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    Passing of Property 05 Risk and Perishment of the Goods 06 Transfer of Title by Non owner 07 Duties of the Seller and Buyer 08 Unpaid Seller s Real Remedies Against the Goods 09 Seller s Actions for Breach of Contract 10 Buyer s Actions for Breach of Contract 11 Consumer Protection in Sale Contracts Ch 10 International Sale of Goods 01 Introduction 02 When Does the CISG Apply 03 Relationship between CISG and Singapore Law 04 The Law Laid Out By the CISG 05 Where to Find Out More on the CISG 06 Conclusion Ch 11 The Law of Credit and Security 01 Introduction 02 Unsecured Credit 03 Real Security over Land and Building 04 Real Security over Chattels Goods 05 Quasi security over Chattels Goods 06 Real Security over Choses in action 07 Quasi security over Choses in action 08 Personal Security 09 Creditors Remedies Ch 12 Intellectual Property Law 01 Copyright and Neighbouring Rights 02 Industrial Designs 03 Patents 04 Confidential Information Trade Secrets 05 Trade Marks Protection Under Trade Marks Act 06 Trade Marks Common Law Action for Passing Off Ch 13 Intellectual Property Licensing 01 Introduction 02 Licence or Assignment 03 Formalities and Registration Requirements under Singapore Law 04 Rights of Exclusive Licensees 05 Revocation 06 Transferability Assignability 07 Specialised Topics Software Licensing 08 Specialised Topics Know How and Information Control 09 Specialised Topics Implied Licences 10 Specialised Topics Dealings over the Internet 11 Specialised Topics Rights of Repair 12 Specialised Topics Parallel Imports and Exhaustion of Rights 13 Specialised Topics Competition Law and its Impact on Licensing in Singapore 14 Specialised Topics Compulsory Licensing 15 Conclusion Ch 14 Forms of Business Organisations 01 Introduction 02 Sole Proprietorships 03 Partnerships 04 Limited Partnerships 05 Limited Liability Partnerships 06 Companies 07 Business Trusts Ch 15 Law of Agency 01 Introduction 02 Definition of Agency 03 Agency Contrasted with Other Relationships 04 Creation of Agency 05 Ratification 06 Relationship between the Principal and Agent 07 Relationship between the Agent and Third Party 08 Undisclosed Agency 09 Breach of Warranty of Authority 10 Termination of Agency Ch 16 Singapore Company Law 01 Introduction 02 Incorporation and its Consequences 03 Corporate Governance 04 Enforcement of Corporate Rights 05 Shareholder Remedies 06 Shares 07 Debentures and Charges 08 Companies in Distress 09 Winding up Ch 17 Corporate Finance and Securities Regulation 01 Background 02 Regulatory Authorities 03 Corporate Fundraising 04 Securities Offerings 05 Securities Regulation 06 Fraud Market Manipulation and Insider Trading 07 Civil and Criminal Liability 08 Regulation of Take over Activity Ch 18 Equity and Trusts 01 Introduction 02 The Conscience of Equity and Equitable Maxims 03 Equitable Obligations 04 Equitable Remedies and Defences 05 Equity and Property Ch 19 Restitution 01 Introduction 02 Money Paid under a Contract 03 Services Conferred under a Contract 04 No Double Recovery 05 Frustrated Contract 06 Anticipated Contracts that Fail to Materialise 07 Void or Unenforceable Contracts 08 Risk Allocation 09 Recovery of Deposits 10 Minority 11 Restitution for Breach of

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  • Ch.01 The Singapore Legal System
    Pung How as Chief Justice in September 1990 This coincided with the period of intensive constitutional remaking to develop an autochthonous government and parliamentary system of Singapore The departure from the Westminster inspired parliamentary system was evident through the innovations which attempted to cater to the unique political circumstances here 1 2 30 Constitutional provisions were made in 1979 for the creation of Judicial Commissioners to facilitate the disposal of business in the Supreme Court for limited renewable periods of between 6 months and 3 years Judicial Commissioners may also be appointed to hear and determine a specified case only Except for the fact that there is no security of tenure Judicial Commissioners exercise the same powers perform the same functions and enjoy the same immunities as a High Court Judge Earlier in 1971 the Constitution was amended to allow for the appointment of supernumerary judges which enables High Court Judges who have reached the mandatory retirement age of 65 years to remain on the Bench for further periods on a contract basis 1 2 31 1993 Abolition of all appeals to the Privy Council by 1989 however appeals to the Privy Council were already severely restricted A permanent Court of Appeal presided by the Chief Justice and two Justices of Appeal JAs was designated Singapore s highest court In November 1993 the Application of English Law Act Cap 7A 1994 Rev Ed came into force and specified the extent to which English law was applicable in Singapore 1 2 32 11 July 1994 The landmark Practice Statement on Judicial Precedent declared that the Privy Council Singapore s predecessor courts as well as the Court of Appeal s prior decisions no longer bound the permanent Court of Appeal The Practice Statement reasoned that t he development of our law should reflect these changes that political social and economic circumstances have changed enormously since Singapore s independence and the fundamental values of Singapore society Increasing confidence in the growing maturity and international standing of Singapore s legal system as well as the concern that Britain s increasing links with the European Union would render English law incompatible with local developments and aspirations gave impetus to the legal autochthony effort Reception of English Law 1 2 33 Prior to the enactment of the Application of the English Law Act Cap 7A 1994 Rev Ed the Second Charter of Justice provided the legal basis for the general reception of the principles and rules of English common law and equity and pre 1826 English statutes only those of general application into Singapore This was subject to suitability and modification to local conditions However the specific difficulty flowing from this was that no one knew for certain which English statutes even those that have been repealed in England applied here 1 2 34 This problem presented itself manifestly with the specific reception of English law under the former section 5 now repealed of the Civil Law Act Cap 43 1988 Rev Ed which provided that if a question or issue on specific categories of law or in general mercantile law arose in Singapore the law to be administered shall be the same as that administered in England at the corresponding period unless other provision is made by any law having force in Singapore Until its repeal in 1993 this was the most significant reception provision in Singapore s statute books The repeal has also removed much of the uncertainty and unsatisfactory state of affairs arising from a sovereign state which was until recently heavily dependent on the laws of the former colonial master 1 2 35 The Application of the English Law Act states that the common law of England including the principles and rules of equity so far as it was part of the law of Singapore before 12 November 1993 shall continue to be part of the law of Singapore Section 3 of the Act provides that the common law however shall continue to be in force in Singapore as long as it is applicable to the circumstances of Singapore and subject to such modifications as those circumstances may require Section 4 read with the First Schedule specifies the English enactments in toto or in parts with the necessary modifications that apply or continue to apply in Singapore Section 7 effects miscellaneous amendments to local Acts incorporating relevant English statutory law into local legislation 1 2 36 Under the direction of Chief Justice Sundaresh Menon Singapore has been a driver of the effort to promote the harmonisation or at least convergence of commercial laws in the Asia Pacific region The efforts include the catalysing of the development of a consistent body of transnational commercial law This necessarily entails dialogue among stakeholders in the regional and international sphere Return to the top SECTION 3 COMMON LAW IN SINGAPORE A Common Law Roots 1 3 1 The Common Law is one important strand of the Singapore politico legal fabric Singapore has inherited the English common law tradition and thus enjoys the attendant benefits of stability certainty and internationalisation inherent in the British system particularly in the commercial sphere She shares similar English common law roots with some of her neighbours such as India Malaysia Brunei and Myanmar though the details of the application and implementation will differ according to each country s specific needs and policies B The Doctrine of Judicial Precedent 1 3 2 In essence the common law system of Singapore is characterised by the doctrine of judicial precedent or stare decisis According to this doctrine the body of law is created incrementally by judges via the application of legal principles to the facts of particular cases In this regard the judges are only required to apply the ratio decidendi or the operative reason for the decision of the higher court within the same hierarchy Thus in Singapore the ratio decidendi found in the decisions of the Singapore Court of Appeal are strictly binding on the Singapore High Court the District Court and the Magistrate s Court The court decisions from England and other Commonwealth jurisdictions are on the other hand not legally binding on Singapore Other judicial statements obiter dicta made by the higher court in the judgment which do not directly affect the outcome of the case may be disregarded by the lower court 1 3 3 The lower court is able in some cases to avoid having to apply the ratio decidendi in a prior higher court s decision if it can distinguish the material facts of the case before the lower court from those in the prior case C Influences of and Departures from English Common Law 1 3 4 The influence of the English common law on the development of Singapore law is generally more evident in certain traditional common law areas such as Contract Tort and Restitution than in other statute based areas such as Criminal Law Company Law and the Law of Evidence 1 3 5 The Singapore courts have made significant departures from the decisions of the English courts even in the traditional common law areas There has been also a greater recognition of local jurisprudence in the development of the common law in Singapore 1 3 6 The judicial approach of the Singapore courts to English common law precedents is based on two main factors 1 the logic and reasoning underlying the case precedents and 2 the need for adaptability to local circumstances and conditions Hence the courts in their judgements examine closely both the legal principles as well as public policy considerations that may vary from one jurisdiction to another D Brief Comparisons Common Law and Civil Law Systems 1 3 7 The common law system in Singapore bears material differences from some Asian countries which have imbibed the civil law tradition the People s Republic of China Vietnam and Thailand or those with a mixture of civil and common law traditions the Philippines 1 3 8 Firstly the civil law systems place relatively less weight on prior judicial decisions and do not abide by the doctrine of stare decisis unlike the common law system as described in Section 1 3 2 and 1 3 3 above The common law courts in Singapore generally adopt an adversarial approach in litigation between the disputing parties whilst the civil law judges tend to take a more active role in the finding of evidence to decide the outcome of the case Thirdly whilst numerous legal principles have been developed by common law judges the civil law judges are more reliant on general and comprehensive codes governing wide areas 1 3 9 However the divergence between the common law and civil law systems is now less marked than in the past Common law jurisdictions have for instance embarked upon legislative programmes to fill the perceived gaps of the common law In this regard Singapore has enacted various statutes to govern specific areas of law such as the Competition Act 2004 No 46 of 2004 Consumer Protection Fair Trading Act Cap 52A 2004 Rev Ed and Protection from Harassment Act 2014 No 17 of 2014 E Common Law and Equity 1 3 10 Historically in England Equity or the body of principles of fairness or justice has been employed by the courts to ameliorate the defects or weaknesses inherent in a rigid common law system In England in the past Chancery courts administered Equity in a manner separate from the common law courts However such a historical demarcation is not important in Singapore today 1 3 11 According to the Singapore Civil Law Act Cap 43 1999 Rev Ed the Singapore courts are empowered to administer the Common Law as well as Equity concurrently The practical effect is that a claimant can seek both common law remedies Damages and equitable remedies including Injunctions and Specific Performance in the same proceeding before the same court Notwithstanding the abolition of the Common Law Equity divide Equity has played a decisive role in the development of specific doctrines in the law of contract including the Doctrine of Undue Influence and Promissory Estoppel F Publication of Law Reports and Legal Scholarship 1 3 12 Without the regular publication of judicial precedents accessible to the judges and lawyers the common law in Singapore would not have developed as quickly and extensively The Singapore Law Reports constitute the major publication of Singapore court decisions since 1992 Prior to that the Malayan Law Journal was responsible for the publication of local cases beginning in 1932 The Singapore Academy of Law has published the Singapore Law Reports Reissue from 1965 through 2009 with re written headnotes To make Singapore case law more accessible to Singaporeans and legal communities overseas recent judgements of the Supreme Court and the Subordinate Courts can be accessed free of charge at http www supcourt gov sg and http www subcourts gov sg respectively 1 3 13 Local law books and journal articles on important areas have also contributed to the burgeoning common law in Singapore The contribution to the Singapore jurisprudence has been catalysed by the establishment of Academy Publishing under the auspices of the Singapore Academy of Law Academy Publishing aims to provide an additional publication channel for Singapore legal scholarship and to make such publications affordable It also seeks to disseminate Singapore s laws to a wider audience beyond Singapore 1 3 14 The Chief Justice has urged the Singapore Bar to cite local court decisions in support of their arguments especially when the relevant points of law have been considered by the courts He has also urged local law academics to write on Singapore law to help develop Singapore s jurisprudence The courts have been receptive to and have adopted academic writings in their judgements G Muslim Law in Personal Legal Matters 1 3 15 Apart from the Common Law and Equity the Syariah Court also administers Muslim law in specific personal legal matters governing marriages divorces the nullity of marriages and judicial separations under the Administration of Muslim Law Act AMLA Cap 3 2009 Rev Ed in respect of Muslims or parties married under Muslim law though the High Court has concurrent jurisdiction with the Syariah Court on specific matters relating to maintenance custody and division of property Significantly with respect to issues of inheritance and succession the AMLA expressly accepts particular Islamic texts as proof of Muslim law Return to the top SECTION 4 THE CONSTITUTION Supreme Law 1 4 1 The Constitution 1999 Reprint is the supreme law of the land It is mandated that any legislation contrary to the Constitution shall to the extent of the inconsistency be void 1 4 2 The provisions of the Constitution may only be amended by the votes of two thirds of the total number of elected Members of Parliament However as and when Article 5 2A comes into force in respect of specific constitutional amendments seeking to amend the discretionary powers of the Elected President and the provisions on fundamental liberties at least two thirds of the total number of votes cast by the electorate in a national referendum is also required Fundamental Rights 1 4 3 Part IV of the Constitution entrenches certain fundamental rights such as the freedom of religion freedom of speech and equal rights These individual rights are not absolute but qualified by public interests such as the maintenance of public order morality and national security Apart from the general protection of racial and religious minorities the special position of Malays as the indigenous people of Singapore is constitutionally mandated Powers and Functions of Organs of State 1 4 4 The Constitution contains express provisions delineating the powers and functions of the various organs of state including the Legislature Section 5 below the Executive Section 6 below and the Judiciary Section 7 below Return to the top SECTION 5 THE LEGISLATURE Function 1 5 1 The Legislature comprises the Singapore Parliament and the Elected President The main function of the Singapore Parliament is the enactment of laws governing the State A The Law Making Process 1 5 2 The law making process begins with a Bill normally drafted by the Government legal officers Private members Bills are rare in Singapore During the parliamentary debates on important Bills the Ministers often make speeches to defend the Bill and answer pointed queries raised by the backbenchers The Members of Parliament MPs may in some cases decide to refer the Bill to a Select Committee to deliberate upon and submit a report to the Parliament If the report is favourable or the proposed amendments to the Bill are approved by Parliament the Bill is accepted by the Parliament and passed 1 5 3 The Presidential Council for Minority Rights PCMR established under the Singapore Constitution is tasked except for certain exempted Bills to scrutinise Bills for any measures which may be disadvantageous to persons of any racial and religious communities without being equally disadvantageous to persons of other such communities either by directly prejudicing persons of that community or indirectly by giving advantage to persons of another community If the report of the PCMR is favourable or a two thirds majority in Parliament has been obtained to override any adverse report of the PCMR the Bill proceeds for the Elected President s assent Upon assent the Bill is formally enacted as law B Composition 1 5 4 In terms of composition the Singapore Parliament consists of both elected and non elected Members of Parliament MPs C Elected MPs 1 5 5 The elected MPs are drawn from candidates who have emerged victorious in general elections held every 4 to 5 years They are drawn from a combination of single member constituencies as well as Group Representation Constituencies GRCs Established in 1988 each GRC consists of 4 to 6 members at least one of whom must be of a designated minority race The underlying aim for the GRC is to entrench multiracialism in Singapore politics As at 12 September 2015 the Parliament is dominated by the ruling Peoples Action Party 83 elected members with a minority representation from the Workers Party 6 elected members D Non Elected MPs 1 5 6 The non elected MPs on the other hand do not enjoy voting rights on constitutional amendments money Bills and votes of no confidence in the Government They consist of two different categories the Non Constituency Members of Parliament NCMPs and the Nominated Members of Parliament NMPs The Constitution provides for the appointment of up to 9 NCMPs and NMPs respectively 1 5 7 To offer an alternative political voice in Parliament NCMPs are appointed from the candidates who have polled the highest percentage of votes amongst the losers in the general election The NMPs in contrast are non politicians who have distinguished themselves in public life and have been nominated to provide a greater variety of non partisan