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PRINCIPLES GOVERNING THE COURT’S DISCRETION TOEXTEND TIME

Introduction

The purpose of this article is to examine the developments concerningthe 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 orabridge the period within which a person is required or authorisedby these Rules or by any judgment, order or direction, to do anyact in any proceedings.

The words ‘such terms as it thinks just’ signify that the court is to exerciseits discretion in order to achieve justice in the circumstances of the case.The rule does not express the specific considerations which the courtmay 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 mayconsider in the exercise of its discretion. It has been left to the courts todetermine 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 ofcompliance with the rules in the interest of the administration of justiceand the denial of justice which may result if a defaulting party is refusedan extension of time to do whatever is necessary to maintain his actionor defence. These competing principles and their significance have beenexpressed as follows:

The first principle is that the rules of court and the associated rulesof practice, devised in the public interest to promote the expeditiousdispatch of litigation, must be observed. The prescribed time limitsare not targets to be aimed at or expressions of pious hope butrequirements to be met. This principle is reflected in a series ofrules giving the court a discretion to dismiss on failure to complywith 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 principleis also reflected in the court’s inherent jurisdiction to dismiss forwant of prosecution.

The second principle is that a plaintiff should not in the ordinaryway be denied an adjudication of his claim on its merits because ofprocedural default, unless the default causes prejudice to his

11 S.Ac.L.J. Principles Governing the Court’s Discretion to Extend Time 1

opponent for which an award of costs cannot compensate. Thisprinciple is reflected in the general discretion to extend timeconferred by Ord 3, r 5, a discretion to be exercised in accordancewith the requirements of justice in the particular case. It is a principlealso reflected in the liberal approach generally adopted in relationto the amendment of pleadings.1

Neither of these principles is absolute. If the first principle wererigidly enforced, procedural default would lead to dismissal of actionswithout any consideration of whether the plaintiff’s default hadcaused prejudice to the defendant. But the court’s practice has beento treat the existence of such prejudice as a crucial, and often adecisive, matter. If the second principal were followed withoutexception, a well-to-do plaintiff willing and able to meet orders forcosts made against him could flout the rules with impunity, confidentthat he would suffer no penalty unless or until the defendant coulddemonstrate prejudice. This would circumscribe the very generaldiscretion conferred by Order 3, rule 5, and would indeed involve asubstantial rewriting of the rule.2

Justice in the traditional mould has been perceived in the context of theparties’ immediate interests in the litigation. If the application is rejectedso that the applicant is not able to continue with his action or maintainhis defence, or his case is seriously disadvantaged,3 then injustice mayresult because his substantive rights have been forfeited by his proceduralerror. On the other hand, the respondent would not suffer injustice unlessthe extension of time compromises his case or prejudices him.4 In thisbalancing exercise, justice is viewed in the ‘limited context’ of theconsequences befalling the applicant and respondent. In short, this meansthat an application for extension of time, if necessary to the applicant’scase, should be allowed unless the extension would prejudice therespondent. If he would not suffer prejudice then injustice would onlyoccur if the application is not allowed. This ‘limited context’ of justiceexcludes other factors which strive for recognition. One such factor isthe effect of delay on other litigants whose cases may have to proceedmore slowly as a result of the unnecessary use of court time. Anotherfactor is the dignity and authority of the rules which may be treated withimpunity if the defaulting party is confident that the most serious sanction

Per Sir Thomas Bingham MR in Costellow v Somerset County Council [1993] 1 WLR256, at 264. This is part of a passage of the judgment applied by the Singapore Courtof 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 oftime.For example, when an extension of time is granted late in the proceedings and therespondent is unable to respond in time or would have to substantially change hiscase.

2 Singapore Academy of Law Journal (1999)

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he would suffer is the payment of costs. As will be seen, the courts havenot been consistent in their approach to the matter of extension.

The ‘limited context’ approach of justice certainly characterised theEnglish courts from the end of the nineteenth century to the 1950s, asthe following judicial pronouncements show. Bramwell LJ stated inAtwood v Chichester:5

When sitting in chambers I have often heard it argued that whenirreparable mischief would be done by acceding to a tardyapplication, it being a departure from ordinary practice, the personwho 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 tobe listened to and any injury caused by the delay may becompensated for by the payment of costs. This I think a correctview.

In Eaton v Storer,6 Jessel MR ruled that where a party is out of time (inthis case the plaintiff had not filed his reply within time) and, as a result,faces judgment (for example, on admissions in the pleadings) or dismissalof his action for want of prosecution,

the usual course is to give [him] time to take the next step upon hispaying costs, which is a sufficient punishment, and will prevent therules from becoming a dead letter. This course is not to be departedfrom unless there is some special circumstance such as excessivedelay.

These principles also governed the approach of the local courts for muchof this century,7 and may continue to do so.8 However, there was a notableshift in direction in England (albeit temporary) in the 1960s. In Revici vPrentice Hall Inc,9 Lord Denning was prompted to say:

Nowadays we regard time very differently from the way they did inthe nineteenth century. We insist on the rules as to time beingobserved. We have had occasion recently to dismiss many cases forwant of prosecution when people have not kept to the rules as totime.10

(1878) 3 QBD 722 at p 723.[1882] 22 Ch D 91, at 92.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 ofAppeal, Straits Settlements); The China Tin Mines Rehabilitation Loans Board v CheeHoi 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 AhTah FJ).The more recent cases will be examined in the course of this article.[1969] 1 All ER 772.Ibid, at 773–774.


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Although Revici involved an application to extend time for service of anotice of appeal, these comments obviously have general application.Bramwell LJ”s pronouncement in Atwood11 (concerning an applicationto set aside a judgment in default) that the injury caused by delay maybe compensated for by the payment of costs was regarded by LordDenning as outdated authority.12 Edmund Davies LJ agreed and rejectedthe applicant’s argument (based on Atwood) that an application to extendtime should always be allowed if the delay has not caused the opposingparty ‘irreparable damage’.13 The learned judge also applied his commentsto rules prescribing time-limits throughout the course of proceedings.14

The Court of Appeal in Revici ruled that it was a requirement for theparty applying for an extension to offer a satisfactory explanation for thedelay, the reasons suiting the nature and the length of the delay.

