Case Details
- Citation: [2015] SGHC 5
- Title: Allergan, Inc and another v Ferlandz Nutra Pte Ltd
- Court: High Court of the Republic of Singapore
- Date of Decision: 13 January 2015
- Case Number: Suit No 34 of 2013 (Summons No 5175 of 2014)
- Judge: George Wei JC
- Coram: George Wei JC
- Plaintiff/Applicant: Allergan, Inc and another
- Defendant/Respondent: Ferlandz Nutra Pte Ltd
- Counsel for Plaintiffs: Alban Kang Choon Hwee and Oh Pin-Ping (ATMD Bird & Bird LLP)
- Defendant: Defendant in person
- Legal Area: Civil Procedure — Representation of companies
- Procedural Provision in Focus: Order 1 rule 9(2) of the Rules of Court
- Related Procedural Provision: Order 1 rule 9(4) of the Rules of Court
- General Rule on Company Representation: Order 5 rule 6(2) of the Rules of Court
- Statutes Referenced: Legal Profession Act; Rules of Court; Supreme Court of Judicature Act; The LATISSE (as referenced in the judgment context); Trade Marks Act
- Trade Mark Context: LATISSE trademark registered in Singapore (Class 5) for “pharmaceutical preparations used to treat eyelashes”
- Judgment Length: 13 pages, 7,632 words
- Earlier Related Decision: Bulk Trading SA v Pevensey Pte Ltd and another [2014] SGHC 236
- Other Case Mentioned in Metadata: [2014] SGHC 236; [2015] SGHC 5
Summary
Allergan, Inc and another v Ferlandz Nutra Pte Ltd [2015] SGHC 5 concerned a procedural application under Order 1 rule 9(2) of the Rules of Court. The defendant, a company, sought leave for its sole director and shareholder, Mr Lee Boon Guan, to act on the company’s behalf in ongoing proceedings. The substantive dispute in the suit involved claims of trade mark infringement, passing off, and injurious falsehood connected to eyelash-growth products and alleged regulatory correspondence. However, the High Court’s decision in this reported judgment focused narrowly on whether the company had complied with the procedural requirements for an O 1 r 9(2) application and whether the court should exercise its discretion to grant leave.
The court emphasised that company representation is ordinarily mandatory through solicitors under Order 5 rule 6(2), and that O 1 r 9(2) is an exception requiring strict compliance with the procedural framework. Although the plaintiffs did not object in principle, the court held that leave is not granted automatically and must be assessed on the evidence and the requirements set out in the Rules of Court. The decision also drew heavily on the earlier High Court authority of Bulk Trading SA v Pevensey Pte Ltd and another [2014] SGHC 236, which articulated the applicable principles for O 1 r 9(2) applications.
What Were the Facts of This Case?
The underlying suit (Suit No 34 of 2013) was brought by Allergan, Inc, an American pharmaceutical corporation, and a Singapore subsidiary/distributor. Allergan manufactures an eyelash-growth product used to treat hypotrichosis, a condition characterised by inadequate hair growth. The product is marketed under the LATISSE trademark, which is registered in Singapore under the Trade Marks Act in Class 5 for pharmaceutical preparations used to treat eyelashes. The plaintiffs alleged that they have used the LATISSE trademark in Singapore since January 2011 and that they are the registered proprietor (first plaintiff) and distributor (second plaintiff).
The defendant, Ferlandz Nutra Pte Ltd, is a limited exempt private company in Singapore that distributes “cosmeticeutical and neutraceutical” products. It distributes an eyelash-growth product under the LASSEZ trade mark. The plaintiffs’ claims against the defendant included registered trade mark infringement, passing off, and injurious falsehood. The injurious falsehood claim was tied to the defendant’s alleged distribution of a letter from the United States Food and Drug Administration (FDA). The plaintiffs alleged that the letter created the impression that the plaintiffs’ product was risky, hazardous, and unsafe, notwithstanding that the safety issue had allegedly been resolved with the FDA and that the product was said to be the only FDA-approved treatment for hypotrichosis.
