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11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
1
PRINCIPLES GOVERNING THE COURT’S DISCRETION TO
EXTEND TIME
Introduction
The purpose of this article is to examine the developments concerning
the extension of time by the court pursuant to Order 3, rule 4(1) (RC),
which provides:
The Court may, on such terms as it thinks just, by order extend or
abridge the period within which a person is required or authorised
by these Rules or by any judgment, order or direction, to do any
act in any proceedings.
The words ‘such terms as it thinks just’ signify that the court is to exercise
its discretion in order to achieve justice in the circumstances of the case.
The rule does not express the specific considerations which the court
may take into account in determining whether it is just to extend time.
In fact, no limit is placed by the rule on the factors which the court may
consider in the exercise of its discretion. It has been left to the courts to
determine the appropriate principles to be applied in achieving a ‘just’
decision.
Principles governing discretion
The primary concern of the courts has been to balance the priorities of
compliance with the rules in the interest of the administration of justice
and the denial of justice which may result if a defaulting party is refused
an extension of time to do whatever is necessary to maintain his action
or defence. These competing principles and their significance have been
expressed as follows:
The first principle is that the rules of court and the associated rules
of practice, devised in the public interest to promote the expeditious
dispatch of litigation, must be observed. The prescribed time limits
are not targets to be aimed at or expressions of pious hope but
requirements to be met. This principle is reflected in a series of
rules giving the court a discretion to dismiss on failure to comply
with a time limit: Ord 19, r 1, Ord 24, r 16(1), Ord 25, r 1(4) and
(5), Ord 28, r 10(1) and Ord 34, r 2(2) are examples. This principle
is also reflected in the court’s inherent jurisdiction to dismiss for
want of prosecution.
The second principle is that a plaintiff should not in the ordinary
way be denied an adjudication of his claim on its merits because of
procedural default, unless the default causes prejudice to his
2
Singapore Academy of Law Journal
(1999)
opponent for which an award of costs cannot compensate. This
principle is reflected in the general discretion to extend time
conferred by Ord 3, r 5, a discretion to be exercised in accordance
with the requirements of justice in the particular case. It is a principle
also reflected in the liberal approach generally adopted in relation
to the amendment of pleadings.1
Neither of these principles is absolute. If the first principle were
rigidly enforced, procedural default would lead to dismissal of actions
without any consideration of whether the plaintiff’s default had
caused prejudice to the defendant. But the court’s practice has been
to treat the existence of such prejudice as a crucial, and often a
decisive, matter. If the second principal were followed without
exception, a well-to-do plaintiff willing and able to meet orders for
costs made against him could flout the rules with impunity, confident
that he would suffer no penalty unless or until the defendant could
demonstrate prejudice. This would circumscribe the very general
discretion conferred by Order 3, rule 5, and would indeed involve a
substantial rewriting of the rule.2
Justice in the traditional mould has been perceived in the context of the
parties’ immediate interests in the litigation. If the application is rejected
so that the applicant is not able to continue with his action or maintain
his defence, or his case is seriously disadvantaged,3 then injustice may
result because his substantive rights have been forfeited by his procedural
error. On the other hand, the respondent would not suffer injustice unless
the extension of time compromises his case or prejudices him.4 In this
balancing exercise, justice is viewed in the ‘limited context’ of the
consequences befalling the applicant and respondent. In short, this means
that an application for extension of time, if necessary to the applicant’s
case, should be allowed unless the extension would prejudice the
respondent. If he would not suffer prejudice then injustice would only
occur if the application is not allowed. This ‘limited context’ of justice
excludes other factors which strive for recognition. One such factor is
the effect of delay on other litigants whose cases may have to proceed
more slowly as a result of the unnecessary use of court time. Another
factor is the dignity and authority of the rules which may be treated with
impunity if the defaulting party is confident that the most serious sanction
1
2
3
4
Per Sir Thomas Bingham MR in Costellow v Somerset County Council [1993] 1 WLR
256, at 264. This is part of a passage of the judgment applied by the Singapore Court
of Appeal in The Tokai Mam [1998] 3 SLR 105, at 112.
Ibid.
For example, when he is not allowed to file an affidavit of the evidence in chief out of
time.
For example, when an extension of time is granted late in the proceedings and the
respondent is unable to respond in time or would have to substantially change his
case.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
3
he would suffer is the payment of costs. As will be seen, the courts have
not been consistent in their approach to the matter of extension.
The ‘limited context’ approach of justice certainly characterised the
English courts from the end of the nineteenth century to the 1950s, as
the following judicial pronouncements show. Bramwell LJ stated in
Atwood v Chichester:5
When sitting in chambers I have often heard it argued that when
irreparable mischief would be done by acceding to a tardy
application, it being a departure from ordinary practice, the person
who has failed to act within the proper time ought to be the sufferer,
but that in any other cases, the objection of lateness ought not to
be listened to and any injury caused by the delay may be
compensated for by the payment of costs. This I think a correct
view.
In Eaton v Storer,6 Jessel MR ruled that where a party is out of time (in
this case the plaintiff had not filed his reply within time) and, as a result,
faces judgment (for example, on admissions in the pleadings) or dismissal
of his action for want of prosecution,
the usual course is to give [him] time to take the next step upon his
paying costs, which is a sufficient punishment, and will prevent the
rules from becoming a dead letter. This course is not to be departed
from unless there is some special circumstance such as excessive
delay.
These principles also governed the approach of the local courts for much
of this century,7 and may continue to do so.8 However, there was a notable
shift in direction in England (albeit temporary) in the 1960s. In Revici v
Prentice Hall Inc,9 Lord Denning was prompted to say:
Nowadays we regard time very differently from the way they did in
the nineteenth century. We insist on the rules as to time being
observed. We have had occasion recently to dismiss many cases for
want of prosecution when people have not kept to the rules as to
time.10
5 (1878) 3 QBD 722 at p 723.
6 [1882] 22 Ch D 91, at 92.
7 See, for example, Khoo Hun Yeang & Ors v Khaw Joo Choe & Ors (1912) 2 MC 32
(High Court, Straits Settlements); Re David Broke, Decd [1937] MLJ 231 (Court of
Appeal, Straits Settlements); The China Tin Mines Rehabilitation Loans Board v Chee
Hoi Voon [1959] 1 MLJ 152 (Ipoh High Court); Thomas v Booty, Edwards & Partners
[1964] MLJ 359 (Federal Court including Wee Chong Jin CJ (Singapore) and Tan Ah
Tah FJ).
8 The more recent cases will be examined in the course of this article.
9 [1969] 1 All ER 772.
10 Ibid, at 773–774.
4
Singapore Academy of Law Journal
(1999)
Although Revici involved an application to extend time for service of a
notice of appeal, these comments obviously have general application.
Bramwell LJ”s pronouncement in Atwood11 (concerning an application
to set aside a judgment in default) that the injury caused by delay may
be compensated for by the payment of costs was regarded by Lord
Denning as outdated authority.12 Edmund Davies LJ agreed and rejected
the applicant’s argument (based on Atwood) that an application to extend
time should always be allowed if the delay has not caused the opposing
party ‘irreparable damage’.13 The learned judge also applied his comments
to rules prescribing time-limits throughout the course of proceedings.14
The Court of Appeal in Revici ruled that it was a requirement for the
party applying for an extension to offer a satisfactory explanation for the
delay, the reasons suiting the nature and the length of the delay.
