Litigation and enforcement in Singapore: overview

A Q&A guide to dispute resolution law in Singapore.

The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals.

To compare answers across multiple jurisdictions visit the Litigation and enforcement Country Q&A tool.

The Q&A is part of the global guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-guide.

Tat Lim, Aequitas Law LLP
Contents

Main dispute resolution methods

1. What are the main dispute resolution methods used in your jurisdiction to resolve large commercial disputes?

The main dispute resolution method in Singapore is litigation. However, there are also other dispute resolutions methods that are used in place of litigation, namely arbitration and mediation (see Question 30).

Singapore's system of civil justice is derived from the common law adversarial model and is broadly adversarial. The applicable standard of proof for a civil claim to succeed is on a balance of probabilities. An active case management system has been established by the Registry of the Courts, allowing the courts to play a greater role in minimising unnecessary delays in proceedings. As part of active case management, pre-trial conferences are fixed for counsels to appraise the court of the latest developments in the case and for the court to then direct and set timelines for the parties in order to keep the case on track.

The Singapore International Commercial Court (SICC) was established on 5 January 2015 to expand the scope for the internationalisation and export of Singapore law. In line with the increased emphasis on alternative dispute resolution of litigated cases and disputes, the Singapore International Mediation Centre (SIMC) and Singapore International Mediation Institute (SIMI) were also established.

 

Court litigation

Limitation periods

2. What limitation periods apply to bringing a claim and what triggers a limitation period?

The limitation periods and triggers for the most common claims are:

  • Contractual claims: six years from the date on which the cause of action accrued (section 6, Limitation Act (Cap. 163) (LA)).

  • Action for negligence, nuisance or breach of duty in respect of personal injuries, whichever is later of (section 24A(2), LA):

    • three years from the date on which the cause of action accrued; or

    • three years from the earliest date on which the claimant has the knowledge required for bringing an action for damages in respect of the relevant injury.

  • Action for negligence, nuisance or breach of duty in respect of latent injuries and damage (section 24A(3), LA):

    • six years from the date on which the cause of action accrued; or

    • if the six year limitation period has expired, three years from the earliest date on which the claimant (or any person in whom the cause of action vested before him) had both the knowledge required to bring an action for damages and a right to bring such an action. The final cut-off date for this claim is 15 years from the date the cause of action accrued.

Where the action is based on the fraud of the defendant, his agent or any person through whom the defendant claims or his agent, the right to bring an action is concealed by the fraud of any of them and the action is for relief from the consequences of a mistake, the limitation period starts on one of the following:

  • The date that the claimant discovered the fraud or mistake.

  • The date that the claimant could have discovered it with reasonable diligence.

The expiry of a limitation period will only provide a viable defence to a claim if the specific provision in the LA has been expressly pleaded as a defence (section 4, LA).

For disputes litigated in Singapore but governed by the laws of another jurisdiction, the law that governs the dispute provides the applicable limitation period (Foreign Limitation Period Act (Cap. 111A)). This is also applicable to arbitral proceedings in Singapore.

Court structure

3. What is the structure of the court where large commercial disputes are usually brought? Are certain types of dispute allocated to particular divisions of this court?

The Singapore Court system consists of two tiers, the State Courts and the Supreme Court (made up of the High Court and the Court of Appeal).

The Supreme Court

The High Court consists of the Chief Justice and the judges of the High Court. The Court of Appeal became Singapore's final court of appeal on 8 April 1994, when appeals to the Judicial Committee of the Privy Council were abolished. It hears appeals of High Court judgments in both civil and criminal matters.

A civil claim (except for probate matters) must be commenced in the High Court as the court of first instance if the value of the claim exceeds SG$250,000. Therefore, large commercial disputes are usually brought before the High Court.

The High Court does not have specific divisions to hear specific types of disputes. However, to deal with the increased complexity of commercial cases, specialised lists of judges dealing with disputes on specific areas of law have been set up within the High Court. Examples of these specialised lists in the High Court include:

  • Building and construction, shipbuilding and complex technical cases.

  • Finance, securities, banking, complex commercial cases.

  • Company, insolvency and trusts.

  • Arbitration.

  • Shipping and insurance.

If the dispute is of an international and commercial nature, it can be heard in the Singapore International Commercial Court (SICC), which is a division of the High Court established pursuant to section 18A of the Supreme Court of Judicature Act (Cap. 322). For a claim to be heard in the SICC, the parties to the action must:

  • Have submitted to the SICC's jurisdiction under a written jurisdiction agreement.

  • Not seek any relief in the form of, or connected with, prerogative orders (such as mandatory orders, prohibiting orders or quashing orders.)

The State Courts

The State Courts comprise of the Magistrates' Court, the District Court and the Family Justice Court. The Magistrates' Court hears disputes in which the value of the claim does not exceed SG$60,000. The District Court hears disputes in which the value of the claim does not exceed SG$250,000.

The Family Justice Courts, comprising of the Family Courts and the Youth Courts, hear a full suite of family-related cases, including all divorce and related matters, family violence cases, adoption and guardianship cases, youth courts cases, applications for deputyship under the Mental Capacity Act, and probate and succession matters.

Rights of audience

4. Which types of lawyers have rights of audience to conduct cases in courts where large commercial disputes are usually brought? What requirements must they meet? Can foreign lawyers conduct cases in these courts?

Rights of audience/requirements

A litigant-in-person can represent himself in court proceedings, including court hearings.

Generally, where a company or limited liability partnership is a party to the proceedings, it must be represented by legal counsel. However, a court can grant leave for an officer of the company or limited liability partnership to act on behalf of the company or limited liability partnership (Order 1 rule 9(3), Rules of Court (Cap. 322, R5) (ROC)). A formal application would have to be made to the Court (Order 1, rule 9(4), ROC) and the court must be satisfied that:

  • The officer has been duly authorised by the company to act on behalf of the company in the proceedings. The officer of the company must be any director or secretary of the company, or a person employed in an executive capacity by the company (Order 1, rule 9(6), ROC).

  • It is appropriate to grant leave in the circumstances of the case. In this regard, the court must take into account the interests of both parties and the proper and efficient administration of justice. The factors that the court can consider are as follows (Bulk Trading SA v. Pevensey Pte Ltd and another [2014] SGHC 236):

    • whether the company is able to afford legal representation;

    • whether the proceedings in court were commenced in good faith;

    • whether the proposed representative is the sole shareholder or is effectively the embodiment of the company;

    • whether the officer will be able to offer assistance in the determination of the factual and legal issues in the case. This would necessarily involve an examination of the issues before the court and whether the officer is sufficiently competent to understand and comply with the obligations attendant to the representation; and

    • whether the company has an arguable case.

Only advocates and solicitors admitted into the Singapore Bar have the exclusive right to appear and plead in the courts of justice in Singapore. The specific requirements for admission are set out in the Legal Profession Act (Cap. 161) (LPA).

Foreign lawyers

Generally, foreign lawyers are not allowed to conduct cases in the courts of justice in Singapore.

However, a foreign lawyer can be granted full registration to appear and plead in proceedings before the Singapore International Commercial Court (SICC) or the Court of Appeal (if there is an appeal from the SICC) (section 36P, LPA). A foreign lawyer can also be granted restricted registrations, solely for the purposes of making submissions on matters of foreign law as permitted by the SICC.

Queen's Counsel can also be admitted on an ad-hoc basis to argue complex disputes in the Singapore courts (section 15, LPA).

 

Fees and funding

5. What legal fee structures can be used? Are fees fixed by law?

Lawyers are entitled to receive reasonable fees for work properly done on behalf of their clients. Fees charged by lawyers are not fixed by law and are usually hourly rated or quoted on a lump sum basis. If a client is dissatisfied with the solicitor's bill, he can apply to court for the bill to be taxed, that is, for the court to assess the fair amount of the bill.

