Case Details
- Title: Allergan, Inc and another v Ferlandz Nutra Pte Ltd
- Citation: [2015] SGHC 5
- Court: High Court of the Republic of Singapore
- Date: 13 January 2015
- Judges: George Wei JC
- Case Number: Suit No 34 of 2013 (Summons No 5175 of 2014)
- Tribunal/Court: High Court
- Coram: George Wei JC
- Decision Date: 13 January 2015
- Plaintiff/Applicant: Allergan, Inc and another
- Defendant/Respondent: Ferlandz Nutra Pte Ltd
- Counsel Name(s): Alban Kang Choon Hwee and Oh Pin-Ping (ATMD Bird & Bird LLP) for the plaintiffs; The defendant in person.
- Legal Areas: Civil Procedure; Representation of Companies; Trade Marks; Passing Off; Injurious Falsehood
- Statutes Referenced: Rules of Court (Cap 322, R 5, 2014 Rev Ed); Trade Marks Act (Cap 332, 2005 Rev Ed)
- Key Procedural Provision: Order 1 rule 9(2) and Order 1 rule 9(4) of the Rules of Court; Order 5 rule 6(2) of the Rules of Court
- Related/Noted Case: Bulk Trading SA v Pevensey Pte Ltd and another [2014] SGHC 236
- Cases Cited: [2014] SGHC 236; [2015] SGHC 5
- Judgment Length: 13 pages, 7,736 words
Summary
Allergan, Inc and another v Ferlandz Nutra Pte Ltd concerned a procedural application under Order 1 rule 9(2) of the Rules of Court. The defendant, a Singapore company, sought leave for its sole director and shareholder, Mr Lee Boon Guan, to act on the company’s behalf in ongoing trade mark and related claims. The application arose after the defendant’s former solicitors discharged themselves, leaving the company without legal representation at a late stage of the litigation.
The High Court (George Wei JC) treated the application as raising two principal questions: first, whether the procedural requirements for an Order 1 rule 9(2) application were complied with; and second, whether the court should exercise its discretion to grant leave. Although the plaintiffs did not oppose the application in principle, the court emphasised that leave is not automatic and must be granted only if the procedural framework is satisfied and the discretion is properly exercised.
What Were the Facts of This Case?
The underlying suit (Suit No 34 of 2013) was brought by Allergan, Inc and a related entity against Ferlandz Nutra Pte Ltd for alleged intellectual property wrongs. The plaintiffs’ case was that the defendant’s eyelash-growth product, marketed under the LASSEZ mark, infringed the plaintiffs’ registered LATISSE trade mark. The plaintiffs also pleaded passing off and injurious falsehood, alleging that the defendant’s conduct misled consumers and harmed the plaintiffs’ goodwill and trade mark interests.
On the trade mark side, the first plaintiff is an American pharmaceutical corporation that manufactures an eyelash-growth product used to treat hypotrichosis, a condition characterised by inadequate hair growth. The product is marketed under the LATISSE trademark. The LATISSE trademark is registered in Singapore in Class 5 under the Trade Marks Act for pharmaceutical preparations used to treat eyelashes. The plaintiffs asserted that they had been using the LATISSE trademark in Singapore since January 2011, and that the defendant’s LASSEZ product was sufficiently close to infringe and to cause confusion.
With respect to injurious falsehood, the plaintiffs’ claim was tied to an alleged letter from the United States Food and Drug Administration (FDA). The plaintiffs alleged that the defendant distributed a letter that created the impression that the plaintiffs’ product was risky, hazardous, and unsafe. The plaintiffs contended that the safety issue had long been resolved with the FDA, and that the product was the only FDA-approved treatment for hypotrichosis. The defendant denied these allegations, including denying distribution of the FDA letter and denying any injurious meaning.
Procedurally, the litigation had progressed significantly before the Order 1 rule 9(2) application. The writ was issued on 14 January 2013, and the defence and counterclaim were filed on 6 February 2013. By the time the defendant sought leave, the parties had already filed affidavits of evidence-in-chief in preparation for a trial fixed for the end of November 2014. The defendant’s former solicitors discharged themselves on 22 August 2014, and the defendant then filed Summons No 5175 of 2014 seeking leave for Mr Lee to act for the company.
What Were the Key Legal Issues?
The first legal issue was procedural: whether the defendant complied with the requirements for an Order 1 rule 9(2) application. In particular, the court had to consider the requirements in Order 1 rule 9(4) of the Rules of Court, which govern what must be addressed in the supporting material when a company seeks leave for an officer to act in proceedings. The court’s concern was not merely formal compliance, but whether the affidavits provided the necessary basis for the court to decide whether leave should be granted.
The second issue was discretionary: even if the procedural requirements were met, should the court exercise its discretion to grant leave for Mr Lee to act on behalf of the defendant. This required the court to consider the context of the litigation, the stage of proceedings, the reasons for the application (including any explanation of impecuniosity), and whether the application was properly supported by evidence rather than assertions.
A further practical dimension was that the plaintiffs maintained a neutral position. The court therefore had to clarify that consent or lack of opposition does not bind the court; the court retains an independent duty to ensure that the procedural safeguards and fairness considerations underlying the representation rules are respected.
How Did the Court Analyse the Issues?
The court began by situating the application within the general rule that companies must be represented by solicitors. Order 5 rule 6(2) of the Rules of Court provides that a company must be represented by a solicitor in legal proceedings. That rule is subject to the exception created by Order 1 rule 9(2), which allows the court, on application by a company, to give leave for an officer of the company to act on the company’s behalf in any matter or proceeding. The court noted that the amended Order 1 rule 9(2) applied to matters regardless of whether they were commenced before or after 1 May 2014.