Revici is one of the first cases to challenge the narrow approach of the19th century cases. Its general proposition is that the court may, in theabsence of a satisfactory explanation for the delay, refuse to extend timeeven if the opponent could be compensated in costs and would not beprejudiced by such an extension. There is a recognition here that theterm justice in the context of the rule governing the extension of timeinvolves considerations beyond the ‘limited context’ just discussed.15 Afew years before Revici, Lord Guest stated in the Privy Council case ofRatnam v Cumarasamy:16

The rules of court must, prima facie, be obeyed, and, in order tojustify a court in extending the time during which some step inprocedure requires to be taken, there must be some material onwhich the court can exercise its discretion. If the law were otherwise,a party in breach would have an unqualified right to an extensionof time which would defeat the purpose of the rules which is toprovide a time-table for the conduct of litigation.

As in Revici, this proposition appears to have been intended to apply toproceedings in general even though the case concerned an application toextend time for filing a document on appeal (in the case of Ratnam, therecord of appeal). However, the scope of applicability of the ‘satisfactoryexplanation’ requirement has given rise to a disparity in judicial approachin both England and Singapore which has yet to be fully resolved. The

Supra.[1969] 1 All ER 772, at 773–774. As was Eaton v Storer (1882) 22 Ch D 91 (in whichthe Atwood principle was accepted).[1969] 1 All ER 772, at 774.Ibid.Supra.[1965] 1 WLR 8, at 12.


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difficulty stems from Lord Guest’s statement about the ramifications ofBramwell LJ’s pronouncement in Atwood:17

Their lordships note that these observations were made in referenceto a case where the application was to set aside a judgment bydefault, which is on a different basis from an application to extendthe time for appealing. In the one case the litigant has had no trialat all; in the other he has had a trial and lost.

In the author’s view, this statement gives rise to at least three possibleinterpretations.18 Lord Guest may have been specifically concerned withthe comparison between the situation in which judgment has been givenagainst a party after adjudication of the merits (as when an appeal isfiled) and the situation in which a judgment in default has been entered(in which case, there is no adjudication on the merits). Indeed, Atwoodconcerned a successful application to extend the time for setting aside ajudgment in default. The rationale for the distinction is that a party whohas not had the benefit of adjudication on the merits should be treatedmore leniently than the party who seeks to appeal from a judgment givenon the merits. The significance of this interpretation (interpretation (a))is that the Atwood test only applies to applications to extend time to setaside a judgment in default, and the stricter test in Ratnam applies toother applications to extend time, including applications to appeal out oftime.

A broader interpretation (interpretation (b)) is that Lord Guest wascomparing the position of a party who seeks to appeal from a judgmentgiven on the merits and the position of a party who applies for anextension of time in which to set aside a default judgment, or who facesan interlocutory judgment without adjudication of the merits if hisapplication for an extension of time is not granted. For example, wherethe party’s application to file or serve a statement of claim or defenceout of time is dismissed. This interpretation of Lord Guest’s statementappears to be more just than interpretation (a) because there is really nodifference, from the applicant’s perspective, between a judgment in defaultand any other judgment given or entered without adjudication on themerits. He loses his case in both situations without having had the benefitof a judicial determination on the substantive issues. Accordingly, it canbe argued that the same test should be used to determine an applicationfor extension whether it is to extend the time for setting aside the defaultjudgment or it is to extend time in which to take a step in the action therefusal of which would result in an interlocutory judgment withoutadjudication on the merits. The significance of this interpretation is that

The pronouncement is set out above.Although, to the author’s knowledge, the possibility of these alternative interpretationshas never been judicially considered.


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the Atwood test extends to applications to extend time to set aside ajudgment in default as well as applications the dismissal of which wouldresult in an interlocutory judgment without adjudication on the merits,and the stricter test in Ratnam applies to other applications to extendtime, including applications to appeal out of time.

A third interpretation (interpretation (c)), the broadest, is that Lord Guestwas distinguishing between the position of a party who seeks to appealfrom a judgment given after a trial and all other situations in which anapplication is sought to extend time. In other words, Bramwell LJ’spronouncement in Atwood applies generally, whereas the strict test inRatnam applies only to the party applying for an extension of time inwhich to appeal. As will be seen under a different heading, the Ratnamcriteria for appeals is well established and has been applied by theSingapore courts in numerous cases.19

These suggested alternative interpretations of Lord Guest’s statement inRatnam have never been expressly considered by the courts in Singaporeor England. However, they have been manifested in the more recentcases here. The Singapore High Court has on two occasions refused toextend the time ordered by the court for filing the affidavits of theevidence in chief of witnesses because of the party’s failure to satisfactorilyexplain his non-compliance. In Kohap (Hong Kong) Ltd v Owners of theship or vessel ‘Endurance 1’ ex Tokai Maru (the Tokai Maru),20 the HighCourt dismissed the third party’s application to the court to extend timefor the purpose of filing the affidavits of the evidence in chief of itswitnesses eight months beyond the expiry of the four-month periodordered by the court. The court also struck out the defence of the thirdparty pursuant to a simultaneous application by the defendants. Thedecision 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 tojustify a court in extending the time during which some step inprocedure requires to be taken, there must be some material onwhich the court can exercise its discretion. If the law were otherwise,a party in breach would have an unqualified right to an extensionof time which would defeat the purpose of the rules which is toprovide a time-table for the conduct of litigation.

The High Court regarded this statement as extending to non-compliancegenerally, including the failure to abide by orders of court. The courtjustified this proposition by pointing out that a more lenient approachwould defeat the purpose of the rules and open the way for ‘blithe

See ‘Application to extend time in which to appear’, at text from note 98.Unreported judgment in Admiralty in rem No 7 of 1996.


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indifference’ resulting in a less effective administration of justice. TheHigh Court reached an identical conclusion in Auto Clean ‘N’ ShineServices (a firm) v Eastern Publishing Associates Pte Ltd21 again in relationto the extension of time for the party to file certain affidavits of theevidence in chief.22 In both cases, the High Court applied Lord Guest’sstatement of principle generally. Indeed, in Auto Clean, the High Courtexpressly stated: ‘a party asking the Court to exercise a discretionarypower in its favour must provide the Court with maximum possibleinformation’.

The Court of Appeal reversed the rulings of the High Court in both TheTokai Maru and Auto Clean and allowed the applicants in the two casesadditional time in which to file their affidavits. However, the legalconclusions of the Court of Appeal in these cases are not identical. Inthe Tokai Maru,23 the Court of Appeal regarded Lord Guest’s statementof principle as being limited to applications to appeal out of time:

Indeed, in Ratnam v Cumarasamy, Lord Guest expresslydistinguished the approach taken in that case from that taken inAtwood on the following basis:

In the one case, the litigant has had no trial at all; in the otherhe has had trial and lost.