views in Parliament Return to the top SECTION 6 THE EXECUTIVE A Eligibility Functions and Powers of the Elected President 1 6 1 The head of the Executive is the Elected President The qualifications for presidential office are stringent Apart from integrity good character and reputation the presidential candidate must have held one of the following positions for not less than three years as a Minister Chief Justice Speaker of Parliament Attorney General Chairman of Public Service Commission Auditor General Accountant General or Permanent Secretary as chairman or chief executive officer of a statutory board as chairman of the board of directors or chief executive officer of a company with a paid up capital of at least S 100million or a similar or comparable position of seniority and responsibility in an organisation or department of equivalent size or complexity whether in the public or private sector which has given him or her the requisite experience and ability in managing financial affairs so as to handle the responsibilities of the job of the Elected President The Presidential Elections Committee has been set up to ensure the requirements are adhered to 1 6 2 The Elected President s term of office is 6 years He or she shall act in accordance with the advice of the Cabinet in discharging the Elected President s constitutional functions except in specified areas The areas in which Elected President may act in his discretion are as follows the veto against the government s attempts to draw on past reserves eg in relation to a guarantee or loan given or raised by the government and the budgets of specified statutory boards and government companies that draw on past reserves the appointment of the Prime Minister specified constitutional appointees eg the Chief Justice and the Attorney General and other key civil service appointments eg Commissioner of Police the concurrence with the Director of Corrupt Practices Investigation Bureau to make any inquiries or to carry out any investigations into any information received by the Director notwithstanding the Prime Minister s refusal to consent the withholding concurrence to the detention of persons under the Internal Security Act Cap 143 1985 Rev Ed the exercise of certain powers pertaining to restraining orders made under the Maintenance of Religious Harmony Act Cap 167A 2001 Rev Ed where the Cabinet s advice is contrary to that of the Presidential Council for Religious Harmony There are also counter checks on the presidential discretion eg Parliament overruling via a two thirds majority of the total number of elected MPs the presidential decision in certain instances In discharging certain specified constitutional functions the President is required to consult the Council of Presidential Advisers a body set up under the Singapore Constitution In other cases the Elected President may in his discretion consult the Council of Presidential Advisers B The Cabinet 1 6 3 The Cabinet under the helm of the Prime Minister is collectively responsible to the Parliament The Prime Minister is appointed by the Elected President from among the Members of Parliament who in the Elected President s judgment is likely to command the confidence of the majority of the Members of Parliament The other Ministers in the Cabinet are appointed from among the Members of Parliament by the Elected President on the advice of the Prime Minister 1 6 4 There is no complete separation of powers between the Executive and Legislature In terms of composition the Ministers from the Cabinet are drawn from the MPs Parliamentary Secretaries are further appointed from amongst the MPs to assist the Ministers Moreover the Ministers and the relevant government agencies are responsible for enacting subsidiary legislation to supplement the parent legislation passed by the Parliament C Government s Legal Advisers 1 6 5 On the legal front the Government is advised and represented by the Attorney General the Deputy Attorney General and the Solicitor General in both civil and criminal matters The Attorney General possesses wide prosecutorial discretion ie to institute conduct or discontinue any proceedings for any offence There are also special divisions within the Attorney General s Chambers dealing with the drafting of legislation law reform economic crimes and international affairs Return to the top SECTION 7 THE JUDICIARY A International Reputation 1 7 1 The great efficiency and strength of the Singapore Judiciary has won her several accolades and a strong international reputation see the rankings of the world s legal systems by Political and Economic Risk Consultancy PERC and the Institute for Management Development IMD Strict case management and Alternative Dispute Resolution methods see Section 9 below have reduced drastically the backlog of cases which had plagued both the Supreme Court and Subordinate Courts in the 1980s The Honourable Chief Justice Sundaresh Menon since his appointment with effect from November 2012 has attained several notable achievements and undertaken important institutional reforms related to the administration of justice One major innovation is the setting up of the Singapore International Commercial Court to hear transnational commercial disputes with a view to establishing Singapore as an international and regional hub for dispute resolution in commercial matters The new Singapore Judicial College provides continuing training and development for the judges and shares Singapore courts experiences in the use of technology organisational excellence and active case management with their counterparts in the region Retired judges of the Supreme Court with a wealth of judicial expertise and experience have been appointed as Senior Judges of the Supreme Court to ease the hearing load and mentor younger judges The new Family Justice Courts have also been set up under the leadership of Sundaresh Menon CJ to provide a non adversarial approach to resolving family related disputes The Centre for Dispute Resolution was launched in 2015 at the State Courts to consolidate the ADR services B Function and Powers 1 7 2 The judge is the arbiter of both law and fact in Singapore The jury system had been severely limited in Singapore and was entirely abolished in 1970 Judicial power is vested in the Supreme Court comprising the Singapore Court of Appeal and the High Court as well as the State Courts formerly the Subordinate Courts C The Court of Appeal 1 7 3 The highest court of the land is the permanent Court of Appeal which hears both civil and criminal appeals emanating from the High Court and the Subordinate Courts As a significant watermark of Singapore s legal history appeals to the Privy Council in England were abolished in 1994 The Practice Statement on Judicial Precedent issued by the Supreme Court on 11 July 1994 clarified that the Singapore Court of Appeal is not bound by its own decisions as well as prior decisions of the Privy Council However it would continue to treat such prior decisions as normally binding though it may depart from the prior precedents where it appears right to do so D The High Court 1 7 4 The High Court Judges enjoy security of tenure whilst the Judicial Commissioners are appointed on a short term contract basis Both however enjoy the same judicial powers and immunities Their judicial powers comprise both original and appellate jurisdiction over both civil and criminal matters Some of the High Court judges are specially designated to hear cases in specific legal areas such as arbitration admiralty and intellectual property E The Singapore International Commercial Court SICC 1 7 5 The SICC is a division of the High Court and part of the Supreme Court of Singapore It hears international and commercial disputes where the litigants have submitted to its jurisdiction under a written jurisdiction agreement and do not seek any relief in the form of or connected with a prerogative order The Chief Justice is the President of the SICC and the other SICC judges include the Judges of Appeal High Court judges Senior Judges as well as International Judges of the Supreme Court Foreign counsel are entitled to appear before the SICC and Court of Appeal on appeals from the SICC in offshore cases which have no substantial connection to Singapore F The Constitutional Tribunal 1 7 6 A special Constitutional Tribunal was also established within the Supreme Court to hear questions referred to by the Elected President on the effect of constitutional provisions G The State Courts 1 7 7 The State Courts consisting of the District Courts Magistrates Courts Juvenile Courts Coroners Courts as well as the Small Claims Tribunals led by the Presiding Judge have also been set up within the Singapore judicial hierarchy to administer justice amongst the people With the increased sophistication in business transactions and law the Commercial Civil and Criminal District Courts have recently been established within the State Courts to deal with the more complex cases Specialist judges have also been appointed on an ad hoc basis to hear specific complex cases H The District and Magistrates Courts 1 7 8 The District Courts and the Magistrates Courts share the same powers over specific matters such as in contractual or tortious claims for a debt demand or damage and in actions for the recovery of monies However the jurisdictional monetary limits in civil matters for the Magistrates Courts and District Courts are 60 000 and 250 000 respectively The courts also differ in terms of criminal jurisdiction and sentencing powers Under the new Criminal Procedure Code 2010 Act 15 of 2010 the Magistrates Courts have the power to try any offence for which the maximum term of imprisonment provided by law does not exceed 5 years or which is punishable with a fine only As for the Districts Courts the stipulated maximum term of imprisonment is 10 years A District Court may pass a sentence of imprisonment not exceeding 10 years fine not exceeding 30 000 caning not exceeding 12 strokes and any other lawful sentence The sentencing powers of a Magistrates Courts are as follows imprisonment not exceeding 3 years fine not exceeding 10 000 caning not exceeding 6 strokes and any other lawful sentence I The Small Claims Tribunals 1 7 9 The Small Claims Tribunals on the other hand afford a speedier less costly and more informal process for the disposition of certain specified small claims ie claims relating to disputes arising from contract for the sale of goods or the provision of services tort in respect of property damage and any contract for the lease of residential premises that does not exceed 2 years with a monetary limit of 10 000 only or 20 000 where the disputing parties consent in writing J Family Justice Courts 1 7 10 The Family Justice Courts set up in 2014 under the Family Justice Act 2014 comprise the High Court Family Division the Family Court and the Youth Court The Family Court deal with family related matters including divorces and other ancillary matters maintenance custody care control and access to children and the division of matrimonial property adoptions and personal protection orders The Youth Court which is presided over by a District Judge or a Magistrate has jurisdiction over children or young persons charged with offences K The Courts and Information Technology 1 7 11 The Judiciary has also taken major strides in utilising information technology in the courts which has in part at least enhanced its efficiency The Technology Courts were for instance set up to enable the sharing of information by lawyers and judges and the giving of evidence by witnesses via video conferencing The Electronic Filing System EFS a joint project by the Judiciary Singapore Network Services and the Singapore Academy of Law to enable the filing extraction and service of court documents as well as the tracking of case information by electronic means has undergone further refinements to upgrade services to end users It was reconstituted as the Electronic Litigations Systems ELS in order to further integrate technology into the litigation processes eLitigation has since been launched in 2013 to provide for the management of case files through short message services SMS reminder alerts calendaring and hearing management to select hearing dates as well as a secure form of access to the web based service via SingPass Various information technology innovations have also been utilised to facilitate and streamline various criminal processes namely the registration and management of criminal cases SCRIMS the processing of traffic charges between the police and the courts TICKS 2000 and the payment of fines for minor traffic offences ATOMS Return to the top SECTION 8 LEGAL EDUCATION AND LEGAL PROFESSION A Functions of Lawyers in Singapore 1 8 1 The legal profession in Singapore is fused the Singapore lawyer may act as both an Advocate as well as a Solicitor As an Advocate and Solicitor of the Supreme Court of Singapore he or she has the right to appear and plead before the Singapore courts of justice The opportunities of a Singapore lawyer are fairly varied he or she may for example wish to serve as a legal or judicial officer in the Singapore Legal Service an in house counsel of a company or practise law in a local or international law firm In the local set up the lawyer may handle litigation corporate work real estate and intellectual property work Outstanding litigators practitioners and law academics have been appointed as Senior Counsel in recognition of their lofty professional standards The legal profession has like the courts undergone increased specialisation of functions in recent years B Admission to the Singapore Bar 1 8 2 A sound legal education is instrumental to the birth and subsequent development of the Singapore lawyer The Singapore Institute of Legal Education was established in May 2011 to maintain and improve the standards of legal education in Singapore To be admitted to the Singapore Bar an aspirant has to first attain the status of a qualified person by obtaining a law degree from the National University of Singapore NUS or the Singapore Management University SMU or from one of the approved overseas universities of the United Kingdom United States Australia Canada and New Zealand In addition to the LL B programme SMU offers a Juris Doctor J D Program for graduates with a first degree from other disciplines as well as law graduates from civil law jurisdictions and non gazetted universities in common law jurisdictions Apart from a four year LL B program NUS also offers a three year graduate LL B program for graduates with a first degree 1 8 3 Law graduates from the approved foreign universities will be required to pass Part A of the Bar Examination a short conversion course on Singapore law Overseas graduates with Lower Second Class honours and above from the approved universities are eligible to take the Bar Examination Law graduates from NUS and SMU are not required to undertake Part A of the Bar Examination The law graduates from both the local and approved foreign universities would have to undergo and pass the full time Preparatory Course leading to Part B of the Singapore Bar Examinations consisting of a list of both compulsory and elective subjects Finally the law graduate must serve a practice training period with a Singapore law practice pursuant to a practice training contract or through work as a Legal Service officer or under the supervision of a qualifying legal officer Upon fulfilment of the above requirements he or she can be admitted to the Singapore Bar 1 8 4 Foreign qualified lawyers may apply for a Foreign Practitioner Certificate from the Attorney General to practise in limited areas of Singapore law such as banking and finance mergers and acquisitions and intellectual property law subject to passing the Foreign Practitioner Examinations FPE One prerequisite for taking the FPE is that the foreign lawyer must have at least three years of relevant legal practice or work in Singapore or overseas Queen s Counsel from the United Kingdom may be admitted on an ad hoc basis for a particular case provided the court is satisfied that it is of sufficient difficulty and complexity 1 8 5 Queen s Counsel from the United Kingdom may be admitted on an ad hoc basis for a particular case based on the following considerations the nature of the factual and legal issues involved in the case the necessity for the services of a foreign senior counsel the availability of any senior counsel or other advocate and solicitor with appropriate experience and whether having regard to the circumstances of the case it is reasonable to admit a foreign senior counsel for the purpose of the case C Legal Education 1 8 6 With the increased internationalisation of legal services legal education in Singapore has placed greater emphasis on the need for law undergraduates to acquire knowledge of and exposure to foreign legal systems and international law To ensure that Singapore lawyers keep abreast of significant legal developments a Mandatory Continuing Professional Development scheme applies to newly qualified lawyers with less than 5 years experience as well as senior lawyers of between 5 and 15 years standing The Government also reviews the supply of lawyers periodically to ensure that the supply of lawyers meets the growing demand for legal talent The Fourth Committee on the Supply of Lawyers 2013 has recommended that the intake of students at SMU Law School be increased and that a new law school be set up which focuses on legal training for those persons who are interested to practise community law as well as similarly interested mature students who have worked as paralegals social workers or law enforcement officers D Forms of Legal Practice 1 8 7 There are various vehicles for the setting up of legal practices and cooperative alliances amongst the law firms Apart from the erstwhile sole proprietorships and partnerships the legal profession has also seen the creation of the law corporation with the associated benefits of limited liability as well as limited liability partnerships Singapore law firms are entitled to employ appropriately qualified foreign lawyers to practise law subject to certain criteria including appropriate qualifications expertise and experience and the areas of legal practice of the lawyer and the law firm 1 8 8 There also exists the avenue of forming Joint Law Ventures and Formal Law Alliances between foreign and local law firms subject to the approval of the Attorney General with the attendant advantages of marketing the venture or alliance as a single service provider and centralised billing for clients Foreign lawyers who are employed by or who are partners or directors of the Joint Law Ventures may practise Singapore law subject to certain requirements such as qualifications expertise and experience and the restrictions on the areas of legal practice Qualifying Foreign Law Practice QFLP licences have been granted by the Ministry for Law to selected foreign law firms to allow them to practise Singapore law in permitted areas of legal practice through Singapore qualified solicitors employed by them 1 8 9 The Legal Services Regulatory Authority headed by the Director of Legal Services has been established under the Ministry for Law to register law practices and regulate the business of the law practices in Singapore A new

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  • Ch.01 The Singapore Legal System