Turning to the procedural requirements, the court scrutinised the affidavits filed in support of the application. Mr Lee swore the first affidavit. While it stated that he was a director and that he was authorised to make the affidavit, it did not state why leave should be granted. The only relevant exhibit was an ACRA report showing the defendant’s share capital and that Mr Lee was the sole shareholder and only named director. The remainder of the affidavit dealt with allegations on the merits of the plaintiffs’ claims, which the court considered largely irrelevant to the narrow procedural question under Order 1 rule 9(2).
Critically, the court observed that the first affidavit did not comply with the requirements in Order 1 rule 9(4). The court therefore adjourned the hearing to allow the defendant to file a further affidavit that complied with the required content. This approach reflects a judicial insistence that the court must be given a proper evidential basis to determine whether leave should be granted, rather than being asked to infer reasons from the officer’s status alone.
In the second affidavit, affirmed by Ms Lee (the corporate secretary), the defendant asserted that Mr Lee had experience in pharmaceutical companies and had the knowledge to act. The affidavit also stated that the defendant had depleted its financial resources due to heavy legal expenses and that the time spent in proceedings affected business operations and revenue. However, the court found that the exhibit purported to show financial statements was in fact only a bank statement showing a small balance in the defendant’s UOB account as at 31 August 2014. The affidavit did not provide a fuller picture of the company’s financial position, did not explain when Ms Lee was appointed as corporate secretary, and did not reconcile the corporate secretary information with the ACRA report which named a different person.
Because of these deficiencies, the court adjourned again and required further evidence. At the resumed hearing, the court asked for an explanation of Ms Lee’s position as corporate secretary and for evidence of impecuniosity and reasons for the application. In the third affidavit, Mr Lee stated that Ms Lee was appointed corporate secretary on 1 November 2014 and exhibited an appointment letter signed by Mr Lee. The third affidavit also exhibited interim bills and discharge requests from the former solicitors to support the claim of heavy legal expenses. Yet the court noted that much of the correspondence from the former solicitors was heavily redacted, and there was no evidence of any response from the defendant explaining why funds were not provided to the solicitors. The court also observed that large portions of the third affidavit were again devoted to matters irrelevant to the Order 1 rule 9(2) application, such as witness and discovery issues, and allegations about the plaintiffs’ counsel’s conduct.
In addition, the court addressed the procedural novelty of Order 1 rule 9(2) and the absence of local authorities at the time. The court relied on a key earlier decision, Bulk Trading SA v Pevensey Pte Ltd and another [2014] SGHC 236, which had set out the principles applicable to Order 1 rule 9(2) applications. The court invited submissions on Bulk Trading and noted that the plaintiffs’ solicitors agreed with Chong J’s judgment in that case. Although the present extract is truncated, the reasoning pattern is clear: the court treated Bulk Trading as authoritative guidance on how to approach both procedural compliance and the exercise of discretion.
Accordingly, the court’s analysis focused on whether the defendant’s affidavits satisfied the specific requirements of Order 1 rule 9(4) and whether the evidence was adequate to justify an exception to the general solicitor-representation rule. The court’s approach suggests that the discretion is not meant to be exercised lightly, particularly where the litigation has reached an advanced stage and where the officer seeking leave has not provided a coherent, evidence-backed explanation for why the company cannot obtain or continue instructing solicitors.
What Was the Outcome?
Based on the court’s detailed critique of the affidavits and the repeated adjournments to cure non-compliance, the outcome turned on whether the defendant ultimately met the procedural requirements and provided sufficient evidence to justify leave. The court’s reasoning indicates that deficiencies in the affidavits—such as failure to state reasons in the first affidavit, inadequate financial evidence in the second, and incomplete explanation of why funds were not provided in the third—were central to the court’s assessment.
While the provided extract does not include the final dispositive paragraph, the structure of the judgment and the court’s emphasis on compliance and discretion strongly suggest that the court’s decision was guided by Bulk Trading and the need for strict adherence to Order 1 rule 9(4). Practically, the decision would determine whether Mr Lee could continue to represent the company without solicitors, affecting the defendant’s ability to participate effectively in the suit and the trial timetable.
Why Does This Case Matter?
Allergan, Inc v Ferlandz Nutra Pte Ltd is significant for practitioners because it illustrates how Singapore courts will apply the amended company-representation regime under Order 1 rule 9(2). The case demonstrates that the court will not treat an officer’s request to act as a mere formality, even where the opposing party does not object. Instead, the court requires proper procedural compliance and a substantive evidential foundation.
For lawyers advising corporate clients, the case is a cautionary example of how inadequate affidavits can undermine an application. The court’s repeated adjournments show that the court may allow the applicant to cure defects, but the applicant must still provide the specific information required by Order 1 rule 9(4). In particular, the officer must explain why leave is needed, and the company must provide credible evidence—especially where impecuniosity is invoked—to show that the exception to solicitor representation is justified.
From a litigation management perspective, the case also highlights the importance of timing. The defendant sought leave after solicitors discharged themselves and after evidence-in-chief had already been filed. This increases the practical stakes: granting leave affects trial preparation, procedural fairness, and the court’s ability to manage the case efficiently. Practitioners should therefore treat Order 1 rule 9(2) applications as requiring careful preparation from the outset, with affidavits tailored to the procedural requirements rather than to the merits of the underlying dispute.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 1 rule 9(2)
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 1 rule 9(4)
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 5 rule 6(2)
- Trade Marks Act (Cap 332, 2005 Rev Ed) (including s 35 as referenced in the pleadings/counterclaim)
Cases Cited
- Bulk Trading SA v Pevensey Pte Ltd and another [2014] SGHC 236
- Allergan, Inc and another v Ferlandz Nutra Pte Ltd [2015] SGHC 5
Source Documents
This article analyses [2015] SGHC 5 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.