The Singapore Ministry of Law and the Supreme Court launched a public consultation on 26 October on proposed reforms to the civil justice system. The proposed reforms are a result of the work of the Civil Justice Commission and Civil Justice Review Committee that were set up in January 2015 and May 2016 respectively to promote efficiency and enhance judicial control in litigation.
A key component of the proposed reform is to increase judicial involvement and encourage disputes to be resolved efficiently and at reasonable cost. While the above highlight new features to the existing rules, the increased case management and focus on mediation and settlement have been an increasing feature with the courts for the past five years. The proposed amendments simply seek to cement the same.
Of greater interest are the two potential changes to the production of documentary and witness evidence that may cause a paradigm shift in the conduct of litigation proceedings:
Proposed Change in the Time to File Affidavits of Evidence-in-Chief (AEICs)
Currently, AEICs are filed and exchanged after disclosure of documents. The proposed reform gives the Court the power to direct that parties file and serve their list of witnesses and AEICs after pleadings but before any exchange of documents.
This shifts the focus of witness evidence to the case that parties have put forward through their pleadings, thus preventing parties from tailoring witness evidence to match the eventually disclosed documents. In addition, since parties will be forced to consider if they have a viable claim from the outset, the proposed reform will help to filter out frivolous and unmeritorious claims. It will also encourage early settlement of the dispute as parties will have a clear understanding of the strengths and weaknesses of their respective cases.
However, this proposal may prove difficult for cases like fraud, where a party may not be sure of the facts behind the alleged fraud in the first place. Nevertheless, the rules will state that the Court will not exercise its power to order AEICs to be produced before discovery if parties are unable to prepare their AEICs without the disclosed documents and if there is an asymmetry of information.
Proposed Change to an Arbitration-Style Discovery
At present, parties have to undergo general discovery to produce all documents that are or have been in their possession, custody, or power, and that they rely on and/or will affect their own case or the other party’s case. Under the proposed regime, parties will undergo an arbitration-style discovery process instead, where parties will first produce the documents upon which they rely for their respective cases. To address the concern that this may enable parties to withhold documents adverse to their own case, specific discovery remains available to allow a party to request documents from the other side.
This will result in great time and costs savings. As parties will be confined to their pleadings, the scope of the subsequent specific discovery will be narrowed. The amendments seek to prevent “fishing expeditions”, where parties attempt to seek a wide range of documents.
The proposed reforms seek to increase the efficiency of litigation and promote early settlement of disputes and appear heavily influenced by arbitration procedures in an attempt to streamline the archaic processes of the Rules of Court into something more modern, efficient, and expeditious.
From a practical standpoint, while there is a proposal to scale costs, it is quite likely that the proposed Civil Procedure rules, if implemented, will require a frontloading of litigation costs as more time is spent reviewing the merits of each case, formulating the issues in dispute, and preparing the pleadings. This would not be a bad thing as it will encourage parties to obtain a realistic assessment of the case from day one. Flexibility is also a hallmark of the amendments which will allow a departure from the default track should parties either agree to do so or are able to convince the Court to do so.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
*A solicitor of Morgan Lewis Stamford LLC, a Singapore law corporation affiliated with Morgan, Lewis & Bockius LLP