Keynote Address by Mr Edwin Tong, Senior Minister of State for Law & Health, at the Litigation Conference 2019
22 Apr 2019 Posted in Speeches
The Honourable Justice See Kee Oon
The Honourable Justice Chua Lee Ming
The Honourable Judicial Commissioner Ang Cheng Hock
The Honourable Judicial Commissioner Vincent Hoong
Ms Teh Hwee Hwee, Honourable Registrar
Mr Gregory Vijayendran, SC, President of Law Society
Mr Ian Lim and Ms Celeste Ang, Co-chairs of the Organising Committee
Distinguished guests, ladies and gentlemen
A very good morning to all. Thank you for organising a fantastic conference this morning. I am sure given the wonderful turnout; a lot will be exchanged.
The litigation conference has become a constant fixture on the Law Society’s calendar for many years now – I am told this is the 7th such instalment, and I think it comes at a time when we are looking at some significant changes that are ahead of us. Maybe not in the wintery fashion that has been sketched out but they are ground-breaking, they are also progressive and in a minute I will go through some of these changes and explain the thinking behind some of the provisions.
The potential impact of the proposals on the practice of civil litigation in Singapore is not insignificant. The line-up of several plenary sessions on so many of these key proposals over the next two days, bears testament to that and really shows us the keen interest which lawyers have in these proposals, and obviously what it means to their practice as civil litigation lawyers. I will address a few of these proposals later.
Let me start with addressing one aspect which is the impact on the practice of younger lawyers, many whom are present here today (even if I suspect that many of you are here today to fulfil your CPD requirements).
Of particular interest to you will be the session tomorrow after lunch where you will talk about the future of the Bar, and the challenges faced by the young lawyers.
This session tomorrow is really reflective of a larger ongoing conversation which started for a while now and which we will continue to talk about – what it means to be a young lawyer at the Bar today, what are the challenges ahead of us and where we see the Bar in five, ten or fifteen years. This is a key area of concern for the Ministry of Law – we want to see the local Bar grow, compete and succeed. There is no doubt about that. We do not want a Bar that is overtaken by the larger firms while others grow smaller and smaller and soon disappear.
We want personalities at the bar to shine through. We want firms to take on complex cases and to be leading lights in the practice of law in ASEAN, in Asia and eventually in the region. To do that, it must mean that all lawyers, but perhaps especially the younger ones, must find meaning in practice, and must have an opportunity to develop their skills and find their own place at the Bar.
To this end, my colleagues in Government, Minister Shanmugam, Minister Indranee and I have in the past year or so, met up with several groups of lawyers in practice. We did this to gather views and understand your concerns about various matters relating to the legal industry, including of course the Civil Justice Reforms.
During the sessions, the lawyers, particularly the younger ones, have been very vocal about your concerns. We appreciate very much your candour - it is only with forthright and open exchanges that we can work through what changes are necessary. Some may be necessary as a necessary evil while others may be introduced as a result of feedback from the lawyers.
Today, I would like to address some of the issues that have been raised. I will begin by sketching out some of the challenges that relates to the legal profession, including the young lawyers but not just for them. I will also lay out what the Ministry of Law is doing to help make the practice of law a viable and fulfilling career for each of you, and what part each of you can play in this. I will start with the legal profession.
The CHALLENGES TO OUR PROFESSION
- Legal services, that we all perform – is a service. Legal services are a service to other parts of economy – to banking, finance, and to enterprises – in order to grow our economy. Demand for legal services will grow when the economy prospers.
- The economic uncertainty
- At the end of 2017, we had the 4th highest GDP per capita in the world. To put that into context, we have the 2nd smallest population in the ASEAN, but the 4th largest economy in terms of absolute numbers. So we have done reasonably well, certainly in comparison to the size we have.
- We have reached a point of inflexion however. We have seen growth that has stabilised over the past couple of years at about 2%. This is in contradistinction to the 4 to 6% or even higher growth that some of our neighbours, with their vast resources, enjoy.
- On top of that:
- Our population is not growing; and
- We have an aging workforce and just to give you an indication with numbers – today we have about 420,000 Singaporeans who are aged 65 and above. In about 12 years’ time in 2030, that number will double to about 900,000. So what it means is that we have the increased burden of ageing population such as healthcare costs but also more importantly, we have a shrinking workforce that is economically active.
