A lawsuit in Singapore begins when the plaintiff – the person or entity (company) that brings the case to court based on a legal claim – serves a Writ of Summons on the defendant – the person or entity that is being sued. The Writ of summons is a document which is used to commence a civil action. It notifies the defendant that the plaintiff has started legal proceedings against the defendant, so that the defendant can decide whether he or she wishes to contest the plaintiff’s claim.
If you have been served a Writ of Summons and you wish to defend your case in Court, you will need to file a Memorandum of Appearance before the deadline stated in the Writ (typically eight (8) days).
A memorandum of appearance is an important document required in a civil suit. Examples of civil suits include divorce proceedings, claims by creditors for unpaid debts. The purpose of the Memorandum of Appearance is to inform both the Court and the plaintiff that you intend to appear in Court to contest the plaintiff’s claim. The time limit for filing a memorandum of appearance is eight days after you have been served the Writ of Summons.
Do I have to file a Memorandum of Appearance?
The key question at this stage is whether you wish to contest the plaintiff’s claim.
If you do not wish to contest the plaintiff’s claim, then you do not need to file a Memorandum of Appearance. Instead, you will have to follow the instructions provided by the plaintiff in his or her Writ of Summons, for example, by paying the demanded sum of money. This may reduce the legal costs you may have to pay to the Plaintiff compared with if you contested the claim. It is important to note that any awards of (i.e. the need to pay the other party’s legal fees) are at the discretion of the Courts.
On the other hand, if you wish to contest the plaintiff’s claim, you must respond by filing a Memorandum of Appearance by the appropriate deadline. You can prepare and send the document personally, or your lawyer can do this for you.
How do I do it?
A Memorandum of Appearance may be filed with the Court either online through the Court’s eLitigation website or in hard copy by visiting a LawNet Service Bureau.
Additionally, a copy of the Memorandum of Appearance must be sent to either the plaintiff, if he or she is suing in person, or to the plaintiff’s solicitors, if the plaintiff has legal representation.
What should I include?
The Memorandum of Appearance must be in a specific format specified in the Rules of Court.
By law, the Memorandum of Appearance must be signed by you or by your solicitor and must include either your residential address if you intend to defend the case in person or the address of your solicitor if you intend for your lawyer to represent you. If you do not have a residential address in Singapore, you will still need to include an address in Singapore where documents can be sent to you.
If you do not specify your address or if the address that you include is not genuine, then the plaintiff can apply to the Court to have the Memorandum of Appearance set aside. This means that you would be unable to defend your case and a judgement in default of appearance would be entered against you.
What if I miss the deadline?
It is still possible to enter an appearance after the deadline but only at the discretion of the Court.
What if I ignore the writ of summons?
If you do not file a Memorandum of Appearance to state your intention to defend your case, the plaintiff may apply for a judgement in default of appearance to be entered against you. In this case, the law will consider your failure to enter an appearance as an effective admission of all the allegations made by the plaintiff.
This means essentially that the plaintiff’s claim will be successful and you will not be able to defend your case. The plaintiff will then receive whatever relief he or she claimed from the court, in addition to any filing fees or court costs related to the case. If this happens, the plaintiff can legally claim your money, salary, and property in payment for the judgment.
If a default judgment has been entered against you, it may still be possible to apply to the Court to have it set aside, though there are no guarantees that this application will be successful.
The Court will set aside the default judgement procedural defects were present in the grant of the default judgment, unless the plaintiff can show that the defendant was bound to lose. If there were no procedural defects, you would need to prove that your case had triable legal issues before the Court will set aside the default judgement.
I was never served a writ of summons. What can I do?
According to the Rules of Court, if you were named as a defendant in a Writ but the Writ was not served on you, you may serve a notice on the plaintiff requiring him or her either to serve the Writ on you or to discontinue the lawsuit. The notice must provide the plaintiff with at least 14 days to serve the Writ.
If the plaintiff then fails to comply with this notice within the time specified, you may apply to the Court for an order to have the plaintiff’s lawsuit to be dismissed.
Even if I have already filed a memorandum of appearance, can I still contest service or the jurisdiction of the Court?
Yes, you can. The filing of an appearance does not constitute a waiver of the defendant’s right to contest the regularity or service of the writ or the jurisdiction of the court over the dispute.
What happens after I submit a memorandum of appearance?
You must prepare your defence and possibly, a counterclaim if you believe that you have a legal cause of action against the plaintiff. You have 22 days from the date on which you were served the Writ of Summons to prepare and file your defence.
Once you have filed your defence and served a copy to the plaintiff, the plaintiff may serve his reply and, if you included a counterclaim, his defence to this, within 14 days.
A judgement in default of defence may be made against you if you file a memorandum of appearance but do not file a defence.
The article was originally posted at irblaw.com.sg