Digest 2A

A.  Introduction

1.  One of the key recommendations by the Civil Justice Commission and the Civil Justice Review Committee was to enhance judicial control over the process of civil litigation and provide for flexibility in the management of cases. The Court will order parties to focus on key issues and provide case management directions to fit individual cases, instead of leaving it to parties to determine the pace of the proceedings. The Judges and Registrars will have the autonomy and flexibility to manage the cases. The intent is to enhance efficiency and speed of adjudication and maintain costs at reasonable levels.⁽¹⁾

2.  The new Rules of Court 2021 (“ROC 2021”) therefore envisage that there will continue to be active case management⁽²⁾ of each case throughout its life cycle once the claim is filed, and for the Court to give case management directions for the proceedings during the Case Conferences. 

3. This digest highlights the following key features which parties should take note of:

(a) Case Conferences;

(b) Amicable Resolution of Disputes;

(c) New Case Management Documents;

(d) Affidavits of Evidence-in-Chief (“AEICs”) before Production of Documents;

(e) Single Application Pending Trial (“SAPT”);

(f) Dispensation of Attendance of Parties and  Dispensation of Oral Arguments.

B. Case Conferences

4. The purpose of the Case Conference⁽³⁾ is for the Court to take control of and set the timelines and give directions for, the proceedings.⁽⁴⁾ The intent is for the Case Conference to be presided over by the Judges or Registrars in consultation with the Judges. This will ensure that the Judges have close control over the manner in which a case progresses. 

5. Generally, a Registrar will conduct a Case Conference but the Registrar may refer any matter to a Judge. The Judge will be actively involved from the outset and as cases progress, working with the parties to find the best way to resolve each case, and eliminating extraneous issues.⁽⁵⁾ Further, the Ideals in the new Rules will serve as a lodestar for the orders and directions to be made at the Case Conference regardless of whether the Case Conference is conducted by a Judge or Registrar.  

6. In terms of the timing of a Case Conference, this is to be held:

(a) 8 weeks after the originating claim or originating application is issued, where the defendant is to be served in Singapore⁽⁶⁾;

(b) 12 weeks after the originating claim or originating application is issued, where the originating claim or originating application is to be served out of Singapore.⁽⁷⁾ 

(c) A Case Conference can be held earlier or later than the time stated in (a) and (b) above on the Court’s own accord or at the request of a party.⁽⁸⁾  

7.  Case Conferences can be held at any stage over the course of proceedings, including appeals. Generally, it is anticipated that there will be 4 to 6 milestone Case Conferences before Registrars and 2 to 3 milestone Case Conferences before the Judges during the life cycle of a case. This would vary depending on the specific circumstances of the case (for eg, where it is anticipated that there will be expert evidence adduced). 

8.  The powers exercisable by the Court at a Case Conference are similar to those exercisable by the Court at a pre-trial conference under the Rules of Court (2014 Ed) (“ROC 2014”).  The Court may make appropriate orders, including the dismissal of the action or the giving of judgment, if a party is absent, the claimant fails to serve the originating process, or the defendant fails to file and serve a defence. 

C.  Amicable resolution of disputes

9.  Prior to commencement and during the course of any action or appeal, a party to any proceedings has the duty to consider amicable resolution of the party’s dispute.⁽⁹⁾ A party is to make an offer of amicable resolution before commencing the action unless the party has reasonable grounds not to do so.⁽¹⁰⁾ An offer of amicable resolution refers to making an offer to settle the action or appeal or making an offer to resolve the dispute other than by litigation, whether in whole or in part.⁽¹¹⁾ An offer of amicable resolution must not be rejected unless the party has reasonable grounds to do so.⁽¹²⁾

10. An offer of amicable resolution and any rejection must be in writing.⁽¹³⁾ The offer must be open for acceptance within a reasonable period of time, and in any case, for at least 14 days, unless the parties otherwise agree.⁽¹⁴⁾ Such terms of an offer which has been made and not accepted must not be relied upon or made known to the Court until after the Court has determined the merits of the action or appeal and is dealing with the issue of costs.⁽¹⁵⁾ Any offer of amicable resolution which does not state an expiry date expires once the Court has determined the merits of the action or appeal to which it relates unless the offeror has stated otherwise.⁽¹⁶⁾ 