It would therefore appear that the court adopts a more stringentapproach with respect to applications to appeal out of time ascompared to other applications to extend time. The instant case doesnot involve an application to appeal out of time. It concerns anapplication by the appellant to file an affidavit out of time, coupledwith an application by the respondents to strike out the appellants’defence. As such, the approach taken in Ratnam v Cumarasamyshould not have been adopted.24

The Court of Appeal accepted counsel’s argument that Bramwell LJ’spronouncement in Atwood25 applied to the circumstances before thecourt26 and followed the English Court of Appeal in Costellow v SomersetCounty Council.27 Costellow involved an application for dismissal for wantof prosecution and a counter-application to extend the time for servingthe statement of claim.28 The Court of Appeal referred to the competing

Unreported judgment in suit 1709 of 1995.All affidavits were ordered to be filed and exchanged by April, 1996. The applicantapplied to file additional affidavits two months later in June, 1996.[1998] 3 SLR 105. The facts have been stated above.Ibid, at paras 19 and 20.Supra.[1998] 3 SLR 105, at paras 18 and 19.[1993] 1 WLR 256.The initial passages in the Costellow judgment have been set out above. Other partsof the judgment are considered in the course of this article.


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principles that the rules of court must be observed in order ‘to promotethe expeditious dispatch of litigation’ and that a party should not be‘denied an adjudication of his claim on its merits because of proceduraldefault’.29 It also considered the applicable procedure where an applicationto dismiss the action for want of prosecution is opposed by an applicationto extend time.30 Having pointed out that the court would not dismiss anaction for want of prosecution unless the case is ‘special’ or thecircumstances are ‘exceptional,’31 it considered the basis of the court’sdiscretion to extend time:

The approach to applications under Order 3, rule 5 should not inmost cases be very different. Save in special cases or exceptionalcircumstances, it can rarely be appropriate, on an overall requirementof what justice requires, to deny the plaintiff an extension (wherethe denial will stifle his action) because of a procedural default which,even if unjustifiable, has caused the defendant no prejudice for whichhe cannot be compensated by an award of costs. In short, anapplication under Order 3, rule 5 should ordinarily be granted wherethe overall justice of the case requires that the action be allowed toproceed.

The Court of Appeal in The Tokai Maru summarised the principles inthe context of the case before it:32

This part of the Costellow judgment is set out above.This aspect of the case will be considered in a subsequent article concerning dismissalfor want of prosecution.Ibid.[1998] 3 SLR 105, at para 23.


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Both the appellants’ application for extension of time and therespondents’ application to strike out the appellants’ defenceare inextricably linked in that the appellants’ defence wouldnaturally be struck out if the application to extend time isrefused. Both applications should therefore be consideredtogether in determining what justice requires, and the case isbest viewed in the round.

The rules of civil procedure guide the courts and litigantstowards the just resolution of the case and should of course beadhered to. Nonetheless, a litigant should not be deprived ofhis opportunity to dispute the plaintiff’s claims and have adetermination of the issues on the merits as a punishment for abreach of these rules unless the other party has been made tosuffer prejudice which cannot be compensated for by anappropriate order as to costs.

Save in special cases or exceptional circumstances, it can rarelybe appropriate then, on an overall assessment of what justice

(a)

(b)

(c)

requires, to deny a defendant an extension of time where thedenial would have the effect of depriving him of his defencebecause of a procedural default which, even if unjustified, hascaused the plaintiff no prejudice for which he cannot becompensated by an award of costs.

Applying these principles to the facts, the Court of Appeal in The TokaiMaru reversed the ruling of the High Court and allowed the applicationfor time to be extended. The court found that although the explanationfor the delay was unsatisfactory,33 the respondents would not suffer anyharm which could not be compensated for by costs.34 The applicationwas allowed in the absence of prejudice. It is clear from the decision ofthe Court of Appeal in The Tokai Maru that the third interpretation ofLord Guest’s pronouncement in Ratnam was adopted.35

This does not appear to have been the approach of the Court of Appeala year earlier in Auto Clean, also a case involving an application to fileaffidavits of the evidence in chief beyond the period specified in the orderof court.36 Here, the Court of Appeal accepted as valid the pronouncementof the judge below:

We respectfully agree with the learned judge on the following: thatall matters which must or can be dealt with in interlocutoryapplications and which have not already been dealt with must beincluded in the summons for directions, that a party seeking topersuade the court to exercise its discretionary power must provideadequate information; and that generally fault or neglect of a solicitorin complying with the rules of court or court orders is not sufficientreason for the court to grant an indulgence to the defaulting party.Lastly, parties to litigation must comply with the rules and the ordersof court.37

Without referring to the cases governing extension of time, the Court ofAppeal appeared to endorse the requirement that a ‘satisfactoryexplanation’ is required even in cases not involving an application forextension to appeal out of time, thereby impliedly accepting a broaderapplication of the Ratnam test.38 Indeed, the Court of Appeal looked fora satisfactory explanation for the delay and found, contrary to the viewof the judge below, that the explanation was ‘sufficient’ in thecircumstances.39 The Court of Appeal reversed the judge’s decision and

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.


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allowed the extension of time on the basis that it was necessary in thecontext of the trial process and would not prejudice the respondent.Having endorsed the judge’s pronouncement,40 the Court of Appealcontinued:

That having [been] said, it must be appreciated that an order ororders made under these rules at the interlocutory stage are notimmutable and certainly at that stage finality cannot be achieved.With reference to complying with O 25, r 3, the court must alwaysbe conscious of the fact that circumstances may and do arise whichresult in parties being unable to name all their witnesses at the stageof the summons for directions and, consequently, leave should begiven to allow the parties to introduce new witnesses subsequent tothe directions that have been given. There are multiple reasons forthis, such as the failure of the parties in giving proper or adequateinstructions to their solicitors at the initial stage, failure of the partiesand those advising them in properly weighing or assessing theevidence, subsequent amendments to pleadings, discovery of evidencerelevant to the claim or defence or some other new developmentarising. Whatever the case may be, we think that the courts shouldnot adopt an unusually rigid or restrictive approach in consideringthe directions to be given concerning matters pertaining to the trialor hearing. Instead, a balance should be struck between the need tocomply with the rules and the parties’ right to call witnesses whomthey deem necessary to establish their case. It may well be that theadditional evidence to be adduced by the parties may assist inilluminating the issues before the court or result in the expeditiousdisposal of the proceedings. If, however, it really turns out at thetrial that the evidence adduced is unnecessary, irrelevant orvexatious, the trial judge is in full control and is in a position todeal with the party adducing such evidence in an appropriate way,such as by disallowing the evidence which is being elicited from thewitness and/or by an order as to costs. It must always be borne inmind that the duty of the court is to examine all the evidence putforward by the parties which is material and relevant to the disputebetween the parties and not to shut out potentially material andrelevant evidence by a strict adherence to the rules of civilprocedure.41

Reverting to this case, we saw no difficulty in...granting an extensionof time for [the witnesses] to file their affidavits of the evidence inchief. The proceedings are still at a relatively early stage and noprejudice would be caused to the defendants. In particular, the actionhad not even been set down for trial, and clearly the defendantswould have sufficient time and opportunity to consider, and, if


See above.Ibid, at para 17.

