Singapore - Dispute Resolution Guide 2016

Legal News & Analysis – Asia Pacific - Singapore – Dispute Resolution

17 January, 2016

 

Legal System

 

The Singapore legal system reflects its historical connection with England. In 1807, the East India Company obtained the First Charter of Justice from the English monarchy to set up a Court of Judicature in Penang with similar powers to those of English superior courts, to pass judgment according to “justice and right.” In 1824, the Johore Sultanate ceded Singapore to the British and the East India Company acquired full sovereignty in perpetuity over Singapore. On 27 November 1826 the East India Company obtained the Second Charter of Justice from the English monarchy. The Second Charter of Justice created a new Court of Judicature to serve Penang, Singapore and Malacca (the Straits Settlements).

 

By the Second Charter of Justice, the law of England as it stood on 27 November 1826 was received into Singapore. However, the reception of English law was problematic as not all English laws were suitable for application in the Straits Settlements. The Second Charter of Justice did not provide any guidelines for the reception of English law, which was left to the courts to determine. The courts in the Straits Settlements have in judicial interpretations over many years established that only English law of general policy and application was to be received subject to local customs, local religions and local legislation.

 

Although the Second Charter of Justice provided that the law of England as it stood in 1826 was to be received, in practice, post-1826 English laws pertaining to commercial matters were accepted by the bench and bar as part of the law of Singapore. This tacit acceptance was finally granted legislative recognition by the passing of the Civil Law Ordinance of 1878. By Section 6 of the Civil Law Ordinance, current English law was to apply to all commercial matters unless there was applicable local legislation in force. After several re- enactments, Section 6 of the Civil Law Ordinance became known as Section 5 of the Civil Law Act (Cap 43).

 

On 12 November 1993, Section 5 of the Civil Law Act was repealed and replaced by the Application of English Law Act 1993 (Cap 7A) (the 1993 Act). By the 1993 Act, the common law of England (including the principles and rules of equity) so far as it was part of the law of Singapore prior to the commencement of the 1993 Act, together with those English enactments listed in the Schedule to the Act, continue to be part of the law of Singapore.

 

On 11 July 1994, in a practice statement read by the Honorable Chief Justice Yong Pung How at the commencement of hearings in the court of appeal, the court of appeal stated that it should not hold itself bound by any previous decisions of its own or of the privy council, which by the rules of precedent prevailing prior to 8 April 1994 were binding on it, in any case where adherence to such prior decisions would cause injustice in a particular case or constrain the development of the law in conformity with the circumstances of

Singapore. This power will be exercised sparingly, bearing in mind the danger of retroactively disturbing contractual, proprietary and other legal rights.

 

Since then, the Singapore courts have developed their own body of case authorities. Modern English case law and other Commonwealth decisions, though persuasive, are no longer binding.

 

Courts

 

Judicial power in Singapore is vested in the Supreme Court and the state courts as provided by the law. The Supreme Court comprises the High Court, the Singapore International Commercial Court and the Court of Appeal.

The state courts are inferior courts, operating under the supervision of the Supreme Court. For civil matters, the state courts are primarily divided into the Small Claims Tribunals, Magistrates’ Courts, District

 

Courts, Family Justice and Juvenile Courts as well as the Coroners’ Court.

 

In January 2015, the Singapore International Commercial Court was established as a division of the High Court and part of the Supreme Court of Singapore.

 

Small Claims Tribunals

 

The Small Claims Tribunals were established in 1985 to simplify the collection of small debts in an informal atmosphere. Advocates and solicitors are not allowed to appear before the Small Claims Tribunals and the parties must represent themselves.

 

The Small Claims Tribunals may handle claims not exceeding SGD10,000 and, subject to written agreement by the parties, claims not exceeding SGD20,000. However, the Small Claims Tribunals can only hear and determine any claim if it is made within one year from the date on which the cause of action accrued and the claim relates to a dispute arising from any contract for the sale of goods or the provision of services; or is a claim arising from any contract relating to a lease of residential premises not exceeding two years; or is a claim in tort in respect of damage caused to any property (except damage in connection with a motor vehicle accident). The Tribunal’s jurisdiction does not extend to any claim which the Subordinate Courts have no jurisdiction to hear.

 

If a claim has been lodged with the Small Claims Tribunals, no other claim based on the same cause of action can be lodged in any other court unless proceedings before that other court were commenced before the claim was lodged with the Small Claims Tribunals, or where the claim before the Small Claims Tribunals has been withdrawn or abandoned. The Small Claims Tribunals have a duty to discontinue the proceedings if the claim is beyond the Small Claims Tribunals’ jurisdiction.

 

Claims are commenced by completing and lodging the prescribed form with the Small Claims Tribunals and paying the prescribed fees.

 

When a claim has been filed, the Small Claims Tribunals will invite all the parties to the dispute for consultation with a view to effecting a settlement acceptable to all parties. In the event that no settlement can be achieved, the Small Claims Tribunals will fix a date and place for the hearing of the case, notify the claimant and the respondent and arrange for service of a copy of the claim on the respondent. The hearing is held in a relaxed and informal manner. If necessary, the Small Claims Tribunals have power to summon witnesses and to request for the production of documents. Each Small Claims Tribunal is presided over by a referee who is legally qualified. The Tribunal makes an order after the hearing, and any award stands as an order of a Magistrates’ Court, capable of enforcement with leave of the court.

 

Magistrates’ Courts

 

With effect from 1 August 1999, Magistrates’ Courts have jurisdiction to try claims which do not exceed SGD60,000. Any party to the proceedings, except a corporate entity, may appear personally. A corporate entity must be represented by counsel.

 

District Courts

 

As of 1 August 1997, the District Courts have jurisdiction to try claims not exceeding SGD250,000.

Procedure in the state courts is governed by the Rules of Court.

 

High Court

 

The civil jurisdiction of the High Court extends to claims exceeding the sum of SGD250,000. Only the High Court has jurisdiction to hear and try actions in rem. High Court procedure is also governed by the same Rules of Court.

Singapore International Commercial Court

 

As part of the Supreme Court, the Singapore International Commercial Court (SICC) is designed to deal with transnational commercial disputes. Generally, the SICC has the jurisdiction to hear and try an action if

 

(a)  the claim in the action is of an international and commercial nature;

(b)  the parties to the action have submitted to the SICC’s jurisdiction under a written jurisdiction agreement; and

(c)  the parties to the action do not seek any relief in the form of, or connected with, a prerogative order (including a mandatory order, a prohibiting order, a quashing order or an order for review of detention).

