Introduction to Civil Procedure 2015/16

Take-home Assignment
1. This assignment is worth 50% of your course grade. It is an open-book assignment.
2. You must answer Question 1 AND Question 2. They have equal weightage.
3. You are not allowed to discuss or collaborate with anyone when doing this assignment.
4. You must submit your answers in a single word document to siyuanchen@smu.edu.sg by
6pm, 26 September 2015. A submission that is one minute late is still a late submission. If
your submission is late, a maximum grade of B would be awarded for this component. It is
your responsibility to back up your work and to have a contingency plan if your default
internet connection fails.
5. There is no word limit. Please do not use any footnotes or endnotes these are not essay or
research paper questions.
6. You are expected to express your answers in a clear, direct, and structured manner. Do not
take too long if you cannot figure out an answer complete the other parts first.
7. The good answers will be well supported by authorities (statute/ROC/cases/commentaries)
but the best answers will apply the law to the facts of the case and identify adverse authorities
and facts, plausible alternative arguments, and practical solutions.
Question 1: For the purposes of this question, unless stated otherwise assume it is 26
September 2015
Squid & Co (the plaintiff), a company which owns a popular seafood joint that serves squids
in a watermelon husk cooked in different ways, has been in business in Singapore and Johor
Bahru (JB), Malaysia, since early-2011. Squid & Co made Singapore its headquarters.
Though expensive, it was extremely well patronised due to its innovative cuisine.
In early 2012, Sotong Pasar (the defendant, a sole proprietor), a direct competitor restaurant
of Squid & Co, operating solely in JB, also served squids in a watermelon husk prepared in
different ways. Sotong Pasars popularity quickly soared, and by end-2012, the outlet began
to wow diners with its good service, large portions and attractive pricing.
The plaintiff came to know of the defendants existence sometime in mid-2013. After some
internal investigation, the plaintiff was satisfied that it had a cause of action against the
defendant. In early-2014, the plaintiff wrote Letters of Demand through its Malaysian
solicitors against Sotong Pasar alleging that Sotong Pasars get-up was too similar to Squid &
Co and was confusing its diners.
Sotong Pasar did not respond to the Letters of Demand. The plaintiff, therefore, obtained the
issuance of the writ of summons from the High Court of Singapore on 10 July 2014 with the
usual validity period of six months for service.
The plaintiffs cause of action was in passing-off. The alleged acts of passing-off took place
since early-2012. The writ was intended for service out of jurisdiction. However, the writ was
not served on Sotong Pasar as parties were seriously negotiating a without prejudice
settlement.
Since the settlement talks failed, the plaintiff applied on 15 April 2015 to renew the writ.
After the renewal, the writ was eventually served on the defendant in JB through a private
agent.

You have been instructed by the defendant company to act for them. Your client has sought
your advice on the following including any costs implications (where applicable). The
scenario in each part is independent of one another unless stated to be connected:
(a)

Assume that pleadings have now closed, and the plaintiffs solicitors have informed
you that the plaintiff wishes to apply to amend the Statement of Claim to include an
action in copyright, ie, the plaintiff alleging that the defendant copied the artwork and
text of its menu since early-2012.

(b)

The defendant is very annoyed that the pending litigation is not only disruptive but
stressful. The defendant requests that you think of ways to terminate the action
without proposing a settlement. What would you propose to your client?

(c)

In the meantime, the plaintiff has posted on its Facebook page comments such as,
Sotong Pasar recycles all their watermelon husks for re-serving without even
washing them after the last round of consumers. The defendants business was
adversely affected. The defendant wants to know whether it can stop the plaintiff from
continuing with its actions. In the alternative, assuming that the defendant is not able
to succeed in stopping the plaintiff, how the defendant can pursue this claim against
the plaintiff.

(d)

The defendant informs you that it suspects the trial to be prolonged by the plaintiff
and that the legal costs will be high. Though you have assured them that the retainer
you have received from the defendant is sufficient, the defendant is concerned that it
still has to produce large sums upfront in order to proceed with the litigation. The
defendant is somewhat confused by the legal procedures and obligations surrounding
this concern and have asked you to shed some light as to whether the defendant will
be affected.

