42 We pause here to note that “unless orders” remain a potent tool for the efficient and prompt administration of justice. It is axiomatic that this is indispensable to the practical realisation of the rule of law. As Auld LJ observed in Hytec at 1674–1675:

Because it is his last chance, a failure to comply will ordinarily result in the sanction being imposed. … This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure. … The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused by the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weighs very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.

[emphasis in original]

35 It is self-evident that the breach of an “unless order” will automatically trigger its specified adverse consequences (see Jeffrey Pinsler SC, Principles of Civil Procedure (Academy Publishing, 2013) at para 01.032). The onus will then be on the defaulting party to demonstrate that the breach had not been intentional and contumelious so as to avoid those consequences. The locus classicus for this proposition is traceable to Sir Nicolas Browne-Wilkinson VC’s decision in In re Jokai Tea Holdings Ltd [1992] 1 WLR 1196 (“In re Jokai Tea Holdings”) at 1203B:

In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an ‘unless’ order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.

36 The same criteria has been affirmed in the Singapore courts, notably by this court in Syed Mohamed Abdul Muthaliff v Arjan Bhisham Chotrani [1999] 1 SLR(R) 361 (“Syed Mohd”). However, in Syed Mohd the judicial discretion to grant extensions of time was also emphasised by the interpolation that the “intentional and contumelious” test was not exhaustive. The following exposition was offered at [14] of Syed Mohd:

Whether or not the default was ‘intentional and contumelious’ is not the sole criterion upon which the discretion of the court in deciding whether or not to strike out is exercised. …

The crux of the matter is that the party seeking to escape the consequences of his default must show that he had made positive efforts to comply but was prevented from doing so by extraneous circumstances.

[emphasis in original]

47 Finally, we do not think that the more calibrated use of “unless orders” would be translated into a charter for delay, as litigants who commit process breaches will continue to be penalised and remain vulnerable to the ultimate sanction of a striking-out order. It also remains the case that under O 24 r 16(1) of the Rules of Court, an action or defence can be struck out for failure to make discovery of documents even if the defaulting party rectifies his non-compliance. The court’s power to strike out an action may be properly invoked in cases involving an inexcusable breach of a significant procedural obligation. It follows that the breach of an “unless order” which compels discovery will be susceptible to such an order. This was the case in Manilal and Sons (Pte) Ltd v Bhupendra K J Shan [1989] 2 SLR(R) 603 (at [61]–[63]) and in Tan Kok Ing v Ang Boon Aik [2002] SGHC 215 (at [30]), where the documents which were deliberately withheld in breach of “unless orders” pertained materially to the pleadings. In the latter case, Woo Bih Li JC (as he then was) commented at [36] that a failure to disclose need not be continuing before it is capable of attracting a remedial response from the courts, as this would create a moral hazard wherein a defaulter can “quickly offer to make disclosure once his deception has been discovered”. Such concerns are both legitimate and genuine, and we would add that litigants who have demonstrably conducted themselves in this fashion are likely to conspire to sabotage a fair trial as well. For example, in Lee Chang-Rung v Standard Chartered Bank [2011] 1 SLR 337 (at [34]– 35]), Tay Yong Kwang J upheld the striking out of the plaintiffs’ action for failure to comply with an “unless order” because their conduct did not suggest that they would take their discovery obligations seriously and pursue their claim honestly and fairly.

48 It is clear beyond peradventure that the court is entitled to look at all circumstances in its assessment of whether the striking-out application should be granted. Indeed, in exceptional circumstances, an action may be struck out even where there might still be a reasonable prospect of a fair trial, as acknowledged in Singapore Civil Procedure 2013 vol 1 (G P Selvam ed-in-chief) (Sweet & Maxwell Asia, 2013) at para 24/16/1:

Although the normal prerequisite for the striking out of an action under r.16 is the existence of a real or substantial or serious risk that fair trial will no longer be possible, in cases of contumacious conduct, the deliberate destruction or suppression of a document or the persistent disregard of an order of production would engage the court’s jurisdiction and justify a striking out order even where a fair trial was still possible …

45 It repays reminding that the immediate purpose of an “unless order” is not to punish misconduct but to secure a fair trial in accordance with due process of law (see also Disclosure at para 17.05). Since it is axiomatic that “unless orders” must mean what they say, it is imperative that such orders are drafted with due care and consideration. This point is well-made in Zuckerman on Civil Procedure: Principles of Practice (Sweet & Maxwell, 2nd Ed, 2003) at para 10.143:

If unless orders are to be effective in securing timely compliance they must, first, be used sparingly, as has just been suggested. Second, unless orders will tend to be taken seriously only if the parties believe that they would be enforced. The wise counsel that one should not make threats that one cannot carry out, or mean to do so, applies to court orders with even greater poignancy. Idle threats would diminish the authority of the court and undermine the normative force of rules and court orders. It follows that a court should not stipulate consequences that would infringe the right to fair trial or would be otherwise unjust. Put differently, an unless order should only stipulate consequences that it would be proper, on the basis of the information then available, to visit on the defaulter.

With all of the foregoing points in mind, we would suggest the following guidelines for the more scrupulous use of “unless orders”:

(a) “unless orders” stipulating the consequence of dismissal should not be given as a matter of course but as a last resort when the defaulter’s conduct is inexcusable;

(b) the conditions appended to ‘unless orders’ should as far as possible be tailored to the prejudice which would be suffered should there be non-compliance; and

(c) other means of penalising contumelious or persistent breaches are available, including but not limited to

(i) awarding costs on an indemnity basis;

(ii) ordering the payment of the plaintiff’s claim or part thereof into court where the defaulting party is a defendant (see Husband’s of Marchwood Ltd v Drummond Walker Developments Ltd [1975] 1 WLR 603 at 605);

(iii) striking out relevant portions of the defaulting party’s Statement of Claim or Defence rather than the whole;

(iv) barring the defaulting party from adducing certain classes of evidence or calling related witnesses; and

(v) raising adverse inferences against the defaulting party at trial.

46 In this regard, the draconian sanction of striking out a litigant’s claim or defence in its entirety should not be the default consequence of an “unless order” as it would effectively deprive the litigant of its substantive rights on account of a procedural fault. The public interest in the timely delivery of justice does not necessitate all “unless orders” to carry a nuclear payload. Indeed, the indiscriminate issuance of such heavy-handed orders will undermine their enforceability and thereby also their core function of deterrence. There is also a serious risk that the fair administration of justice will be frustrated if “unless orders” become a quotidian feature of civil litigation. Interlocutory procedure will begin to resemble a strategic game of brinksmanship when profligate use of peremptory orders is accompanied with ever shorter time-lines for compliance. In the instant appeal we were concerned that the time given for compliance with the first and second Unless Orders – five days including the weekend – was rather short given that the Appellant did not have direct access to the subject documents. The early availability of “unless orders” allowed the Respondent to rapidly compound the weaknesses in the Appellant’s position and to push home its advantage with alacrity. While the Respondent was not entirely without fault, we thought that the precipitous foreclosure of its procedural options was startling.

[emphasis in original]