- In addition to this, our traditional strengths – status as an aviation hub and maritime hub – have come under threat from regional competitors.
- All of this adds to the uncertain economic climate.
- The challenges to the legal sector
- Specific to the legal sector, there are several challenges facing our profession.
- First, technology. Integration of technology into various aspects of lawyering is definitely upon us and is an issue that has been foreshadowed for several years now.
- A study conducted by the International Bar Association several years back suggested that AI may eventually replace a third of graduate-level jobs worldwide:
- Technology solutions have been developed to aid lawyers with high volume routine work. For instance, Verifi, an AI application developed by Linklaters, can sift through regulatory registers in Europe to check client names for banks at a much faster rate than human lawyers. This is obvious given the routine, rote work involved and also the volume. This frees up the time of lawyers to focus on higher value work.
- Legaltech is also being developed to automate certain legal tasks traditionally done by junior lawyers.
- AI platforms have also been developed that can take on board precedents, facts of the case, look at the outcome of previous decisions by a particular judge and predict how this judge might rule in respect of specific arguments – a skill we now employ with a lot of guesswork today as counsel.
- The consequence of a greater adoption of technology will likely be to reduce demand for administrative staff in law firms. The range of job options and skills that junior lawyers must have will also change.
- Next, globalisation. With the rise of globalisation:
- Legal services can now be outsourced to lower cost jurisdictions for a fraction of the amount it would cost to instruct Singapore lawyers;
- There is growing competition for legal work; and
- Increasingly savvy clients who will demand more choice, more transparency, and you will face more competition and price pressures as well.
- Challenges specific to the younger lawyers
- There are other concerns which may also weigh also on the minds of the younger lawyers and we have heard some of the feedback which includes:
- Concerns about whether you can get good training, and how you are expected to be prepared for the challenges of legal practice. I have seen the report of the Committee for the Professional Training of Lawyers, and how the proposals are to be implemented and structured so that we can expect lawyers that come out of training will be relatively prepared for the challenges of practice;
- We are also concerned with the high attrition rate of lawyers especially at the middle levels either from burnout or just because there are better options out there; and
- Specifically, in respect of the civil justice proposals, the possibility of a reduction in opportunities for advocacy for the young lawyers. We as the more senior lawyers all cut our teeth on some small application which, of course when we were young, meant the world – that was your one application, your one day in court. How do we ensure that the proposals that we have don’t take away those opportunities?
- These concerns are real. The Ministry of Law is looking at several options and what we can do for the individual lawyers, what we can do for the landscape to increase and enhance opportunities
- MinLaw’s Initiatives
- Let me start with a few, beginning with technology. Many of you would have heard of Tech Start for Law, which was rolled out for the purpose of helping law firms adopt technology solutions to improve productivity. $2.8million was committed to this initiative. 115 firms, mostly small and medium sized firms, have taken up the funding to upgrade their capabilities either in terms of how you manage cases, or how you manage the firm.
- A follow-up programme to build on what Tech Start for Law has achieved is now being planned with a view to:
- Offering the baseline technologies adopted during the first round of funding to those firms which have not had the chance to obtain funding; and
- Firms adopting more sophisticated products such as AI-powered solutions that can assist in freeing up lawyers to do more high-value work as I alluded to earlier.
- Second, to look at how we can grow the pie for firms in Singapore and how we can make Singapore more attractive as a legal destination for people to come in to do legal work, not just disputes, but also negotiations, deals – essentially, how we can make the environment a lot more suitable for enterprises.
- Asia is the world’s fastest growing economy. ASEAN is the world’s 6th largest economy today and projected to be the 4th largest by 2030. So we have a 10 to12 year window for ASEAN to be the fourth largest economy, and with it come the opportunities. Not very far away, India and China remain large jurisdictions that we cannot ignore – they are projected to see an average of 6% growth every year until at least 2022.
- We in Singapore are fortunate to be in the epicentre of this growth and strategically placed to capture the demand for legal services that will inevitably come. Lawyers, all of us in this room, must be prepared to take the opportunity to advance, to grow out of their comfort zone and to seize and embrace those opportunities.