Revici is one of the first cases to challenge the narrow approach of the
19th century cases. Its general proposition is that the court may, in the
absence of a satisfactory explanation for the delay, refuse to extend time
even if the opponent could be compensated in costs and would not be
prejudiced by such an extension. There is a recognition here that the
term justice in the context of the rule governing the extension of time
involves considerations beyond the ‘limited context’ just discussed.15 A
few years before Revici, Lord Guest stated in the Privy Council case of
Ratnam v Cumarasamy:16
The rules of court must, prima facie, be obeyed, and, in order to
justify a court in extending the time during which some step in
procedure requires to be taken, there must be some material on
which the court can exercise its discretion. If the law were otherwise,
a party in breach would have an unqualified right to an extension
of time which would defeat the purpose of the rules which is to
provide a time-table for the conduct of litigation.
As in Revici, this proposition appears to have been intended to apply to
proceedings in general even though the case concerned an application to
extend time for filing a document on appeal (in the case of Ratnam, the
record of appeal). However, the scope of applicability of the ‘satisfactory
explanation’ requirement has given rise to a disparity in judicial approach
in both England and Singapore which has yet to be fully resolved. The
11 Supra.
12 [1969] 1 All ER 772, at 773–774. As was Eaton v Storer (1882) 22 Ch D 91 (in which
the Atwood principle was accepted).
13 [1969] 1 All ER 772, at 774.
14 Ibid.
15 Supra.
16 [1965] 1 WLR 8, at 12.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
5
difficulty stems from Lord Guest’s statement about the ramifications of
Bramwell LJ’s pronouncement in Atwood:17
Their lordships note that these observations were made in reference
to a case where the application was to set aside a judgment by
default, which is on a different basis from an application to extend
the time for appealing. In the one case the litigant has had no trial
at all; in the other he has had a trial and lost.
In the author’s view, this statement gives rise to at least three possible
interpretations.18 Lord Guest may have been specifically concerned with
the comparison between the situation in which judgment has been given
against a party after adjudication of the merits (as when an appeal is
filed) and the situation in which a judgment in default has been entered
(in which case, there is no adjudication on the merits). Indeed, Atwood
concerned a successful application to extend the time for setting aside a
judgment in default. The rationale for the distinction is that a party who
has not had the benefit of adjudication on the merits should be treated
more leniently than the party who seeks to appeal from a judgment given
on the merits. The significance of this interpretation (interpretation (a))
is that the Atwood test only applies to applications to extend time to set
aside a judgment in default, and the stricter test in Ratnam applies to
other applications to extend time, including applications to appeal out of
time.
A broader interpretation (interpretation (b)) is that Lord Guest was
comparing the position of a party who seeks to appeal from a judgment
given on the merits and the position of a party who applies for an
extension of time in which to set aside a default judgment, or who faces
an interlocutory judgment without adjudication of the merits if his
application for an extension of time is not granted. For example, where
the party’s application to file or serve a statement of claim or defence
out of time is dismissed. This interpretation of Lord Guest’s statement
appears to be more just than interpretation (a) because there is really no
difference, from the applicant’s perspective, between a judgment in default
and any other judgment given or entered without adjudication on the
merits. He loses his case in both situations without having had the benefit
of a judicial determination on the substantive issues. Accordingly, it can
be argued that the same test should be used to determine an application
for extension whether it is to extend the time for setting aside the default
judgment or it is to extend time in which to take a step in the action the
refusal of which would result in an interlocutory judgment without
adjudication on the merits. The significance of this interpretation is that
17 The pronouncement is set out above.
18 Although, to the author’s knowledge, the possibility of these alternative interpretations
has never been judicially considered.
6
Singapore Academy of Law Journal
(1999)
the Atwood test extends to applications to extend time to set aside a
judgment in default as well as applications the dismissal of which would
result in an interlocutory judgment without adjudication on the merits,
and the stricter test in Ratnam applies to other applications to extend
time, including applications to appeal out of time.
A third interpretation (interpretation (c)), the broadest, is that Lord Guest
was distinguishing between the position of a party who seeks to appeal
from a judgment given after a trial and all other situations in which an
application is sought to extend time. In other words, Bramwell LJ’s
pronouncement in Atwood applies generally, whereas the strict test in
Ratnam applies only to the party applying for an extension of time in
which to appeal. As will be seen under a different heading, the Ratnam
criteria for appeals is well established and has been applied by the
Singapore courts in numerous cases.19
These suggested alternative interpretations of Lord Guest’s statement in
Ratnam have never been expressly considered by the courts in Singapore
or England. However, they have been manifested in the more recent
cases here. The Singapore High Court has on two occasions refused to
extend the time ordered by the court for filing the affidavits of the
evidence in chief of witnesses because of the party’s failure to satisfactorily
explain his non-compliance. In Kohap (Hong Kong) Ltd v Owners of the
ship or vessel ‘Endurance 1’ ex Tokai Maru (the Tokai Maru),20 the High
Court dismissed the third party’s application to the court to extend time
for the purpose of filing the affidavits of the evidence in chief of its
witnesses eight months beyond the expiry of the four-month period
ordered by the court. The court also struck out the defence of the third
party pursuant to a simultaneous application by the defendants. The
decision was based on Lord Guest’s statement in Ratnam v Cumarasamy,
which is repeated here for convenience:
The rules of court must, prima facie, be obeyed, and, in order to
justify a court in extending the time during which some step in
procedure requires to be taken, there must be some material on
which the court can exercise its discretion. If the law were otherwise,
a party in breach would have an unqualified right to an extension
of time which would defeat the purpose of the rules which is to
provide a time-table for the conduct of litigation.
The High Court regarded this statement as extending to non-compliance
generally, including the failure to abide by orders of court. The court
justified this proposition by pointing out that a more lenient approach
would defeat the purpose of the rules and open the way for ‘blithe
19 See ‘Application to extend time in which to appear’, at text from note 98.
20 Unreported judgment in Admiralty in rem No 7 of 1996.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
7
indifference’ resulting in a less effective administration of justice. The
High Court reached an identical conclusion in Auto Clean ‘N’ Shine
Services (a firm) v Eastern Publishing Associates Pte Ltd21 again in relation
to the extension of time for the party to file certain affidavits of the
evidence in chief.22 In both cases, the High Court applied Lord Guest’s
statement of principle generally. Indeed, in Auto Clean, the High Court
expressly stated: ‘a party asking the Court to exercise a discretionary
power in its favour must provide the Court with maximum possible
information’.
The Court of Appeal reversed the rulings of the High Court in both The
Tokai Maru and Auto Clean and allowed the applicants in the two cases
additional time in which to file their affidavits. However, the legal
conclusions of the Court of Appeal in these cases are not identical. In
the Tokai Maru,23 the Court of Appeal regarded Lord Guest’s statement
of principle as being limited to applications to appeal out of time:
Indeed, in Ratnam v Cumarasamy, Lord Guest expressly
distinguished the approach taken in that case from that taken in
Atwood on the following basis:
In the one case, the litigant has had no trial at all; in the other
he has had trial and lost.