Section 37 of the Legal Profession (Professional Conduct) Rules (Cap. 161, R.1) prohibits solicitors from entering into conditional fee agreements or contingency fee arrangements.

As between litigants, the general rule in Singapore is that the unsuccessful party is usually ordered by the court to pay the successful party's legal costs (party-party costs).

 
6. How is litigation usually funded? Can third parties fund it? Is insurance available for litigation costs?

Funding

Litigation costs are usually funded by the litigants. The courts generally prohibit funding by third parties who have no commercial interest in the dispute. This is based on the common law doctrines of maintenance and champerty, which seek to preclude frivolous litigation.

However, one of the exceptions to this rule is that an assignment of a bare cause of action will not be barred if one of the following applies (Re Vanguard Energy Pte Ltd [2015] SGHC 156 at [43]):

  • The assignment is incidental to a transfer of property.

  • The assignee has a legitimate interest in the outcome of the litigation.

  • There is no realistic possibility that the administration of justice may suffer as a result of the assignment.

Litigation funding can also be permitted in appropriate circumstances in the context of insolvency matters. In Re Vanguard Energy Pte Ltd [2015] SGHC 156, the High Court held that an assignment of a cause of action falling within the statutory power of sale under section 272(2)(c) of the Companies Act (Cap. 50) was immune to the common law doctrine of maintenance and champerty.

Litigation costs can also be state-funded. In civil matters (including but not limited to monetary claims, claim for compensation in injury or medical negligence cases and estate matters), litigants may be financially eligible for legal aid with the Legal Aid Bureau. Legal aid is available to Singapore citizens and permanent residents who are in Singapore and citizens or residents of contracting states in cases concerning applications under the HCCH Convention on the Civil Aspects of International Child Abduction 1980.

Insurance

Insurance can be used to fund litigation. Some examples of types of insurance that can cover the costs of litigation are:

  • Professional liability insurance.

  • Directors' and officers' liability insurance.

 

Court proceedings

Confidentiality

7. Are court proceedings confidential or public? If public, are the proceedings or any information kept confidential in certain circumstances?

Court hearings

Generally, court trials are not confidential as they are conducted in open court. However, in exceptional cases, litigants can apply to have proceedings heard in private (in camera). The court has the power to hear any matter or proceedings in camera if it is satisfied that it is expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason to do so (section 8, Supreme Court of Judicature Act).

The court can also make an order for the name, address, photograph or evidence, relating to the identity of any witness, in any court document intended to be produced before the court, to be removed or sufficiently redacted.

Interim proceedings are usually conducted in chambers instead of an open court. Although they are not open to the public, they are not confidential and can be officially recorded.

Documents

Documents filed in court are public documents. Members of the public can make an application to court to inspect the documents.

To prevent an inspection of a case file by a non-party to the case file, an application to seal the case file or specific court documents can be made to the High Court. The application is heard by a High Court judge, who can impose conditions on any order made.

If the need for confidentiality is a key concern, parties should consider pursuing modes of alternative dispute resolution such as mediation or arbitration (see Question 30).

Pre-action conduct

8. Does the court impose any rules on the parties in relation to pre-action conduct? If yes, are there penalties for failing to comply?

There are no specific rules imposed on the parties in relation to pre-action conduct, save in instances of low value, non-injury, motor accident claims and low-value medical negligence claims in the state courts.

However, parties' conduct prior to and during the proceedings is one of the factors to be considered in determining the appropriate costs order made by the Court (Khng Thian Huat & anor v Riduan bin Yusof & anor [2005] 1 SLR(R) 130 (High Court)).

Main stages

9. What are the main stages of typical court proceedings?

Starting proceedings

There are two methods of commencing civil proceedings in Singapore:

  • Writ of summons: for actions likely to involve substantial disputes of fact.

  • Originating summons: for actions where there is unlikely to be a substantial dispute of fact or where it is prescribed by law. For example, section 124(1) of the Building Maintenance and Strata Management Act prescribes that all applications to the court must be commenced by way of an originating summons.

A claim is commenced when the writ of summons or originating summons is filed at court.

Notice to the defendant and defence

Generally, the writ of summons and originating summons must be served personally on each defendant (Order 10, rules 1(1) and 5, Rules of Court (Cap. 322, R5) (ROC)). If the defendant is within the jurisdiction, the originating process must be served within six months from the date of issue. If the defendant is outside the jurisdiction, service must be effected within 12 months from the date of issue.

If the claim is commenced with a writ of summons the following applies:

  • The claimant must file a memorandum of service within eight days of service of the writ on the defendant (Order 1, rule 1, ROC).

  • When the defendant (respondent) has been served with the writ of summons within the jurisdiction, he must file a memorandum of appearance to the action within eight days after the date of service. If service is effected outside jurisdiction, the time for entry of an appearance is usually fixed at 21 days after the date of service. (Order 12, rule 4, ROC)

  • If the statement of claim was not filed and served with the writ of summons, it must be filed and served 14 days after the defendant enters an appearance (Order 18, rule 1, ROC).

  • The defendant must serve a defence on the claimant within 14 days of the time limited for appearing or after the statement of claim has been served (Order 18, rule 2, ROC).

If the claim is commenced with originating summons the following applies:

  • The defendant does not need to enter an appearance (Order 12, rule 9, ROC).

  • If the defendant intends to adduce evidence with reference to the originating summons served on him, the defendant must do so by affidavit. His affidavit must be filed and served on the claimant with 21 days of being served with the claimant's supporting affidavit(s) (Order 28, rule 3, ROC).

Subsequent stages

The subsequent stages of litigation proceedings in Singapore are as follows:

  • Pre-trial stage. Once the writ of summons or originating summons is filed, the first pre-trial conference (PTC) is scheduled. At the PTC, the registrar enquires about the status of the action commenced. Directions are given for parties to proceed with the litigation in an expeditious and fair manner. Applications for interim or final relief (such as applications for specific discovery, interrogatories and summary judgment) can also be made. In advance of trial and in accordance with the directions ordered at the PTC, each party must disclose all documents relevant to their case (see Question 16). In advance of trial and in accordance with the directions ordered at the PTC, each party must exchange affidavits stating evidence to support their case (affidavits of evidence-in-chief and if necessary, exchange expert reports) (see Question 18).

  • Trial. If the case is not resolved by settlement, terminated summarily or by another form of interim judgment, the action will proceed to trial. At trial, the witnesses for each party can state their evidence in their respective affidavits, which are filed and exchanged before the trial.

  • Post-trial. At the end of court proceedings, the advocate and solicitor for the winning party must submit a bill of costs on behalf of his client or a list of costs ordered by the court to be paid by one party to another. Where a writ is endorsed with a claim for an account or a claim that necessarily involves taking an account, the claimant can (at any time after the defendant has entered an appearance or after the time for appearing expires), apply for an order for an account to be taken (Order 43 rule 1 of the Rules of Court (Cap. 322, R5) (ROC)). Litigation can continue after trial if there is an appeal or if one party seeks enforcement of the judgment.

The litigation procedure in the state courts can vary from this procedure. In particular, for proceedings that involve claims below SG$60,000 in the Magistrate's Court there is a simplified process with upfront disclosure of documents, together with early and robust case management to facilitate the fair, expedient and inexpensive determination of the proceedings (Order 108, ROC). For claims in the District Court, the parties can also opt into the simplified process (Order 108, rule 1(2), ROC).

 

Interim remedies

10. What actions can a party bring for a case to be dismissed before a full trial? On what grounds must such a claim be brought? What is the applicable procedure?