- There are several simultaneous efforts taking place. I will share a few examples:
- We worked closely with the Law Society on Lawyers Go Global, and then IE Singapore. We launched this in February 2018 to help lawyers expand their networks and promote the Singapore Lawyer brand overseas.
- Singapore lawyers have under this umbrella programme, been to places like Sri Lanka, China, Japan – markets that we see opportunities in, to not just raise awareness of Singapore as a jurisdiction, but to also enhance people-to-people relationships that lawyers have with people in those jurisdictions.
- Engaging key legal markets. As I had mentioned, China is one of them. With their growing Belt and Road Initiative (BRI) initiatives, this will become a great opportunity. The entirety of projects lined up in the BRI scheme is valued upwards of US$4 trillion. With many jurisdictions viewing us favourably as a neutral ground where they can resolve their disputes, we do stand a good chance of capturing this BRI work and we are working on that. What do we have? A strong rule of law, a progressive system that is neutral and fair, trusted and familiar. These are all ingredients that we can continue to hold up as investors come into China, India and the rest of ASEAN. We can offer ourselves as services relying on these values and bringing work into Singapore.
- To that end, we have established Infrastructure Asia, an agency which provides a platform for information exchange on infrastructure opportunities, to facilitate infrastructure investments and financing, and also enables the relevant players in the region, including law firms, to access these opportunities.
- Second, we also launched the Singapore Infrastructure Dispute-Management Protocol (SIDP). Why SIDP at this point in time? It is a useful regime to have when big projects are being undertaken in China, in India, and aligned with our efforts on mediation. As Greg mentioned, we are signing the UN Convention later this year. The SIDP allows large investors to come into investments safe in the knowledge that should there be a conflict, there is a suite of options available. Mediation is one of the options where they can find a win-win solution and not have their big project derailed. The protocol has attracted interest from parties keen to incorporate it into their projects, and so far since we started, these have been estimated to be worth S$500 million or more. The seeds have been planted and we do want Singapore lawyers to take advantage of this.
- In the last couple of years, we have updated our laws on several key fronts. We have looked at how we can enhance Singapore as an IP Hub, we have look at how Singapore is best positioned to handle large, big-scale, complex, restructuring matters, and we will continue to grow that.
- We have set ourselves up as an international dispute resolution hub, and I really don’t need to mention the growth of SIAC, SIMC and SICC. Together, they give a third party investing in other parts of Asia the best possible range of options for dispute resolution. We continue to ensure that thought leadership is located in Singapore, and continues to thrive.
- We have had the International Court of Arbitration of the International Chamber of Commerce set up a case management office here while the Permanent Court of Arbitration established its first office in Asia here in Singapore. Most recently, about two weeks ago, you would have heard that INSOL located its first office outside of London in Singapore. We continue to attract talent, to attract thought leadership into Singapore, to make Singapore vibrant and always in people’s minds when they think of a good, first-class, dispute resolution centre.
- To complement these efforts, we have invested heavily in the expansion and upgrading of Maxwell Chambers to ensure that we have sufficient facilities to accommodate our growing dispute resolution sector.
- The opportunities for legal work will be immense, if you are willing to step out of your comfort zones.
- We worked closely with the Law Society on Lawyers Go Global, and then IE Singapore. We launched this in February 2018 to help lawyers expand their networks and promote the Singapore Lawyer brand overseas.
- To the young lawyer
- Let me say something a little bit more about what it means to be a young lawyer and what opportunities there might be today. There will be opportunities arising from all that I have sketched out and more, not just in Singapore. The domestic markets are important, but I think it is equally important is to look regional, and to look internationally.
- Indeed, you need to start positioning yourselves for that today. You might think, I am only a third, fourth, fifth year lawyer, but the people that grew up with you, who are your clients and contact persons today, will one day, like you, occupy senior positions in the industry. And they will be the people with whom you form the early relationships. Don’t take that step for granted.
- There is a need for a strong mix of legal skills and business skills. It is no longer enough, being a lawyer who is good at research, good at drafting, and maybe even good in Court. The modern lawyer really needs to be multi-faceted in terms of skill sets because your competition is no longer about proving yourself against a fellow lawyer in your firm, or even in Singapore.
