The objectives of the new Rules are to modernise the litigation process, by ensuring fair access to justice, enhancing the efficiency and speed of adjudication, keeping legal costs reasonable and delivering practical outcomes for litigants.
In this article, we highlight the key changes to the civil litigation process introduced under ROC 2021, and their implications on parties to a dispute.
The ROC 2021 simplifies court terminology to make the civil litigation process more accessible and easily understandable by the public. Key changes to terms that are made include those relating to originating processes: “writ of summons” and “originating summons” will respectively be known as “originating claim” and “originating application”. In addition, “pre-trial conferences” will thereby be known as “case conferences”, and Latin terms (e.g. “ex parte”) are replaced with English expressions (e.g. “without notice”).
A. Single Application Pending Trial
Before a dispute goes to trial, the parties involved may apply to obtain various orders from the Court. These applications are known as interlocutory applications. Parties may file interlocutory applications for an array of purposes, such as seeking early termination of the litigation process, compelling the disclosure of evidence, or preserving their rights before a case is heard.
Prior to ROC 2021, interlocutory applications are made in a stepwise manner by parties. As each application involves a separate hearing by the Court, this prolongs the time taken before a case is ready for trial and increases costs for the parties.
The ROC 2021 consolidates numerous interlocutory applications that parties intend to take out into a single application pending trial (“SAPT”). The SAPT subsumes applications in relation to pleadings and evidence, as well as those for the addition or removal of parties, consolidation of actions, security for costs, interim relief and partial striking out of an action or defence (O. 9 r. 9(4)). This new system seeks to enable the Court to ascertain early on what applications the parties wish to seek, and allow parties to provide a single affidavit for multiple applications in one go.
Broadly speaking, the SAPT serves to preclude parties from taking out applications at any time during the litigation process, unless they receive the Court’s permission to do so. Nonetheless, certain applications that are not included under the SAPT are exempted from this rule. These include applications for default or summary judgment, stay of action or enforcement, injunctions and the full striking out of an action or defence (O. 9 r. 9(7)). Notwithstanding these exceptions, no application may be taken out within 14 days before the commencement of the trial, up until the Court has determined the merits of the case.
B. AEIC before producing documents
Under the old rules, documents are exchanged between parties after pleadings have been filed and before affidavits of evidence-in-chief (“AEIC”) of witnesses are filed, as part of the process of discovery. Under ROC 2021, however, the Court is given the power to order parties to file their list of witnesses and their AEICs before the exchange of documents takes place (O. 9 r. 8).
The effect of this change is that parties are now compelled to crystalise their respective positions from the outset even before documents are exchanged. This prevents parties from changing their testimony based on the documents that are disclosed.
C. Duty to Consider Amicable Resolution of Disputes
The ROC 2021 makes it mandatory for parties to consider resolving their disputes amicably before commencing any action or appeal (O. 5, r. 1). In other words, parties must have had offered to settle or considered alternative means of resolving disputes, before resorting to litigation (O. 5, r. 1(3)). When an offer of amicable resolution is made, a party cannot reject it unless he has reasonable grounds to do so (O. 5, r. 1(4)).
Furthermore, the ROC 2021 gives power to the Court to order parties to attempt to resolve their dispute by amicable resolution. Where a party does not wish to attempt amicable resolution, he may be ordered to submit a sealed document setting his reasons for such refusal. Even if he were successful in his action, the Court may make cost orders against him after reviewing the contents of the document upon the case concluding (O. 5, r. 3(3)-(4)).
D. Single Joint Expert
When expert evidence is required, the ROC 2021 encourages parties to agree on one common expert. The Court will not approve the use of expert evidence unless it contributes materially to determining any issue in the case and the issue cannot be resolved otherwise ((O.12 r.2(2)). Moreover, the Court has the power to disallow or reject such evidence on the basis that it lacks requisite specialised knowledge or impartiality ((O.12 r.2(3)-(4)). Under the ROC 2021, an application for expert evidence is to be done under the SAPT (O. 9 r. 9(4)).
A party may not rely on expert evidence from more than one expert for any issue, except permitted by the Court in special circumstances (O.12 r.3(2)). Additionally, the Court reserves the power to appoint a court expert to supplement or replace the parties’ common expert (O.12 r.3(3)).