 

The SICC may also hear cases which are transferred from the High Court. SICC proceedings may be heard by either one or three judges. Appeals from the SICC will be heard by the Court of Appeal which will consist of either three or five judges.

 

Although the Court of Appeal hears appeals from the SICC, the panel of judges which may sit in appeal for SICC cases differ from appeals from the High Court. In this regard, in addition to the usual panel comprising of the chief justice and judges of appeal, including judges and senior judges (former judges of the Supreme Court re-appointed for a fixed term), international judges (distinguished individuals from various jurisdictions appointed as judges of the Singapore International Commercial Court) may hear appeals from the SICC if the chief justice so requires.

 

Court of Appeal

 

The Court of Appeal is the final appellate court in Singapore. Where the amount or value of the claim is equal or less than SGD250,000 and for certain types of decisions (see Appeals below), leave to appeal must be obtained usually from the High Court before an appeal can be made to the Court of Appeal. The Court of Appeal comprises the chief justice and the judges of appeal. A High Court judge may, on the request of the chief justice, sit as a judge of appeal. For civil and criminal matters, the jurisdiction of the Court of Appeal is exercised by three or any greater uneven number of judges of appeal. For appeals from all interlocutory matters, the Court of Appeal may consist of two judges of appeal. No judge can sit as a judge of appeal if the appeal is against that judge’s decision.

 

Other Tribunals

 

There are a number of tribunals established by legislation to deal with specialized areas of law which exercise judicial or quasi-judicial power such as the Industrial Arbitration Court and the Copyright Tribunal.

 

Industrial Arbitration Court

 

The Industrial Arbitration Court handles the registration and certification of collective agreements, resolution of disputes between employers and employees’ trade unions relating to breach of employment contracts, the payment of wages, etc. The settlement of disputes is achieved by collective bargaining between the employer and the trade union, or by arbitration or conciliation. If necessary, the court will refer a question of law to the attorney general for his opinion.

 

Copyright Tribunal

 

The Copyright Tribunal assists in the determination of remuneration payable to the owner of copyright. The tribunal may, at its discretion or at the request of a party to the proceedings, refer a question of law to the High Court for determination.

 

Jurisdiction

 

The courts in Singapore have jurisdiction in personam and in rem. The Singapore courts have jurisdiction as of right over a dispute, based on the presence in Singapore of the party or thing (e.g., a ship) against which the action is directed, as well as based on submission of a party to the jurisdiction of the Singapore court. Thus, where the defendant can be served with the proceedings in Singapore, or if a foreign defendant voluntarily and unconditionally enters an appearance, the Singapore court has jurisdiction even if the case has little or no connection with Singapore. This is subject to its discretion not to exercise its jurisdiction and stay the proceedings in appropriate cases.

 

Where the intended defendant is not in Singapore, the Singapore courts will assume jurisdiction over him if he has been served with the writ or originating summons in the circumstances authorized by and in the manner prescribed by the Rules of Court. The leave of the court is required to serve the defendant outside of Singapore. The grant of leave is discretionary and is only granted where the dispute falls under the various permissible categories listed in the Rules of Court. Service out of jurisdiction may be granted (among others) where

 

(a)  relief is sought against an intended defendant who is domiciled, ordinarily resident, carrying on business or has property in Singapore;

(b)  an injunction is sought against an intended defendant to compel him to do or not to do anything in Singapore;

(c)  the claim is brought in respect of a breach of a contract made in Singapore, or governed by Singapore law, or containing a term conferring jurisdiction on the Singapore court;

(d)  the claim is brought in respect of a breach committed in Singapore of a contract wherever made;

(e)  the claim is founded on a tort (civil wrong) wherever committed, resulting in damage sustained in Singapore;

(f)  the claim is founded on a tort (civil wrong) wherever committed, which is constituted (at least in part) by an act or omission occurring in Singapore;

(g)  the subject matter concerns land in Singapore;

(h)  the claim is brought to enforce any judgment or arbitral award; and

(i)  the action has already been brought against one party duly served in or out of Singapore and where another party outside Singapore is a proper or necessary party thereto.

 

Language

 

English is the only language used by the Singapore courts. Where a document is not in the English language, it must be translated into English by a qualified translator before it will be accepted by the Singapore courts.

 

Legal Profession

 

The legal profession in Singapore is a “fused” profession, i.e., there is no division into barristers and solicitors. Practicing lawyers in Singapore are known as “advocates and solicitors of the Supreme Court of Singapore.” Some of the more senior practicing lawyers are conferred the honorific title of “senior counsel” by the chief justice.

 

As the legal profession in Singapore is fused, lawyers conducting major commercial disputes generally work as a team. Typically, a team will consist of a partner, associates, paralegals, expert witnesses and clients’ representatives. Since lawyers are deemed officers of the court, they have, in addition to their legal and professional duties to their clients, a duty to the court to act fairly and honestly.

 

Procedure for Claims

 

Commencement of Proceedings

 

There are two modes of commencing action: writ of summons and originating summons. The first type of originating process is often used in actions involving commercial disputes. The plaintiff (claimant) brings an action by issuing a writ of summons containing details of the parties and a brief indorsement of claim, or a full statement of claim. If the writ is indorsed with a brief indorsement of claim, the plaintiff must subsequently file a statement of claim setting out all the facts and the cause of action for the defendant to admit or rebut. After the writ of summons has been issued, it must be served personally on the defendant. Where the defendant is within the jurisdiction, the originating process must be served within six months from the date of issue. Where the defendant is outside the jurisdiction, service must be effected within 12 months from the date of issue.

 

Memorandum of Appearance

 

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. Where service is effected outside jurisdiction, the time for entry of an appearance is usually 21 days after the date of service.

 

Failure to enter an appearance will allow the plaintiff to enter judgment in default of appearance. If the defendant wishes to challenge the jurisdiction of the Singapore court to hear the case, he must apply to the court for an order to stay or to set aside the proceedings or for other appropriate relief not later than the time limited for filing his defense (which is 14 days after the last day for entering an appearance). If his application fails, he will be deemed to have submitted to the jurisdiction of the Singapore court unless he applies to the court for leave to withdraw his appearance and such application is granted.