- We each have our own strengths, but the lawyer of the future that wishes to harness the opportunities coming to Singapore must really be not a jack-of-all-trades, rather, he must be a master of all trades. You must develop:'
- An understanding of the language, culture and practice of the places where your foreign clients may come from;
- Deep expertise in specialised practice areas;
- Market knowledge to understand what is happening around not just in the legal industry, but in the industries which your clients are invested in;
- Leadership and business skills so that your advice is not legalistic but business-oriented and solution-focused; and
- To embrace technology to allow you to upscale and leverage on your time and to ensure that a lot more opportunities for human interaction can be obtained through the use of AI.
- There are avenues for you to broaden your knowledge and also develop these skills – professional development courses, take them up when you can, such as these occasions. Attachments, secondments, to find out more about the industry, are all measures that can be taken.
- For the more senior practitioners, I would encourage you to continue to encourage and retain talent. For all the value we have in AI, in technology, it is really the people that you have in your firms that makes a difference.
- The Report of the Committee for Professional Training of Lawyers (CPTL) recorded that superficial training given to young lawyers and being deployed as warm bodies just to do mundane, routine, work were some of the reasons given by lawyers for the high rate of attrition in the profession. So, be mindful of that, look at how there can be more value propositions given to younger lawyers.
- Role of the Civil Justice Reforms
- With that, let me just bring this back to today’s theme on the civil justice reforms. How is this even relevant? One area where they intersect is the kind of lower-value work that is being done. Greg mentioned discovery earlier in his speech, and I agree. I have been in practice for some years and I have seen that discovery saps a lot of energy, expends a lot of costs, and of course time, but the end product in court might not be commensurate with the effort that is being taken. We have to find a way to remodel discovery, and refine its place in the civil justice ecosystem, and I will touch on this a little bit more later.
CONTEXT: The civil justice system
- The importance of civil procedure
- Let me look at the reforms proper. In the time that we have, I will just touch on a few and share some thoughts about the thinking we had on some of the proposals. The changes that are being proposed now – one might ask why, and also why now.
- Justice Andrew Phang, when he was still a judicial commissioner, many years ago, said this, and I quote, from a decision that is published in United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd  2 SLR(R) 425 that:
“The quest for justice, therefore, entails a continuous need to balance the procedural with the substantive. … There must, therefore be – as far as possible – a fair and just procedure that leads to a fair and just result. This is not merely abstract theorising. It is the very basis of what the courts do – and ought to do…”
- So that’s the why. We look at procedure not as the handmaiden of substantive justice, but as one which leads to the process, and which helps shape the process so that fair, just results, can be obtained. We have to find the balance between speed and efficiency on one hand and ensuring the right attention, and therefore, justice, is applied to the case.
- The need for change
- We already have a leading civil justice system – many lawyers have said that to me in the feedback sessions. We have a system that is already working, has been working well for several years now. Why do we want to fix it, why do we want to change it?
- At the turn of the millennium, a comparative study done found that Singapore had the highest case clearance rate of all countries surveyed even though it was among the countries with the fewest judges per capita. So we do more, with less.
- In 2016, Chief Justice Menon highlighted that the Supreme Court had, for more than a decade, successfully disposed of at least 85% of all writs filed within 18 months of filing. Speed is important, efficiency is important. Sometimes it is true, justice delayed is justice denied.
- The World Economic Forum in its 2018 Global Competitiveness Index placed Singapore 1st out of 140 countries in terms of the “[e]fficiency of [its] legal framework in settling disputes”.
- And finally, the World Justice Project in its Rule of Law Index 2019 placed Singapore 5th out of 126 countries and as the top Asian country for its civil justice system. So we are changing at the time when we are still at the top. We are looking at our reforms at a time when we don’t have to. We are not being pushed into doing it.
- But we must also bear in mind that the last major revamp of our civil justice system came in the 90s where the challenges then were completely different to the challenges we face today. The system that we had then was quite different from the system that we have today, relative to other countries, relative to our competitors.
- We therefore also cannot afford to rest on these laurels. We have to constantly strive to improve, we have to identify the advancements that continue to make efficiency and accessibility – two very important hallmarks of our civil justice system – continue to develop. What are some of these?
