SERVICE OF A WRIT OF SUMMONS WHICH EXPIRES ON A NON-WORKING DAY
In Glenville, Chantell v Quek Swee Chong and another [2021] SGHC 237, the High Court held that the Writ of Summons which expired on a Saturday, a non-working day, was validly served on the following Monday, which was the next working day.
A writ of summons is an originating process which signifies the commencement of proceedings. A plaintiff must formally notify the defendant of the commencement of proceedings by effecting personal service of the writ of summons on the defendant.
For the purposes of service, Order 6 rule 4(1)(b) of the Rules of Court (2014 Rev Ed) (“ROC”) provides that a writ is, in the first instance, valid for 6 months from the date of its issue.
In Glenville, Chantell v Quek Swee Chong and another [2021] SGHC 237, the Writ of Summons expired on a Saturday and was served by the next working day, i.e., on the following Monday (at [1]).
The issue. Saturday is not a “working day” defined under Order 1 rule 4(1) of the ROC. The parties’ case rested on the application (or non-application) of Order 3 rule 3 of the ROC. The plaintiff submitted that O 3 r 3 of the ROC applied so that the Writ would only expire on the next working day, i.e., Monday, while the defendants contended that O 3 r 3 of the ROC did not apply to extend the validity of the Writ (at [9]).
According to the High Court, the defendants’ case rested on three planks: (at [10])
“(a) First, O 3 r 3 of the ROC does not apply based on a plain reading of the rule.
(b) Second, the legal regime relating to the validity and renewal of a writ of summons under O 6 r 4 of the ROC excludes the operation of O 3 r 3 of the ROC.
(c) Finally, the history of the amendments to O 3 r 3 of the ROC supports the view that it does not apply to deem a writ of summons that had expired on a non-working day to be valid for service on the next working day.”
A plain reading of O 3 r 3 of the ROC. Order 3 rule 3 of the ROC is set out in full below:
Time expires on a day other than working day (O. 3, r. 3)
3. Where the time prescribed by these Rules, or by any judgment, order or direction, for doing any act expires on a day other than a working day, the act shall be in time if done on the next working day.
The defendants first contended that O 3 r 3 of the ROC does not state that a writ of summons which expires on a non-working day “would be deemed unexpired and valid for the purposes of service on the next working day” (at [13]).
The defendants then stated that three requirements must be satisfied for O 3 r 3 of the ROC to apply: (at [14])
“(a) an act needs to be done;
(b) there must be a time prescribed by the ROC, or by any judgment, order or direction for the doing of that act; and
(c) the time for doing that act expires on a day other than a working day.”
The defendants argued that the “act” in the question was the service of the Writ, so the second requirement was not satisfied because the ROC does not prescribe a time by which a writ of summons has to be served (at [15]). In essence, “They submitted that while a writ of summons (that is issued for service within the jurisdiction) should be served within six months beginning with the date of its issue, this is not because there is any provision in the ROC that prescribes that a plaintiff must serve the writ of summons within six months.”
The High Court did not agree that the ROC does not prescribe a time by which a writ of summons must be served (at [18]).
This is because according to O 6 r 4(1)(b) of the ROC, it is stated that “… for the purposes of service, a writ is valid in the first instance … for 6 months, beginning with the date of its issue.” While “there is no explicit language that the plaintiff “must” serve the Writ within six months … O 6 r 4(1)(b) of the ROC effectively requires that. It was, after all, the basis on which the defendants objected to the plaintiff’s failure to serve the Writ by [that Saturday].” (at [19])
The High Court used O 12 r 4(a) of the ROC as an example where “if the defendant wants to appear, he must do so within eight days after the service of the writ.” (at [20]; emphasis in original by High Court). The defendants acknowledged that O 3 r 3 of the ROC could apply to O 12 r 4(a) of the ROC, and according to the High Court, “there is little material difference between O 12 r 4(a) of the ROC and O 6 r 4(1)(b) of the ROC. Both contain a specified period for an action, without explicitly mandating that a certain act must be done within a certain time.” (at [20]; emphasis in original by High Court)
The High Court went on to cite the Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) and an English Court of Appeal case Pritam Kaur v S. Russell & Sons Ltd [1973] QB 336 (“Pritam Kaur”) which supported the position that if a period of limitation expires on a non-working day, a writ issued on the next available working day will still be in time and within the relevant limitation period (at [21]-[24]).
