Dispute Resolution Singapore Client Alert June 2015 For further information please contact Andy Leck +65 6434 2525 email@example.com Chan Leng Sun, SC +65 6434 2703 LengSun.Chan@bakermckenzie.com Nandakumar Ponniya +65 6434 2663 firstname.lastname@example.org Celeste Ang +65 6434 2753 email@example.com Liu Zeming +65 6434 2274 firstname.lastname@example.org Baker & McKenzie.Wong & Leow 8 Marina Boulevard #05-01 Marina Bay Financial Centre Tower 1 Singapore 018981 www.bakermckenzie.com Singapore High Court clarifies how service of process may be effected on foreign-domiciled defendants Introduction A plaintiff seeking to bring an action against a foreign-domiciled defendant must ensure that service of the writ or other originating process is validly effected via one of the methods prescribed by Order 11 of the Rules of Court (the “Rules”). It is trite that service may be validly effected via official means, such as through the government of the country in which the defendant resides, or through a Singapore consular authority: Order 11, rules 4(2)(a), 4(2)(b) of the Rules. However, can a writ be served in a foreign jurisdiction via private means, that is, personal or substituted service which is effected by the plaintiff's private agent? In 1987, the Singapore High Court in Ong & Co Pte Ltd v Chow YL Carl  SLR(R) 281 ("Ong & Co") effectively outlawed the private service of process overseas, holding that the service of a writ is an exercise of judicial power. Debates ensued and legislative amendments were specifically introduced (the Rules of the Supreme Court (Amendment No. 2) Rules 1991) to deal with the difficulties created by Ong & Co, providing that service of process may also be effected by a method authorised by the law of that country. However, the amendments did not specifically address the correctness of the finding in Ong & Co. Almost 30 years on, the question as to how service of process may be effected on a foreign-domiciled defendant remains a vexed one. The issue was revisited in Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss Intermoda Transportasi TBK and another  SGHC 144 ("Humpuss"). In a seminal judgment, the Singapore High Court clarified how process may be validly effected on a foreign-domiciled defendant. In particular, the Singapore High Court clarified that personal or substituted service on a foreign defendant is permissible, as long as it does not contravene the law of the foreign jurisdiction. Insofar as Ong & Co suggested otherwise, the Court opined that that it was no longer good law. The Facts The Plaintiff and the Defendants in Humpuss were part of the Humpuss group of companies. The Plaintiff was incorporated in Singapore, whereas the Defendants were incorporated in Indonesia. 2 Client Alert June 2015 In January 2014, the Plaintiff was placed in compulsory liquidation. The liquidators sought to bring claims against the Defendants for, amongst others, $110 million in loans owed. In September 2014, the Plaintiff obtained leave to serve the writ of summons, statement of claim and order of the court granting leave to effect service out of jurisdiction (“the Documents”) on the Defendants at their registered addresses in Indonesia. The Plaintiff engaged the services of an Indonesian law firm, which effected service personally and by courier. Notably, the Defendants did not deny that they had in fact received the Documents. In November 2014, the Defendants took out an application for a declaration that the Documents had not been duly served on them. The Defendants, relying on Ong & Co, argued that the Plaintiff had failed to effect proper service because engaging a private agent to effect service was not a method of service specifically authorised under Indonesian law. In response, the Plaintiff argued that the Plaintiff’s service via private agent was valid. Alternatively, even if the service was irregular, the Court had the power to cure the irregularity. The Issues There issues before the Court were as follows: 1. Was the service on the Defendant effected in a manner provided for under the Rules? 