Court Procedure and Court Processes
Civil and criminal matters are dealt with differently in Singapore, although both are dealt with by the State Courts and by the Supreme Court.
For civil matters, legal proceedings are commenced either by a Writ of Summons or an Originating Summons. A Writ of Summons is mandatory for proceedings concerning a substantial dispute of fact, while Originating Summonses are generally more appropriate for disputes concerning matters of law. Should it later emerge that there are substantial disputes of fact, an Originating Summons can be converted into a Writ of Summons.
To commence a writ action, the plaintiff must file the writ with the Court Registry. It is typically valid for six months but where it is to be served out of jurisdiction, it is valid for 12 months. The writ must be served personally on each defendant. The plaintiff can do so by leaving the writ at the defendant’s registered address or through the defendant’s solicitor. Leave must be granted by the court if the plaintiff wishes to serve the writ out of Singapore.
Litigants should consider several matters before commencing their action. First, an action must be commenced within the limitation periods prescribed by law. Generally speaking actions in contract and tort have a limitation period of six years, personal injury actions have a limitation period of three years, and actions to recover land have a limitation period of 12 years. Second, Singapore must be the appropriate forum for trying the dispute, or that it is in the interests of justice to try the dispute in Singapore. Otherwise the court may stay the dispute for it to be tried elsewhere.
Once an action is commenced, the plaintiff must prepare and endorse a statement of claim. This statement of claim can be endorsed together with the writ or separately. The statement of claim specifies the nature of the claim and the relief sought. The defendants may make a statement of defence to the claim, and may file a counterclaim to the original claim. The plaintiff may reply or file his own defence to the counterclaim. 14 days after the last reply, the pleadings close.
The parties may apply to court to dispose of the matter without trial. The plaintiff may apply for a default judgment if the defendant fails to enter an appearance or file his defence, or for a summary judgment if it believes that there are no issues to be tried. The defendant may apply to strike out the plaintiff’s pleadings if it believes that the plaintiff’s case discloses no reasonable cause of action, is scandalous, frivolous or vexatious, or is otherwise an abuse of the court’s process. Either party may discontinue his action, defence, or counterclaim. Depending on the stage of proceedings this may require the court’s leave.
At any stage of the proceedings it may be necessary to apply to court for provisional remedies. These include interlocutory injunctions, Mareva injunctions, or Anton Piller orders, among other things. The parties may also take out other interlocutory applications such as for the discovery and inspection of documents or to ask the opposing party to give security for costs. These matters will be taken prior to the court proceedings.
To facilitate matters, the Court Registry will typically hold pre-trial conferences (“PTC”) closer to the trial. At the PTC, the Registrar will take stock of the parties’ progress and give directions for the next steps that the parties must take in the proceedings. The PTC is supplemented by the Summons for Directions, filed by the plaintiff to obtain formal directions from the court, such as trial dates. In Singapore, examination-in-chief is done by way of written affidavits. Parties must prepare, file, and exchange affidavits of evidence-in-chief of each witness. These are sworn statements that the witnesses can be cross-examined on at trial.
The burden of proof is on the plaintiff at trial, to prove his case on a balance of probabilities. The plaintiff’s lawyer therefore opens the case at trial and then the plaintiff’s witnesses will take the stand to be cross-examined by the defendant’s lawyer. The process is repeated for the defendant and the parties may make closing submissions at the end of the trial. In certain cases, the judge may choose to bifurcate the trial between liability and assessment of damages.
Once granted, a judgment may be enforced by one of the writes of execution available to the judgment creditor. Where he is unable to do so in Singapore he may choose to register his Singapore judgment in the foreign country on the basis of reciprocity of enforcement between the two countries. If third parties are involved, the judgment creditor may also decide to apply for aid from the court to enforce his judgment, such as in the form of garnishee proceedings. The judgment creditor is usually also entitled to costs of an action, which may include fees, charges, and disbursements. This is, however, subject to the court’s discretion.
In Singapore, the Attorney-General also functions as the Public Prosecutor. Therefore it is the Attorney-General’s Chambers (“AGC”) which begins the prosecution process by charging the accused person. This is usually done following a police investigation where the police may arrest and interrogate the accused person. While the accused person has a right to counsel, this is only available after a reasonable period of time so as to facilitate the police’s investigations. The Public Prosecutor has prosecutorial discretion under the Singapore Constitution. This means that he can choose whether to charge an accused person or not, and this power cannot be reviewed by the courts.
