Debated in Parliament on 2 Oct 2018.
Order for Second Reading read.
Mr Speaker, on behalf of the Minister for Law, I beg to move, "That the Bill be now read a Second time."
Sir, the Supreme Court of Judicature (Amendment No 2) Bill introduces amendments to achieve two desired outcomes.
First, it seeks to streamline Court procedures to enhance efficiency, introduce flexibility in order to meet shifting trends and also accommodate the needs of individual cases.
Second, it empowers the Courts to better manage vexatious or tardy conduct in proceedings.
In the main, the amendments will allow the Courts to operate more effectively and efficiently, without compromising access to justice. This ensures that judicial resources are better allocated, and results in time and cost savings for litigants and lawyers alike.
I will now take the House through the key features of the Bill.
Technology has significantly changed the way we live and conduct our affairs. With the advancement of technology, we are able to accomplish tasks in a much faster and efficient manner. Similarly, if used meaningfully, technology has the ability to also make a positive impact on the way our Courts function.
Clause 2 of the Bill, therefore, provides that the Courts can conduct hearings via electronic means, such as live video link or live television link. Previously, apart from the provision of evidence by witnesses in civil proceedings, the law did not provide for the general conduct of hearings through electronic means. With this amendment, legal proceedings which do not require the physical presence of parties or their lawyers in Court can be conducted quickly and more efficiently via electronic means. This enhances the Court process and saves time.
The Bill also grants the Courts various powers so that they can swiftly dispose cases in the most appropriate manner.
Let me touch on a few of these provisions.
First, clause 6 of the Bill expands the range of cases that can be decided based on written submissions. At present, the Court of Appeal may decide any application for leave to appeal based on written submissions. Under this provision, it is now proposed that the Court of Appeal can determine (a) any application, and (b) in circumstances where parties consent, appeals from the Singapore International Commercial Court, based on written submissions.
The amendment only empowers the Court of Appeal to decide any application to it without hearing oral arguments. So, an application in contrast to substantive appeal. The scope of this amendment does not extend to cover other substantive appeals, except for those which emanate from the Singapore International Commercial Court (SICC) and, even then, in situations where parties agree.
Where the Court of Appeal is of the view that even with this power, oral arguments are necessary, it will continue to retain the power to, and will, in fact, hear such oral arguments before deciding the application or appeal.
Second, clause 7 empowers the Court of Appeal on its own motion to summarily dismiss certain matters in two situations.
First, where the Court lacks jurisdiction to hear and determine the appeal or application; or second, where there is no merit in the appeal or application because the issue has been decided by the Court of Appeal in an earlier matter in which the appellant or applicant was involved.
This clause allows unmeritorious appeals or applications to be dismissed without expending unnecessary judicial time and resources. However, safeguards are put in place to ensure that the interests of the appellant or applicant are adequately protected.
In this regard, before a Court can summarily dismiss an appeal or application, it must give the appellant or applicant a reasonable opportunity to show cause as to why the appeal or application should not be dismissed and consider the representations of the appellant or applicant.
Next, we are also proposing amendments in relation to the admission of further evidence on appeal.
At present, further evidence can be admitted, on appeal, without leave of Court: one, in relation to interlocutory applications; and two, where matters occurred subsequent to the date of the earlier decision.
In line with efficient judicial administration, parties should be encouraged to present all relevant evidence at the first instance hearing so that cases can be disposed fairly, efficiently and also comprehensively based on available evidence. This is, of course, with the exception of matters or evidence which occurred after the date of decision as parties would not obviously have known about it.
Therefore, in this vein, clause 9 of the Bill proposes that leave of Court would be required before an application can be made to admit further evidence on appeal, except for matters which occurred subsequent to the date of decision.
This means that parties who seek to admit further evidence on interlocutory applications will now require leave of Court in order to do so.
This will ensure that only meritorious applications to adduce further evidence will be allowed to proceed.
In the same vein, clause 8 introduces a new requirement for leave of Court to make an application to discharge or vary incidental directions or orders made by the Court under section 36 of the Act. This is in respect of directions or orders which are ancillary to the main appeal and are unlikely to touch on the substantive merits of the case. The requirement for leave of Court ensures that Court resources would be directed appropriately to deal only with meritorious applications to discharge or vary.
In deciding whether to grant leave or not for a party to vary or discharge a direction or order under section 36, the Court of Appeal will consider if such directions and orders are, in fact, ancillary to the appeal, or whether they go towards the merits of the appeal. Leave would be granted where it would be in the interest of justice to do so.
Next, the Bill also seeks to introduce flexibility and efficiency in the Court process to allow for cases to be heard expeditiously and also have regard to the various shifting trends that may rise.
In this regard, clauses 4 and 5 of the Bill introduce amendments to allow for matters relating to, firstly, the coram of the Court of Appeal, and secondly, as to which matters are non-appealable or only appealable with leave to the Court of Appeal, to be moved from the primary Act into the Fourth to Sixth Schedules.
As to the coram of the Court of Appeal, section 30(1) of the Act states that the civil jurisdiction of the Court of Appeal shall be exercised by three or any greater uneven number of Judges of Appeal. Section 30(2) sets out the types of matters which can be determined by a Court of Appeal consisting of two Judges of Appeal.
Clause 4 of the Bill will seek to introduce a new Sixth Schedule which would set out the number of judges that would be required to exercise the civil jurisdiction of the Court of Appeal for different matters, as specified in that Schedule. The Members can be assured that when the matters are moved into the Sixth Schedule, they will continue to reflect the current position that is based on section 30.