It would therefore appear that the court adopts a more stringent
approach with respect to applications to appeal out of time as
compared to other applications to extend time. The instant case does
not involve an application to appeal out of time. It concerns an
application by the appellant to file an affidavit out of time, coupled
with an application by the respondents to strike out the appellants’
defence. As such, the approach taken in Ratnam v Cumarasamy
should not have been adopted.24
The Court of Appeal accepted counsel’s argument that Bramwell LJ’s
pronouncement in Atwood25 applied to the circumstances before the
court26 and followed the English Court of Appeal in Costellow v Somerset
County Council.27 Costellow involved an application for dismissal for want
of prosecution and a counter-application to extend the time for serving
the statement of claim.28 The Court of Appeal referred to the competing
21 Unreported judgment in suit 1709 of 1995.
22 All affidavits were ordered to be filed and exchanged by April, 1996. The applicant
applied to file additional affidavits two months later in June, 1996.
23 [1998] 3 SLR 105. The facts have been stated above.
24 Ibid, at paras 19 and 20.
25 Supra.
26 [1998] 3 SLR 105, at paras 18 and 19.
27 [1993] 1 WLR 256.
28 The initial passages in the Costellow judgment have been set out above. Other parts
of the judgment are considered in the course of this article.
8
Singapore Academy of Law Journal
(1999)
principles that the rules of court must be observed in order ‘to promote
the expeditious dispatch of litigation’ and that a party should not be
‘denied an adjudication of his claim on its merits because of procedural
default’.29 It also considered the applicable procedure where an application
to dismiss the action for want of prosecution is opposed by an application
to extend time.30 Having pointed out that the court would not dismiss an
action for want of prosecution unless the case is ‘special’ or the
circumstances are ‘exceptional,’31 it considered the basis of the court’s
discretion to extend time:
The approach to applications under Order 3, rule 5 should not in
most cases be very different. Save in special cases or exceptional
circumstances, it can rarely be appropriate, on an overall requirement
of what justice requires, to deny the plaintiff an extension (where
the denial will stifle his action) because of a procedural default which,
even if unjustifiable, has caused the defendant no prejudice for which
he cannot be compensated by an award of costs. In short, an
application under Order 3, rule 5 should ordinarily be granted where
the overall justice of the case requires that the action be allowed to
proceed.
The Court of Appeal in The Tokai Maru summarised the principles in
the context of the case before it:32
(a) Both the appellants’ application for extension of time and the
respondents’ application to strike out the appellants’ defence
are inextricably linked in that the appellants’ defence would
naturally be struck out if the application to extend time is
refused. Both applications should therefore be considered
together in determining what justice requires, and the case is
best viewed in the round.
(b) The rules of civil procedure guide the courts and litigants
towards the just resolution of the case and should of course be
adhered to. Nonetheless, a litigant should not be deprived of
his opportunity to dispute the plaintiff’s claims and have a
determination of the issues on the merits as a punishment for a
breach of these rules unless the other party has been made to
suffer prejudice which cannot be compensated for by an
appropriate order as to costs.
(c) Save in special cases or exceptional circumstances, it can rarely
be appropriate then, on an overall assessment of what justice
29 This part of the Costellow judgment is set out above.
30 This aspect of the case will be considered in a subsequent article concerning dismissal
for want of prosecution.
31 Ibid.
32 [1998] 3 SLR 105, at para 23.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
9
requires, to deny a defendant an extension of time where the
denial would have the effect of depriving him of his defence
because of a procedural default which, even if unjustified, has
caused the plaintiff no prejudice for which he cannot be
compensated by an award of costs.
Applying these principles to the facts, the Court of Appeal in The Tokai
Maru reversed the ruling of the High Court and allowed the application
for time to be extended. The court found that although the explanation
for the delay was unsatisfactory,33 the respondents would not suffer any
harm which could not be compensated for by costs.34 The application
was allowed in the absence of prejudice. It is clear from the decision of
the Court of Appeal in The Tokai Maru that the third interpretation of
Lord Guest’s pronouncement in Ratnam was adopted.35
This does not appear to have been the approach of the Court of Appeal
a year earlier in Auto Clean, also a case involving an application to file
affidavits of the evidence in chief beyond the period specified in the order
of court.36 Here, the Court of Appeal accepted as valid the pronouncement
of the judge below:
We respectfully agree with the learned judge on the following: that
all matters which must or can be dealt with in interlocutory
applications and which have not already been dealt with must be
included in the summons for directions, that a party seeking to
persuade the court to exercise its discretionary power must provide
adequate information; and that generally fault or neglect of a solicitor
in complying with the rules of court or court orders is not sufficient
reason for the court to grant an indulgence to the defaulting party.
Lastly, parties to litigation must comply with the rules and the orders
of court.37
Without referring to the cases governing extension of time, the Court of
Appeal appeared to endorse the requirement that a ‘satisfactory
explanation’ is required even in cases not involving an application for
extension to appeal out of time, thereby impliedly accepting a broader
application of the Ratnam test.38 Indeed, the Court of Appeal looked for
a satisfactory explanation for the delay and found, contrary to the view
of the judge below, that the explanation was ‘sufficient’ in the
circumstances.39 The Court of Appeal reversed the judge’s decision and
33
34
35
36
37
38
39
Ibid, at para 29.
Ibid, at para 31.
The suggested interpretations are set out in the text from notes 18 to 19.
[1997] 3 SLR 409. The case is cited above.
Ibid, at para 16.
Ie, beyond extensions to appeal out of time.
[1997] 3 SLR 409, at para 26.
10
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(1999)
allowed the extension of time on the basis that it was necessary in the
context of the trial process and would not prejudice the respondent.
Having endorsed the judge’s pronouncement,40 the Court of Appeal
continued:
That having [been] said, it must be appreciated that an order or
orders made under these rules at the interlocutory stage are not
immutable and certainly at that stage finality cannot be achieved.
