On 1 December 2021 Singapore gazetted new Rules of Court, intended to “transform the litigation process by modernising it, and enhancing the efficiency and speed of adjudication, while maintaining legal costs at reasonable levels.”
The new rules apply from 1 April 2022, with a “transitional learning phase” until 30 June 2022.
The new rules follow a consultation process undertaken in late 2018, and a government response to the consultation released on 11 June 2021. You can find my comments on the matters touching the work of expert witnesses in the government response, here.
The current position
Under the current regime:
- There is no restriction against the use of experts, and no restriction on the assumptions that they are to adopt in undertaking their work.
- The Singapore Supreme Court has discretion to order experts to undertake “a discussion” and prepare a joint report – but a meeting is not otherwise mandatory, and crucially, the contents of the discussion will not be put before the Court unless all parties agree.
- The Singapore International Commercial Court Rules provide a default process whereby experts will meet before trial to discuss their reports without lawyers present, and then produce a joint experts’ report. Although 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 post 1 April 2022 position
The new Rules introduce significant changes, albeit well-telegraphed by the government response discussed above. In my view, the most noteworthy (with my observations in italics) are:
- Expert evidence may not be introduced without Court permission, which will be granted “only if it will contribute materially to the determination of an issue in the case” which cannot be resolved by an agreed statement of facts, or submissions based on agreed facts.
I suspect that litigators would say that this is the standard they apply today in practice, and so the issue will be whether the Court assesses the question any differently.
- The Court will have power to appoint a Court expert or common expert – but the use of a single expert will not be mandatory.
This is a new power, and potentially very impactful. The key question is how often it will be used – it may be “held in reserve” until the impact of the statement of agreed facts is better understood.
- The Court will have power to request that an expert “clarify that expert’s opinion in any aspect.”
It seems a useful idea for the parties to be able to make a written request, and receive a response in writing, ahead of a trial. The devil may be in the detail of the clarification request.
- The parties are to agree on a list of issues, and a list of agreed facts on which the experts are to rely. If the parties cannot agree, the Court “must decide the list of issues and the common set of agreed facts.”
It may be frustrating to see experts arrive at different conclusions based on different assumptions – but on some occasions that may serve a useful purpose in helping the Court to understand the significance of those assumptions.
I’d expect this change to have parties working to identify the key assumptions, and the outcomes that result from their adoption, with some hard-fought contests as each side battles to have their preferred assumptions mandated. That may well mean more, and probably earlier, work for the so-called “dirty” experts (i.e., those not required to preserve their independence).