[this is an expanded version of a case note first published on the APIEx LinkedIn page]

Background

Three sons (the Plaintiffs) sued their father in his capacity as the trustee of a testamentary trust created under the will of their paternal grandfather (the Father).  They said that their father concealed the existence of the trust from them for almost a decade – until they discovered its existence – and that he had failed to provide accurate accounts of the trust, commingled personal funds with trust funds, and mismanaged trust assets.

Notwithstanding the Father’s arguments that he had acted with “utmost honesty and in good faith” in the belief that he was acting in the interests of the beneficiaries, the Singapore High Court found that he had breached his duties.  In Bhojwani & Ors v Bhojwani [2024] SGHC 310, the Court ordered his replacement as trustee, rejected claims for the reimbursement of expenses, and made orders by which he was required to compensate the trust by:

• 5m for the wrongful conversion of a “Founder’s Share” with special legal rights into an ordinary share in the same company.
• 5m and SGD$1.84m for the wrongful sale of shares in two companies to his brothers at undervalue.
• An amount to be later determined for realising shares in three struck off companies at undervalue.

The determination of those orders required to Court to assess the competing opinions of two expert valuers.

The expert valuation evidence

The Founder’s Share

The Plaintiffs’ expert valued the Founder’s Share on the relevant date at SGD9,522,732, and the value of an ordinary share at SGD6.02.

The Father’s expert said that there were restrictions on the ability to exercise those special legal rights, and so he valued the Founder’s share at SGD3.95 – consistent with his valuation of ordinary shares.  Notably, his original report did not include a valuation on the alternate basis that there was no restriction on the exercise of the special legal rights (the Alternate Basis).

The Court found the supposed restriction on the special legal rights was an “erroneous basis for valuation,” and a legal question that was outside a valuer’s expertise.

In a later joint expert report the Father’s expert added a table to an appendix to the joint expert report, which appeared to provide a valuation on the Alternate Basis.  The Court held that the supplemental Alternate Basis valuation was inadmissible in the absence of fair notice to the plaintiffs, but regardless, it would not have accorded much weight to the figure because there was little information about how the valuation had been determined, which meant that the Court was unable undertake a proper assessment of the expert’s opinion.

Valuation of the shares in the two Live Companies

The Plaintiffs’ expert assessed the valuation of an ordinary share in the first company at the relevant date as SGD25.55, whereas the Father’s expert determined the value at SGD12.56 after applying a “discount for lack of control” (DLOC) and a “discount for lack of marketability” (DLOM).

The Court determined a transaction with a “typical market participant” was not the relevant comparison in the circumstances.  For that reason, it held that it was not appropriate to apply a DLOC or a DLOM, and so it adopted the Plaintiffs’ expert valuation.

The Plaintiffs’ expert assessed the second company as a going concern, and used a market-based approach to arrive at a per-share value at the relevant date of SGD1,845,000.  The Father’s expert treated the company as a “Special Asset Vehicle,” deploying a net Asset Value approach adjusted for a DLOC, to arrive at a per-share value of SGD10,766.

The Court held that a going concern basis was appropriate, and preferred the approach of the Father’s expert.

Valuation of the three struck off companies

The Plaintiffs’ expert assessed the value of the three struck off companies on a “Fair Market Value” basis as defined by the International Valuation Standards, expressing his opinion on the amount which a buyer would be willing to pay to receive his assessment of the return of capital from the three struck off companies.

The Father’s expert argued that a Fair Market approach could not be used because such returns of capital were not exposed on the open market for market participants, and so there was no relevant information that could be used for such a calculation.

The Court accepted the Plaintiffs’ expert opinion that it was possible “to estimate a hypothetical value of such returns” noting that the Father’s expert had not “provided any reasoned explanation as to why it is impossible to estimate” those amounts.  The Court accepted the valuation of the Plaintiffs’ expert, applied at the date of strike off – which was to be later adjusted for the actual returns, once that information was available.

These are my write-ups of two cases from Singapore, which first appeared on the Asia Pacific Institute of Experts LinkedIn page:

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

Background

In an earlier decision in (Foo v Chan [2023] SGHC 221), the Singapore High Court held that defendant was liable for defaming the solicitor plaintiff in two published statements: one, a review on the Google page of the Law Society of Singapore (“LSS”); the second, a written complaint to the LSS.

In this judgement the Court considered the assessment of damages, with general damages of SGD300,000 and aggravated damages of at least SGD50,000 sought by the plaintiff, and a submission from the defendant that the award should be no more than SGD$30,000 in total.

