WHETHER PERMISSION IS REQUIRED TO ADDUCE FURTHER EVIDENCE ON APPEAL & WHETHER EXTENSION OF TIME SHOULD BE GRANTED TO FILE A STRIKING OUT APPLICATION
This week’s blog covers Darsan Jitendra Jhaveri & 11 Ors v Lakshmi Anil Salgaocar suing as the Administratrix of the Estate of Anil Vassudeva Salgaocar (India Passport No. HXXXXXXX), deceased @ Anor [2024] SGHC(A) 20 (“Darsan v Lakshmi”), a decision of the Appellate Division of the High Court (the “Court”).
Facts. The case deals with three applications which were filed in relation to AD/CA 88/2023 (“AD 88”), which is Mr Darsan Jitendra Jhaveri’s (“Mr Darsan”) and 11 Singapore companies’ appeal against a High Court decision holding that Mr Darsan committed breaches of trust in respect of the equity and assets of the companies which he allegedly held on trust for Mr Anil Vassudeva Salgaocar (“Mr Salgaocar”), who had commenced a claim against Mr Darsan (Darsan v Lakshmi [1]).
Mr Salgaocar’s claim was continued by his estate and a British Virgin Islands-incorporated company, Winter Meadow Capital Inc, who are the Respondents in AD 88 (Darsan v Lakshmi [1]).
The Respondents brought two applications for permission to adduce further evidence at the hearing of AD 88 (Darsan v Lakshmi [3], [5]):
AD/SUM 2/2024 (“SUM 2”), filed on 5 January 2024, which pertained primarily to the documents relating to the applications brought by the parties before the Singapore and Indian Courts and the relevant orders made; and
AD/SUM 16/2024 (“SUM 16”), filed on 20 March 2024, which was for permission to introduce documents pertaining to further developments before the Indian Courts filed between January and March 2024.
The Respondents also brought a third application, AD/SUM 12/2024 (“SUM 12”) on 21 February 2024, to strike out AD 88 and for an extension of time to be granted for the filing of the striking out application as the filing was made out of time (Darsan v Lakshmi [4]).
Introduction of fresh evidence on appeal. The Court noted that the documents that the Respondents were seeking permission to adduce at the hearing of AD 88 in SUM 2 and SUM 16 were not to be employed in respect of the “merits of AD 88” (Darsan v Lakshmi [8]).
Rather, the documents referred to in SUM 2 and SUM 16 were relied on by the Respondents only in relation to their argument that the court should not hear the Appellants in AD 88 on the basis of the Hadkinson principle, which states that the court “may exercise its discretion to refuse to hear a party in contempt unless and until he has purged his contempt” (Darsan v Lakshmi [10]).
The Court clarified that “no leave is required to rely on documents for the purpose of persuading the court not to hear an appeal” (Darsan v Lakshmi [12]).
In contrast, the requirements in Ladd v Marshall (for adducing further evidence on appeal) are in relation to “the admission of evidence which goes towards the determination of the substantive issues on appeal” (Darsan v Lakshmi [12]). See also Darsan v Lakshmi [13] – [14] as excerpted below:
“13 This conclusion was also apparent from a perusal of the Ladd v Marshall requirements themselves. For example, the fresh evidence must not have been obtainable with reasonable diligence for use at the trial and it must have an important influence on the result of the case. These requirements suggest that the evidence sought to be adduced on appeal must pertain to the substantive issues of contention between the parties at trial which have subsequently been taken up on appeal.
14 It also bore noting that the underlying rationale behind these requirements was that of finality in litigation, where parties are incentivised to advance their full case at trial and not resort to strategic ploys to gain unfair advantages (Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2019] 2 SLR 341 at [23]–[24]). This is the reason why the Ladd v Marshall requirements are not applied to new points or claims raised on appeal, where such interests are engaged to a lesser degree (see Yee Heng Khay (alias Roger) v Angliss Singapore Pte Ltd and another matter [2022] 2 SLR 521 at [13]). Accordingly, and a fortiori, evidence pertaining to a matter which was neither an issue at trial nor a substantive issue on appeal against the Judge’s decision will not attract the application of these requirements.”
Given this, there was no need for the Respondents to obtain leave to rely on the documents listed in SUM 2 and SUM 16 as the Respondents were only relying on these documents for their argument that the Court should exercise its discretion not to hear the Appellants until Mr Darsan’s alleged “acts of contempt, intimidation or harassment had ceased” (at [15]). It was permissible for the Respondents to refer to these documents without the need to obtain leave (at [15]). The Court therefore made no order for SUM 2 and SUM 16.
Extension of time for filing striking out application. In deciding if an extension of time should be granted for the filing of the striking out application, the Court stated that there must be “some material” upon which the Court can exercise its discretion, which “… encompasses an assessment of: (a) the length of the delay, (b) the reason for the delay, (c) the merits of the “proceeding” in question, and (d) the question of prejudice” (Darsan v Lakshmi [19]).
SUM 12 should have been brought before 28 August 2024 but it was only filed on 21 February 2024, or about 6 months later (Darsan v Lakshmi [18]).
While the Court accepted that the factual basis upon which SUM 12 was founded included matters which arose after 28 August 2023 (Darsan v Lakshmi [29]), the Court noted that in the Respondents’ Case filed in AD 88 on 1 December 2023, the Respondents stated that they intended to rely on the Hadkinson principle (Darsan v Lakshmi [25]).
This is important because, by the Respondents’ own position, on 1 December 2023, they should have all the facts required to commence SUM 12 (Darsan v Lakshmi [29]). The delay between 1 December 2023 and 21 February 2024 (the date of SUM 12) was found to be a “substantial delay” (Darsan v Lakshmi [29]), and the Court found that there were no good reasons provided for this delay (Darsan v Lakshmi [30]).
Although the Court noted that there was “some basis” for the Respondents to argue that Mr Darsan’s conduct amounted to an abuse of process, the Court held that it was unsafe to conclude so as there was insufficient evidence before the Court (Darsan v Lakshmi [31] – [35]).
In any event, the Court noted that even if Mr Darsan’s conduct was intended to frustrate the enforcement the Singapore court order that the Respondents obtained previously (the alleged acts of contempt that the Respondents complained of), this did not necessarily mean that Mr Darsan’s appeal in AD 88 should be dismissed (Darsan v Lakshmi [39]). The Court was not persuaded that the “high threshold” for a striking out was reached (Darsan v Lakshmi [38]), analogising Mr Darsan’s conduct as being “akin to one where an unsuccessful litigant simply refused to pay or transfer assets to a successful litigant and was taking steps to avoid doing so. While such conduct was not to be condoned, it did not yet warrant the striking out of an appeal” (Darsan v Lakshmi [39]).
Significance. This case is interesting because it clarifies principles on adducing fresh evidence on appeal and the principles regarding the extension of time.
It also illustrates the high threshold required before a striking out is granted is affirmed by the Court. As set out in Darsan v Lakshmi [39] – [40], the Court stressed that its dismissal of Sum 12 did not mean that the Court was not of the view that Mr Darsan had not acted in contempt. However, the Court emphasised that, in the circumstances, AD 88 ought to be heard and should not be struck out.
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