 

Summary Judgment

 

A plaintiff may apply to the court for summary judgment against a defendant on the grounds that the defendant (1) has no defense to a claim included in the writ (or a particular part of such a claim) or (ii) has no defense to such a claim (or a particular part of such a claim) except as to the amount of any damages claimed. Before a plaintiff is entitled to make such an application for summary judgment, he must have served a statement of claim on the defendant and that defendant must have served a defense to the statement of claim. This procedure is only available in those cases where the facts are clear and there is no issue or question in dispute which should be tried by the court. The evidence is given in the form of an affidavit with all necessary supporting documents as appropriate. If the application succeeds, the court will enter judgment for the plaintiff. If it fails, the court will grant the defendant leave to defend either unconditionally or with conditions such as payment into court or by providing a banker’s guarantee for the claim amount.

 

An application can also be made to determine questions of law or the construction of documents where such a question is suitable for determination without a full trial and where such a determination will fully dispose of the entire cause or matter or any claim or issue therein.

 

Pleadings

 

After being served with a statement of claim by the plaintiff, the defendant has to file a defense setting out the facts in answer to the plaintiff’s claim. If the defendant has a claim against the plaintiff, the defendant may include his claim in his defense, and this document is called a defense and counterclaim. Upon receipt of a defense (or a defense and counterclaim), the plaintiff may file a reply to the defense (or a reply and defense to counterclaim). These documents, together with the statement of claim, are called pleadings. The system of pleadings amounts to a formal exchange of allegations, aimed at defining the issues between the parties. All pleadings must contain only the material facts on which the party relies, and not the evidence by which those facts may be proved.

 

The court has wide powers to allow amendments to the pleadings at any stage, subject to costs, and to order the parties to provide further and better particulars where the pleadings disclose insufficient details. The two main purposes of pleadings are to identify the issues in dispute in advance so as to assist the court in resolving the conflict expeditiously, and not to allow a party to catch the other

party by surprise.

 

Discovery of Documents

 

After the exchange of pleadings has been completed, the parties and their lawyers are required to make full disclosure of all documents which are or have been in their possession, custody or power relevant to the issues in the action, and on which the parties will rely, or would adversely affect or support another party’s case. This process is called discovery. A list of documents setting out all the documents in chronological order is first filed and thereafter the parties will proceed to inspect and make copies of the documents listed therein.

 

Privileged documents are exempt from disclosure. Communications with legal advisers for the purpose of obtaining legal advice are privileged. This includes documents in which such communications are intrinsically embedded. Documents tending to incriminate or expose a party to a penalty under Singapore law are also privileged. Certain communications are privileged only when litigation is contemplated or pending (e.g., correspondence passing between solicitors and non-professional agents or a third party). Internal memoranda of a party are not by their nature privileged, except where the sole or dominant purpose of the document is to obtain legal advice (determined at the time the document in question was created) and when there was a reasonable prospect of litigation.

 

Documents which contain matters confidential to a party and not otherwise privileged must be disclosed, but the court may order a controlled method of disclosure to protect the confidentiality of the documents.

Where discovery by a party is inadequate, the other party may apply to the court for further or more specific discovery. Failure to comply with an order for further discovery may result in the dismissal of the action or the striking out of the defense, as the case may be.

 

Discovery is an important part of the litigation process, and its extent and expense in commercial actions can be considerable. Settlement of actions often occurs at this stage both for this reason and also because the discovery process can bring to light information which may have an important bearing on the strengths and weaknesses of the parties’ respective positions.

Unlike the US, where depositions are commonly used, the civil procedure in Singapore does not provide for oral discovery. However, deponents may sometimes be examined on the contents of their affidavits.

 

As of 1 October 2009, there exists an opt-in framework for parties who wish to request for and/or apply for discovery of electronically stored information and the supply of electronic copies of such documents, i.e., electronic documents in their native form. The framework may be considered by the parties where the sum in dispute exceeds SGD1 million, where documents discoverable by a party exceeds 2,000 pages in aggregate or where the discoverable documents comprise substantially of electronic mail and/or electronic documents. However, in a bid to curb excessive proliferation of e- discovery, the courts have required parties to negotiate in good faith as to the appropriate scope of and/or limits on their discovery/disclosure obligations. Such good faith discussion would also include issues like whether parties are prepared to make voluntary disclosures, the giving of e-discovery in stages according to an agreed schedule as well as the format and manner in which copies of the discoverable documents shall be supplied.

 

If parties are unable to agree on an electronic discovery protocol, the party seeking discovery of electronically stored documents may apply for an order.

 

Admissions and Interrogatories

 

A party may by notice seek written admissions from the other party, without leave of the court.

 

A party may also, without leave of the court, address written questions called interrogatories to the other party and require him to answer on affidavit. The opposing party may apply to the court within 14 days for the interrogatories to be varied or withdrawn. The interrogated party can claim privilege on the same grounds as those applicable to discovery.

 

Exchange of Witness Statements

 

The rules and practice directions applicable to both the High Court and the Subordinate Courts require (in most cases) the advance disclosure of each party’s evidence-in-chief (the substance of what a witness proposes to say at trial) in respect of factual witnesses as well as expert witnesses. Such statements will normally be ordered to stand as the witnesses’ evidence-in-chief at trial, subject only to cross- examination by the opposing party’s solicitors.

 

In this way, the material facts and allegations which are contained in the pleadings and the evidence relied on by a party to prove its claim or defense are disclosed prior to the trial.

 

Withdrawal and Discontinuance

 

An action can be withdrawn or discontinued unilaterally by the plaintiff not later than 14 days after service of the defense on him. The defendant may withdraw his defense at any time or discontinue a counterclaim at any time not later than 14 days after service on him of a defense to counterclaim. The party withdrawing or discontinuing will have to pay costs to the other party, on the standard basis (which is less than the costs the solicitor will normally charge his client). At any time before trial, the action may also be withdrawn without leave of court if all parties consent, and produce to the registrar of the court such written consent signed by all parties.

 

If a memorandum of service and a memorandum of appearance is not filed and a judgment not obtained within 12 months after the validity of a writ for the purpose of service has expired, the action is deemed to have been discontinued automatically. This will also apply to cases where more than one year has elapsed and no party has taken any step or proceeding in the matter.

 

A party may, with leave of the court, discontinue an action or counterclaim. The court may make an order accordingly on such terms as to costs, the bringing of a subsequent action or otherwise, as it thinks just.

If a party brings a subsequent action for the same or substantially the same cause of action before paying the costs of the previous action to the other party, the court may, on application by the other party, stay the proceedings in the subsequent action until those costs are paid.