Once a charge is issued by the AGC, the accused person must turn up in court at the appointed date and may choose to plead guilty to the charge or to claim trial. If he pleads guilty the court will then proceed to sentence him based on the offence he is charged with. If the accused claims trial, then the Prosecution will have to prove each element of the charge beyond reasonable doubt. The accused can choose to raise defences to exonerate himself but these will have to be proved by him on a balance of probabilities.
While the criminal process is ongoing the accused person may apply for bail. Not all offences are bailable, but if bail is available for an offence, then the accused person must present a surety who will guarantee his compliance with certain conditions, including returning before the court at an appointed date. If the accused person fails to comply with these conditions then the surety’s bail may be forfeited.
Once convicted, the court may sentence the accused to a variety of sentences depending on the offence. Apart from monetary fines and physical incarceration, the accused may also be eligible for a range of community-based sentences depending on various factors like the nature of the offence and the accused’s age. The accused may also be liable for caning. The courts will sentence the accused taking into account principles such as deterrence, rehabilitation, and protection of the public.
Apart from their traditional role in interpreting legislation and in developing judge-made law, courts also play a special role in overseeing the decisions of administrative and quasi-judicial tribunals.
Most often, courts are concerned with the control of governmental powers as exercised through its various administrative agencies and tribunals. The courts oversee these tribunals for compliance with the rule of law. In order to bring a judicial review action, the applicant must possess the requisite standing, and must also have exhausted all remedies local to the administrative process he is challenging. An applicant has standing where a private right of his has been infringed, or when a public right is infringed and the applicant suffers some special damage, or, exceptionally, where a public duty has been breached. The decision that the applicant seeks to review must also be one that is amenable to judicial review: either the body making the decision must be a public body, or it must exercise certain public functions.
In a judicial review proceeding, the courts are less concerned with the substantive merits of the case. They are instead more concerned with whether the body in question has complied with certain fundamental rules. These limited grounds of challenge are typically classified as grounds relating to illegality, procedural impropriety (including rules of natural justice), and Wednesbury unreasonableness (where the decision is so unreasonable that no reasonable decision-maker could have made it). There is burgeoning jurisprudence, however, which indicates that courts are more willing to engage in reviews of the substantive merits, such as to ensure that the body’s decision accords with the legitimate expectations of the applicant – not only in terms of procedure, but also the substance of the decision.
The applicant may also apply for various remedies under judicial review proceedings. Apart from declarations of the correct position at law, the applicant may also ask for prohibitory, quashing, or mandatory orders.
Apart from administrative law, the courts also oversee the decisions of tribunals in many specific areas of law. Two pertinent examples are arbitration and adjudication. Under Singapore’s arbitration regime, the courts have adopted a light-touch approach that emphasises that by choosing arbitration, parties must take on not only the benefits of arbitration like confidentiality and the ability to choose their arbitrators, but must equally take on the burden of the tribunal potentially rendering an incorrect judgment. The court will therefore only intervene in the limited grounds specified in either the International Arbitration Act or the Arbitration Act.
Another area where the court oversees a tribunal’s decisions is in the construction context under the Building and Construction Industry Security of Payments Act (“SOPA”). Here, where parties go for adjudication of their disputes under SOPA, the court only reviews the decision on limited grounds such as for breaches of mandatory provisions. The SOPA regime is built around ensuring the liquidity of cashflow as this is the lifeblood of the construction industry. Hence, a respondent who disputes the claimant’s right to go to adjudication must nevertheless in most cases go for adjudication first before coming to court. The respondent must put in a response to the claimant’s claim within a certain period of time. And when the respondent eventually comes to court to challenge the adjudication determination, he must pay the adjudicated sum into court first before he is allowed to challenge.
Right of appeal under various legislation
In general, a losing party to a suit has the right to appeal once. Special rules apply in relation to certain specific areas. For instance, under the Competition Act (Cap 50B, 2004 Rev Ed), a decision made by the Competition Commission of Singapore may first be appealed to the Competition Appeal Board. The decision of the Board may then be appealed to the High Court only on a point of law or as to the amount of a financial party. The decision of the High Court may further be appealed to the Court of Appeal as if the High Court were exercising its original civil jurisdiction. Similarly, a decision of the Strata Titles Board is only appealable to the High Court on a point of law. In both these cases, the High Court may confirm, vary, or set aside the order. It may also impose conditions as it sees fit.