Court of Appeal, Singapore

Kulasekaram J, Lai Kew Chai J, Abdul Wahab Ghows J

Civil Appeal No. 79 of 1982

2 October 1984

KEYWORDS

Bill of lading – Hague-Rules Art. III(6) one-year time limit – Amendment after time limit – Addition of new cause of action by adding another bill into the claim, after time limit – Order 20 rr 5(2) and 5(5) of the Rules of the Supreme Court 1970

FACTS

A cargo claimant sued the carrier in respect of four bills of ladings, numbered KKS 1, KKS 3, KKS 31 and KKS 32. The suit was filed within the Hague-Rules Art. III(6) one-year time limit. After the time had set in, the claimant sought to amend the claim by adding one more bill, number KKS 33, under Order 20 rr 5(2) and 5(5) of the Rules of the Supreme Court 1970. The High Court disallowed the addition. Hence, the appeal by the cargo claimant to the Court of Appeal

HELD (BY COURT OF APPEAL – UNANIMOUSLY)

1. Generally, all amendments should be allowed ‘for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings’

• For an amendment to be allowed after time had set in, two conditions must be satisfied. First, it was a genuine mistake. Second, the mistake did not cause any misleading or doubt as to cause any reasonable doubt as to what the litigation was about in fact in the mind of the other party.

• The facts about the bill KKS 33 cannot be inferred from the original claim in any way.

• Hence, adding the bill KKS 33 will not satisfy Order 20 rr. 5(2) and 5(5) providing for addition of a cause of action after time has set in, namely “the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.”

• Accordingly, appeal dismissed.

OBSERVATION

The Rules of the Supreme Court 1970, in Order 20 rr. 5(2) and5(5), was the same as the current Rules of Court in Singapore (and Rules of Court 2012 in Malaysia). The rules read as follows:

(2) Where an application to the court for leave to make the amendment mentioned in paragraphs (3), (4) and (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

Overview by ARUN KASI