As regards appeals on certain matters, the current section 34(1) and the Fourth Schedule set out the matters which are non-appealable to the Court of Appeal, while section 34(2) and the Fifth Schedule set out the matters which are appealable only with leave to the Court of Appeal.
By clause 5 of the Bill, matters which are non-appealable will now be set out in the Fourth Schedule, and matters which are appealable only with leave will be set out in the Fifth Schedule. So, part of the amendments seeks to consolidate all the items into one Schedule rather than have them appear in parts of the Bill and in the existing Schedule. The only exception to this would be section 34(2)(a), which sets out the jurisdictional monetary limit and threshold. This, because it deals with the question of jurisdictional monetary limit, will remain in the primary Act.
These amendments allow for a quicker revision of each of the above categories as amendments of the primary legislation would require more time to effect rather than the amendment of the Schedule itself. Placing these matters in the Schedules, therefore, allows more flexibility and speed as they can be amended by the Minister, in consultation with the Chief Justice. The Schedules can be revised swiftly to ensure that an efficient allocation of judicial resources can be balanced against the volume of appeals, so that the Court of Appeal can handle deserving cases expeditiously.
Let me touch on two further amendments in relation to, firstly, the monetary threshold for appeals from the District and Magistrates’ Courts; and secondly, the Rules Committee being empowered to make rules relating to the manner in which evidence is to be adduced.
On the first point, clause 3 increases the monetary threshold to $60,000 for decisions of the District and Magistrates’ Courts which are appealable with leave to the High Court.
At present, as some Members may know, decisions of the District and Magistrates’ Courts are appealable to the High Court with leave if the amount in dispute does not exceed $50,000. However, the jurisdiction of the Magistrates’ Court is set at $60,000, which means that there are cases with claim values between $50,000 and $60,000 which would be appealable to the High Court without leave. The proposed amendment just seeks to ensure consistency and provides that there will be no automatic right of appeal for cases that fall within the $50,000 to $60,000 range.
As to the second point I raised earlier, clause 14 seeks to clarify that under section 80(2)(h), the Rules Committee is empowered to make rules relating to the manner in which factual, expert or opinion evidence is to be presented in Court.
I turn now to the next basket of amendments that deal with vexatious proceedings and tardy conduct in the legal proceedings.
Vexatious litigation is a drain on our Court resources. They draw away precious Court time from dealing with meritorious applications. The Court of Appeal has had the opportunity to define vexatious proceedings in recent case law, and these amendments do not seek to change that. Broadly, vexatious proceedings are those which are groundless and without merit. They may be initiated with the purpose of annoying or embarrassing the other party, and not for the purpose of having the Court decide on the issues.
Apart from wasting judicial resources, vexatious conduct, especially when instituted habitually and persistently, causes distress and annoyance to other parties to the proceedings as they are subject to a litany of baseless lawsuits and applications.
At present, section 74 of the Supreme Court of Judicature Act provides the only recourse against such vexatious litigants. If a party has habitually and persistently and without any reasonable grounds instituted vexatious legal proceedings in any Court, it is the Attorney-General who has to make an application to the Court to restrain such conduct.
And upon the making of such a successful application, the High Court may order that:
a) either no legal proceedings be instituted by that party without the leave of Court, and/or
b) any legal proceedings instituted by that party in any Court before the making of the order shall not be continued by him without leave.
This current approach is limited in two ways. First, the Court and the affected party have no power to act on their own to apply under section 74 regardless of the degree of vexatious conduct, the impact it may have had on the affected party, as the application must be made by the Attorney-General. Second, section 74 carries with it severe consequences and may not be proportionate to or properly calibrated to meet the mischief in question in all cases.
[Deputy Speaker (Mr Lim Biow Chuan) in the Chair]
To address these limitations, clause 10 of the Bill introduces a new power to allow the Courts to make three different types of civil restraint orders to address varying degrees of vexatious conduct. The three different types of orders are as follows.
Firstly, a limited civil restraint order. This order may be made against a party who has made two or more applications that are totally without merit. The party will be restrained from making further applications in the particular proceedings in which the order is made, without leave of Court.
Secondly, an extended civil restraint order. This order may be made against a party who has persistently commenced actions or made applications that are totally without merit. The party will be restrained from commencing any action or making any application concerning any matter involving, relating to, touching upon or leading to the proceedings in which the order is made, without leave of Court for a period not exceeding two years.
Finally, a general civil restraint order. Such an order may be made against a party who has persisted in commencing action or making applications that are totally without merit, and in circumstances where an extended civil restraint order would not be sufficient or appropriate. The party will be restrained from commencing any action or making any application in any Court specified in the order, without leave of Court for a period not exceeding two years.
This gradated approach gives more nuance in managing vexatious litigants, taking into account the specific facts of each case.
The Court will also be empowered to stay the vexatious proceedings and order that no further documents be filed by a party if the filing of documents would be vexatious or otherwise for an improper purpose.
Under the proposed amendments, the High Court or Court of Appeal may make these orders: (a) on its own motion, which it presently cannot do; (b) on an application by a party, again, which it presently cannot do; or (c) on an application by the Attorney-General, which is the current position envisaged under section 74. Before an order is made against a party, that party will be given an opportunity to be heard by the Court.
In relation to proceedings before a lower Court, a party or the Attorney-General may make an application to the High Court for one of the abovementioned orders, so to the extent that this may appear in the district Courts or the magistrate's Courts, an application is made to the High Court. This power ensures that the High Court can also make the necessary orders to address vexatious proceedings occurring before a lower Court. It is more appropriate for the High Court to make such orders, instead of the lower Court, because the impact of such orders is potentially far-reaching and restrains a party’s ability to conduct legal proceedings.
