Introduction

Service of a Writ of Summons (Writ) on a company is typically effected by leaving the Writ at or sending the Writ by registered post to the registered office of the company. Corporate defendants need to be vigilant when a Writ has been served, lest a default judgment is entered against them when they do not respond.

Due to the COVID-19 pandemic, “work from home” (WFH) arrangements have become the “new normal”. This raises the question: if a Writ is served on a company’s registered address when there is no one on-site to collect it, will the Writ be considered validly served? This question was explored in the recent Singapore High Court (SGHC) decision of Genuine Pte Ltd v HSBC Bank Middle East Ltd Dubai [2021] SGHC 104 (Genuine).

Brief Facts

In response to COVID-19, the Singapore Government implemented Circuit Breaker measures from 7 April to 1 June 2020. Subsequently, Genuine Pte Ltd, the Defendant, was permitted to operate from its registered office from 19 June 2020 onwards with the easing of Circuit Breaker measures. However, the Defendant chose to continue with full remote WFH arrangements.

On 4 August 2020, HSBC, the Plaintiff, served a Writ by leaving a copy of the document at the Defendant’s registered office. On 19 August 2020, a default judgment was issued as the Defendant failed to enter appearance. The Defendant only discovered the Writ on 12 September 2020, when a director of the Defendant returned to the office.

Dissatisfied, the Defendant sought to set aside the default judgment for being an irregular judgment on the basis that no one was physically present at its registered office at the time of service. The Defendant argued that it was merely complying with a circular issued by the Ministry of Manpower which stipulated that remote work arrangements should remain the default.

Decision

The Defendant sought to rely on the English High Court (EWHC) decision of Melanie Stanley and London Borough of Towers Hamlet [2020] EWHC 1622 (QB) (Melanie Stanley). In Melanie Stanley, the EWHC set aside a default judgment entered in default of appearance during the COVID-19 pandemic. It held that the Writ was invalidly served because it was served at a time when it was known or should have been known that office premises would be closed down just before the start of a national emergency “lockdown” (the equivalent of Singapore’s Circuit Breaker).

However, the SGHC disagreed with the Defendant and distinguished the situation before it. In Melanie Stanley, the Writ was served at the very start of the “lockdown” period and so “there was simply no way” the defendant company “could have become aware” of the service of the Writ.

In contrast, the Defendant “could have become aware” that Writ was served. The Plaintiff effected service of the Writ about one and a half months after the Phase Two Re-opening. The easing of the Circuit Breaker measures during this period made it possible for the Defendant to make arrangements for personnel to return to the office, even if not every day, to check to see if there were matters that needed attending to. However, the Defendant made no such arrangements. Further, the Defendant knew that the Plaintiff had threatened to commence legal action. The SGHC accordingly held that the Writ was validly served.

Case Comment

The decision in Genuine only addressed the situation where it is possible for employees to return to the office even though WFH is the default arrangement. It remains to be seen whether the Singapore Courts will adopt the English position in Melanie Stanley when writs are served during a Circuit Breaker type situation, where all non-essential businesses have to stop operating from their office premises and residents have to stay home save for very limited exceptions.

The lesson to be drawn from the decision in Genuine is that even though many companies have adopted WFH as the default arrangement, it would be prudent for such companies to put in place a system for someone to check the registered office for documents that have to be attended to by the company. This is because it is well established that service of documents at a company’s registered office is valid even if the company never received those documents, such as when the company had already ceased to do business at its registered office. Alternatively, if threatened legal proceedings are imminent, a potential defendant may wish to appoint a law firm to accept service on its behalf to ensure that any document served is not inadvertently missed.

The decision in Genuine is currently under appeal. It will be interesting to see if the Appellate Division of the High Court will give any guidance on service of Writs (and other originating processes) during Circuit Breaker type situations even though it is not the situation squarely before it.

If you have any questions about the conduct of legal proceedings in the “new normal”, please feel free to contact us.