SUBMISSION TO JURISDICTION AND WAIVER
The recent ex tempore judgment delivered by the Court of Appeal in Reputation Administration Service Pte Ltd v Spamhaus Technology Ltd [2021] SGCA 51 is an important reminder that if a party intends to dispute the jurisdiction of the Singapore court over a dispute, the application to do so must be made in a timely manner.
The facts. For the purposes of this blog, the key facts can be summarised thus:
On 16 August 2019, the respondent commenced Suit 814 in the Singapore Court.
On 30 August 2019, the appellant entered an appearance.
On 9 September 2019, the appellant filed its Defence.
On 17 December 2019, the respondent filed a summary judgment application, which was contested by the appellant.
On 18 December 2019, the appellant filed a Notice to Produce.
On 14 January 2020, the appellant filed a striking out application.
Both interlocutory applications were dismissed by an Assistant Registrar, who directed the respondent to amend its Statement of Claim, which was filed on 6 April 2020.
Some two months later, the appellant filed an application to stay Suit 814 on the basis that the contract between the parties contained an exclusive jurisdiction clause that conferred jurisdiction on the Courts of England and Wales.
Waived its right under the exclusive jurisdiction clause. The Court of Appeal held that the appellant had submitted to the Singapore court’s jurisdiction and had waived its right to rely on the exclusive jurisdiction clause.
In doing so, the Court of Appeal highlighted at [20] that the tests for submission and waiver are similar and held at [22] – [23] that the “pivotal step” showing that the appellant had submitted to the jurisdiction of the Singapore court is the filing of its Statement of Defence on 9 September 2019.
Further, the steps taken by the appellant did not contain any protest against the court assuming jurisdiction, with the “closest intimation to a protest… [being] the raising of the EJC [the exclusive jurisdiction clause] in Mr Goel’s affidavit and the appellant’s written submissions in the Summary Judgment Application.. four to five months after the Defence had been filed on 9 September 2019.” ([25])
The Court of Appeal also did not accept that the appellant did not know of the existence of the exclusive jurisdiction clause until sometime later in the proceedings, and stated that even if the Court assumed that the appellant in fact did not know of the said clause, the steps taken by the appellant were nonetheless inconsistent with a position that the Singapore court should not assume jurisdiction. (at [28] – [32]).
Significance. Reputation Administration Service Pte Ltd v Spamhaus Technology Ltd [2021] SGCA 51 is therefore an important reminder that if you want to dispute the Singapore court’s jurisdiction over a particular dispute, you must take up the appropriate application in a timely manner.
Any uncertainty over whether you should dispute the jurisdiction of the Singapore court or not should be dealt with early, as the failure to do so will most likely prevent you from raising such a challenge at a later stage.
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