- Significant time and expense are still being spent on procedural matters instead of on the merits of a dispute. Whilst in some cases there is good reason for that, in many cases, that time and expense is really at the expense of the litigant.
- Civil litigation tools that are intended to facilitate fact-finding are sometimes used for tactical or strategic gain, and we do want to try to level the playing field as far as that is concerned.
- There is sometimes an inequality of resources between parties; the less well-resourced party is often put at a disadvantage in court proceedings.
The civil justice system
- The Consultation Process
- So to recap the landscape, two years ago, in fact, coming to three years ago now, the Civil Justice Commission, and the Civil Justice Review Committee were set up. The first was set up by the Chief Justice, and the second, established by the Ministry of Law. Extensive consultations were conducted. Senior members of the Bar, the judiciary, a cross-spectrum of practice was represented on both committees.
- What were the objectives? You have heard from Ian earlier, and I shall not repeat them, except that ensuring that the right fit for the right type of cases, remains important.
- We received a lot of feedback, and I think it is a good sign. It shows that members of the Bar continue to be invested in the rules of practice, continue to be interested in the kind of rules we have to foster, to prepare us not only for today, but also for the future. And I really would like to thank everyone involved in the process – many have given time and effort, which has been very helpful in shaping the thinking that the Bar has on the proposals, and also allow us, working with the Supreme Court, to reflect on some of these changes, and to think about it from the perspective of the Bar. In particular, I would like to express my appreciation to Mr Vijayendran S.C. for your guidance with the Law Society and also the Council of the Law Society whose facilitation as a bridge between yourselves and the Bar has been invaluable.
- Broadly, there has been strong support for the proposals, but also some concerns and uncertainty over some of the changes to the rules.
- Some of the proposals – the exchange of AEICs before discovery, the single omnibus interlocutory application and the single joint expert were amongst some of the more hotly contested, and often questioned, proposals.
- We have paid a lot of attention to these. We have received the feedback, and obviously, there is a lot of active interest. We are studying them very closely to see how we can make adjustments to some of these.
- We are still studying the responses and working through the changes, and it is not possible to look through every one today, but I will focus on a few of these proposals and explain our thinking behind it, and see what we can do in terms of getting a landing on them. That hopefully will help to form and inform your discussions over the next few days, over these proposals.
- AEICs and Discovery
- Let me start with AEICs and discovery. I will take both together because they often are side by side in terms of dealing with the evidence in court. The draft rules proposed that:
- The court be allowed the discretion to order AEICs to be filed after pleadings but before disclosure of documents - that is something that was quite a big change from what is was before, where discovery was done first; and
- Discovery will also only involve documents that parties intend to rely on which would naturally be scoped by the issues in AEICs that have already been exchanged.
- The proposal with respect to discovery has received significant support whereas those on AEICs have been less popular.
- Some have told us that not all parties would have access to all the documents necessary to prepare their witness statements, and I understand that. In such cases, parties would then be forced to file bare AEICs and supplement the evidence later when they get discovery. That, conversely, would lead to an increase in time and expense, which is the opposite intention of these proposals.
- Others were concerned that preparing AEICs so early in the suit would result in the front-loading of costs for litigants and might also adversely impact the ability to have an amicable resolution over the course of the proceedings.
- We have considered this feedback. Let me just clarify how we think these provisions on discovery and AEIC provisions will operate.
- Let me start by saying that as you know from the proposals, the intention is for the judge to be involved very early on in the case, to run the case conference, to be involved in the aspects of the case, understand what the issues are, look at the facts of the case, the pleadings, and to understand from counsel, what kind of evidence is likely to be led. With this in mind, the judge should be able to take a considered view as to the requirements of each case and make an appropriate order with respect to the exchange of AEICs and also the disclosure of documents. Ultimately, that lends a greater degree of flexibility that best suits the needs of each case. No two cases are the same.
- We have agreed with Supreme Court that we will amend the proposal to allow for the sequential filing and exchange of AEICs in appropriate cases. With this amendment, the type of orders that are open to the courts to make depending on the nature of the case, will be:
- Whether AEICs are to be filed and exchanged before or after the disclosure of documents – so in the right case, you can still have discovery first, before AEICs; and
- Secondly, whether AEICs are to be filed and exchanged simultaneously or to be done sequentially, again depending on the nature of the case.
