Conflation of Modes of Commencement Of Proceedings and Interlocutory Applications
Overview of Scope of Amendments • Simplification of Procedural Rules • To reduce the four present modes to just two: writ and OS • One mode will be used for factual disputes while another will be used for non-factual disputes • Modernisation of language and standardisation of phraseology
Overall Approach • The sequence of the Orders in the Rules of Court will not be altered so that the proposed amendments will be easier to understand • But the sequence of the Forms in Appendix A of the Rules of Court will be re-arranged due to the extent of changes • The proposed amendments are not intended to result in any increase in stamp fees
Only 2 Modes of Commencement • Writ of summons and originating summons • Writ of summons for factual disputes • OS for non-factual disputes and for originating applications to the court under any statute • Order 5 Rules of Court • Originating motions and petitions will be abolished
Originating Summonses • No appearance to be entered to OS • Inter partes & ex parte OS: Forms 4 & 5 • Previously, forms 6 (OS with appearance), 7 (OS without appearance) & 8 (ex parte) • As a general rule, originating summonses to be heard in chambers in the first instance: O 28 r 2 (see Annex A) • Subject to the court’s discretion or any written law or practice direction that certain classes be heard in open court
Originating Summonses • See Practice Directions for originating summonses to be heard in open court • Generally, originating summonses that were formerly motions or petitions heard in open court will continue to be so heard • Disputing the court’s jurisdiction in an originating summons: New O 28 r 2A • To be made by summons within 21 days of service of OS and supporting affidavit
Interlocutory Applications • The summons is to be the sole mode for interlocutory applications • As a general rule, summonses to be heard in chambers: O 32 r 11 • Subject to the court’s discretion or any written law or practice direction that certain summonses be heard in open court. • Generally, summonses that were formerly motions heard in open court will continue to be so heard
Changes to Latin and archaic terms • Certain Latin and archaic terms used in the Rules of Court will be modernised except where such terms have entered common English usage or are terms of art • Phraseology will also be standardised
Catch-all provision • Section 41A Interpretation Act: • This clause will deem conversion of OP/OM/motions to OS/SUM in the event of any omission in legislative amendment • This deeming clause shall not affect pending applications
Transitional provisions • Pending motions/petitions before the court on 1 January 2006 remain as such • But Court given the power to order conversion to either writ, originating summons or summons • Sections 82 of the Supreme Court of Judicature Act and 70 of the Subordinate Courts Act
Implementation in 2 phases • Phase 1: • Commencement date: 1 January 2006 • Affecting all proceedings except: • Bankruptcy proceedings • Proceedings relating to winding up of companies • Proceedings relating to judicial management of companies • Proceedings relating to winding up of limited liability partnerships • Proceedings under Part X of Women’s Charter
Implementation in 2 phases • Phase 2 • Expected to commence in 2nd quarter 2006 • Affecting all other classes of actions excluded under phase 1
Changes to case type prefixes in Phase 1 • From 1 January 2006, the EFS Front End will only allow applications for judicial management(Phase 2) into the OP case type and no other • The OP case type will be merged into OS in Phase 2
Changes in party types • For inter partes matters • Parties to be referred to as plaintiff(s) and defendant(s) or appellants(s) and respondent(s), as the case may be • Applicant(s) and respondent(s) not to be used for inter parte matters generally • For ex parte matters • Party(ies) making the application will be referred to as the applicant(s)
Fixing of hearing upon issuance of OS & summons • Form of OS and summons requires that hearing dates be given once issued • Once OS or summons accepted by Registry, hearing date(s) will be assigned • The exceptions are: • Subordinate Courts’ Probate OSes; • Family Court matters; and • Applications for admission as advocate and solicitor • In such cases, the phrase to be inserted will be ‘on a date to be fixed by the Court’
Originating Summonses • New Form 4 • Supporting affidavit to be filed not later than 7 days after service of OS • Defendant to file reply affidavit not later than 21 days after being served with plaintiff’s affidavit
Ex parte Originating Summonses • New Form 5 • Supporting affidavit to be filed at the time of filing of OS • Except adoption and probate OSes which require filing of a Statement • Supporting affidavit to be filed within 7 days
Fresh Originating Summonses & Summonses • Fresh proceedings or applications taken out under Rules of Court to use new procedures and forms • Where Phase 2 classes invoke OS or summons procedure, and there are no specific OS/summons forms provided in the subsidiary legislation, parties should comply with the new ROC forms and procedure
Statements • Adoption: O 68 • Probate: O 71 • 3 steps: • Step 1: Filing of OS and Statement • Step 2: Acceptance of OS and Statement • Step 3: Filing supporting affidavit
Step 1: Filing of OS and Statement • Law firm fills up the EFS Front End templates to file OS; • Once ‘Originating Summons (Probate)’ or ‘Originating Summons (Adoption)’ is selected, EFS Front End will lead filing clerk to appropriate template for the generation of the relevant OS and Statement; • First, filing clerk fills up template and a preview of the OS will be provided before filing; • Next, filing clerk fills up template and a preview of the Statement will provided before filing;
Step 1: Filing of OS and Statement • Once filing clerk gives instructions to file, pdf versions of the OS and Statement are automatically generated by the EFS Front End; • Statement will be generated with a case title (as it would appear on the Document Information Page); • In this process, two pdf documents are filed: OS and Statement. • Probate: supporting documents to be filed as related documents at time of filing of OS and Statement.