    an autochthonous government and parliamentary system of Singapore The departure from the Westminster inspired parliamentary system was evident through the innovations which attempted to cater to the unique political circumstances here 1 2 30 Constitutional provisions were made in 1979 for the creation of Judicial Commissioners to facilitate the disposal of business in the Supreme Court for limited renewable periods of between 6 months and 3 years Judicial Commissioners may also be appointed to hear and determine a specified case only Except for the fact that there is no security of tenure Judicial Commissioners exercise the same powers perform the same functions and enjoy the same immunities as a High Court Judge Earlier in 1971 the Constitution was amended to allow for the appointment of supernumerary judges which enables High Court Judges who have reached the mandatory retirement age of 65 years to remain on the Bench for further periods on a contract basis 1 2 31 1993 Abolition of all appeals to the Privy Council by 1989 however appeals to the Privy Council were already severely restricted A permanent Court of Appeal presided by the Chief Justice and two Justices of Appeal JAs was designated Singapore s highest court In November 1993 the Application of English Law Act Cap 7A 1994 Rev Ed came into force and specified the extent to which English law was applicable in Singapore 1 2 32 11 July 1994 The landmark Practice Statement on Judicial Precedent declared that the Privy Council Singapore s predecessor courts as well as the Court of Appeal s prior decisions no longer bound the permanent Court of Appeal The Practice Statement reasoned that t he development of our law should reflect these changes that political social and economic circumstances have changed enormously since Singapore s independence and the fundamental values of Singapore society Increasing confidence in the growing maturity and international standing of Singapore s legal system as well as the concern that Britain s increasing links with the European Union would render English law incompatible with local developments and aspirations gave impetus to the legal autochthony effort Reception of English Law 1 2 33 Prior to the enactment of the Application of the English Law Act Cap 7A 1994 Rev Ed the Second Charter of Justice provided the legal basis for the general reception of the principles and rules of English common law and equity and pre 1826 English statutes only those of general application into Singapore This was subject to suitability and modification to local conditions However the specific difficulty flowing from this was that no one knew for certain which English statutes even those that have been repealed in England applied here 1 2 34 This problem presented itself manifestly with the specific reception of English law under the former section 5 now repealed of the Civil Law Act Cap 43 1988 Rev Ed which provided that if a question or issue on specific categories of law or in general mercantile law arose in Singapore the law to be administered shall be the same as that administered in England at the corresponding period unless other provision is made by any law having force in Singapore Until its repeal in 1993 this was the most significant reception provision in Singapore s statute books The repeal has also removed much of the uncertainty and unsatisfactory state of affairs arising from a sovereign state which was until recently heavily dependent on the laws of the former colonial master 1 2 35 The Application of the English Law Act states that the common law of England including the principles and rules of equity so far as it was part of the law of Singapore before 12 November 1993 shall continue to be part of the law of Singapore Section 3 of the Act provides that the common law however shall continue to be in force in Singapore as long as it is applicable to the circumstances of Singapore and subject to such modifications as those circumstances may require Section 4 read with the First Schedule specifies the English enactments in toto or in parts with the necessary modifications that apply or continue to apply in Singapore Section 7 effects miscellaneous amendments to local Acts incorporating relevant English statutory law into local legislation 1 2 36 Under the direction of Chief Justice Sundaresh Menon Singapore has been a driver of the effort to promote the harmonisation or at least convergence of commercial laws in the Asia Pacific region The efforts include the catalysing of the development of a consistent body of transnational commercial law This necessarily entails dialogue among stakeholders in the regional and international sphere Return to the top SECTION 3 COMMON LAW IN SINGAPORE A Common Law Roots 1 3 1 The Common Law is one important strand of the Singapore politico legal fabric Singapore has inherited the English common law tradition and thus enjoys the attendant benefits of stability certainty and internationalisation inherent in the British system particularly in the commercial sphere She shares similar English common law roots with some of her neighbours such as India Malaysia Brunei and Myanmar though the details of the application and implementation will differ according to each country s specific needs and policies B The Doctrine of Judicial Precedent 1 3 2 In essence the common law system of Singapore is characterised by the doctrine of judicial precedent or stare decisis According to this doctrine the body of law is created incrementally by judges via the application of legal principles to the facts of particular cases In this regard the judges are only required to apply the ratio decidendi or the operative reason for the decision of the higher court within the same hierarchy Thus in Singapore the ratio decidendi found in the decisions of the Singapore Court of Appeal are strictly binding on the Singapore High Court the District Court and the Magistrate s Court The court decisions from England and other Commonwealth jurisdictions are on the other hand not legally binding on Singapore Other judicial statements obiter dicta made by the higher court in the judgment which do not directly affect the outcome of the case may be disregarded by the lower court 1 3 3 The lower court is able in some cases to avoid having to apply the ratio decidendi in a prior higher court s decision if it can distinguish the material facts of the case before the lower court from those in the prior case C Influences of and Departures from English Common Law 1 3 4 The influence of the English common law on the development of Singapore law is generally more evident in certain traditional common law areas such as Contract Tort and Restitution than in other statute based areas such as Criminal Law Company Law and the Law of Evidence 1 3 5 The Singapore courts have made significant departures from the decisions of the English courts even in the traditional common law areas There has been also a greater recognition of local jurisprudence in the development of the common law in Singapore 1 3 6 The judicial approach of the Singapore courts to English common law precedents is based on two main factors 1 the logic and reasoning underlying the case precedents and 2 the need for adaptability to local circumstances and conditions Hence the courts in their judgements examine closely both the legal principles as well as public policy considerations that may vary from one jurisdiction to another D Brief Comparisons Common Law and Civil Law Systems 1 3 7 The common law system in Singapore bears material differences from some Asian countries which have imbibed the civil law tradition the People s Republic of China Vietnam and Thailand or those with a mixture of civil and common law traditions the Philippines 1 3 8 Firstly the civil law systems place relatively less weight on prior judicial decisions and do not abide by the doctrine of stare decisis unlike the common law system as described in Section 1 3 2 and 1 3 3 above The common law courts in Singapore generally adopt an adversarial approach in litigation between the disputing parties whilst the civil law judges tend to take a more active role in the finding of evidence to decide the outcome of the case Thirdly whilst numerous legal principles have been developed by common law judges the civil law judges are more reliant on general and comprehensive codes governing wide areas 1 3 9 However the divergence between the common law and civil law systems is now less marked than in the past Common law jurisdictions have for instance embarked upon legislative programmes to fill the perceived gaps of the common law In this regard Singapore has enacted various statutes to govern specific areas of law such as the Competition Act 2004 No 46 of 2004 Consumer Protection Fair Trading Act Cap 52A 2004 Rev Ed and Protection from Harassment Act 2014 No 17 of 2014 E Common Law and Equity 1 3 10 Historically in England Equity or the body of principles of fairness or justice has been employed by the courts to ameliorate the defects or weaknesses inherent in a rigid common law system In England in the past Chancery courts administered Equity in a manner separate from the common law courts However such a historical demarcation is not important in Singapore today 1 3 11 According to the Singapore Civil Law Act Cap 43 1999 Rev Ed the Singapore courts are empowered to administer the Common Law as well as Equity concurrently The practical effect is that a claimant can seek both common law remedies Damages and equitable remedies including Injunctions and Specific Performance in the same proceeding before the same court Notwithstanding the abolition of the Common Law Equity divide Equity has played a decisive role in the development of specific doctrines in the law of contract including the Doctrine of Undue Influence and Promissory Estoppel F Publication of Law Reports and Legal Scholarship 1 3 12 Without the regular publication of judicial precedents accessible to the judges and lawyers the common law in Singapore would not have developed as quickly and extensively The Singapore Law Reports constitute the major publication of Singapore court decisions since 1992 Prior to that the Malayan Law Journal was responsible for the publication of local cases beginning in 1932 The Singapore Academy of Law has published the Singapore Law Reports Reissue from 1965 through 2009 with re written headnotes To make Singapore case law more accessible to Singaporeans and legal communities overseas recent judgements of the Supreme Court and the Subordinate Courts can be accessed free of charge at http www supcourt gov sg and http www subcourts gov sg respectively 1 3 13 Local law books and journal articles on important areas have also contributed to the burgeoning common law in Singapore The contribution to the Singapore jurisprudence has been catalysed by the establishment of Academy Publishing under the auspices of the Singapore Academy of Law Academy Publishing aims to provide an additional publication channel for Singapore legal scholarship and to make such publications affordable It also seeks to disseminate Singapore s laws to a wider audience beyond Singapore 1 3 14 The Chief Justice has urged the Singapore Bar to cite local court decisions in support of their arguments especially when the relevant points of law have been considered by the courts He has also urged local law academics to write on Singapore law to help develop Singapore s jurisprudence The courts have been receptive to and have adopted academic writings in their judgements G Muslim Law in Personal Legal Matters 1 3 15 Apart from the Common Law and Equity the Syariah Court also administers Muslim law in specific personal legal matters governing marriages divorces the nullity of marriages and judicial separations under the Administration of Muslim Law Act AMLA Cap 3 2009 Rev Ed in respect of Muslims or parties married under Muslim law though the High Court has concurrent jurisdiction with the Syariah Court on specific matters relating to maintenance custody and division of property Significantly with respect to issues of inheritance and succession the AMLA expressly accepts particular Islamic texts as proof of Muslim law Return to the top SECTION 4 THE CONSTITUTION Supreme Law 1 4 1 The Constitution 1999 Reprint is the supreme law of the land It is mandated that any legislation contrary to the Constitution shall to the extent of the inconsistency be void 1 4 2 The provisions of the Constitution may only be amended by the votes of two thirds of the total number of elected Members of Parliament However as and when Article 5 2A comes into force in respect of specific constitutional amendments seeking to amend the discretionary powers of the Elected President and the provisions on fundamental liberties at least two thirds of the total number of votes cast by the electorate in a national referendum is also required Fundamental Rights 1 4 3 Part IV of the Constitution entrenches certain fundamental rights such as the freedom of religion freedom of speech and equal rights These individual rights are not absolute but qualified by public interests such as the maintenance of public order morality and national security Apart from the general protection of racial and religious minorities the special position of Malays as the indigenous people of Singapore is constitutionally mandated Powers and Functions of Organs of State 1 4 4 The Constitution contains express provisions delineating the powers and functions of the various organs of state including the Legislature Section 5 below the Executive Section 6 below and the Judiciary Section 7 below Return to the top SECTION 5 THE LEGISLATURE Function 1 5 1 The Legislature comprises the Singapore Parliament and the Elected President The main function of the Singapore Parliament is the enactment of laws governing the State A The Law Making Process 1 5 2 The law making process begins with a Bill normally drafted by the Government legal officers Private members Bills are rare in Singapore During the parliamentary debates on important Bills the Ministers often make speeches to defend the Bill and answer pointed queries raised by the backbenchers The Members of Parliament MPs may in some cases decide to refer the Bill to a Select Committee to deliberate upon and submit a report to the Parliament If the report is favourable or the proposed amendments to the Bill are approved by Parliament the Bill is accepted by the Parliament and passed 1 5 3 The Presidential Council for Minority Rights PCMR established under the Singapore Constitution is tasked except for certain exempted Bills to scrutinise Bills for any measures which may be disadvantageous to persons of any racial and religious communities without being equally disadvantageous to persons of other such communities either by directly prejudicing persons of that community or indirectly by giving advantage to persons of another community If the report of the PCMR is favourable or a two thirds majority in Parliament has been obtained to override any adverse report of the PCMR the Bill proceeds for the Elected President s assent Upon assent the Bill is formally enacted as law B Composition 1 5 4 In terms of composition the Singapore Parliament consists of both elected and non elected Members of Parliament MPs C Elected MPs 1 5 5 The elected MPs are drawn from candidates who have emerged victorious in general elections held every 4 to 5 years They are drawn from a combination of single member constituencies as well as Group Representation Constituencies GRCs Established in 1988 each GRC consists of 4 to 6 members at least one of whom must be of a designated minority race The underlying aim for the GRC is to entrench multiracialism in Singapore politics As at 12 September 2015 the Parliament is dominated by the ruling Peoples Action Party 83 elected members with a minority representation from the Workers Party 6 elected members D Non Elected MPs 1 5 6 The non elected MPs on the other hand do not enjoy voting rights on constitutional amendments money Bills and votes of no confidence in the Government They consist of two different categories the Non Constituency Members of Parliament NCMPs and the Nominated Members of Parliament NMPs The Constitution provides for the appointment of up to 9 NCMPs and NMPs respectively 1 5 7 To offer an alternative political voice in Parliament NCMPs are appointed from the candidates who have polled the highest percentage of votes amongst the losers in the general election The NMPs in contrast are non politicians who have distinguished themselves in public life and have been nominated to provide a greater variety of non partisan views in Parliament Return to the top SECTION 6 THE EXECUTIVE A Eligibility Functions and Powers of the Elected President 1 6 1 The head of the Executive is the Elected President The qualifications for presidential office are stringent Apart from integrity good character and reputation the presidential candidate must have held one of the following positions for not less than three years as a Minister Chief Justice Speaker of Parliament Attorney General Chairman of Public Service Commission Auditor General Accountant General or Permanent Secretary as chairman or chief executive officer of a statutory board as chairman of the board of directors or chief executive officer of a company with a paid up capital of at least S 100million or a similar or comparable position of seniority and responsibility in an organisation or department of equivalent size or complexity whether in the public or private sector which has given him or her the requisite experience and ability in managing financial affairs so as to handle the responsibilities of the job of the Elected President The Presidential Elections Committee has been set up to ensure the requirements are adhered to 1 6 2 The Elected President s term of office is 6 years He or she shall act in accordance with the advice of the Cabinet in discharging the Elected President s constitutional functions except in specified areas The areas in which Elected President may act in his discretion are as follows the veto against the government s attempts to draw on past reserves eg in relation to a guarantee or loan given or raised by the government and the budgets of specified statutory boards and government companies that draw on past reserves the appointment of the Prime Minister specified constitutional appointees eg the Chief Justice and the Attorney General and other key civil service appointments eg Commissioner of Police the concurrence with the Director of Corrupt Practices Investigation Bureau to make any inquiries or to carry out any investigations into any information received by the Director notwithstanding the Prime Minister s refusal to consent the withholding concurrence to the detention of persons under the Internal Security Act Cap 143 1985 Rev Ed the exercise of certain powers pertaining to restraining orders made under the Maintenance of Religious Harmony Act Cap 167A 2001 Rev Ed where the Cabinet s advice is contrary to that of the Presidential Council for Religious Harmony There are also counter checks on the presidential discretion eg Parliament overruling via a two thirds majority of the total number of elected MPs the presidential decision in certain instances In discharging certain specified constitutional functions the President is required to consult the Council of Presidential Advisers a body set up under the Singapore Constitution In other cases the Elected President may in his discretion consult the Council of Presidential Advisers B The Cabinet 1 6 3 The Cabinet under the helm of the Prime Minister is collectively responsible to the Parliament The Prime Minister is appointed by the Elected President from among the Members of Parliament who in the Elected President s judgment is likely to command the confidence of the majority of the Members of Parliament The other Ministers in the Cabinet are appointed from among the Members of Parliament by the Elected President on the advice of the Prime Minister 1 6 4 There is no complete separation of powers between the Executive and Legislature In terms of composition the Ministers from the Cabinet are drawn from the MPs Parliamentary Secretaries are further appointed from amongst the MPs to assist the Ministers Moreover the Ministers and the relevant government agencies are responsible for enacting subsidiary legislation to supplement the parent legislation passed by the Parliament C Government s Legal Advisers 1 6 5 On the legal front the Government is advised and represented by the Attorney General the Deputy Attorney General and the Solicitor General in both civil and criminal matters The Attorney General possesses wide prosecutorial discretion ie to institute conduct or discontinue any proceedings for any offence There are also