You are currently viewing Getting Away on Technicalities: Making Sense of the Justice/Injustice of Procedural Rules

Getting Away on Technicalities: Making Sense of the Justice/Injustice of Procedural Rules

Introduction

I would imagine that as long as litigation has been in existence, most clients look upon lawyers as theatre performers who are paid (too much, some would say) to conjure up such illusions as making the guilty appear blameless. In today’s age of iPads and Google, the well-informed client would know that the “trick” is in the way lawyers (the better-trained ones, at least) make use of procedural rules, and the lawyer’s “sleight of hand” is, naturally, their use of clever language to pull it all off.

But be it the Stone Age or the Technology Age, most people still believe that these clever lawyers can help get blatantly guilty clients off the hook on a procedural rule which will substantively cause an injustice.

Procedural Rules

The very function of procedural rules is as convoluted as the legal profession itself; strict adherence to the rules without exception is justified as a “must-have” to ensure that “justice must be seen to be done”. To the non-lawyer, these are technicalities which can be twisted into loopholes which allow wrongdoers to avoid paying for their sins. Submit the wrong form to apply for a claim, and your case gets struck out. Sue the wrong representative, and have your case thrown out the court window, or in more formal language, “dismissed with costs”.

A most “infamous” technicality found in our statutes is a procedural rule found in the Limitation Act (Cap 163); known technically as the “limitation of actions”, the rule states that legal claims that are not followed up on within a certain time (otherwise known as the “limitation period”)[ref]The limitation period is usually either 3 – or, if contractual, 6 – years in Singapore, depending on whether the claim is made under a contract or not.[/ref], the claimant will be barred from suing on the claim forever. It doesn’t matter that you had a valid reason for not bringing up the suit earlier. Never mind that you couldn’t afford the legal fees at the time. You simply will not be permitted to sue after the limitation period has expired, period.

At this point, I believe most people would see the above situation as a social injustice, since justice by the legal process should be accessible to rich and poor alike. Likewise, in a recent case, Ang Sin Hock v Khoo Eng Lin [2010] 3 SLR 179, the Court of Appeal made a commendable attempt to arrest the impression that procedural rules like limitation are meant to help parties at fault get off the hook.

Some warnings to non-lawyers before you start:

  1. The language will take some getting used to (i.e., you may experience some discomfort).
  2. I have tried my best to condense a 30-page judgment to the few paragraphs which you are now attempting to read.
  3. This is an outright attempt to showcase the court language with which lawyers and judges understand each other with, hence the considerably hefty fees we charge.

Facts of the Case

Ang Sin Hock’s case concerned the application of limitation to the claim which was brought by the Plaintiff more than 6 years after he was entitled to claim under contract. It was more than 6 years after the Defendant promised to pay for the Plaintiff’s loss of money by this contract claim. The contract concerned a deal in which the Plaintiff allowed the Defendant and some others to take and sell the Plaintiff’s stock of jewellery. The facts seemed to suggest that after the Defendant and his partners sold the jewellery, they kept the money and did not pay the Plaintiff’s share back to him.

At the High Court, the Defendant was able to get away with an argument that the limitation period had expired because the Plaintiff failed to bring his action within 6 years from the time he obtained his right to sue the Defendant.

The important dates in this case are as follows. The Defendant and his partners had earlier agreed to sell the jewellery and pay the Plaintiff by the end of 1999. As expected, the Defendant and partners failed to pay. The Plaintiff reported the matter to the police. On 6 January 2000, after the Defendant and partners were subjected to some police investigation, they wrote the Plaintiff an undertaking to pay the Plaintiff $270,725.00 by 29 February 2000. In return, it was tacitly understood that the Plaintiff would not sue the Defendant and his partners.

Despite this undertaking, no payments were made. The Plaintiff pressed for payment. The Defendant and friends asked for more time.

The last letter from the Defendant to the Plaintiff acknowledging that he owed the Plaintiff money was dated 12 April 2000. The trial judge did try to make use of this acknowledgement to “stop the clock”, which is to say that the 6 year limitation period only began to run from 12 April 2000. However, even on this date, the Plaintiff must file his claim by the last day of the 6-year period, ie 11 April 2006. He was late by 5 days, since the Writ of Summons was filed on 17 April 2006.

But the Court of Appeal, where the Plaintiff made one final effort to seek justice, found that there was a fresh or “collateral” contract which was made about 5 years and 364 days before the 6-year period. This contract is evidenced by the same letter from the Defendant (which was unsigned) dated 12 April 2000. However it was admitted in evidence as having been sent by the Defendant. The letter promised the Plaintiff that he will receive payment by a bank draft on 18 April 2000. The Court of Appeal then found that the Plaintiff acted on this by the Plaintiff’s letter to the Defendant dated 18 April 2000 asking the Defendant “how you will be delivering the (bank) draft to me today”.

Case Findings

It is important to note that in relation to the limitation issue, the Plaintiff’s Statement of Claim or Reply to the Defence (filed by the Defendant) did not ever mention that there was a “fresh”, or “collateral” contract. “Collateral contract” was only mentioned in the Plaintiff’s written argument, called “Appellant’s Case”.