A party can bring a case to be dismissed before a full trial by taking the following actions:

  • If the defendant fails to enter an appearance or having entered appearance, fails to file a defence within the time specified in the writ, the claimant can enter default judgment against him (Orders 13 or 19, Rules of Court (Cap. 322, R5) (ROC)). An application for judgment in default can be made at any time after the time limited for appearing has expired, provided the defendant has not in the meantime entered appearance (Order 12, rule 4, ROC). The claimant must produce either (Order 13, rule 7, ROC):

    • a certificate of non-appearance and an affidavit filed by or on his behalf, proving due service of the writ on the defendant; or

    • a writ endorsed by the defendant's solicitor that he accepts service on behalf of the defendant (Order 13, rule 7, ROC).

An application for judgment in default of pleadings can also be made at any time after the expiration of the period fixed for the service of the defence (Order 19, ROC).

  • If the defendant has entered an appearance and filed a defence but the defendant has no real defence to the claim, the claimant can apply for summary judgment against the defendant. An application for summary judgment must be filed within 28 days after pleadings are deemed to be closed (14 days after the service of the reply or service of the defence to the counterclaim or if neither a reply nor a defence to counterclaim is served, at the end of 14 days after the defence is served) (Order 14, rule 14, ROC).

  • A pleading can be struck out summarily if it:

    • discloses no reasonable cause of action;

    • is scandalous, frivolous or vexatious;

    • tends to prejudice, embarrass or delay the fair trial of the action; and/or

    • is otherwise an abuse of the process of court.

An application under order 18, rule 19 of the ROC can be made at any stage of the proceedings. However, applications made late in the proceedings may affect the amount of costs ordered by the court (Order 18, rule 19, ROC).

 
11. Can a defendant apply for an order for the claimant to provide security for its costs? If yes, on what grounds?

A defendant can apply for an order for the claimant to provide security for costs under Order 23 of the Rules of Court (Cap. 322, R5) (ROC).

To make an application for security for costs, the defendant must meet one of the following grounds:

  • The claimant resides out of the jurisdiction.

  • The claimant is a nominal claimant who is suing for the benefit of some other person and there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so.

  • The claimant's address is not stated in the writ or other originating process or is incorrectly stated within the document, unless the claimant satisfies the court that the failure to state his address or the misstatement thereof was made innocently and without intention to deceive.

  • The claimant has changed his address during the course of proceedings with a view to evading the consequences of litigation.

If there is reason to believe that a claimant corporation will be unable to pay the costs of the defendant if successful in his defence, the court can order the corporation to provide security for the defendant's costs (section 388, Companies Act (Cap. 50)).

In Creative Elegance Sdn Bhd v Puay Kim Seng & Anor [1999] 1 SLR(R) 112, the court prescribed a number of factors that must be considered by the court in the exercise of its discretion in making an order for security for costs. These include:

  • Whether the claimant has a bona fide claim with reasonable prospect of success.

  • The ease of enforcing the order for payment of security for costs, for example, if the claimant has assets within jurisdiction, there may be less reason to grant security to the defendant.

  • Whether the order for security for costs would stifle the claimant's claim.

 
12. What are the rules concerning interim injunctions granted before a full trial?

Availability and grounds

An application for interim injunctions is usually made after proceedings have been issued. It is usually made by summons between the parties and supported by an affidavit. Part II, paragraph 11 of the Supreme Court Practice Directions (2006 Ed.) (Supreme Court PD) provides for registrars to hear urgent applications for interim injunctions or for interim preservation of evidence and assets on Sundays and public holidays.

The Singapore courts have continually affirmed the principles set out in the leading English House of Lords decision of American Cynamid Co. v Ethicon Ltd [1975] AC 396, in considering an application for an interim injunction. To obtain an interim injunction, the court must be persuaded that:

  • There is a serious question to be tried with a real prospect of success.

  • Damages are an inadequate remedy.

  • The balance of convenience lies in favour of granting the injunction (that is, the risk of injustice to the applicant if the injunction were not granted is greater than the risk of injustice to the other party if the injunction were granted) (Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd and others [1994] 3 SLR(R) 114).

Prior notice/same-day

In cases of urgency, the claimant can make a without notice application, even before the issue of proceedings. Pursuant to paragraph 41 of the Supreme Court PD, any party applying without notice for an injunction (including Mareva or freezing injunctions) must give notice of the application to the other concerned parties prior to the hearing. However, this direction does not apply if the giving of the notice would or might defeat the purposes of the ex parte application.

Mandatory injunctions

Mandatory injunctions compel a party to perform a positive act. In Gatekeeper Inc v Wang Wensheng (t/a Hawkeye Technologies) [2011] SGHC 239, the High Court granted an interim mandatory injunction to compel the defendant to deliver software and its accompanying source code. In contrast, a prohibitory injunction restrains a party from doing or continuing to do a wrongful act.

On whether there is a distinction between mandatory injunctions and prohibitory injunctions, the Court of Appeal in Chuan Hong Petrol Station v Shell Singapore (Pte) Ltd [1992] 2 SLR(R) 1, citing Shepherd Homes Ltd v Sandham [1971] Ch 340 at 351, held that the courts generally require a higher degree of assurance before they are willing to grant interim mandatory injunctions as opposed to interim prohibitory injunctions. However, the Court held that this was ''no more than a generalisation, albeit a useful one, of what courts normally do''.

Right to vary or discharge orders and appeals

A party opposing an ex-parte injunction can file an application to discharge the injunction on various grounds, including but not limited to the following:

  • The applicant had no cause of action or the claim had not been sufficient established.

  • Circumstances have changed since the time of the application or may be about to change, such that the injunction is no longer justified.

  • The applicant did not make full and frank disclosure at the time of the application.

  • Where an ex-parte injunction is ordered before service of the originating process, the opposing party may apply to discharge the injunction if the originating process is not issued within two days of the granting of the injunction (Order 29, rule 1(3)(b), Rules of Court (Cap. 322, R5)).

A party can also apply for a variation of the injunction. For example, in Royal Global Exports v Good Stream [2004] 4 SLR(R) 247, the Court ordered a variation of the Mareva injunction to allow the defendant to pay its debts.

Right of appeal

For interim injunction orders made by a High Court registrar under an interlocutory application, there is a right of appeal to a High Court judge in chambers. Interim orders are not appealable to the Court of Appeal (Section 34(1)(c) of the Supreme Court of Judicature Act (Cap. 322)). However, where the interim injunction order made is not made under an interlocutory application, there is a right of appeal to a High Court judge in chambers and a further right of appeal to the Court of Appeal (Maldives Airports Co Ltd and another v GMR Malé International Airport Pte Ltd [2013] SGCA 16).

 
13. What are the rules relating to interim attachment orders to preserve assets pending judgment or a final order (or equivalent)?

To prevent a defendant from dissipating his assets pending judgment or a final order, a party can apply for a Mareva injunction. It can also be used to aid a claimant in the enforcement of a judgment, the enforcement of an arbitral award or the fulfilment of a costs order.

The power to grant a Mareva injunction is found in section 4(8) of the Civil Law Act (Cap. 43) and section 18(2) of the Supreme Court of Judicature Act (Cap. 322).

To obtain a Mareva injunction, the claimant must satisfy the following conditions:

  • Produce good, credible and cogent evidence to show that the judgment debtor is prepared to effect, is in the process of, or has shown a propensity towards facilitating the dissipation of assets out of the jurisdiction.

  • Show that:

    • it has a good arguable case;

    • the defendant has assets in or outside of Singapore; and

    • there is a real risk of the judgment being unsatisfied if the Mareva injunction is not issued.

  • Satisfy the court that there are no assets or insufficient assets within the jurisdiction to satisfy his claim.

Prior notice/same-day

See Question 12, Prior notice/same-day.