special divisions within the Attorney General s Chambers dealing with the drafting of legislation law reform economic crimes and international affairs Return to the top SECTION 7 THE JUDICIARY A International Reputation 1 7 1 The great efficiency and strength of the Singapore Judiciary has won her several accolades and a strong international reputation see the rankings of the world s legal systems by Political and Economic Risk Consultancy PERC and the Institute for Management Development IMD Strict case management and Alternative Dispute Resolution methods see Section 9 below have reduced drastically the backlog of cases which had plagued both the Supreme Court and Subordinate Courts in the 1980s The Honourable Chief Justice Sundaresh Menon since his appointment with effect from November 2012 has attained several notable achievements and undertaken important institutional reforms related to the administration of justice One major innovation is the setting up of the Singapore International Commercial Court to hear transnational commercial disputes with a view to establishing Singapore as an international and regional hub for dispute resolution in commercial matters The new Singapore Judicial College provides continuing training and development for the judges and shares Singapore courts experiences in the use of technology organisational excellence and active case management with their counterparts in the region Retired judges of the Supreme Court with a wealth of judicial expertise and experience have been appointed as Senior Judges of the Supreme Court to ease the hearing load and mentor younger judges The new Family Justice Courts have also been set up under the leadership of Sundaresh Menon CJ to provide a non adversarial approach to resolving family related disputes The Centre for Dispute Resolution was launched in 2015 at the State Courts to consolidate the ADR services B Function and Powers 1 7 2 The judge is the arbiter of both law and fact in Singapore The jury system had been severely limited in Singapore and was entirely abolished in 1970 Judicial power is vested in the Supreme Court comprising the Singapore Court of Appeal and the High Court as well as the State Courts formerly the Subordinate Courts C The Court of Appeal 1 7 3 The highest court of the land is the permanent Court of Appeal which hears both civil and criminal appeals emanating from the High Court and the Subordinate Courts As a significant watermark of Singapore s legal history appeals to the Privy Council in England were abolished in 1994 The Practice Statement on Judicial Precedent issued by the Supreme Court on 11 July 1994 clarified that the Singapore Court of Appeal is not bound by its own decisions as well as prior decisions of the Privy Council However it would continue to treat such prior decisions as normally binding though it may depart from the prior precedents where it appears right to do so D The High Court 1 7 4 The High Court Judges enjoy security of tenure whilst the Judicial Commissioners are appointed on a short term contract basis Both however enjoy the same judicial powers and immunities Their judicial powers comprise both original and appellate jurisdiction over both civil and criminal matters Some of the High Court judges are specially designated to hear cases in specific legal areas such as arbitration admiralty and intellectual property E The Singapore International Commercial Court SICC 1 7 5 The SICC is a division of the High Court and part of the Supreme Court of Singapore It hears international and commercial disputes where the litigants have submitted to its jurisdiction under a written jurisdiction agreement and do not seek any relief in the form of or connected with a prerogative order The Chief Justice is the President of the SICC and the other SICC judges include the Judges of Appeal High Court judges Senior Judges as well as International Judges of the Supreme Court Foreign counsel are entitled to appear before the SICC and Court of Appeal on appeals from the SICC in offshore cases which have no substantial connection to Singapore F The Constitutional Tribunal 1 7 6 A special Constitutional Tribunal was also established within the Supreme Court to hear questions referred to by the Elected President on the effect of constitutional provisions G The State Courts 1 7 7 The State Courts consisting of the District Courts Magistrates Courts Juvenile Courts Coroners Courts as well as the Small Claims Tribunals led by the Presiding Judge have also been set up within the Singapore judicial hierarchy to administer justice amongst the people With the increased sophistication in business transactions and law the Commercial Civil and Criminal District Courts have recently been established within the State Courts to deal with the more complex cases Specialist judges have also been appointed on an ad hoc basis to hear specific complex cases H The District and Magistrates Courts 1 7 8 The District Courts and the Magistrates Courts share the same powers over specific matters such as in contractual or tortious claims for a debt demand or damage and in actions for the recovery of monies However the jurisdictional monetary limits in civil matters for the Magistrates Courts and District Courts are 60 000 and 250 000 respectively The courts also differ in terms of criminal jurisdiction and sentencing powers Under the new Criminal Procedure Code 2010 Act 15 of 2010 the Magistrates Courts have the power to try any offence for which the maximum term of imprisonment provided by law does not exceed 5 years or which is punishable with a fine only As for the Districts Courts the stipulated maximum term of imprisonment is 10 years A District Court may pass a sentence of imprisonment not exceeding 10 years fine not exceeding 30 000 caning not exceeding 12 strokes and any other lawful sentence The sentencing powers of a Magistrates Courts are as follows imprisonment not exceeding 3 years fine not exceeding 10 000 caning not exceeding 6 strokes and any other lawful sentence I The Small Claims Tribunals 1 7 9 The Small Claims Tribunals on the other hand afford a speedier less costly and more informal process for the disposition of certain specified small claims ie claims relating to disputes arising from contract for the sale of goods or the provision of services tort in respect of property damage and any contract for the lease of residential premises that does not exceed 2 years with a monetary limit of 10 000 only or 20 000 where the disputing parties consent in writing J Family Justice Courts 1 7 10 The Family Justice Courts set up in 2014 under the Family Justice Act 2014 comprise the High Court Family Division the Family Court and the Youth Court The Family Court deal with family related matters including divorces and other ancillary matters maintenance custody care control and access to children and the division of matrimonial property adoptions and personal protection orders The Youth Court which is presided over by a District Judge or a Magistrate has jurisdiction over children or young persons charged with offences K The Courts and Information Technology 1 7 11 The Judiciary has also taken major strides in utilising information technology in the courts which has in part at least enhanced its efficiency The Technology Courts were for instance set up to enable the sharing of information by lawyers and judges and the giving of evidence by witnesses via video conferencing The Electronic Filing System EFS a joint project by the Judiciary Singapore Network Services and the Singapore Academy of Law to enable the filing extraction and service of court documents as well as the tracking of case information by electronic means has undergone further refinements to upgrade services to end users It was reconstituted as the Electronic Litigations Systems ELS in order to further integrate technology into the litigation processes eLitigation has since been launched in 2013 to provide for the management of case files through short message services SMS reminder alerts calendaring and hearing management to select hearing dates as well as a secure form of access to the web based service via SingPass Various information technology innovations have also been utilised to facilitate and streamline various criminal processes namely the registration and management of criminal cases SCRIMS the processing of traffic charges between the police and the courts TICKS 2000 and the payment of fines for minor traffic offences ATOMS Return to the top SECTION 8 LEGAL EDUCATION AND LEGAL PROFESSION A Functions of Lawyers in Singapore 1 8 1 The legal profession in Singapore is fused the Singapore lawyer may act as both an Advocate as well as a Solicitor As an Advocate and Solicitor of the Supreme Court of Singapore he or she has the right to appear and plead before the Singapore courts of justice The opportunities of a Singapore lawyer are fairly varied he or she may for example wish to serve as a legal or judicial officer in the Singapore Legal Service an in house counsel of a company or practise law in a local or international law firm In the local set up the lawyer may handle litigation corporate work real estate and intellectual property work Outstanding litigators practitioners and law academics have been appointed as Senior Counsel in recognition of their lofty professional standards The legal profession has like the courts undergone increased specialisation of functions in recent years B Admission to the Singapore Bar 1 8 2 A sound legal education is instrumental to the birth and subsequent development of the Singapore lawyer The Singapore Institute of Legal Education was established in May 2011 to maintain and improve the standards of legal education in Singapore To be admitted to the Singapore Bar an aspirant has to first attain the status of a qualified person by obtaining a law degree from the National University of Singapore NUS or the Singapore Management University SMU or from one of the approved overseas universities of the United Kingdom United States Australia Canada and New Zealand In addition to the LL B programme SMU offers a Juris Doctor J D Program for graduates with a first degree from other disciplines as well as law graduates from civil law jurisdictions and non gazetted universities in common law jurisdictions Apart from a four year LL B program NUS also offers a three year graduate LL B program for graduates with a first degree 1 8 3 Law graduates from the approved foreign universities will be required to pass Part A of the Bar Examination a short conversion course on Singapore law Overseas graduates with Lower Second Class honours and above from the approved universities are eligible to take the Bar Examination Law graduates from NUS and SMU are not required to undertake Part A of the Bar Examination The law graduates from both the local and approved foreign universities would have to undergo and pass the full time Preparatory Course leading to Part B of the Singapore Bar Examinations consisting of a list of both compulsory and elective subjects Finally the law graduate must serve a practice training period with a Singapore law practice pursuant to a practice training contract or through work as a Legal Service officer or under the supervision of a qualifying legal officer Upon fulfilment of the above requirements he or she can be admitted to the Singapore Bar 1 8 4 Foreign qualified lawyers may apply for a Foreign Practitioner Certificate from the Attorney General to practise in limited areas of Singapore law such as banking and finance mergers and acquisitions and intellectual property law subject to passing the Foreign Practitioner Examinations FPE One prerequisite for taking the FPE is that the foreign lawyer must have at least three years of relevant legal practice or work in Singapore or overseas Queen s Counsel from the United Kingdom may be admitted on an ad hoc basis for a particular case provided the court is satisfied that it is of sufficient difficulty and complexity 1 8 5 Queen s Counsel from the United Kingdom may be admitted on an ad hoc basis for a particular case based on the following considerations the nature of the factual and legal issues involved in the case the necessity for the services of a foreign senior counsel the availability of any senior counsel or other advocate and solicitor with appropriate experience and whether having regard to the circumstances of the case it is reasonable to admit a foreign senior counsel for the purpose of the case C Legal Education 1 8 6 With the increased internationalisation of legal services legal education in Singapore has placed greater emphasis on the need for law undergraduates to acquire knowledge of and exposure to foreign legal systems and international law To ensure that Singapore lawyers keep abreast of significant legal developments a Mandatory Continuing Professional Development scheme applies to newly qualified lawyers with less than 5 years experience as well as senior lawyers of between 5 and 15 years standing The Government also reviews the supply of lawyers periodically to ensure that the supply of lawyers meets the growing demand for legal talent The Fourth Committee on the Supply of Lawyers 2013 has recommended that the intake of students at SMU Law School be increased and that a new law school be set up which focuses on legal training for those persons who are interested to practise community law as well as similarly interested mature students who have worked as paralegals social workers or law enforcement officers D Forms of Legal Practice 1 8 7 There are various vehicles for the setting up of legal practices and cooperative alliances amongst the law firms Apart from the erstwhile sole proprietorships and partnerships the legal profession has also seen the creation of the law corporation with the associated benefits of limited liability as well as limited liability partnerships Singapore law firms are entitled to employ appropriately qualified foreign lawyers to practise law subject to certain criteria including appropriate qualifications expertise and experience and the areas of legal practice of the lawyer and the law firm 1 8 8 There also exists the avenue of forming Joint Law Ventures and Formal Law Alliances between foreign and local law firms subject to the approval of the Attorney General with the attendant advantages of marketing the venture or alliance as a single service provider and centralised billing for clients Foreign lawyers who are employed by or who are partners or directors of the Joint Law Ventures may practise Singapore law subject to certain requirements such as qualifications expertise and experience and the restrictions on the areas of legal practice Qualifying Foreign Law Practice QFLP licences have been granted by the Ministry for Law to selected foreign law firms to allow them to practise Singapore law in permitted areas of legal practice through Singapore qualified solicitors employed by them 1 8 9 The Legal Services Regulatory Authority headed by the Director of Legal Services has been established under the Ministry for Law to register law practices and regulate the business of the law practices in Singapore A new vehicle the Legal Disciplinary Practice is permitted in which non lawyer managers or employees will be allowed to own

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  • Ch.02 Civil Procedure
    not determinative of the matter The court will also consider whether there are special circumstances which militate against a stay including whether substantial injustice will be caused in sending the plaintiff to a foreign court C Court Fees and Hearing Fees 1 Fees payable at various stages of civil proceedings 2 5 5 Court fees are prescribed in a number of statutory regulations and are payable at various stages in civil proceedings 2 Fees payable when documents filed and services rendered 2 5 6 Fees are payable when documents are filed with the court Fees are also separately payable in respect of services such as sealing documents providing copies of documents and the use of the court for hearings 3 Tabular summary of fees payable 2 5 7 Presently court hearing fees for hearings in the State Courts are as follows Days Magistrate s Court District Court 1st day Free Free 2nd day onward S 250 per day or part thereof S 500 per day or part thereof 2 5 8 Court hearing fees for hearings before a Judge in the High Court are as follows Days Value of claim up to S 1 million Value of claim more than S 1 million 1st to 3rd day Free Free 4th day S 6 000 per day or part thereof S 9 000 per day or part thereof 5th day S 2 000 per day or part thereof S 3 000 per day or part thereof 6th to 10th day S 3 000 per day or part thereof S 5 000 per day or part thereof 11th day onward S 5 000 per day or part thereof S 10 000 per day or part thereof Return to the top SECTION 6 COMMENCING A WRIT ACTION PROCEEDINGS UP TO CLOSE OF PLEADINGS Issue and Validity of a Writ 2 6 1 To commence a writ action the plaintiff will have to file the writ in the Supreme Court Registry to be signed and sealed by the Registrar Once the writ is signed and sealed it is deemed issued A writ is generally valid for 6 months Where it has to be served out of jurisdiction it is valid for 12 months and where it is issued in Admiralty Proceedings the writ is valid for 12 months The plaintiff may apply to the court to extend the validity of the writ for a further period of 6 months at a time Service of the Writ 2 6 2 A writ must be served personally on each defendant Personal service is effected by leaving a copy of the document on the defendant if he is an individual and at the registered address of the defendant if it is a company There are exceptions for example where the defendant s solicitor has authority to accept service on behalf of the defendant or where an order for substituted service is made Service of the Writ out of Singapore 2 6 3 The court may grant leave to a plaintiff to serve a writ on a defendant outside Singapore Before a court grants leave it must be satisfied that the plaintiff has a good arguable case falling under one of the limbs of Order 11 rule 1 of the Rules of Court which amongst other cases include instances where relief is sought against a person who is domiciled ordinarily resident or carrying on business or who has property in Singapore and or an injunction is sought ordering the defendant to do or refrain from doing anything in Singapore and or the claim is brought in respect of a breach committed in Singapore of a contract made in Singapore Further the court has to be satisfied that there are serious issues to be tried If leave is granted service outside Singapore has to be in accordance with the laws of the country in which service is effected Entering Appearance 2 6 4 If a defendant is served with the writ he has 8 days after service of the writ or 21 days if the writ was served out of jurisdiction to enter an appearance by filing a Memorandum of Appearance with the court to indicate his intention to defend the suit Pleadings 2 6 5 Before a writ is issued it must be endorsed with a statement of claim or if the statement of claim is not endorsed on the writ with a general endorsement consisting of a concise statement of the nature of the claim made and the relief or remedy prayed for When the writ only has a general endorsement the statement of claim must be served before the expiration of 14 days after the defendant enters an appearance When the defendant has entered appearance he is required to file and serve his defence on the plaintiff 14 days after the time limited for entering an appearance or after service of the statement of claim whichever is later A defendant may make a counterclaim in the same action brought by the plaintiff in the defence and counterclaim A plaintiff must serve on the defendant his reply and defence to a counterclaim if any within 14 days after the defence and counterclaim has been served on him Close of Pleadings 2 6 6 Pleadings are deemed closed 14 days after service of the reply or service of defence to the counterclaim If neither a reply nor a defence to the counterclaim is served pleadings are