With reference to complying with O 25, r 3, the court must always
be conscious of the fact that circumstances may and do arise which
result in parties being unable to name all their witnesses at the stage
of the summons for directions and, consequently, leave should be
given to allow the parties to introduce new witnesses subsequent to
the directions that have been given. There are multiple reasons for
this, such as the failure of the parties in giving proper or adequate
instructions to their solicitors at the initial stage, failure of the parties
and those advising them in properly weighing or assessing the
evidence, subsequent amendments to pleadings, discovery of evidence
relevant to the claim or defence or some other new development
arising. Whatever the case may be, we think that the courts should
not adopt an unusually rigid or restrictive approach in considering
the directions to be given concerning matters pertaining to the trial
or hearing. Instead, a balance should be struck between the need to
comply with the rules and the parties’ right to call witnesses whom
they deem necessary to establish their case. It may well be that the
additional evidence to be adduced by the parties may assist in
illuminating the issues before the court or result in the expeditious
disposal of the proceedings. If, however, it really turns out at the
trial that the evidence adduced is unnecessary, irrelevant or
vexatious, the trial judge is in full control and is in a position to
deal with the party adducing such evidence in an appropriate way,
such as by disallowing the evidence which is being elicited from the
witness and/or by an order as to costs. It must always be borne in
mind that the duty of the court is to examine all the evidence put
forward by the parties which is material and relevant to the dispute
between the parties and not to shut out potentially material and
relevant evidence by a strict adherence to the rules of civil
procedure.41
Reverting to this case, we saw no difficulty in...granting an extension
of time for [the witnesses] to file their affidavits of the evidence in
chief. The proceedings are still at a relatively early stage and no
prejudice would be caused to the defendants. In particular, the action
had not even been set down for trial, and clearly the defendants
would have sufficient time and opportunity to consider, and, if
40 See above.
41 Ibid, at para 17.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
11
necessary to respond to the evidence. There would thus be no
element of surprise. Quite the contrary, by placing all the necessary
and relevant evidence on record, the plaintiffs are acting consistently
with the guiding principle behind the scheme of requiring parties to
serve on each other affidavits of evidence in chief of the witnesses,
which is conveniently summed up by the phrase ‘placing the cards
on the table’.42
Although the Court of Appeal in Auto Clean did not specifically state
that it would not have granted the application for an extension in the
absence of a satisfactory application, the endorsement of the High Court’s
view to this effect indicates that such a requirement would normally be
required. It also appears from the judgment of the Court of Appeal that
an application for an extension of time at an interlocutory stage in respect
of matters occurring at trial may have to be considered more leniently in
view of the developments which may arise in the course of proceedings
after the court has made the order on the summons for directions. Lastly,
the issue of whether the extension of time would cause prejudice to the
opposing party is a vital factor in the exercise of the court’s discretion.
In Auto Clean, if the extension of time had been refused the defaulting
party would not have been able to give evidence vital to his case. If the
extension of time was granted, as it was in this case, the respondent would
not be prejudiced by the filing of the affidavits of the evidence in chief
out of time because he had sufficient time to respond.
To summarise, the Court of Appeal’s decisions in The Tokai Maru and
Auto Clean are consistent to the extent that the extension of time was
allowed in both cases on the basis that the respondent to the application
would not suffer prejudice. However, while the Court of Appeal in The
Tokai Maru did not regard a satisfactory explanation as necessary, the
Court of Appeal in Auto Clean accepted the High Court’s view that this
was an ordinary requirement (‘a party seeking to persuade the court to
exercise its discretionary power must provide adequate information...’).43
It does not appear from the report that Costellow was cited to the Court
of Appeal in Auto Clean for the proposition that a satisfactory explanation
is not a requirement for an extension of time. Little turned on this point
as the Court of Appeal in Auto Clean found that the explanation actually
given in the case was sufficient. The proposition that the stricter test in
Ratnam only applies to applications to appeal out of time was again
confirmed by the Court of Appeal in Lim Hwee Meng v Citadel Investment
Pte Ltd,44 a case concerning different principles governing the respondent’s
application to file his case out of time.
42 Ibid, at para 18.
43 [1997] 3 SLR 409, at 415. The relevant passage is cited in the text at note 37.
44 [1998] 3 SLR 601, at 610. Also see the unreported judgment of the High Court in
Stansfield Business International Pte Ltd t/a Stansfield School of Business v Vithya Sri
Sumathis (Small Claims Tribunal Appeal No 3/1998) to the same effect.
12
Singapore Academy of Law Journal
(1999)
Recent inconsistent decisions in England have exacerbated the uncertainty
of the law in this area. Indeed, the more liberal approach of the court in
Costellow, which was decided in 1993, has been ignored or rejected in a
number of subsequent cases which favour a stricter attitude. And the
latest authorities, in an effort to ward off the increasing confusion, have
proposed a guideline-based philosophy. As these cases are likely to be
considered by the Singapore courts in due course, a careful analysis of
the judgments is necessary.
The first significant case to be decided in this area after Costellow was
Savill v Southend Health Authority.45 The plaintiff sought an extension of
time (of only 5 days) to serve a notice of appeal against the dismissal of
his claim for want of prosecution. This was an interlocutory appeal, not
an appeal to extend time after a trial (adjudication on the merits), and
therefore not the class of case that the Singapore Court of Appeal in
Tokai Maru would have applied the strict criteria set out in Lord Guest’s
statement in Ratnam.46 The Court of Appeal in Savill applied Lord Guest’s
statement and refused the extension of time, despite the minimal period
of delay, in the absence of material on which the court could exercise its
discretion. Balcombe LJ said:
It seems to me that [Lord Guest’s] statement applies as much to a
minimal delay as it does to a substantial delay. Realistically, the
court may be satisfied with an explanation for a minimal delay, even
possibly forgetfulness, which it would not accept for substantial
period of delay. Nevertheless, there must be some material on which
the court can exercise its discretion.47
The decision is clear authority for the wider application of Lord Guest’s
statement in Ratnam, and it adopts a contrary approach to that advocated
in Costellow. The strict approach in Savil was also evident in Beachley
Property Ltd v Edgar 48 a decision of the English Court of Appeal. The
plaintiff applied for an extension to serve his witness statements (which
‘related to a major issue in the action’)49 12 days before the trial. The
reason given for the delay was a change in the plaintiff’s solicitor’s office.
Lord Woolf, who delivered the judgment of the court, found the
explanation unacceptable and said: ‘There could be no possible excuse
for the plaintiff not adducing that evidence at an earlier stage’. His
Lordship also ‘emphatically rejected’ the plaintiff’s argument that the court
is bound to allow an application to extend time unless the respondent
suffers prejudice as a result (in this case the defendant would not suffer
45
46
47
48
49
[1995] 1 WLR 1254.
See above.
[1995] 1 WLR 1254, at 1259. Mann LJ agreed.
[1996] TLR 436.
Ibid, at 436.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
13
prejudice by the late introduction of the statements). Having pointed out
that there must be a basis on which to allow an extension of time, Lord
Woolf went on to state that the court must consider the effect of the
default on the administration of justice:
One had to consider the position not only from the plaintiff’s point
of view, but from the defendant’s and also the point of view of
doing justice between other litigants as well.
... the proper and regular administration of business in general
before the courts should not be disrupted as a result of breaches of
the rules of the court which occurred without any justification
whatsoever. It was very important that the court’s resources should
be used as efficiently and effectively as possible. That was not
possible unless the parties co-operated; their co-operation involved
them obeying the rules of the court. Here they did not do so and
there was no explanation for it.
Beachley marks a vital development to the law governing the discretion
to extend time. The application to extend time is not to be determined
merely on the basis of a satisfactory explanation and/or whether the
respondent will suffer prejudice. The court will also consider the wider
consequences of delay on the legal process as a whole, a matter which
would be revisited with vigour two years later by the same learned Lord
Justice in Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd & Ors.50
In the intervening period, Beachley was to be distinguished or limited on
several occasions. In Letpak Ltd & Ors v Harris,51 the plaintiffs’
APOSTROPHE application to extend the time for exchanging witness
statements a month before the trial was allowed by the Court of Appeal.
As in Beachley, the application had been made just before trial.52 Waller
LJ, with whom Sir John May agreed, distinguished Beachley on the basis
that the rejection of the plaintiff’s application in that case did not prevent
him from going to trial, while in Letpak, the refusal of the application
would deprive the plaintiffs of a trial.53 Waller LJ made a number of
significant observations. In the first place, his Lordship pointed out that
the argument that a court was bound to extend time unless the extension
would prejudice the respondent had been rejected in Beachley. Secondly,
any prejudice suffered by the respondents as a result of the extension of
time ‘could largely be negatived’ because they had been partly responsible
for the delay by doing nothing. Thirdly, the report states that Waller LJ
‘was doubtful as to the legitimacy of that tactic in the modern era of co-
50 [1998] 2 All ER 181.