The party against whom an order is made may bring an appeal to the Court of Appeal with the leave of the High Court or the Court of Appeal. Similarly, clause 11 amends the existing section 74 such that a person against whom an order is made under that section may appeal against the order with the leave of the High Court or the Court of Appeal.
These new powers were drawn from best practices in the United Kingdom (UK) and Canada. In moving from a single touchpoint for vexatious proceedings under section 74 to a gradated approach, Courts are now better equipped to manage varying degrees of vexatious conduct. This accords with notions of fairness and also proportionality as litigants are restrained to different extents based on the severity of their vexatious conduct, instead of a one-size-fits-all approach under the current section 74.
Finally, I would like to touch on some revisions on the imposition of late filing fees for non-compliance with the Rules of Court.
In addition to the powers to manage vexatious proceedings, clause 16 of the Bill also ensures the efficient disposal of cases by allowing the Courts to impose late filing fees for non-compliance with the Rules of Court, Court orders or directions and practice directions. Currently, there are no automatic sanctions against the late filing of documents, and this tends to delay legal proceedings.
These late filing fees seek to encourage parties and their lawyers to comply with the Rules of Court, Court orders and practice directions in relation to the filing of documents so that legal proceedings can be conducted and completed in a timely manner.
Sir, in summary, these amendments are part of our continuing efforts to improve civil procedure in Court proceedings in Singapore. This is an ongoing and worthy endeavour, for it has often been said, and in my view, correctly, that procedure is the handmaid of justice. By enhancing our Court processes, and strengthening Court procedures, while at the same time ensuring that the interests of litigants are safeguarded, these amendments will enable the Courts to continue to fulfil their mission of providing a just, efficient and effective avenue for all its users. Sir, I beg to move.
Question proposed.
Mr Deputy Speaker: Mr Christopher de Souza.
Sir, the judiciary is an important institution. It helps to uphold the rule of law and plays an important part in the administration of justice. Its importance and function in society do not diminish over time. But how it operates may need to adapt with the times. For example, technology has been utilised by the Court to more efficiently and effectively manage cases. Launched in 2013, the eLitigation system gave a better overview of the case compared to the previous Electronic Filing System, which was more document-centric. In the same vein, clauses 2 and 19 of this Bill enables the Court of Appeal and the High Court to conduct hearings via live video technology.
This Bill is important as it provides the necessary adaptations and tools to ensure that judicial resources are used judiciously in a manner that can best uphold rule of law and administration of justice in an effective and meaningful manner.
In civil cases, property rights, livelihood and day-to-day provision may be at stake. Often, pending Court proceedings and unsettled disputes are disruptive to the individuals and businesses involved. Timeliness of a just outcome is, therefore, imperative. While a case is pending, landscapes of different industry sectors may change quickly, swiftly with commercial opportunities being lost or forgone.
At this juncture, Sir, allow me to declare that I am a practising lawyer.
There are three main areas of the Bill that I want to touch on. A common thread seems to be ensuring judicial resources are used judiciously while ensuring that parties’ substantive rights are protected.
The first is with regard to vexatious litigants. Clauses 10 and 11 introduce a greater range of tools to vexatious litigation. This is to restrain a vexatious litigant from bringing spurious claims or applications that might clog the judicial process and hinder the effective administration of justice. While better calibration is a good objective, would there be more disputes over the fine distinctions each order in the regime requires? For instance, the distinction between general and limited civil restraint order is that the general restraint order is limited to when the limited restraint order would not be sufficient or appropriate. Another question I have is whether it was intended to set out a new and different test of “totally without merit”? The original test of “without any reasonable ground” has been retained in section 74. If so, would the Senior Minister of State elaborate on the difference between, if any, and the objectives of the two tests?
The second area is development on the number of judges to constitute a coram under certain circumstances. This is provided through clause 4 and the new Sixth Schedule in clause 18. For instance, a single judge is necessary for a consent judgment, a judgment which the parties have agreed on. As this list is being placed into a Schedule, I would like to ask the Senior Minister of State what are some considerations that may be taken into account when this Schedule is amended, for example, what kind of trends, if any, will be considered and what factors will go into the decision regarding what level of judicial involvement, or what amount of judicial resources, are required?
The third area, Sir, is on appeals. The appeals process, according to Prof Pinsler in Principles of Civil Procedure, “ensures the integrity and correctness of judicial decision-making, preserves the certainty of the law through judicial precedent, develops jurisprudence and maintains public confidence in the administration of justice.” Therefore, the appellate function of the Court of Appeal is very important, and the amendments in this Bill must strengthen rather than reduce the Court of Appeal's ability to discharge its appellate function in an effective manner.
Clause 9 restricts new evidence that may be tendered on appeal. It requires all new evidence regarding things that happened before the trial to pass the stringent special grounds test. In particular, the distinction between interlocutory appeals and judgments is removed and seems to restrict the judge’s discretion to admit additional evidence. Therefore, would the good Senior Minister of State explain the rationale behind such an amendment?
According to clause 6, the Court of Appeal may decide an appeal from the SICC without an oral hearing only upon the consent of every party. Would the Senior Minister of State kindly elaborate on the rationale behind this?
Lastly, the Fourth and Fifth Schedules introduce more flexibility into what cases are non-appealable and appealable only with the leave of Court. The press release states that this amendment is to “allow the list of matters specified in the Schedule to be amended quickly to adapt to demands on the ground.” Previously, the rationale as embedded and enunciated by the Court of Appeal in Open Net Pte Ltd vs the Info-communications Development Authority of Singapore is as follows:
"The purpose underlying the Supreme Court of Judicature Act (SCJA) regarding the right to appeal is that an appeal to the Court of Appeal will generally be as of right for orders made at interlocutory applications which have the effect of finally disposing of the substantive rights of the parties; while an appeal to the Court of Appeal will ordinarily be denied for orders made at interlocutory applications which do not finally dispose of the substantive rights of the parties, and which are deemed to involve established principles of law. The middle category which consists of orders made at interlocutory applications which lie in the middle of these two extreme situations may be appealed to the Court of Appeal only with leave of Court."