Procedurally, the writ was issued on 14 January 2013 with an endorsed statement of claim. The defence and counterclaim were filed on 6 February 2013. Before the O 1 r 9(2) application, the parties had engaged in interlocutory steps and filed affidavits of evidence-in-chief in preparation for a trial fixed for the end of November 2014. Importantly, the pleadings and affidavits were filed or conducted by the defendant’s former solicitors.
On 22 August 2014, the defendant’s former solicitors discharged themselves from acting. After that discharge, the defendant filed Summons No 5175 of 2014 seeking leave under Order 1 rule 9(2) for Mr Lee, the sole director and shareholder, to act on the defendant’s behalf in the suit. Mr Lee swore an affidavit in support (the First Affidavit) dated 8 October 2014. The plaintiffs maintained a neutral position and did not oppose the application in principle, but they pointed out non-compliance with the procedural requirements for O 1 r 9(2) applications.
What Were the Key Legal Issues?
The High Court identified two main issues. First, it had to determine whether the procedural requirements for an O 1 r 9(2) application were complied with. This required scrutiny of the affidavits filed in support of the application, particularly whether they satisfied the requirements in Order 1 rule 9(4) of the Rules of Court. The court treated this as a threshold question because O 1 r 9(2) is an exception to the general rule that companies must be represented by solicitors.
Second, even if procedural requirements were satisfied, the court had to decide whether it should exercise its discretion to grant leave for Mr Lee to act on behalf of the company. Discretion in this context is not automatic, even where the opposing party does not object. The court had to consider the evidence presented, including the company’s financial position and the reasons for seeking representation by an officer rather than by solicitors.
Although the underlying suit involved substantive intellectual property and regulatory issues, the reported judgment did not resolve those merits. Instead, it focused on the procedural governance of corporate representation and the court’s approach to ensuring that the exception under O 1 r 9(2) is applied consistently, fairly, and in accordance with the Rules of Court.
How Did the Court Analyse the Issues?
The court began by restating the general rule: under Order 5 rule 6(2) of the Rules of Court, a company must be represented by a solicitor in legal proceedings. This rule reflects the policy that corporate entities should be represented by legally qualified professionals to ensure proper conduct of litigation. However, Order 1 rule 9(2) provides a mechanism for the court to grant leave for an officer of the company to act on the company’s behalf in any matter or proceeding. The court noted that O 1 r 9(2), as amended, applies to matters or proceedings whether or not they were commenced on or after 1 May 2014.
Turning to the procedural requirements, the court examined the First Affidavit and found it deficient. While the First Affidavit stated that Mr Lee was a director and authorised to make the affidavit, it did not state why leave should be granted for him to act. The only relevant exhibit was an ACRA report confirming share capital and directorship, but the affidavit largely contained allegations about the merits of the plaintiffs’ claims—matters of little or no relevance to the specific procedural question under O 1 r 9(2). The court also observed that the First Affidavit was sworn by the very person for whom leave was sought, which made it all the more important that the affidavit provide the required evidential basis for the court’s discretion.
Because of these deficiencies, the court adjourned the hearing to allow the defendant to file a further affidavit compliant with Order 1 rule 9(4). The Second Affidavit was affirmed and filed by Ms Lee Lay Hong, the corporate secretary. It asserted that Mr Lee had experience in pharmaceutical companies and had the necessary knowledge to act, and that the defendant had depleted its financial resources due to heavy legal expenses. The court, however, found the evidence insufficiently substantiated. The exhibit tendered as “financial statement” was in fact a bank statement showing only $3,420.40 in the UOB account as at 31 August 2014. There was no further evidence about the company’s financial position, no information about when Ms Lee was appointed as corporate secretary, and the ACRA report earlier indicated a different corporate secretary name (Goh Bee Kwan). These gaps undermined the reliability and completeness of the evidence supporting the application.