51 [1996] TLR 698.
52 The application was made on October 30, 1996. The trial had been set for a date in
November (the actual day is not specified in the report).
53 The reasons for this distinction are not stated in the report.
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(1999)
operation once a trial date had been fixed and directions given binding
both parties’. The learned Lord Justice is also reported to have said:
to deprive the applicants of a trial because of their solicitors’ failure
to recognise the importance of the rules relating to the exchange of
witness statements was too stern a punishment.
And in the next paragraph:
the wind of change was blowing fast and practitioners should be
aware of the decision in Beachley and what a close run thing it had
been in the present case.
It would seem54 from Letpak that the court weighed the harm that would
befall the plaintiffs if the extension were to be refused (deprivation of
trial) and the prejudice that the defendant would suffer if it were to be
allowed, and concluded in favour of the plaintiffs. Moreover, the failure
to comply with the rules of court did not justify the harm that the plaintiffs
would suffer. In the circumstances of the case, the plaintiffs’ position was
paramount.
In the series of cases so far considered, the courts have taken into account
various principles in the exercise of their discretion. The importance
attached to these principles has largely depended on the particular
circumstances of the case at hand. For example, in Beachley, the interest
in the effective administration of justice was given a higher priority than
in Letpak, in which the court was most concerned with the consequences
to the plaintiff. What had been lacking in these and other cases was a
comprehensive statement of all the factors which a court should bring to
mind in exercising its discretion and, to the extent possible, the priorities
involved. How does one reconcile the priority that compliance with the
rules of court is vital to the interest of the administration of justice with
the harm that the plaintiff would suffer if he is not able to proceed with
his case? What is the significance of the prejudice that the defendant
may suffer as a result of the extension? To what extent should the
defendant’s delay counter the consideration of prejudice he may suffer
by reason of the extension?
New guidelines
The first case to set down a comprehensive (but not exhaustive) list of
factors including particular priorities for the exercise of the court’s
discretion was The Mortgage Corporation Ltd v Sandoes, Blinkhorn &
Co & Gibson.55 The Court of Appeal provided guidelines for ‘the future
54 The brevity of the report makes it difficult to be certain.
55 [1996] TLR 751.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
15
approach which litigants can expect the court to adopt to the failure to
adhere to time limits contained in the rules or directions of the court’:
1. Time requirements laid down by the rules and directions given
by the court are not merely targets to be attempted; they are
rules to be observed.
2. At the same time the overriding principle is that justice must
be done.
3. Litigants are entitled to have their cases resolved with
reasonable expedition. Non-compliance with time limits can
cause prejudice to one or more of the parties to the litigation.
4. In addition the vacation or adjournment of the date of trial
prejudices other litigants and disrupts the administration of
justice.
5. Extensions of time which involve the vacation or adjournment
of trial dates should therefore be granted as a last resort.
6. Where time limits have not been complied with the parties
should co-operate in reaching an agreement as to new time limits
which will not involve the date of trial being postponed.
7. If they reach such an agreement they can ordinarily expect the
court to give effect to that agreement at the trial and it is not
necessary to make a separate application solely for this purpose.
8. The court will not look with favour on a party who seeks to
take tactical advantage from the failure of another party to
comply with time limits.
9. In the absence of an agreement as to a new timetable, an
application should be made promptly to the court for directions.
10. In considering whether to grant an extension of time to a party
who is in default, the court will look at all the circumstances
including the considerations identified above.
Guideline (1) emphasises the authority of the rules and the importance
of compliance with them. The intention of the guideline is to point out
that extensions are not obtainable as of right — time-limits ‘are not merely
targets to be attempted’. The guideline also applies to practice directions
which are equated with the rules for this purpose. It follows that if the
rules and directions are ‘to be observed,’ then non-compliance should be
satisfactorily explained. Any other interpretation would defeat the
objective of the guideline by rendering the rules and directions as ‘targets
to be attempted’ rather than authoritative statements ‘to be observed’.
Important though Guideline (1) is, it is not an overriding principle because
there may be circumstances in which the interest of justice (which is an
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overriding principle pursuant to guideline (2)) demands an extension of
time in the absence of a satisfactory explanation. Put another way,
although a satisfactory explanation is not a mandatory or threshold
requirement (in the sense that the court would dismiss the application
without any further consideration of the other circumstances),56 it is a
relevant factor to be taken into account in determining where the overall
justice of the case lies.57 The court may well find that despite a satisfactory
explanation, an extension of time would be in the interest of justice. This
approach reverses the position taken in Ratnam, Revici and Savil.58 The
guideline may also be regarded as modifying Costellow and the Tokai
Maru to the extent that these cases are interpreted to allow extensions
of time in the absence of a satisfactory explanation as long as the
respondent does not suffer prejudice. The issue of whether there is a
satisfactory explanation is now a relevant factor in any case irrespective
of its effect on the outcome of the application.
Guideline (2) sets out the overriding principle: ‘that justice must be done’.
This is the essential principle of Order 3, rule 4(1) and it been propounded
as such in Costellow and The Tokai Maru. In exercising its discretion on
this principle, the court will take into account all the factors set out in
Guidelines (1), (3) to (9) and (10), which directs the court to consider
‘all the circumstances’.59 In determining whether justice would be done,
the court would take into account the consequences which will befall the
applicant if the application for an extension of time is dismissed, and the
position of the respondent if the extension is granted. Accordingly,
Guideline (3) provides that ‘prejudice’ is a factor to be taken into account.
Normally, this is the prejudice which would be suffered by the respondent
to the application if the extension is granted.60 Guideline (8) is also
pertinent in this respect, for the court may take into account the conduct
of the respondent in determining whether he is responsible or partly
responsible for the harm which he claims he would suffer if the extension
is granted.61 Guideline (3) also provides that the litigants ‘are entitled to
have their cases resolved with reasonable expedition’. This links up with
Guideline 1, which protects the rights of the parties and other litigants to
have their cases progress according to the periods of time prescribed by
the rules. Accordingly, long delay would constitute a serious breach of
both Guidelines (1) and (3). It is not clear from these guidelines whether
56 The position taken in the cases of Ratnam, Revici and Savil (see above).
57 Also see to the same effect, Beachley and Letpak (above and below), Finnegan and
The Mortgage Corporation Ltd (below).
58 See above.
59 Guideline 10 is considered below.
60 For example, see Costellow and Tokai Maru, in which the respective courts ruled that
no prejudice would result.
61 For example, in Letpak (the case is considered above), the court ruled that any
prejudice suffered by the respondents as a result of the extension of time ‘could largely
be negatived’ because they had been partly responsible for the delay by doing nothing.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
17
long delay alone would constitute ‘prejudice’, but the inclusion of this
term in the same guideline which provides for the parties’ entitlement to
the resolution of their cases with ‘reasonable expedition’ would indicate
this to be the position.62
As Guideline (3) refers to ‘litigants’ as well as ‘the parties to the litigation,’
it may be inferred that the sentence ‘Litigants are entitled to have their
cases resolved with reasonable expedition’ includes both the parties and
other litigants. Therefore, Guideline (3) extends beyond the interest of
the parties to the effective operation of the administration of justice.