Main proceedings

The court has no jurisdiction to grant a Mareva injunction to assist proceedings in a foreign jurisdiction where the claimant has no accrued right of action in Singapore (Karaha Bodas Co LLC v Pertamina Energy Trading Ltd and anor appeal [2005] SGCA 47, affirming the application of Siskina (Cargo Owners) v Distos Cia Naviera SA, The Siskina [1979] AC 210 at 363).

In Swift-Fortune Ltd v Magnifica Marine SA [2006] SCGA 42, the Court of Appeal held that a Singapore court does not have the jurisdiction to issue a Mareva injunction to assist a party in a foreign international arbitration unless it has jurisdiction in some way over it.

Preferential right or lien

A Mareva injunction takes effect against the defendant in personam and is not an attachment of assets. It does not give the applicant proprietary rights in the assets seized and no advantage over other creditors of the defendant (Tribune Investment Trust Inc v Dalzavod Joint Stock Co [1998] 1 SLR 1003 at 1007-1008, HC; The Nagasaki Spirit (No. 1) [1994] 1 SLR 434, HC).

Damages as a result

The claimant may be ordered to provide an undertaking to pay damages that may be caused by the Mareva injunction. The court has discretion in deciding when to enforce such an undertaking.

It was held in Marubeni International Pretroleum (S) Pte Ltd v Projector SA [2004] 4 SLR 233 that whether the undertaking should be enforced depended on the circumstances in which the order was obtained and whether the claimant was successful at trial. If the court determines that the defendant is entitled to damages, it must decide on the quantum.

Security

The claimant is not required to provide security. However, the claimant may be required by the court to give various undertakings before the order for a Mareva injunction is made, in order to prevent such an order from being used oppressively.

These can include the following:

  • An undertaking to pay any damages that may be caused by the Mareva injunction, as required by any order of court.

  • An undertaking not to institute proceedings in other countries without the prior leave of court.

  • An undertaking not to use any information obtained from opposing party in Singapore for the purpose of civil or criminal proceedings in any other jurisdiction.

 
14. Are any other interim remedies commonly available and obtained?

Anton Piller orders are commonly available and obtained in Singapore. This order prevents a defendant from destroying incriminating evidence by permitting certain persons to enter his premises to search for, seize and retain documents or other items. However, as this remedy can have detrimental effects on the business operations of the defendant, the court will not readily grant this remedy unless there is strong evidence showing a serious risk of destruction of evidence.

It was held in Asian Corporate Services (SEA) Pte Ltd v Eastwest Management Ltd (Singapore Branch) [2006] 1 SLR 90 that to warrant the issue of an Anton Piller order, the court must consider whether the following are satisfied:

  • Whether the claimant has shown that he has a strong prima facie case.

  • Whether the damage suffered by the claimant would be serious if the order is not made.

  • Whether there was a real possibility that the defendant would destroy the relevant documents.

  • Whether the effect of the Anton Piller order would be out of proportion to the legitimate object of the order.

 

Final remedies

15. What remedies are available at the full trial stage? Are damages just compensatory or can they also be punitive?

There is an array of remedies that are available at full trial stage such as damages, specific performance, declarations and injunctions.

Damages are usually awarded on a compensatory basis. However, in exceptional situations, the court can award damages on a restitutionary basis.

Generally, punitive damages are not awarded. However, there are notable statutory exceptions.

Under section 119(4) of the Copyright Act (Cap. 63), the court can award ''additional damages'' in connection with compensatory damages for loss suffered by the proprietor of the copyright. In Lotus Development Corporation v Ong Seow Pheng [1997] 1 SLR 484, Prakash J stated that ''the aim of [additional] damages is punishment and deterrence''. Similarly, under section 31(5) and (6) of the Trade Marks Act (Cap. 322), the court can order ''statutory damages'' after having regard to the flagrancy of the infringement of the registered trade mark, the need to deter other similar instances of infringement and other relevant matters.

The position in Singapore on punitive damages in contract is an open one. In the Singapore High Court decision of CHS CPO GmbH (in bankruptcy) and another v Vikas Goel and others [2005] 3 SLR(R) 202, the court considered that there was an issue as to whether punitive damages can be awarded for cynical breaches of contract. However, no conclusion was made as the issue fell outside the nature of the decision.

In cases involving defamation, the court, in determining the amount of general damages to be awarded, takes into consideration the intended deterrent effect (Lim Eng Hock Peter v Lin Jian Wei and another and another appeal [2010] SGCA 26).

The civil standard of proof of losses is on the balance of probabilities. However, where both criminal and civil issues are involved, the standard of proof may be raised (Yogambikai Nagarajah v Indian Overseas Bank [1996] 2 SLR(R) 774).

 

Evidence

Disclosure

16. What documents must the parties disclose to the other parties and/or the court? Are there any detailed rules governing this procedure?

A party is under a general and continuous duty to disclose the documents to the other parties and/or the court that are or have been in their possession, custody or power and are considered to be relevant (by reference to the issues pleaded in the case). These consist of the following:

  • Documents on which the party relies or will rely.

  • Documents which could:

    • adversely affect his own case;

    • adversely affect another party's case; or

    • support another party's case.

The meaning of ''documents'' is not restricted to paper writings but extends to anything upon which evidence or information is recorded in a manner intelligible to the senses or capable of being made intelligible by the use of equipment (section 3, Evidence Act (Cap. 97)).

General disclosure

Order 24, rule 1 of the Rules of Court (Cap. 322, R5) (ROC) governs the procedure for the general disclosure of documents. Parties must file and serve a list of documents, which lists the documents in a convenient order, describing each of them sufficiently to enable it to be identified. An affidavit verifying the list of documents must also be enclosed. The disclosure list and affidavit must be filed and served by the date ordered in the pre-trial conference (see Question 9, Subsequent stages).

Specific disclosure

A party can apply for the specific disclosure of any document(s) or class of documents (Order 24, rule 5 ROC). This application is made by summons and supported by an affidavit, stating the applicant's belief that the party from whom the discovery is sought has or had possession, custody or power of the documents sought.

Penalties for non-compliance

In the cases of non-compliance, the court can make such order as it thinks just, including and in particular (Order 24 rule 16(1), ROC):

  • An order that the action be dismissed.

  • An order that the defence be struck out and judgment be entered accordingly

The courts have exercised this power in Alliance Management SA v Pendleton Lane P [2008] 4 SLR(R) 1 and K Solutions Pte Ltd v National University of Singapore [2009] 4 SLR(R) 254. Further, if the party or person against whom an order for discovery is made fails to comply with it, he may be liable to committal (Order 24 rule 16(2), ROC).

Electronic disclosure

In 2009, Practice Direction No. 3 of 2009 introduced Part IVA of the Practice Directions, titled ''Discovery and Inspection of Electronically Stored Documents''. This was amended with effect from 1 March 2012 by the Practice Directions Amendment No. 1 of 2012.

This essentially introduced a framework for parties who wish to request and apply for discovery and inspection of electronically stored documents. The traditional tests of relevancy and necessity in discovery are still applicable. The high costs of electronic disclosure will not present a sufficient objection, as long as the expenses incurred can be justified by the relevance and materiality of the discoverable documents.

Parties are encouraged to collaborate in good faith and agree on issues relating to the discovery and inspection of electronically stored documents within two weeks of the close of pleadings. If parties agree, they can (immediately after the close of pleadings, but within the time prescribed) agree on an electronic disclosure protocol, which can be included in the summons for directions. The court must consider the adequacy of the protocol and can make such an order or give such direction as it thinks fit, for the just, expeditious and economical disposal of the cause or matter.

However, if parties are unable to agree on an electronic discovery protocol, the party seeking discovery of electronically stored documents can apply for a court order. The application must include a draft electronic discovery protocol and must be supported by an affidavit providing an account of the parties' attempts to collaborate in good faith to reach agreement on an electronic discovery protocol.