In light of this, I would like to ask the Senior Minister of State whether the rationale behind the categorisations has changed.
Sir, new times may call for new methods but not necessarily new principles. The amendments in this Bill are important as they provide the flexibility and tools for the administration of justice to adapt with the times, not to dilute the administration of justice but to ensure the processes remain efficient and effective. I believe, on the whole, the Bill does that, and therefore, I support it.
Mr Deputy Speaker: Mr Louis Ng.
Sir, I stand in support of this Bill, which updates our civil procedure framework. In particular, I welcome the clarification that the Court may hear matters through live video or television link.
This aligns the legislative framework with the tools already at the disposal of Court users, such as the Technology Courts, and Mobile Technology Facility Services for use in non-technology Courtrooms and hearing chambers.
The Bill also proposes a number of other amendments, which have been perceived by some members of the public as imposing limits on a litigant's right to be heard.
These amendments include requiring leave of Court before an application can be made to admit further evidence on appeal, allowing the Court of Appeal to determine a broader range of matters based on written submission, and allowing the Court of Appeal to summarily dismiss appeals or applications on its own motions.
While each amendment may be unremarkable on its own, the collective effect of all these amendments is to significantly encroach on the various aspects of the right to be heard.
The right to be heard is a fundamental rule of natural justice. We should be cautious when imposing any limits on that right. As such, I will be seeking clarifications on two matters.
First, the Minister's power to determine which civil matters may or may not be appealed to the Court of Appeal.
Second, the range of restraint orders that a Court may now grant for vexatious proceedings.
The rationale for imposing these limits and the scope of their application should be clear so that litigants do not feel deprived of their right to be heard. Justice must both be done and be seen to be done.
Sir, section 34 will be amended to allow the Minister to specify in the Fourth and Fifth Schedules which civil matter may or may not be brought on appeal to the Court of Appeal.
The amendment moves the determination of appealable civil matters further from Parliamentary scrutiny.
Changes to the Schedule can be decided by the Minister in consultation with the Chief Justice, as the Senior Minister of State has mentioned in his speech, without needing to be passed through Parliament. In its response to the public consultation conducted, the Ministry noted that there is sufficient accountability since the Minister is answerable to Parliament.
The rationale of moving the list of appealable and non-appealable civil matters from the main body of the text of the Act to the Schedule is to provide flexibility for amendments. However, this decision is a significant one that involves curtailing parties' rights of appeal, as was noted by respondents to the public consultation. Whether a civil matter should be appealable is a decision that warrants further deliberation and debate.
The amendment suggests that the need for flexibility outweighs the value of deliberation. Could the Senior Minister of State elaborate further on why the list of appealable and non-appealable civil matters might need to be amended so urgently that it justifies moving the decision out of Parliament's oversight?
Next, sections 73A to 73D are significant new additions to the SCJA which grants the Court more tools to restrain unmeritorious and vexatious proceedings and litigants. The new order that the Court may grant are intended to introduce a more nuanced approach to restrain a vexatious litigant. However, I am concerned that the expanded powers may have the converse effect of leading to the Courts being more willing to resort to restraint orders.
The new section 73C provides for an extended civil restraint order which restraints an individual from commencing an action or making an application which concerns any matter "involving, relating to, touching upon or leading to" the legal proceedings at hand. These are incredibly broad terms. Can the Minister elaborate on the factors that the Court should consider in determining whether a new action or application falls under an extended civil restraint order?
The wording of "involving, relating to, touching upon or leading to" in section 73C is taken from paragraphs 3.2 and 3.3 of the Practice Directions 3C of the UK’s Civil Procedure Rules. Is the scope of the language under the new section 73C intended to be identical to the interpretation the UK courts have taken of extended civil restraint orders under their Civil Procedure Rules?
The new section 73D(1) provides that the Court may make a general civil restraint order where an extended civil restraint order "would not be sufficient or appropriate". Can the Senior Minister of State elaborate further on what factors the Court should consider in determining whether an extended civil restraint order is sufficient or appropriate? Can the Minister also provide some examples of when an extended civil restraint order would be deemed insufficient or inappropriate?
Next, sections 73B(5), 73C(6) and 73D(6) allow a party subject to a restraint order to appeal where the High Court refuses to grant leave to commence an action or make an application. However, this right of appeal is in relation to the new application or action after a restraint order has already been made. Does the party have a right of appeal against the granting of the restraint order in the first place?
Under the UK’s Civil Procedure Rules relating to civil restraint orders, an application for permission to commence an action or make an application may be determined without a hearing. Can the Senior Minister of State clarify whether a hearing is necessary where a party applies for leave of Court to commence an action or make an application?
Under sections 73C(5) and 73D(5), the Court may extend the period for which an extended or general civil restraint order remains in effect if it considers it appropriate to do so. Can the Senior Minister of State clarify whether the Court has the power to do so on its own initiative or whether an application from a party is required? Can the Senior Minister of State also elaborate on the circumstances or factors to be considered in determining whether an extension is appropriate?
Sir, I appreciate that these amendments are intended to allow the Court to tailor procedures to meet the needs of individual cases. Nonetheless, flexibility should be exercised in a principled manner that respects the individual's right to be heard. I hope the Senior Minister of State will be able to clarify the above matters and provide litigants with greater clarity on when the provisions may or may not apply.