Similarly, Guidelines (4) and (5) pertain to the consequences of noncompliance on the administration of justice, a consideration which has
been strongly emphasised in recent cases.63 The guidelines stress that an
extension of time which involves the vacation or adjournment of a trial
date has a particularly serious effect on other litigants and disrupts the
administration of justice.64 Therefore, in these circumstances, the extension
should be granted as a last resort.65 It is interesting to note that the
concern for the administration of justice finds specific expression in 4 of
the 9 specific guidelines:66 guidelines (1), (3), (4) and (5).
The guidelines also focus on agreements to extend time. The parties are
encouraged to agree to new time-limits in the event of default by the
direction that the court will normally uphold such an agreement without
the need for an application to court. However the new time-limits should
not have the effect of postponing the trial. If an agreement is not possible,
the party seeking the extension should apply to the court as soon as
possible for directions.67
Lastly, Guideline (10) points out that the guidelines are not exhaustive
and that the court must look at all the circumstances of the case.
Nevertheless, the specific guidelines would cover the large majority of
circumstances which might arise in a case.
Subsequent developments
The first opportunity for considering the guidelines in The Mortgage
Corporation Ltd arose in Finnegan v Parkside Health Authority.68 In
Finnegan, the plaintiff failed to take any step in the proceedings for 25
62 Although this would not be the position in relation to an application to dismiss for
want of prosecution. Here, the principles of Birkett v James [1978] AC 297 require
actual prejudice to be shown, and not merely delay.
63 See Beachley (considered above) and Arbuthnot (considered above and below).
64 Guideline (4).
65 Guideline (5).
66 Guideline (10) is a general guideline.
67 See Guidelines (6), (7) and (9).
68 [1998] 1 All ER 595.
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months after serving a supplementary list of documents in the action.
She then served a notice of intention to proceed. The defendants applied
successfully to the court to dismiss the action for want of prosecution.
The plaintiff applied for leave to serve the notice of appeal 57 days after
the time limit had expired. The judge below dismissed the application as
the plaintiff failed to explain the delay. The judge ruled on the basis of
Revici69 and Savil 70 that a satisfactory explanation was a threshold
requirement,71 so that unless this was met, other circumstances of the
case such as the issue of prejudice could not be taken into account. The
Court of Appeal considered this interpretation of the law to be wrong
and remitted the case to the High Court for reconsideration in the light
of The Mortgage Corporation Ltd guidelines.
Hirst LJ, who delivered the judgment of the Court of Appeal in Finnegan,
agreed with the view taken by the Court of Appeal in The Mortgage
Corporation Ltd that the absence of a satisfactory explanation for the
delay did not automatically defeat the plaintiff’s application for an
extension of time. In The Mortgage Corporation Ltd, Millet LJ, who
delivered the judgment of the Court of Appeal, rejected ‘the argument
that the absence of a good reason was always and in itself sufficient to
justify the court in refusing to exercise its discretion’.72 In accepting this
conclusion, Hirst LJ regarded Savil to be incorrect and Revici and Ratnam
to have been ‘overtaken’ by the guideline approach in The Mortgage
Corporation Ltd. 73 However, Hirst LJ did indicate that ‘the very
considerable delay’ in Finnegan might justify an explanation and that its
absence may adversely affect her application on the basis of guideline
(1) of The Mortgage Corporation Ltd.74
Although Hirst LJ stated that ‘each application must be judged on its
own facts,’75 his Lordship’s judgment is susceptible of the interpretation
that a satisfactory explanation is only required in the case of exceptional
delay. This arises from the learned judge’s apparent indulgence towards
the plaintiff’s absolute disregard for the procedural time-limits: more than
two years of doing nothing and then seeking to appeal almost three
months beyond the expiry of the prescribed period. The learned Lord
Justice merely stated that the plaintiff was not ‘out of the wood’ and that
it was not certain that she would succeed in gaining her extension ‘on an
overall view’.76 Guideline (3) in The Mortgage Corporation Ltd, which
69 See text at note 9.
70 See text at note 46.
71 Ie, the court must have some material before it on which to exercise its discretion.
Also see Ratnam, above.
72 See [1996] TLR 751 and [1998] 1 All ER 595, at 605.
73 [1998] 1 All ER 595, at 605.
74 Ibid.
75 Ibid.
76 Ibid.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
19
concerns the interest of other litigants and the effective administration of
justice, is not even mentioned in relation to the extreme delay in Finnegan.
If guidelines (3) and (1) (concerning the observance of the rules) are to
be given proper effect, then the failure to provide a satisfactory
explanation must always be a consideration to be taken into account even
though the court may determine that this factor alone does not cause the
application to fail in the circumstances of the case.
A difficulty which arises out of Finnegan is that Hirst LJ equates the
principles governing the discretion to extend time established in Costellow
with the guidelines pronounced in the The Mortgage Corporation Ltd.
Yet, in Costellow the need for a satisfactory explanation for the delay
was wholly disregarded. The Court of Appeal in that case ruled that a
plaintiff should not be denied an extension on the basis ‘of a procedural
default which, even if unjustifiable, has caused the defendant no prejudice
for which he cannot be compensated by an award of costs’.77 In Costellow,
the overriding consideration was whether the respondent would have been
prejudiced by the extension. Prejudice only constitutes one of ten
guidelines in The Mortgage Corporation Ltd (as part of guideline (3)),
and it is not an overriding consideration but only a factor to be considered
in determining where the justice of the case lies (the overriding principle
in guideline (2)). In The Mortgage Corporation Ltd, four of the ten
guidelines specifically emphasise the importance of expedition in the
administration of justice,78 a consideration which was not expressly
considered by the Court of Appeal in Costellow when exercising its
discretion to extend time.79
It is surprising that The Mortgage Corporation Ltd, reported in 1996, has
yet to be considered by the Singapore courts. As already stated, the
Singapore Court of Appeal in The Tokai Maru applied Costellow and
ruled in favour of the application for extension even though it found the
explanation for the delay of 8 months to be unsatisfactory. As in
Costellow, the absence of prejudice to the respondent formed the basis
of the decision in The Tokai Maru. While the decision may have been
correct on the facts (because the plaintiff had much to lose if his
application for extension failed, whereas the defendant would not be
prejudiced by the extension), the court might have taken into account
77 [1993] 1 WLR 256, at 264. The extract of the judgment is set out above,
78 le, guidelines 1, 3, 4 and 5.
79 Although a reference is made in the earlier part of Bingham MR’s judgment (during
the discussion of the general principles governing defaults in procedure) to the public
interest in the expeditious dispatch of litigation (see above). The writer’s interpretation
of Costellow is confirmed by the Singapore Court of Appeal’s judgment in the Tokai
Maru (see above), in which (applying Costello) time was extended despite the
unacceptable explanation for the delay of nine months in filing the affidavit of the
evidence in chief. It is unclear why the Mortgage Corporation Ltd was not argued
before the Court of Appeal in the Tokai Maru.
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the broader considerations arising out of the guidelines in The Mortgage
Corporation Ltd, had the case been made available to it.
