The difference between a statutory deadline and case management conference deadline

29 August 2013

Arthur Yap

The rules of procedural have long governed parties’ conduct of proceedings and the importance of procedure cannot be understated – to facilitate an expeditious disposal of disputes as well as promoting certainty and finality in the pursuit of parties’ respective cases. On the other hand, the courts have long recognised that procedural defaults are not a reflection of the actual merits of the case.

The court’s interest in observing procedural rules must therefore always be balanced against the interest of the individual justice on the merits of the case. In this regard, the courts, when faced with a procedural default, would often embark on an enquiry as to the nature and circumstances of the default (for example whether the default was egregious, contumelious or willful) and whether any prejudice suffered by the innocent party may be compensation by an appropriate cost order. In most instances, the defaulting party would be ordered to rectify the default and pay costs to the innocent party for any prejudice suffered by reason of such default. Rarely would the court punish the defaulting party by striking out the claim or defence as the case may be, or with respect to trade mark oppositions, strike out the application mark.

As regards trade mark oppositions, it is long settled that an applicant (i.e. the party who applied for registration of a trade mark) has 2 months to file its evidence after the opponent (i.e. the party who opposes the registration of the trade mark) has served on the applicant the same. Failure on the applicant’s part to comply will result in the applicant being deemed to have withdrawn the application. This deadline is enshrined under Rule 33 of the Trade Marks Rules and is a statutory deadline.

Concurrently, the Intellectual Property Office of Singapore (“IPOS”) also holds case management conferences wherein the Registrar will routinely issue directions to parties as regards the procedural conduct of the case in question. For example, if parties are exploring the possibility of settlement, the Registrar would typically issue relatively long timelines for the filing of evidence. Such deadlines are known as case management conference deadlines (“CMC deadlines”) and must not be confused with statutory deadlines.

Ideally CMC deadlines mirror the statutory deadlines and in such cases, there is no opportunity for parties be mistaken and fall into error. Occasionally, as with the case in Distileerderij En Likburstokerij Herman Jansen B V v Tilaknagar Industries Ltd [2013] SGIPOS 3, CMC deadlines do not mirror the statutory deadlines. In this case, the CMC deadline for the applicant to file its evidence was 2 April 2013 whereas the statutory deadline to do so was only 3 December 2012. In the circumstances, the applicant failed to file its evidence by the statutory deadline and by Rule 33 of the Trade Marks Rules, the applicant was deemed to have withdrawn its application to register its trade mark. On the applicant’s attempt to restore the application and to file evidence, the applicant’s solicitors explained that this procedural error was due entirely to their fault as they had mistook the CMC deadlines as having superceded the statutory deadline. In other words, the fault was not due to the applicant at all. Interestingly, the Registrar held, on the facts, that the applicant had, inter alia, failed to show any good and sufficient reason to justify the delay and thus considered that the strict adherence to the rules of procedure (i.e. the statutory deadline) outweighed the applicant’s interest in having the matter fully and finally resolved at an opposition hearing (i.e. a determination on the merits).

The harshness of this decision serves as a stark reminder that CMC deadlines must never be confused with statutory deadlines. Statutory deadlines must always be observed regardless.