[This is a case summary which I prepared for the APIEx newsletter]

“Expert shopping” as viewed by the Singapore Court of Appeal

Azuin bin Mohd Tap v Public Prosecutor [2025] SGCA 8 is a judgement of the Singapore Court of Appeal in a criminal matter with a narrow focus: dealing with an application to adduce new evidence said to be relevant as to whether the applicant “suffered from diminished responsibility,”.

The new evidence was in the form of psychiatric reports notably from two new experts rather than the expert relied upon in the original hearing.

The Court dismissed the application, determining that the new evidence was not material to the appeal, but it made some pointed comments about what it described as “expert shopping,” which it described as being intended “to lay the groundwork for running new and even inconsistent lines of argument on appeal” under the heading ‘Observations on the applicant’s attempt at “expert shopping”.’

“[21] While this suffices to dispose of the application, we take the opportunity to make some observations on the applicant’s case on appeal and, more generally, expert shopping after trial for the purpose of developing not only new but inconsistent arguments on appeal than those advanced at first instance.

 [25] …the only link of relevance that the applicant can draw between [the first new expert’s] report and his appeal relates not to anything that the Judge decided, but an entirely new hypothesis that contradicts an assumption that his case below was built upon.

 [26] The same can broadly be said for [the second new expert’s] report…It is relatively clear to us that [the second new expert’s] report is intended to support this new approach, as there would otherwise be no point in the applicant adducing [it]…

 [27] In our view, this case is a quintessential example of expert shopping. Indeed, we think that this is expert shopping of the most egregious form. It is simply impermissible for a litigant to run a case and lead expert evidence that is built specifically on one premise at first instance and, when that case fails, run a different case founded on an inconsistent premise and seek to adduce fresh evidence to support that change in position.

 [30] What we do say is that it would require quite exceptional circumstances to convince the court that a party should not only be allowed to do a volte-face but adduce new expert evidence from a different expert than before in support of this.”

Three issues for valuation experts

Bhojwani & Ors v Bhojwani [2024] SGHC 310 dealt with the quantification of damages after three sons were successful in litigation against their father, in his capacity as the trustee of a testamentary trust created under the will of their grandfather.

The Court was asked to consider the competing opinions of two expert valuers, in relation to three valuation questions.

1. Conversion of a “Founder’s Share” with special legal rights, into an ordinary share in the same company

The Father’s expert said that limitations on the exercise of the special legal rights meant that he should treat it as if it was an ordinary share, and he did.  Notably, his original report did not provide any valuation under the alternate scenario – i.e. on the basis that the special rights were unimpeded.

The Court ruled that his assumption about the limitations was incorrect (and also said that it was a legal question, and therefore outside his expertise).

The expert had included information in the later joint expert report, which arguably did provide a valuation on the alternate basis – but that was held to be inadmissible because of the lack of fair notice to the plaintiffs, and regardless, was of little weight, because there was no detail to all the Court to properly assess how it had been calculated.

2. Value of shares in two companies sold to his brothers

The Father’s expert had applied a “discount for lack of control” and a “discount for lack of marketability.  The Court rejected that approach finding that a transaction with a “typical market participant” was not an appropriate comparison.

The Court also rejected the approach of the Father’s expert in relation to the second company, holding that it was a going concern, not a “Special Asset Vehicle,” and so a market-based approach was appropriate.

3. The value of three struck off companies

The Court accepted the Plaintiffs’ expert valuation on a “Fair Market Value” basis, rejecting an argument from the Father’s expert that there was no relevant “open market” and hence no relevant information for the valuers to access.

The Court accepted the Plaintiffs’ expert opinion that it was possible to estimate the hypothetical value of the capital returns from the three companies, noting that the Father’s expert had not provided a “reasoned explanation” as to why it could not be done.

The “perils of the sea”

Background

Oversea-Chinese Banking Corp Ltd v Argoglobal Underwriting Asia Pacific Pte Ltd & Ors [2025] SGHC 82 dealt with a lender’s claim against marine insurers for the loss of a ship, which sank on its maiden voyage.

The key question was whether the loss was caused by a “peril of the sea” – covered by the insurance – or “uneventful decrepitude,” or other circumstances unrelated to any external accident.

As a consequence, expert evidence regarding the capsize was crucial, as was photographic evidence taken from the nearby tugboat.

Competing theories

The lender’s naval architecture expert concluded that the only possible explanation for the observed “list” (i.e., the ship becoming lopsided) was a loss of buoyancy due to water ingress – but she was unable to pinpoint the precise cause of that ingress.

The Insurers’ naval architecture expert advanced an alternative theory that “deck edge immersion” caused the capsize.  Notably, this theory arose in his oral evidence and was absent in his two sole expert reports, and the joint expert report.

The Insurers also tabled expert evidence from a Master Mariner who testified that the ship was inherently unstable on departure because it tilted excessively (“heeled”) in high wind.

Assessment of the expert evidence

The Court followed the “well established” rules in choosing between conflicting expert testimony, having regard “to their logic, common sense, coherence, as well as the objective evidence before the court.”

The Lender’s naval architecture expert evidence was supported by calculations and models, which “survived” the scrutiny and examination of the Insurers’ naval architecture expert.  However, there were several unexplained inconsistencies in the “much less credible” theory of the Insurers’ naval architecture expert, and neither he nor the Master Mariner had performed calculations to support their own theories, or to refute the key calculations of the Lenders’ expert.