The High Court reasoned as such: (at [24])
“For all material purposes, there is no difference between the two situations. If anything, the willingness of the court in Pritam Kaur to treat the writ as valid when served on the next working day, thereby avoiding the expiry of the limitation period, when there was no such saving provision in the Limitation Act 1939, reinforces the argument here that where there is O 3 r 3 of the ROC, O 3 r 3 of the ROC should operate to allow the validity of the writ to similarly be preserved for the purposes of O 6 r 4(1)(b) of the ROC, for service on the next working day.”
Therefore, on a plain reading of O 3 r 3 of the ROC, the High Court found that the validity of the Writ would have been extended to the following Monday (at [25]).
The legal regime under O 6 r 4 of the ROC. The defendants’ second argument was that O 6 r 4(2) of the ROC sets out a regime whereby the six-month validity period is absolute and does not countenance the operation of O 3 r 3 of the ROC (at [26]).
O 6 r 4(2) of the ROC governs the extension of validity of a writ of summons which has not been served. The High Court did not accept the defendants’ argument because “… there is nothing in the language of O 6 r 4 of the ROC that excludes the operation of other provisions of the ROC. There is nothing in the language that suggests that O 6 r 4 of the ROC creates an “absolute” regime. Indeed, O 6 r 4(1)(b) starts by stating that it is “[s]ubject to the other provisions of these Rules”. (at [28])
The High Court also found “nothing in the language of O 3 r 3 of the ROC that so limits it. Nor does the operation of O 3 r 3 of the ROC undermine the legal regime set out in O 6 r 4 of the ROC.” (at [29]) According to the High Court, the interaction between both provision is that “… where the writ expires and O 3 r 3 of the ROC is unable to assist, a plaintiff would need to seek extension of the validity of the writ as provided for under O 6 r 4(2) of the ROC.”
Therefore, it was held that the legal regime under O 6 r 4 of the ROC did not exclude the operation of O 3 r 3 of the ROC (at [30]).
History of the amendments to O 3 r 3 of the ROC. The defendants’ last argument was premised on the previous version of O 3 r 3 of the ROC which governed the doing of “any act at the Registry [which] expires on a Sunday or other day on which the Registry is closed” (at [31]). On this basis, the defendants argued that the previous version of O 3 r 3 of the ROC would not have applied to writs of summons (at [31]), and because “the Rules Committee was silent on the amendments to O 3 r 3 of the ROC [it] would therefore strongly suggest that a defendant’s right to rely on the defence of limitation did not change after the amendments to the ROC.” (at [32])
The High Court did not agree with this, essentially because the language of the current O 3 r 3 of the ROC applies to “any act”, and without any language limiting it to Registry closures (at [33]).
On the silence of the amendments, the High Court stated that “It would … be onerous to expect a Rules Committee to state all the potential legal implications arising from an amendment, failing which it does not extend into that legal area, even if the plain language of that provision allows for it.” (at [34])
Therefore, the High Court found that the history of the amendments of O 3 r 3 of the ROC did not support the defendants’ position (at [35]).
Significance. As stated in the beginning of this article, a writ of summons signifies the commencement of proceedings and the Rules of Court provide that, subject to any renewal of the writ, a plaintiff has six months to effect personal service on the defendant in Singapore.
This decision makes clear that when a writ of summons expires on a non-working day, O 3 r 3 of the ROC applies so that it may still be validly served on the following working day.
Nevertheless, when in doubt, service should be effected early and before the expiry of the writ out of abundance of caution. Otherwise, it may be necessary to apply to the Court for an extension of the validity of the writ, whereby the decision to grant any extension is in the discretion of the Court.
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