The Proposed Civil Justice Reforms
Charting the Course of Future Litigation
With the recent furore over the proposed Civil Justice Reforms, particularly over the proposal for a scale costs regime, a flurry of Law Society committee meetings and townhalls (the likes of which have not been seen in recent years) took place. The feedback which the Law Society received from practitioners both within and outside of the townhalls, eventually culminated in the Ministry of Law retracting the portion of the proposed Civil Justice Reforms relating to scale costs.
The Junior Bar also held its own Junior Bar Townhall on 21 November 2018, initiated by the Young Lawyers Committee (YLC) leaders and the Junior Bar Council members. With incisive contributions from YLC members analysing the potential implications of the proposed civil procedure system, Junior Bar members who attended the townhall caught a glimpse a snapshot of the changes, the advantages and the difficulties which practitioners would face with the reforms proposed.
The new civil procedure system will be the waters which we will swim in tomorrow and for the foreseeable future. Litigation practitioners will have to learn how to swim afresh, some more than others. In particular, today’s junior lawyers are the ones who will be swimming in these waters all the way until they (optimistically!) become the senior lawyers of tomorrow.
Below are some highlights of the observations by various YLC members who had gamely risen to the occasion, as presented at the Junior Bar townhall (parts in italics are the author’s personal observations which may/may not be shared by the relevant YLC members):
Pre-Trial: Single Interlocutory Application and Production of Documents
The tight timelines, coupled with the draconian measures which the Court can take if the timelines are not adhered to (such as striking out the claim), may mean that a large amount of work and documents will have to be done and perused in the short amount of time leading up to the Single Interlocutory Application. For more complex files with more types of applications and more voluminous documents, this may mean that junior associates will bear the brunt of the work, resulting in less sustainable working hours. A Single Interlocutory Application might also mean reduced advocacy opportunities, stunting the growth of junior associates.
- Case Conference (CC) shall be held eight weeks after an Originating Claim (OC) or Originating Application (OA) is filed (Chapter 7, Rule 8(1)).
- Court will: (CJC Report at )
- control the number of and period within which applications may be filed;
- determine what applications are required; and
- order each party to file a single application as far as possible.
- Court shall order the applying party to file and serve his application and supporting affidavits within 21 days of the CC (Chapter 7, Rule 8(5)).
- No further application to be filed unless with leave of court (Chapter 7, Rule 8(6)).
- Court shall order parties to exchange list of and copy of all documents they are relying on within 14 days of the CC (Chapter 8, Rule 8(2))
(by Mr Benjamin Foo, Drew & Napier LLC)
Discovery and Evidence
The new rules on discovery and evidence may raise potential concerns, as highlighted below.
|New Rule||Reform||Potential Concerns|
|Chapter 8, Rule 2||Curtailment of general discovery – parties only need to disclose documents which they intend to rely on||· Assumes that parties are on equal footing in terms of access to documentary evidence|
· Potentially facilitates concealment of relevant documents
|Chapter 8, Rule 2||List of documents and copies of documents to be exchanged within 14 days of CC|
(NB: CC will be fixed eight weeks from issuance and service of OA/OC in Singapore; subject to Court’s discretion to fix an earlier CC)
|· Compression of timelines|
· No scope for variation of timelines to account for complexity of case and location of parties
· Timelines for pleadings and discovery may be concurrent if the Court decides to hold CC earlier
|Chapter 8, Rule 3||Specific discovery – The Court will only order production of specific documents if the requesting party properly identifies the document and shows why it is material to the case||· What is “material”? Does it replace the test for relevance and necessity?|
· How does one define “properly identifies”?
· More litigation as parties contend over specific discovery requirements
|Chapter 9, Rule 3||Except in a special case and with the Court’s approval, the parties shall agree on a joint expert||· The joint expert’s opinion may be determinative of the issue (coupled with potential dispensation of cross-examination of expert at rules 6 and 7); deprives the Court of contrary opinions within a specialised field|
· Potential increase in costs if parties separately appoint their own experts to assist in the critique of the joint expert’s opinion
· How does one define “special case”?
|Chapter 7, Rule 7||In particular case, the Court may direct parties to file and serve AEICs after pleadings have been filed but before exchange of documents. The Court will not deal with any application until the AEIC direction has been complied with.||· The classes/type of case where this may apply should be specifically identified|
(by Ms Geraldine Yeong, Dentons Rodyk & Davidson LLP)
The proposed reforms seek to implement certain changes in for trial matters, which would affect how practitioners will conduct trials in future (for better or for worse). The implications of some of these proposed reforms would be brought to bear clearly with the increased judicial control over proceedings (see below).
- Opening Statements must be under 20 pages (Chapter 7 Rule 24(1)(c)) and need not be read out in Court (Chapter 11, Rule 7(6))
- Attendance of Witness: An Order to Attend Court must be served by the requesting party on the witness by personal service in Singapore at least 28 days before the hearing. (Chapter 11, Rule 4 (3))
- Independent Witnesses: The Court may order a person not named as witness by any party to give evidence as an independent witness (Chapter 7, Rule 21(1))
- Conduct of Trial: Judges can exercise greater control of the conduct of trial by directly questioning witnesses (Chapter 11, Rule 9(1)), restricting the issues and time for examination of witnesses, and direct the order in which any speech or evidence by a witness should be made (Chapter 11, Rule 7(5)).
(by Ms Lee Hui Yi, Rajah & Tann Singapore LLP)
Judicial Control Over Proceedings
The proposed reforms also represent a subtle shift in terms of the centre of control over court proceedings, with judicial control over proceedings enhanced and increased power put in the hands of judges to control the proceedings.
- Enhanced judicial control; judge-led, not rule-led approach (CJRC Report at )
- Judicial power to strike out or dismiss case when judges are of the view continuation is not useful (CJRC Report at [26(d)])
- Appeals filed only if law allows (Preamble, Rule 20)
- As far as possible, order a single application pending trial to be made by each of the parties (Chapter 7, Rule 8(2))
- Court-directed appointment of common expert (Chapter 9, Rule 4)
(by Mr Jonathan Muk, Tan Kok Quan Partnership)
Ms Hany Soh of MSC Law Corporation had contributed many key thoughts and observations on the scale costs regime, but these have been rendered moot for now, pursuant to the Ministry of Law’s retraction of the portion of the proposed Civil Justice Reforms relating to scale costs. However, she had aptly raised the issue of the future and livelihood of young lawyers (in the perspective as an associate/ young director/ new start-up sole proprietor), which remains relevant and should inform any future reform in this regard.
As is clear from the above, even excepting the scale costs regime, there are many aspects of the proposed reforms which merit a deeper look. Many of these were discussed during the Junior Bar townhall, especially regarding the eventual complexion of the legal landscape will look if the proposed reforms are put in place.
While the implementation of the proposed reforms and new civil procedures may seem like a distant notion, it is crucial for junior lawyers to weigh in on concerns relating to the proposed reforms as soon as possible, in time for the Law Society to submit its position paper by the end of the public consultation on 31 January 2019. This is a chance for the Junior Bar to help shape the flows and currents which lawyers will be swimming in for the foreseeable future. It would be a shame if our silence today became our regret tomorrow.
The Law Society is still receiving feedback relating to the proposed Civil Justice Reforms, in preparation for its submission to the Ministry of Law’s public consultation. Please send in your views to [email protected].