Notwithstanding the above concerns and clarifications requested, I do stand in support of the Bill.
Mr Deputy Speaker: Mr Murali Pillai.
Mr Deputy Speaker, Sir, I declare my interest as a lawyer whose primary practice is in litigation. I support the purpose behind the Bill, which is primarily to enhance the efficiency of the administration of justice whilst ensuring the litigants' legitimate interests are taken care of as well.
I have four queries on the Bill.
The first is in relation to the application to adduce fresh evidence on appeal. The proposed section 30 read with the 6th Schedule allows a Judge of Appeal sitting as the Court of Appeal to decide on an application to adduce fresh evidence in proceedings before the Court of Appeal. Now, by way of a comparison, in relation to an application for extension of time to file a Notice of Appeal, a two-judge panel will hear the matter.
The proposed section 36(3) of the SCJA provides that a full Court of Appeal can discharge the order. However, the application to discharge or vary the order made by a Judge of Appeal can only be done with leave in the first place by the Judge of Appeal. An order of a Judge of Appeal sitting alone refusing leave to adduce fresh evidence is final.
Given that the issue of whether or not to adduce fresh evidence can potentially have a bearing on the appeal, may I please ask what is the rationale of putting this issue before a one-judge Court of Appeal? My concern is that we may have a situation where a Judge of Appeal, at first instance, refuses to give leave, and he then entrenches his decision by refusing to give leave for an application to discharge before a full Court of Appeal. Then, we would not have the possibility, however remote it may be, that a Judge of Appeal may get it wrong, and then there is no avenue to revisit his Honour's decision.
Next, I ask about the policy of vesting amending powers with the Minister, as compared to the President.
As Members of this House will appreciate, our Government follows the Westminster model and the judiciary is a separate pillar of the Government. The proposed section 83(1) of the SCJA vests with the Minister the powers to amend the Third, Fourth, Fifth and Sixth Schedule via the Gazette after consulting the Chief Justice. This compares differently from section 34(3) where it is provided that the President may, after consulting the Chief Justice, amend the Court jurisdictional money limits, again, via the Gazette.
May I please ask what is the legal policy in deciding whether the Minister or the President is involved in exercising these amendment powers via the Gazette? My respectful opinion is that the good thing about using the Minister is that the Minister is ultimately accountable to Parliament, and that I believe is a point that the hon Member Mr Louis Ng made earlier.
Next, on the provisions allowing the Court of Appeal to decide via documents without the need for oral hearing.
I note that section 34A(2) deals with appeals from the SICC. May I please ask for a clarification dealing with documents-only appeals also extend to other divisions of the High Court?
And in relation specifically to the SICC, I note that it is provided that the documents-only appeal may be conducted when SICC issues an order for the same. May I please ask what are the circumstances in which the SICC would issue an order pertaining to whether or not an appeal should be heard by the Court of Appeal on a documents-only basis?
At first glance, in the absence of a consent order, it is rather strange for a division of the High Court to suggest to the Court of Appeal how it should conduct its proceedings in exercise of its appellate jurisdiction.
Next, I move on to the measures for dealing with unmeritorious or vexatious proceedings.
I note that the proposed sections 73A to 73D are in addition to the existing section 74. The learned Senior Minister of State mentioned about the limitation of the existing section 74. He pointed out that section 74 may only be invoked through the application of the Attorney-General. I, however, note that the Attorney-General can also be an applying party under the provisions that will be introduced. May I please ask what will then be the interplay between sections 73A to D on one hand, and section 74 on the other hand, where the Attorney-General is involved in both?
The significant difference is that under section 74(2) of SCJA, the High Court has powers to assign a lawyer to the party who cannot afford to pay for a lawyer. This provision is not there in relation to the new section 73A to D. So, may I please ask why the same is not provided, given that the Attorney-General could be an applying party for either of these provisions? The equality of arms issue is a real one.
Finally, on the meaning of "legal proceedings" under section 73A(10) as compared to the existing section 74(5), I note that under the proposed section 73A(10), the definition of legal proceedings excludes criminal matters. That is not the case in relation to section 74(5) of SCJA. May I please ask why criminal matters are excluded?
In practice, we sometimes see vexatious litigants commencing private prosecution which are criminal in nature. The public prosecutor can intervene for each particular proceeding. But it may be useful to consider a situation where the powers contemplated under section 73A to D are extended to criminal proceedings, so that there could be a general restraint as the case may deserve. Notwithstanding my comments, I support the Bill.
This sounds like legal submissions. Senior Minister for State Mr Edwin Tong.
Mr Deputy Speaker, Sir, I thank the Members for the comments and the wide-ranging number of suggestions and queries that have been raised. I will do my best to respond to them, also in the framework of the two broad baskets of revisions that have been introduced in this Bill.
Let me start with queries on clause 5 of the Bill. As Mr Louis Ng and Mr Murali Pillai and I think also Mr Christopher de Souza have noted, it shifts matters which are non-appealable in section 34(1) to the Fourth Schedule, and those which are appealable with leave from section 34(2) to the Fifth Schedule. Mr Louis Ng, in particular, sought query on why that was being proposed.
First, the amendments, as I said earlier, seek to consolidate all of these into one place. At present, you can find matters which are referred to, or necessary for leave to appeal, in the main body of the statute and also in the Schedule. And, likewise, for the matters which are non-appealable, also appearing in both places.
So, the first objective of these amendments is to put them all into one location, so that the Schedule itself, the Fourth and the Fifth, will house all the matters for which it is either non-appealable or appealable only with leave.
