Penal endorsements are mandatory; do not strike them out

Image credit: https://mediationblog.kluwerarbitration.com/2018/11/19/to-compel-or-not-to-compel-is-mandatory-mediation-becoming-popular/

Nothing quite gets under the skin like a penal endorsement that has been struck-through. Picture this scenario:

• A heavily-contested injunction is fought-out. After much deliberation, the Court allows the application;

• The Draft Order is drawn up. It contains a penal notice (entered pursuant to O. 45, r. 7 ROC 2012, Form 83) and 3 copies are served on opposing Counsel;

• The draft is then returned, with the Penal Endorsement struck-through.

This practice is to be excoriated.   

What is the Penal Endorsement?

The Penal Endorsement is contained in Form 83 ROC 2012. It reads as follows:

______________________

NOTICE ON CERTAIN JUDGMENTS (O. 45, r. 7)

The endorsement should be in the following words or words to the following effect: (a) In the case of a judgment or order requiring a person or body corporate to do an act within a specified time- "If you, the within-named.................................................. (or.....................................) neglect to obey this judgment (or order) by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the same." (b) In the case of a judgment or order requiring a person to abstain from doing an act − If you, the within-named.................................................. disobey this judgment (or order), you will be liable to process of execution for the purpose of compelling you to obey the same. (c) In the case of a judgment or order requiring a body corporate to do or to abstain from doing the act, but it is sought to take enforcement proceedings against a director or other officer of that order. "If............neglect to obey this judgment (or order) by the time therein limited (or in the case of an order to abstain from doing an act, if ...... ...................... disobey this judgment (or order), you (a director or officer of the said ....................................) will be liable to process of execution for the purpose of compelling the said to obey the same."

______________________

The Penal Endorsement allows for one to apply to commit a person who breaches a Court Order (application to commit pursuant to O. 52 ROC 2012). Whilst there are divergent cases on the strict need for the Penal Endorsement, the general view adopted by most Courts would be that the Penal Endorsement is a mandatory requirement, prior to one moving an application for committal.

What does one do if the Penal Endorsement is struck-through?

In the event a Penal Endorsement is struck-out, the question that then arises would be whether this is right and proper.

The answer to this is an overwhelming no.

In Koh Hsi-Pin Vivian v RSD Hospitals [2020] MLJU 394, Wong Kian Kheong J (presiding JCA) determined this issue. Having exhaustively combed-through the law with regard to this matter, His Lordship concluded as follows:

D. Who is entitled to apply to court to endorse Form 83?

[15]  As explained in the above sub-paragraph 14(1), the purpose of Form 83 is to enable X (the party who is successful in obtaining a Judgment/Order) to enforce the Judgment/Order by way of committal proceedings. As such, I am of the view that X is entitled to apply to the court (which has given the Judgment/Order) to “endorse” Form 83 in the Judgment/Order. This decision is supported by the learned authors of “Atkin’s Encyclopaedia of Court Forms in Civil Proceedings”, 2nd Edition (1993 Issue), Volume 23, at paragraph 22, as follows:

“22. Drawing up of Chancery judgments and orders generally.

It is the practice in the Chancery Division to leave the matter of whether and how to serve the order on the parties, and the indorsement of any penal notice in the hands of the party having the carriage of the order.”

[16]  It is, of course, open to X to leave out Form 83 in a Judgment/Order obtained in X’s favour. In such an event, X takes the risk of not being able to enforce subsequently the Judgment/Order by way of committal proceedings. If X perfects a Judgment/Order without Form 83, intentionally or inadvertently, Part G(3) below will discuss whether X can apply subsequently to court (which has sealed the Judgment/Order) to insert Form 83 in the perfected Judgment/Order.

E. Can court refuse to endorse Form 83 in Judgment/Order?

[17]  If X’s solicitor forwards a draft Judgment/Order with an Endorsed Form 83 to Y’s solicitor and if Y’s solicitor objects to the Endorsed Form 83, the question that arises is whether the court has any discretionary power under O 42 r 8(4) and/or O 45 r 7(4) RC to refuse to endorse Form 83 in the Judgment/Order.

[18]  I am of the view that in the circumstances stated in the above paragraph 17, the court has no discretion under O 45 r 7(4) RC to refuse X’s application to endorse Form 83 in a Judgment/Order. My reasons are as follows:

[22]  Based on the above reasons, the SAR’s Decision is correctly made because notwithstanding the Defendant’s objection, the learned SAR has no discretionary power to refuse the Plaintiff’s application to endorse Form 83 on the Consent Order. 

His Lordship made the following salient observations:

1. The Penal Endorsement was optional. One may or may not put it into an order;

2. Failure to insert the Penal Endorsement would (probably) remove one’s recourse to a committal application;

3. The Penal Endorsement does not form part of the Judgment/Order;

4. Should a sealed Order/Judgment fail to carry a Penal Endorsement, the same can still be annexed at a later date (see Paragraphs 14 and 36-39).

Crucially, His Lordship determined that the learned SAR has no discretion to refuse the application to endorse the Penal Notice.

His Lordship’s decision was emphatically applied by Aliza Sulaiman J in MRA International v SPC Diatech LLC [2022] MLJU 1215.

Key takeaways

Just because one was unsuccessful in an application, that does not mean the end of the world.

The Penal Endorsement can be recorded on the Order and it would behoove one as solicitor to advise one’s client to strictly abide-by the Order. Attempting to wriggle and wrangle one's way out of complying with the Order (especially through the relatively administrative route of objecting-to a Penal Endorsement) is an utterly pedestrian manner of dealing with thorny issues. The best route would be to appeal the Order and to further seek a stay of execution/enforcement of the order.

Conclusion

Parties must be circumspect and proper when dealing with draft orders. When one deletes the draft order willy-nilly, one can very well expect that the opposing solicitor will write to Court (probably quoting the cases above) to request that the Court disregards your purported “deletions”. That would render one quite egg-faced.

GAVIN JAYAPAL

______________________________________________________________

The information contained here is for general information purposes only. The writer does not endeavour to keep the information up to date and correct, makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the article or the information, products, services, law, cases or related graphics contained herein for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

For all you know, this article could have been produced by a chimp with a typewriter, blessed with an infinite loop of time.

Consult your solicitor before you undertake any legal action whatsoever. In no event will the writer be held liable for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits arising out of, or in connection with, the use of this article.

Through this article you are able to link to other websites which are not under the writer’s control. The writer has no control over the nature, content and availability of those sites. The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them.