Privileged documents

17. Are any documents privileged? If privilege is not recognised, are there any other rules allowing a party not to disclose a document?

Privileged documents

Some classes of documents are privileged from inspection. These are:

  • Documents protected by legal professional privilege, that is, confidential communications between a lawyer and his client made in the course of and for the purpose of his professional engagement. This includes communications with in-house counsel (local and foreign), provided that the communications were made to them in the course and for the purpose of their employment as legal counsel. However, the mere submission of a document to an in-house counsel should not easily attract a claim to legal professional privilege (Boey Chun Hian v Singapore Sports Council [2013] SGHCR 15).

  • Documents protected by litigation privilege, that is, communications between a lawyer and his client that come into existence after litigation is contemplated or commenced and made with a view to the litigation.

  • Documents tending to incriminate or expose to a penalty the party who would produce them.

  • Documents privileged on the ground of public policy.

  • Without prejudice correspondence (save in exceptional situations identified in Unilever plc v Procter & Camble Co [2001] All ER 783, cited in Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd [2007] 2 SLR 433)

  • Statements that incriminate the maker.

  • Statements to the police.

  • Title deeds.

  • Marital communications.

  • Documents in respect of which another person having possession could have asserted the privilege.

  • Evidence relating to affairs of state and communications made in official confidence (Order 24, rule 15 of the Rules of Court (Cap. 322, R5) (ROC))

No question of privilege can arise once the document has already been disclosed.

Where a document is privileged, the list of documents (see Question 16) must specify the class of documents and state the ground of privilege claimed. This is so the court is aware of the type of privilege claimed and the class of documents subject to privilege.

Other non-disclosure situations

There are no rules in the ROC exempting non-privileged confidential documents from disclosure. The fact that a document contains relevant confidential information does not bar another party from viewing the document, although ''the court should order a controlled measure of discovery … upon terms ensuring that there should be neither use nor further disclosure of the confidential information to the prejudice of the party concerned'' (Singapore Civil Procedure 2007, paragraphs 24/3/37–38, cited in Robin Duane Littau v Astrata (Asia Pacific) Pte Ltd [2011] SGHC 61).

In KLW Holdings Ltd v Singapore Press Holdings Ltd [2002] 2 SLR(R) 477, the High Court held that confidentiality considerations can have more significance in pre-action discovery applications. The Court is prima facie entitled to lean in favour of confidentiality and must be observed unless the greater interests of justice demand otherwise, with the burden of proof imposed on the applicant.

Examination of witnesses

18. Do witnesses of fact give oral evidence or do they just submit written evidence? Is there a right to cross-examine witnesses of fact?

Oral evidence

Parties must file and exchange the affidavits of evidence-in-chief (AEIC) of their witnesses in advance of trial. Therefore, it is generally not necessary for witnesses to give their evidence-in-chief orally during the trial. This is designed to achieve fair and expeditious disposal of proceedings and to save costs.

However, the trial judge has the discretion to allow a witness to give evidence orally, provided that the oral evidence is restricted to an amplification of the affidavit evidence and will not take the other party by surprise (Lee Kuan Yew & anor v. Vinocur & ors and another action [1995] 3 SLR(R) 38).

Right to cross-examine

Generally, the right to cross-examine the witnesses of the opposing party on their affidavits of evidence in chief arises at trial. If a witness does not attend trial for cross-examination, his affidavit will not be received in evidence without leave of court.

However, where a party has taken out an application for summary judgment against a defendant (which is a body corporate), the court may order that the director, manager, secretary or other similar officer of the defendant attend at the hearing of the application to be examined on oath (Order 14, rule 4, Rules of Court (Cap. 322, R5)).

Third party experts

19. What are the rules in relation to third party experts?

Appointment procedure

Parties can appoint experts to give evidence for the purpose of court proceedings, subject to the power of the court to limit the number of expert witnesses called. The court has the discretion to nominate or appoint its own court expert (Oder 40, rule 1 and Order 32, rule 12, Rules of Court (Cap. 322, R5) (ROC)).

Expert evidence must be provided in a written report signed by the expert and exhibited in an affidavit (sworn to or affirmed by him) testifying that the report exhibited is his and that he accepts full responsibility for the report. The expert report(s) must be filed in accordance with the directions ordered by the court at the pre-trial conference (see Question 9, Subsequent stages).

Role of experts

The opinion of an expert on a point of scientific, technical or specialised knowledge is considered to be relevant facts (section 47(1), Evidence Act (Cap. 97) (EA)). An expert is defined as a person with scientific, technical or other specialised knowledge based on training, study or experience (section 47(2), EA). Experts do not need to be qualified professionally but the court must be satisfied that they have sufficient knowledge or expertise to qualify as an expert.

The expert's duty is owed primarily to the court in assisting the court on matters within his or her expertise and this duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

Right of reply

An expert can be cross-examined at trial. Alternatively, a party can with the leave of court put to an expert instructed by the opposing party written questions about his report for the purpose of clarification (Order 40A, rule 4, ROC). The application for leave must be made within 14 days of service of the expert's affidavit exhibiting his report. This allows the expert to research and review relevant material and give cogent written answers.

The expert can also be ordered to provide a ''further and better'' answer (Order 40A, rule 5, ROC).

Fees

Parties must bear the fees of the experts they appoint.

However, for experts appointed by the court, the fees are fixed by the court (including fees for the report, and a sum for each day during which he is required to be present either in court or before an examiner). Parties are jointly and severally liable to pay the amount fixed by the court for his remuneration (Order 40 rule 5, ROC).

 

Appeals

20. What are the rules concerning appeals of first instance judgments in large commercial disputes?

Which courts

Appeals from the Singapore International Commercial Court (SICC) will be heard by the Court of Appeal. The Chief Justice has the discretion to appoint an International Judge to sit in the Court of Appeal against a judgment or order of the SICC.

Grounds for appeal

No appeal can be brought to the Court of Appeal in the following cases (section 34(1), Supreme Court of Judicature Act (Cap. 322) (SCJA)):

  • A judge makes an order giving unconditional leave to defend an action or an order setting aside unconditionally a default judgment.

  • A judge makes an order giving leave to defend on condition that the defendant pays into court or gives security for the sum claimed or an order setting aside a default judgment on condition (except if the appellant is the defendant).

  • A judge makes an interlocutory order in chambers unless the judge has certified, on application within seven days after the making of the order by any party for further argument in court, that he requires no further argument.

  • The judgment or order is made by the consent of the parties.

  • The judgment or order of the High Court is expressly declared to be final, by any written law currently in force.

An appeal can be brought to the Court of Appeal only with the leave of the Court of Appeal or a judge in the following cases (section 34(2), SCJA):

  • If the amount in dispute or the value of the subject-matter (excluding interest and costs) does not exceed SG$250,000.

  • If the only issue in the appeal relates to costs or fees for hearing dates.

  • If a judge in chambers makes a decision in a summary way on an inter-pleader summons where the facts are not in dispute.

  • If an order refusing to strike out an action or a pleading or part of a pleading is made.

  • If the High Court makes an order in the exercise of its appellate jurisdiction with respect to any proceedings under the Adoption of Children Act (Cap. 4) or under Part VII, VIII or IX of the Women's Charter (Cap. 353).

Time limit

The time limit for appeal is one month from the date of the judgment (Order 57, rule 4, ROC).

Procedure for appeal

The party appealing the judgment must file and serve a notice of appeal to the Court of Appeal. At the time of filing the notice of appeal, the appellant must provide security for the respondent's costs of the appeal in the sum of SG$10,000. Where leave to appeal is required, it must be obtained before service of the notice of appeal.

