This country-specific Q&A provides an overview of Litigation in Singapore.
It will cover methods of resolving disputes, details of the process and the proceedings, the court and their jurisdiction, costs and appeals and opinions on future developments.
This Q&A is part of the global guide to Litigation. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/litigation-dispute-resolution/
What are the main methods of resolving commercial disputes?
Civil litigation by trial is a common method of resolving commercial disputes in Singapore. Civil proceedings may be commenced in the Supreme Court or the State Courts. The recently established Singapore International Commercial Court (“SICC”) also provides litigants the option of having their commercial disputes adjudicated by a panel of specialist commercial judges from Singapore, other common law traditions, as well as from civil law traditions.
Alternative methods of commercial dispute resolution include arbitration and mediation, both of which enjoy the benefit of confidentiality in comparison to the traditional litigation process. Today, Singapore is one of the most preferred seats of arbitration in the world. It is also home to the Singapore International Arbitration Centre, which is supported by its own set of rules and panel of arbitrators. Alternatively, parties may choose to mediate in the State Courts Centre for Dispute Resolution or the Singapore Mediation Centre, in seeking to reach a settlement quickly and at a relatively lower cost.
What are the main procedural rules governing commercial litigation?
Commercial litigation in Singapore is mainly governed by the Supreme Court of Judicature Act (“SCJA”) the Rules of Court (“ROC”), the State Courts Act (“SCA”), the Supreme Court Practice Directions and the State Courts Practice Directions.
What is the structure and organisation of local courts dealing with commercial claims? What is the final court of appeal?
The State Courts comprise of the District Courts, Magistrates’ Courts and the Small Claims Tribunals. Permitted categories of claims not exceeding $10,000 (pursuant to the Small Claims Tribunals Act (Cap 308, Rev Ed 1998)) may be heard by the Small Claims Tribunals. Commercial claims not exceeding $60,000 and $250,000 may be heard in the Magistrates’ Courts and District Courts, respectively.
The Supreme Court of Singapore comprises of the High Court and the Court of Appeal. Both these Courts may hear commercial disputes in excess of the State Courts’ jurisdiction. The SICC also constitutes a division of the High Court.
At the apex, the Court of Appeal hears appeals arising from the High Court and State Courts.
How long does it typically take from commencing proceedings to get to trial?
This substantially depends on whether any interlocutory applications are taken out at the pre-trial stage. Nevertheless, pre-trial conferences expedite proceedings commenced in the courts, as part of a proactive case management system. This allows the Court to monitor the progress of cases and make the necessary directions to facilitate the process.
Are hearings held in public and are documents filed at court available to the public? Are there any exceptions?
Generally, hearings are open to the public. However, family proceedings, hearings held in the Judges’ or Registrars’ chambers, including pre-trial conferences, are not open to the public. Hearings which involve the testimony of a vulnerable witness may also be closed to the public.
Documents filed in Court are generally not made available to the public. Media representatives may, however, request to inspect a case file and court documents for reporting purposes.
What, if any, are the relevant limitation periods?
Actions in contract or tort may not be brought after the expiration of 6 years from the date on which the cause of action accrues. Part III of the Limitation Act does provide extensions of limitation periods in certain circumstances.
In respect of actions concerning trust property, Section 22(1) provides that no period of limitation shall apply to an action by a beneficiary under a trust, where: (a) the action relates to any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b) the action is brought to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.
Section 22(2) further provides that, subject to section 22(1), an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of the Limitation Act, may not be commenced after the expiration of 6 years from the date on which the cause of action accrues.
Actions for the enforcement of any judgment and actions to recover land have a limitation period of 12 years.
Section 32 of the Limitation Act also expressly states that nothing in the same Act affects any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise.
What, if any, are the pre-action conduct requirements in your jurisdiction and what, if any, are the consequences of non-compliance?
In the High Court, a new protocol for medical negligence cases in the High Court took effect from 1 July 2017. This protocol has 3 parts: pre-action discovery, commencement of legal proceedings and pre-trial proceedings, and medical assessors. With regard to the commencement of legal proceedings, the claimant now has to file and serve the core documents in support of his claim (including the expert report(s)), together with his Statement of Claim.
There is also a framework for the appointment and scope of a medical assessor, who is to assist the Judge on specialised and technical aspects of the case.
Non-compliance of the protocol can result in adverse costs orders.