Second, moving them into the Schedules does allow for more flexibility and speed. As the Members will know, it takes more time to amend the primary legislation than it will be to change the Schedules. The Schedules will be revisited from time to time, and added to or removed from, by the Minister, in consultation with the Chief Justice. So, it is not just the Minister alone who will decide on what goes in, what comes out, of the Schedules.
Mr Louis Ng did raise a concern as to whether the Schedules will remove the items going in or coming out from Parliament's oversight. The Minister, ultimately, is accountable in Parliament to all Members, and this would apply to the decisions as regards what goes in or comes out of the Schedule. To the extent that there are any issues to be raised on this, Parliament can be the forum for this to be raised.
On a related note, Mr Christopher de Souza did question as to whether there is a change in the policy rationale as to how a matter or the basis on which a matter is classified as non-appealable or appealable only with leave, within the SCJA framework. I thank Mr de Souza for allowing me to clarify that the policy rationale in deciding whether a matter is classified as one or the other – non-appealable or only with leave – has not changed. Matters are and will continue to be carefully differentiated based on their importance to the substantive outcome and also, quite importantly, balanced against the appropriate allocation of judicial resources to deal with those matters.
Mr Murali Pillai queried why the power to amend the Schedules is vested in the Minister, but the power to amend the monetary limit under section 34(2)(a) is not. The reason, I referred to it in my original speech, is because it is consistent with sections 30 and 53(2) respectively of the State Courts Act, where it is the President who has the power to amend the monetary limits for the District Court and the Magistrates' Court, after consulting the Chief Justice. So, to that extent, that remains the province of the President and it finds its place in the main body of the statute, whereas the cases which go into the Schedules can be decided upon by the Minister in consultation with the Chief Justice.
I turn now to clause 4 of the Bill which introduces the new Schedule, the Sixth Schedule, which sets out the coram of the Court of Appeal when exercising civil jurisdiction in matters. Mr Christopher de Souza asked what considerations may be taken into account when deciding on the Schedule. The key considerations would be the appropriate amount of judicial resources which should be expended on a particular class of matter, obviously issues as to the complexity and the novelty of the matters raised will remain high on the list of priority. In fact, as Mr de Souza knows, the Courts already consider complexity and novelty in deciding when to constitute a coram of three or five judges in a Court of Appeal as the case may be, for both civil and criminal appeals. For instance, a coram consisting of three Judges of Appeal would generally not be necessary to deal with matters incidental to determining the merits of the application or the primary application. So, for example, applications which have bearing on seeking security for costs or applying to discharge solicitors, those do not need the full coram of three.
I turn now to deal with the question of further evidence in proceedings and I think all three Members touched on this. Mr Christopher de Souza, in particular, asked about the rationale as to why leave will now be required to admit further evidence. I would like to inform the Members that these revisions deal with the admission of new evidence, in relation to interlocutory matters. So, bear that in mind as you understand the concept and the construct on why these rules apply in this way.
Most parties, I think Members would agree, would have the opportunity of raising all the evidence. We have our hearings now conducted first with extensive exchange of cases in writing and then the submissions by the skeletals as well just before the hearing. So, several written opportunities would be afforded to the parties already before the hearing itself. To that extent, the parties are encouraged, and I think quite rightly so, given the limited resources we have for hearing time, to ensure that all the available evidence would be before the Courts, before the hearing itself.
And so, to that extent, when one is seeking to include further evidence in the appeal where that evidence was otherwise available to the party before the lower Court hearing, one has to be very circumspect about it and, in those situations, further evidence will only be allowed if leave is granted.
This is in contradistinction to those cases where, subsequent to the hearing itself, new matters develop and, in those situations, I think it is reasonable to assume that if they have a bearing on the outcome of the appeal, satisfying the usual test for admission of evidence, then the evidence would be allowed. I would stress that this process strikes a proper balance between the right of the parties to rely on and adduce further evidence, and also the appropriate use of judicial and Court time in dealing with these matters.
Next, I turn to dealing with matters that can be disposed of based on written submissions. Both Mr Christopher de Souza and Mr Murali Pillai touched on this question, and asked questions as to why section 34A(2), which allows the Court of Appeal to decide matters based on written submissions, is only restricted to appeals from SICC. Mr Murali Pillai further pointed out that section 34A(1) already provides that the Court of Appeal has the power to decide on matters without hearing oral arguments.
Let me first clarify that section 34A(1) only empowers the Court of Appeal to decide any application to it without hearing oral arguments. The scope of this provision applies to potential applications which are ancillary to the main appeal. So, as I said in my opening speech earlier, they deal with applications, not the main substantive appeal itself. An example of such an "application" would be, going back to my earlier point, security for costs or applying to amend a part of the case, or trying to deal with the potential cost of the hearing. So, those are matters that are ancillary to, but not the main appeal.
As a general principle nonetheless, where oral arguments are otherwise useful to elucidate the issues and to facilitate a just and expeditious disposal of an appeal before the Court of Appeal, those will still take place.
That said, Mr Murali Pillai raised the question of SICC. SICC is set up to hear international and commercial matters which involve parties with no substantial connection to Singapore. Given that such matters may involve international parties or foreign registered lawyers, the parties may wish, on their own accord, to save time by obviating the need for the oral hearing to take place in Singapore. Further, any international judges on the coram would also not be required to travel to Singapore for that oral hearing.
Such a flexibility makes SICC a more attractive option for international parties to settle their disputes and also adds to the already existing suite of party-centric innovations, such as allowing foreign counsel to submit directly on foreign law without it having to be proven through expert evidence.
