JTJB Involved In Landmark Decision On “Unless Orders” (Mitora Pte Ltd v Agritrade International (Pte) Ltd [2013] SGCA 38)

TJB Legal Update February 2014

“Unless Orders” are orders by the Court requiring a party to comply with a particular direction within a given timeline, failing which the party will face sanction. Many times, this sanction would entail the striking out of the party’s action. While contributing to judicial efficiency, there is no doubt that an “Unless Order” is a draconian measure with potentially far-reaching consequences. Many parties have been deprived the opportunity of “having their day in Court” due to their refusal or inability to comply with an “Unless Order”.

Mitora Pte Ltd v Agritrade International (Pte) Ltd [2013] SGCA 38 (the “Mitora case”) is a landmark case which has gone some way in defining the ambit of the “Unless Order” in the Singapore Court system. JTJB took over conduct of the case only after the Plaintiff’s claim had been struck out by a Registrar below for failure to comply with a series of Unless Orders. A Judge did not allow the Plaintiff’s appeal in the High Court. The Plaintiff appealed to the Court of Appeal. The Court of Appeal allowed the Plaintiff’s appeal, holding that even though the Plaintiff had failed to comply with the “Unless Orders” made, it was plain that the Plaintiff had made best efforts to comply.

The Court of Appeal also discussed the “Juridical function of “Unless Orders”. The Court noted that while “Unless Orders” remain a potent tool for the efficient and prompt administration of justice, it was precisely because of the potency of “unless orders” that they must be used with due care.” Justice VK Rajah, in his eloquently delivered judgment noted that the “routine use of “unless orders” would be the forensic equivalent of using a sledgehammer to crack a walnut.”

The Court noted that the immediate purpose of an “Unless Order” is not to punish misconduct but to secure a fair trial in accordance with due process of law. The Court observed that the public interest in the timely delivery of justice does not necessitate all “unless orders” to carry a “nuclear payload”. The Court was entitled to look at all circumstances of the breach, including an evaluation of the efforts of parties and their solicitors to comply.

Finally, the Court suggested the following guidelines for the more scrupulous use of “unless orders”:

(a) “unless orders” stipulating the consequence of dismissal should not be given as a matter of course but as a last resort when the defaulter’s conduct is inexcusable;

(b) the conditions appended to “unless orders” should as far as possible be tailored to the prejudice which would be suffered should there be non-compliance; and

(c) other means of penalising contumelious (and contumacious) or persistent breaches are available, including but not limited to:

(i) awarding costs on an indemnity basis;
(ii) ordering the payment of the plaintiff’s claim or part thereof into court where the defaulting party is a defendant;
(iii) striking out relevant portions of the defaulting party’s statement of claim or defence rather than the whole;
(iv) barring the defaulting party from adducing certain classes of evidence or calling related witnesses; and
(v) raising adverse inferences against the defaulting party at trial.

Dato’ Peter Madhavan and Walter Ferix of JTJB represented the Plaintiff in the Mitora case.

Contributed By:

Walter Ferix Senior Associate walterferix@jtjb.com Walter was called to the Singapore Bar in 2007. His areas of practice include Commercial and General Litigation.