There are also pre-action conduct requirements in medical negligence cases, personal injury claims and non-injury motor accident actions in the State Courts. In such actions, the Court will have regard to non-compliance with pre-action protocol when exercising its discretion and powers, especially in respect of costs.
The State Courts will also be introducing a pre-action protocol for defamation actions by the end of 2018.
A party who intends to commence an action in the SICC, or who may be a party to an action commenced in that Court, may apply for a pre-action certificate. A pre-action certificate allows the applicant to obtain an early indication from the Court on several important matters, including: (a) whether the claims in the intended action are of an international and commercial nature, to fulfil jurisdictional requirements; (b) whether the intended action is an offshore case in considering issues of foreign representation; and (c) whether any orders protecting confidentiality should be made.
How are commercial proceedings commenced? Is service necessary and, if so, is this done by the court (or its agent) or by the parties?
Commercial proceedings are commenced by an originating process, either by a Writ of Summons or by Originating Summons. Most civil actions in contract and tort involve substantial disputes of fact, and are thus commenced by a Writ of Summons. On the other hand, where a commercial dispute concerns matters of law with no substantial dispute of fact, proceedings may be commenced by way of Originating Summons.
A Writ of Summons must be served personally on each defendant, by the plaintiff or his agent. Service on a defendant company registered in Singapore is deemed good if sent by registered post to the registered office of that company, pursuant to section 387 of the Companies Act.
Service of a Writ of Summons on a defendant outside Singapore is permissible with the leave of the Court. Order 11 of the ROC sets out various circumstances under which leave of the Court ought to be granted for such purpose. Before leave for service outside Singapore is granted, the Court must be satisfied that the plaintiff has ‘a good cause of action’ and that there is ‘a real issue which the plaintiff may reasonably ask the Court to try’.
How does the court determine whether it has jurisdiction over a claim?
Section 16 of the SCJA provides that the High Court has jurisdiction to hear and try any action in personam where: (a) the defendant is duly served with any originating process (whether within or without Singapore); or (b) the defendant submits to the jurisdiction of the High Court.
How does the court determine what law will apply to the claims?
Claims in contract
In respect of claims in contract, the courts will adopt the following approach:
- The Court first identifies if the parties to the contract in question have expressly chosen a system of law to govern that contract.
- In absence of an express choice of law, the Court considers whether the intention of the parties, as to the governing law, may be inferred from the circumstances. The express or inferred choice of contracting parties is virtually conclusive of the proper law governing the contract, provided that the choice is bona fide, legal and not against public policy.
- Where neither an express nor inferred choice of law is identified, the Court determines the objective proper law of the contract. This refers to the system of law with the closest and most real connection to the contract and the contracting parties.
Claims in tort
In respect of claims in tort, whether for wrongs committed abroad or in Singapore, the Singapore Court applies the double actionability rule. The plaintiff must thus show that the act of the defendant: (i) would be actionable under Singapore law, had it been committed in Singapore; and (ii) would attract civil liability under the law of the place where the act was committed.
In exceptional cases, the double actionability rule is not applied, enabling the Court to displace either Singapore law or the law of the place where the act was committed. Alternatively, where the parties and surrounding factors have little connection to Singapore and the place where the act was committed, a third possible law might govern the action concerned.
In what circumstances, if any, can claims be disposed of without a full trial?
Default judgment may be entered against a defendant if he fails to enter an appearance, or, having entered appearance, he fails to file and serve a defence within the time stipulated under the ROC.
Where a defendant has entered appearance and filed and served a defence, a plaintiff may apply for summary judgment against him on the ground that that defendant has no real defence to the claim, either in whole or in part.
At any stage of the proceedings, the Court may order any pleading or part thereof to be struck out, on grounds that: (a) it discloses no reasonable cause of action or defence; (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass of delay the fair trial of the action; or (d) it is otherwise an abuse of process of the Court. The Court may accordingly order the action to be stayed or dismissed, or for judgment to be entered.
What, if any, are the main types of interim remedies available?
The main types of interim remedies that are available include: -
- Interim injunctions, including mandatory injunctions, prohibitory injunctions and Mareva injunctions to freeze the assets of the defendant;
- Orders for the detention, custody or preservation of any property which is the subject-matter of the dispute, or for the inspection of any such property in the possession of a party to the dispute; and
- Orders for interim payment by the defendant, at any time after the Writ of Summons has been served on him and the time limit for him to enter appearance has expired.