deemed to be closed at the end of 14 days after the defence is served Third Party Proceedings 2 6 7 If the defendant is of the view that another party is liable to indemnify it and or otherwise contribute towards the plaintiff s claim the defendant may apply to add that party as a third party leading to third party proceedings Return to the top SECTION 7 DISPOSAL OF ACTION WITHOUT TRIAL 2 7 1 Proceedings may be resolved and or otherwise summarily terminated and or determined and disposed of at an early stage before the trial of the action for a variety of reasons Default Judgment 2 7 2 If a defendant fails to enter an appearance or having entered appearance fails to file a defence within the time specified in the writ the plaintiff may enter default judgment against him This may be a final judgment or an interlocutory judgment depending on the nature of the claim Summary Judgment 2 7 3 If the defendant has entered appearance and filed a defence but it is clear that the defendant has no real defence to the claim the plaintiff may apply to court for summary judgment against the defendant To avoid summary judgment being entered the defendant has to show that the dispute concerns a triable issue or that there is some other reason for trial An application for summary judgment must be filed at the latest within 28 days after pleadings are deemed to be closed unless the court otherwise orders Striking Out 2 7 4 Pleadings may also be struck out summarily An application to strike out any pleading or part thereof may be made if it discloses no reasonable cause of action or defence and or is scandalous frivolous or vexatious and or tends to prejudice embarrass or delay the fair trial of the action and or is otherwise an abuse of the process of the court Discontinuance and withdrawal 2 7 5 Finally a party may withdraw or discontinue his action or defence or counterclaim as the case may be This may be done with or without the court s leave permission depending on the stage of the proceedings Return to the top SECTION 8 PROVISIONAL REMEDIES AND OTHER INTERLOCUTORY MATTERS Interlocutory Injunction 2 8 1 At any stage of the proceedings but frequently immediately following the issue of the writ it may be necessary and or appropriate for a litigant to apply to court for an interlocutory injunction directing the other party to do or refrain from doing something until the trial of the action The purpose of such an injunction is to protect the litigant against injury which it would not otherwise be adequately compensated for in damages if the dispute was resolved in its favour at trial In cases of urgency the plaintiff may make an application even before the issue of the proceedings but must give notice of the application to the other concerned parties unless grounds can be shown that giving notice would defeat the purpose of the application 2 8 2 To obtain the injunction the applicant must show that there is a serious question to be tried with a real prospect of success and that the balance of convenience lies in favour of granting the injunction The granting of an injunction is normally made subject to the plaintiff s undertaking to pay damages to the defendant in the event the defendant is vindicated or the court later decides the injunction should not have been granted Mareva injunction 2 8 3 The Mareva injunction is designed to prevent parties from taking steps to deliberately frustrate the orders of the Court by dissipating assets either locally or worldwide in order to avoid the risk of having to satisfy any judgment which may be entered against them in the proceedings Notice of the application has to be given to the other parties concerned unless there is evidence that such notice will defeat the purpose of the application 2 8 4 To obtain a domestic injunction the plaintiff must show that he has a good arguable case against the defendant the defendant has assets within jurisdiction and there is a real risk of dissipation of assets from the jurisdiction which would render judgment obtained in the proceedings nugatory The same principles apply in the case of a worldwide Mareva injunction except that insofar as the defendant s assets within jurisdiction are concerned the plaintiff will have to show that there are no and or insufficient assets within jurisdiction to satisfy the claim and that there are assets outside the jurisdiction Anton Piller Order 2 8 5 Another provisional remedy is the Anton Piller order which seeks to prevent a defendant from destroying incriminating evidence by permitting certain persons to enter his premises to search for seize and retain documents or other items Such an application is made without notice To obtain such an order the plaintiff must satisfy the court that it has an extremely strong prima facie case the potential damage to the plaintiff which the grant of an order could avert is very serious there is clear evidence that the defendant has in its possession incriminating documents or items and there is a real possibility that the defendant may destroy such material before an application with notice to the other parties can be made Other Interlocutory Matters Applications 2 8 6 Apart from these provisional remedies there are other more standard interlocutory matters applications which may be and or are typically taken out before a matter is ready to be set down for trial Discovery and Inspection of Documents 2 8 7 For example an important aspect of litigation is the discovery process through which parties have to give discovery of the documents which are relevant to the issues in the case and which are in their possession custody or power However if one party believes that the other party has given inadequate discovery it may apply to Court for specific discovery of documents Security for Costs 2 8 8 Another common application is that for security for costs The court may order a person in the position of plaintiff to give security for its opponents costs The defendant has to show that the plaintiff is ordinarily resident out of the jurisdiction and or the plaintiff is a nominal plaintiff who is suing for the benefit of some other person and there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so and or the plaintiff s address is not stated in the writ or other originating process or is incorrectly stated and or the plaintiff has changed its address during the course of proceedings to evade the consequences of litigation If the case falls within one of the aforesaid cases the court will having regard to all the circumstances of the case including whether an order will stifle a genuine claim decide if it will be just to order security Return to the top SECTION 9 EXCHANGING EVIDENCE AND SETTING DOWN FOR TRIAL Pre Trial Conference 2 9 1 To facilitate proceedings the Registrar holds regular pre trial conferences PTC At the PTC the Registrar will take stock of the status of the action and give directions to parties on the next steps to be taken in the proceedings The PTC is supplemented by the Summons For Directions which is filed by the plaintiff to obtain formal directions amongst other things for the exchange of affidavits of evidence in chief and to fix trial dates Exchange of Affidavits of Evidence in Chief 2 9 2 Each party has to prepare file and exchange affidavits of evidence in chief of each of its witnesses These are written sworn statements by the witnesses which will stand as their testimony at the trial and on which they will be cross examined The affidavits of evidence in chief are filed and exchanged before the trial Expert Evidence 2 9 3 Parties may also exchange expert evidence by way of an expert report exhibited to the affidavit Experts may be appointed by the court or by parties It is the duty of an expert to assist the court on the matters within his expertise and this duty overrides any obligation to the person from whom he has received instructions or by whom he is paid Subpoenas 2 9 4 Subpoenas may be issued to ensure the attendance of witnesses at trial failing which the affidavits they have submitted as evidence in chief will be rejected by the court Three types of subpoenas may be issued The first requires the witness to attend court to give oral evidence the second requires the person named to produce documents without the obligation to attend personally and the third is a combined subpoena that requires the witness to give evidence in court and produce documents Setting Down 2 9 5 When all interlocutory processes have been concluded and the matter is ready for hearing parties have to file the Request for Setting Down Action for Trial together with the necessary bundles of documents Return to the top SECTION 10 TRIAL 2 10 1 The plaintiff s solicitors will open the plaintiff s case unless the burden of proof is on the defendant by addressing the court and the plaintiff s witnesses will take the stand first and be cross examined Each witness may be re examined after his her cross examination has ended After all the plaintiff s witnesses have given evidence the plaintiff s case is closed It is then the turn of the defendant s witnesses to testify and be cross examined and re examined on their evidence After the defendant s witnesses have completed giving their testimony parties will make closing submissions which may depending on the Judge and complexity of the matter be either oral or written After a decision has been made and judgment delivered the Registrar or the proper officer of the Court will enter in the minute book the judgment given by the Judge and any order made by the Judge as to costs Return to the top SECTION 11 ASSESSMENT OF DAMAGES 2 11 1 In certain cases including personal injury claims a judge may grant judgment on the issue of liability but not make a ruling on the precise quantum of damages that has to be paid to the successful litigant by the other party In this situation the quantum of damages to be awarded is assessed by a Registrar in a hearing in chambers The Registrar will hear evidence from appropriate parties such as the injured plaintiff and or medical experts to determine the appropriate quantum of damages to be awarded The hearing for assessment of damages follows a similar order of proceedings used in trials before judges Return to the top SECTION 12 ENFORCEMENT Writs of Execution 2 12 1 A judgment may be enforced by one of a variety of writs of execution including a Writ of Seizure and Sale of movable and immovable property a Writ of Delivery and Writ of Distress These writs authorize court officials to take appropriate measures to give effect to the judgment Garnishee Proceedings 2 12 2 The garnishee process may be appropriate where the judgment debtor owes a debt to a third party the garnishee When the judgment creditor garnishes the debt the garnishee must pay the money to him instead of to the judgment debtor To collect the money representing the debt the judgment creditor must first apply for a garnishee order nisi which may be filed without involvement of other parties This leads to show cause proceedings If the garnishee confirms that there are monies due and owing to the judgment debtor at the show cause stage the Registrar may proceed to make the garnishee nisi absolute and the garnishee must pay the money to the judgment creditor instead of the judgment debtor Registration of Judgment 2 12 3 Where the judgment creditor is not able to enforce his judgment in Singapore because the judgment debtor has no assets here he may be able to enforce it in a country where the latter does have assets He might do so by commencing fresh proceedings or if possible by registering his Singapore judgment in the foreign country on the basis of reciprocity of enforcement between the two countries Others 2 12 4 There are other processes by which a judgment may be enforced including bankruptcy and company winding

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  • Ch.02 Civil Procedure
    if any and the location of witnesses However this is not determinative of the matter The court will also consider whether there are special circumstances which militate against a stay including whether substantial injustice will be caused in sending the plaintiff to a foreign court C Court Fees and Hearing Fees 1 Fees payable at various stages of civil proceedings 2 5 5 Court fees are prescribed in a number of statutory regulations and are payable at various stages in civil proceedings 2 Fees payable when documents filed and services rendered 2 5 6 Fees are payable when documents are filed with the court Fees are also separately payable in respect of services such as sealing documents providing copies of documents and the use of the court for hearings 3 Tabular summary of fees payable 2 5 7 Presently court hearing fees for hearings in the State Courts are as follows Days Magistrate s Court District Court 1st day Free Free 2nd day onward S 250 per day or part thereof S 500 per day or part thereof 2 5 8 Court hearing fees for hearings before a Judge in the High Court are as follows Days Value of claim up to S 1 million Value of claim more than S 1 million 1st to 3rd day Free Free 4th day S 6 000 per day or part thereof S 9 000 per day or part thereof 5th day S 2 000 per day or part thereof S 3 000 per day or part thereof 6th to 10th day S 3 000 per day or part thereof S 5 000 per day or part thereof 11th day onward S 5 000 per day or part thereof S 10 000 per day or part thereof Return to the top SECTION 6 COMMENCING A WRIT ACTION PROCEEDINGS UP TO CLOSE OF PLEADINGS Issue and Validity of a Writ 2 6 1 To commence a writ action the plaintiff will have to file the writ in the Supreme Court Registry to be signed and sealed by the Registrar Once the writ is signed and sealed it is deemed issued A writ is generally valid for 6 months Where it has to be served out of jurisdiction it is valid for 12 months and where it is issued in Admiralty Proceedings the writ is valid for 12 months The plaintiff may apply to the court to extend the validity of the writ for a further period of 6 months at a time Service of the Writ 2 6 2 A writ must be served personally on each defendant Personal service is effected by leaving a copy of the document on the defendant if he is an individual and at the registered address of the defendant if it is a company There are exceptions for example where the defendant s solicitor has authority to accept service on behalf of the defendant or where an order for substituted service is made Service of the Writ out of Singapore 2 6 3 The court may grant leave to a plaintiff to serve a writ on a defendant outside Singapore Before a court grants leave it must be satisfied that the plaintiff has a good arguable case falling under one of the limbs of Order 11 rule 1 of the Rules of Court which amongst other cases include instances where relief is sought against a person who is domiciled ordinarily resident or carrying on business or who has property in Singapore and or an injunction is sought ordering the defendant to do or refrain from doing anything in Singapore and or the claim is brought in respect of a breach committed in Singapore of a contract made in Singapore Further the court has to be satisfied that there are serious issues to be tried If leave is granted service outside Singapore has to be in accordance with the laws of the country in which service is effected Entering Appearance 2 6 4 If a defendant is served with the writ he has 8 days after service of the writ or 21 days if the writ was served out of jurisdiction to enter an appearance by filing a Memorandum of Appearance with the court to indicate his intention to defend the suit Pleadings 2 6 5 Before a writ is issued it must be endorsed with a statement of claim or if the statement of claim is not endorsed on the writ with a general endorsement consisting of a concise statement of the nature of the claim made and the relief or remedy prayed for When the writ only has a general endorsement the statement of claim must be served before the expiration of 14 days after the defendant enters an appearance When the defendant has entered appearance he is required to file and serve his defence on the plaintiff 14 days after the time limited for entering an appearance or after service of the statement of claim whichever is later A defendant may make a counterclaim in the same action brought by the plaintiff in the defence and counterclaim A plaintiff must serve on the defendant his reply and defence to a counterclaim if any within 14 days after the defence and counterclaim has been served on him Close of Pleadings 2 6 6 Pleadings are deemed closed 14 days after service of the reply or service of defence to the counterclaim If neither a reply nor a defence to the counterclaim is served pleadings are deemed to be closed at the end of 14 days after the defence is served Third Party Proceedings 2 6 7 If the defendant is of the view that another party is liable to indemnify it and or otherwise contribute towards the plaintiff s claim the defendant may apply to add that party as a third party leading to third party proceedings Return to the top SECTION 7 DISPOSAL OF ACTION WITHOUT TRIAL 2 7 1 Proceedings may be resolved and or otherwise summarily terminated and or determined and disposed of at an early stage before the trial of the action for a variety of reasons Default Judgment 2 7 2 If a defendant fails to enter an appearance or having entered appearance fails to file a defence within the time specified in the writ the plaintiff may enter default judgment against him This may be a final judgment or an interlocutory judgment depending on the nature of the claim Summary Judgment 2 7 3 If the defendant has entered appearance and filed a defence but it is clear that the defendant has no real defence to the claim the plaintiff may apply to court for summary judgment against the defendant To avoid summary judgment being entered the defendant has to show that the dispute concerns a triable issue or that there is some other reason for trial An application for summary judgment must be filed at the latest within 28 days after pleadings are deemed to be closed unless the court otherwise orders Striking Out 2 7 4 Pleadings may also be struck out summarily An application to strike out any pleading or part thereof may be made if it discloses no reasonable cause of action or defence and or is scandalous frivolous or vexatious and or tends to prejudice embarrass or delay the fair trial of the action and or is otherwise an abuse of the process of the court Discontinuance and withdrawal 2 7 5 Finally a party may withdraw or discontinue his action or defence or counterclaim as the case may be This may be done with or without the court s leave permission depending on the stage of the proceedings Return to the top SECTION 8 PROVISIONAL REMEDIES AND OTHER INTERLOCUTORY MATTERS Interlocutory Injunction 2 8 1 At any stage of the proceedings but frequently immediately following the issue of the writ it may be necessary and or appropriate for a litigant to apply to court for an interlocutory injunction directing the other party to do or refrain from doing something until the trial of the action The purpose of such an injunction is to protect the litigant against injury which it would not otherwise be adequately compensated for in damages if the dispute was resolved in its favour at trial In cases of urgency the plaintiff may make an application even before the issue of the proceedings but must give notice of the application to the other concerned parties unless grounds can be shown that giving notice would defeat the purpose of the application 2 8 2 To obtain the injunction the applicant must show that there is a serious question to be tried with a real prospect of success and that the balance of convenience lies in favour of granting the injunction The granting of an injunction is normally made subject to the plaintiff s undertaking to pay damages to the defendant in the event the defendant is vindicated or the court later decides the injunction should not have been granted Mareva injunction 2 8 3 The Mareva injunction is designed to prevent parties from taking steps to deliberately frustrate the orders of the