One of the issues relevant to the assessment of damages was the extent of distribution of the defamatory material.

In this case, the Court accepted the general proposition that “there is no presumption that substantial publication occurs simply by virtue of the defamatory statement being published on the Internet,” and that the onus was on the plaintiff to prove the extent of distribution.

The Expert Evidence

The plaintiff sought to introduce an expert report, as an annexe to her closing submissions.

Noting that plaintiff had not given notice of any intention to rely on expert evidence, the Singapore High 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.”

Outcome

Notwithstanding the deficiencies in the expert report, the Plaintiff was able to secure an order for total damages of SGD $41,250 in Foo v Chan [2025] SGHC 54.

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Speculation by experts is still speculation!

Background

A valuable sculpture weighing almost 23 kgs fell, some two years after being professionally mounted on the wall of the owner’s home.

The owner sued the installation contractor, claiming damages said to arise due to failure to mount the sculpture in a reasonably secure manner, pleading that “[t]he 5cm screw that held the Sculpture in place on the wall was too small to bear the full weight of the Sculpture over time.”

The Singapore High Court rejected the argument that “the fall of the Sculpture…provides irrefutable evidence that the installation was not properly executed,” finding that the fall was “only the starting point and the real question is why the Sculpture fell.”

The Expert Evidence

The owner’s expert provided an opinion that “at least more than one screw or fixation [point was] required to ensure the robustness, stability, and safety of hanging [the] bulky and heavy Sculpture.” The contractor’s expert provided a contrasting opinion that there was no valid evidence of “inadequate screw fixation which failed over time.”

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’s assessment of the expert evidence

In  Lorinet v Helu-Trans (S) Pte Ltd [2025] SGHC 66 the Singapore High Court found that:

• 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.

Outcome 

The owner was unsuccessful.

[this is an expanded version of a earlier blog, as recently published in the July 2023 edition of the APIEx newsletter]

Background

An international manufacturer of insulation products was suspicious about an Australian rival’s claimed fire rating for a feature product.  In particular, it was concerned that the fire rating from a ceiling only test was presented to potential purchasers as the result from a walls and ceiling test. In practical terms, this meant it overstated its fire-resistance qualities.

It commissioned its own scientific analysis, which seemed to confirm its suspicions. 

From a business point of view the international manufacturer was impacted by what it saw as unfair competition, but in the aftermath of the 2017 Grenfell Tower fire in London – in which a fire spread rapidly via combustible aluminium composite cladding, resulting in 72 deaths – there was also a significant fire safety issue potentially in play.

The international manufacturer arranged for its lawyers to write to the Australian manufacturer outlining their concerns and providing copies of their own test results, and asked it to correct what were said to be misleading and deceptive representations.  The Australian manufacturer declined, and told the international manufacturer that it should raise any concerns it had with the relevant authorities.

The international manufacturer then implemented a “counter-marketing” campaign – dramatically named “Project Shield and Sword” – including the distribution of a narrated video to key customers and decision makers.  The video showed footage of the international manufacturer’s own test of its rival’s feature product, with an outcome that contradicted the claimed rating.

When the Australian manufacturer learned about the counter-marketing campaign, it commenced legal action seeking injunctions to stop any further distribution, and damages for the loss that it said had been caused by the campaign.

A central question for the trial was whether the original testing, and the dramatic re-test, were conducted in accordance with the fire safety testing standards, and so technical expert evidence was critical.  There were also important legal questions around the interpretation of standards – drafted for engineering purposes, rather than to facilitate legal analysis – notably, whether transitional provisions allowed the Australian manufacturer to rely upon a ceiling only test that had been conducted prior to a change in the standard that appeared to now preclude their use.

The international manufacturer engaged the fire safety engineer who undertook the original Project Shield and Sword analysis as one of its independent technical experts.  At trial, his independence was challenged twice.  First, the Australian manufacturer said that it was wrong for his original analysis to be described as “independent” as part of the counter-marketing campaign.  Secondly, it argued that his role in the original analysis, and other earlier work for the international manufacturer demonstrated that he was a “hired gun,” and not truly independent.  The Australian manufacturer said that his evidence should not be admitted in the proceedings because it was the product of a lack of independence.

The expert’s independence

The expert was subject to specific cross-examination about his understanding of the Practice Note and Expert Witness Code of Conduct, and it was clear that the court was satisfied that he had complied with those requirements, not just in relation to his evidence to the court, but critically, also in relation to the original analysis.

There was also forensic analysis of the communication between the international manufacturer’s lawyers and the expert, which, the Australian manufacturer argued, “improperly pre-empted the opinion or statements sought [from the expert].”