The Singapore position summarised80
The Court of Appeal in The Tokai Mam stated:
‘It would therefore appear that the court adopts a more stringent
approach with respect to applications to appeal out of time as
compared to other applications to extend time’.81
As has been said, this observation adopts the third and broadest of
interpretation of Lord Guest’s statement in Ratnam concerning the scope
of application of Bramwell LJ’s pronouncement in Atwood.82 It is well
established that the Singapore courts do take a more a ‘more stringent
approach’ (the requirement of a satisfactory explanation for the delay)
towards applications to appeal out of time.83 However, the distinction
between a stricter test for applications to appeal out of time and a more
lenient test (ie, the Atwood principle) for all other applications is not
obvious from the previous authorities, as shown by the High Court’s use
of the strict test in two recent cases involving applications to extend time
for the filing of affidavits of the evidence in chief,84 and the Court of
Appeal’s acceptance of the High Court’s pronouncement in Auto Clean
that ‘adequate information’ must be provided to the court in order for it
to exercise its discretion.85
The author has suggested two additional interpretations86 of Lord Guest’s
statement in Ratnam as alternatives to the route taken by the Court of
Appeal in The Tokai Maru. That is, his Lordship may have considered
that Bramwell LJ’s statement of principle in Atwood was only intended
to apply to applications:
(a) for an extension of time in which to set aside a judgment in
default; or
(b) to the situation in (a) and the situation in which the court’s
rejection of the application for an extension of time would result
80 The following summary of the Singapore position should assist the reader in considering
what impact The Mortgage Corporation Ltd guidelines would make if adopted here,
the subject of the next heading: ‘Questions concerning the application of the The
Mortgage Corporation Ltd guidelines in Singapore’.
81 [1998] 3 SLR 105, at 111. See text at note 24.
82 See text from note 18, where the three suggested interpretations are stated.
83 The principles governing an application to appeal out of time are considered in the
text from note 98.
84 Ie, In The Tokai Maru and Auto Clean. The High Court’s judgments in these cases
are considered in the text from note 20.
85 [1997] 3 SLR 409, at 415. The case is considered in the text from note 21.
86 The three possible interpretations are set out in the text from note 18.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
21
in an interlocutory judgment without a hearing on the
substantive issues.87
Examples of situations within (b) include an application to extend time
in which to file a statement of claim or a defence. The rationale of the
distinction between an application to appeal out of time and applications
within (a) and (b) is that unlike the party who seeks to appeal, the party
who faces a judgment without a hearing (whether by default or otherwise)
has not had the benefit of an adjudication on the substantive issues. That
is, the applicant would lose the whole case in both in the circumstances
of (a) and (b) without an adjudication on the substantive issues.
Accordingly, Lord Guest’s statement may be regarded as limiting the
application of the more lenient Atwood principle to (a) or (a) and (b),
while the ‘more stringent test’ would apply to appeals and other situations,
including applications to file affidavits of the evidence in chief out of
time. Although Lord Guest referred to appeals after trial, it could be
argued that there really is no basis for distinguishing between an
application for extension of time to appeal after trial and an application
to extend time to appeal against an interlocutory judgment. In both cases
the parties have had the benefit of a hearing on the substantive issues
and therefore the same test should be applied to both.88
The two alternative interpretations ((a) and (b)) do not accord with the
observation of the Court of Appeal in The Tokai Maru, which is consistent
with the interpretation that the Atwood principle applies generally (ie, in
these circumstances, the requirement of a satisfactory explanation
postulated in Ratnam would not be required), and that the ‘satisfactory
explanation’ requirement in Ratnam applies only to the party applying
for an extension of time in which to appeal.89 The position taken in The
Tokai Maru is certainly more consistent with the traditional position that
long delay which does not result in tangible prejudice, such as the
unavailability of witnesses or documentary evidence at trial, is not a basis
on which to dismiss an action for want of prosecution.90 There would
indeed be inconsistency if an application for an extension of time is
dismissed on the sole basis that no satisfactory explanation was offered
but an application for dismissal for want of prosecution fails because of
the absence of prejudice.91 Perhaps it is time for the rules governing
87 These are the first and second interpretations.
88 Indeed, in Savil the Ratnam test was applied to determine an application to extend
time to appeal against the dismissal of an action for want of prosecution.
89 Ie, the third interpretation (text at note 19). The criteria concerning an extension of
time in which to appeal are considered from note 98.
90 This is the second of two limbs governing the law of dismissal in Birkett v James
[1978] AC 297, a case which has been repeatedly applied by the Singapore courts.
91 It is assumed that the other grounds for dismissal of the action for want of prosecution
such as intentional and contumelious default (Birkett v James (above)), abuse of process
(Grovit & Ors v Doctor & Ors [1997] 2 All ER 417) and delay involving ‘complete,
total or wholesale regard’ of the rules (Choraria v Sethia 142 SJLB 53) do not apply.
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dismissal for want of prosecution to be revised as well in the interest of
the administration of justice.
Questions concerning the application of the The Mortgage Corporation
Ltd guidelines in Singapore
It remains to be seen whether The Mortgage Corporation Ltd guidelines
will be applied in Singapore. If they are adopted here, certain questions
would have to be resolved. It is stated in the report of The Mortgage
Corporation Ltd that the judgment of the Court of Appeal ‘is intended
to be of general import’.92 In Finnegan, the Court of Appeal expressed
the view that the guidelines applied to all applications made under Order
3, rule 5(1) (the provision corresponds to the Singapore Order 3, rule
4(1)).93
General applications to extend time
If the Singapore courts adopt the guidelines, they will have to determine
whether those guidelines apply to all applications made pursuant to Order
3, rule 4(1) (RC). The rule itself does not make distinctions between
different types of applications, a point accepted by the Court of Appeal
in Finnegan as favouring an extension of the guidelines across the board.94
The guidelines have already been considered,95 and it has been shown
that while the position taken in The Tokai Maru (following Costellow) is
generally consistent with the overriding principle that ‘justice must be
done’ (Guideline (2)) and was correct on the facts, courts in future may
look beyond the issue of whether the respondent would suffer prejudice
as a result of the extension (important though this consideration is) to
other circumstances set out in the guidelines including the avoidance of
delay in the interest of the general administration of justice. This was
certainly the approach of the English Court of Appeal in Arbuthnot
Latham Bank Ltd v Trafalgar Holdings Ltd & Ors,96 in which Lord Woolf
MR said:
In Birkett v James the consequence to other litigants and to the
courts of inordinate delay was not a consideration which was in issue.
From now on it is going to be a consideration of increasing
significance. Litigants and their legal advisers must therefore
recognise that any delay which occurs from now on will be assessed
not only from the point of view of the prejudice caused to the
particular litigants whose case it is, but also in relation to the effect
92 [1996] TLR 751, at 752.
93 The court also cited Costellow as support for this proposition. See [1998] 1 All ER
595, at 604–605.
94 [1998] 1 All ER 595, at 604.
95 See above, under the heading: ‘New guidelines’.
96 [1998] 2 All ER 181.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
23
it can have on other litigants who are wishing to have their cases
heard and the prejudice which is caused to the due administration
of civil justice. The existing rules do contain time limits which are
designed to achieve the disposal of litigation within a reasonable
time scale. Those rules should be observed.97
Application to extend time in which to appeal
The principles governing an application to appeal out of time were
established in Hau Khee Wee & Anor v Chua Kian Tong & Anor,98 and
have since been affirmed in a series of cases.99 In Hau Khee Wee, Chan
Sek Keong J applied Ratnam and certain other English authorities to the
effect that the court is required to take into account the following factors
in the exercise of its discretion:
(a) the length of the delay;
(b) the reasons for the delay;
(c) the chances of the appeal succeeding if the time for appealing
is extended; and
(d) the degree of prejudice to the would-be respondent if the
application is granted.