When the notice of appeal has been filed, the judge who gave the judgment or made the order must certify in writing the grounds of the judgment or order. If no certified grounds are given within a period of six months from the date of the notice of appeal, the appellant must proceed with the appeal and apply in writing to the registrar for a copy of the record of proceedings.

An appeal is usually fixed to be heard by the Court of Appeal within 14 weeks from the date of collection of the record of proceedings. All parties to an appeal are required to file their respective cases (a brief account of the arguments to be raised at the appeal). All appeals are heard in open court.

The Court of Appeal has all the powers and duties as to amendment and otherwise of the High Court (Order 57 rule 13(1) , ROC).

Further evidence can only be admitted on special grounds and not without the leave of the Court of Appeal (section 37(4), SCJA). If the additional evidence does not raise any new issues or the new matter should have been raised at trial and ample opportunity had been given to the appellant to raise such issues, then the Court of Appeal is unlikely to allow the application to adduce fresh evidence. The court is likely to allow new evidence that introduces matters arising after the date of the decision from which the appeal is brought.

 

Class actions

21. Are there any mechanisms available for collective redress or class actions?

Representative group litigation is governed by Order 15, rule 12 of the Rules of Court (Cap. 322, R5) (ROC).

The court has the discretion to order representative proceedings where there are numerous persons with the same interest in any proceedings. This was the case in Tan Chin Seng & ors v Raffles Town Club Pte Ltd [2002] SGHC 278 (High Court), which involved a representative action by ten claimants for themselves and on behalf of 4,885 other persons.

Representative actions can also be initiated by the parties, without the approval of the court. The court, however, has the discretion to terminate the action.

Legislation can also provide for representative proceedings in specific instances. For example, section 85 of the Building Maintenance and Strata Management Act (Cap. 30C) enables a managing corporation to bring proceedings on behalf of the subsidiary proprietors of a building or to defend an action on their behalf.

Order 15 rule 12 of the ROC does not specify case management procedures for representative proceedings. It does not provide special rules relating to the payment of solicitors' fees in representative proceedings or rules on how members of the class action should be adequately informed.

 

Costs

22. Does the unsuccessful party have to pay the successful party's costs and how does the court usually calculate any costs award? What factors does the court consider when awarding costs?

The general rule is that the unsuccessful party in an application or proceedings must pay the reasonable costs (legal costs and court fees) of the successful party. However, the order for costs is entirely at the court's discretion whether in principle or amount.

The court, in exercising its discretion as to costs, can take into account all circumstances of the case, such as the:

  • Complexity of the issues involved, length of proceedings and number of witnesses.

  • Conduct of all parties, including conduct before and during the proceedings.

  • Parties' conduct in relation to any attempt at resolving the matter by mediation or any other means of dispute resolution and the extent to which the parties have followed any relevant pre-action protocol or practice directions.

  • Adverse cost consequences can be imposed where an offer to settle, which has not been withdrawn or has not expired before the disposal of the claim in respect of which the offer to settle is made, is not accepted. For example:

    • where an offer to settle made by a claimant is not accepted by the defendant and the claimant obtains a judgment not less favourable than the terms of the offer to settle, the claimant is entitled to costs on the standard basis to the date the offer was served and costs on the indemnity basis from that date, unless the court directs otherwise (Order 22A, rule 9(1) of the Rules of Court (Cap. 322, R5) (ROC));

    • where an offer to settle made by a defendant is not accepted by the claimant and the claimant obtains judgment not more favourable than the terms of the offer to settle, the claimant is entitled to costs on a standard basis to the date the offer was served and the defendant is entitled to costs on an indemnity basis from that date, unless the court directs otherwise (Order 22A, rule 9(3), ROC);

    • the court may also take into account any offer to settle, the date the offer was made, the terms of the offer and the extent to which the judgment is more favourable or less favourable than the terms of the offer to settle (Order 22A, rule 12, ROC).

Where parties have entered into an agreement containing an indemnity costs clause and are invoking the court's statutory discretion to award costs, the court can disregard the contractual agreement if it would be manifestly unjust to uphold it. However, it remains open as to whether a similar discretion exists when the court is asked to directly enforce a contractual agreement on costs between two commercial parties (Telemedia Pacific Group Ltd v Credit Agricole (Suisse) SA (Yeh Mao-Yuan, third party) [2015] SGHC 170).

The Court has implemented the following steps to manage, limit or otherwise control legal costs during the proceedings:

  • In the case of a trial in open court for writ actions and originating summonses ordered to be continued as if the cause or matter had begun by writ, originating summonses involving cross-examination of any deponent and civil appeals before the Court of Appeal, each party is required to file a costs schedule which sets out the quantum of party-and-party costs and disbursements that the party intends to claim in the event he succeeds in the action. The costs schedule will then be taken into account for the purposes of assessing the quantum of costs to be awarded for the proceedings (Paragraph 99A of the Supreme Court PD). This lays the foundation for implementing costs budgeting and ensuring proportionality in the legal costs incurred.

  • Further, and as part of the move to control and manage costs during litigation, the Supreme Court introduced Costs Guidelines in a new Appendix G of the Supreme Court PD, which serves as a general guide for party-and-party costs awards in the Supreme Court.

 
23. Is interest awarded on costs? If yes, how is it calculated?

Costs generally carry interest of 5.33% per annum (Order 59, rule 37(1), Rules of Court (Cap. 322, R5) (ROC))

However, interest is not awarded on costs stipulated under Part III of Appendix 2 of the Rules of Court (Cap. 322, R5) (Order 59, rule 37(2), ROC). Under Part III of Appendix 2 of the ROC, situations where interests are not awarded on costs include the following:-

  • If a claimant or defendant signs a judgment for costs.

  • If on application of any person who has obtained a judgment or order against a debtor for the recovery or payment of money, and a garnishee order is made against a garnishee attaching debts due or accruing due from him to the debtor.

  • If leave is given to enforce a judgment or order for the recovery of possession of land by writ of possession.

  • If a writ of execution is issued against any party.

 

Enforcement of a local judgment

24. What are the procedures to enforce a local judgment in the local courts?

The procedures to enforce a local judgment in Singapore are:

  • Writs of execution. These include writs of seizure and sale of movable and immovable property, writs of delivery and writs of distress. These writs authorise the bailiffs of the Supreme Court to enforce the unsatisfied judgment. Before executing a writ of seizure and sale, the judgment creditor can apply (by summons) for the judgment debtor to be examined on oath in order to determine what assets are available for use to satisfy the judgment debt.

  • Garnishee proceedings. There must be a debt due or accruing to the judgment debtor by a third party garnishee. When the judgment creditor garnishes the debt, the garnishee must pay the money to him instead of the judgment debtor.

  • Appointment of a receiver. The receiver will receive funds that are due to the judgment debtor and will hold these funds for the benefit of the judgment creditor.

  • Committal proceedings. Where the judgment or order is to do or abstain from doing an act, the judgment can be enforced by an order of committal, with the leave of court.

 

Cross-border litigation

25. Do local courts respect the choice of governing law in a contract? If yes, are there any areas of law in your jurisdiction that apply to the contract despite the choice of law?

When parties have made an express choice of governing law in a contract, the local court will generally respect their choice, unless one of the following limits to party autonomy applies (Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277 (PC, Nova Scotia) at 289 to 290, cited with approval by the Court of Appeal in Peh Teck Quee v Bayerische Landesbank Girozentrale [1999] 3 SLR(R) 842):

  • If a non-national law is chosen.

  • If it is not bona fide, legal and contrary to public policy.

If the parties have not made any express selection, the court can infer a choice from the contract and the surrounding circumstances at the time of the making of the contract. If the court cannot find any choice by the parties, then the proper law is the law of the country or the system of law with the closest and most real connection with the transaction and the parties (the objective proper law).