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necessary to respond to the evidence. There would thus be noelement of surprise. Quite the contrary, by placing all the necessaryand relevant evidence on record, the plaintiffs are acting consistentlywith the guiding principle behind the scheme of requiring parties toserve on each other affidavits of evidence in chief of the witnesses,which is conveniently summed up by the phrase ‘placing the cardson the table’.42

Although the Court of Appeal in Auto Clean did not specifically statethat it would not have granted the application for an extension in theabsence of a satisfactory application, the endorsement of the High Court’sview to this effect indicates that such a requirement would normally berequired. It also appears from the judgment of the Court of Appeal thatan application for an extension of time at an interlocutory stage in respectof matters occurring at trial may have to be considered more leniently inview of the developments which may arise in the course of proceedingsafter the court has made the order on the summons for directions. Lastly,the issue of whether the extension of time would cause prejudice to theopposing 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 defaultingparty would not have been able to give evidence vital to his case. If theextension of time was granted, as it was in this case, the respondent wouldnot be prejudiced by the filing of the affidavits of the evidence in chiefout of time because he had sufficient time to respond.

To summarise, the Court of Appeal’s decisions in The Tokai Maru andAuto Clean are consistent to the extent that the extension of time wasallowed in both cases on the basis that the respondent to the applicationwould not suffer prejudice. However, while the Court of Appeal in TheTokai Maru did not regard a satisfactory explanation as necessary, theCourt of Appeal in Auto Clean accepted the High Court’s view that thiswas an ordinary requirement (‘a party seeking to persuade the court toexercise its discretionary power must provide adequate information...’).43

It does not appear from the report that Costellow was cited to the Courtof Appeal in Auto Clean for the proposition that a satisfactory explanationis not a requirement for an extension of time. Little turned on this pointas the Court of Appeal in Auto Clean found that the explanation actuallygiven in the case was sufficient. The proposition that the stricter test inRatnam only applies to applications to appeal out of time was againconfirmed by the Court of Appeal in Lim Hwee Meng v Citadel InvestmentPte Ltd,44 a case concerning different principles governing the respondent’sapplication to file his case out of time.

Ibid, at para 18.[1997] 3 SLR 409, at 415. The relevant passage is cited in the text at note 37.[1998] 3 SLR 601, at 610. Also see the unreported judgment of the High Court inStansfield Business International Pte Ltd t/a Stansfield School of Business v Vithya SriSumathis (Small Claims Tribunal Appeal No 3/1998) to the same effect.


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Recent inconsistent decisions in England have exacerbated the uncertaintyof the law in this area. Indeed, the more liberal approach of the court inCostellow, which was decided in 1993, has been ignored or rejected in anumber of subsequent cases which favour a stricter attitude. And thelatest authorities, in an effort to ward off the increasing confusion, haveproposed a guideline-based philosophy. As these cases are likely to beconsidered by the Singapore courts in due course, a careful analysis ofthe judgments is necessary.

The first significant case to be decided in this area after Costellow wasSavill v Southend Health Authority.45 The plaintiff sought an extension oftime (of only 5 days) to serve a notice of appeal against the dismissal ofhis claim for want of prosecution. This was an interlocutory appeal, notan appeal to extend time after a trial (adjudication on the merits), andtherefore not the class of case that the Singapore Court of Appeal inTokai Maru would have applied the strict criteria set out in Lord Guest’sstatement in Ratnam.46 The Court of Appeal in Savill applied Lord Guest’sstatement and refused the extension of time, despite the minimal periodof delay, in the absence of material on which the court could exercise itsdiscretion. Balcombe LJ said:

It seems to me that [Lord Guest’s] statement applies as much to aminimal delay as it does to a substantial delay. Realistically, thecourt may be satisfied with an explanation for a minimal delay, evenpossibly forgetfulness, which it would not accept for substantialperiod of delay. Nevertheless, there must be some material on whichthe court can exercise its discretion.47

The decision is clear authority for the wider application of Lord Guest’sstatement in Ratnam, and it adopts a contrary approach to that advocatedin Costellow. The strict approach in Savil was also evident in BeachleyProperty Ltd v Edgar48 a decision of the English Court of Appeal. Theplaintiff applied for an extension to serve his witness statements (which‘related to a major issue in the action’)49 12 days before the trial. Thereason given for the delay was a change in the plaintiff’s solicitor’s office.Lord Woolf, who delivered the judgment of the court, found theexplanation unacceptable and said: ‘There could be no possible excusefor the plaintiff not adducing that evidence at an earlier stage’. HisLordship also ‘emphatically rejected’ the plaintiff’s argument that the courtis bound to allow an application to extend time unless the respondentsuffers prejudice as a result (in this case the defendant would not suffer

[1995] 1 WLR 1254.See above.[1995] 1 WLR 1254, at 1259. Mann LJ agreed.[1996] TLR 436.Ibid, at 436.


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prejudice by the late introduction of the statements). Having pointed outthat there must be a basis on which to allow an extension of time, LordWoolf went on to state that the court must consider the effect of thedefault on the administration of justice:

One had to consider the position not only from the plaintiff’s pointof view, but from the defendant’s and also the point of view ofdoing justice between other litigants as well.

... the proper and regular administration of business in generalbefore the courts should not be disrupted as a result of breaches ofthe rules of the court which occurred without any justificationwhatsoever. It was very important that the court’s resources shouldbe used as efficiently and effectively as possible. That was notpossible unless the parties co-operated; their co-operation involvedthem obeying the rules of the court. Here they did not do so andthere was no explanation for it.