To ensure that this option is only exercised in cases where the parties consent, section 34A(2) provides that appeals from any judgments or order of the SICC can be decided without hearing oral arguments only if every party to the appeal agrees. In other words, the choice is made by the parties themselves, and not, as I think Mr Murali Pillai suggested, by the SICC, which yes, remains as a division of the High Court.
I turn now to the next basket of amendments which deal with controlling vexatious conduct. I would preface my response by reminding Members that the power to control vexatious conduct is already present. What is being sought to be introduced in these amendments are broadly two things: one, a gradated approach so that it is not a "one-size-fits-all" approach in section 74 of the SCJA as it is presently so; and second, it is to allow for parties, aside from the Attorney-General, to also make their application.
Clause 10 of the Bill introduces the new civil restraint orders. They are meant, in the first instance, to be used in situations where the litigants have persistently initiated proceedings that are groundless and without merit. So, the litigant has to do it more than once, multiple times, at least twice in the case of the first rung or the lowest grade of the orders, and also without merit. These are done often with the purpose of annoying or embarrassing the other party.
I wish to inform Members that the litigants who are held to be "vexatious litigants" by our Courts have so far been far and few, thankfully. In 2017, only four orders were made under section 74 of SCJA. To date, no such orders have been made in 2018. The policy intention behind these amendments is, as I mentioned earlier, to allow the Courts to have, and to be able to take, a more nuanced approach in terms of the orders that they make in managing the different levels of culpability of the vexatious litigants. And this allows the judges to have more regard to the individual circumstances of each case and to make those distinctions.
Second, in terms of how and when these orders are to be applied, it will be for the Courts to carefully consider all the facts and circumstances of each case before exercising their discretion on whether to do so or not. While I will clarify the ambit of each of these restraint orders shortly, the jurisprudence in this area must ultimately be left to be developed through the exercise of principled discretion by our judges, based on the actual facts and the context before them. Members would wish to note that this is also the position in the UK.
With these in mind, let me address the concerns raised by Members, which, as I have heard, broadly falls into three categories. First, the definition and applicability of each of the civil restraint orders; second, the procedural details subsequent to the grant of a civil restraint order; and third, the interaction and, as Mr Murali Pillai puts it, the interplay between the civil restraint orders and section 74 of SCJA.
Let me start by addressing Mr Christopher de Souza's concern that more disputes might arise because of the distinctions that are drawn in the three types of civil restraint orders. First, I wish to emphasise that each of the three types of civil restraint orders requires a distinct threshold to be met before they can be considered.
While some cases may inevitably throw out a factual matrix where the type of order to issue is not so clear-cut and not so cut and dry, I would say that the Courts would be well-placed to apply the letter and intent of the law to these new and potentially multifarious situations. And they would do so having regard to the issue at hand, to the party in question and to the conduct in question as well in each individual case.
It may be helpful to consider that these restraint orders have, in fact, been applied in jurisdictions like the UK, like I mentioned, and as far as we can tell, they have not faced issues with regard to the way in which one might distinguish the type of orders. The factors I believe are clear, and they have been considered in previous cases also in the UK. And our Courts will no doubt take reference too, although it will not be strictly bound by these cases, when they have regard to these applications with the specific facts before them in question.
Mr Louis Ng asked what factors the Court would consider when deciding whether an extended civil restraint order is sufficient or appropriate, given that a general civil restraint order will be issued if an extended civil restraint order would not be sufficient or appropriate. To answer Mr Louis Ng's query, one scenario in which the general civil restraint order would be imposed would be where, for example, a vexatious litigant adopts a "blunderbuss approach" to litigation. He may bring in a slew of grievances against different parties, within a short period of time, without focusing on a particular single grievance. The language that I have just quoted is from a UK decision applying their equivalent of the statute.
This, I believe, gives the Court an ability to appreciate, in a particular case, the number of cases that are filed, the number of times the Court has faced with applications by this litigant, the period of time within which it is done. So, for instance if you file five cases over 10 years, it is quite different from five cases over two months. So, the Court is able to appreciate that better in the context of the case. The Court would also look at whether it is widespread, whether it is indiscriminate and whether one raises a series of allegations which have, basically, no legal merit. Another example is if the litigant just takes an approach that seeks to sully the name of a potential party with no reasonable legal basis. So, all that comes into play and comes into the mix. And the flexibility of this approach allows the Court to attenuate its response based on the facts of the instant case before it.
Next, I would like to touch on the scope of the extended civil restraint orders under the new section 73C, a point that Mr Louis Ng raised, the question of the scope of the language under the new section 73C and whether it is intended to be identical to the interpretation the UK courts have taken under their Civil Procedure Rules, and the factors that the Court should consider in determining whether a new action or application falls under the extended civil restraint order. When construing the new section 73C, the position adopted by the UK courts may be persuasive, but our Courts are obviously not bound to follow their interpretation. Different considerations in different jurisdictions will obviously dictate differences in the approach.
Let me turn now to questions on procedure subsequent to the grant of a civil restraint order.
Mr Louis Ng asked if the Courts can extend the period for which an extended or general civil restraint order remains in effect on its own motion or if an application from a party is required.
The Court may exercise its power to extend the period for which an extended or general civil restraint order remains in effect on its own motion, or on the application of the Attorney-General or a party to the proceedings. On whether such extension is appropriate, the UK courts have considered whether there is sufficient evidence to demonstrate that there was reasonable apprehension of future vexatious conduct following the expiry of the original extended or general civil restraint order. And there is an authority on this if Members are interested, that is, Ashcroft vs Webster, which is a 2017 decision. So, one of the factors which the court will look at and have regard to in the UK would be the conduct of the party against whom the orders were made, subsequent to the making of the order.