The Court of Appeal added in Pearson v Chen Chien Wen Edwin100 and
reiterated in Vettath v Vettath,101 that the ‘application should be on grounds
sufficient to persuade the court to show sympathy to him [the applicant]’.
In Bank of India v Rai Bahadur Singh & Anor,102 Judith Prakash JC, as
her Honour then was, pointed out that the third factor in Hau Khee Wee
& Anor v Chua Kian Tong & Anor103 — the chances of the appeal
succeeding – is to be applied ‘when an applicant wants to appeal after
the time limited for appealing has expired’. Here, no right of appeal is
acquired and the party who is successful at first instance has the benefit
of a final judgment which he would been deprived of if the application
to appeal out of time is allowed. In Bank of India v Rai Bahadur Singh,
the appeal documents had been filed in time, but the record of appeal
had not been served. As the appeal had been filed within the prescribed
97 Ibid, at 191. Also see QCD (M) Sdn Bhd (in liquidation) (Receivers and Managers
Appointed) v Wah Nam Plastic Industry Pte Ltd (Suit No 104 of 1996). Unreported
judgment of Judith Prakash J.
98 [1987] 2 MLJ 146.
99 See below.
100 [1991] 3 MLJ 208, at 212.
101 [1992] 1 SLR 1.
102 [1993] 2 SLR 592.
103 Cited above.
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period the appellant had acquired the right to appeal. In these
circumstances only factors (a), (b) and (d) would apply.104
There are significant differences between the principles enunciated in Hau
Khee Wee and the guidelines in The Mortgage Corporation Ltd. First,
with regard to Hau Khee Wee, the four factors constitute, in the words of
the Court of Appeal in Pearson, a ‘framework’ for the exercise of the
court’s discretion. They have been applied repeatedly by the courts in
relation to appeals.105 The approach of The Mortgage Corporation Ltd
guidelines is more flexible and takes into account all the circumstances
of the case (Guideline (10)). Secondly, the requirement that the court
takes into account the reasons for the delay imposes an obligation to
provide a satisfactory explanation. In The Mortgage Corporation Ltd,
although a satisfactory explanation for the delay is expected by guideline
(1), the failure of the applicant to provide it would not necessarily defeat
his application for an extension of time. It is merely a relevant factor to
be taken into account.106 Thirdly, the third factor in Hau Khee Wee —
the chances of the appeal succeeding (factor (c)) — is specifically
concerned with the appeal process. It has no counterpart in The Mortgage
Corporation Ltd guidelines, unless one considers this to be a circumstance
within guideline (10) which makes relevant ‘all the circumstances’ of the
case.
However, there are common elements in Hau Khee Wee and The
Mortgage Corporation Ltd. Factor (d) in Hau Khee Wee concerns
prejudice as does Guideline (3) in The Mortgage Corporation Ltd.
Guideline (2) in The Mortgage Corporation Ltd contemplates the
consideration of prejudice as part of the ‘overriding principle’ ‘that justice
must be done’. The interest of the administration of justice is also
preserved by factors (a) and (b) in Hau Khee Wee, which require the
court to consider the length of the delay and the reasons for it respectively.
Furthermore, the condition that the ‘application should be on grounds
sufficient to persuade the court to show sympathy to him [the applicant]’107
might be likened to the principle that the decision to extend time must
be in the interest of justice pursuant to Guideline (2) in The Mortgage
Corporation Ltd guidelines.
It may well be that the Singapore courts will determine that The Mortgage
Corporation Ltd guidelines are broad enough to embrace specific factors
such as the special criteria laid down in Hau Khee Wee. The court may
well accept that Guideline (2) (the overriding principle that justice must
be done) and Guideline (10) (any of the circumstances of the case may
104
105
106
107
[1993] 2 SLR 592, at pp 597–598.
See, for example, the cases mentioned in the preceding paragraph.
See the comments on guideline (1) above, under the heading, ‘New guidelines’.
See Pearson and Vettath, which are cited above.
11 S.Ac.L.J.
Principles Governing the Court’s Discretion to Extend Time
25
be taken into account) justify the retention of the special criteria laid
down in Hau Khee Wee because these are the criteria which ensure that
justice is done in the context of appeals out of time. The court might
consider that the special criteria governing the application for extension
of time in which to appeal should be retained on the basis that a distinctive
and stricter approach is required where a party has had the benefit of a
trial and lost.108 Such an interpretation might be opposed by the argument
that the The Mortgage Corporation Ltd guidelines do not recognise the
categorisation of situations in which an application for extension is made,
and that the spirit of the guidelines that common principles should govern
all applications to extend time (including appeals out of time) must be
observed. It should be said in this respect that the Court of Appeal in
Finnegan did not think that the cases emphasising the special treatment
of appeals in England (such as Ratnam, Revici and Savil)109 should stand
in the light of the guidelines.110 However, the court in Finnegan was not
itself concerned with an appeal.111
Conclusion
Important developments have taken place in Singapore in the course of
this decade which have impacted upon the progress of cases in the courts.
There has been a fundamental change in judicial approach towards the
control of proceedings in the interest of expedition and economy. The
pace at which a case proceeds is now carefully monitored by the courts
through the reform of specific rules, court administration and casemanagement. A whole new philosophy has emerged emphasising the
priority of avoiding delay in litigation. Although the law governing the
extension of time and dismissal for want of prosecution has a direct and
vital bearing on the time taken for a case to proceed through its various
stages, this is an area which has been left untouched by the reforms
presumably because the courts need to have a broad discretion to avoid
the injustice which may result from arbitrarily imposed time-limits.
Nevertheless, Waller LJ’s admonition in Letpak Ltd & Ors v Harris112
that ‘the wind of change was blowing fast’ in the direction of a greater
emphasis on the observance of the rules of court in the interest of the
general administration of justice appears to be as relevant today as it
108 Ie, the position taken by Lord Guest in Ratnam. See above.
109 These cases are discussed above.
110 [1998] 1 All ER 595, at 604–605. The Court of Appeal did not follow the case of
Douglas v Royal Bank of Scotland [1997] CA Transcript 895 (unreported) in which
the distinction between the treatment of appeals and other cases was maintained.
However, the court was not referred to The Mortgage Corporation Ltd guidelines.
Douglas v Royal Bank of Scotland is considered in Finnegan [1998] 1 AH ER 595, at
602–603.
111 The facts of Finnegan are considered set out in the text from note 68.
112 See text from note 51.
26
Singapore Academy of Law Journal
(1999)
was in 1996. The recent affirmation of the The Mortgage Corporation
Ltd guidelines (which include 4 guidelines directly concerned with
expedition in the interest of justice) in Finnegan and the statement of
Lord Woolf MR in Arbuthnot that the courts will ‘from now on’ be
assessing the effect of delay on the administration of justice113 chart the
course for the future in England. It is likely that the Singapore courts
will tread the same path.
JEFFREY PINSLER*
113 This part of Lord Woolf’s judgment is cited in the text from note 96.
*
LLB (L’pool); LLM (Cantab); Barrister (MT); Advocate and Solicitor (Singapore);
Assoc Professor Faculty of Law, National University of Singapore.