 

Interim/Interlocutory Remedies

 

Interlocutory Injunctions

 

A plaintiff may apply to the court for an interlocutory (interim) injunction to restrain the defendant from committing a wrong and to preserve the status quo until the rights of the parties have been finally determined by the court. The grant of an interlocutory injunction is both temporary and discretionary.

 

A party has broad rights to apply for an injunction before or even after trial, even if an injunction is not part of his cause of action. In urgent cases (and/or where it can be shown a forewarned defendant might take steps to negate or frustrate the efficacy of a court order) the application can be made ex parte (i.e., without notice to the other party) and even before, but conditional upon, the issue of the writ. The courts’ jurisdiction in this regard is wide and can be exercised whenever it is right or just to do so, having regard to settled principles. The most important of these principles are that the applicant must show: (1) that there is a serious question to be tried (not that he is likely to succeed at trial); (2) that he cannot be adequately compensated by damages alone; and (3) that the balance of convenience between the parties lies in favor of granting the injunction. The applicant of an ex parte injunction must give full and frank disclosure of all material facts to aid the court in deciding whether to grant the injunction, failing which the injunction may be set aside subsequently. The applicant is also obliged to give an undertaking in damages to the court to compensate the respondent should the injunction be proven to be unwarranted.

 

Evidence in an interlocutory application is given by affidavit. In Singapore, affidavits are sworn before a commissioner for oaths. If the affidavit is sworn abroad, it may be sworn before a judge, notary public or a person having authority to administer oaths in a Commonwealth country, and in the case of any other country the seal or signature of a consular officer of a Commonwealth country.

 

Freezing Orders (Mareva Injunction)

 

Where an action or pending action properly brought within the jurisdiction involves a claim of a debt or damages against a defendant, an interlocutory injunction may be obtained to restrain the defendant from dealing with his assets both within and outside of the jurisdiction pending the outcome of the trial. This is known as a freezing order (previously known as a Mareva Injunction).

 

This type of injunction has become widely used, and often has the effect of bringing the parties to settlement terms at an early stage. However, strong evidence is required before a judge will be prepared to make such an order, as its effect on a defendant can be severe as the injunction may be extended to third parties such as banks, i.e., restrain on the banks from dealing with the defendant’s account.

 

The judge will need to be satisfied that there is a valid cause of action, a good arguable case, that the defendant has assets (for a domestic Mareva injunction, the assets must be in Singapore) and that there is a real risk of their dissipation if an injunction order is not granted.

 

A plaintiff is also obliged to make full and frank disclosure of all material facts and to give an undertaking in damages as well as an undertaking to pay expenses reasonably incurred by third parties such as banks as a result of the injunction.

 

An interlocutory injunction can also be granted to prevent a defendant from destroying evidence in his possession before trial. This is presently termed a search order (previously known as an Anton Piller order). Such an order may also direct the defendant to permit the plaintiff to enter his premises, to search for goods or documents belonging to the plaintiff or which are relevant to the plaintiff’s claim (e.g., counterfeit goods), and to remove, inspect or make copies of relevant material. Such an order may also compel the disclosure of names and addresses of suppliers or customers. An independent supervising solicitor has to be appointed to accompany the plaintiff and his solicitors for the search and seizure. The role of the supervising solicitor is to explain to the defendant the purpose of the order, the defendant’s rights, the types of documents, etc., that can be taken by the plaintiff and generally to see that the process is carried out properly and expeditiously. This type of injunction is commonly used in actions involving infringement of intellectual property rights and abuse of confidential information.

 

As such an order amounts, in effect, to civil search and seizure, the relevant jurisprudence has developed detailed substantive and procedural requirements which a claimant must comply with, together with sanctions for failure to do so.

Provided the judgment creditor satisfies the court that a judgment debtor is likely to leave Singapore to avoid payment of his debt, having regard to his conduct or the state of his affairs, the judgment creditor may apply to the court to have the judgment debtor arrested and be orally examined as to his ability to pay the debt.

 

An arrest may also be made in a pending action if the plaintiff can satisfy the court that the judgment debtor who carries on business in or ordinarily resides in Singapore, with a view to prejudice the plaintiff, has absconded or is about to abscond or has disposed of or removed his property from Singapore. The court may also in a pending action, on an application being made by the plaintiff, grant an order to seize the judgment debtor’s properties as a pledge or surety to answer the claim of the plaintiff until the trial of the action on similar grounds.

 

Other Interlocutory Orders

 

Other important interlocutory orders are for the detention or preservation of the subject matter of the action; the sale of perishable property; recovery of personal property claimed in the action but subject to a lien; or the appointment of a receiver of property.

Costs

 

“Costs” principally refers to the fees and expenses a party is obliged to pay his own lawyers and experts. Court fees, including hearing fees, are also payable.

 

In the High Court, hearing fees are payable from the fourth day of trial onward. For claims below SGD1,000,000, hearing fees are fixed at SGD6,000 for the whole or part of the fourth day; SGD2,000 for the whole or part of the fifth day; SGD3,000 for each day or part thereof of the sixth to tenth days; and thereafter SGD5,000 per day or part thereof. For claims above SGD1,000,000, hearing fees are fixed at SGD9,000 for the whole or part of the fourth day; SGD3,000 for the whole or part of the fifth day; SGD5,000 for each day or part thereof of the sixth to tenth days; and thereafter SGD7,000 per day or part thereof. In the District Courts and the Magistrates’ Courts, hearing fees start from the second day of trial at a fixed rate of SGD500 and SGD250 per day, respectively.

 

The court has the discretion to order reimbursement of costs and the amount of such costs. The unsuccessful party in proceedings will almost invariably be ordered to pay the costs of the successful party. The amount allowed is usually assessed on a “standard basis,” that is, a reasonable amount for all costs reasonably incurred, with any doubts as to reasonableness being resolved in favor of the paying party. The successful party rarely obtains full reimbursement for all his costs.

 

In some cases the costs payable by the unsuccessful party are agreed after negotiation. If no agreement is reached, the costs are determined by the procedure of “taxing” (i.e., assessing), with a detailed bill of costs placed before an assistant or deputy registrar.

 

Lawyers generally charge for their work at hourly rates, although they will also negotiate fees with reference to notional daily or hourly rates. Contingency fees are unlawful in Singapore as being contrary to public policy. However, it is permissible for a lawyer to act outside of a narrow exception created by the Court of Appeal, which applies when a client is impecunious, in the knowledge that he would likely only be able to recover his fees or disbursements if the claim was successful or costs were ordered in his client’s favor. In addition, as of 2009, insurance broker Lockton has offered after-the-event (ATE) insurance, i.e., insurance purchased after litigation has been initiated. It is envisaged that the insured pays a nominal premium upfront (or no premium at all). In the event the insured loses his

case, the insurer will cover the parties’ legal costs as well as the premium of the ATE insurance. Where the insured wins his case, the full premium will be paid out of the damages he receives. It is worth noting, however, that the legal validity of such insurance has yet to be challenged in courts.