- Let me illustrate how this might work in practice with two different types of disputes.
- Take a dispute over a claim under a bank guarantee. In the vast majority of such cases, it is likely to be straightforward and based on clear, established, documentation which has crossed between the two parties. This means that there is no document within the possession of just one side that you will need to establish the case or the defence. The documentation involved is likely to be minimal.
- In such circumstances, the courts would more likely than not, order AEICs to be exchanged before disclosure of documents. There is unlikely to be any prejudice to either party that would require the sequential exchange of AEICs as the issues in question will be straightforward. If there is anything unexpected that occurs, there is always the opportunity to make your case to the judge.
- On the other end of the spectrum, a case involving conspiracy, where relevant matters could be in the knowledge of one or more of the parties. For example, if you need to prove common intention, or if you need to understand what was the agreement between the joint tortfeasors. Then, a Plaintiff in that case might well not be able to prepare his AEICs without the benefit of discovery as the specific documents evidencing the common intention might well be in the hands of the conspirators.
- In such circumstances, parties will inform the judges at the early case conference and could ask the court to order the exchange of AEICs after the discovery process is concluded.
- This ultimately in my view, brings a lot of flexibility to the proceedings. In simple cases, disputes are determined expeditiously and not unnecessarily dragged out due through a rigid application of procedure. It is no longer a one-size-fits-all approach that will be taken.
- Where the legal and factual issues involved are complex or if there is an asymmetry of information on the other hand, the rules will also allow a more comprehensive approach to discovery and the preparation of evidence.
- Ultimately, this ensures that justice is made more accessible to all litigants. Not every case, simple or complex, lengthy or otherwise, needs to go through the same kind of procedure.
- Single Interlocutory Application
- Next, let me touch on the interlocutory applications. Chapter 7 Rule 8 of the draft rules sets out the proposed provisions on interlocutory applications.
- In a nutshell, the proposal is:
- For the Court to order, as far as possible, a single omnibus application pending trial to be made by parties;
- Further applications may only be taken out with the leave of court; and
- No applications to be permitted 14 days before trial except in a special case and with the trial judge’s approval.
- The Bar has raised some concerns over this proposal. Many reflected that the proposal was simply not operationally feasible. Some indicated that it would be impossible to anticipate in advance the kinds of interlocutory relief that would be required in a case. Others were concerned that the proposal might lead to defensive practice – just put in an application early even though you might not quite need it. With the omnibus application, junior lawyers were concerned that the advocacy opportunities to argue these cases, where there is only one single omnibus application, might then restrict and curtail the junior counsel’s ability to appear in court.
- First, on the rationale for this proposal, let me explain that the single interlocutory application is not intended to shut out parties who might otherwise have a valid application to make. Nor is it designed to artificially limit the number of interlocutory applications that are filed in the courts. It is certainly not the case that the single omnibus application just means that the application must be resolved at one sitting.
- The thinking behind this was to get parties and counsel to think about the kind of relief they might seek pre-trial. To think about your case, to engage with your client to consider the reliefs that you might need in order to be ready for trial, and to put that upfront a bit earlier than in the current process.
- The omnibus application allows the judge to consider the various reliefs sought under this application and decide which application for what relief should be heard first and which later.
- For example, issues such as joinder of parties or security for costs would logically be scheduled to be heard earlier than something for further and better particulars, or additional discovery, which go towards the evidential aspects of the case.
- By getting parties to file an omnibus application at a single point in time, the proposal also introduces order and logicality to the way in which interlocutory relief is sought – quite unlike the current regime where there are hardly any restrictions on parties taking out interlocutory applications, whichever type and whatever time. And we do know as counsel, that we have either made or faced strategically timed applications – sometimes very late in the day, sometimes having the effect of derailing the trial process itself and having the trial vacated. That ultimately adds to more time and costs in the process.
- Third, what happens if a material fact was to come up much later which necessitates a further interlocutory application after the omnibus? I see no reason why a court would not allow a party to make an application, explaining that this is a material that had just come up or was not available earlier. I would find it surprising for the courts to say “Well, you didn’t know about this earlier. Nonetheless, because of the omnibus, I am shutting you out.” The judge will consider the circumstances, decide whether there is merit – both in the way in which it is brought, and also in the application, and will consider all the cases.