The Court also preferred the objectivity of the Lender’s expert, noting her admission that she could not firmly hypothesise why the ship had capsized so suddenly.

By contrast, the Master Mariner avoided providing direct answers to some questions coming across “as a factual witness seeking to bolster the Defendants’ case rather than as an independent court expert.”

Speculation is speculation, even if undertaken by experts!

Lorinet v Helu-Trans (S) Pte Ltd [2025] SGHC 66 dealt with a home-owner’s claim against professional contractors who had mounted a valuable sculpture weighing almost 23 kgs, when it fell some two years later.

The owner said that the installers had failed to mount the sculpture in a reasonably secure manner, and that the 5cm screw was too small to bear the full weight of the sculpture.

Notably, there was no evidence about the wall on which the sculpture was mounted, or the size of the hole, because the owner had moved house by the time the experts were engaged, and they were unable to obtain access.

The contractor’s expert sought to overcome the lack of access by conducting tests of the mounting system on other walls, and each relied on photographs of the wall and the hole left when the mounting failed.

The Court held:

• The lack of access to the wall created “a significant evidential gap.”
• Analysis of photographs by the experts were “speculative,” and the tests conducted by the contractor’s expert provided little assistance to the Court absent evidence that the test walls were comparable to the wall in question.
• The fall of the sculpture – more than two years after it was mounted –  was “not inherently probative of anything, and still less that [the contractor’s] assumed breach of duty was the operative cause of the incident.”
• It was “impossible” to form any conclusions on the adequacy of the mounting system because the evidence was “simply incomplete” – and even if the sculpture had been improperly installed, the owner could not prove that the contractor’s breach was the cause of the loss.

The owner was unsuccessful.

An expert report “so lacking in substance” that it had “nil utility”

Foo v Chan [2025] SGHC 54 dealt with the assessment of damages following an earlier decision of the same name ([2023] SGHC 221) in which the Singapore High Court held that defendant was liable for defaming the solicitor plaintiff in a review on the Google page of the Law Society of Singapore (“LSS” and a written complaint to the LSS.

One of the issues relevant to the assessment of damages was the extent of distribution of the defamatory material, with the onus was on the plaintiff to prove the extent of distribution.

The plaintiff sought to introduce an expert report, notably, its first appearance as an annexe to her closing submissions.

Noting that plaintiff had not given notice of any intention to rely on expert evidence, the Court held that it would have been “clearly improper” to introduce evidence in a such manner, leaving the defendant without any opportunity to test the expert’s opinions in cross-examination or arrange their own expert.

Further, the Court held that the report “fails to comply with almost every conceivable rule of procedure and substance governing expert evidence” such that it would be of no probative value, even if it was admitted into evidence, identifying a list of deficiencies. The report:

• Was not sworn as an affidavit, and did not acknowledge the expert’s overriding duty to the court.
• Did not contain details of his qualifications to allow the Court to assess his specialised knowledge.
• Dealt with “almost none” of the matters listed at O 40 rr 3(2)(b) to 3(2)(g) of the Rules of Court.
• Did not set out the expert’s reasoning – but worse, it was “not clear what issue his report is intended to relate to or what his report is purposed towards establishing.”
• Was “so lacking in substance that it [possessed] nil utility as far as the issues before the court [were] concerned.”

The Plaintiff was able to secure an order for total damages of SGD $41,250 – but that was despite, not because of, the deficient report

Expert’s fees reinstated

Arbiters Inc Law Corp v Arokiasamy Steven Joseph and Anor [2024] SGHC(A) 37 dealt with a matter in which plaintiffs terminated the engagement of their lawyers – and then agreed to settle their claim for an amount that had been rejected a fortnight earlier.

The lawyers took action for the recovery of their fees, arguing that the relevant engagement letters “contentious business agreements” (“CBAs”) – which would compel the plaintiffs to pay their fees without any assessment of costs.

The fees claimed were SGD399,000, with additional disbursements including expert fees of £12,300 for an expert based in the UK.

The letters of engagement included an indicative fee estimate of SGD150,000, which allowed for a two-day trial, and which notably stated, “If the matter is settled before trial, as happens in many litigious matters, our professional fees will be correspondingly lower.”

Original Decision

At first instance the Court held that the engagement letters were not CBAs.

It held that a reasonable lawyer would have charged about SGD60,000 up to the trial, and correspondingly, that the claimed fees were excessive.  The Court held the expert’s fee was also excessive given that she did not have to attend Court, and determined that the clients should pay the expert SGD9,000 – a little less than half of her invoice.

On appeal

In the Court held that:

• The engagement letters were CBAs, but included terms that so unreasonable that they should be declared void and unenforceable.
• Although the claimed legal fees “were plainly excessive” – there should be an uplifted to SGD87,000.
• The expert’s fee was not “unreasonable” for a report of 57 pages – but in any case, the plaintiffs had already agreed to pay the expert’s fees in full.

Further consequences

The Court referral of the solicitor to the Law Society of Singapore “to inquire whether [the solicitor] had acted in the interest of [his clients]…and whether [the solicitor] had attempted to mislead the court,” and it ruled that costs should not follow the event having regard to the law firm’s limited success and the solicitor’s “highly unsatisfactory conduct.”

𝘊𝘰𝘮𝘮𝘦𝘯𝘵 – For experts, this case highlights the importance of contractual arrangements which ensure that their fees are payable regardless of the outcome of any cost assessment, although it is worth noting that many experts would require payment in advance before undertaking an engagement outside their home jurisdiction.