Litigation: A Decade of Change

(This article first appeared in the Sept-Oct 2002 edition of Inter Se published by the Singapore Academy of Law)

INTRODUCTION

In 1987, the Subordinate Courts introduced new rules of civil procedure, doing away with the civil mention system.

Previously, the civil mention system required that civil cases filed in the Subordinate Courts had return dates. This meant lawyers had to attend court to mention their cases on that given date. The judge was informed, in open court, of the status of the matter (whether the summons had been served or if substituted services was needed).

Where appropriate, judgments would be granted by the judge in open court during such mentions. Since mentions were according to seniority in the bar, junior members had to wait until all senior members had finished their cases, which could take up the better part of the morning. Fortunately, this gave junior members an opportunity to see (and learn) how the more senior lawyers presented their cases.

Much has changed since then. Civil cases in both the Subordinate Courts and the Supreme Court, often with voluminous documents, are filed using the Electronic Filing System (“EFS”). Using video conferencing, a case can be started and finished without the lawyer ever stepping into court.

The above illustration is perhaps the starkest example of how much general civil litigation practice has evolved in the last ten years or so. For the more senior lawyers, this article will be a short journey into the past. For the younger members, this will hopefully help them understand the historical context of some of our practices.

THE RULES OF COURT

Since 1986, there have been many changes to the Rules of Court. The Honourable the Chief Justice Yong Pung How made sweeping changes to the rules between 1990 and 2002 when he introduced the following:-

  1. rules to provide strict timelines for the filing of affidavits in certain types of applications, notably in summary judgment hearings;
  2. affidavits of evidence-in-chief in place of oral evidence, thus speeding up court hearings;
  3. pre-trial conferences (“PTC”) to manage cases to ensure that strict timelines were met;
  4. hearing fees to ensure that there is no wastage of court’s time;
  5. mediation as part of the litigation process; and
  6. changes to the manner in which bills of cost are drawn up, thus simplifying the process.

Prior to the introduction of these rules, a common practice (especially in summary judgment applications) was for affidavits to be filed just before the hearing, thus forcing an adjournment. Defendants often used this to delay matters.

Interestingly, under the old Subordinate Courts Rules, party and party costs were based on a scale fee dependent on the quantum of the judgment obtained. Actions started would have a suing fee. If the case reached trial, there would be an advocacy fee. If the case was settled before trial, depending on the stage it was settled, only a certain percentage of the advocacy fee would be awarded. The process was simple although not very equitable since complex issues could arise in “small” cases.

In 1996 the Subordinate Court Rules and the Rules of the Supreme Court were merged into a single Rules of Court. The most practical effect of this was to do away with the need to carry around and refer to two sets of the rules – something that could be a bother when travelling from the Subordinate Courts to the High Court for cases.

THE FIXING OF CASES

One of the more colourful processes that has changed in the last ten years is the fixing of cases for trial. Ten years ago in the Subordinate Courts, a case would either be fixed for mention in the filter court or for hearing in an assigned court.

In the filter court, you would be waiting with many other lawyers for a courtroom to be available. If you were lucky and many cases were settled that day, you would be assigned a court for your trial. Otherwise another mention date would be given. Since there was a possibility that you may get a court for trial, your clients and the witnesses had to be available and waiting in the Subordinate Courts.

Being assigned a court for trial still did not guarantee a hearing since the Subordinate Courts practised “double fixing”, where two or more cases were fixed for the same courtroom on the assumption that at least one case would be settled before trial. If, unfortunately, no case was settled, you would have to go back to the filter court and wait for an empty courtroom. If your case had to be re-mentioned, your witnesses would have to appear in court again. Perhaps the only good that arose from this was that clients (after one or two such experiences) were very eager to settle.

In the High Court, the practice was different. Fixing of cases for trial took place once a year, usually a few years after the case was filed. In the later years, this was more frequent until the practice was stopped and the present PTC system adopted. During fixing (usually a Saturday), all the lawyers with trials scheduled for that year would gather in one of the larger courtrooms. At times there could be a hundred or so lawyers in court with their old and dusty files. The Registrar would shout out the case number and the proposed trial dates. The lawyers involved would reply whether the dates are “suitable” or “not suitable”.

Often, especially in multi-party cases, finding suitable dates for all concerned could be very tedious with alternate dates being bantered back and forth. Some senior lawyers described this as being like a “fish market”.