- Single Joint Expert
- Third, let me deal with the Single Joint Expert. Chapter 9 of the draft rules deals with that. The proposal is for a general rule that one common expert will be utilised in cases where expert evidence is required.
- The intent of this was to improve the quality and materiality of expert evidence put before the court. Very often, you have two or maybe more parties that come to court with two or more experts, and they will give opinions from different ends of the spectrum, not so much because they disagree with each other as a matter of expert substance, but oftentimes because the manner of engagement and the instructions given to the experts differ.
- Nonetheless, there has been a lot of robust feedback on having just a single joint expert. And amongst the questions that have been raised, and I understand that as well, having come from practice, are that parties would have to have their own experts on the side to instruct them on what can be asked of the expert, how to challenge the expert. This may lead to a doubling up of the costs as well. It has also been asked, what happens in a complex matter where you cannot agree on a common expert, and you end up with a lot of effort spent on trying to agree on a common expert.
- Some have asked whether this is really necessary where we already have judges making orders for the hot-tubbing of experts or having in some cases, joint expert report, which already minimise time and expense.
- The feedback received has been particularly constructive and we agree with some of the concerns raised.
- Let me however, emphasise that a single joint expert would usually suffice in the majority of cases that are straightforward e.g. matters of establishing assessment of damages, or where you are proving foreign law, or in cases of family law where you are looking at conditions of individuals.
- There are of course instances where appointing a single joint expert may not be feasible due to the subject matter or simply because both sides are at loggerheads and simply cannot agree on one.
- The Ministry and Supreme Court looked at this very closely and therefore agreed to refine this proposal so that it would no longer be mandatory or by default in every case that there be one common expert. The rules will however, still require parties to consider and where possible, agree on a common expert, and I would urge parties and counsel to do so as far as possible in each case where it can be done, because it does save time and costs. Where this is not possible because of complexity or other reasons, parties may go ahead and have their own experts.
- An exception will continue to be for the Magistrates’ Court cases where quantum of the claims that fall under Order 108 do not justify the cost of each party appointing his own expert. The single joint expert regime has already been introduced under the simplified procedure in Order 108 of the current Rules of Court and will be retained for this class of cases. There is obviously a strong cost-benefit balance in Order 108 cases.
- Party-and-Party Costs
- Lastly, the one area I wish to touch on before I move on is on party-and-party costs. We have put into abeyance the scaled fees for solicitor-and-client costs and will revisit that after these rules have been implemented and run for a bit. Then, we can study the solicitor-and-client cost proposals again.
- But on party-and-party costs, my Ministry’s position on this has been previously articulated. Let me reiterate our principles:
- First, costs must be reflective of and also be commensurate with value of legal services in society;
- The differential between S&C cost and P&P costs can be reduced. We should look into whether we can reduce it, as a litigant should not be significantly out of pocket for his legal expenses if he is successful; and
- Third, to close the gap in this differential, we expect that the scale for P&P costs can, in the appropriate cases, be increased to be more reflective of S&C costs, rather than for S&C costs to be reduced.
- We have discussed our views with the Law Society and since then, we have also received quite a bit of feedback and proposals from the Law Society.
- We will review them with these principles in mind, and eventually, discuss them also with the Supreme Court, to finalise our proposals on costs.
- The Appellate Division
- One other area which has not been touched on in our civil justice reforms, and which I would like to explain our thinking behind for a further change, is in relation to some of the proposed structural changes that we will make to the Supreme Court.
- As I had mentioned earlier, our court system is first class. It has been made so through the efforts of so many parties, not least of which is the Supreme Court. Our court system has evolved over the years to adapt to societal needs and ensure optimal delivery of services and justice to our users. For example:
- In 2014, a specialist family court structure was introduced – the Family Justice Courts – to allow the judiciary to address the unique needs of family justice; and
- In 2015, the State Courts established the Community Justice and Tribunals Division, to better dispense quick and effective community justice for the people.
- Our courts however are not just inward facing. We have positioned ourselves as an international hub for dispute resolution services and the courts play a significant role in that. In particular, the triumvirate of the SIAC, the SIMC and the SICC provide international commercial parties with a full suite of dispute resolution services.