Beachley marks a vital development to the law governing the discretionto extend time. The application to extend time is not to be determinedmerely on the basis of a satisfactory explanation and/or whether therespondent will suffer prejudice. The court will also consider the widerconsequences of delay on the legal process as a whole, a matter whichwould be revisited with vigour two years later by the same learned LordJustice in Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd & Ors.50

In the intervening period, Beachley was to be distinguished or limited onseveral occasions. In Letpak Ltd & Ors v Harris,51 the plaintiffs’APOSTROPHE application to extend the time for exchanging witnessstatements a month before the trial was allowed by the Court of Appeal.As in Beachley, the application had been made just before trial.52 WallerLJ, with whom Sir John May agreed, distinguished Beachley on the basisthat the rejection of the plaintiff’s application in that case did not preventhim from going to trial, while in Letpak, the refusal of the applicationwould deprive the plaintiffs of a trial.53 Waller LJ made a number ofsignificant observations. In the first place, his Lordship pointed out thatthe argument that a court was bound to extend time unless the extensionwould prejudice the respondent had been rejected in Beachley. Secondly,any prejudice suffered by the respondents as a result of the extension oftime ‘could largely be negatived’ because they had been partly responsiblefor 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-

[1998] 2 All ER 181.[1996] TLR 698.The application was made on October 30, 1996. The trial had been set for a date inNovember (the actual day is not specified in the report).The reasons for this distinction are not stated in the report.


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operation once a trial date had been fixed and directions given bindingboth parties’. The learned Lord Justice is also reported to have said:

to deprive the applicants of a trial because of their solicitors’ failureto recognise the importance of the rules relating to the exchange ofwitness statements was too stern a punishment.

And in the next paragraph:

the wind of change was blowing fast and practitioners should beaware of the decision in Beachley and what a close run thing it hadbeen in the present case.

It would seem54 from Letpak that the court weighed the harm that wouldbefall the plaintiffs if the extension were to be refused (deprivation oftrial) and the prejudice that the defendant would suffer if it were to beallowed, and concluded in favour of the plaintiffs. Moreover, the failureto comply with the rules of court did not justify the harm that the plaintiffswould suffer. In the circumstances of the case, the plaintiffs’ position wasparamount.

In the series of cases so far considered, the courts have taken into accountvarious principles in the exercise of their discretion. The importanceattached to these principles has largely depended on the particularcircumstances of the case at hand. For example, in Beachley, the interestin the effective administration of justice was given a higher priority thanin Letpak, in which the court was most concerned with the consequencesto the plaintiff. What had been lacking in these and other cases was acomprehensive statement of all the factors which a court should bring tomind in exercising its discretion and, to the extent possible, the prioritiesinvolved. How does one reconcile the priority that compliance with therules of court is vital to the interest of the administration of justice withthe harm that the plaintiff would suffer if he is not able to proceed withhis case? What is the significance of the prejudice that the defendantmay suffer as a result of the extension? To what extent should thedefendant’s delay counter the consideration of prejudice he may sufferby reason of the extension?

New guidelines

The first case to set down a comprehensive (but not exhaustive) list offactors including particular priorities for the exercise of the court’sdiscretion was The Mortgage Corporation Ltd v Sandoes, Blinkhorn &Co & Gibson.55 The Court of Appeal provided guidelines for ‘the future

The brevity of the report makes it difficult to be certain.[1996] TLR 751.


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Guideline (1) emphasises the authority of the rules and the importanceof compliance with them. The intention of the guideline is to point outthat extensions are not obtainable as of right — time-limits ‘are not merelytargets to be attempted’. The guideline also applies to practice directionswhich are equated with the rules for this purpose. It follows that if therules and directions are ‘to be observed,’ then non-compliance should besatisfactorily explained. Any other interpretation would defeat theobjective of the guideline by rendering the rules and directions as ‘targetsto be attempted’ rather than authoritative statements ‘to be observed’.

Important though Guideline (1) is, it is not an overriding principle becausethere may be circumstances in which the interest of justice (which is an


approach which litigants can expect the court to adopt to the failure toadhere to time limits contained in the rules or directions of the court’:

Time requirements laid down by the rules and directions givenby the court are not merely targets to be attempted; they arerules to be observed.

At the same time the overriding principle is that justice mustbe done.

Litigants are entitled to have their cases resolved withreasonable expedition. Non-compliance with time limits cancause prejudice to one or more of the parties to the litigation.

In addition the vacation or adjournment of the date of trialprejudices other litigants and disrupts the administration ofjustice.

Extensions of time which involve the vacation or adjournmentof trial dates should therefore be granted as a last resort.

Where time limits have not been complied with the partiesshould co-operate in reaching an agreement as to new time limitswhich will not involve the date of trial being postponed.

If they reach such an agreement they can ordinarily expect thecourt to give effect to that agreement at the trial and it is notnecessary to make a separate application solely for this purpose.

The court will not look with favour on a party who seeks totake tactical advantage from the failure of another party tocomply with time limits.

In the absence of an agreement as to a new timetable, anapplication should be made promptly to the court for directions.

In considering whether to grant an extension of time to a partywho is in default, the court will look at all the circumstancesincluding the considerations identified above.

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

overriding principle pursuant to guideline (2)) demands an extension oftime in the absence of a satisfactory explanation. Put another way,although a satisfactory explanation is not a mandatory or thresholdrequirement (in the sense that the court would dismiss the applicationwithout any further consideration of the other circumstances),56 it is arelevant factor to be taken into account in determining where the overalljustice of the case lies.57 The court may well find that despite a satisfactoryexplanation, an extension of time would be in the interest of justice. Thisapproach reverses the position taken in Ratnam, Revici and Savil.58 Theguideline may also be regarded as modifying Costellow and the TokaiMaru to the extent that these cases are interpreted to allow extensionsof time in the absence of a satisfactory explanation as long as therespondent does not suffer prejudice. The issue of whether there is asatisfactory explanation is now a relevant factor in any case irrespectiveof 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 propoundedas such in Costellow and The Tokai Maru. In exercising its discretion onthis principle, the court will take into account all the factors set out inGuidelines (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 theapplicant if the application for an extension of time is dismissed, and theposition 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 respondentto the application if the extension is granted.60 Guideline (8) is alsopertinent in this respect, for the court may take into account the conductof the respondent in determining whether he is responsible or partlyresponsible for the harm which he claims he would suffer if the extensionis granted.61 Guideline (3) also provides that the litigants ‘are entitled tohave their cases resolved with reasonable expedition’. This links up withGuideline 1, which protects the rights of the parties and other litigants tohave their cases progress according to the periods of time prescribed bythe rules. Accordingly, long delay would constitute a serious breach ofboth Guidelines (1) and (3). It is not clear from these guidelines whether

The position taken in the cases of Ratnam, Revici and Savil (see above).Also see to the same effect, Beachley and Letpak (above and below), Finnegan andThe Mortgage Corporation Ltd (below).See above.Guideline 10 is considered below.For example, see Costellow and Tokai Maru, in which the respective courts ruled thatno prejudice would result.For example, in Letpak (the case is considered above), the court ruled that anyprejudice suffered by the respondents as a result of the extension of time ‘could largelybe negatived’ because they had been partly responsible for the delay by doing nothing.