Mandatory rules (for example, the Unfair Contract Terms Act (Cap. 396) (UCTA)) can also override the choice of law. UCTA will continue to have effect despite the parties' choice of governing law if (section 27(2), UCTA):

  • One of the parties to the contract was dealing as a consumer and was then habitually resident in Singapore.

  • The essential steps necessary for the making of the contract were taken in Singapore, whether by that party or by others on his behalf.

 
26. Do local courts respect the choice of jurisdiction in a contract? Do local courts claim jurisdiction over a dispute in some circumstances, despite the choice of jurisdiction?

The Singapore courts generally respect the parties' choice of jurisdiction in a contract in the form of an exclusive jurisdiction clause. The courts can give effect to the parties' choice of jurisdiction by:

  • Ordering an anti-suit injunction to prevent a party from commencing or continuing legal proceedings in a foreign country. However, this measure is recognised as rather extreme as it amounts to an indirect interference with foreign legal proceedings. Therefore, the Singapore courts apply great caution in exercising their discretion to grant such an injunction (John Reginald Stott Kirkham v Trane US Inc [2009] 4 SLR 428).

  • Ordering the Singapore proceedings to be stayed in favour of the foreign proceedings.

The party seeking to bring an action in breach of an exclusive jurisdiction clause must show exceptional circumstances amounting to ''strong cause'' as to why the court should exercise its discretion in its favour (The Jian He [1999] 3 SLR(R) 432).

The following factors that a court will take into account are laid out in Amerco Timbers Pte Ltd v Chatsworth Timber Corp Pte Ltd [1977-1978] SLR(R) 112 and were affirmed by the Court of Appeal in The ''Rainbow Joy'' [2005] 3 SLR(R) 719:

  • In what country the evidence on the issues of fact is situated or more readily available and the effect of that on the relative convenience and expense of trial as between the Singapore and foreign courts.

  • Whether the law of the foreign court applies and, if so, whether it differs from Singapore law in any material respects.

  • What country either party is connected to and, if so, how closely.

  • Whether the defendants genuinely desire a trial in the foreign country, or are only seeking procedural advantages.

  • Whether the claimants would be prejudiced by having to sue in the foreign court because they would:

    • be deprived of security for their claim;

    • be unable to enforce any judgment obtained;

    • be faced with a time-bar not applicable in Singapore; or

    • for political, racial, religious or other reasons be unlikely to get a fair trial.

 
27. If a foreign party obtains permission from its local courts to serve proceedings on a party in your jurisdiction, what is the procedure to effect service in your jurisdiction? Is your jurisdiction party to any international agreements affecting this process?

Singapore is not a party to the HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965.

However, there are procedures in place to effect service of foreign process in Singapore, depending on which category the particular case falls into.

Service pursuant to a letter of request

The procedure for service pursuant to a letter of request from a court or tribunal of a foreign country is as follows (Order 65, rule 2, Rules of Court (Cap. 322, R5) (ROC)):

  • The letter of request is sent to the Minister of Foreign Affairs who will then, at his discretion, forward it to the Supreme Court. The letter request and foreign process must be translated into English.

  • The service of foreign process is effected by personal service or where it is a corporate body registered under the Companies Act (Cap 50), at its registered office. Service is to be effected by a process server of the court.

  • The court has the power to order substituted service of the foreign process.

  • The process server must file a copy of the process and an affidavit specifying details of the successful or attempted service.

  • The registrar must issue a certificate in a prescribed form, sealed by the Supreme Court, for use out of jurisdiction by the foreign court or tribunal that issued the letter of request.

Service from a foreign convention country

The procedure for service pursuant to a letter of request from a court or tribunal of a foreign convention country is as follows (Order 65, rule 3, ROC):

  • The letter of request issued by the consular or other authority is sent directly to the registrar of the Supreme Court. Only the foreign process must be accompanied by a translation in English, where applicable.

  • The service of foreign process is to be effected according to the bilateral agreement or multilateral convention entered into between Singapore and the foreign country regarding civil procedure.

  • The court does not have the power to order substituted service of the foreign process.

  • The process server must file a copy of the affidavit affecting service but does not need to file a copy of the foreign process.

  • The registrar must issue a certificate, sealed by the Supreme Court, certifying that service of process was effected and the cost of effecting service, for use out of jurisdiction by the foreign court or tribunal.

The civil procedure conventions that Singapore is party to are as follows (Appendix C, ROC):

  • Convention between the United Kingdom and Austria regarding legal proceedings in civil and commercial matters (Gazette No. T2 / 1999).

  • Convention between the United Kingdom and Italy regarding legal proceedings in civil and commercial matters (Gazette No. T3 / 1999).

  • Convention between the United Kingdom and Germany regarding legal proceedings in civil and commercial matters (Gazette No. T4 / 1999).

  • Treaty on Judicial Assistance in civil and commercial matters between the Republic of Singapore and the People's Republic of China (Gazette No. T2 / 2001).

Service from a non-convention country

In the absence of a letter of request, service from a foreign non-convention country must be effected by a method authorised by the law of Singapore for service of any originating process issued in Singapore (Order 65, rule 2A, ROC).

 
28. What is the procedure to take evidence from a witness in your jurisdiction for use in proceedings in another jurisdiction? Is your jurisdiction party to an international convention on this issue?

Singapore is a party to the HCCH Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970 (Hague Evidence Convention). The Evidence (Civil Proceedings in Other Jurisdictions) Act (Cap. 98) (ECPOJA) was passed in Singapore to give effect to the Hague Evidence Convention. The Supreme Court of Singapore is designated to receive letters of request for the taking of evidence.

The application for an order for evidence to be taken from a witness in Singapore for use of proceedings in another jurisdiction must be made on behalf of the court or tribunal in that jurisdiction and must be supported by affidavit, following a letter of request, certificate or other document issued by or on behalf of the court or tribunal.

The Singapore court can make an order for the (section 4(s), ECPOJA):

  • Examination of witnesses (orally or in writing).

  • Production of documents.

  • Inspection, photographing, preservation, custody or detention of any property.

  • Taking of samples of any property and person.

  • Taking and testing of samples of blood from any person.

The witness statement is sent to the registrar and the registrar will send the deposition, together with a certificate sealed with the seal of the Supreme Court of Singapore, to the foreign court or tribunal.

Enforcement of a foreign judgment

29. What are the procedures to enforce a foreign judgment in the local courts?

Foreign judgments can be enforced in Singapore under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap. 264) (RECJA), the Reciprocal Enforcement of Foreign Judgments Act (Cap. 265) (REFJA) or under common law (if neither the RECJA nor REFJA apply).

Foreign judgments under the RECJA and REFJA

The RECJA applies to foreign judgments obtained from the following countries:

  • United Kingdom of Great Britain and Northern Ireland.

  • Australia.

  • Sri Lanka.

  • New Zealand.

  • Malaysia.

  • Windward Islands.

  • Pakistan.

  • Brunei Darussalam.

  • Papua New Guinea.

  • India (except the State of Jammu and Kashmir).

The REFJA applies to foreign judgments obtained in Hong Kong only.

Under the RECJA and the REFJA, the foreign judgment must be registered before it can be enforced in Singapore. The foreign judgment can only be registered if it is final and conclusive between the parties and it is a judgment for a sum of money (but not a sum payable in respect of taxes, other similar charges, a fine or another penalty.)

A foreign judgment under the RECJA must be registered within 12 months of the date of the judgment. A foreign judgment under the REFJA must be registered within six years from the date of the judgment.

Foreign judgments under common law

The foreign judgment creditor can bring a claim to enforce his judgment under common law if the judgment is (Poh Soon Kiat v Desert Place Inc [2010] 1 SLR 1129 at [14]):

  • In personam, final, conclusive and rendered by a court of competent judgment.

  • For a definite sum of money.