The Court may also grant an Anton Piller order permitting a party to enter another’s premises to search for and seize property or evidence. Such orders are made to prevent the defendant from destroying incriminating evidence in his possession.
After a claim has been commenced, what written documents must (or can) the parties submit and what is the usual timetable?
A statement of claim, if not earlier endorsed on the Writ of Summons, must be served on the defendant(s) within 14 days after he has entered appearance.
A defendant who wishes to defend an action must, unless the Court gives leave to the contrary, file and serve a defence on the plaintiff within 14 days after the time limited for appearing or after the statement of claim is served on him, whichever is later. A defendant may also make a counterclaim at the same time.
The plaintiff must file and serve a reply and a defence to any counterclaim, if any, in the same document, on the defendant(s) within 14 days from the defence (and counterclaim) has been served on the plaintiff.
After the close of pleadings, the Court also commonly orders that a list of documents which are or have been in the possession, custody or power of any party, and an affidavit verifying such list, to be served on any other party to the action. If one party has reason to believe that the other party has not made adequate disclosure, the former may apply for specific discovery of documents.
Prior to trial, affidavits of the evidence-in-chief of all witnesses must be exchanged.
What, if any, are the rules for disclosure of documents? Are there any exceptions (e.g. on grounds of privilege, confidentiality or public interest)?
Each party to the action must disclose to all other parties all documents relevant to the issues arising in that action, which are or at any time have been in the former’s possession, custody or power. This is regardless of whether any such documents could adversely affect or support any party’s case. Crucially, the duty of disclosure continues throughout the proceedings. Parties must file and serve on all other parties to the action a list of documents, and an affidavit verifying such list, by the date stipulated by the Court.
Documents to be disclosed are not restricted to hard-copy documents in writing. Documents of all forms must be disclosed, which includes electronic documents, discs, tapes and films (which may contain visual images, sounds or other data).
If one party believes that any other party has not made adequate disclosure, the former may apply for specific discovery of documents.
Documents subject to legal advice privilege or litigation privilege need not be disclosed. A party may claim that relevant documents are subject to legal advice privilege if they contain his communications with his lawyers, which were made for the purpose of receiving legal advice. Alternatively, a document may be subject to litigation privilege if it contains information or advice obtained for the dominant purpose of litigation, at a time when a reasonable prospect of litigation already existed. In these cases, relevant documents need not be disclosed on grounds of privilege.
However, relevant documents which may be deemed confidential, but which are not subject to legal advice privilege or litigation privilege, must still be disclosed to the other parties to the action.
Where a party inadvertently allows a privileged document to be inspected, the party who inspected it may only use it or its contents with the leave of the Court.
Public interest exception
Order 24, Rule 15 of the ROC expressly provides that any rule of law which authorises or requires the withholding of any document, on the ground that its disclosure would be injurious to the public interest, prevails over the rules of disclosure.
How is witness evidence dealt with in commercial litigation (and, in particular, do witnesses give oral and/or written evidence and what, if any, are the rules on cross-examination)? Are depositions permitted?
Witnesses must give both written evidence pre-trial and oral evidence during the trial.
Prior to the commencement of the trial, each party must exchange affidavits of the evidence-in-chief (“AEIC” or “AEICs”) of all witnesses.
At the trial, witnesses are cross-examined based on their earlier exchanged AEICs. If a witness does not attend the trial for cross-examination, his AEIC will not be received in evidence, except with the leave of the Court.
At the trial or hearing of any cause or matter, no deponent to an affidavit may give evidence-in-chief, the substance of which is not contained in his affidavit, unless in relation to matters which have arisen after the filing of that affidavit. However, the Court may, if it thinks just, order that such evidence be given orally at the trial or hearing of any cause or matter.
Depositions taken in any cause or matter may only be received in evidence at trial if: (a) the deposition was taken in pursuance of an order under Order 39, Rule 1 of the ROC; and (b) either the party against whom the evidence is offered consents, or it is proved to the Court’s satisfaction that the deponent is dead, or beyond the jurisdiction of the Court, or unable from sickness of other infirmity to attend the trial. A party intending to use any deposition in evidence at trial must, at a reasonable time before the trial, give notice of his intention to do so to the other party/parties.
Is expert evidence permitted and how is it dealt with? Is the expert appointed by the court or the parties and what duties do they owe?
