Judgment

M.T. Chang FJ

(delivering the judgment of the Court)

1. This appeal clearly involves the proper construction and application of Ord.8 r 1 Rules of the Supreme Court. In its pertinent parts, it reads as follows:

   No original writ of summons shall be in force for more than twelve months from the day of the date including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of the twelve months, apply to the court or a judge for leave to renew the writ; and the court or judge, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reasons, may order that the original or concurrent writ of summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed writ .... and a writ of summons so renewed shall remain in force and be available to prevent the operation of any written law, whereby the time for the commencement of the action may be limited, and for all other purposes from the date of the issuing of the original writ of summons.

2. As has been observed in Hume v Somerton (1890) 25 QBD 239 this order is a complete code on the subject.

3. The life of a writ of summons is 12 months, unless served within this period or if not served, renewed. For the purpose of renewal, the plaintiff must satisfy the requirements set on him by this ride. He must first apply during the currency of the writ, that is before the expiration of the year, including the day of the issue of the writ. If he does so, he must also give good reasons for the failure to serve the writ within the pendancy of its life.

4. The writ of summons taken out by the respondents as plaintiffs in this case was not served on the named defendants within 12 months of the issue. But a scant fortnight before the end of this period of 12 months, the respondents applied ex parte for renewal of the writ. The order was made on the day before the writ expired. On being served with the writ and the order for its renewal, the appellants applied by summons in chambers to set aside the service and the order for the renewal on the grounds that “service of the writ is barred by limitation” and that renewal of the writ was not made for good reason. There was a further application in the alternative for stay, which in the light of the decision of this court, we need not deal with. The application to set aside was heard by the Senior Assistant Registrar who dismissed it and whose decision was upheld by the learned judge in Penang.

5. From that decision the appellants appeal to this court.

6. It is obvious that though the first ground was stated to be that service was barred by limitation, what was contended was that renewal of the writ would revive a cause of action that would otherwise have been barred. The cause of action, in this claim for breach of contract and for negligence in the carriage or custody of goods in a ship, accrued on 3 November 1973 and would be barred one year later. On 31 October 1974 the respondents caused the writ to be issued, and on 17 October 1975 filed the summons in chambers for renewal. The order was made on 30 October 1975 that is, one day before its life had run out. The cause of action which would have become statute-barred on 3 November 1974, was kept alive by the writ and after 30 October 1975 by the order to renew the writ. The obvious complaint of the appellants was therefore the order for renewal had revived or kept alive a cause of action that would have become statute-barred but for it, and that was to deprive them of a defence that would otherwise have been available to them.

7. The note in the 1963 Annual Practice at page 92 reads:

   Although the court has power to enlarge the time under Ord.64 r 7, the practice is not to do so after the expiration of twelve months from the date of the writ, or of six months from the date of the last renewal, where, but for such enlargement of time, the plaintiff’s claim would be barred.

   Mallal’s Supreme Court Practice (4th Ed) at page 57 carries a note to the same effect:

   The court ought not to exercise its discretion to renew a writ when the renewal would deprive a defendant of the benefit of the plea of limitation which had accrued.

   With respect, the note in Mallal’s Supreme Court Practice is perhaps not as precise as that in the White Book.

8. The case law mentioned to both in the White Book and in Mallal’s Supreme Court Practice referred to applications for renewal after expiry of the writ. Doyle v Kaufman, (1877) 3 QBD 7 Hewlett v Barr, [1891] 1 QB 98, Sheldon v Brown Bayley’s Steel Works Ltd & Dawnays Ltd (1853) 2 QB 392, Battersby v Anglo-American Oil Co Ltd [1945] 1 KB 23 and The Espanoleto [1920] P 223 are all cases in which applications to renew the writ were made after the 12 months period of its pendency.

9. Firm of TARCT v Firm of SNSSRN  [1954] MLJ 72 CA is another such case, as is E Ltd v C [1959] 1 WLR 692 cited in Mallal’s Supreme Court Practice.

10. The common factor in all these cases that at the application for renewal the writ had expired, time had started to run again and had run out as against the applicant and in favour of the defendant, means, with respect and in our view, that the benefit of the defence of limitation had become available to the defence. In this circumstance, the court did not normally renew the writ, unless for some reasons such as the case of a concurrent writ where the writ of summons had been renewed, Smalpage v Tonge, (1886) 17 QBD 644 or the relative unawareness of s 8 Maritime Convention Act, The Espanoleto, supra, or unless the court can regard the omission as procedural as in Holman v George Elloitt & Co Ltd [1944] KB 591.