 

Payment into Court

 

A defendant may at any stage in the action pay into court a sum for which he considers he is at risk as to liability or which he would be prepared to pay to dispose of the action. A payment into court then puts the plaintiff at risk, because if he does not accept the amount paid within 14 days and obtains no more than that amount upon judgment at the trial, he will generally be liable for all his own legal costs and the defendant’s legal costs from the date of the payment into court.

 

The payment into court is not brought to the attention of the trial judge until after the court’s decision is pronounced, when the question of the award of costs is being considered.

 

Offer to Settle

 

Any party to proceedings may make an offer to settle to the other party at any time before the court disposes of the matter. The offer must be open for acceptance for at least 14 days unless the matter has meanwhile been disposed of. Such an offer to settle is deemed an offer of compromise made without prejudice save as to costs.

 

Where an offer to settle is made by a plaintiff and not accepted by a defendant, and the plaintiff obtains judgment not less favorable than the terms of the offer, the plaintiff is entitled to tax his costs on the “standard basis” up to the date of the offer and on an “indemnity basis” from that date, unless the court orders otherwise. Likewise, where an offer to settle is made by a defendant and not accepted by a plaintiff, and the plaintiff obtains judgment not more favorable than the terms of the offer, the plaintiff is entitled to tax his costs on the “standard basis” to the date of the service of the offer and the defendant is entitled to tax his costs on the “indemnity basis” from that date, unless the court orders otherwise.

 

Ultimately the court has a wide discretion in awarding costs, whether on the “standard basis” or on the “indemnity basis.” As an offer to settle is made without prejudice, if not accepted, the offer and relevant correspondence are not disclosed to the court until all issues, other than costs, have been decided by the court.

 

Security for Costs

 

A foreign plaintiff without assets in Singapore, or a Singapore registered company plaintiff that is insolvent, may be ordered by the court to provide security for the proportion of the defendant’s costs that he may have to pay if unsuccessful in the action. Security can be given in any manner, at such time, and on such terms as the court may direct, including payment into court, a guarantee or solicitors’ undertaking. More than one application for security may be made by a defendant during the course of an action. There is no requirement for a defendant to give security, except where a counterclaim is made by a foreign defendant without assets in the jurisdiction, or by an impecunious Singapore company defendant.

 

Appeals

 

Appeals from the Small Claims Tribunals are made to the High Court. An appeal against a tribunal’s decision can only be made on the grounds that the tribunal has erred on a question of law, or that the claim was outside the tribunal’s jurisdiction. Leave to appeal must first be granted by the district judge before an appellant may file a notice of appeal to the High Court. The application for leave must be filed within 14 days from the date of the referee’s order while the notice of appeal must be filed within one month from the date of the order granting leave to appeal. Appeals from the registrar (including deputy registrars) of the state courts are to a district judge in chambers.

 

Appeals from the registrar (including assistant registrars) of the High Court are to a judge of the High Court in chambers; appeals from a judge of the state courts are to a judge of the High Court. Appeals from the High Court are to the Court of Appeal (composed of two or three judges of appeal). A party may also appeal from any judgment or order of the SICC by filing a notice of appeal to the Court of Appeal.

 

Before an appeal to the Court of Appeal from any hearing other than a trial of an action can be lodged, the judge may hear further arguments in respect of the judgment or order, if any party to the hearing, or the judge, requests for further arguments before the earlier of (a) the time the judgment or order is extracted; or (b) the expiration of 14 days after the date the judgment or order is made. Notwithstanding this, a party is not required to request for further arguments before he files a notice of appeal in respect of the judgment or order.

 

Not all appeals can be automatically brought to the Court of Appeal from the High Court and the Singapore International Commercial Court. Certain matters are non-appealable. These include consent orders, final orders, orders giving unconditional leave to defend any proceedings, an order setting aside unconditionally a default judgment.

 

In addition, certain orders of the High Court are appealable only with leave of the High Court. These include an order refusing leave to amend a pleading, an order giving security for costs, an order giving or refusing discovery, and an order refusing a stay of proceedings.

 

In particular, leave has to obtained where the value of the subject matter is equal or less than SGD250,000.

Enforcement of Judgments

 

A judgment takes effect from the time it is pronounced. Interest runs on the amount of the judgment from the date of judgment. If the rate of interest is not contractually agreed, the statutory rate applies. (The current statutory rate as prescribed by the Supreme Court Practice Directions is 5.33% per annum, which may change from time to time.)

 

The principal methods of enforcement of judgment debts or the carrying out of orders of the court are by

 

(a)  issue of a writ of execution (directing the bailiff, an officer of the court, to seize and sell the defendant’s goods to satisfy the judgment debt); or writ of possession (directing the bailiff to obtain the property ordered to be returned to the plaintiff);

(b)  presentation of an originating summons to wind up a company defendant or to declare bankrupt an individual defendant;

(c)  examination of the judgment debtor (in the case of a company, one of its officers) before an assistant or deputy registrar by oral cross-examination on oath about debts owing to him and what other property or means he has of satisfying the judgment. He can be required to produce relevant books or other documents. He can be fined or committed to prison for failure to comply with any

requirements of the examination;

(d)  garnishee proceedings, where debts due to the defendant from a third party may be ordered to be paid directly to the plaintiff to satisfy the judgment (the law does not permit the judgment debtor’s salaries and/or wages to be garnished);

(e)  writ of execution on immovable property, where a writ of seizure and sale is imposed on an interest in land owned by the defendant;

(f)  appointmentofareceiveroverthedefendant’sinterest,e.g., where the defendant is joint tenant of property, or will become entitled to fees not yet earned; and

(g)  proceedings for contempt, where a judgment or order requires a person (or in the case of a company, any of its officers) to do an act within a specified time, or not to do an act, and that judgment or order is disobeyed. The person disobeying may be fined, or his property may be seized, or he may be committed to prison.

 

Committal is the ultimate punishment for contempt, and may be ordered where there has been flagrant or repeated failure to carry out undertakings given to the court or disobedience of a court order.