2. Was service, even if effected in accordance with the Rules, nevertheless invalid because it was contrary to Indonesian law? 3. If the service was invalid, can and should it be cured by the Court? The Court's Decision The Singapore High Court held that the service on the Defendants was valid, and dismissed the Defendants' application. Specifically, the Court held that: 1. The method of service employed by the Plaintiff (i.e. personal service through private means) was permitted under the Rules; 2. The Defendant has not demonstrated that the method of service employed in this case was contrary to Indonesian law; 3. As the service was valid, there was no need to decide if any invalidity could have been cured by the Court. Noting that the jurisdiction of the courts over foreign defendants has always been governed by statute, the Court examined the provenance of Order 11, rules 3 and 4 in detail. The comprehensive chronological survey revealed two salient points: first, that private means of service was, in fact, the default means of service of process in foreign jurisdictions; and second, that throughout the long history of the statutory scheme, provisions allowing for service via official channels have always been facilitative, and never mandatory. Thus, the Court held that Ong & Co, in suggesting that official channels were the exclusive means by which process had to be served, ran against the grain of legislative history. Accordingly, the Court concluded that the restrictive 3 Client Alert June 2015 approach to the service of process overseas promulgated in Ong & Co should no longer be followed. The Court also laid out a comprehensive list of the various methods of effecting service of process overseas under Order 11 of the Rules, depending on the jurisdiction in which the defendant is domiciled: Methods common to all foreign jurisdictions 1. Personal service, as long as it does not contravene the law of the foreign jurisdiction. rule 3(1) read with rule 3(2) 2. Substituted service with leave of court, as long as it does not contravene the law of the foreign jurisdiction. rule 3(1) read with rule 3(2) 3. Service by a method specifically authorised by the law of the foreign jurisdiction for the service of foreign process. rule 3(3) 4. Service through a Singapore consular authority, as long as it does not contravene the law of the foreign jurisdiction. rule 4(1)(b) and rule 4(2)(b) Methods specific to Malaysia and Brunei 1. Service through the government of Malaysia / Brunei. rule 3(8)(a) read with rule 4(2)(a) 2. Service by a method recognised in either Malaysia / Brunei for the service of domestic process issued by the Malaysian / Bruneian courts, provided such service is not contrary to Malaysian / Bruneian law. rule 3(8)(a) read with rule 4(2)(c) 3. Post from Registrar of the Singapore court to the judicial officer in Malaysia / Brunei. rule 3(8)(b) Methods specific to Civil Procedure Convention countries 1. Service through the judicial authorities of the foreign jurisdiction. rule 4(1)(a) Methods specific to non-Civil Procedure Convention countries 1. Service through the government of the foreign jurisdiction. rule 4(2)(a) 2. Service by a method recognised by the law of the foreign jurisdiction for the service of domestic process issued by the courts of that country, provided such service is not contrary to the law of that country. rule 4(2)(c) In Humpuss, it was held that the Plaintiff was in full compliance with the requirements for service under Order 11. However, in the event of non- 4 Client Alert June 2015 compliance with Order 11, Chong J observed obiter that the courts still have discretion under Order 2 of the ROC to cure any irregularities in the service of process. This discretion would arise where the method of service employed – though successful in bringing notice of the claim to the defendant and not contrary to the law of the foreign jurisdiction – had nevertheless failed to comply with a procedural requirement provided for in the Rules. In exercising its discretion to cure irregularities, the Court suggested considering the blameworthiness of the respective parties, whether the plaintiff had made a good faith effort to comply with the ROC, and whether the defendant would be prejudiced if the Court's discretion were exercised in the plaintiff’s favour. Conclusion The decision is welcomed as it introduces some certainty to an area of law which has seen much litigation in recent years. The decision in Humpuss brings the law in line with the preferred practice of effecting service on defendants domiciled in foreign jurisdictions via private means, such as by engaging a firm of solicitors in that jurisdiction to serve the requisite documents directly on the defendant or his agent. Furthermore, potential litigants may now be assured that courts have the power to avoid injustice by curing irregularities, precluding the unfortunate situation where a technical failure at the preliminary stage of proceedings derails what is otherwise a meritorious substantive claim. ©2015 Baker & McKenzie. All rights reserved. Baker & McKenzie International is a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm. This may qualify as “Attorney Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.