(e)

At a pre-trial conference, a Registrar had given directions for the plaintiff to file its
list of documents by 15 September 2015. However, the plaintiff failed to do so. You
had written to the plaintiff to remind the plaintiff to file its list of documents but as of
26 September 2015 it still had not done so. You checked the file and found that the
plaintiff had also delayed complying with previous court orders to respond to your
Further and Better Particulars request and to file Further and Better Particulars. Each
time it had been late by about three weeks. What can the defendant do to move the
proceedings along? The next pre-trial conference is scheduled for 30 December 2015.

(f)

Assume that the defendant extended to the plaintiff an Offer To Settle (OTS) in the
sum of SGD10,000 as full and final settlement of the plaintiffs action against the
defendant only. The plaintiff rejected the OTS. It transpired that that the court struck
out the plaintiffs cause of action as the defendant succeeded in persuading the court
that it had started serving squids in watermelon husks more than fifty years ago
selling them on pushcarts. What are the costs implications?

(g)

Assume that (continuing from (g) above) at the pre-trial conference, the plaintiff was
ordered to pay costs to be taxed or agreed in favour of the defendant for all the noncompliance of orders of court. However, the plaintiff continued to be belligerent and
uncooperative. There was no agreement. The defendant wants to enforce his costs

order against the plaintiff.

(h)

Assume that the plaintiff is dissatisfied with the order to strike out his claim, what
is/are the remedies available to him? Depending on the outcome of the redress, what
are the costs consequences? Assume that the plaintiff had refused to respond to the
defendants request to attempt mediation despite numerous requests having been made
and bear in mind the aforementioned facts relating to the delays occasioned by the
plaintiff.

(i)

What if the plaintiff only decided to appeal against the order two months after it was
pronounced?

(j)

Assume that the plaintiff successfully appealed against the order to strike out his
claim. The action proceeded to trial, and the plaintiff was eventually awarded
$600,000 in damages. The defendant decided not to appeal. The defendant told you
that he owns and/or in possession of:
(i)
SGD2 million worth of antiques (some of which the Defendant owns, and
some of which it holds as a consignee) consigned for sale in an art gallery in
Singapore. A few pieces had already been sold for SGD400,000, and the defendant
expected the payment to be made into its a Singapore bank account two months later.
(ii)
A bungalow in JB which the defendant and his family lives in but the property
is registered in the defendants parents names. However, there are various high end
electrical appliances and items of furniture which his wife had purchased
(iii)
RM800,000 deposited in M Bank (JB Branch). The bank does not have any
branches in Singapore
The defendant is worried that these assets, among others, may be taken away by the
plaintiff to satisfy the judgment debt. Advise.