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61

long delay alone would constitute ‘prejudice’, but the inclusion of thisterm in the same guideline which provides for the parties’ entitlement tothe resolution of their cases with ‘reasonable expedition’ would indicatethis 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 theircases resolved with reasonable expedition’ includes both the parties andother litigants. Therefore, Guideline (3) extends beyond the interest ofthe parties to the effective operation of the administration of justice.Similarly, Guidelines (4) and (5) pertain to the consequences of non-compliance on the administration of justice, a consideration which hasbeen strongly emphasised in recent cases.63 The guidelines stress that anextension of time which involves the vacation or adjournment of a trialdate has a particularly serious effect on other litigants and disrupts theadministration of justice.64 Therefore, in these circumstances, the extensionshould be granted as a last resort.65 It is interesting to note that theconcern for the administration of justice finds specific expression in 4 ofthe 9 specific guidelines:66 guidelines (1), (3), (4) and (5).

The guidelines also focus on agreements to extend time. The parties areencouraged to agree to new time-limits in the event of default by thedirection that the court will normally uphold such an agreement withoutthe need for an application to court. However the new time-limits shouldnot 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 aspossible for directions.67

Lastly, Guideline (10) points out that the guidelines are not exhaustiveand that the court must look at all the circumstances of the case.Nevertheless, the specific guidelines would cover the large majority ofcircumstances which might arise in a case.

Subsequent developments

The first opportunity for considering the guidelines in The MortgageCorporation Ltd arose in Finnegan v Parkside Health Authority.68 InFinnegan, the plaintiff failed to take any step in the proceedings for 25

Although this would not be the position in relation to an application to dismiss forwant of prosecution. Here, the principles of Birkett v James [1978] AC 297 requireactual prejudice to be shown, and not merely delay.See Beachley (considered above) and Arbuthnot (considered above and below).Guideline (4).Guideline (5).Guideline (10) is a general guideline.See Guidelines (6), (7) and (9).[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 appliedsuccessfully to the court to dismiss the action for want of prosecution.The plaintiff applied for leave to serve the notice of appeal 57 days afterthe time limit had expired. The judge below dismissed the application asthe plaintiff failed to explain the delay. The judge ruled on the basis ofRevici69 and Savil70 that a satisfactory explanation was a thresholdrequirement,71 so that unless this was met, other circumstances of thecase such as the issue of prejudice could not be taken into account. TheCourt of Appeal considered this interpretation of the law to be wrongand remitted the case to the High Court for reconsideration in the lightof 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 MortgageCorporation Ltd that the absence of a satisfactory explanation for thedelay did not automatically defeat the plaintiff’s application for anextension of time. In The Mortgage Corporation Ltd, Millet LJ, whodelivered the judgment of the Court of Appeal, rejected ‘the argumentthat the absence of a good reason was always and in itself sufficient tojustify the court in refusing to exercise its discretion’.72 In accepting thisconclusion, Hirst LJ regarded Savil to be incorrect and Revici and Ratnamto have been ‘overtaken’ by the guideline approach in The MortgageCorporation Ltd.73 However, Hirst LJ did indicate that ‘the veryconsiderable delay’ in Finnegan might justify an explanation and that itsabsence 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 itsown facts,’75 his Lordship’s judgment is susceptible of the interpretationthat a satisfactory explanation is only required in the case of exceptionaldelay. This arises from the learned judge’s apparent indulgence towardsthe plaintiff’s absolute disregard for the procedural time-limits: more thantwo years of doing nothing and then seeking to appeal almost threemonths beyond the expiry of the prescribed period. The learned LordJustice merely stated that the plaintiff was not ‘out of the wood’ and thatit was not certain that she would succeed in gaining her extension ‘on anoverall view’.76 Guideline (3) in The Mortgage Corporation Ltd, which

See text at note 9.See text at note 46.Ie, the court must have some material before it on which to exercise its discretion.Also see Ratnam, above.See [1996] TLR 751 and [1998] 1 All ER 595, at 605.[1998] 1 All ER 595, at 605.Ibid.Ibid.Ibid.


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concerns the interest of other litigants and the effective administration ofjustice, is not even mentioned in relation to the extreme delay in Finnegan.If guidelines (3) and (1) (concerning the observance of the rules) are tobe given proper effect, then the failure to provide a satisfactoryexplanation must always be a consideration to be taken into account eventhough the court may determine that this factor alone does not cause theapplication to fail in the circumstances of the case.

A difficulty which arises out of Finnegan is that Hirst LJ equates theprinciples governing the discretion to extend time established in Costellowwith the guidelines pronounced in the The Mortgage Corporation Ltd.Yet, in Costellow the need for a satisfactory explanation for the delaywas wholly disregarded. The Court of Appeal in that case ruled that aplaintiff should not be denied an extension on the basis ‘of a proceduraldefault which, even if unjustifiable, has caused the defendant no prejudicefor which he cannot be compensated by an award of costs’.77 In Costellow,the overriding consideration was whether the respondent would have beenprejudiced by the extension. Prejudice only constitutes one of tenguidelines in The Mortgage Corporation Ltd (as part of guideline (3)),and it is not an overriding consideration but only a factor to be consideredin determining where the justice of the case lies (the overriding principlein guideline (2)). In The Mortgage Corporation Ltd, four of the tenguidelines specifically emphasise the importance of expedition in theadministration of justice,78 a consideration which was not expresslyconsidered by the Court of Appeal in Costellow when exercising itsdiscretion to extend time.79

It is surprising that The Mortgage Corporation Ltd, reported in 1996, hasyet to be considered by the Singapore courts. As already stated, theSingapore Court of Appeal in The Tokai Maru applied Costellow andruled in favour of the application for extension even though it found theexplanation for the delay of 8 months to be unsatisfactory. As inCostellow, the absence of prejudice to the respondent formed the basisof the decision in The Tokai Maru. While the decision may have beencorrect on the facts (because the plaintiff had much to lose if hisapplication for extension failed, whereas the defendant would not beprejudiced by the extension), the court might have taken into account

[1993] 1 WLR 256, at 264. The extract of the judgment is set out above,le, guidelines 1, 3, 4 and 5.Although a reference is made in the earlier part of Bingham MR’s judgment (duringthe discussion of the general principles governing defaults in procedure) to the publicinterest in the expeditious dispatch of litigation (see above). The writer’s interpretationof Costellow is confirmed by the Singapore Court of Appeal’s judgment in the TokaiMaru (see above), in which (applying Costello) time was extended despite theunacceptable explanation for the delay of nine months in filing the affidavit of theevidence in chief. It is unclear why the Mortgage Corporation Ltd was not arguedbefore the Court of Appeal in the Tokai Maru.


