The Civil Justice Reforms and the New Rules of Court

The new Rules of Court have been in the making for some time and were previously slated to come into operation by end 2021. On 1 December 2021, the new Rules of Court (ROC 2021) were gazetted and were announced to take effect from 1 April 2022. The ROC 2021 will largely apply to all civil proceedings commenced on or after 1 April 2022. This is an overview of the key changes from the transformation of the civil litigation landscape in Singapore.

Introduction

The reforms to the Civil Justice System will be a sea change in the way civil litigation is conducted, and this is no surprise, given that one of the terms of reference when the Civil Justice Commission was established by the Chief Justice on 5 January 2015 was “to transform, not merely reform, the litigation process by modernising it, enhancing efficiency and speed of adjudication and maintaining costs at reasonable levels”.¹Paragraph 1 of the Civil Justice Commission Report dated 29 December 2017.

For practitioners who experienced the advent of electronic mail and the introduction in Singapore of e-Litigation, the launch of the ROC 2021 may bring up painful memories of the sudden increase in speed of litigation. However, this will undoubtedly be welcomed by most litigants who will probably see their cases concluded more expeditiously.

Nevertheless, certain key features of the ROC 2021 will appeal to both practitioners and litigants, and I am certain that once the initial teething issues are sorted out, the new civil litigation landscape will achieve the Ideals, namely: (a) fair access to justice, (b) expeditious proceedings, (c) cost-effectiveness, (d) efficient use of court resources, and (e) fair and practical results.

Ideals

These five Ideals form part of the ROC 2021 — this suggests that parties are expected to abide by these Ideals. Yet, “fair access to justice” and “expeditious proceedings” may be conflicting, if they are taken to the extreme. Justice delayed is justice denied but it is important that justice is still seen to be done and issues raised by litigants are given their due consideration.

It has been clarified in the Ministry of Law and the New Rules of Court Implementation Team’s response to the feedback from the Public Consultation on the Civil Justice Reforms that the Ideals are intended as a guide and that the Ideals would “apply, conjunctively, as dictated by the circumstances of each case”.²Paragraph 16 of the Response to Feedback from Public Consultation on the Civil Justice Reforms: Recommendations of the Civil Justice Commission and the Civil Justice Review Committee dated 11 June 2021 (the “Consolidated Response”).

Simplification of Legal Terms and Phrases

Another term of reference for the Civil Justice Commission was “to simplify rules” and “avoid outdated language without discarding established legal concepts”.³Paragraph 1 of the Civil Justice Commission Report dated 29 December 2017.

This can be seen from the following examples of changes to be made:

Amicable Resolution

In terms of simplifying the rules, one example of this is in the displacement of the present offer to settle regime under Order 22A of the present Rules of Court. The costs consequences that presently flow from an offer to settle under Order 22A have been removed in the ROC 2021.⁴See Order 5, rule 2 of the ROC 2021. Instead, the new ROC 2021 provides that the Court will determine all issues relating to costs.⁵Order 21, rule 2 of the ROC 2021; see also Order 21, rule 4 of the ROC 2021.

The ROC 2021 introduce an express duty of a party to any proceedings to consider an amicable resolution of the dispute before the commencement and during the course of the proceedings and also to make an offer of amicable resolution before commencing action unless the party has reasonable grounds not to do so.⁶Order 5, rule 1 of the ROC 2021. Presently, it is the lawyer’s duty to advise their clients on the various methods of alternative dispute resolution, such as mediation. With the ROC 2021, the duty extends to the parties themselves and also for an offer to be made possibly even before any court proceedings are commenced.

The Court has also been empowered to order parties to attend alternative dispute resolution, for example, mediation, where the Court is not satisfied that parties have properly discharged their duty to consider amicable resolution.⁷Order 5, rule 3 of the ROC 2021.

