The Commercial High Court (CHC), presided over by High Court Judge Pradeep Hettiarachchi, recently confirmed that it had received evidence obtained for it by the Supreme Court of Singapore under the very first request for foreign judicial assistance in the civil matter made by the CHC, under the Hague Evidence Convention of 1970, to which Sri Lanka and Singapore are both parties. 

This first request by the CHC for judicial assistance under the Hague Evidence Convention was made under an erudite Order by now Justice M. Ahsan R. Marikar, given in December 2019, prior to his recent appointment to the Court of Appeal. The task of obtaining the evidence was carried out by the High Court of Singapore, which summoned four witnesses to obtain the evidence required by Lanka IOC PLC (LIOC), the local unit of Indian Oil Corp, for the purpose of a long-running claim for alleged damages of over US $ 2.5 million that it has pending in the CHC against the ship MT Vinalines Glory, an oil tanker owned and operated by Vietnam National Shipping Line. The dispute between LIOC and the ship owners concerns two shipments of fuel carried by Vinalines Glory for LIOC from Singapore to Colombo in February 2013, which were found to be off spec prior to discharge in the Colombo Port. 

The cargoes were supplied to LIOC by Glencore, the Anglo–Swiss multinational commodity trading and mining firm based in Baar, Switzerland and insured under an open policy with Lloyd’s of London. The four witnesses were all present or former employees of SGS Testing and Control Services of Singapore (SGS Singapore). SGS Singapore, which runs the Singapore Laboratory of Geneva-based global inspection giant SGS, was appointed by LIOC to report on the quality of the cargoes before the shipment from Singapore aboard Vinalines Glory and had confirmed that they were on spec in all respects prior to loading. The dispute arose when the Vinalines Glory arrived in Colombo on February 8, 2013 and the cargoes were sampled and tested by the laboratories at Ceylon Petroleum Storage Terminals Limited (CPSTL) and the Ceylon Petroleum Corporation Refinery. 

The CPSTL lab reported that the samples of diesel and marine diesel taken from the vessel in Colombo failed to meet the required specifications in appearance and colour. SGS Singapore came under the microscope in the CHC when LIOC asked the global inspection firm to give evidence about the quality tests carried out in Singapore prior to the cargo being loaded. SGS Singapore said that it needed Glencore’s permission to testify in the CHC and declined to provide LIOC with the evidence sought, on alleged grounds of confidentiality owed by SGS Singapore to Glencore. 

Being based outside the jurisdiction of the CHC, SGS Singapore could not be compelled to appear before it and give the evidence required by LIOC. LIOC then made an application to the CHC to make a Request for Judicial Assistance from the Singapore courts to compel the global inspection firm to give the required evidence before the Singapore HC and have that evidence transmitted to Colombo. The ship owners opposed LIOC’s application. High Court Judge M. Ahsan R. Marikar, as he then was, rejected the ship owner’s objections and ordered the Justice Ministry in Sri Lanka to issue a Request for Judicial Assistance to the Supreme Court of Singapore. The Covid-19 pandemic delayed matters but on the application of LIOC’s Singapore lawyers Drew & Napier, the Singapore HC permitted LIOC to summon the required witnesses to give evidence before it with regard to the quality tests carried out by SGS Singapore. The examination of witnesses concluded on October 7, 2022 and the Singapore High Court ordered SGS Singapore to pay SGD 20,000.00 to LIOC for its costs. The evidence obtained by the High Court of Singapore and transmitted to Sri Lanka is now admissible as evidence in the Colombo High Court. 

Dr. Niranjan Abeyratne with Counsel Rukshala Goonetileke and Thanuja Meegahawatta, instructed by Dhammika Gabadage, appeared for LIOC in the CHC. Counsel Murshid Maharoof and Dushantha de Silva instructed by Julius & Creasy, appeared for the vessel and her owners.