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the broader considerations arising out of the guidelines in The MortgageCorporation 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 stringentapproach with respect to applications to appeal out of time ascompared to other applications to extend time’.81

As has been said, this observation adopts the third and broadest ofinterpretation of Lord Guest’s statement in Ratnam concerning the scopeof application of Bramwell LJ’s pronouncement in Atwood.82 It is wellestablished that the Singapore courts do take a more a ‘more stringentapproach’ (the requirement of a satisfactory explanation for the delay)towards applications to appeal out of time.83 However, the distinctionbetween a stricter test for applications to appeal out of time and a morelenient test (ie, the Atwood principle) for all other applications is notobvious from the previous authorities, as shown by the High Court’s useof the strict test in two recent cases involving applications to extend timefor the filing of affidavits of the evidence in chief,84 and the Court ofAppeal’s acceptance of the High Court’s pronouncement in Auto Cleanthat ‘adequate information’ must be provided to the court in order for itto exercise its discretion.85

The author has suggested two additional interpretations86 of Lord Guest’sstatement in Ratnam as alternatives to the route taken by the Court ofAppeal in The Tokai Maru. That is, his Lordship may have consideredthat Bramwell LJ’s statement of principle in Atwood was only intendedto apply to applications:

(a) for an extension of time in which to set aside a judgment indefault; or

(b) to the situation in (a) and the situation in which the court’srejection of the application for an extension of time would result

The following summary of the Singapore position should assist the reader in consideringwhat impact The Mortgage Corporation Ltd guidelines would make if adopted here,the subject of the next heading: ‘Questions concerning the application of the TheMortgage Corporation Ltd guidelines in Singapore’.[1998] 3 SLR 105, at 111. See text at note 24.See text from note 18, where the three suggested interpretations are stated.The principles governing an application to appeal out of time are considered in thetext from note 98.Ie, In The Tokai Maru and Auto Clean. The High Court’s judgments in these casesare considered in the text from note 20.[1997] 3 SLR 409, at 415. The case is considered in the text from note 21.The three possible interpretations are set out in the text from note 18.


80

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84

8586

in an interlocutory judgment without a hearing on thesubstantive issues.87

Examples of situations within (b) include an application to extend timein which to file a statement of claim or a defence. The rationale of thedistinction between an application to appeal out of time and applicationswithin (a) and (b) is that unlike the party who seeks to appeal, the partywho faces a judgment without a hearing (whether by default or otherwise)has not had the benefit of an adjudication on the substantive issues. Thatis, the applicant would lose the whole case in both in the circumstancesof (a) and (b) without an adjudication on the substantive issues.Accordingly, Lord Guest’s statement may be regarded as limiting theapplication 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 oftime. Although Lord Guest referred to appeals after trial, it could beargued that there really is no basis for distinguishing between anapplication for extension of time to appeal after trial and an applicationto extend time to appeal against an interlocutory judgment. In both casesthe parties have had the benefit of a hearing on the substantive issuesand therefore the same test should be applied to both.88

The two alternative interpretations ((a) and (b)) do not accord with theobservation of the Court of Appeal in The Tokai Maru, which is consistentwith the interpretation that the Atwood principle applies generally (ie, inthese circumstances, the requirement of a satisfactory explanationpostulated in Ratnam would not be required), and that the ‘satisfactoryexplanation’ requirement in Ratnam applies only to the party applyingfor an extension of time in which to appeal.89 The position taken in TheTokai Maru is certainly more consistent with the traditional position thatlong delay which does not result in tangible prejudice, such as theunavailability of witnesses or documentary evidence at trial, is not a basison which to dismiss an action for want of prosecution.90 There wouldindeed be inconsistency if an application for an extension of time isdismissed on the sole basis that no satisfactory explanation was offeredbut an application for dismissal for want of prosecution fails because ofthe absence of prejudice.91 Perhaps it is time for the rules governing

These are the first and second interpretations.Indeed, in Savil the Ratnam test was applied to determine an application to extendtime to appeal against the dismissal of an action for want of prosecution.Ie, the third interpretation (text at note 19). The criteria concerning an extension oftime in which to appeal are considered from note 98.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.It is assumed that the other grounds for dismissal of the action for want of prosecutionsuch 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.


8788

89

90

91

dismissal for want of prosecution to be revised as well in the interest ofthe administration of justice.

Questions concerning the application of the The Mortgage CorporationLtd guidelines in Singapore

It remains to be seen whether The Mortgage Corporation Ltd guidelineswill be applied in Singapore. If they are adopted here, certain questionswould have to be resolved. It is stated in the report of The MortgageCorporation Ltd that the judgment of the Court of Appeal ‘is intendedto be of general import’.92 In Finnegan, the Court of Appeal expressedthe view that the guidelines applied to all applications made under Order3, rule 5(1) (the provision corresponds to the Singapore Order 3, rule4(1)).93

General applications to extend time

If the Singapore courts adopt the guidelines, they will have to determinewhether those guidelines apply to all applications made pursuant to Order3, rule 4(1) (RC). The rule itself does not make distinctions betweendifferent types of applications, a point accepted by the Court of Appealin Finnegan as favouring an extension of the guidelines across the board.94

The guidelines have already been considered,95 and it has been shownthat while the position taken in The Tokai Maru (following Costellow) isgenerally consistent with the overriding principle that ‘justice must bedone’ (Guideline (2)) and was correct on the facts, courts in future maylook beyond the issue of whether the respondent would suffer prejudiceas a result of the extension (important though this consideration is) toother circumstances set out in the guidelines including the avoidance ofdelay in the interest of the general administration of justice. This wascertainly the approach of the English Court of Appeal in ArbuthnotLatham Bank Ltd v Trafalgar Holdings Ltd & Ors,96 in which Lord WoolfMR said:

In Birkett v James the consequence to other litigants and to thecourts of inordinate delay was not a consideration which was in issue.From now on it is going to be a consideration of increasingsignificance. Litigants and their legal advisers must thereforerecognise that any delay which occurs from now on will be assessednot only from the point of view of the prejudice caused to theparticular litigants whose case it is, but also in relation to the effect

[1996] TLR 751, at 752.The court also cited Costellow as support for this proposition. See [1998] 1 All ER595, at 604–605.[1998] 1 All ER 595, at 604.See above, under the heading: ‘New guidelines’.[1998] 2 All ER 181.