Mr Louis Ng also asked whether a party will have a right of appeal against the grant of a civil restraint order. Under section 73A(9), a party against whom a civil restraint order is made may bring an appeal to the Court of Appeal with the leave of the High Court or the Court of Appeal.
Finally, Mr Louis Ng asked if a hearing is necessary where a party restrained under a civil restraint order applies for leave of Court to commence an action or make an application. The answer is yes, it would be. Where appropriate, the Court of Appeal, as you heard earlier, would be entitled to hear this also on paper. But it takes into account the gravity of the issue, the nuances in terms of the complexity and the novelty of the matter and then decide whether it will be assisted by oral hearing. All of these factors would come in to bear.
I now move on to Mr Murali Pillai's questions on the interplay between the civil restraint orders and section 74, and whether there remains a useful role for section 74.
The new civil restraint orders seek to complement, but not replace, the current powers conferred on the Courts by section 74. Section 74 does provide for a suite of measures to deal with vexatious litigants and allows the Court to have the flexibility of calibrating its response to the unique challenges posed by a particular case. Furthermore, unlike the new civil restraint orders, section 74 is not limited to civil proceedings. So, it also applies to criminal proceedings which the provisions in the SCJA Bill do not do.
Mr Murali Pillai also asked about the reason for not extending the application of the new civil restraint orders to criminal proceedings, in particular, private prosecutions instituted by vexatious litigants.
At present, we do not see a need to extend the operation of such civil restraint orders to criminal proceedings, given that, as I said earlier, the presence of section 74 which can be used. Notably, civil restraint orders are adopted from the UK, which only applies these orders to civil proceedings. If, however, circumstances change, and there is a proliferation of similar issues in the criminal proceedings space, then that matter can be revisited.
As for the issue of private prosecutions raised by Mr Murali Pillai, the control of these proceedings, ultimately, lies with the Public Prosecutor as well and the Public Prosecutor can intervene at any stage of the proceedings, as Mr Murali Pillai correctly pointed out. In fact, under section 13 of the Criminal Procedure Code (CPC), the Public Prosecutor has the power to discontinue the private prosecution. So, to that extent, the power remains vested with the Public Prosecutor. And if it is vexatious and if there is otherwise any issue which causes concern to the Public Prosecutor, then those powers under section 13 of the CPC can be exercised. The concern, therefore, about any potential abuse by vexatious litigants who initiate private prosecutions can be adequately addressed by or within the existing criminal procedure framework.
Mr Murali Pillai also raised several other questions. First, in relation to the assignment of advocate and solicitor, and he asked why the new provisions relating to the civil restraint orders do not provide that the High Court shall assign an advocate and solicitor to the party against whom such an order is sought, unlike section 74. As I said, section 74 now remains in its place to deal with the most severe of cases which attract the most severe of restrictions and it also deals with criminal proceedings. A section 74 order is in force indefinitely while a general civil restraint order, which is the most severe of the three types of orders that we now have, is in force for a maximum of two years. A general civil restraint order can be extended, but only for a maximum period of two years at any given occasion.
Further, as I mentioned earlier, section 74 continues to apply to criminal proceedings and an order under section 74 has more severe consequences in such a scenario as it can potentially affect a person's life and liberty. Therefore, having regard to all these factors, it is more appropriate to ensure that legal representation is mandated in such cases. That is why section 74 provides for that. Nonetheless, legal aid and the other pro bono assistance will continue, subject to the usual requirements; they will remain available for all parties who require but are not able to afford legal representation.
I turn now to Mr Christopher de Souza's observation that the test under the civil restraint orders is "totally without merit" while the test under section 74 is "without any reasonable ground". And I think Mr de Souza sought elaboration on the differences between the two tests and the objectives.
Broadly speaking, the policy underpinning both provisions would be similar: to prevent abuse of Court processes and allow the Courts to strike a balance between giving effect to the rights of a litigant to have access to the Courts while protecting, on the other hand, the Courts and the counterparty from being inundated with the unmeritorious litigation to the detriment of other parties and also to the detriment of the efficient allocation and usage of Court resources.
I note that it is also the case in the UK that the "totally without merit" phrase or requirement is used for civil restraint orders, whilst the "without any reasonable ground" requirement is used for the equivalent provision to our section 74. So, we borrowed from that provision and we retained this distinction. This does not appear to have caused the UK courts any difficulty. But obviously, we will continue to watch this space as well.
In conclusion, Mr Deputy Speaker, the amendments in the Bill seek to tailor our Court procedures to allow our Courts to function more effectively, more efficiently and also empower them to respond better to vexatious conduct as they see it occur in the context of proceedings. The modifications to Court procedures will improve the Courts' management of their caseload, which will go some way towards ensuring that parties resolve their disputes expeditiously, and that is also in line with enhancing the interests of justice. By arming the Courts with a suite of measures to respond to litigants who, having had their day in Court, abuse the right to be heard by pursuing vexatious proceedings, the Courts will be able to husband their finite resources better and channel them to where they are most needed.
There is no doubt that the improvement of Court procedures is and remains work-in-progress. As time goes by, we can expect to see further developments, such as in information technology and the like, which disrupt the way things are done today. Going forward, we will review the impact of the present amendments, continue to work with Members to consider if further improvements ought to be made. And, in doing so, we will also study the best practices of similar jurisdictions overseas to ascertain what best practices can be and should be imported into Singapore. Mr Deputy Speaker, on that note, I beg to move.
*Question put, and agreed to.*
*Bill accordingly read a Second time and committed to a Committee of the whole House.*
*The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai.]*
*Bill considered in Committee; reported without amendment; read a Third time and passed.*
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