Question 2: For the purposes of this question, unless otherwise stated assume it is 26
September 205
David is the founder and owner of a fitness centre, Kings of the Gym. Peter is a personal
trainer who was hired by David some time in September 2009. Peter and David were law
school classmates in university and were good friends. When Peters legal career did not
work out, David offered him a job.
In the first two years of his employment, Peter was a star performer for the fitness centre,
winning the Employee of the Year award in both years. As a fitness fanatic, he often travelled
overseas on his own expense to learn about the latest trends in fitness, and incorporated these
into his popular lunchtime workout programs that attracted large corporate crowds practically
every weekday. Although Kings of the Gym had 15 personal trainers in employment during
that period, Peter reckons that he was personally responsible for raking in 30% of the
businesss revenue (which was about SGD 4 million per annum). In addition, as Peter bore
his own expenses for the overseas trips, David did not deduct his wages even though Peter
had exceeded his paid leave by a couple of weeks because of these trips.
In September 2012, Peter was badly injured at the workplace. One of the machines had not
been properly maintained, and a 10-kg metal weight slipped out of position and hit Peter in
his lower back while he was attempting to adjust the seat of the machine. Peter, who was not
insured, was hospitalised for a few weeks. When David visited Peter in hospital, Peter was in
a state of distress. The doctor had advised that Peter would be unable to go through any form
of rigorous exercise in the foreseeable future and also had to attend months of physiotherapy
sessions.
Peter was adamant that one of his colleagues, Thomas, whom he claimed to be jealous of his
popularity and success, had set him up. Peter demanded to see the roster for the
maintenance of machines for that day to ascertain if Thomas was indeed the last person to
have performed maintenance on the machines. David told Peter to calm down and that he
would look into the matter. He also promised Peter that he would personally pay for Peters
medical and physiotherapy bills, and that if Peter ever needed extended paid medical leave
(which he eventually did), it would be granted. David never fulfilled any of these promises,
but Peter did not say anything about it either at that time on account of their friendship.
Meanwhile, Thomas joined a rival fitness centre in December 2012.
When Peter returned to work in January 2013, he was no longer able to resume his duties as a
personal trainer as he was still recovering from his injuries. David said that he was willing to
keep Peter employed at his previous wage, but no longer as a personal trainer. Instead, David
wanted Peter to take over one of the receptionists who had just resigned. Peter was initially
reluctant, but accepted the offer as he wanted a job.
After a couple of months, however, Peter was diagnosed with clinical depression as he
struggled with his recovery from his injuries. He was unable to focus on his work. He begged
David to allow him to resume work as a personal trainer as he thought that not doing what he
loved was causing him the depression. David refused, saying that Peter was not in the correct
physical and mental condition to do so. However, he said that he might consider the matter
again at a later point in time. By April 2013, Peter stopped going to work altogether. He had,
against the doctors advice, stopped taking his medication in the weeks leading up to his
sudden disappearance. David attempted to contact him several times, but Peter had changed

his contact number and terminated the lease of his apartment with his landlord. In June 2013,
after hearing nothing from Peter, David took him off the payroll.
For the next two years Kings of the Gym grew significantly as a business. Although Peter was
gone, David insisted that the personal trainers continue to use and modify the workout
programs that Peter had designed and that had been so instrumental in popularising the fitness
centre. The business was so successful that David opened another six outlets in the city and
the total revenue in 2014 and 2015 were SGD 32 and 40 million respectively. David even
made the cover of the Singapore edition of Tatler, with him being described as the man
behind Singapores lunchtime workout revolution.
On 1 April 2015, David received an email from Peter, asking David to fulfil his promise to
pay for his medical and physiotherapy bills and extended medical leave. He also sought
reimbursement for his overseas travel expenses when he was in the employment of Kings
of the Gym as compensation for the centres continuing exploitation of the workout
programs that he had designed. With regard to the bills and the leave, David replied that these
were unenforceable promises as he just wanted Peter to feel better and that in any event, it did
not lie in Peters mouth to make these claims when he had vanished from work a couple of
years back without any explanation. As regards the workout programs that Peter had
designed, David maintained exercise routines simply cannot be copyrighted, and even if they
could, such intellectual property would belong to the business and not Peter.
Peter replied in a wordy email that was not very coherent, so David ignored it. Soon after,
David started receiving multiple SMSes from Peter everyday on this matter. The SMSes
became more and more aggressive with time. When David also refused to reply to this, Peter
pasted a notice on the entrance of one of the centres outlets, declaring that David owed
him a lot of money and was an dishonest man. David took the notice down, but Peter would
put up new ones at different outlets at different times each month, and even started posting on
the wall of the Facebook group page for Kings of the Gym (which has around 100,000
members). Things finally came to a head one day when David discovered on 17 September
2015 that one of the notices pasted on an entrance was something else it was a State
Court writ taken out by Peter. The accompanying statement of claim was badly drafted, with
no apparent causes of action discernible, but references were made to the medical and
physiotherapy bills, the extended paid medical leave, and the workout programs that Peter
had designed. The relief sought was damages (SGD 450,000) and reinstatement of his
employment at Kings of the Gym.
David has approached your firm after being turned down by three other firms to handle the
matter. The partner whom you are working for has assigned you to look into the matter.
David is concerned that Peters actions are hurting his personal reputation and also his
business and has asked for legal advice. As he does not think Peter can sue him successfully
for anything, he wants you to take the necessary steps to defeat this suit as quickly as
possible. He thinks that he may even have, inter alia, a counterclaim in harassment and/or
invasion of privacy, but he is not sure. Your preliminary research on this reveals that a tort of
harassment can probably be argued as a matter of law but not so much for the tort of invasion
of privacy. There also appears to be no local precedent or direct provision in the Copyright
Act that says exercise routines or choreographs can be copyrighted, but a quick search reveals
that other jurisdictions do provide some protection.

