Radical changes to Singapore’s expert evidence rules…won’t proceed

In October 2018 the Singapore Civil Justice Review Committee (CJCR) and Civil Justice Commission (CJC) jointly issued a consultation paper seeking feedback on a number of measures intended to “enhance judicial involvement in civil proceedings to ensure that disputes are resolved efficiently and at a reasonable cost.”

The proposals included measures to mandate ADR, narrow the issues in dispute through better case management, reform discovery procedures, limit the number of applications that parties could file, and – most relevantly for my work – use a single joint expert witness if expert evidence was necessary.

The paper identified three problems said to arise under the current system under which each party appoints its own experts:

  • Party-appointed experts are presented with the case framed from the perspective of those engaging them, which might influence their interpretation of the evidence.
  • The experts often presented “irreconcilable differences in opinion,” which complicated the issues before the court.
  • The preparation and presentation of expert evidence resulted in disproportionately high costs.

In my experience, it is common for party-appointed expert witnesses to arrive at different opinions.  Sometimes that is because they are asked different questions, more usually it is because they are working with different assumptions.

The current position

Rule 5 of order 40A of the current Singapore Rules of Court provide the Courts with discretion to order experts to undertake “a discussion” and prepare a statement – but a meeting is not mandatory, and crucially, the contents of the discussion will not be put before the Court unless all parties agree (my emphasis in bold):

5.—  (1)  The Court may, at any stage, direct a discussion between experts for the purpose of requiring them to —

(a)        identify the issues in the proceedings; and

(b)        where possible, reach agreement on an issue.

(2)  The Court may specify the issues which the experts must discuss.

(3)  The Court may direct that following a discussion between the experts, they must prepare a statement for the Court showing —

(a)        those issues on which they agree; and

(b)        those issues on which they disagree and a summary of their reasons for disagreeing.

(4)  The contents of the discussions between the experts shall not be referred to at the trial unless the parties agree.

(5)  Where the experts reach agreement on an issue during their discussions, the agreement shall not bind the parties, unless the parties expressly agree to be bound by the agreement.

The Practice Directions of the Singapore International Commercial Court go further.  Paragraph 88 sets a default process whereby experts will meet before trial without lawyers present to discuss their reports, and then produce a joint experts’ report setting out:

(a) a list of issues and/or technical issues;

(b) areas/issues where they are agreed;

(c) areas/issues where they disagree;

(d) the reasons, nature and extent of their disagreement; and

(e) any other information which may assist the Court.”

Even though the parties are not bound by any agreement between experts, notably, “the Court will be entitled to take cognizance of the expert’s agreement.

The CJC proposals

Rather than move along the Singapore International Commercial Court pathway, the CJC proposed quite radical changes by which:

  1. Experts would only be used where the Court formed the view that their evidence would “contribute materially to the determination” of issues that were not capable of resolution by submissions or an agreed statement of facts.
  2. The general rule would be that only one common expert would be used (although the Court would also be able to appoint its own expert). The Court would control the appointment and use of the experts, giving directions about “the method of questioning and the remuneration to be paid.”
  3. The parties would be required to agree on the list of issues to be referred for expert evidence and the common set of facts on which the experts are to rely.

Easier said than done?

Producing an agreed list of issues and a common set of facts appears to be a worthwhile objective – but might be easier said than done.   In practice it would be likely to result in extensive use of so-called “dirty” (or “shadow”) experts working to identify the outcomes resulting from various possible counter-factual scenarios, followed by hard-fought battles in Court to attack or defend the preferred counter-factual.

The Ministry of Law response

On 11 June 2021 the Singapore Ministry of Law issued its response to the consultation process. In relation to the expert evidence proposal, it noted that:

A number of parties expressed concerns regarding the proposal for parties to agree and appoint a single joint expert.  In general, parties felt that the current rules pertaining to the adducing of expert witness evidence are sufficiently robust, and that the proposal may increase costs and satellite litigation.

As a consequence, it is now proposed that the rules will be changed to encourage parties to agree on a single expert witness where possible – but not make the use of a single expert mandatory.

 

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