Proceedings must be commenced by writ in which the foreign judgment is pleaded as the basis for the claim. Once the writ is served on the defendant, an application is usually made for summary judgment pursuant to Order 14 of the Rules of Court (Cap. 322, R5).

Defences

An action to enforce a foreign judgment under the RECJA, the REFJA or common law cannot be effected if (Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 1 SLR(R) 515):

  • Its recognition or enforcement (as the case may be) would:

    • be contrary to the fundamental public policy of the forum; or

    • conflict with an earlier judgment from the forum or an earlier foreign judgment recognised under the private international law of the forum.

  • The foreign judgment has been obtained by fraud or in breach of principles of natural justice, or if it would amount to the direct or indirect enforcement of foreign penal, revenue or other public laws.

 

Alternative dispute resolution

30. What are the main alternative dispute resolution (ADR) methods used in your jurisdiction to settle large commercial disputes? Is ADR used more in certain industries? What proportion of large commercial disputes is settled through ADR?

The main forms of ADR in Singapore are:

  • Mediation.

  • Arbitration.

  • Neutral evaluation.

Arbitration is an alternative to court litigation. It provides procedural flexibility, confidentiality and parties' can select the arbitrator(s) who will give a final and binding decision. Arbitration has become the preferred and most widely used mechanism for resolving international commercial disputes.

The ascending status of mediation on the dispute resolution scene is noteworthy because of the advantages offered over litigation and arbitration. Mediation allows parties to take control of the outcome and come to an agreed solution, whereas arbitration results in a decision by the arbitrator himself without the agreement of the parties.

Neutral evaluation is an adjudicatory process by which parties can obtain a reasoned opinion on the facts, evidence and legal merits of specific issues of the case from a qualified and independent third party. Parties can opt to have a binding opinion, a documents-only evaluation or an evaluation with a hearing, though the default position is that it is non-binding. If the parties opt to have a binding opinion, this process provides a cost-effective and efficient determination of the matter. If the parties opt for an evaluation, the process allows the parties to have a better understanding of the strengths and weaknesses of their case. Parties can use the evaluation to settle their case or as a starting point to negotiate a settlement. In 2011, the State Courts commenced a pilot project to introduce neutral evaluation as an additional ADR option (other than mediation and arbitration) for general civil cases (excluding non-injury motor accident cases with claim exceeding SG$3,000 and personal injury matters).

ADR has proven to be extremely effective in resolving litigated cases. Since 2012, the State Courts Centre for Dispute Resolution (previously known as Primary Dispute Resolution Centre) has handled more than 6,000 cases annually (including accident and personal injury claims) through neutral evaluation and mediation, with more than 85% of these cases resolved through ADR. In the Singapore Mediation Centre (SMC), 75% of over 2,300 matters, which were mediated at SMC were settled. SMC's statistics show that of cases that were settled, more than 90% are concluded within one working day.

 
31. Does ADR form part of court procedures or does it only apply if the parties agree? Can courts compel the use of ADR?

ADR does not form part of court procedure in the High Court and cannot be compelled by the High Court. However, the High Court, in exercising its discretion as to costs, can take into account a party's refusal to attempt ADR without sufficient reason (Order 59,, rule 5(c), Rules of Court (Cap. 322, R5)). This may result in adverse costs orders against the party withholding consent to ADR processes.

A party can file and serve an ADR offer on all relevant parties, at any time of the proceedings, which remains valid for a period of 14 days after service (paragraph 35C, Supreme Court PD (Amendment No. 6 of 2013)). The relevant parties must file and serve a response to the ADR offer within the 14-day period, failing which they will be deemed to be unwilling to attempt ADR without providing any reasons. If all the parties are willing to attempt ADR, the court must adjourn the pending court proceedings and give directions for the completion of the ADR process.

For cases commenced in the Magistrate's Court, the court has the power to direct parties use an alternative dispute resolution procedure such as mediation, arbitration or neutral evaluation, where appropriate.

 
32. How is evidence given in ADR? Can documents produced or admissions made during (or for the purposes of) the ADR later be protected from disclosure by privilege? Is ADR confidential?

Evidence

The rules regarding evidence during ADR proceedings are dependent on the tribunal conducting the proceedings and what has been agreed between the parties.

Confidentiality

ADR proceedings are usually confidential. For example, arbitration proceedings and hearings are private as only the arbitrators, the parties and their lawyers are permitted to attend. Similarly, mediation and neutral evaluation are usually private and confidential.

Legal privilege

Under the rules of the tribunal conducting the arbitration proceedings, there will usually be an implied or express obligation on a party obtaining documents not to disclose them or use them for any other purpose other than the arbitration proceedings in which they were obtained.

However, the Singapore courts have held that disclosure can occur with the consent of the other party or by order or leave of court, where it is reasonably necessary or where it is in the interests of justice (Myanma Yaung Chi Oo Co Ltd v Win Win Nu and another [2003] 2 SLR(R) 547). Discussions or documents produced during mediation and neutral evaluation are protected by 'without prejudice privilege, which is protection conferred at common law on statements made on a without prejudice basis during negotiations towards settlement of a dispute.

 
33. How are costs dealt with in ADR?

The rules regarding costs during ADR proceedings are dependent on the tribunal conducting the ADR proceedings and/or what has been agreed by the parties.

 
34. What are the main bodies that offer ADR services in your jurisdiction?

The main bodies that offer ADR services in Singapore are:

  • State Courts Dispute Resolution Centre.

  • Community Mediation Centre (OneMinLaw@mlaw.gov.sg)

  • The Singapore International Mediation Centre (secretariat@simc.com.sg)

  • The Singapore Mediation Centre (www.mediation.com.sg/contact-us/).

  • The Singapore International Arbitration Centre (corpcomms@siac.org.sg).

 

Proposals for reform

35. Are there any proposals for dispute resolution reform? If yes, when are they likely to come into force?

The recent amendment to the Supreme Court Practice Directions sets out the Costs Guidelines, a new Appendix G, for solicitors making submissions on party-and-party costs or preparing their costs schedules. The Costs Guidelines serve as a general guide for party-and-party costs awards in the Supreme Court, taking into account past awards made, internal practices and general feedback. While this is likely to bring greater clarification, the precise amount of costs awarded remains at the discretion of the judicial officer making the award and depends on the particular circumstances of each case. This amendment came into force on 1 June 2015.

At the Opening of the Legal Year 2015, the Chief Justice commissioned a Civil Justice Commission chaired by Justice Tay Yong Kwang. The Commission is expected to present recommendations to reform and/or consider transformative changes to the litigation process aimed at reducing the costs of litigation, enhancing efficiency and effecting modernisation.

 

Online resources

Singapore statutes online

W www.statutes.agc.gov.sg

Description. This website provides the current legislation in Singapore and maintained by the Attorney-General's Chambers.


 

Contributor profiles

Tat Lim, Partner

Aequitas Law LLP

T +65 6535 0331
F +65 6535 0131
E lim.tat@aequitasllp.com
W www.aequitasllp.com

Professional qualifications. Advocate and Solicitor, Singapore; Solicitor, England & Wales; Fellow, Chartered Institute of Arbitrators (UK); Accredited Mediator, Centre for Dispute Resolution (CEDR, UK); Accredited Mediator, National Mediator Accreditation System (NMAS, Australia); Accredited Mediator, Hong Kong Mediation Accreditation association Ltd (HKMAAL); Accredited Mediator, Regent's University London (School of Psychotherapy & Psychology)

Areas of practice. Civil and commercial litigation; collaborative family practice; international arbitration; mediation and alternative dispute resolution.

Professional associations/memberships. Panel of Principal Mediators, Singapore Mediation Centre; Panel of Family Mediators, Singapore Mediation Centre; Panel of Collaborative Family Practitioners, Singapore Mediation Centre.


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