Period of Validity of Originating Process

One major change to the Rules of Court is the shortening of the period of validity of an Originating Claim (i.e. the present Writ of Summons) and an Originating Application (i.e. the present Originating Summons). Presently, both a Writ of Summons and an Originating Summons is valid for service for six months where service is within jurisdiction and 12 months where service is out of jurisdiction. Under the ROC 2021, an Originating Claim and an Originating Application will only be valid for service for three months from its date of issue, regardless of whether it is to be served in or out of jurisdiction.⁸Order 6, rule 3 of the ROC 2021. Further, the Court may only extend the validity twice and by not more than three months each time, except in a special case.

These modifications are expressly directed at pushing claimants “to take reasonable steps to effect service expeditiously and to give the Court greater control over cases which are not progressing because the defendant has not been served”.⁹Chapter 4, paragraph 6 of the Civil Justice Commission Report dated 29 December 2017. It is anticipated that, where claimants are already aware that service is to be effected out of jurisdiction, the Court would expect that claimants have taken advice as to the available methods and cost of effecting service in that jurisdiction and would be ready to take steps towards effecting service soon after proceedings are commenced. Indeed, the ROC 2021 expressly provide that “reasonable steps” are to be taken for service “as soon as possible” and within 14 days if service is to be in Singapore and within 28 days if service is to be out of jurisdiction.¹⁰Order 6, rule 5 and rule 11 of the ROC 2021.

Single Interlocutory Application

Under the present regime, parties will consider filing applications for summary judgment and/or striking out after pleadings have been filed. Parties then move into the discovery stage and will then consider filing applications for specific discovery (if necessary). Other applications such as applications for further and better particulars, security for costs, and amendment of pleadings are considered when the need arises. While there are time limits by which certain applications must be filed, such as summary judgment applications, other applications can be filed at any stage of the proceedings, such as applications for security for costs.

The ROC 2021, however, introduce the “single application pending trial”; it is provided that “[a]s far as possible, the Court must order a single application pending trial to be made by each of the parties”¹¹Order 9, rule 9(2) of the ROC 2021. and “[n]o application may be taken out by any party at any time other than … with the Court’s approval” with some exceptions.¹²Order 9, rule 9(7) of the ROC 2021. It should also be noted that it has been expressly provided that “[n]o application may be taken out during the period starting 14 days before the commencement of the trial and ending when the Court has determined the merits of the action”, unless it is a special case and only then with the trial Judge’s approval.¹³Order 9, rule 9(10) of the ROC 2021.

Applications for summary judgment, striking out, and for a stay (among other applications) are excluded from the list of applications to be taken out as a single application prior to trial.¹⁴Order 9, rule 9(7) of the ROC 2021. Apart from such applications, parties should fully consider from an early stage, possibly once pleadings are closed, the interlocutory reliefs they require and make the necessary requests at the same time. While it would not be impossible to file a second application to seek further interlocutory relief, good reasons would have to be provided to convince the Court to allow such an application.

Filing of Affidavits of Evidence-In-Chief

Affidavits of evidence-in-chief (AEICs) are now usually filed after the discovery stage. However, the ROC 2021 allows the Court to order the filing of AEICs even before the discovery stage.¹⁵Order 9, rule 8(1) of the ROC 2021. The Court may also order that AEICs be filed simultaneously or in any sequence.¹⁶Order 9, rule 8(1) of the ROC 2021; see also paragraph 64 of the Consolidated Response.

It is therefore important for parties to consider at an early stage their case theory and the strength of their case, rather than hope for “helpful” documents to turn up during the course of discovery. Parties that have kept their own contemporaneous records and relevant documents will be at an advantage — indeed, claimants should put together all their available records even before proceedings are commenced to determine if they have what they need to build a strong case. If they do not, it may be wise to consider taking out pre-action discovery applications.