 

Often in international business transactions the debtor may not have any assets in Singapore but the creditor knows or suspects that there may be assets abroad. A Singapore judgment can be registered and enforced in any country where an agreement has been reached as to reciprocal enforcement of judgments. A Singapore judgment can be enforced in most Commonwealth countries. In the case of non- Commonwealth countries, an agreement for reciprocal enforcement of judgments has been reached with the Hong Kong SAR. In those countries where there is no provision for reciprocal enforcement of judgments, it may be necessary to commence fresh proceedings in reliance on the Singapore judgment.

 

There are three regimes in Singapore for the enforcement of foreign judgments:

 

the Reciprocal Enforcement of Commonwealth Judgments Act

the Reciprocal Enforcement of Foreign Judgments Act (Cap 265);

by way of action at common law.
 

Recognition and Enforcement of Foreign Judgments

 

The Reciprocal Enforcement of Commonwealth Judgments Act (the RECJA) facilitates the enforcement in Singapore of judgments or orders of superior courts of the UK and gazetted Commonwealth countries, including Australia, New Zealand, Malaysia, India (except the states of Jammu and Kashmir), and Brunei Darussalam. This means that the Act does not apply to judgments or orders issued by the subordinate courts of the said countries. The RECJA applies only to judgments or orders made in civil proceedings whereby a sum of money is made payable under the judgment or order (foreign money judgment).

 

If a foreign money judgment is obtained in a country designated under the RECJA, an application can be made to the Singapore High Court to register that foreign money judgment. The application must be made within 12 months after the date of the foreign money judgment or such longer period as may be allowed by the High Court. Once the judgment is successfully registered, the foreign money judgment can, from the date of registration, be enforced in the same manner as a Singapore judgment, provided the judgment debtor has not succeeded in setting aside the registration on one of the prescribed grounds in the RECJA. The successful registrant under the RECJA is entitled to his costs for registration.

 

The RECJA should be the first recourse for any foreign money judgment creditor looking to enforce in Singapore because if he commenced action based on the registrable foreign money judgment, he will not be entitled to costs even if successful, unless he can show that his application to register under the RECJA would have been refused, or unless the court orders otherwise.

 

Reciprocal Enforcement of Foreign Judgments Act

 

The Reciprocal Enforcement of Foreign Judgments Act (REFJA) is a similar framework to the RECJA except that it is a registration mechanism for foreign money judgments issued by the superior courts of non-Commonwealth countries which have been gazetted. To date, only Hong Kong SAR has been gazetted under the REFJA with effect from 1 July 1997. The REFJA applies to judgments or orders made by a superior court in Hong Kong SAR in civil or criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party. They include foreign money judgments given in an action of which the subject matter was immovable property situated in the Hong Kong SAR, or movable property present in the Hong Kong SAR at the time of the proceedings.

 

An application may be made within six years after the date of the foreign judgment. Once the judgment is successfully registered, the foreign money judgment may be enforced in the same way as a Singapore judgment provided the judgment debtor has not succeeded in an application to set aside the registration.

 

Singapore courts will not entertain proceedings for the recovery of sums payable under a foreign money judgment registrable under the REFJA, i.e., foreign money judgment from the superior courts of Hong Kong SAR, unless it is by way of registration proceedings under the REFJA.

 

Action at common law

 

Where a foreign judgment falls outside the ambit of RECJA and REFJA, the judgment creditor may commence proceedings at common law to have the foreign judgment enforced or recognized in Singapore.

 

A foreign judgment in personam given by a foreign court of competent jurisdiction may be enforced by an action at common law as long as the foreign judgment is for a sum of money, issued by a court of law and is final and conclusive on the merits. It is not necessary for the foreign judgment to be for a sum of money if the judgment creditor is applying only for recognition of the foreign judgment. The foreign judgment is generally regarded as conclusive by the Singapore courts as to any matter thereby adjudicated upon and cannot be impeached for any error, whether of fact or of law.

 

Apart from the foregoing, Singapore law requires that the foreign court has international jurisdiction over the party sought to be bound and it is jurisdictionally competent under its own law. Singapore courts will refrain from enforcing a foreign judgment if it is shown that the plaintiff procured it by fraud, or if its enforcement would be contrary to public policy or if the proceedings in which the judgment was obtained were opposed to natural justice.

 

Summary proceedings on the foreign money judgment may be instituted on the ground that the defendant has no defense to the claim.

Arbitration Law

 

Domestic Arbitration

 

Domestic arbitration (i.e., an arbitration which is not an “international arbitration” within the definition below) is governed by the Arbitration Act (Cap 10) which is largely based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law (see below), as well as provisions from the UK Arbitration Act 1996. The Arbitration Act creates an arbitration regime that is in line with international standards while still preserving key features of existing arbitration practices that are deemed to be desirable for domestic arbitrations.

 

International Arbitration

 

In 1992, as part of the overall effort to enhance Singapore as a premier international arbitration locale, a sub-committee of the Law Reform Committee commenced a detailed review of the then-existing arbitration law of Singapore. The result was the Singapore International Arbitration Act (Cap 143A) (the IAA), which came into force on 27 January 1995.

 

The IAA applies to an “international arbitration” as well as to domestic arbitrations in which parties have agreed in writing for its application. An arbitration is “international” if the following apply:

 

(a) at least one of the parties to an arbitration agreement, at the time of the conclusion of the agreement, has its place of business in any state other than Singapore; or

(b) one of the following places is situated outside the state in which the parties have their places of business, i.e., the place of arbitration if determined in, or pursuant to, the arbitration agreement; or any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected; or

(c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

 

If a party has more than one place of business, the “place of business” will be that which has the closest relationship to the arbitration agreement. The IAA largely adopts the 1985 Model Law on International Commercial Arbitration (the Model Law) (adopted by the UNCITRAL on 21 June 1985) and limited provisions of the 2006 amendments to the UNCITRAL Model Law. This brings Singapore in line with many other countries that have adopted the Model Law as a basis for their international arbitration law, giving the arbitration procedural law framework in Singapore a greater degree of familiarity to international commercial parties.

 

The IAA enhances the freedom of the parties to decide on the arbitration procedures subject to the non-derogable provisions of the IAA and the Model Law as adopted and/or supplemented by the IAA. Express language is required to opt out of the Model Law and Part II of the IAA. In that event, the arbitration will be governed by the domestic Arbitration Act.

The IAA also better defines the powers of the Singapore courts to provide appropriate support to the arbitration process, and the limited extent of curial supervision over international arbitration proceedings. It specifies those limited instances where the High Court may intervene to set aside an award other than those provided for under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the 1958 New York Convention) (Singapore has ratified the said instrument and enacted it under the IAA).