Court by dissipating assets either locally or worldwide in order to avoid the risk of having to satisfy any judgment which may be entered against them in the proceedings Notice of the application has to be given to the other parties concerned unless there is evidence that such notice will defeat the purpose of the application 2 8 4 To obtain a domestic injunction the plaintiff must show that he has a good arguable case against the defendant the defendant has assets within jurisdiction and there is a real risk of dissipation of assets from the jurisdiction which would render judgment obtained in the proceedings nugatory The same principles apply in the case of a worldwide Mareva injunction except that insofar as the defendant s assets within jurisdiction are concerned the plaintiff will have to show that there are no and or insufficient assets within jurisdiction to satisfy the claim and that there are assets outside the jurisdiction Anton Piller Order 2 8 5 Another provisional remedy is the Anton Piller order which seeks to prevent a defendant from destroying incriminating evidence by permitting certain persons to enter his premises to search for seize and retain documents or other items Such an application is made without notice To obtain such an order the plaintiff must satisfy the court that it has an extremely strong prima facie case the potential damage to the plaintiff which the grant of an order could avert is very serious there is clear evidence that the defendant has in its possession incriminating documents or items and there is a real possibility that the defendant may destroy such material before an application with notice to the other parties can be made Other Interlocutory Matters Applications 2 8 6 Apart from these provisional remedies there are other more standard interlocutory matters applications which may be and or are typically taken out before a matter is ready to be set down for trial Discovery and Inspection of Documents 2 8 7 For example an important aspect of litigation is the discovery process through which parties have to give discovery of the documents which are relevant to the issues in the case and which are in their possession custody or power However if one party believes that the other party has given inadequate discovery it may apply to Court for specific discovery of documents Security for Costs 2 8 8 Another common application is that for security for costs The court may order a person in the position of plaintiff to give security for its opponents costs The defendant has to show that the plaintiff is ordinarily resident out of the jurisdiction and or the plaintiff is a nominal plaintiff who is suing for the benefit of some other person and there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so and or the plaintiff s address is not stated in the writ or other originating process or is incorrectly stated and or the plaintiff has changed its address during the course of proceedings to evade the consequences of litigation If the case falls within one of the aforesaid cases the court will having regard to all the circumstances of the case including whether an order will stifle a genuine claim decide if it will be just to order security Return to the top SECTION 9 EXCHANGING EVIDENCE AND SETTING DOWN FOR TRIAL Pre Trial Conference 2 9 1 To facilitate proceedings the Registrar holds regular pre trial conferences PTC At the PTC the Registrar will take stock of the status of the action and give directions to parties on the next steps to be taken in the proceedings The PTC is supplemented by the Summons For Directions which is filed by the plaintiff to obtain formal directions amongst other things for the exchange of affidavits of evidence in chief and to fix trial dates Exchange of Affidavits of Evidence in Chief 2 9 2 Each party has to prepare file and exchange affidavits of evidence in chief of each of its witnesses These are written sworn statements by the witnesses which will stand as their testimony at the trial and on which they will be cross examined The affidavits of evidence in chief are filed and exchanged before the trial Expert Evidence 2 9 3 Parties may also exchange expert evidence by way of an expert report exhibited to the affidavit Experts may be appointed by the court or by parties It is the duty of an expert to assist the court on the matters within his expertise and this duty overrides any obligation to the person from whom he has received instructions or by whom he is paid Subpoenas 2 9 4 Subpoenas may be issued to ensure the attendance of witnesses at trial failing which the affidavits they have submitted as evidence in chief will be rejected by the court Three types of subpoenas may be issued The first requires the witness to attend court to give oral evidence the second requires the person named to produce documents without the obligation to attend personally and the third is a combined subpoena that requires the witness to give evidence in court and produce documents Setting Down 2 9 5 When all interlocutory processes have been concluded and the matter is ready for hearing parties have to file the Request for Setting Down Action for Trial together with the necessary bundles of documents Return to the top SECTION 10 TRIAL 2 10 1 The plaintiff s solicitors will open the plaintiff s case unless the burden of proof is on the defendant by addressing the court and the plaintiff s witnesses will take the stand first and be cross examined Each witness may be re examined after his her cross examination has ended After all the plaintiff s witnesses have given evidence the plaintiff s case is closed It is then the turn of the defendant s witnesses to testify and be cross examined and re examined on their evidence After the defendant s witnesses have completed giving their testimony parties will make closing submissions which may depending on the Judge and complexity of the matter be either oral or written After a decision has been made and judgment delivered the Registrar or the proper officer of the Court will enter in the minute book the judgment given by the Judge and any order made by the Judge as to costs Return to the top SECTION 11 ASSESSMENT OF DAMAGES 2 11 1 In certain cases including personal injury claims a judge may grant judgment on the issue of liability but not make a ruling on the precise quantum of damages that has to be paid to the successful litigant by the other party In this situation the quantum of damages to be awarded is assessed by a Registrar in a hearing in chambers The Registrar will hear evidence from appropriate parties such as the injured plaintiff and or medical experts to determine the appropriate quantum of damages to be awarded The hearing for assessment of damages follows a similar order of proceedings used in trials before judges Return to the top SECTION 12 ENFORCEMENT Writs of Execution 2 12 1 A judgment may be enforced by one of a variety of writs of execution including a Writ of Seizure and Sale of movable and immovable property a Writ of Delivery and Writ of Distress These writs authorize court officials to take appropriate measures to give effect to the judgment Garnishee Proceedings 2 12 2 The garnishee process may be appropriate where the judgment debtor owes a debt to a third party the garnishee When the judgment creditor garnishes the debt the garnishee must pay the money to him instead of to the judgment debtor To collect the money representing the debt the judgment creditor must first apply for a garnishee order nisi which may be filed without involvement of other parties This leads to show cause proceedings If the garnishee confirms that there are monies due and owing to the judgment debtor at the show cause stage the Registrar may proceed to make the garnishee nisi absolute and the garnishee must pay the money to the judgment creditor instead of the judgment debtor Registration of Judgment 2 12 3 Where the judgment creditor is not able to enforce his judgment in Singapore because the judgment debtor has no assets here he may be able to enforce it in a country where the latter does have assets He might do so by commencing fresh proceedings or if possible by registering his Singapore judgment in the foreign country on the basis of reciprocity of enforcement between the two countries Others 2 12 4 There are other processes by which

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  • Ch.03 Mediation
    and to include a mediation clause for referrals of disputes to SMC in government contracts 4 Developing Singapore as an international mediation centre 3 3 19 In 2013 the CJ and the Ministry of Law appointed a Working Group to look into developing Singapore as the centre of international commercial mediation The key recommendations were 1 the formation of the Singapore International Mediation Centre 2 the formation of the Singapore International Mediation Institute 3 the enactment of a Mediation Act 4 extension of tax exemptions and incentives to mediation 5 enhancing rules and court processes and 6 reaching out to target markets and key industries Return to the top SECTION 4 SINGAPORE MEDIATION CENTRE SINGAPORE INTERNATIONAL MEDIATION CENTRE SIMC AND SINGAPORE INTERNATIONAL MEDIATION INSTITUTE SIMI A History of SMC 3 4 1 SMC was incorporated on 8 August 1997 and officially launched by the Honourable Chief Justice Yong Pung How on 16 August 1997 SMC is a non profit organisation guaranteed by the Singapore Academy of Law It is linked institutionally with many professional and trade associations and receives the support of the judiciary and the Singapore Academy of Law B Roles and functions of SMC 3 4 2 SMC has successfully spearheaded the mediation movement in Singapore and is dedicated to the promotion of amicable and efficient settlement of disputes C Statistics on mediation cases referred to SMC 3 4 3 As at 30 September 2014 more than 25000 disputes were referred to SMC About 75 of the cases that are mediated at SMC are successfully settled Of those successfully resolved more than 90 were settled within one working day and of the disputants who participated in the mediations and provided feedback 83 reported cost savings 87 reported time savings and 94 would recommend the process to other persons in the same situation Very often parties save substantial legal court and hearing fees when agreements are reached by mediation 3 4 4 Almost all types of civil cases are mediated at SMC SMC has handled cases where the disputed amount is in excess of S 200 million To date the total quantum of disputes handled at SMC is in excess of S 3 2 billion About 40 of SMC cases are referred by the courts D Mediators in SMC 1 SMC maintains a panel of Principal Mediators that have undergone formal mediation training 3 4 5 SMC maintains its own panel of trained and experienced Principal Mediators comprised of distinguished members of different professions and fields They include Members of Parliament former High Court Judges Senior Counsel architects doctors engineers IT specialists project managers psychologists and university professors 3 4 6 All SMC Principal Mediators have undergone formal mediation training and a strict evaluation before being appointed to the panel 2 SMC maintains an international panel consisting of internationally renowned neutrals 3 4 7 There is also an international panel consisting of internationally renowned neutrals If disputes require technical expert knowledge SMC usually appoints two mediators to the case to co mediate the dispute One of these mediators will be a professional of the industry concerned who is familiar with the subject matter of the dispute The other mediator is generally a lawyer who will be familiar with the legal issues 3 Mediators are able to handle cases in languages other than English such as Tamil Malay Mandarin and other Chinese dialects 3 4 8 SMC will also try to match the language abilities of the mediators to the disputants to facilitate the free flow of conversation between the parties and to avoid the mediation of cases through translators who may hinder the building of rapport between mediator s and parties So far besides English cases have been successfully mediated in Mandarin and other Chinese dialects as well as Tamil and Malay 4 Mediators are bound by SMC s Code of Conduct 3 4 9 Mediations under SMC s auspices are governed by the provisions in the SMC Mediation Procedure Clause 4 of this Procedure states that a mediator has to subscribe to SMC s Code of Conduct These provisions are binding upon all mediators appointed by SMC to mediate They direct and guide the mediator through the mediation process with regard to issues such as confidentiality neutrality and impartiality E Mediation processes at SMC 1 The mediation process may be initiated by a reference by the courts or upon request of one or more parties 3 4 10 The mediation process at SMC may be initiated in two ways either the case may be referred to SMC by the courts or one or more of the parties may contact SMC directly with a request for mediation If only one party makes a request SMC will contact all the other parties and seek to convince them to attempt mediation 3 4 11 After SMC has assessed the suitability of the case for mediation and if all parties agree to mediate SMC may brief the parties on what mediation at SMC entails This is to ensure that the parties make an informed decision and are committed towards finding a suitable solution to their dispute via mediation 2 SMC s Agreement to Mediate must be signed by the parties 3 4 12 The first step for mediation at SMC is the signing of SMC s Agreement to Mediate By this Agreement the parties are bound by the terms of SMC s Mediation Procedure which requires them to give effect to the terms of any settlement reached 3 SMC will set a date and time for mediation 3 4 13 Then SMC will designate a date and time for the mediation process usually one week after initiation or on an urgent basis within 24 hours Mediation sessions are held at SMC s premises to ensure neutrality 4 SMC will appoint suitable mediators 3 4 14 Also SMC will appoint suitable mediators from its Panel of Principal Mediators A party may reject the proposed mediator if it has valid reasons such as conflict of interests Meanwhile the parties exchange concise summaries of their positions in the case and if necessary of important documents referred to in the summary 5 A brief description of the mediation process 3 4 15 On the day of the mediation the mediator will lead and guide the parties through a problem solving process The lawyers of the parties play an important role in assisting the mediator and advising the parties during the settlement process If the matter is settled the parties will reduce in writing the terms of their settlement with the assistance of their lawyers and this settlement agreement will be signed by or on behalf of the parties Return to the top SECTION 5 COURT BASED MEDIATION IN THE STATE COURTS A History of Court based Mediation 3 5 1 Court based mediation was first introduced as a pilot project in 1994 when specially selected District Judges mediated a range of civil disputes The Court Mediation Centre was established in 1995 following the pilot project It was renamed the Primary Dispute Resolution Centre in May 1998 In addition the multi door courthouse was established within the Primary Dispute Resolution Centre PDRC in 1999 Its purpose was to assist and direct disputants in finding the appropriate dispute resolution mechanism within or outside the court system Also it seeks to increase public awareness of dispute resolution processes 3 5 2 Court based mediation was gradually extended to other disputes within the Courts Mediation was introduced for minor criminal offences around 1996 Magistrate s complaints that involved interpersonal relationships such as disputes between neighbours were referred for mediation Since then mediation for these minor offences have been institutionalised within the State Courts 3 5 3 Mediation has similarly played a prominent role in family justice Court based mediation and counseling were introduced in the Family Justice Courts after the Family Court was established in 1995 The Family Resolutions Chambers were established in 2006 to consolidate the Family Justice Courts mediation programmes In addition the Child Focused Resolution Centre was set up in 2011 to carry out the legislative mandate of requiring divorcing parties with at least one minor child to undergo counseling and mediation I suggest adding a footnote here For more information refer to Joyce Low and Dorcas Quek An Overview of Court Mediation in the State Courts of Singapore in Mediation in Singapore A Practical Guide Sweet and Maxwell 2015 at paras 9 003 to 9 011 Or this chapter could be referred to at the end of the chapter B Roles and functions of court based mediation 3 5 4 Court based mediation refers to mediation which is held in court once legal proceedings have commenced With the introduction of the presumption of ADR in 2012 the vast majority of cases in the State Courts undergo CDR 3 5 5 The current Courts Model of Mediation has been described as containing the following elements a a facilitative approach in assisting the parties negotiations b an emphasis on joint problem solving between mediator parties and lawyers c the mediation usually involves discussion on legal merit of the case The last feature is especially prominent since court based mediation takes place in the context of pending legal proceedings and mediation is conducted in the shadow of the law This usually takes place during the more advanced stage of mediation and in private sessions when the mediator can conduct reality testing together with the lawyer and client Again I suggest adding a footnote For more information refer to Joyce Low and Dorcas Quek An Overview of Court Mediation in the State Courts of Singapore in Mediation in Singapore A Practical Guide Sweet and Maxwell 2015 at paras 9 054 to 9 085 C Statistics on mediation cases that have undergone CDR 3 5 6 Initially mediation was only applicable to civil cases Today however a wide range of cases are mediated including assessment of damages disputes over costs of civil proceedings maintenance applications applications by spouses for personal protection orders complaints to magistrates of offences involving neighbourhood and relational disputes and small claims 3 5 7 Court based mediation has had an enormous impact on the Singapore judicial system Between 2011 and 2013 more than 22 000 matters have undergone CDR Of these 85 were successfully settled In surveys conducted by the State Courts in 2013 94 5 agreed that mediation services provided by the courts at PDRC have contributed to early settlement of cases and 94 9 agreed that there were cost savings for litigants D Mediators in Court based Mediation 1 Judges were appointed due to high regard for persons in positions of authority in the Asian culture 3 5 8 Adapting Western Style mediation to the Asian Singaporean culture the Singapore Court Mediation Model was introduced by the Honourable Chief Justice Yong Pung How in 1997 In Asian culture there is a tendency to have high regard for persons in positions of authority In this connection retired Chief Justice Chan Sek Keong in Jonathan Lock v Jesseline Goh 2008 2 SLR R 455 observed how f eedback from litigants shows an overwhelming preference for district judges to act as mediators because of the public confidence and respect that they command as well as the convenience to the parties of being able to directly enforce a court mediated settlement by means of a court order The Honourable Chief Justice Chan highlighted how our model of court mediation is sui generis and is particularly suited to a jurisdiction where litigants respect the impartiality of judges in giving objective views on the merits of the claim and defence respectively 3 5 9 Judges have played a central role as mediators since court based mediation was introduced in the 1990s It has been commented in this regard that w hile judicial mediation is less formal compared to a trial the resultant ceremony of coming to court attending before a judge and having an opportunity