- Appeals or ancillary proceedings from these courts or institutions may also end up before our courts, which translates into an increased caseload for our courts.
- In his OLY speech earlier this year, the Honourable Chief Justice made this very point when he said that the caseload of the Court of Appeal had steadily increased in recent years together with the complexity of the cases coming before it. So not just the number of cases but the number of complex cases that have come before the Court of Appeal.
- To give an idea of the numbers:
- In 2013, the number of civil and criminal matters that were filed in the Court of Appeal was 314.
- In 2018, the total number of matters before the Court of Appeal stood at 490. This represents a 56% increase in caseload.
- To address these issues, the Chief Justice announced the implementation this year of interim measures such as having more High Court judges sit on the Court of Appeal and increasing the Court of Appeal’s sitting days this year.
- In our view, a more permanent solution is needed to better manage the increased caseload in the Court of Appeal whose time and resources are limited.
- One proposal we are considering is the introduction of a new court division which will sit as an appellate court, and which I will henceforth refer to as the new appellate court. We are at present studying various options, including:
- Having a pool of judges to be designated to sit in this new appellate court;
- Appeals from the High Court to be distributed between the two appellate courts – the new appellate court as well as the existing Court of Appeal; and
- The Court of Appeal to retain its status as the apex court of the land.
- As for distribution of appeals, we expect the Court of Appeal to primarily hear cases that:
- Are likely to have substantial consequences to individuals or society;
- Concern the Court of Appeal’s control and oversight of lower courts and tribunals; or
- Concern the general administration of justice.
These would include, for example, cases relating to the construction of our Constitution, criminal matters, contempt of court, and SICC cases.
- The new appellate court will hear other appeals from the High Court. However, a mechanism will allow appeals that do not fall within these categories of cases, but satisfy certain other criteria, to be dealt with by the Court of Appeal directly.
- We are also considering permitting further appeals to the Court of Appeal for cases heard by the new appellate court.
- Such an appeal should be permitted only with leave from the Court of Appeal and the requirements for leave should be stringent to reflect the fact that the matter has already been considered by an appellate court.
- A further appeal to the Court of Appeal should only be permitted for deserving matters, for example where the appeal raises an arguable point of law of general public importance.
- We are still working on the details of the framework and a more detailed announcement will follow in due course.
- Let me quickly conclude by sketching out a few key pointers.
- First, is to encourage young lawyers and members of the bar to continue to be open in your feedback to us, to reflect the changes that you feel are needed to support you as you venture on this highly competitive and technology driven landscape.
- Second, the Civil Justice Reforms – they come at a time as we seek to introduce flexibility and also promote accessibility in our court system. I urge all of you, as you embark on your discussions in the plenary sessions over the next two days, to think about the reforms from that approach.
- In other words, consider not just the needs of the individual lawyer or the individual litigant but as a civil justice system, what is required to ensure that we continue to remain a first class system. More importantly, how do we retain the confidence of external parties so that Singapore as a choice of dispute resolution forum will remain strong, nimble and flexible.
- In closing, let me leave you with a quote from our Prime Minister when he delivered a speech at the 2014 Legal Service Dinner. PM Lee described our approach to developing our own unique legal system as “pragmatic and eclectic”. He explained that we are “neither wedded to pre-conceived notions or the intellectual fads of the day, nor tied down to the traditional practices inherited from our former colonial masters.”
- Indeed, over the years, what has been clear is that we have never shied away from making changes that best fit Singapore and the users of our system.
- In that same vein, I ask that you look at the Civil Justice Reforms for what they are – a new way forward for our civil justice system; a system which is already good, but can be improved for the better, and one that is tailored to our very own needs.
- I wish you all a fruitful and engaging discussion on this topic over the next two days and also ask you to not look at this as just a learning process.
- In as much as the conference is an opportunity to gain knowledge of the reforms or to give views on the reforms, it is also an opportunity to get to know one another as it is equally important that as a fraternity, we remain strong.
- The Bar, for all the arguments that may be made in court with fellow counsel, must remain a strong Bar, vested and invested in the personal relationships that you have with one another. In that way we can make Singapore a shining example, not just in ASEAN or in Asia but in the world. Thank you.
Last updated on 22 Apr 2019