 

Singapore’s pro-arbitration approach has also been strengthened with recent amendments made to the IAA in 2010. Those amendments provide for the power of the Singapore courts to order interim measures in support of foreign arbitration, i.e., arbitrations with seats outside of Singapore. Additionally, they provide that an arbitration agreement may be made by means of electronic communications. Finally, the amendments empower the minister to appoint any person holding office in an arbitral institution or other organization to authenticate “made in Singapore” arbitration awards and arbitration agreements, and certify copies thereof, for the purpose of enforcement of these awards in 1958 New York Convention countries.

 

The IAA also defines the powers of the arbitrator very widely. The IAA contains a number of innovative provisions. For example, Section 22 provides that court proceedings ancillary to an international arbitration held pursuant to the provisions of the IAA will be held in camera on the application of any party to the proceedings, thus giving the parties the ability to preserve one of the main perceived advantages of arbitration, that of confidentiality. The Singapore courts have unequivocally recognized the concept of confidentiality in arbitration. Where Singapore is the seat of the arbitration proceedings, parties have a duty to preserve confidentiality subject to limited exceptions. The IAA also recognizes that parties to international arbitration may come from different legal traditions and the arbitrator(s) may adopt an inquisitorial process, and may decide the dispute in justice and good faith, or as a conciliator, with the agreement of the parties.

 

Singapore is a signatory to various bilateral investment treaties and free trade agreements. Some of these contemplate the possibility of arbitration under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID) (the Washington Convention). Singapore is a signatory to the Washington Convention. The Arbitration (International Investment Disputes) Act (Cap 11) implements the Washington Convention in Singapore.

 

Role of Courts in Arbitration

 

Generally, the court maintains a passive role. Parties to domestic arbitration agreements are permitted to contract out of appeals to the court provided for under the Arbitration Act.

In international arbitrations there is no longer a power for the court to rule on questions of law, either prior to or in the course of proceedings.

 

The court will investigate allegations of bias or misconduct by an arbitrator and may remove an arbitrator and appoint a replacement. For example, if an arbitrator or umpire fails or is unable to proceed properly with the reference to arbitration or in making an award, the court can remove him.

 

The Singapore court has the power to grant a stay of Singapore court proceedings in favor of arbitration, including a foreign arbitration, under Section 6 of the IAA and Article 8 of the Model Law, so as to give effect to the parties’ arbitration agreement. The Singapore court is also empowered to make interim orders for the preservation of property or the parties’ rights which forms the subject matter of the dispute to be arbitrated, in addition to the stay order.

 

Staying Orders

 

The ground upon which Singapore court may refuse to order a stay of proceedings is limited to only when it is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed. In all other circumstances, so long as there is a dispute between the parties to an arbitration agreement, the IAA mandates that the Singapore court orders a stay of proceedings.

Institutional and Ad Hoc Arbitration

 

The Singapore International Arbitration Centre (the SIAC) commenced operations on 1 July 1991 with the aim of enhancing Singapore as a leading center for international arbitration. SIAC was formed as an independent, non-profit organization designed to cater to all forms of arbitration, whether under the SIAC’s own rules, or under other established institutional (e.g., ICC Rules of Arbitration) or ad hoc (e.g., UNCITRAL Arbitration Rules) rules that the parties may wish to select to govern their arbitration.

 

With the many advantages Singapore has as an international commercial dispute location, SIAC enjoys the same level of international recognition and acceptance as other established international arbitration centers. Recent developments elsewhere in the region have enhanced the attractiveness of Singapore as a regional center of choice for the resolution of international commercial disputes. The SIAC is also constantly developing links with arbitration centers from other countries around the world. For example, the SIAC entered a joint venture with the International Centre for Dispute Resolution (the ICDR), the international division of the American

 

Arbitration Association (the AAA) in 2007 to open the International Centre for Dispute Resolution-Singapore. It is the ICDR’s fourth global office and its opening has been largely recognized to enhance Singapore’s standing as a premier center for international commercial arbitration.

 

Arbitrations conducted under the rules of the ICC can be heard in Singapore. Frequently companies from different countries contracting in Asia will provide in their agreement for disputes to be submitted to ICC arbitration in Singapore under Singapore law or another law, even though neither of the parties may be from Singapore, and the performance of the contract has nothing to do with Singapore. ICC arbitration is internationally recognized and respected and, for that reason, is acceptable to multinational corporations. Singapore is recognized as being a forum within Asia which is able to handle large arbitrations comfortably, and has lawyers from many jurisdictions used to dealing with complex disputes work.

 

In late 2009, Maxwell Chambers was opened. Maxwell Chambers is dedicated facility for the conduct of arbitrations in Singapore. It is also home to offices of a number of leading arbitration institutions, including the SIAC, SiARB, ICDR, ICC, WIPO, PCA and the LCIA as well as a number of barristers’ chambers, have also established a presence at Maxwell Chambers.

 

Other Arbitral Institutions

 

There are certain other institutions which administer arbitrations in Singapore, e.g., the Singapore Chamber of Maritime Arbitration. For example, in the case of building contracts, there is a clause in the Articles and Conditions of Building Contracts issued by the Singapore Institute of Architects (SIA) that incorporates an arbitration clause. In the event of a dispute, the parties are to give notice to arbitrate and to agree to the appointment of an arbitrator. If parties cannot agree on an arbitrator, the president or vice president of the SIA will nominate an arbitrator at the request of the parties. The arbitration is conducted in accordance with the Arbitration Rules of the SIA.

 

Ad Hoc Arbitration

 

In addition to arbitrations conducted under the auspices of the SIAC and other arbitral institutions, many ad hoc arbitrations have been conducted in Singapore (under e.g., UNCITRAL Arbitration Rules).

 

Enforcement of Arbitration Awards

 

Singapore is a signatory to the 1958 New York Convention. The IAA adopts the relevant provisions of the 1958 New York Convention.

 

An arbitration award obtained in Singapore is enforceable in another signatory state (there are currently some 130 signatory states) in accordance with the provisions of the 1958 New York Convention and the applicable local legislation.

 

Arbitration awards obtained in Singapore may, on application to the court, be enforced as if it were a judgment of the court. If the respondent has assets in Singapore, a great variety of means of enforcement are available, and the jurisdiction of the court is not limited by the absence or otherwise of the respondent in Singapore.

