by
Jeffrey Pinsler
This
601-page work by Jeffrey Pinsler was published in collaboration with the
Singapore Academy of Law and begins with a foreword by Singapore’s Chief
Justice Yong Pung How. Chief Justice Yong praises the book as a ‘work of
scholarship which constitutes a very significant contribution to Singapore’s
jurisprudence and learning’. He says that this work ‘charts and encapsulates
the progress of civil justice reform in the course of the century’ in
Singapore.
However,
this book is not a dry academic tome on civil justice and its reform in
Singapore, nor is it merely a bland restatement of the changes that have taken
place in the rules of procedure governing the administration of civil justice in
the courts in Singapore. Instead, this book is extremely readable: it is a
highly entertaining yet scholarly work that is strongly recommended for both the
experienced and senior practitioner of civil litigation, as well as the novice
in the field.
This
is because the book reveals the jurisprudential basis as well as the rationale
for the complex and changing rules governing the machinery of justice and the
goals in the administration of justice in Singapore. It enables the reader,
especially the practitioner, to obtain a different perspective and a better
overview of the nature of the civil process and his place in the overall scheme.
The
author’s approach is not purely academic: a practical approach has been taken
whereby important landmark cases establishing or interpreting the rules of civil
procedure have been digested and commented upon, tools that a busy practitioner
would certainly find useful in his practice and for citation in court. This book
is, therefore, strongly recommended as compulsory reading for all practitioners
as well as those interested in the administration of justice in Singapore.
There
are chapters in the book dealing with the jurisdiction of the courts and their
peculiar legacy of applying the law and rules of the English Courts of Common
Law and Equity. Further chapters trace the developments in the law with regard
to the process for obtaining default judgments, Orders 14, 14A and other summary
judgments, injunctions and Erinford Orders. Pinsler also makes a convincing
argument as to why the English Court of Appeal case of Alpine Transport Co Inc v
Saudi Eagle Shipping Co Inc, which laid down a higher standard in setting aside
default judgments (and which have been followed by the local courts), may not be
the appropriate test to apply.
Other
chapters deal with the discovery process and the disclosure of evidence before
trial, where there has been a shift towards a broader system of discovery before
trial from the previous convention of containment of information rather than
broad revelation, and important developments in pre-action discovery and
discovery against non-parties and interrogatories. These developments lead to
important savings in costs and increase the chances of an early settlement,
shorten the length of trial and enable the parties to be more effectively
prepared for trial.
Subsequent
topics covered deal with the trial and appeal process, legal and ethical
consideration of witness examination. Later chapters deal with the enforcement
of judgments (where the topic ‘ use of rules of civil procedure to obtain
remedies in criminal proceedings’ would be of interest to practitioners of
criminal law) and irregularity and non-compliance with time limits.
Pinsler
highlights the new measures by the courts to reduce delay. These include case
management in the Subordinate Courts and the introduction of the Subordinate
Courts’ work plans, appointment of more judges and judicial commissioners to
the Supreme Court, the construction of new courts, redesignation of workloads
traditionally carried out by judges to judicial officers, recruitment of
justices’ law clerks, the Technology Court, the Electronic Filing System, etc.
What
is interesting and useful about Pinsler’s treatment of these subjects is that
he deals in depth with the rationale and policy governing the courts’
decisions in these areas. Such treatment would not be found in the standard
practitioners’ texts and, in so doing, he gives the reader a deeper
understanding of the reasons for the rules and the way these rules have been
worked out by the courts both locally and overseas in the course of the 20th
Century.
At
the same time, Pinsler does not hesitate to deal with the difficulties posed by
certain decisions or statutory rules and suggests measures for their improvement
or reform.
Finally,
Pinsler’s work also deals with the dilemma facing those in charge of the
administration of justice: the acceleration of the legal process and the
attainment of justice (page 143). As Pinsler correctly points out, there is a
deeper conflict present: the court system, rules and legal culture are based on
the traditional adversarial process where the role of the court is to adjudicate
only when called upon to do so and the system is geared towards the culmination
of a trial. The courts assume a passive role and only take on an active role to
ensure that the proceedings in court are conducted in a fair and just manner.
The efficient operation of the civil process in the public interest is not the
goal of the traditional civil process. Similarly, ‘although an officer of the
court, the lawyer was never a public servant bound by a national duty to ensure
that the litigation process would quickly cater to the needs of the population
as a whole’ (at page 94).
The
result of this adversarial system is that there is delay and a backlog of cases
as the courts become clogged up as the ‘defendant [uses] every procedural
device to postpone the inevitable judgment on his liability’, not bothering
that he is using up court time that could be better used by other more worthy
litigants.
Hence,
the reforms to the court system have sought to introduce inquisitorial elements
into a process that is fundamentally entrenched as adversarial in character. He
notes that proceedings in Singapore continue to be adversarial in character,
subject to a fundamental modification of an inquisitorial nature, namely, the
introduction of court control to prevent abuse and delay.
He
points out that the emergence of forms of alternative dispute resolution have
been successfully utilised in Singapore ‘as a primary weapon against backlog
and delay’. However, Pinsler points out (at page 144) that the ‘modern
emphasis on the early disposal of actions is not reflected by the existing
regime of rules which operate on the assumption that the natural conclusion of a
case is adjudication by trial’. He foresees the need for further improvements
and fine tuning in that the ‘time may come when the rules as a whole will have
to reflect the changing philosophy of the adjudication process’. He further
notes that ‘the presently scattered provisions, which empower the court to
take a more active part in the conduct of proceedings, may have to be brought
together in the form of a cohesive code of court practice’.
This
book is an intelligent and succinct work which would enable practitioners who
find the pace and extent of change in civil litigation and the court system
overwhelming and confusing to have an authoritative and comforting guide by our
side which summarises the new developments and brings us up to date in an
effortless way.
Carolyn
Tan
Tan-Au Associates