to present one s case and views to the judge are an important part of the process of case resolution at the courts Currently court mediation is provided by a larger and diverse base of mediators including professional staff and volunteers from SMC Footnote Joyce Low and Dorcas Quek An Overview of Court Mediation in the State Courts of Singapore in Mediation in Singapore A Practical Guide Sweet and Maxwell 2015 at paras 9 031 to 9 040 2 Mediators are required to adhere to guidelines provided by the Courts and comply with the Courts Code of Ethics 3 5 10 Mediators are guided by the Code of Ethics and Basic Principles for Court Mediators the State Courts Justice Statement and the Courts Guide on Best Practice for Mediation These documents articulate the shared values that shape how mediations are conducted and deal with fairness accessibility independence impartiality integrity and responsiveness The State Courts also have an internal Guide on Best Practices for Court Mediation which sets out recommended practices for each stage of mediation All court mediators Judges staff and volunteers are required to comply with these guidelines E Other court based mediations Family Justice Courts Small Claims Tribunal and Magistrates Complaints 1 Mediation in the Family Justice Courts a A process by which family related disputes may be resolved 3 5 13 Mediation is intended to be the process by which most family related disputes could be resolved 3 5 14 The Court provides in house mediation and counselling services free of charge This practice was legally entrenched in August 1996 with the passing of the Women s Charter Amendment Act where Section 50 1 provides for the court to refer the parties with their consent to mediation From 2011 onwards mediation and counselling are mandatory for divorcing couples with at least one minor child ss 50 3A to 50 3E of the Women s Charter Mediation is currently provided by the Family Resolutions Chambers and Child Focused Resolution Centre in the Family Justice Courts b Mediators usually have a legal social work psychology or family therapy background 3 5 15 The mediations are conducted by District Judges at the Family Court court staff or volunteer mediators c Mediations take place on a without prejudice basis 3 5 16 The mediations take place on a without prejudice basis and no matters disclosed during the sessions are admissible in court Lawyers and parties are to be prepared to discuss their cases during the mediation and have all necessary documents ready A similar provision exists for Muslim parties or parties married under Muslim Law who seek mediation or counselling for their family dispute 2 Mediation at the Small Claims Tribunals 3 5 17 The Small Claims Tribunals were established in 1985 with the passing of the Small Claims Tribunals Act It handles disputes relating to contracts for the sale of goods or services or damage caused to property by torts not exceeding S 10 000 in value Damages stemming from the use of motor vehicles are excluded from the provision 3 5 18 Upon request the Tribunals also deal with disputes not exceeding S 20 000 if the parties submit a written request Proceedings before the tribunals are conducted in a private setting and in an informal manner with several attempts to settle the dispute amicably before a referee hears the evidence and submissions of the parties and decides the case based on its merits 3 Magistrates complaints may be mediated by a judge a court volunteer mediator or at the Community Mediation Centre 3 5 19 Under section 151 of the Criminal Procedure Code Cap 68 a Magistrate can be informed of a criminal offence through a complaint These complaints generally concern minor criminal offences and may be mediated by the magistrate himself or a court mediator 3 5 20 Further subject to the consent of the parties Magistrates Complaints concerning interpersonal relationships may also be referred for mediation at the Community Mediation Centre If no settlement is reached and the complainant wants to proceed to trial a summons may be issued against the alleged offender Return to the top SECTION 6 LEGAL ISSUES IN MEDIATION A Status of settlement agreements arising from mediation 3 6 1 The legal status of settlement agreements will depend on the intention of the parties the context of the mediation and the existence and nature of relevant statutory requirements 1 Private mediations 3 6 2 In most private mediations parties would usually reduce the terms of the agreement in writing and sign on the document It would be a legally binding agreement As such the enforceability of such settlement agreements is subject to normal contractual principles 2 Where there are pending court proceedings 3 6 3 I Where there are pending court proceedings the settlement agreement may provide for its terms to be recorded as a consent judgment or court order It is also possible for parties to agree to have the terms of the settlement subsequently recorded as a consent arbitral award B The role of confidentiality in mediation 3 6 4 Mediation is often said to be a private and confidential process As a matter of law practice and policy confidentiality in mediation is not a straightforward matter In order to determine the scope of confidentiality the law in relation to common law privileges contractual principles equitable doctrines and statutory regulations have to be examined 1 The two levels of confidentiality in mediation 3 6 5 The first is in relation to the process itself and the second is in relation to private meetings between the mediator and one of the parties during the process The former is confidential in the sense that apart from the mediator and the parties no third party is to be privy to the proceedings The latter refers to confidentiality in that no matter raised in private sessions should be disclosed to the other party by the mediator 2 Confidentiality at common law a Statements made on a without prejudice basis are

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  • Ch.03 Mediation
    mediation centre 3 3 19 In 2013 the CJ and the Ministry of Law appointed a Working Group to look into developing Singapore as the centre of international commercial mediation The key recommendations were 1 the formation of the Singapore International Mediation Centre 2 the formation of the Singapore International Mediation Institute 3 the enactment of a Mediation Act 4 extension of tax exemptions and incentives to mediation 5 enhancing rules and court processes and 6 reaching out to target markets and key industries Return to the top SECTION 4 SINGAPORE MEDIATION CENTRE SINGAPORE INTERNATIONAL MEDIATION CENTRE SIMC AND SINGAPORE INTERNATIONAL MEDIATION INSTITUTE SIMI A History of SMC 3 4 1 SMC was incorporated on 8 August 1997 and officially launched by the Honourable Chief Justice Yong Pung How on 16 August 1997 SMC is a non profit organisation guaranteed by the Singapore Academy of Law It is linked institutionally with many professional and trade associations and receives the support of the judiciary and the Singapore Academy of Law B Roles and functions of SMC 3 4 2 SMC has successfully spearheaded the mediation movement in Singapore and is dedicated to the promotion of amicable and efficient settlement of disputes C Statistics on mediation cases referred to SMC 3 4 3 As at 30 September 2014 more than 25000 disputes were referred to SMC About 75 of the cases that are mediated at SMC are successfully settled Of those successfully resolved more than 90 were settled within one working day and of the disputants who participated in the mediations and provided feedback 83 reported cost savings 87 reported time savings and 94 would recommend the process to other persons in the same situation Very often parties save substantial legal court and hearing fees when agreements are reached by mediation 3 4 4 Almost all types of civil cases are mediated at SMC SMC has handled cases where the disputed amount is in excess of S 200 million To date the total quantum of disputes handled at SMC is in excess of S 3 2 billion About 40 of SMC cases are referred by the courts D Mediators in SMC 1 SMC maintains a panel of Principal Mediators that have undergone formal mediation training 3 4 5 SMC maintains its own panel of trained and experienced Principal Mediators comprised of distinguished members of different professions and fields They include Members of Parliament former High Court Judges Senior Counsel architects doctors engineers IT specialists project managers psychologists and university professors 3 4 6 All SMC Principal Mediators have undergone formal mediation training and a strict evaluation before being appointed to the panel 2 SMC maintains an international panel consisting of internationally renowned neutrals 3 4 7 There is also an international panel consisting of internationally renowned neutrals If disputes require technical expert knowledge SMC usually appoints two mediators to the case to co mediate the dispute One of these mediators will be a professional of the industry concerned who is familiar with the subject matter of the dispute The other mediator is generally a lawyer who will be familiar with the legal issues 3 Mediators are able to handle cases in languages other than English such as Tamil Malay Mandarin and other Chinese dialects 3 4 8 SMC will also try to match the language abilities of the mediators to the disputants to facilitate the free flow of conversation between the parties and to avoid the mediation of cases through translators who may hinder the building of rapport between mediator s and parties So far besides English cases have been successfully mediated in Mandarin and other Chinese dialects as well as Tamil and Malay 4 Mediators are bound by SMC s Code of Conduct 3 4 9 Mediations under SMC s auspices are governed by the provisions in the SMC Mediation Procedure Clause 4 of this Procedure states that a mediator has to subscribe to SMC s Code of Conduct These provisions are binding upon all mediators appointed by SMC to mediate They direct and guide the mediator through the mediation process with regard to issues such as confidentiality neutrality and impartiality E Mediation processes at SMC 1 The mediation process may be initiated by a reference by the courts or upon request of one or more parties 3 4 10 The mediation process at SMC may be initiated in two ways either the case may be referred to SMC by the courts or one or more of the parties may contact SMC directly with a request for mediation If only one party makes a request SMC will contact all the other parties and seek to convince them to attempt mediation 3 4 11 After SMC has assessed the suitability of the case for mediation and if all parties agree to mediate SMC may brief the parties on what mediation at SMC entails This is to ensure that the parties make an informed decision and are committed towards finding a suitable solution to their dispute via mediation 2 SMC s Agreement to Mediate must be signed by the parties 3 4 12 The first step for mediation at SMC is the signing of SMC s Agreement to Mediate By this Agreement the parties are bound by the terms of SMC s Mediation Procedure which requires them to give effect to the terms of any settlement reached 3 SMC will set a date and time for mediation 3 4 13 Then SMC will designate a date and time for the mediation process usually one week after initiation or on an urgent basis within 24 hours Mediation sessions are held at SMC s premises to ensure neutrality 4 SMC will appoint suitable mediators 3 4 14 Also SMC will appoint suitable mediators from its Panel of Principal Mediators A party may reject the proposed mediator if it has valid reasons such as conflict of interests Meanwhile the parties exchange concise summaries of their positions in the case and if necessary of important documents referred to in the summary 5 A brief description of the mediation process 3 4 15 On the day of the mediation the mediator will lead and guide the parties through a problem solving process The lawyers of the parties play an important role in assisting the mediator and advising the parties during the settlement process If the matter is settled the parties will reduce in writing the terms of their settlement with the assistance of their lawyers and this settlement agreement will be signed by or on behalf of the parties Return to the top SECTION 5 COURT BASED MEDIATION IN THE STATE COURTS A History of Court based Mediation 3 5 1 Court based mediation was first introduced as a pilot project in 1994 when specially selected District Judges mediated a range of civil disputes The Court Mediation Centre was established in 1995 following the pilot project It was renamed the Primary Dispute Resolution Centre in May 1998 In addition the multi door courthouse was established within the Primary Dispute Resolution Centre PDRC in 1999 Its purpose was to assist and direct disputants in finding the appropriate dispute resolution mechanism within or outside the court system Also it seeks to increase public awareness of dispute resolution processes 3 5 2 Court based mediation was gradually extended to other disputes within the Courts Mediation was introduced for minor criminal offences around 1996 Magistrate s complaints that involved interpersonal relationships such as disputes between neighbours were referred for mediation Since then mediation for these minor offences have been institutionalised within the State Courts 3 5 3 Mediation has similarly played a prominent role in family justice Court based mediation and counseling were introduced in the Family Justice Courts after the Family Court was established in 1995 The Family Resolutions Chambers were established in 2006 to consolidate the Family Justice Courts mediation programmes In addition the Child Focused Resolution Centre was set up in 2011 to carry out the legislative mandate of requiring divorcing parties with at least one minor child to undergo counseling and mediation I suggest adding a footnote here For more information refer to Joyce Low and Dorcas Quek An Overview of Court Mediation in the State Courts of Singapore in Mediation in Singapore A Practical Guide Sweet and Maxwell 2015 at paras 9 003 to 9 011 Or this chapter could be referred to at the end of the chapter B Roles and functions of court based mediation 3 5 4 Court based mediation refers to mediation which is held in court once legal proceedings have commenced With the introduction of the presumption of ADR in 2012 the vast majority of cases in the State Courts undergo CDR 3 5 5 The current Courts Model of Mediation has been described as containing the following elements a a facilitative approach in assisting the parties negotiations b an emphasis on joint problem solving between mediator parties and lawyers c the mediation usually involves discussion on legal merit of the case The last feature is especially prominent since court based mediation takes place in the context of pending legal proceedings and mediation is conducted in the shadow of the law This usually takes place during the more advanced stage of mediation and in private sessions when the mediator can conduct reality testing together with the lawyer and client Again I suggest adding a footnote For more information refer to Joyce Low and Dorcas Quek An Overview of Court Mediation in the State Courts of Singapore in Mediation in Singapore A Practical Guide Sweet and Maxwell 2015 at paras 9 054 to 9 085 C Statistics on mediation cases that have undergone CDR 3 5 6 Initially mediation was only applicable to civil cases Today however a wide range of cases are mediated including assessment of damages disputes over costs of civil proceedings maintenance applications applications by spouses for personal protection orders complaints to magistrates of offences involving neighbourhood and relational disputes and small claims 3 5 7 Court based mediation has had an enormous impact on the Singapore judicial system Between 2011 and 2013 more than 22 000 matters have undergone CDR Of these 85 were successfully settled In surveys conducted by the State Courts in 2013 94 5 agreed that mediation services provided by the courts at PDRC have contributed to early settlement of cases and 94 9 agreed that there were cost savings for litigants D Mediators in Court based Mediation 1 Judges were appointed due to high regard for persons in positions of authority in the Asian culture 3 5 8 Adapting Western Style mediation to the Asian Singaporean culture the Singapore Court Mediation Model was introduced by the Honourable Chief Justice Yong Pung How in 1997 In Asian culture there is a tendency to have high regard for persons in positions of authority In this connection retired Chief Justice Chan Sek Keong in Jonathan Lock v Jesseline Goh 2008 2 SLR R 455 observed how f eedback from litigants shows an overwhelming preference for district judges to act as mediators because of the public confidence and respect that they command as well as the convenience to the parties of being able to directly enforce a court mediated settlement by means of a court order The Honourable Chief Justice Chan highlighted how our model of court mediation is sui generis and is particularly suited to a jurisdiction where litigants respect the impartiality of judges in giving objective views on the merits of the claim and defence respectively 3 5 9 Judges have played a central role as mediators since court based mediation was introduced in the 1990s It has been commented in this regard that w hile judicial mediation is less formal compared to a trial the resultant ceremony of coming to court attending before a judge and having an opportunity to present one s case and views to the judge are an important part of the process of case resolution at the courts Currently court mediation is provided by a larger and diverse base of mediators including professional staff and volunteers from SMC Footnote Joyce Low and Dorcas Quek An Overview of Court Mediation in the State Courts of Singapore in Mediation in Singapore A Practical Guide Sweet and Maxwell 2015 at paras 9 031 to 9 040 2 Mediators are required to adhere to guidelines provided by the Courts and comply with the Courts Code of Ethics 3 5 10 Mediators are guided by the Code of Ethics and Basic Principles for Court Mediators the State Courts Justice Statement and the Courts Guide on Best Practice for Mediation These documents articulate the shared values that shape how mediations are conducted and deal with fairness accessibility independence impartiality integrity and responsiveness The State Courts also have an internal Guide on Best Practices for Court Mediation which sets out recommended practices for each stage of mediation All court mediators Judges staff and volunteers are required to comply with these guidelines E Other court based mediations Family Justice Courts Small Claims Tribunal and Magistrates Complaints 1 Mediation in the Family Justice Courts a A process by which family related disputes may be resolved 3 5 13 Mediation is intended to be the process by which most family related disputes could be resolved 3 5 14 The Court provides in house mediation and counselling services free of charge This practice was legally entrenched in August 1996 with the passing of the Women s Charter Amendment Act where Section 50 1 provides for the court to refer the parties with their consent to mediation From 2011 onwards mediation and counselling are mandatory for divorcing couples with at least one minor child ss 50 3A to 50 3E of the Women s Charter Mediation is currently provided by the Family Resolutions Chambers and Child Focused Resolution Centre in the Family Justice Courts b Mediators usually have a legal social work psychology or family therapy background 3 5 15 The mediations are conducted by District Judges at the Family Court court staff or volunteer mediators c Mediations take place on a without prejudice basis 3 5 16 The mediations take place on a without prejudice basis and no matters disclosed during the sessions are admissible in court Lawyers and parties are to be prepared to discuss their cases during the mediation and have all necessary documents ready A similar