Can I Sue a Foreigner in Singapore?
(NOTE: The discussion in this article applies to civil proceedings that were commenced before 1 April 2022, and to which the previous Rules of Court 2014 apply. We are working on an updated version of this article that takes into account the new Rules of Court 2021.)
Having knowledge of how to sue a foreigner in Singapore is extremely useful, especially if one has personal or business dealings with foreigners or foreign companies in Singapore. This article provides a guide on how one can bring a lawsuit against a foreigner in Singapore.
The issue of whether one can sue a foreigner in Singapore concerns the jurisdiction of the Singapore courts, i.e. whether the court has the right to hear the case. The jurisdictional issue is determined by whether the intended defendant, who may be a natural person or a corporation, is situated in Singapore or abroad. Thus, the jurisdictional issue may be broadly posed as two questions:
- Is the intended defendant situated in Singapore or abroad?
- Is the intended defendant a natural person or a corporation?
In all instances, the claimant (previously known as the “plaintiff”) should also be located in Singapore to bring a lawsuit against a foreigner in Singapore.
Foreigner Situated in Singapore
A foreigner situated in Singapore has to be personally served with a writ of summons for the court to obtain jurisdiction over this foreigner.
A crucial characteristic of service within Singapore’s jurisdiction is that it is as of right – this means that the claimant can simply obtain process documents of the court, and he will have naturally have the right to serve the documents on the defendant. This differs from service out of Singapore’s jurisdiction on a foreigner, which requires the court’s permission to be obtained before service can be effected. This will be elaborated on below.
Slightly different rules apply if one wishes to sue a company situated in Singapore. A company may be served within Singapore if it is “physically present” in Singapore. Under common law, a company is present if it has been carrying on business in a fixed place of business within Singapore for a minimal period of time. Nonetheless, all circumstances will be taken into consideration to determine whether sufficiently substantial business had been carried out within Singapore, such that the company can be regarded as present within Singapore.
For a company physically present in Singapore, personal service has to be effected on an officer of the corporation. Personal service may also be effected on an agent of the company. However, the agent must have had the authority to run the business, and control or management over such business occurring within Singapore which is related to the cause of action.
For a foreign company incorporated under Singapore law, it is possible to serve legal documents on the company by leaving them at or sending them by registered post to the company’s registered address.
For branches of foreign companies registered in Singapore, service can be effected by leaving the service documents at or sending them by post to its registered office, or the registered address of its agent. However, these registered foreign companies must be in compliance with the Companies Act with regard to the following requirements:
- they must be registered in Singapore;
- they must have a registered office in Singapore; and
- they must appoint two or more natural persons resident in Singapore as agents authorised to accept any service of process on its behalf.
Foreigner Situated Abroad
Before one can bring a lawsuit against a foreigner situated abroad, it is necessary for the claimant to apply to the Singapore courts for permission (previously known as an “application for leave”) to effect personal service on the intended foreign defendant. To obtain such permission, the claimant must prove the following:
- One of the heads of jurisdiction prescribed in Order 11 Rule 1 of the Rules of Court is fulfilled on the basis of “a good arguable case”;
- There is a serious issue to be tried on the merits; and
- Singapore is a proper forum to try the action.
The above requirements apply equally to foreign corporations and natural persons alike. Fulfilling these three requirements will ensure that the case is a “proper” one for service out of Singapore, and the court will accordingly grant permission to the claimant to serve a writ on the foreigner abroad.
As permission is granted without notice to the potential defendant, full and frank disclosure of all material facts is required. Ultimately, this makes effecting service on a foreigner situated abroad more complicated than effecting service on a foreigner situated in Singapore.
(1) Heads of jurisdiction under Order 11 of the Rules of Court
There must be a “good arguable case” that the claim comes within one of the 18 specified heads of jurisdiction under Order 11 Rule 1 of the Rules of Court.
One of the heads of jurisdiction specifies that a defendant may be served outside Singapore with the court’s permission if he is domiciled, ordinarily resident, or carrying on business, or has property in Singapore. This provision is not confined to corporations and may apply to natural persons. It should be noted that an individual carrying on business in Singapore, whether by an agent or otherwise, can be brought within the jurisdiction of the Singapore court under this provision.
Other heads of jurisdiction under Order 11 Rule 1 include, but are not limited to, the following:
- Permission may be granted where the claimant is claiming to “enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of contract”, and if the contract is linked to Singapore in a specified way;
- Permission may be granted by court for service out of jurisdiction if the claimant’s claim is founded on a cause of action arising in Singapore;
- Permission may be granted in tort cases where the claim is founded on a tort, wherever committed, which is founded at least in part by an act or omission occurring in Singapore;
- Permission may be granted for service out of jurisdiction where an injunction is sought ordering the defendant to do or refrain from doing anything in Singapore.
(2) Serious issue to be tried on the merits
To show that there is a “proper” case for service out of jurisdiction, the claimant must also convince the court that there is a serious issue to be tried on the merits of the case. This generally refers to a substantial question of fact or law which the claimant has a genuine desire to be tried.
(3) Singapore is the proper forum for the case to be heard
To show a “proper” case for service out of jurisdiction, it is necessary for the defendant to convince the Singapore court that Singapore is the natural forum to try the case.
To determine whether Singapore is the natural forum to try the case, the courts will enquire if Singapore is the forum where the case may be most suitably tried for all the parties and the ends of justice (the Spiliada test). The legal test involves two steps:
- First, the court will consider whether Singapore is the jurisdiction which has the closest and most real connection with the dispute
- Second, the court will consider if there will be a denial of justice if the case is tried in that jurisdiction.
The claimant will have the burden of proving that Singapore fulfils these requirements.
As an application for permission to serve on a foreign defendant situated abroad involves complex legal analysis, it is highly advisable that you engage a lawyer to assist you.
Overarching consideration: Is it practical to sue in Singapore?
In making the decision to sue a foreign defendant in Singapore, it is important to consider if it is worthwhile and practical to do so. Some of the practical considerations are highlighted below.
Does the foreign defendant have assets in Singapore?
An important consideration would be whether the foreigner has any assets in Singapore for the judgment to be enforced against. For example, it would be practical to attempt to enforce a Mareva injunction against a foreigner defendant in a Singapore court if all his assets are in Singapore.
However, if the foreigner defendant has most of his assets in other countries, then it would be prudent for the claimant to first determine if that jurisdiction would recognise and enforce a Singapore judgment before commencing legal proceedings in Singapore.
Does the cause of action concern foreign immovable property?
It should be noted that the Singapore court has no jurisdiction to hear disputes involving title to or rights of possession in foreign immovable property. This includes claims for the proceeds of the sale of immovable property, if the claim turns upon a question of title or possessory right. Nonetheless, this is subject to several exceptions, one of which is where the claim is based on a contract or personal equity between parties.
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