Fixed legal costs proposed for civil cases

Idea among suggestions by panel tasked to find ways to simplify litigation process

Fixed legal costs are set to be introduced for civil proceedings in a move to give litigants pause and to incentivise lawyers to resolve disputes quickly.

Scale legal costs for taking a case to court allow parties to weigh the consequences before deciding whether it is worthwhile to incur the legal costs, said a panel that made the recommendation. It would also encourage lawyers to resolve the dispute quickly and obtain the fixed price for less time and effort so that they can take on more cases.

The use of scale legal costs is one of the wide-ranging changes that have been proposed to give judges more control in the civil litigation process so as to ensure that disputes are resolved efficiently and at a reasonable cost.

The proposals also seek to streamline court procedure for most civil cases into a default track, with flexibility for modifications when necessary. These recommendations, by two high-level panels, were put up for public consultation yesterday.

In January 2015, Chief Justice Sundaresh Menon announced the setting up of the Civil Justice Commission to look at ways to modernise the litigation process and simplify rules by eliminating steps that waste time and incur costs.

The Civil Justice Review Committee was set up in May 2016 by the Ministry of Law. Its task was to make recommendations on enhancing judicial control over the court process, professional training and public education to support the recommendations, and a review mechanism.

  • Key recommendations for more efficiency

  • • To avoid wasting trial time, the court will determine the number of applications that parties can file and when they can file them.

    • In some cases, the court may order affidavits to be filed before documents are exchanged, to avoid the possibility that witness evidence may be tailored to match disclosed documents.

    • Parties will first produce the documents that they are relying on for their respective cases, then request specific documents from the other side. Currently, too much time and effort are spent on disclosure of documents.

    • When expert evidence is necessary, the general position will be for a common expert to be used, although the court may allow parties to appoint their own experts in special cases.

    • For certain cases, the court will be allowed to conduct hearings on documents alone. This avoids the problem of having to arrange hearing dates suitable for the parties and the court, and saves on hearing costs.

    • Judges can exercise greater control over the conduct of trial by directly questioning witnesses and restricting the issues and time for examination of witnesses. This avoids too much time and costs being expended on lengthy trials.

    • Scale costs will be introduced. This allows parties to consider if it is worth it to incur the costs of litigation. It also means there is no incentive for lawyers to prolong proceedings by taking out multiple applications and appeals, because there is only one fixed price.

In the joint consultation paper, it was proposed that judges be granted greater control and flexibility over proceedings, instead of letting parties determine the pace and intensity.

Recommendations have been made to simplify and speed up applications and appeals on procedural matters, so cases can move quickly to the main battle on the merits.

It was also proposed that the court be allowed to determine the number of applications that parties can file.

This is aimed at minimising the prevalent practice of lawyers seeking to amend pleadings very close to the start of a trial, which results in a waste of trial time.

Reforms have also been tabled on the production of documents by parties, which takes up a "disproportionate" amount of time, energy and costs. It was suggested that generally, parties will produce the documents that they are relying on for their case, and request specific documents from the other party where necessary.

The commission also suggested a "dramatic" change to the costs framework with scale costs.

Under such a regime, solicitor-and-client costs - which a litigant pays his lawyer - should generally be equal to party-and-party costs, which the losing party pays the winning party to defray his legal expenses. "The intended result is that a successful litigant who conducts his case reasonably throughout should recover all his litigation costs," said the commission.

Parties can opt out if they are aware of the consequences.

 

The public consultation paper and relevant reports are available on the Law Ministry's website. Feedback is to be submitted by Nov 30. Last year, 6,953 civil cases were filed and 6,819 disposed of by the Supreme Court, it said in its annual report.

A version of this article appeared in the print edition of The Straits Times on October 27, 2018, with the headline 'Fixed legal costs proposed for civil cases'. Print Edition | Subscribe