11. Under ROC 2021, the Court has the power to order the parties to attempt to resolve the dispute by amicable resolution. In deciding whether to exercise its power, the Court must have regard to the Ideals⁽¹⁷⁾ and all other relevant circumstances, including whether any of the parties have refused to attempt to resolve the dispute by amicable resolution.⁽¹⁸⁾ This will be exercised by the Court only in appropriate cases. The Court may also suggest solutions for the amicable resolution of the dispute to the parties at any time as the Court thinks fit.⁽¹⁹⁾

12. As per the current practice, parties will be encouraged to consider alternative dispute resolution. 

13. If a party informs the Court that it does not wish to attempt to resolve the dispute by amicable resolution, the Court may order the party to submit a sealed document setting out the party’s reasons for such refusal. The sealed document will only be opened by the Court after the determination of the merits of the action or appeal and its contents may be referred to on any issue of costs.⁽²⁰⁾

D.  New Case Management Documents

14.  To assist the parties in conceptualising the roadmap of their case, parties will be required to complete a Pre-Case Conference Questionnaire (“PCQ”) (Annex A) prior to the first Registrar’s Case Conference. The intent of the template is to focus parties on the key issues and identify points of agreement. The Registrar will discuss the issues raised in the PCQ with the parties and if necessary, the questionnaire can be updated for discussion at subsequent Case Conferences.  

15.  Where parties wish to adduce expert evidence, parties will be asked to fill in an expert witness template (Annex B) prior to the Registrar’s Case Conference where the issue of expert evidence is to be discussed. The template is to facilitate the parties’ discussion of issues relating to the use of expert evidence with the Court. In particular, the template sets out general background information on the proposed expert(s), the list of issues to be referred to the proposed expert(s) and the facts or assumed facts which the proposed expert(s) will rely on and the anticipated timelines. Parties will be encouraged to come to a view on what the issues are and the common set of agreed or assumed facts. It is anticipated that there may be 2 to 3 Case Conferences to assist parties to come to an agreement on these issues. 

16.  For further information on documents relating to the SAPT, please refer to Digest 3. 

E. Affidavits of evidence-in-chief before Production of Documents 

17.  After pleadings have been filed and served but prior to any exchange of documents, the Court may order the parties to file and serve their lists of witnesses and AEICs of all or some of the witnesses, either simultaneously or in any particular sequence.⁽²¹⁾

18.  The Court may order AEICs before production of documents (“AB4D”) and this will not only be in exceptional cases. This will generally deal with the issue of factual evidence. The key consideration for the Court in determining when the AEICs should be filed is the claim and defence put in by the parties and what the claimant requires to prove its case. The factual evidence will allow for the key issues in the claim to be crystallised and provide more clarity as to whether expert evidence is required. 

19.  At the Case Conference before the Registrar, parties’ views will be gathered on whether an order for AB4D will be appropriate. In some instances, parties will be directed to attend a further Case Conference before a Judge to discuss this issue. 

20. The concept of interrogatories has been abolished.⁽²²⁾

F.  Single Application Pending Trial 

21.  The Court will consider all matters necessary to bring the proceedings to a conclusion in accordance with the Ideals in the ROC 2021.⁽²³⁾ As far as possible, the Court must order an SAPT to be made by each of the parties.⁽²⁴⁾ The SAPT must deal with all matters that are necessary for the case to proceed expeditiously.⁽²⁵⁾ 

22.  The following key points are to be noted: 

(a) The general rule is that all applications should be included in the SAPT. 

(b) The SAPT aims to prevent parties from litigating in a step-by-step fashion. Parties should think carefully about their litigation strategy prior to commencement of an action or appeal. 

(c) A single application does not mean that parties are restricted to a single type of relief or to a single hearing. The matters in an SAPT can be disposed of over several hearings and placed before both Registrars and /or Judges. 

(d) Generally, the SAPT will be taken out after general production of documents is completed. 

23.  No 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, except in a special case and with the trial Judge’s approval.⁽²⁶⁾ Similarly, the Court must not allow any pleading to be amended less than 14 days before the commencement of the trial, except in a special case.⁽²⁷⁾ 

24.  The Court’s approval to file further applications, other than those directed at a Case Conference, must be sought by letter. Parties must set out the essence of the intended application and provide reasons why it is necessary at that stage of the proceedings.⁽²⁸⁾ The Court may deal with the request by letter summarily or fix a Case Conference to deal with the matter.⁽²⁹⁾ Parties will need to persuade the Court that they should be granted permission to take out applications prior to the stage of the SAPT or during the 14 day period before the commencement of the trial.