The Riddick Principle

The Riddick principle, which originates from the English decision of Riddick v Thames Board Mills Ltd [1977] QB 881, has since been captured in the English Civil Procedure Rules. In Singapore, the Riddick principle has been applied in several decisions and further clarified in several recent Court of Appeal decisions,¹⁷See ED&F Man Capital Markets Ltd v Straits (Singapore) Pte Ltd (2020) 2 SLR 695 (CA); Lim Suk Ling Priscilla v Amber Compounding Pharmacy Pte Ltd (2020) 2 SLR 912 (CA); Ong Jane Rebecca v Lim Lie Hoa (2021) 2 SLR 584 (CA) and will now be captured in the ROC 2021 as well.

There was some doubt as to whether the Riddick principle ceases to apply once a document is used in open court.¹⁸See Foo Jong Long Dennis v Ang Yee Lim (2015) 2 SLR 578, ED&F Man Capital Markets Ltd v Straits (Singapore) Pte Ltd (2019) SGHC 203 at (41)–(44), and ED&F Man Capital Markets Ltd v Straits (Singapore) Pte Ltd (2020) 2 SLR 695 (CA) at (94). The ROC 2021 provides clarity on this, as they expressly provide that “[a]ny document produced under this Order or by compulsion of law in the court proceedings must not be relied on in other proceedings by the other parties or non-parties unless the party who produced the document consents or the Court otherwise approves”.¹⁹Order 11, rule 10(1) of the ROC 2021. Further, the ROC 2021 states that the party “who used or produced any document … may apply to the Court to prohibit the use of such documents for any purpose other than for that case”.²⁰Order 11, rule 10(2) of the ROC 2021.

Expert Evidence

The ROC 2021 provides that “[n]o expert evidence may be used in Court unless the Court approves”²¹Order 12, rule 2(1) of the ROC 2021. and “as far as possible” only one expert is to be appointed by agreement between parties.²²Order 12, rule 3(1) of the ROC 2021. In terms of the issues to be referred to the expert, the ROC 2021 provides that parties shall agree on the “list of issues and the common set of agreed or assumed facts”, which is to be approved by the Court.²³Order 12, rule 4 of the ROC 2021.

The ROC 2021 also expressly provide that (where more than one expert is appointed) the “Court may order that all or some of the experts testify as a panel”,²⁴Order 12, rule 7(1) of the ROC 2021. what is now known as “hot-tubbing” or concurrent evidence. This method of examining experts has been used in the Singapore Courts, in other jurisdictions, and in international arbitration but is still relatively novel. It is expected that with the new ROC 2021, hot-tubbing will be used more frequently, with specific directions to be given by the Court in each case (as also envisioned in the ROC 2021, which provide that the “Court may give any other directions as are appropriate”).²⁵Order 12, rule 7(6) of the ROC 2021.

While the ROC 2021 was amended from the draft Rules of Court such that parties will be encouraged (instead of being required) to agree on a single expert,²⁶Paragraph 86 of the Consolidated Response. the import of the ROC 2021 on expert evidence is that the Court will be taking on a larger role in determining when and how expert evidence is used.

Conclusion

The effect of many of the changes to the present civil litigation regime would be that claimants must make sufficient preparation and properly consider the strength of their case even before commencing an action. While it may seem that defendants would be caught unprepared when served with papers notifying them that an action has been commenced against them, particularly when the claimants would have done significant preparation in advance, most defendants would have some intimation that there are proceedings soon to be commenced against them. After all, most claimants would first send a letter of demand in debt recovery proceedings or reach out in some other way to resolve matters before resorting to expensive and time-consuming litigation. In any event, both claimants and defendants should consider taking legal advice at an early stage.

As discussed above, the courts have also been empowered to take an even larger role in managing the progress of cases. Litigants should take especial note of the Court’s powers to dismiss the action if the claimant is absent from a Case Conference, or give judgment for the claimant if the claimant attends the Case Conference but the defendant is absent (once service has been effected).²⁷Order 9, rule 4 of the ROC 2021.

The new ROC 2021 have come to fruition after a long and rigorous examination of how the present civil litigation system can be improved, and I am positive that the new ROC 2021 will help ensure that confidence in Singapore’s civil justice system is maintained.

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