Order 40A of the ROC governs the use of expert evidence called by parties to an action. In particular, such evidence must be given in the form of a written report signed by the expert and exhibited in an affidavit sworn/ affirmed by him, testifying that the report exhibited is his, and that he accepts full responsibility for the report. The expert’s duty is to assist the Court on matters within his expertise, and that such duty overrides any obligation to the person from whom he has received instructions, or by whom he is paid.
With the leave of the Court, a party may put to an expert instructed by another party written questions about his report.
An expert may be called by the parties, or an independent expert may be appointed by the Court (a “Court Expert”). The question(s) to be submitted to a Court Expert and the instructions to be given to him shall, failing agreement between the parties, be settled by the Court. Any party may also apply to the Court for leave to cross-examine the Court Expert on his report.
The remuneration of the Court Expert will be fixed by the Court, and the parties to the action will be made jointly and severally liable to pay such amount fixed.
Can final and interim decisions be appealed? If so, to which court(s) and within what timescale?
Disputes heard in the Supreme Court
Appeals against a decision of a Registrar (a “Registrar’s Appeal”), usually on interlocutory applications, lies to a Judge of the High Court in Chambers. No leave of the Court is required to file a Registrar’s Appeal. The Notice of Appeal, must be filed within 14 days after the date of the Registrar’s decision, and must be served on every other party to the proceedings within 7 days of it being issued.
Appeals against a decision made by the High Court lies to the Court of Appeal, pursuant to Order 57 of the ROC. In this regard, it is pertinent to refer to section 34 of the SCJA, which provides a list of matters that are non-appealable or appealable only with leave of the Court. In particular, leave of the Court for an appeal to the Court of Appeal must be sought where the amount in dispute does not exceed $250,000, subject to section 34(3) of the SCJA. The Notice of Appeal, must be filed within 1 month from the date of the decision appealed against. At the time of filing such Notice of Appeal, the appellant must provide security for the respondent’s costs of the appeal.
Disputes heard in the State Courts
In the State Courts, appeals against a decision of a Registrar similarly lie to a District Judge in Chambers. The Notice of Appeal must be filed within 14 days after the date of the Registrar’s decision, and must be served on every other party to the proceedings within 7 days of it being issued.
Appeals from the decisions of District Judges or Magistrates, in Chambers, lie to a Judge of the High Court in Chambers. Similarly, the Notice of Appeal must be filed within 14 days after the date of the decision being appealed against, and must be served on every other party within 7 days of it being issue. Additionally, leave to appeal must be sought from the Court if the amount in dispute does not exceed $50,000.
Post-trial in the State Courts, a party not satisfied with the judgment may file an appeal to the High Court under Order 55D of the ROC. The Notice of Appeal must be filed within 14 days from the date of the judgment being appealed against. If the amount in dispute does not exceed $50,000, leave to appeal must also be sought from the Court under section 21 of the SCJA.
What are the rules governing enforcement of foreign judgments?
Foreign judgments within the ambit of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (the “RECJA”) and the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (the “REFJA”) may be enforced in Singapore, in accordance with Order 67 of the ROC. Any person who wishes to wishes to enforce a foreign judgment pursuant to the foregoing rules must apply to have the judgment registered in the High Court, by way of an ex parte originating summons. Once registered, the foreign judgment may be enforced in Singapore as if it were a local judgment. Fresh proceedings need not be commenced for the purpose of enforcement.
Foreign judgments which do not fall within the ambit of the RECJA or the REFJA may nevertheless be enforced under the common law, provided that the judgment in question is: (i) in personam, final, conclusive and given by a court of competent jurisdiction; and (ii) for a definite sum of money. Such a judgment would be enforceable in Singapore unless it was procured by fraud, its enforcement would be contrary to public policy, or the proceedings in which it was obtained were contrary to natural justice.
Can the costs of litigation (e.g. court costs, as well as the parties’ costs of instructing lawyers, experts and other professionals) be recovered from the other side?
As a general rule, costs follow the event for most civil actions. This means that the unsuccessful litigant must pay the reasonable costs of litigation incurred by the successful litigant. However, any order for costs to be paid is at the Court’s discretion, and may include fees, charges, disbursements, expenses and remuneration.
What, if any, are the collective redress (e.g. class action) mechanisms?
Where numerous persons have the same interest in any proceedings, representative actions may be begun and/or continued by or against any one or more of them. However, an order made under the same Rule (to begin or continue representative proceedings) may not be enforced against any person who is not already a party to the proceedings, except with the leave of the Court.