Step 2: Acceptance of OS and Statement • Registry receives and checks the pdf versions of the OS and Statement; • When OS is accepted, hearing dates will be given; • When Statement is accepted, the EFS Workflow application will place on the Statement, next to the case title, the Court Seal and the date and time of filing; • OS and Statement bearing Court Seal returned to law firm through EFS Front End;
Step 2: Acceptance of OS and Statement • If there is any rejection, both OS and Statement will be rejected. • Rejection of auto-generated OS (Supreme Court only) • Registrar’s signature automatically generated when OS is auto-generated
Step 3: Filing supporting affidavit • Statement bearing Court Seal is to be exhibited as the first exhibit in the supporting affidavit filed; • Affidavit must state that Statement exhibited therein was the same Statement generated by EFS, and contents entered into EFS, and which now appear in Statement, are true (standard phrasing promulgated in Practice Directions); • Affidavit to exhibit supporting documents;
Step 3: Filing supporting affidavit • Supporting affidavit be filed within 7 days after filing OS. • No stamp fees for filing the first supporting affidavit for Probate/Adoption: • S/No 43, Appendix B, Rules of Court (Probate) • S/No 131, Appendix B, Rules of Court (Adoption)
Amendments of auto-generated OS • Application for leave to amend • Proposed amendments will have to be marked up, as per current requirements in the Rules & Practice Directions. • EFS Front End will provide function to facilitate easy download of prayers typed into the auto-generation template. • Once leave granted, file amended OS • This will be auto-generated. • The nature of the amendments will not be marked up.
Amendment of Statement • Generally, Statements (as they are not pleadings) may be amended without leave of court any time before the OS is heard, • but they must be filed under cover of a supplementary affidavit. • In the supplementary affidavit, the deponent must provide an explanation for the amendment. • The process for filing amended Statements will be similar to the 3-step process outlined above.
Amendment of Statement • Where amendment touches details of child to be adopted or deceased in a probate OS, an application for leave to amend OS must be taken out first. • As these information appear on the OS • EFS Front End will not permit the amendment of details of the child to be adopted or the deceased in a probate OS unless there is an amended OS
Amendment of Statement • Once leave is granted, an amended OS is to be filed. • When the filing clerk is filing the amended OS, the EFS Front End will lead him through the 3-step process outlined above to allow generation of an amended Statement. • Supplementary affidavit verifying the Statement to be filed thereafter.
Amendment of Statement • Where probate has been granted, no amendment of Statement without leave of court: see Practice Directions. • Adoption: Practice Directions to set out procedure for notice to be given to Family Court registry when Statement is amended
Summonses • Fresh interlocutory applications by summons to be filed in all cases (existing or new) • All new interlocutory applications filed with respect to proceedings instituted prior to 1 January 2006 will have to use the ‘summons’ document description.
Amendments of existing Motions, Petitions, OSes and SICs • For cases existing or applications filed prior to 1 January 2006 • Amendments using existing (old) forms and procedure • If the Court directs, an amended OS (new form) can be filed into a case commenced by Petition or Motion • Sections 82 of the Supreme Court of Judicature Act and 70 of the Subordinate Courts Act
Nomenclature changes • Simplifying archaic and Latin terms, and standardising terms in the Rules. • The impact of these changes on document descriptions can be divided into 2 categories.
Nomenclature changes • Category 1— • From 1 January 2006, only documents reflecting the new terms will be accepted for filing, whether to new or existing case files. • For example, parties can only file a request to both new and existing case files. Parties will not be able to file an amended praecipe to an existing case file.
Nomenclature changes • Category 2:— • Only documents reflecting the new terms will be accepted for filing. However, parties amending an existing document in an old case file need not amend it to reflect the new terms. • For example, parties applying for an Anton Piller, Certiorari and Writ of Subpoena may, in 2006, only file an application for a Search Order, Quashing Order and Subpoena respectively, to both new and existing case files. Amendments to Anton Piller, Certiorari or Writ of Subpoena already in the case file may be filed under the old document title.
Frequently asked questions • As the hearing dates for OS is now fixed by the Registry once the OS is filed, what can lawyers expect to be the estimated hearing dates? • This will be provided in Appendix B of the Practice Directions • Generally, for inter partes OS, it will be five weeks from the date of filing of the OS • For ex parte OS, it will be three weeks from the date of filing of the OS
Frequently asked questions • Whether happens if I file the wrong originating process? • You can still apply for conversion of OS to writ or vice versa • O 2 r 1(3) also states that the Court shall not wholly set aside the proceedings if the wrong mode of commencement is employed
Frequently asked questions • For non-EFS matters, do we have to use the new ROC forms? • If specific OS/summons forms are not prescribed in the relevant legislation, one should use the new ROC forms • However, one should file in hard copy instead of via EFS.
Frequently asked questions • When must we use the new procedures? At the time of filing the application or at the time of hearing of application? • At the time of filing • For example, if an OM is filed on 24 December 2005 and fixed for hearing on 3 January 2006, one should follow the old procedures/law • See s 41A Interpretation Act
Frequently asked questions • Are there any changes to the procedure in taxation hearings? • No, the Bill of costs has not been changed
Frequently asked questions • Does the supporting affidavit to an OS need to be personally served? • In general, if it is not an originating process, it need not be personally served unless prescribed by the Rules of Court/written law • See O 62, Rules of Court
Frequently asked questions • As a matter of illustration, let’s say I have a companies winding up application commenced in December 2005 and I need to file a fresh interlocutory application in January 2006, which procedure should I follow? • First, look at the relevant legislation (in this case, Companies Winding Up Rules) to see whether there is a prescribed form to be used • If there is no prescribed form, and one relies on the ROC to file a fresh interlocutory application in January 2006, it must follow the new procedure