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it can have on other litigants who are wishing to have their casesheard and the prejudice which is caused to the due administrationof civil justice. The existing rules do contain time limits which aredesigned to achieve the disposal of litigation within a reasonabletime 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 wereestablished in Hau Khee Wee & Anor v Chua Kian Tong & Anor,98 andhave since been affirmed in a series of cases.99 In Hau Khee Wee, ChanSek Keong J applied Ratnam and certain other English authorities to theeffect that the court is required to take into account the following factorsin the exercise of its discretion:

Ibid, at 191. Also see QCD (M) Sdn Bhd (in liquidation) (Receivers and ManagersAppointed) v Wah Nam Plastic Industry Pte Ltd (Suit No 104 of 1996). Unreportedjudgment of Judith Prakash J.[1987] 2 MLJ 146.See below.[1991] 3 MLJ 208, at 212.[1992] 1 SLR 1.[1993] 2 SLR 592.Cited above.


the length of the delay;

the reasons for the delay;

the chances of the appeal succeeding if the time for appealingis extended; and

the degree of prejudice to the would-be respondent if theapplication is granted.

The Court of Appeal added in Pearson v Chen Chien Wen Edwin100 andreiterated in Vettath v Vettath,101 that the ‘application should be on groundssufficient to persuade the court to show sympathy to him [the applicant]’.In Bank of India v Rai Bahadur Singh & Anor,102 Judith Prakash JC, asher Honour then was, pointed out that the third factor in Hau Khee Wee& Anor v Chua Kian Tong & Anor103 — the chances of the appealsucceeding – is to be applied ‘when an applicant wants to appeal afterthe time limited for appealing has expired’. Here, no right of appeal isacquired and the party who is successful at first instance has the benefitof a final judgment which he would been deprived of if the applicationto 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 appealhad not been served. As the appeal had been filed within the prescribed

(a)

(b)

(c)

(d)

97

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period the appellant had acquired the right to appeal. In thesecircumstances only factors (a), (b) and (d) would apply.104

There are significant differences between the principles enunciated in HauKhee Wee and the guidelines in The Mortgage Corporation Ltd. First,with regard to Hau Khee Wee, the four factors constitute, in the words ofthe Court of Appeal in Pearson, a ‘framework’ for the exercise of thecourt’s discretion. They have been applied repeatedly by the courts inrelation to appeals.105 The approach of The Mortgage Corporation Ltdguidelines is more flexible and takes into account all the circumstancesof the case (Guideline (10)). Secondly, the requirement that the courttakes into account the reasons for the delay imposes an obligation toprovide 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 defeathis application for an extension of time. It is merely a relevant factor tobe taken into account.106 Thirdly, the third factor in Hau Khee Wee —the chances of the appeal succeeding (factor (c)) — is specificallyconcerned with the appeal process. It has no counterpart in The MortgageCorporation Ltd guidelines, unless one considers this to be a circumstancewithin guideline (10) which makes relevant ‘all the circumstances’ of thecase.

However, there are common elements in Hau Khee Wee and TheMortgage Corporation Ltd. Factor (d) in Hau Khee Wee concernsprejudice as does Guideline (3) in The Mortgage Corporation Ltd.Guideline (2) in The Mortgage Corporation Ltd contemplates theconsideration of prejudice as part of the ‘overriding principle’ ‘that justicemust be done’. The interest of the administration of justice is alsopreserved by factors (a) and (b) in Hau Khee Wee, which require thecourt to consider the length of the delay and the reasons for it respectively.Furthermore, the condition that the ‘application should be on groundssufficient to persuade the court to show sympathy to him [the applicant]’107

might be likened to the principle that the decision to extend time mustbe in the interest of justice pursuant to Guideline (2) in The MortgageCorporation Ltd guidelines.

It may well be that the Singapore courts will determine that The MortgageCorporation Ltd guidelines are broad enough to embrace specific factorssuch as the special criteria laid down in Hau Khee Wee. The court maywell accept that Guideline (2) (the overriding principle that justice mustbe done) and Guideline (10) (any of the circumstances of the case may

[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.


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be taken into account) justify the retention of the special criteria laiddown in Hau Khee Wee because these are the criteria which ensure thatjustice is done in the context of appeals out of time. The court mightconsider that the special criteria governing the application for extensionof time in which to appeal should be retained on the basis that a distinctiveand stricter approach is required where a party has had the benefit of atrial and lost.108 Such an interpretation might be opposed by the argumentthat the The Mortgage Corporation Ltd guidelines do not recognise thecategorisation of situations in which an application for extension is made,and that the spirit of the guidelines that common principles should governall applications to extend time (including appeals out of time) must beobserved. It should be said in this respect that the Court of Appeal inFinnegan did not think that the cases emphasising the special treatmentof appeals in England (such as Ratnam, Revici and Savil)109 should standin the light of the guidelines.110 However, the court in Finnegan was notitself concerned with an appeal.111

Conclusion

Important developments have taken place in Singapore in the course ofthis decade which have impacted upon the progress of cases in the courts.There has been a fundamental change in judicial approach towards thecontrol of proceedings in the interest of expedition and economy. Thepace at which a case proceeds is now carefully monitored by the courtsthrough the reform of specific rules, court administration and case-management. A whole new philosophy has emerged emphasising thepriority of avoiding delay in litigation. Although the law governing theextension of time and dismissal for want of prosecution has a direct andvital bearing on the time taken for a case to proceed through its variousstages, this is an area which has been left untouched by the reformspresumably because the courts need to have a broad discretion to avoidthe 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 greateremphasis on the observance of the rules of court in the interest of thegeneral administration of justice appears to be as relevant today as it

Ie, the position taken by Lord Guest in Ratnam. See above.These cases are discussed above.[1998] 1 All ER 595, at 604–605. The Court of Appeal did not follow the case ofDouglas v Royal Bank of Scotland [1997] CA Transcript 895 (unreported) in whichthe 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, at602–603.The facts of Finnegan are considered set out in the text from note 68.See text from note 51.


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was in 1996. The recent affirmation of the The Mortgage CorporationLtd guidelines (which include 4 guidelines directly concerned withexpedition in the interest of justice) in Finnegan and the statement ofLord Woolf MR in Arbuthnot that the courts will ‘from now on’ beassessing the effect of delay on the administration of justice113 chart thecourse for the future in England. It is likely that the Singapore courtswill tread the same path.

JEFFREY PINSLER*

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.


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