Introduction

Two recent cases highlight the need for care when considering an appeal from the High Court to the Court of Appeal. By way of background, it should be noted that a litigant does not always have an automatic right of appeal to the Court of Appeal. Some matters simply cannot be taken on appeal while some  matters can be taken on   appeal only if leave is granted. Section 34 of the Supreme Court of Judicature Act (the “SCJA”) and its schedules list the matters against which no appeal can lie and the matters against which an appeal may lie but only if leave is granted. While s. 34 and its schedules may appear straightforward, its application in many cases has proven difficult.

“Chem Orchid” [2016] SGCA 04

In the “Chem Orchid” [2016] SGCA 04, the appellant shipowner wanted to appeal to the Court of Appeal (the “CA”) to reverse the decision of the High Court judge not to set aside four in rem writs against its ship. The appellant shipowner took the view that it had a right of appeal. The respondents objected to the appeal on the ground that the shipowner needed leave from the judge before it could appeal, but had not obtained such leave. The CA, however, decided that the subject matter of the appeal fell within the category of matters against which no appeal could lie, and therefore dismissed the appeal.

The basis of the shipowner’s attempt to set aside the in rem writs was that the person who would have been liable in an action in personam (the bareboat charterer) was not, at the relevant time, the bareboat charterer of the vessel. This, the shipowner asserted, was due to the fact that by the relevant time, the charter party had already been terminated by the shipowner, despite the fact that the bareboat charterer was still in physical possession of the  vessel.  The  High  Court   judge found  that  the  shipowner’s  notice  of   termination was  invalid  but,  more fundamentally, decided that a bareboat charter party can only be terminated by the actual (as opposed to constructive) and physical redelivery of the vessel to her owners. Therefore, the bareboat charterer was, at the material time, in fact and in law, still the charterer of the vessel and the court had the jurisdiction to issue the in  rem writs.

Before the High Court, the shipowner had relied solely on affidavit evidence and this was critical to the CA’s decision. Chao Hick Tin JA explained that when a judge has only affidavit evidence on which to base findings on the court’s admiralty jurisdiction, such findings can only be prima facie and cannot be conclusive. The application in the High Court to set aside the writs was therefore interlocutory in nature and it is settled law that orders made at the hearing of interlocutory applications fall within s. 34 of the SCJA. As the judge’s order was effectively a refusal to strike out the action, it fell squarely within the relevant parts of s. 34 and the relevant schedule which states:

34. (1)  No appeal shall be brought to the Court of Appeal … where a Judge makes an order refusing to strike  out … an action or a matter commenced by a writ of summons or by any other originating process …

It was therefore on this basis that the CA decided that the subject matter of the appeal fell within the category of matters against which no appeal could lie.

Kosui Singapore Pte Ltd v Thangavelu [2016] SGCA 3

In the case of Kosui Singapore Pte Ltd v Thangavelu [2016] SGCA 3, s. 34 of the SCJA was once again relied on to strike out the Notice of Appeal. The appellant had applied to a High Court judge for leave to have its former solicitor’s i.e. the respondent’s bill of costs taxed. The appellant required leave because more than 12 months had passed since the bill was presented and the automatic right to taxation had lapsed. The judge rejected the application on the basis that the appellant had failed to establish, as required by the relevant legislation, that  special circumstances existed which would justify the order for taxation, notwithstanding that more  than  12 months had passed since the bill was presented.

When the appellant appealed, the respondent relied on s. 34 of the SCJA, which provides that leave to appeal is required “where the only issue in the appeal relates to costs or fees for hearing dates”. The question that ensued was whether “costs” simply meant the quantum of costs (as argued by the appellant) or, as could be more widely construed, any issue related to costs – such as whether the appellant should be allowed to tax his erstwhile solicitor’s bill of costs despite the lapse of 12 months. Delivering the judgment of the court, Judith Prakash J explained that the phrase “relates to costs” should not be restricted to the quantum of costs but to all matters relating to costs, such as whether or not a party should be allowed to tax his solicitor’s bill of costs.

It is not clear if, prior to filing its Notice of Appeal, the appellant addressed its mind to the question of whether or not it required leave to appeal under s. 34 of the SCJA. However, assuming it did, it was unwise to have read the phrase “relates to costs” as “relates to the quantum of costs”. It would have been safer to have erred on the side of caution by applying for leave to appeal, or to have used “the proper approach” (as had been suggested by the CA in the Chem Orchid) when in doubt about whether or not leave is required and seek a declaration from a judge that leave to appeal is not required. In the event that the judge rules that leave to appeal is required, the appellant would then be able to seek leave from the judge before lodging its appeals.