A SPECIALIST COMMERCIAL COURT IN SINGAPORE

• Citation: (1990) 2 SAcLJ 274
• Date: 01 December 1990
• Author: RICHARD SOUTHWELL, QC
• Published date: 01 December 1990

It is a great privilege to be asked to speak in this Academy of Law (at a time so near to the 25th birthday of the independent state of Singapore), on a subject in which I have a particular interest: the establishment of a specialist Commercial Court in Singapore.

I am diffident about speaking to those who know far more than I do about the legal system and the courts in Singapore. I can only speak from my experience in the Commercial Court in England and Wales and my more limited experience in Singapore and also other jurisdictions including the United States and some Commonwealth territories such as Hong Kong, Bermuda, the Bahamas and the Cayman Islands. That is the extent of my experience. Please forgive me if I say things which do not fit with your knowledge of what is necessary and appropriate in Singapore.

I propose to divide this talk into two parts: first, to consider some of the main elements of the long established Commercial Court in England and Wales; secondly, using the English Court as a possible model, to consider how those main elements could be put to use in the Republic of Singapore.

The English Commercial Court was established in 1895. The purpose then was to provide a court staffed by a single Judge who was familiar with the subject-matter of commercial disputes, and to provide procedures which would enable those disputes to be determined expeditiously and efficiently without undue formality. This worked for many years on basis of a single commercial Judge whose work in the Commercial Court did not keep him employed more than part time. But during my career this has changed a great deal. The rapid growth in commercial activity, coupled with the readiness of many litigants, based elsewhere than in England, to have their disputes determined by the Commercial Court in England, or by arbitration in England or by arbitrations subject to English law (from which appeals may, in certain circumstances, proceed to the English Commercial Court) have led to a quite different situation today. Now there are seven or eight commercial Judges sitting at any one time. On occasions it is necessary, in order to deal with the volume of business, for barristers to sit as deputy High Court Judges trying commercial cases; and it has been necessary to ensure that cases on the borderline of being commercial are kept out of the Commercial Court so as not to overwhelm the resources of that court.

This is something of a success story. But I do not want to spend time today on such success as the English Commercial Court may have had. Rather, I

would wish to draw on some of that experience in what I venture to suggest might be a successful pattern for Singapore.

Though there is a separate Commercial Court in England, this does not mean that large resources have been, or need to be, devoted to the establishment of such a court. So far as the Judges are concerned, all that happens is that certain Judges with long experience at the Commercial Bar have been nominated to sit as Commercial Judges. They do not hear commercial cases exclusively, but spend a part of their time trying criminal cases and other civil cases. There is no separate Commercial Court building and the Judges simply sit in their usual courts. But there are now a separate registrar and a separate registry for the Commercial Court. This has enabled the listing of commercial cases to be arranged separately from the listing of other cases. It has also enabled strong formal and informal contacts to be maintained between the commercial court registrar and his staff on the one hand, and commercial barristers, their clerks and commercial solicitors on the other. There is also a strong Commercial Court Users Committee which makes recommendations for the improvement of procedure and listing.

Why, then has the Commercial Court in England and Wales been so much used? I think that there are three main reasons: first, the calibre and experience of the Judges who sit in the Commercial Court; secondly, the flexible procedures that the Court adopts; and thirdly, the development of a corps of specialised solicitors and barristers. These factors lead to greater efficiency and speed (and hence less expense for litigants) in the resolution of commercial disputes.

First, the Judges. The Commercial Judges all have considerable experience of commercial life and commercial disputes, gained through practice at the Commercial Bar and increased by their specialisation as Judges. The greater the experience of the Judge, the less time needs to be spent in educating the Judge in particular cases. Considerable savings in court time can be made as a result of a case being tried by a Judge already familiar with the commercial background against which the particular dispute has arisen.

An important difference between litigation in the Commercial Court and other civil litigation is that, whereas in the ordinary civil cases almost all interlocutory matters are dealt with in the first instance by a master or registrar rather than a Judge, in the Commercial Court all interlocutory matters are heard by a Judge: a whole day each week, Friday, is set aside for the hearing of interlocutory matters by the Commercial Court Judges. This is of considerable benefit to litigants: in commercial litigation,

interlocutory hearings frequently involve matters of importance and complexity justifying the attention of a High Court Judge, and the procedure avoids a proliferation of appeals from the master to the Judge. The system also has the distinct advantage of enabling the Judges, those who ultimately have responsibility for trying the cases, to regulate the preparation of those cases in a way which they consider likely to lead to their speediest determination.

An incidental result of having all the Commercial Judges spending one day per week hearing interlocutory matters is that trials are conducted on only four days each week. It may sound paradoxical, but it is the experience of commercial lawyers in England that cases are often considerably shortened as a result of the extra day of preparation in each week that this procedure permits.

Another matter which I regard as having contributed to...