provision exists for Muslim parties or parties married under Muslim Law who seek mediation or counselling for their family dispute 2 Mediation at the Small Claims Tribunals 3 5 17 The Small Claims Tribunals were established in 1985 with the passing of the Small Claims Tribunals Act It handles disputes relating to contracts for the sale of goods or services or damage caused to property by torts not exceeding S 10 000 in value Damages stemming from the use of motor vehicles are excluded from the provision 3 5 18 Upon request the Tribunals also deal with disputes not exceeding S 20 000 if the parties submit a written request Proceedings before the tribunals are conducted in a private setting and in an informal manner with several attempts to settle the dispute amicably before a referee hears the evidence and submissions of the parties and decides the case based on its merits 3 Magistrates complaints may be mediated by a judge a court volunteer mediator or at the Community Mediation Centre 3 5 19 Under section 151 of the Criminal Procedure Code Cap 68 a Magistrate can be informed of a criminal offence through a complaint These complaints generally concern minor criminal offences and may be mediated by the magistrate himself or a court mediator 3 5 20 Further subject to the consent of the parties Magistrates Complaints concerning interpersonal relationships may also be referred for mediation at the Community Mediation Centre If no settlement is reached and the complainant wants to proceed to trial a summons may be issued against the alleged offender Return to the top SECTION 6 LEGAL ISSUES IN MEDIATION A Status of settlement agreements arising from mediation 3 6 1 The legal status of settlement agreements will depend on the intention of the parties the context of the mediation and the existence and nature of relevant statutory requirements 1 Private mediations 3 6 2 In most private mediations parties would usually reduce the terms of the agreement in writing and sign on the document It would be a legally binding agreement As such the enforceability of such settlement agreements is subject to normal contractual principles 2 Where there are pending court proceedings 3 6 3 I Where there are pending court proceedings the settlement agreement may provide for its terms to be recorded as a consent judgment or court order It is also possible for parties to agree to have the terms of the settlement subsequently recorded as a consent arbitral award B The role of confidentiality in mediation 3 6 4 Mediation is often said to be a private and confidential process As a matter of law practice and policy confidentiality in mediation is not a straightforward matter In order to determine the scope of confidentiality the law in relation to common law privileges contractual principles equitable doctrines and statutory regulations have to be examined 1 The two levels of confidentiality in mediation 3 6 5 The first is in relation to the process itself and the second is in relation to private meetings between the mediator and one of the parties during the process The former is confidential in the sense that apart from the mediator and the parties no third party is to be privy to the proceedings The latter refers to confidentiality in that no matter raised in private sessions should be disclosed to the other party by the mediator 2 Confidentiality at common law a Statements made on a without prejudice basis are inadmissible 3 6 6 Generally at common law statements made on a without prejudice basis during negotiations towards settlement of a

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  • Lock Han Chng Jonathan (Jonathan Luo Hancheng) v Goh Jessiline[2008] 2 SLR 455; [2007] SGCA 56
    of a consent order or judgment or to make other consequential orders ordinarily within his judicial powers under the Subordinate Courts Act Cap 321 1999 Rev Ed 19 The present appeal was filed on 7 May 2007 On 7 June 2007 Mr A lodged Bill of Costs No 120 of 2007 BC 120 07 in respect of OS 2141 06 and RAS 17 07 claiming party and party costs against the appellant of 80 000 00 with GST of 4 000 00 for work done other than for taxation the Section 1 costs 2 000 00 with GST of 100 00 for work done for taxation the Section 2 costs and in respect of disbursements 1 827 60 for disbursements not subject to GST and 1 013 35 for disbursements subject to GST with GST of 50 67 the Section 3 disbursements On 25 June 2007 Mr H filed a notice of dispute on the ground that the amounts claimed for the Section 1 costs and the Section 2 costs respectively were excessive At the hearing on 3 July 2007 the assistant registrar reduced the Section 1 costs to 55 000 00 and the Section 2 costs to 1 200 00 The Section 3 disbursements were allowed to stand and the GST on all costs and disbursements allowed was revised to 7 20 The tussle continued Mr A filed Summons No 2841 of 2007 and Mr H filed Summons No 3023 of 2007 respectively for a review of the assistant registrar s taxation At the hearing on 20 July 2007 the Judge dismissed Mr A s application but allowed Mr H s further reducing the Section 1 costs to 35 000 00 On 3 August 2007 a registrar s certificate was issued certifying the amount allowed under BC 120 07 as 39 040 95 with GST of 2 604 93 and taxing and allocatur fees of 2 549 00 21 Meanwhile the appellant decided to change solicitors On 12 July 2007 he wrote to Mr H to discharge the latter from acting further in the matter Mr H s reply on 13 July 2007 is quoted below at 44 On 16 July 2007 the appellant s new solicitors M s K Ravi Associates filed a notice of change of solicitors in the Subordinate Courts On 17 July 2007 for reasons unknown Mr H was re appointed as the appellant s solicitor on record but on 27 July 2007 the appellant re appointed M s K Ravi Associates to act for him and a fresh notice of change of solicitors was filed on the same day Similar notices were filed in the Supreme Court on 17 July 2007 and 31 July 2007 On 28 July 2007 Mr H sent the appellant an e mail stating that he intended to bill the latter 84 000 00 for his services and that if he did not hear from the appellant by 30 July 2007 he would apply to court to have his costs taxed On 1 August 2007 Mr H issued the appellant an invoice for the sum of 83 660 35 in respect of work done As the appellant did not pay the bill on 3 September 2007 Mr H made an application to tax his solicitor and client costs against the appellant Hence even before the present appeal was heard the appellant was already liable for 44 194 88 in costs to Mr A and was facing a potential liability of 83 660 35 in costs to Mr H 22 We heard the appeal on 2 October 2007 After considering the submissions of counsel for the appellant Mr Joseph Chen Kok Siang Mr Joseph Chen and counsel for the respondent Mr A we allowed the appeal and made the following orders on 3 October 2007 1 The appeal is allowed and the District Judge s decision of 20 October 2006 dismissing the respondent s application to set aside the order of court dated 31 March 2006 is restored 2 The Respondent shall pay the Appellant s costs of this appeal fixed at 5 000 with the usual consequential orders for the return of the security deposit for costs 3 Each party is to bear his her own costs in relation to the setting aside proceedings in the High Court and Subordinate Courts setting aside proceedings 4 The Appellant s former solicitor Mr Andrew Hanam may not tax or recover any costs from the Appellant on a solicitor and own client basis in the setting aside proceedings except with leave of this court Any pending proceedings to recover such costs are stayed forthwith We also gave our brief grounds of decision the Brief Grounds which are set out in the appendix hereto at 471 473 below and indicated that we would elaborate on those grounds in due course To this we now turn our attention 23 Of the main issues that were determinative of this appeal the first was whether the CDR process contemplated that the terms of a court mediated settlement would be embodied in an order of court The second was whether a CDR settlement judge had the power to make orders of court in connection with and following the successful resolution of a dispute via CDR We answered both questions in the positive and allowed the appeal for the following reasons The nature of CDR 24 Formal mediation was introduced for civil cases in the Subordinate Courts in June 1994 In 1995 the Court Mediation Centre was created to merge refine and develop the various mediation services offered by the Subordinate Courts As stated in The Judiciary Singapore Annual Report 1996 at p 53 The objectives of the Court Mediation Centre are inter alia to provide a forum for parties to explore settlement options with a view to the resolution of their disputes without trial adjudication The resolution of conflicts through mediation results in the saving of time and costs 25 Mediation is a form of consensual dispute resolution In the Subordinate Courts mediation is conducted in the PDRC under the auspices or with the assistance of the court hence the nomenclature CDR for short The PDRC has provided and continues to provide mediation services in a wide spectrum of matters including civil family small claims juvenile and criminal matters In September 2000 the PDRC introduced electronic mediation by establishing an additional facility called the e dr Centre to reflect the inclusion of online mediation and virtual dispute resolution in its portfolio The PDRC is a centre therefore by definition it is neither a court of law nor intended to be one It is instead a collective name or description for the various venues where CDR settlement conferences are held 26 CDR settlement conferences are conducted by CDR settlement judges who are also district judges Although para 25 11 of the Subordinate Courts Practice Directions 2006 Ed gives the Registrar the power to appoint non judicial officers such as legal assistants to conduct CDR settlement conferences in actions arising out of collision on land where there are no claims for personal injuries and where the issues in dispute are factual and not issues of law this power has hitherto not been exercised 27 The CDR settlement judge is a key feature of Singapore s CDR model the salient features of which are described in Liew Thiam Leng Alternative Dispute Resolution in Singapore accessed 20 December 2007 at pp 7 8 as follows a Mediation under the CDR process is court based ie it occurs only in cases where the parties in dispute have filed an action in court b CDR settlement judges act as mediators as being judicial officers of the State t hey command public confidence and respect which in turn makes them more effective mediators ibid c CDR is a directive form of court assisted mediation with the CDR settlement judge playing a pro active role by suggesting and guiding the parties with possible options but not to the extent of giving a definite opinion on the matter ibid 28 There are several ways in which a case filed in the Subordinate Courts may be referred for CDR namely a at the request of the parties or their counsel b by the Registrar at the point of a summons for directions c by the district judge overseeing the pre trial management of cases that have been set down for trial or d by a general court direction such as that applicable in what are termed non injury motor accident NIMA cases Feedback from litigants shows an overwhelming preference for district judges to act as mediators because of the public confidence and respect that they command see also 27 above as well as the convenience to the parties of being able to directly enforce a court mediated settlement by means of a court order 29 This judge driven nature of our CDR model makes it considerably different in nature from other facilitative alternative dispute resolution processes where the mediator facilitates settlement by helping the parties to appreciate how their interests will be advanced by settling the matter The parties obtain the best legal advice that litigants in an adversarial system of dispute resolution can get viz that of a judge who has experience in assessing evidence and determining liability In this regard our CDR model is sui generis and is particularly suited to a jurisdiction where litigants respect the impartiality of judges in giving objective views on the merits of the claim and the defence respectively 30 If the parties cannot resolve their dispute via CDR the case simply proceeds to trial before another judge who is not the CDR settlement judge involved in the matter However if the case is settled the practice hitherto has been for the terms of that settlement to be recorded by the CDR settlement judge in the form of either a settlement agreement or a consent order The problem in this case was that the Court Order stipulated that a notice of discontinuance was to be filed within eight weeks There was some ambiguity as to what those words meant which in turn gave rise to the mess that subsequently developed as a result of the actions of Mr H Our decision 31 In RAS 17 07 the substantive issue that was put to the Judge by Mr A was whether a CDR settlement judge had the jurisdiction or power to issue an order of court Mr A submitted that a CDR settlement judge was not so empowered since a CDR settlement conference was not a court proceeding and since the PDRC where such settlement conferences take place see 25 above was not a court of law vested with judicial authority In his oral arguments Mr A referred to inter alia the Subordinate Courts directions on the CDR process including the protocol applicable in NIMA cases to show that CDR had 13 features which made it distinct from court proceedings In contrast Mr H argued that CDR was part of the judicial process and that in any case the respondent should have taken out an application for judicial review in respect of the District Judge s decision instead of appealing to the High Court Mr H also pointed out that the version of the Court Order which he had extracted see 6 above had been settled by the court But he also appeared to have conceded before the Judge that he should not have extracted the Court Order The Judge further observed that in his letter dated 13 April 2006 seeking the Registrar s approval of the draft of the Court Order see 6 above Mr H had stated that defendant s counsel didn t reply which was not true emphasis added see p 6 of the certified transcript of the notes of argument of the hearing before the Judge on 4 April 2007 32 Regrettably neither counsel appeared to have made any arguments based on the facts of the case in particular they did not address the question of whether the actions which they had taken before and after the extraction of the Court Order were evidence of what they had contemplated or agreed upon as the object of the CDR effected in the present case Additionally neither counsel was concerned about the economics of bringing a dispute over a sum of about 60 initially to the High Court especially when both the appellant and the respondent were insured by the same insurer 33 In the circumstances given the way in which the questions of law were framed before the Judge it was inevitable that she would hold that a the PDRC was not a court of law b CDR was not part of the court process whilst a CDR settlement judge was acting as a mediator and c therefore a CDR settlement judge acting in that capacity ie as a mediator under the CDR process could not exercise any judicial power It followed that the Judge concluded that the Court Order was not an order of court that could be enforced through the normal court processes 34 In our view Mr A posed the wrong questions resulting in both counsel addressing the wrong arguments to the Judge The correct question was whether the CDR process contemplated that the terms of a court mediated settlement would be embodied in an order of court If this question had been asked and considered the answer would surely have been Yes as there would be little point in having a dispute resolved by CDR if the settlement reached thereby could not be enforced as a court order If a court mediated settlement is binding there would be no point in requiring the successful party to bring a separate contractual action against the other party on the basis of the settlement in order to enforce that very settlement Such a result would be unnecessary and repugnant to the very purpose of CDR In this respect both parties counsel agreed that a court mediated settlement was meant to bind the parties and had to be complied with as if it was a contract This must be correct otherwise it would be an utter waste of time and resources for litigants to even resort to CDR to resolve their disputes in the first place 35 When we asked Mr A whether in principle CDR also contemplated the enforcement of a court mediated settlement by the court if one party failed to discharge his obligations under the settlement Mr A readily agreed except that he contended that the parties must then go back to the CDR settlement judge who presided over the settlement process for further directions Furthermore Mr A s view was that the CDR settlement judge could not make a court order to enforce the terms of the court mediated settlement as he was sitting in the PDRC but that another district judge not sitting in the PDRC could do so if the matter was brought before him 36 This gave rise to the question of whether a CDR settlement judge had the power to make orders of court in connection with and following the successful resolution of a dispute via CDR We could not accept Mr A s submission as set out in the preceding paragraph as it would result in the triumph of form over substance It would mean that CDR entails not only a two stage process but a two judge process as well In our view this is not how the CDR process works or is intended to work Unless the two stage two judge process propounded by Mr A is specifically prescribed by statute or subsidiary legislation such as the Rules of Court in which case there would be some policy reason for such prescription the courts are or should be more concerned with the substance of the matter rather than its form In our view there is no reason why in the situation just postulated the CDR settlement judge having successfully conducted CDR cannot immediately don his judicial hat so to speak and enter judgment in accordance with the terms of the court mediated settlement for the purpose of enforcing that settlement 37 In our view the CDR scheme envisages that the CDR settlement judge will first carry out his mediatory function by giving the parties an indication of how he would view their respective rights or liabilities if he were to try the case see 29 above This function does not entail the exercise of any judicial power If and when the parties reach a court mediated settlement on liability and or damages and the CDR settlement judge records the terms of the settlement his mediatory function comes to an end Thereafter he resumes the ordinary judicial role of a district judge such that he may exercise any judicial power in relation to the settlement and enter judgment against the losing party in accordance with the terms of the settlement for enforcement purposes 38 In sum in order to give efficacy to CDR a court mediated settlement must be binding on the parties and carried out according to its terms Any failure to comply with those terms by any party entitles the other party to enforce the settlement as a court order without the necessity of another hearing before the same CDR settlement judge or another judge What went wrong in the present case 39 The problem in this case was not the infirmity of the CDR process but the conduct of Mr H in taking unnecessary and unwarranted steps with undue haste to enforce the Court Order as well as the conduct of Mr A in taking full advantage of the eight week period for filing the notice of discontinuance by not paying up the Settlement Sum in the interim It may be recalled that the Settlement Judge had recorded the terms of the settlement as follows see 2 above a the respondent was to pay the appellant

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