11. But when the application was made during the life of the writ, the same objection could not prevail, as limitation had not become operative.

12. The learned judge thought that since the application for renewal was made before the expiry of the limitation period, the defence of limitation had not arisen. With respect, we agree, but we would add that the jurisdiction of the court to enlarge the time, even if the application is made within 12 months of the date of issue, is not to be exercised in all cases and indiscriminately. We agree, with respect, with Lord Goddard LJ (as he then was) in Battersby v Anglo-American Oil Co Ltd, supra, at pages 32–33 that

    .... even when an application for renewal of a writ is made within twelve months of the date of issue, the jurisdiction given by the rule ought to be exercised with caution. It is the duty of a plaintiff who issues a writ to serve it promptly, and renewal is certainly not to be granted as of course on an application which is necessarily made ex parte. In every case care should be taken to see that the renewal will not prejudice any right of defence then existing, and in any call should only be granted where the court is satisfied that good reasons appear to excuse the delay in service, as, indeed, is laid down in the order. The best reason, of course, would be that the defendant has been avoiding service, or that his address is unknown, and there may well be others, but ordinarily it is not a good reason that the plaintiff desires to hold up the proceedings while some other case is tried or to await some future development. It is for the court and not for one of the litigants to decide whether there should be a stay, and it is not right that people should be left in ignorance that proceedings have been taken against them if they are here to be served. While a defendant who is served with a renewed writ can, no doubt, apply for it to be set aside on the ground that there was no good reason for the renewal, his application may very possibly come before a master or judge rather than the one who made the order and who will not necessarily know the grounds on which the discretion was exercised.

13. On the question of whether the respondents had advanced good grounds to merit the exercise of the court’s discretion in their favour, the learned judge after citing this paragraph from the affidavit of Mr. Charles Ong, the respondents’ solicitor, that,

    Pending the outcome of the action against the sellers the writ herein was filed to preserve the plaintiff’s claim against the carriers of the hazel nuts, so that the limitation period would not operate to bar the plaintiff’s claim against the carriers,

    thought, against the contention of the appellants that he had no reason to disagree with the Senior Assistant Registrar’s acceptance of it as a good reason.

14. Since the Senior Assistant Registrar had not stated in writing his grounds for renewing the writ, we are unable to ascertain that he had considered the question of or the necessity for good grounds and if he had, what he had regarded as good grounds. But the learned judge, accepting the excuse advanced by Mr. Charles Ong, thought the necessity to preserve the claim a good ground. With the greatest of respect, he was mistaking the wish for the deed. If time had to be stopped running, by the issue of the writ, surely the easiest way to continue to stop time from running and thus preserve the right of action, would be to serve the writ within the 12 months of its life. There might be in some cases difficulties in effecting service. Such difficulties could amount in the circumstances to good reasons. But this was not a case of any difficulty in effecting service. Mr. Charles Ong at the hearing of the appeal advanced a further reason when in answer to a question by the court he advised that the reason for failing to serve was that the parties were negotiating. If he was in contact with the other party or with the solicitors of the other party, there would not be the slightest difficulty in effecting service. Of course, he wanted to preserve the cause of action but he did absolutely nothing to do so. He had failed to keep his powder dry and if his gun misfired, he had only himself to blame.

15. In our view, the respondents had not advanced a single reason, much less a single good reason for the exercise of the court’s discretion in renewing the writ and the discretion ought not therefore to be exercised. We agree with the approach in New Ching Kee v Lim Ser Hock  [1975] 2 MLJ 183 and we accordingly allowed the appeal with costs here and in the court below and ordered that the application to renew the writ be dismissed.

Cases

Hume v Somerten (1890) 25 QBD 239; Doyle v Kaufman (1877) 3 QBD 7; Hewlett v Barr [1891] 1 QB; 98; Sheldon v Brown Bayley’s Steel Works Ltd and Dawnays Ltd [1853] 2 QB 392; Battersby v Anglo-American Oil Co Ltd [1945] 1 KB 23; The Espanoleto (1920) P 223; Firm of TAR CT v Firm of SNS SRN [1954] MLJ 721; E Ltd v C [1959] 1 WLR 692; Smalpage v Tonge (1886) 17 QBD 644; Holman v George Elliot & Co Ltd [1944] KB 591; New Ching Kee v Lim Ser Hock [1975] 2 MLJ 183

Legislations

RSC 1957, Ord.8 r 1.

Authors and other references

Mallal’s Supreme Court Practice (4th Ed)

Representations

Lim Kean Chye for the appellants.

Charles Ong for the respondents.