THE IDEALS IN THE PROPOSED RULES OF COURT

• Author: Jeffrey PINSLER SC LLB (Liverpool), LLM (Cambridge), LLD (Liverpool); Barrister (Middle Temple); Advocate and Solicitor (Singapore); Geoffrey Bartholomew Professor, Faculty of Law, National University of Singapore
• Publication year: 2019
• Citation: (2019) 31 SAcLJ 20987
• Published date: 01 December 2019
• Date: 01 December 2019

I. Introduction

1 The paper entitled “Public Consultation on Civil Justice Reforms”, which contains the recommendations of the Civil Justice Review Committee and the Civil Justice Commission concerning the proposed Rules of Court (“the proposed RoC”), was issued on 26 October 2018 (“Public Consultation on Civil Justice Reforms paper”). This article focuses on a single but fundamental component of the proposed RoC, namely, “the Ideals” in Ch 1 rr 3(2)(a)–3(2)(e) and the related provisions in rr 3(1), 3(3) and 3(4):

(1) These Rules are to be given a purposive interpretation.

(2) These Rules seek to achieve the following Ideals in civil procedure:

(a) Fair access to justice;

(b) Expeditious proceedings;

(c) Cost-effective work proportionate to —

(i) the nature and importance of the action;

(ii) the complexity of the claim as well as the difficulty or novelty of the issues and questions it raises; and

(iii) the amount or value of the claim;

(d) Efficient use of court resources; and

(e) Fair and practical results suited to the needs of the parties.

(3) The Court shall seek to achieve the Ideals in all its orders or directions.

(4) All parties have the duty to assist the Court and to conduct their cases in a manner which will help to achieve the Ideals.

2 The Ideals listed in Ch 1 rr 3(2)(a)–3(2)(e) of the proposed RoC are objectives. The current Rules of Court1 (“the RoC 2014”) does not include such a list. However, O 34A r 1(1) of the RoC 2014 empowers the court (at any stage of the proceedings and regardless of the requirement of any rule of court) to make any order or give any direction “for the just, expeditious and economical disposal of the cause or matter”.2 Although there are clear parallels between the terms “just, expeditious and economical” and the Ideals in Ch 1 rr 3(2)(a)–3(2)(e) of the proposed RoC, important differences are clearly apparent. First, the terminology of Ch 1 rr 3(2)(a)–3(2)(e) particularises the priorities of expedition and economy by introducing concepts such as proportionality, efficiency, resources, need and practicality. Secondly, the powers under O 34A r 1(1) are purely discretionary in nature while the Ideals in Ch 1 rr 3(2)(a)–3(2)(e) are required to be applied throughout the course of the action.3 Thirdly, O 34A is solely concerned with the case management powers of the court while the Ideals involve responsibilities on the part of all participants to the action including the court, the parties and the lawyers. As will be shown,4 the Ideals fundamentally affect how the rules of civil procedure are to be interpreted and applied.

3 Chapter 1 r 3(1) is also novel as the RoC 2014 does not provide for the manner of general interpretation of the rules.5 This omission in the RoC 2014 is understandable in the light of statutory directive that legislation is to be construed purposively. Section 9A(1) of the Interpretation Act6 provides that “written law” should be interpreted in a manner that would promote its purpose or objective:

In the interpretation of a provision of a written law, an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object.

4 “Written law” is defined by s 2 of the Interpretation Act as including “all Acts … and subsidiary legislation made thereunder for the time being in force in Singapore”. Section 21 of the Interpretation Act states: “Where any Act confers powers to make any subsidiary legislation, expressions used in the subsidiary legislation shall, unless the contrary intention appears, have the same respective meanings as in the Act conferring the power.”7

5 The unprecedented inclusion of the directive in Ch 1 r 3(1) of the proposed RoC that the rules are to be interpreted purposively is necessary because it is aligned to the Ideals (which are purposes) set out in Ch 1 rr 3(2)(a)–3(2)(e). The significance of Ch 1 r 3(1) is that all the rules of court must be read in the light of these Ideals. Although the purposive approach to a general rule of procedure may be curtailed by clear language requiring a literal application,8 the ethos of the proposed RoC is purposive as indicated by Ch 1 r 3(1) and by the very significant reduction in the content of the rules (compared to the RoC 2014), as well as the broad powers of the court granted by Ch 1 r 5 and other provisions of the proposed RoC.