On this point the court found that the communication “neither occasioned nor established any want of independence on [the expert’s part]” noting the guidance in Boland v Yates Property Corporation Pty Ltd [1999] 74 ALJR 209:

“For…legal advisors to make suggestions is a quite different matter from seeking to have an expert witness give an opinion which is…not an honest opinion that he or she holds or is prepared to adopt…counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance…so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions.”

Clearly the expert’s response in cross-examination impressed the court, which noted that “the opinions that he expressed…were his own and were arrived at independently of any held within [the international manufacturer].”

It appears that the independence of approach actually demonstrated by the expert outweighed any concerns about a theoretical risk to his independence.

Weaponisation!

The international manufacturer claimed that it was merely passing on the work of the experts, without making the alleged representations.  The court did not accept that argument, finding instead that the international manufacturer had “weaponised” the analysis, distributing it “effectively and with enthusiasm,” – but, notably, ruled that:

“[The international manufacturer] cannot be criticised for wanting to make as much as it could of the views that [the expert] expressed; and the fact that it did so is not evidence of some want of independence on [the expert’s] part. The alignment of [the expert’s] opinion with [the international manufacturer’s] interests arose as a result of the correct construction of the Transitional Provision.”

Conclusions

In Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340,[1] the Federal Court of Australia held that:

• The Evidence Act did not “require untrammelled independence or impartiality (however preferable those qualities plainly are).”
• The international manufacturer’s original engagement of the expert did not compromise his independence, and his views were arrived at independently – even if they were later weaponised as part of Project Shield and Sword.
• The international manufacturer’s concerns were genuinely held, and it sought to verify those concerns through a series of tests including those by independent testing bodies, and it repeatedly sought to engage with the Australian manufacturer about the results of that testing over an extended period, prior to commencing Project Shield and Sword.
• The international manufacturer did make the alleged representations that the product was non-compliant and could not safely be used, and it did represent that the original Project Shield and Sword analysis was independent.
• The transitional rules did not allow the Australian manufacturer to rely on the outdated ceiling only test, and so the representations made by the international manufacturer were factually correct.  Not only was the Australian manufacturer unsuccessful in its attempts to prevent the further distribution of the Project Shield and Sword materials, the court also held that it should be prevented from making claims about fire rating based on the ceiling only test.

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[1] The subject of an appeal, per Pirmax Pty Ltd v Kingspan Insulation Pty Ltd (No 2) [2022] FCA 1526 at [3].

Background

A shareholder was successful in its claim of minority oppression, obtaining a buyout order which valued its 37.57% shareholding at US$481.6m. 

The question of costs was made more complicated because the proceedings began in the High Court of Singapore, but were later transferred to the Singapore Commercial Court: should post-transfer costs be assessed by reference to the normal civil standard which applied in the High Court (per order 59), or was there a different regime to be applied in the Singapore International Commercial Court (per order 110, rule 46)?

The assessment of the valuation expert’s fees

In addition to the question of principle, there were specific questions in relation to a S$3.3m fee account from the minority shareholder’s valuation expert, described by the Court (in the context of its assessment) as “clearly deficient and inadequate,” with no detail of hourly rates, time spent, or the nature of the work done.

Once further detail was provided, the majority shareholder took the position that the fees had “not been reasonably incurred.”  The Court was concerned that this position was adopted without any detail about the fees of its own experts, and it invited the majority shareholder to provide that information. 

On determining that the majority shareholder’s own expert had charged S$2.82m – which exceeded the Court’s 69.59% allowance of the S$3.3m account – the Appeal Court declined to interfere with the original exercise of discretion.

Outcome

In Senda International Capital Ltd v Kiri Industries Ltd [2022] SGCA(I) 10 the Singapore Court of Appeal provided the following guidance in relation to “reasonable costs” for proceedings in the SICC:

• The Singapore International Commercial Court regime was “intended to restore or compensate the other party for the expense it had incurred in the legal proceedings as long as this been incurred…sensibly,” not to mirror the normal civil regime.
• An assessment of whether costs were reasonable was “an open-ended inquiry to be undertaken with due regard to the specific facts of the case at hand.”
• The party claiming costs must provide sufficient information to allow assessment, which would typically include detail about hours charged and by whom, and their seniority and hourly rates; and an explanation as to the nature of the work.
• Once that information was provided, the evidential burden shifted to the unsuccessful party.  Although the “best evidence” would “often be evidence of its own incurred costs” the unsuccessful party could provide other evidence, and also “point to flaws evident on the face of the costs claim.”

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.