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The Singapore Law Gazette

Giving 2 Working Days’ Notice Before Entering Default Judgment

The Advisory Committee, a committee of the Professional Conduct Council, provides guidance to legal practitioners on their ethical obligations. Legal practitioners can submit a written enquiry to the Committee through the Legal Research and Development Department (the Secretariat to the Committee) at [email protected]. The protocol for submitting a request to the Committee for ethical guidance is set out in Part C of the Law Society’s Practice Direction 2.1.3.

A legal practitioner who encounters difficulty in a specific case and needs guidance should write to the Committee for a specific opinion. The Committee and the Law Society are not liable to any legal practitioner who does or omits to do anything based on this article.

Summary of Enquiry

The Advisory Committee was asked by a legal practitioner to provide guidance on the interpretation of rule 28 of the Legal Profession (Professional Conduct) Rules 2015 (PCR), in particular, whether the day of giving the notice under rule 28(1) is to be counted as part of the requirement of 2 working days under rule 28(1)(b), before default judgment can be entered.

Rule 28 of the PCR states:

Entering default judgment
28.—(1) A legal practitioner (A) must not enter a default judgment under any provision of the Rules of Court (Cap. 322, R 5) against a party who is represented by another legal practitioner (B), unless —

(a) A has given B written notice of A’s intention to enter the default judgment; and

(b) at least 2 working days have elapsed after the notice is given to B.

(2) Any notice under paragraph (1) that is given on a working day after 4 p.m., or on a day other than a working day, is to be treated as given on the next working day.

(3) To avoid doubt —

(a) this rule does not extend the time stipulated by an order of court, or by any provision of the Rules of Court, for taking any action or step; and

(b) a legal practitioner need not give any notice under paragraph (1) before taking any action or step on a failure to comply with an order of court within the time stipulated by the order of court.

(4) In this rule, “working day” means any day other than a Saturday, Sunday or public holiday.

Guidance of the Advisory Committee

Background

  1. Rule 28 PCR, which is located in Division 3 (Relationship with other legal practitioners) of Part 3 of the PCR, is a rule of professional courtesy between lawyers.1Jeffrey Pinsler SC, Legal Profession (Professional Conduct) Rules 2015: A Commentary (Academy Publishing, 2016) at (28.003). In essence, rule 28(1) PCR requires a legal practitioner (A) not to enter a default judgment against a party represented by another legal practitioner (B) unless:
    1. A has given B written notice of A’s intention to enter the default judgment; and
    2. at least 2 working days have elapsed after the notice is given to B.

Day when written notice is deemed to be given to B – rule 28(1)(a) read with rule 28(2)

  1. Rule 28(2) PCR provides that any notice under rule 28(1) that is given on a working day after 4pm, or on a day other than a working day, is to be treated as given on the next working day.
  2. Rule 28(2) therefore makes it clear that a written notice of A’s intention to enter default judgment is to be treated as given on the next working day if it is given on a working day after 4pm, or on a day other than a working day. If the notice is given on a working day before 4pm, it is implied that the notice is to be treated as given on that same day.

Computation of 2 working days – rule 28(1)(b)

  1. After it is determined when written notice is deemed to be given to B, the computation of 2 working days only begins on the next working day following the day when the written notice is deemed to be given to B. This interpretation is supported by the wording of rule 28(1)(b), which requires at least 2 working days to have elapsed after the notice is given to B.2It may also be useful to refer to section 50(a) of the Interpretation Act (Cap. 1), which states: “In computing time for the purposes of any written law, unless the contrary intention appears —(a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done; …”
  2. In addition, rule 28 PCR is virtually identical to its predecessor i.e. rule 70 of the Legal Profession (Professional Conduct) Rules (2010 Rev Ed) (PCR 2010). In this regard, the computation of 2 working days under rule 70 PCR 2010 made it clear that the day of giving of the notice is not counted as the first working day, even if the notice is given before 4pm. This was the position under Section E of the Law Society’s expunged Practice Direction on rule 70 PCR 2010 (PDR 2013, paragraph 40). Hence, the computation of 2 working days under rule 70 PCR 2010 should apply to the same under rule 28 PCR.

Application

  1. The following table illustrates how the computation of 2 working days under rule 28 PCR should apply in two scenarios.
Scenario Day when notice deemed to be given When counting of 2 working days commences When 2 working days have elapsed When default judgment can be entered
1 – notice of intention to enter default judgment given on Monday 10am Monday Tuesday (next working day) End of  Wednesday Thursday
2 – notice of intention to enter default judgment given on Monday 5pm Tuesday Wednesday (next working day) End of Thursday Friday

Other Observations

  1. From a historical perspective, the spirit of rule 70 PCR 2010 (which is now rule 28 PCR) was for lawyers to look out for each other, and not for a lawyer to take advantage of a fellow lawyer’s inadvertent mistake in not filing a Defence in time. In particular, rule 70 PCR 2010 had been amended in 2001 to “deal with the undesirable practice of some solicitors in giving fellow solicitors notice after working hours and deeming that the 48-hour notice period starts to run immediately thereafter”, as this was “against the best traditions of the Bar and should not be encouraged”.3Section B of the Law Society’s expunged Practice Direction on rule 70 PCR 2010 (PDR 2013, paragraph 40).

Endnotes

Endnotes
1 Jeffrey Pinsler SC, Legal Profession (Professional Conduct) Rules 2015: A Commentary (Academy Publishing, 2016) at (28.003).
2 It may also be useful to refer to section 50(a) of the Interpretation Act (Cap. 1), which states: “In computing time for the purposes of any written law, unless the contrary intention appears —(a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done; …”
3 Section B of the Law Society’s expunged Practice Direction on rule 70 PCR 2010 (PDR 2013, paragraph 40).

LLB (Hons) (National University of Singapore)
LLM (New York University), LLM (National University of Singapore)