meaning of Order LXIV Rule 13 of the Rules of the Supreme Court of the State of Victoria 1916.⁴⁴ Rules of the Supreme Court of the State of Victoria 1916 <https://babel.hathitrust.org/cgi/pt?id=mdp.35112105381646;view=1up;seq=7> accessed 24 December 2017. Order LXIV Rule 13 states: “In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed. A summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this Rule.” Thus, perfecting a decree nisi is not caught by the “drop dead” provision and may be undertaken more than a year after the date of order. On the facts of this case, the application to perfect the decree nisi was made more than 13 years after the decreenisi was pronounced. The Australian court relied on the English authority of Deighton v Cockle⁴⁵ [1912] 1 KB 206 (CA). because the equivalent English “drop dead” provision⁴⁶ Frederic Philip Tomlinson, ‘The Judicature Acts and Rules of the Supreme Court, 1883: With Notes and Index’ <https://ia601407.us.archive.org/12/items/judicatureactsa00unkngoog/judicatureactsa00unkngoog.pdf> accessed 24 December 2017. Order LXIV Rule 13 of the English Rules of the Supreme Court 1883 was identical to that of the Rules of the Supreme Court of the State of Victoria 1916. was identical to the Victorian provision.

However, Deighton v Cockle involved the extraction of a summary judgment under Order 14. Summary judgments can be final or interlocutory. It can be interlocutory in instances where liability for an unliquidated claim is admitted, but the issue of damages remains outstanding.⁴⁷Ngai Heng Book Binder Pte Ltd v Syntax Computer Pte Ltd [1988] 1 SLR(R) 209 (HC), [10]. It is unclear in the judgment what the nature of the summary judgment was in Deighton v Cockle. But Vaughan Williams LJ cautioned that “proceedings taken after interlocutory judgment” will be caught by the English “drop dead” provision.⁴⁸Supra (note 45 above) 210. Thus, the English court in Deighton v Cockle recognised that signing an interlocutory judgment was a proceeding. The Australian Court in Coyle v Coyle was wrong to hold that Deighton v Cockle also applied to decrees nisi (which are interlocutory judgments).

Change of Solicitors – Not Formal and Significant?

In Jagbir Singh, the filing of a Notice of Change of Solicitors was held to be a “step or proceeding”, as it is mandated by the Rules of Court. The position in the Australian authority of Kaats v Caelers⁴⁹ [1966] Qd R 482 (SC, FC). is different. Stable J held that a Notice of Change of Solicitors was not a proceeding within the meaning of Order 90 Rule 9 of the Rules of the Supreme Court⁵⁰Supra (note 49 above) 487–488: “Where no proceeding has been taken in a cause for one whole year from the time when the last proceeding was taken, any party who desires to proceed, shall, before taking any step in the cause, give a month’s notice to every other party of his intention to proceed. When three years have elapsed from the time when the last proceeding was taken, no fresh proceeding shall be taken without the order of the Court or a Judge, which may be made either ex parte or upon notice. A summons on which no order has been made shall not be deemed a proceeding within this Rule; but notice of trial, although avoided by non-entry or countermanded, shall be deemed such a proceeding.” (Emphasis added.) as such a notice “did not advance the cause at all”.⁵¹Supra (note 49 above) 500.

Thus, the Courts in Singapore and Australia differ as to whether a “step or proceeding” has to be formal and significant. In Singapore, it is not necessary; in Australia, it is. The judicial divergence is due to a difference in statutory wording. Australia’s Order 90 Rule 9 contains only the word “cause”, which suggests a stronger impetus to move forward. In contrast, Singapore’s Order 21 Rule 2(6) contains three possibilities: “action, cause or matter”; the last of which permits a weaker impetus to move forward (emphasis added).

Formal and Significant vs a Step Mandated by Law?

Chua Peng Ho has clarified that a “step or proceeding” is one that is mandated by law. The position in the Canadian authority of Morasch v Alberta⁵² (2000), 250 AR 269 (CA). is different, again due to a difference in statutory wording. Rule 244.1(1) of the Alberta Rules of Court states:⁵³Supra (note 52 above) [3].

“Subject to Rule 244.2, where five or more years have expired from the time that the last thing was done in an action that materially advances the action, the court shall, on the motion of a party to the action, dismiss that portion or part of the action that relates to the party bringing the motion.” [Emphasis added]

Fruman JA held that the “thing” in Rule 244.1 may go beyond the law if the “thing” materially advanced the action.⁵⁴Supra (note 52 above) [12]–[14]. Fruman JA gave an example in Appleyard v Reed.⁵⁵Supra (note 52 above) [13]. In Appleyard v Reed,⁵⁶ 1997 CanLII 14870 (AB QB). the issue was whether exchanges of expert reports between parties were “thing(s)” that materially advanced the action. The law required parties to exchange expert reports a minimum of 120 days before trial⁵⁷ Alberta Rules of Court 390/68 Parts 15–26 <http://www.qp.alberta.ca/documents/rules/02_Rules05.pdf> accessed 24 December 2017. The relevant procedural law, Rule 218.1(1) is titled “Notice to Adduce Expert Evidence”.. But the law was silent on the details of exchange. On the facts of the case, the arguably “desultory correspondence” ⁵⁸Supra (note 56 above) [13]. to exchange reports were marked “without prejudice” and spanned five lengthy years. Nevertheless, the court held that such correspondence were “thing(s)” that materially advanced the action as expert opinions were desirable on the complex issues facing the Court⁵⁹Supra (note 56 above) [14]–[15]..

Thus, in Canada, if the law is silent on how a particular objective is to be achieved, parties can choose the steps to achieve that objective. Such unspoken steps (i.e., not mandated by law), if they materially advance the action (ie, they are formal and significant), suffice for the purpose of the “drop dead” rule. The position in Singapore is reversed: each “step or proceeding” has to be expressly mandated under the rules of court, though not necessary to be formal and significant⁶⁰Supra (note 22 above) [42]–[43]..

Conclusion

The Court of Appeal decision in Chua Peng Ho has helpfully clarified that the extraction of an IJ counts as a “step or proceeding”. This is welcome news for staff in law firms acting for plaintiffs. Staff handling multiple files can feel secure in their knowledge that the displayed filing date for an IJ (or court order) in E-litigation can be used to assess when a suit will “drop dead”. Staff can save precious time as they do not need to click on every IJ (or Court order) in E-litigation to manually record the date at which the judgment was entered. One step less, more time saved.

The Court of Appeal has also clarified that a “step or proceeding” need not be formal and significant, in contrast with some foreign jurisdictions. Their “drop dead” provisions are worded differently from Singapore’s. Practitioners relying on foreign case law have to exercise caution over such differences.