At a resumed hearing, the court again adjourned to allow the defendant to explain Ms Lee’s position as corporate secretary and to provide evidence of impecuniosity and reasons for the application. In response, Mr Lee filed a Third Affidavit. The Third Affidavit stated that Ms Lee was appointed corporate secretary on 1 November 2014 and exhibited an appointment letter signed by Mr Lee. It also asserted that the defendant had depleted its resources due to heavy legal expenses and exhibited interim bills and discharge requests from the former solicitors. Yet the court noted that correspondence from the defendant to its former solicitors was not exhibited, and there was no communication explaining why the defendant was not putting its former solicitors into funds—whether due to lack of funds or other reasons. The Third Affidavit also contained substantial material irrelevant to the O 1 r 9(2) application, including issues about witnesses and discovery, and allegations about the conduct of plaintiffs’ counsel. The court treated such content as distracting from the core procedural requirements.
Crucially, the court contextualised its approach by reference to Bulk Trading SA v Pevensey Pte Ltd and another [2014] SGHC 236. On 24 November 2014, after the initial chambers hearings, Bulk Trading was decided by Steven Chong J. The court in the present case invited further submissions on Bulk Trading because of its importance and relevance to O 1 r 9(2) applications. The plaintiffs’ solicitors indicated agreement with Bulk Trading. While Mr Lee raised other issues by email, the court considered them irrelevant to the O 1 r 9(2) application.
Although the provided extract truncates the remainder of the judgment, the reasoning pattern is clear from the parts reproduced: the court treated compliance with procedural requirements as essential, and it assessed the evidence for whether it demonstrated (i) the officer’s status and authority, (ii) the reasons for seeking leave, and (iii) the company’s inability to obtain or continue solicitor representation, typically linked to financial constraints. The court’s repeated adjournments underscore that it was not satisfied with the evidential foundation at each stage, and it required the defendant to address specific evidential gaps rather than rely on assertions or incomplete documentation.
What Was the Outcome?
The extract provided does not include the final dispositive orders. However, the court’s approach—requiring compliance with Order 1 rule 9(4), scrutinising the sufficiency of evidence of impecuniosity, and insisting on reasons for leave—indicates that the decision would turn on whether the defendant ultimately met the procedural threshold and whether the discretion should be exercised in light of the evidence. In practice, such cases often result either in leave being granted subject to conditions or leave being refused where the evidence is inadequate or the application is not properly supported.
For practitioners, the practical effect of the decision is tied to whether Mr Lee was permitted to act without solicitors. If leave was granted, the defendant could continue the suit through its officer, potentially affecting timelines, costs, and procedural conduct. If leave was refused, the defendant would have to obtain solicitor representation to proceed, with attendant costs and potential consequences for the defendant’s ability to meet procedural deadlines.
Why Does This Case Matter?
Allergan v Ferlandz Nutra Pte Ltd is significant for lawyers because it illustrates how Singapore courts manage the exception to mandatory solicitor representation for companies. Order 1 rule 9(2) is designed to prevent injustice where a company cannot obtain legal representation, but the court’s insistence on compliance with Order 1 rule 9(4) shows that the exception is not a mere formality. The case demonstrates that courts will scrutinise affidavits for completeness, relevance, and evidential support, particularly on the reasons for the application and the company’s financial position.
Second, the judgment highlights the importance of Bulk Trading SA v Pevensey Pte Ltd as a guiding authority. Where the law is “novel” and local authorities are limited, courts will rely on the most authoritative articulation of principles to ensure consistency. Practitioners should therefore treat Bulk Trading and subsequent applications as part of a developing procedural framework governing corporate self-representation through officers.
Third, the case offers practical lessons for drafting O 1 r 9(2) affidavits. The court repeatedly identified deficiencies: irrelevant allegations about merits, failure to state reasons, inadequate financial documentation, inconsistencies about corporate secretary appointment, and lack of evidence explaining why funds were not provided to former solicitors. A well-prepared application should therefore include clear, targeted evidence: corporate status and authority, a coherent explanation for why solicitor representation is not feasible, and documentary support for impecuniosity and attempts (or inability) to secure representation.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2014 Rev Ed) — Order 1 rule 9(2) and Order 1 rule 9(4)
- Rules of Court — Order 5 rule 6(2)
- Supreme Court of Judicature Act
- Legal Profession Act
- Trade Marks Act (Cap 332, 2005 Rev Ed)
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.