Today, the process is much more efficient and clinical. When a case is filed, a lawyer can estimate the trial dates. In the High Court, trial dates are in fact fixed during the hearing for summons for directions or during the pre-trial conference. Fast-tracked cases can be heard within four to six months after the case is filed. Most are disposed of within one year.

THE COURT SYSTEM

With the modernisation of the rules, reforms in the court system also arrived. Judges’ wigs are no longer required. Their robes are simplified. Lawyers are no longer required to wear a wing collar. Gone was the sight of lawyers hanging around the High Court bar-room at 10am, helping each other put on the difficult-to-wear collars.

In 1993, a permanent panel of Court of Appeal judges was established instead of the previous practice of ad hoc judges for the Court of Appeal. The first panel comprised the Honourable the Chief Justice Yong Pung How and the Justices of Appeal, the late Justice M Karthigesu and the recently retired Justice L P Thean. For lawyers, this meant greater certainty since arguments can be honed to address the views and concerns of these judges.

Specialist Courts have also been established in the last ten years. In the Subordinate Courts, the Family Courts were set up to deal with all cases involving family related matters. In the Supreme Court, the recently established Admiralty Court deals with all shipping and admiralty-related cases.

Perhaps the greatest change to the Singapore Court system is the world’s first Electronic Filing System (“EFS”). Much has been said about EFS. EFS has its champions and its critics. Whatever it may be, its impact on civil litigation cannot be denied. The web-based EFS can allow a Singapore lawyer with a laptop computer, the appropriate smart-card reader and the required software, to file court papers from anywhere in the world.

THE FAMILY COURT

Ten years ago, divorce cases were heard by High Court judges in open court. Each paragraph of the petition had to be read to the petitioner and he or she had to confirm that it was true. Thus all the “dirty laundry” would have a public airing, much to the embarrassment of the parties.

While the High Court heard divorces, the Subordinate Courts heard maintenance summons and other family-related applications. Thus lawyers often had an opportunity to “jurisdiction shop” depending on the circumstances of their case.

Fortunately this has changed. Everything is now centralised within the Family Court. Although the petition in a divorce is still titled “In the High Court” because of this historical origin, the hearing takes place in the Subordinate Courts. Instead of reading out the whole petition, only the key paragraphs have to be individually confirmed by the petitioner in open court, saving parties further embarrassment in an already difficult situation.

THE LAW OFFICE

In the early 1990s, typewriters were the principal method of getting word to paper in many law offices. The larger law firms would have dedicated wordprocessors like those from Wang Systems. Personal Computers were only just beginning to be introduced to law firms. Thus if amendments were needed to court papers, the affected pages had to be re-typed. Brevity, accuracy and carbon paper were the order of the day. Otherwise you would have one angry secretary after the tenth amendment to a document.

Telexes were found in almost all law offices then. Typing telexes required its own expertise with its exoteric codes and short forms. Since telexes do not have a “page break”, filing telexes physically was no easy task. Lawyers did not use faxes for fear that they could not be introduced into court as evidence, as they were only facsimiles of the “original”.

The modern law office is very different. Lawyers are now using laptops and Personal Digital Assistants (“PDAs”). Video Conferencing with the courts was introduced this year. Wordprocessors now refer to the software and not the hardware. Information Technology is the order of the day. Instantaneous communication is no longer limited to the telex. Things have moved from faxes to the current emails.

Technology has also changed the way legal research is carried out. Searches on companies and businesses that could take one day are now instantly done online. Instead of looking through the English & Empire Digest (“EED”) to find cases, we now use the Legal Workbench and Lexis-Nexis. Many lawyers have forgotten how to use the EED.

Litigation cases are now usually conducted in “legal teams”, often with volumes and volumes of documents. I know of one case (just before EFS was introduced) where two workers had to be engaged to carry the documents from the lorry to the courtroom.

THE FUTURE

It is never possible to look into the past without looking into the future. What will it be like ten years from now? I expect that the rules of procedure will be simplified at some point, making the law less esoteric to the lay person.

In time, simple processes (like uncontested divorces or simple probate) could be done by the more knowledgeable lay person, leaving the lawyer to concentrate on his or her core litigation skills: the art of advocacy and persuasion.