The court notes an often-quoted section of another judgment, that of United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2 SLR(R) 425 (at [4]-[9]), as observations to consider “on the respective roles of – as well as relationship between – procedural and substantive justice”:

4 It is axiomatic that every party ought to have its day in court. This is the very embodiment of procedural justice. The appellation ‘procedural’ is important. Procedural justice is just one aspect of of the holistic ideal and concept of justice itself. In the final analysis, the achievement of a substantively just result or decision is the desideratum. It is more than that, however. It is not merely an ideal. It must be a practical outcome – at least as far as the court can aid in its attainment.
5 However, the court must be extremely wary of falling into the flawed approach to the effect that ‘the ends justify the means’. This ought never to be the case. The obsession with achieving a substantively fair and just outcome does not justify the utilisation of any and every means to achieve that objective. There must be fairness in the procedure or manner in which the final outcome is achieved.
6 Indeed, if the procedure is unjust, that will itself taint the outcome.
7 On the other hand, a just and fair procedure does not, in and of itself, ensure a just outcome. In other words, procedural fairness is a necessary but not sufficient condition for a fair and just result.
8 The quest for justice, therefore, entails a continuous need to balance the procedural with the substantive. More than that, it is a continuous attempt to ensure that both are integrated, as far as that is humanly possible. Both interact with each other. One cannot survive without the other. There must, therefore, be – as far as is possible – a fair and just procedure that leads to a fair and just result. This is not merely abstract theorising. It is the very basis of what the courts do – and ought to do. When in doubt, the courts would do well to keep these bedrock principles in mind. This is especially significant because, in many ways, this is how, I believe, laypersons perceive the administration of justice to be. The legitimacy of the law in their eyes must never be compromised. On the contrary, it should, as far as is possible,be enhanced.
9 It is true, however, that in the sphere of practical reality, there is often a tension between the need for procedural justice on the one hand and substantive justice on the other. The task of the court is to attempt, as I have pointed out in the preceding paragraph, to resolve this tension. There is a further task: it is to actually attempt, simultaneously, to integrate these two conceptions of justice in order that justice in its fullest orb may shine forth.

[emphasis in original]

After the idealistic language, the Court examined the rationale on the rules of limitation, reasoning that “the fresh contract, as we have found on the facts of the present proceedings, does not fall within the ambit of s 6(1)(a) of the Act (outside the limitation period, which would have prevented the court from hearing the Plaintiff’s claim) to begin with.” The court further quotes the Report of the Law Reform Committee of England and Wales entitled Limitation of Actions in Cases of Personal Injury (Cmnd 1829, 1962):

In considering what recommendations we should make … we have constantly borne in mind what we conceive to be the accepted function of the law of limitation. In the first place, it is intended to protect defendants from being vexed by stale claims relating to long-past incidents about which their records may no longer be in existence and as to which their witnesses, even if they are still available, may well have no accurate recollection. Secondly, we apprehend that the law of limitation is designed to encourage plaintiffs not to go to sleep on their rights but to institute proceedings as soon as it is reasonably possible for them to do so. … Thirdly, the law is intended to ensure that the person may with confidence feel that after a given time he may treat as being finally closed an incident which might have led to a claim against him.

The Court then went on to add that if the 6-year limitation period had expired past just one day (much less 5, since the suit was only brought up on 17 April 2006, 6 years and five days after a letter dated 12 April 2000 originally seen by the prior courts as the last contractual acknowledgment for the Defendant to pay the Plaintiff), the claim simply won’t stand. Sympathy has nothing to do with the failure of the process; such is procedural justice.

But didn’t sympathy lead the Court to discover the “fresh contract”, which was never mentioned at any time throughout the previous proceedings? The Court dedicated a substantial chunk of its judgment (a total of 9 paragraphs) in explanation, the gist of which follows:

79 We do emphasise, however, that our finding (is) on the particular facts of the present proceedings and – to that extent – ought not to be viewed (as we emphasise once again in a moment) as a blanket precedent for the all-too-easy “construction” of contracts by way of a modern rendition of the unprincipled “principle” that is often embodied in the (derogatory) proverbial reference to justice as measured by “the length of the Chancellor’s foot”[ref]Made in reference to 17th Century jurist John Selden’s 1689 book, Table-Talk (Edward Arber ed) (Archibald Constable & Co Ltd, English Reprints, 1905), which offers, “Equity is a Roguish thing, for Law we have a measure, know what to trust to, Equity is according to Conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. ’Tis all one as if they should make the Standard for the measure, we call a Chancellors Foot, what an uncertain measure would this be? One Chancellor has a long Foot, another a short Foot, a third an indifferent Foot. ’Tis the same thing in the Chancellors Conscience.”[/ref]. …
80 In a related vein, and perhaps more importantly, our finding is also based on all the legal ingredients necessary to constitute a valid contract. This is an important point because the relevant legal rules and principlesas applied, of course, to the specific facts – set the parameters as to whether or not a contract is formed in any given case; put simply, fresh contracts – and even collateral contracts, for that matter – cannot, as it were, be “conjured” out of “thin air”. Indeed, where the relevant legal criteria are not satisfied, the court concerned will certainly reject the argument in favour of a collateral (and/or fresh) contract in no uncertain terms…
81 Finally, as we have also noted, the fresh contract which we have found on the facts of the present proceedings does not – unlike many collateral contracts – create commercial uncertainty. However, like most collateral contracts generally, it does aid in achieving a substantively just and fair result.”

It seems much easier to just say, “we sympathise with the poor plainitff”, doesn’t it? Ah well… such is substantive justice.

Conclusion

Some moral to this story should be added as a reward for the patient reader. So here it is: if you have to go to court, you must engage a lawyer; a litigant who represents himself has a fool for a client. And since you must engage a lawyer, make sure to carry out some assessment to satisfy yourself that your chosen legal representative has the skills make a connection with the court, and to present a compelling case on where the justice of your case lies.

In that way, even if you think the charges or legal fees are high, it will be worth it because the courts will usually award the winning party with the costs of the action.

In the coming articles, I will try to make sense of the fees which are charged at Ong Tay & Partners, and how it connects with the work effort in presenting our client’s case.