By Leonard Loh
Key Takeaway: The need for an additional step (as required under the Singapore Rules of Court 2021) (“ROC 2021”) before being allowed to introduce expert evidence and the attendant additional costs and risks could reduce the attractiveness of litigation in Singapore in favour of arbitration. All should thus be aware of the additional complexities thrown up by ROC 2021, and consider whether litigation under Singapore law remains the best solution in a dispute or if arbitration is the better option.
One of the changes made by way of ROC 2021 is to introduce court control over a party’s previously unrestricted right to introduce expert evidence. If a litigant wishes to introduce his own expert to give evidence, he has to convince the Court, among other things, that (1) expert evidence will contribute materially to the determination of any issue and (2) the default rule that parties are to agree on one common expert should be departed.
While this change is welcomed when viewed through the lens of expeditious proceedings and efficient use of court resources (see Order 3, Rule 1(2) of the ROC 2021), it requires lawyers and (potential) litigants to grapple with the additional complexities of litigation in Singapore. This article will discuss a couple of such additional complexities and discuss whether such additional complexities increase the attractiveness of arbitration, especially in complex disputes where expert evidence is an important, if not integral, part of the process.
Difference between likelihood to assist and material contribution
ROC 2021 enacts a much stricter standard than prevailing evidence law. Under section 47 of the Evidence Act 1893 (the “EA”), “when the court is likely to derive assistance from an opinion upon a point of scientific, technical or other specialised knowledge, the opinions of expert upon that point are relevant facts” and hence admissible (emphasis added). In contrast, Order 12, Rule 2(3) of ROC 2021 states that the Court “must not approve of the use of expert evidence unless it will contribute materially to the determination of any issue in the case” (emphasis added).
The difference in the tests under the EA and ROC 2021 may be illustrated with an example. An issue is whether a signature on a document purporting to belong to Mr X was genuine or forged. A handwriting expert was engaged pre-litigation, and his evidence is that there is a strong likelihood that Mr X did not sign that document since the signature on the document in question was different from that of undisputed specimen signature provided by Mr X. If there are surrounding evidence which could point to, for example, that Mr X was overseas whilst the document was executed in Singapore, such evidence by the handwriting expert may not contribute materially to the Court’s determination of the issue. However, such evidence by the handwriting expert still has the likelihood to assist the Court to reach the conclusion that the signature was a forgery.
Hence, the question of material contribution requires a lawyer to assess, perhaps at the pre-litigation stage or at the latest, prior to the application to introduce expert evidence, (1) the potential presence and strength of other evidence in connection with a fact in issue and (2) how a Judge, pre-trial, would assess the presence and strength of such other evidence (which the Court has not seen yet).
Ensuring that your expert remains a party expert
ROC 2021 also introduces the default rule of common experts. Order 12, Rule 3(1) of ROC 2021 states that “as far as possible, parties must agree on one common expert”. This gives rise to a couple of additional complexities to be considered, leaving aside the obvious question of requiring litigants who are at odds with each other to agree.
First, if a common expert is the norm, how should (potential) litigants go about engaging experts? Do litigants have to incur the costs of one expert to advise them, and then spend more costs to engage another expert to be the common expert? Further, do litigants engage their most preferred expert and hope that they are able to convince the Court to depart from the common expert rule? Or do litigants engage their second most preferred expert, and hope that they are able to convince their opponent and the Court to call their most preferred expert as a common expert? In that regard, do litigants readily agree to their opponent’s proposal on the identity of the common expert, or do they oppose the opponent’s proposal thereby incurring more time and costs?
Second, does ROC 2021 allow for the “forced conversion” of a claimant’s proposed expert to a common expert? In the same vein, does ROC 2021 allow a defendant to, under the guise of considering the claimant’s expert as a common expert, demand extensive production of documents and information regarding the claimant’s brief to the expert (and thereby, endangering privilege)? While these may seem to be unlikely scenarios, one of our clients have been placed in this exact situation – he found a willing expert to provide evidence on a particularly specialised issue, and his opponent sought to demand production of documents and information given to that expert, under the guise that having a common expert is the default rule and that the opponent needed to consider whether the proposed expert is an appropriate common expert. While we eventually prevailed and the expert was called as a party expert, that is not before having to fiercely protect the line of privilege in terms of communications with potential witnesses.
While dispute lawyers rarely shy away from complexities, the question remains: are these additional complexities (and the additional litigation arising from these complexities) necessary? In Justice Chua Lee Ming, “The Rules of Court 2021: Perspectives from the Bench (The General Division of the High Court)” (2024) 36 SAcLJ 489 at 501, it was observed that “[a]necdotally, this provision [i.e., Order 12, Rule 3(1) of ROC 2021] has not given rise to any significant issues and common experts are the exception” (emphasis added). While this provides some comfort, the language in ROC 2021 remains that common experts are the default rule. If the actual implementation of ROC 2021 tends towards party experts, then it is argued that an amendment to reflect that would be beneficial.
Advantage Arbitration?
The strictures placed upon a party’s right to call expert evidence give rise to significant complexities that need to be considered as early as possible (and, in situations involving contractual or contract-related disputes, at the contract negotiation stage). It is argued that such complexities are, depending on which side of the line your client is on, not necessarily disadvantageous.
In situations where expert evidence is needed by one party but not the other, such as a situation where an individual is in a lawsuit with an institution that has in-house capabilities to address the issues at hand, the additional strictures on expert evidence only add obstacles to the individual and not to the institution.
Outside of the abovementioned situation, the need for an additional step before being allowed to introduce expert evidence and the attendant additional costs and risks could reduce the attractiveness of litigation in Singapore in favour of arbitration. The major arbitral rules and the IBA Rules on the Taking of Evidence in International Arbitration allow expert witnesses to be called without prior approval and hence, costs do not need to be expended for an application for approval. All should thus be aware of the additional complexities thrown up by ROC 2021, and consider whether litigation under Singapore law remains the best solution in a dispute or if arbitration is the better option.
For More Information
If you have any questions about this article, please contact Duane Morris & Selvam Director Leonard Loh if you would like to discuss this update.
About Selvam LLC
On 1 January 2011, Selvam LLC entered into a joint law venture with Philadelphia-based United States law firm Duane Morris LLP. The affiliation, formally known in Singapore as an Enhanced Joint Law Venture (JLV), was the first U.S.-Singapore joint venture to be approved by Singapore as part of the enhanced liberalisation of its legal services market in 2008. The joint venture, known as Duane Morris & Selvam LLP, enables Duane Morris to strengthen its capabilities, access and presence in Asia through Selvam LLC’s top-ranked Singapore corporate and disputes practices, and likewise helps Selvam to leverage the support of Duane Morris’ U.S. and other international offices.
In addition, the partnership enables Selvam to draw upon the JLV in terms of the technology, IT infrastructure, training and capabilities of a global law firm. Together, the firm now has over 900 lawyers across 30 offices including five offices in Asia: Singapore, Hanoi, Ho Chi Minh City, Shanghai and Yangon. Selvam LLC undertakes all Singapore law aspects of the JLV, including litigation, employment, real estate and family law matters. Due to the ever-increasing volume of cross-border transactions, our local law capability greatly enhances the scope of legal services we are able to offer our clients.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm’s full disclaimer.