6 In Access to Justice (Final Report),9 which concerned recommendations for reform of civil procedure in the UK, Lord Woolf stated:10

Every word in the rules should have a purpose, but every word cannot sensibly be given a minutely exact meaning. Civil procedure involves more judgment and knowledge than the rules can directly express. In

this respect, rules of court are not like an instruction manual for operating a piece of machinery. Ultimately their purpose is to guide the court and the litigants towards the just resolution of the case. Although the rules can offer detailed directions for the technical steps to be taken, the effectiveness of those steps depends upon the spirit in which they are carried out. That in turn depends on an understanding of the fundamental purpose of the rules and of the underlying system of procedure.

7 As will be explained in the course of this article, the purposive approach means that a court should consider all the Ideals and not simply apply one in preference over another. As the Ideals operate synergistically in a purposeful manner, their relative significance, interaction and application are dependent on the specific facts of each case.

II. Background

8 An appreciation of the nature of these Ideals may be gained by offering a very brief summary of the evolution of civil procedure in Singapore. Prior to the reforms affecting case management and other changes to the rules that were introduced in the 1990s, litigants (through their lawyers) had a virtually free hand in dictating the duration and course of proceedings. In Allen v Sir Alfred McAlpine & Sons Ltd,11 Lord Diplock observed:

The underlying principle … is that the court takes no action in it of its own motion but only on the application of one or the other of the parties to the litigation, the assumption being that each will be regardful of his own interest and take whatever procedural steps are necessary to advance his cause.

9 This characterisation of English civil procedure represented the position in Singapore until the 1980s. In 1988, almost a third of the cases in the courts took more than five years to conclude.12 At the end of 1990, 2,059 civil cases were awaiting hearing in the Supreme Court.13 In 1991, it took about two years for an appeal to be heard by the Court of Appeal.14 The backlog of cases and waiting time for hearings were significantly reduced within a short time as a result of the above-

mentioned reforms.15 A primary reason for the former state of affairs was the absence of active court control of proceedings and lax rules which permitted litigants to flout requirements (particularly those concerning time limits for taking steps in the action), proceed in an unproductive and disproportionate manner (including the engagement of expensive and time-consuming satellite litigation), and disregard the limits of the court's resources (and the consequential impact on access to justice by other litigants). Therefore, for much of the 20th century, the ultimate concern of judges was the provision of substantive justice. Delayed justice, improper use of court resources, misuse of procedure and unnecessary costs may have been frowned upon but were not adequately managed. As Lord Dyson MR pointed out:16

[I]t is easy to see why, not least given the long heritage we have of striving to secure justice on the merits in each case and the intuitive understanding that doing justice is to reach a decision on the merits, mistaken assumptions took hold.

10 The former litigation culture was underpinned by the belief that procedure (including the management of litigation) was separate from, incidental to and limited to the role of serving substantive justice. In Lea Tool and Moulding Industries Pte Ltd v CGU International Insurance plc,17 Lai Kew Chai J stated: “our procedural laws are merely handmaidens [to help us achieve justice]”.18 However, more recent case law has changed the emphasis to an integrated and symbiotic relationship between procedure and substantive law. Andrew Phang Boon Leong JC (as he then was) observed in United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd19 (“Ng Huat Foundations”):20

The quest for justice, therefore, entails a continuous need to balance the procedural with the substantive. More than that, it is a continuous attempt to ensure that both are integrated, as far as that is humanly possible. Both interact with each other. One cannot survive without the other. There must, therefore, be – as far as is possible – a fair and just procedure that leads to a fair and just result. This is not merely abstract theorising. It is the very basis of what the courts do – and ought to do. When in doubt, the courts would do well to keep these bedrock principles in mind. [emphasis in original]

11 The learned judge observed that the relationship is not always straightforward:21

It is true, however, that in the sphere of practical reality, there is often a tension between the need for procedural justice on the one hand and substantive justice on the other. The task of the court is to attempt, as I have pointed out in the preceding paragraph, to resolve this tension. There is a further task: it is to actually attempt, simultaneously, to integrate these two conceptions of justice in order that justice in its fullest orb may shine forth. [emphasis in original]

12 These principles, which have been...