In Koh Chong Chiah and others v Treasure Resort Pte Ltd  4 SLR 1204, the Court of Appeal clarified that not all the interests of each claimant need to be identical, before the ‘same interest’ requirement may be fulfilled. It would suffice if there exists one or more significant issues of fact or law common to all the claimants, the significance of which clearly outweighs the significance of the issues which differ as between the claimants. The Court also retains the discretion to refuse to permit a representative action, if the facts and circumstances of the case warrant the exercise of such discretion.
What, if any, are the mechanisms for joining third parties to ongoing proceedings and/or consolidating two sets of proceedings?
Third parties may be joined to ongoing proceedings. A defendant must issue a third party notice with the leave of the Court. However, he does not require the leave of the Court if the action was begun by writ and he issues the third party notice before serving his defence on the plaintiff.
Two or more matters may also be consolidated if the Court is satisfied that: (a) some common question of law or fact arises in both or all of them; (b) the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; and (c) for some other reason a consolidation of proceedings is desirable.
Are third parties allowed to fund litigation? If so, are there any restrictions on this and can third party funders be made liable for the costs incurred by the other side?
Recent amendments to the Civil Law Act (the “CLA”) in 2017 have prescribed a framework for third-party funding in prescribed dispute resolution proceedings. Third parties are only allowed to fund international arbitration and related court and mediation proceedings.
The CLA and the Civil Law (Third-Party Funding) Regulations 2017 stipulate stringent requirements to be met for third-party funding arrangements. The Legal Profession (Professional Conduct) Rules 2015 have also been amended, imposing disclosure requirements on legal practitioners. Legal practitioners are also prohibited from holding any direct or indirect financial interest in a third-party funder which he has introduced to a client, or with which his client has a third-party funding contract.
A third-party funder may commit to undertake adverse costs liability under its contract with the funded party. Otherwise, it remains to be seen whether third-party funders may be made liable for adverse costs. It is probable that the Courts may exercise the discretion to do so, since third-party funders fund and control proceedings with the ultimate intention of yielding returns on their investments.
What, in your opinion, is the main advantage and the main disadvantage of litigating international commercial disputes?
Singapore’s litigation scene enjoys great benefit from the efficient case management system in place, for the just, expeditious and economical disposal of proceedings. The Integrated Electronic Litigation System (“e-Litigation”) integrates technology in the litigation process, enhancing the efficiency of both the Court officers and staff, as well as of legal practitioners. The practice of holding regular pre-trial conferences also enables the Court to take on a proactive role in monitoring the progress of cases.
However, as is the case with litigation in other jurisdictions, litigation in Singapore can be costly, especially due to its unpredictable nature. Commercial disputes of an international nature often involve complex issues of law and fact-finding, racking up hefty legal fees. The Supreme Court is mindful of the foregoing and has introduced several initiatives to manage litigation costs.
What, in your opinion, is the most likely growth area for disputes for the next five years?
As local companies expand overseas and international companies expand their reach into Asia, cross-border commercial activities involving Asian parties are bound to increase, and Singapore is well-equipped to meet any potential increase in demand for cross-border dispute resolution.
Singapore has already taken steps to expand and improve its alternative dispute resolution services to cater to growing demand. One recent development is the 2 year-long expansion of the Maxwell Chambers premises, which will house over 50 new offices for international dispute resolution institutions, arbitration chambers, law firms and ancillary legal services, as well as hearing rooms and preparations rooms for commercial dispute resolution cases, by 2019.
What, in your opinion, will be the impact of technology on commercial litigation in the next five years?
Following the successful implementation of e-Litigation, the Singapore Courts are driven to further integrate technology in the litigation process in future. Singapore is already taking steps towards a cloud-based electronic discovery platform, to facilitate more efficient trial preparation.
There is also much room for the implementation of technology in the courtroom, which could facilitate advocacy beyond the current practices of the Singapore Courts. Notably, two new Bills (which were read for the Second time in March 2018) are expected to introduce major amendments to the Criminal Procedure Code and the Evidence Act, including the implementation of video-recorded statements for certain vulnerable victims. This allows the Court to take into account the interviewee’s demeanour, in effectively determining the voluntariness of the testimony and the weight that ought to be accorded to it. Such reform certainly paves the way for more intensive use of technology in the courtroom.