 

Arbitral awards of foreign countries that are party to the 1958 New York Convention are summarily enforceable in Singapore with the leave of the court in accordance with the provisions of Part III of the IAA.

 

Power to Appeal and/or Set Aside Award

 

The grounds upon which a challenge to an international arbitration award may be launched have been circumscribed. Article 34 of the Model Law which has the force of law pursuant to Section 3 of the IAA lists the grounds upon which an award may be set aside by the Singapore High Court. These include the following grounds:

 

(a) a party was under some incapacity, or the arbitration agreement was not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the law of Singapore;

266 Baker & McKenzie

(b)  one of the parties was not given proper notice of the arbitration proceedings or the appointment of an arbitrator;

(c)  the award deals with matters not within the terms of the submission to arbitration or contains decisions beyond the scope of submission of arbitration, provided that the court may set aside only the part of the award which contains matters not submitted to arbitration (if such matters are separable from those submitted to arbitration);

(d)  the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of the Model Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with the Model Law

(e)  the subject matter of the dispute is not capable of settlement by arbitration under the law of the state;

(f)  thearbitrationagreementisillegalunderthegoverninglawthe parties have selected; or

(g)  the award is in conflict with the public policy of the state.

 

The IAA provides additional grounds for setting aside an international arbitration award. These are as follows:

 

(a)  if the making of the award was induced or affected by fraud or corruption; or

(b)  if a breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced.

 

Alternative Dispute Resolution and Mediation

 

Alternative Dispute Resolution (ADR) most commonly takes the form of assisted negotiations, facilitated by a neutral third party. The involvement of that third party is often the element that may allow the process to succeed, even where direct negotiations between the parties or their lawyers have failed.

 

The Singapore judiciary led the way in promoting methods of ADR in Singapore, initially as part of reforms aimed at increasing the effectiveness and efficiency of the Singapore court system. The State courts have introduced a court dispute resolution mechanism, by which the court may refer a dispute to mediation or neutral evaluation. A code of ethics was issued to govern the conduct of mediators and mediation at conferences.

 

The Singapore Mediation Centre, established in 1997 under the auspices of the Singapore Academy of Law, provides commercial mediation services. It has issued rules of mediation and a code of conduct for mediators. It maintains a panel of mediators and also trains mediators and provides private, non-court-based mediation.

 

In November 2014, the Singapore International Mediation Centre (SIMC) was launched. The SIMC features a panel of international mediators and aims to provide world-class mediation services targeted at the needs of parties in cross-border commercial disputes.

The various forms of ADR available in Singapore include the following:

 

Mediation/Conciliation

 

Mediation/conciliation is a process by which the parties to a dispute voluntarily engage the assistance of a neutral third party to help them resolve their dispute by negotiated agreement without adjudication. The third party has no power to make any decisions for the parties or to impose his view upon them. The parties reserve their right to resolve the matter by litigation or arbitration if they cannot do so by mediation/conciliation. The terms “mediation” and “conciliation” are often used interchangeably.

 

Early Neutral Evaluation

 

An early neutral evaluation is a procedure by which a neutral evaluator will meet with the parties at an early stage of the dispute to assist them to narrow and define the issues, and to make a confidential assessment of the dispute, thereby promoting settlement discussions.

 

Mediation-Arbitration

 

An amalgam of mediation and arbitration, the process of mediation- arbitration involves an attempt to first resolve a dispute by mediation. If that fails, the parties will proceed to arbitration. The parties may agree that the mediator may subsequently act as the arbitrator, although this may create a conflict of function. The parties may therefore provide that the mediator may do no more than give an advisory opinion, and then stand aside for another person to arbitrate.

 

With the establishment of the SIMC, the SIMC, together with the SIAC, introduced a new arbitration-mediation-arbitration process and accompanying model clause (available at www.siac.org.sg). This is a process where a dispute is first referred to arbitration before mediation is attempted. If parties are able to settle their dispute through mediation, their mediated settlement may be recorded as a consent award. The consent award is generally accepted as an arbitral award and, subject to any local legislation and/or requirements, is generally enforceable in approximately 150 countries under the New York Convention. If parties are unable to settle their dispute through mediation, they may continue with the arbitration proceedings.

 

Recent Developments in Dispute Resolution

 

Certain notable developments in dispute resolution are noted below:

 

(a) The Singapore High Court has released its Guidelines for Party- and-Party Costs Awards in the Supreme Court of Singapore, which provides an indication of the range of costs that the court is likely to award for various types of proceedings and applications. This will assist parties in their assessment of whether it would be worthwhile to proceed with particular interlocutory applications and proceedings.

(b) The Singapore High Court has made several pronouncements in relation to damages, namely:

 

(i) That substantial damages will not be awarded where the plaintiff adduces no evidence to support the amount of his claim, but the fact that damages cannot be assessed with certainty due to the nature of the damage and the circumstances giving rise to the damage does not mean that the wrongdoer does not have to pay damages.

(ii) Further, although economic torts such as the tort of conspiracy require proof of pecuniary loss, expenses incurred in investigating the conspiracy can be considered pecuniary loss. If evidence as to the amount of pecuniary loss is inadequate, compensatory damage may be awarded instead.

(iii) There may also be limited situations where unrecovered legal costs (beyond the costs awarded by the court) may be recovered as damages.

(iv) Aggravated damages may also be awarded for a conspiracy claim if a private individual has suffered mental anguish due to contumelious or exceptional conduct or motive but this would usually not exceed twice that of general damages.

(v) Although English law has recognized that punitive damages may be awarded in limited cases (i.e., where there has been oppressive action by government servants, wrongful conduct calculated to make a profit for the defendant exceeding the compensation payable to the plaintiff and where expressly authorized by statute) and this may tentatively represent the position in Singapore law,

there is good reason to abolish punitive damages in civil proceedings altogether. This is because:

 

a)  the law of restitution would arguably address the same issues that a court would consider in an award of punitive damages and

b)  due to its punitive nature, there is a question whether it is right for punitive damages to be awarded to a single individual, as opposed to being imposed and collected by the state (Li Siu Lun v. Looi Kok Poh [2015] SGHC 19).

(c) The Singapore Court of Appeal, for the first time, held that parties can agree to have a call on a performance bond restrained on any agreed ground, not limited to only fraud and unconscionability (CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd and Another and another appeal and another matter [2015] SGCA 24). 

 

 

For further information, please contact:

 

Wynn Pakdeejit, Partner,  Baker & McKenzie

milton.cheng@bakermckenzie.com