25.  Save for certain applications (termed “carve-outs”)⁽³⁰⁾, no application may be taken out by any party at any time other than as directed at the Case Conference or with the Court’s approval. 

G.  Dispensation of attendance of parties and dispensation of oral arguments

26.  The Court is expressly empowered to dispense with the attendance of the parties or their solicitors, and to decide a matter after reading the documents filed without the need for oral arguments, except for the following matters:

(a) where oral evidence is given at any part of the proceedings (including any part of a trial of an action), unless all the parties consent; and 

(b) where the hearing of the matter is required under written law or an order of court to be advertised or published in any newspaper or the Gazette.⁽³¹⁾ 

27. The Court may, in any matter that it may decide without hearing oral arguments, direct that the matter be heard in an asynchronous manner except to do so would be inconsistent with the Court’s duty to ensure that the proceedings are conducted fairly to all parties.⁽³²⁾ 

28. Where the parties in any matter inform the Registrar in writing that they wish to record a consent judgment or order, the Court may dispense with the attendance of the parties and may record the judgment or order in the agreed terms, and the Registrar is to inform the parties accordingly.⁽³³⁾ 

29. As with the practice under ROC 2014, a Court under ROC 2021 may give its decision in any matter whether heard in open court or in chambers in writing at the conclusion of the hearing or on a subsequent date with or without the parties present. Parties may also write in with their requests and the Court’s directions will be conveyed to parties by way of correspondence from the Court. 

Annex A

Pre-Case Conference Questionnaire (“PCQ”)

1. Service of process

a. Has the originating process been served on all defendants/ respondents? 

b. If no, please state reasons.

c. When is the originating process intended to be served?

d. If any application for service (Sub-service or Service out of Jurisdiction) is intended to be made, please state when such an application will be filed. 

2. Jurisdiction challenges

a. Are any applications to challenge jurisdiction intended to be made?

b. If so, what is the nature of the jurisdictional challenge?

c. When will such an application be made?

3. Brief overview of the case

a. What is the nature of the claim(s)?

b. If the case falls within a specialised list, please state the specialised list. Please refer to [website link] to identify the relevant specialised list.

c. Are there any proceedings (pending or concluded) which are related to this case? 

d. Please state the key factual (e.g. was there an oral agreement between the parties?) / legal (e.g. whether the contract was void for illegality?) / technical (e.g. whether the building specifications complied with regulations?) issues in each party’s case. 

e. State the list of agreed issues (if any).

For the purposes of 3(d) and 3(e), parties need only state the issues in broad terms without the need for detailed analysis or comprehensive coverage of every sub-issue.

4. Settlement and ADR options

a. Parties are to apply their mind to O 5 rr 1 and 2 and solicitors are to be in a position to update the Court at the first RCC on: 

i. Whether amicable resolution has been attempted; and

ii. If so, when and what form of amicable resolution was attempted. 

5. AEICs

a. Is this an appropriate case for AEICs to be filed before production of documents? Please state reasons.

b. Is there any agreement among the parties on whether AEICs should be filed before production of documents?

c. Please indicate the number of factual witnesses and expert witnesses (if any) that you intend to call, and identify the witnesses (if known)

d. Please state the language spoken and the location of these witnesses

e. If the witnesses are based outside Singapore, is there any intention for the witnesses to give evidence remotely by way of video-link?

6. Summary judgment or striking out of whole action or defence 

a. Are any applications for summary judgment or striking out intended to be made? 

b. If so, when will such an application be made?

c. If a striking out application is intended, please state whether the application will seek to strike out the whole or part of the claim / defence.

7. Are there any other preliminary applications intended to be filed before the SAPT?

a. Addition or removal of parties

b. Consolidation of actions

c. Division of issues at trial

d. F&BP

e. Amendment of pleadings

f. Filing of further pleadings

g. Any other application(s)? [Please state]

i. Have parties conveyed their requests or positions on the applications (if any)?

ii. Please state when these applications (if any) will be filed, a brief description of the applications and the parties’ respective positions on the applications. 

8. Confidentiality orders

a. Are confidentiality orders required?

b. If so, please state the nature of the orders required.

c. When will an application be made to obtain such orders? Will the application be by consent?

Signed:

Submitted by: [Name of counsel] for [party]/ [Name] [position], for and on behalf of [party]/ [Name of party]

Date:

Annex B

Expert witness template

(A) General information⁽³⁴⁾ 

(B) List of Issues, facts and documents

(C) Timelines