David says that Peter is only doing all of this because of recent financial troubles it was
reported recently in the newspapers that Peter had lost all of his life savings at the local
casino earlier in the year. Answer the following questions, bearing in mind that your advice
should also be commercially sensible:
(i) David was planning to go on his family vacation around this time of the year but is
delaying it until he has a very clear idea on the upcoming timelines and what is needed of
him. To protect Davids interests, what are the most plausible applications (including
those relating to pleadings) that you should be taking out and can be expected to defend
against up to the point of the close of pleadings? Your answer should include:
a. Any assumptions made as regards the facts, or any key information that you
would need from David before proceeding;
b. The legal basis of each application;
c. The chances of each application succeeding (that is, the strengths and
weaknesses);
d. The deadlines (where applicable) for each application, assuming no amendments
to the pleadings or extensions of time are granted;
e. The likely costs implications for winning/losing each application; and
f. Whether there is a possibility of either side appealing against the outcomes of any
of the applications.
(ii) Assume that leading up to the first pre-trial conference, it transpires that Peter has not
only refused to respond to letters of request for further and better particulars, he has also
refused to comply with an Assistant Registrars decision to file and serve further and
better particulars after an interlocutory hearing. On Davids part, however, he has
resisted disclosing certain documents that Peter had successfully sought for in a specific
discovery application. He insists vehemently these documents are not relevant.
a. What would you advise?
b. What likely costs implications might there be arising from any decision or
decisions rendered at this PTC?
c. Would any decision or decisions rendered at this PTC be appealable?
(iii) David is convinced that Peter would not have the means to pay him if David wins his
counterclaim(s). He wants to get, before the trial begins, a freezing order on Peters
assets. He also wants a search order on all the documents in Peters house as he thinks
that there may be some written evidence as regards any question on the ownership of
workout programs designed by Peter. Can he succeed in either application, and if not
what would you suggest he needs to do to increase his chances?
(iv) Assume that after the trial has started, Peters lawyer writes to you and says that he will
accept an offer of SGD 300,000 to settle the entire dispute. David is not impressed as he

thinks that not only is he not liable for anything, the most Peter deserves is SGD 50,000
and he wants you to counteroffer that amount. What would you advise?
(v) A key witness to the dispute cannot be found. What recourse is there for the purposes of
the trial?
(vi) Assume that Peter was awarded judgment (SGD 200,000 damages) at trial. He is trying
to enforce the judgment but David has asked you to lodge an appeal and a stay of
execution as he thinks the trial judgment is absurd. Is the stay application likely to
succeed? Assuming the stay is not granted, can David evade enforcement by not
disclosing his assets? Can the following items belonging to David be subject to
execution and if so through what means?
a. 100,000 shares in a public listed company worth SGD 800,000;
b. SGD 3 million in a bank account with a local bank which Davids monthly salary
is paid into; and
c. Davids personal and state-of the-art gym equipment in his home worth SGD
300,000.
(vii) Assume that the litigation is over, and David is handed the S&C bill of SGD 125,000.
For various reasons no order was made as to P&P costs. David does not think this bill is
warranted and is only prepared to pay SGD 50,000 as a lump sum, or at most SGD
60,000 over 24 monthly and interest-free instalments. Brief your partner on the best way
to proceed.