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Justice Philip Jeyaretnam: Keynote Address at International Bar Association (IBA) 9th Biennial Conference on Construction Projects
International Bar Association (IBA) 9th Biennial Conference on Construction Projects
"The Use of Exerts in the SICC: Innovations and Best Practices"
Saturday, 29 March 2025
The Honourable Justice Philip Jeyaretnam
President, Singapore International Commercial Court
Judge of the High Court
Supreme Court of Singapore
I. Introduction
1. Expert witnesses play a very important role in the administration of justice, and I am glad to have this opportunity to offer insight into the practices and innovations of the Singapore International Commercial Court (or SICC) in utilising expert evidence.
2. The SICC is part of the Singapore court system, established to hear international and commercial cases. Often, such cases are between two non-Singapore parties concerning a transaction or project that took place outside Singapore. The only connection with Singapore in such matters is the choice of the SICC for the resolution of disputes. Typically, the disputes are complex ones of high value. Apart from where the SICC is chosen by parties as the court to hear their substantive international and commercial dispute, the SICC is also the supervisory court for international arbitrations seated in Singapore.
3. Two features of the SICC are worth explaining in this introduction. The first is that we appoint to the bench of the SICC judges drawn from three different sources: first, the commercial bench of the Singapore High Court, secondly international judges from the common law tradition and thirdly international judges from the civil law tradition. At first instance, we would have coram of three judges, often drawing from each of these three sources. This combination of expertise and experience is very valuable in the adjudication of transnational disputes. The second feature is that cases are actively case managed upon filing. Each case is docketed to the judges who will hear it, and regular judge-led case management conferences are held. This second feature is very helpful when it comes to the management of technical expert evidence.
4. The SICC has established the Technology, Infrastructure and Construction List also known as the “TIC List”. This is a specialised list of the SICC that deals with technically complex disputes, such as technology related disputes and disputes relating to infrastructure and construction projects.
II. How expert evidence is handled in the SICC
5. At the first judge-led case management conference, the court will consider whether expert evidence should be permitted, identifying the relevant disciplines for that matter. The starting point under O 14 r 2 of the SICC Rules 2021 is that no expert evidence may be adduced unless the court grants permission. The court may only grant permission if the expert evidence will contribute materially to the determination of any issue in the case. Additionally, the issue must be
unresolvable by an agreed statement of facts or by submission based on mutually agreed materials (1). This starting point ensures that a minimum threshold of relevance and necessity is met before expert evidence is introduced.
6. Naturally, expert evidence is to be given in a report (2). The report must include, among other things, the issues referred to the expert, the set of facts the expert relied on, the expert’s conclusions and the reasons supporting the conclusions (3). The expert must also state that they understand the fundamental principle that their duty is to assist the court, and that this duty overrides any obligation to the person who instructed or paid them (4).
7. The SICC Rules 2021 confer on the court broad powers to make any orders or directions relating to the use of expert evidence. The court may make such orders at any time on its motion, or upon the application of a party (5). This includes the appointment of court experts or common experts, and the sequential or simultaneous exchange of the experts’ witness statements.
8. I now highlight two procedural tools that are helpful in streamlining the litigation process prior to the evidentiary hearing.
9. The first tool is the court’s power to order the experts to meet at any time to try to narrow any dispute (6). This is sometimes known as an “experts’ conclave” (7). What is discussed during this meeting may not be used in court, except for issues the experts or the parties can agree on and put in writing (8). The SICC Rules 2021 also do not require the parties or their solicitors to be present (9). However, whether the experts’ meeting could also be attended by parties or lawyers is open for discussion at the case management conference. So is what their role should be if they are permitted to attend.
10. Apart from the experts’ meeting being an opportunity for experts to narrow their differences through frank and constructive dialogue, it is also an opportunity to ensure that both experts have access to the same pool of information and documents.
11. The second procedural tool is a direction for a joint statement. For cases on the TIC List, the Court is likely to direct the experts to produce a joint statement setting out the issues on which they agree and disagree, along with reasons for their disagreement (10). The Court may also direct the experts to produce a joint report on the issues on which they agree (11). Joint statements have become one of the most effective ways to reduce the time experts spend in court being questioned.
12. I should also note that it is often useful for the case management conference to be attended by experts in addition to parties or their counsel (12). This enables the judges to hear directly from the experts on what the technical issues are and also on whether methods of testing or sampling can be agreed prior to such testing or sampling being carried out. When it comes to subjects such as delay analysis, questions of appropriate methodology can also be discussed and agreed on through case management conferences.
13. Turning to the presentation of evidence at trial, the court has broad power to order the experts to testify as a panel (13). This is sometimes known as “hot-tubbing” or “witness conferencing”. Traditionally, witnesses testify sequentially. While this might happen in a designated expert evidence phase, in the past this would happen
as part of each parties’ case and therefore separated in time from each other. These old ways of doing things presented special problems for complex and technical expert evidence. It can be difficult for the court to follow or evaluate an expert’s evidence without the benefit of another expert’s opinion. Witness conferencing addresses this issue. It provides the court with the ability to have experts comment on one another’s views (14). Additionally, it has been observed that “because each expert knows his or her colleague can expose any inappropriate answer immediately, … the evidence generally proceeds directly to the critical, and genuinely held, points of difference” (15). Traditionally, one limitation of this hottubbing is that if a defendant’s expert gives evidence, the defendant would have waived its right to submit that it has no case to answer. This is remedied by an express provision in the rules that a party is not deemed to have waived such a right merely because its expert has testified in a panel (16).
14. The utility of witness conferencing is illustrated by the case of Millenia Pte Ltd (formerly known as Pontiac Marina Pte Ltd) v Dragages Singapore Pte Ltd (formerly known as Dragages et Travaux Publics (Singapore) Pte Ltd) and others (Arup Singapore Pte Ltd, third party) [2019] 4 SLR 1075 (“Millenia”). The Millenia case arose out of construction defects that caused heavy stone panels to fall off the façade of an office building. This resulted in injury and property damage (17). The owner of the building brought claims for breach of contractual and tortious duties against the main contractor, its subcontractor, and various engineers (18).
15. At the trial, 16 expert witnesses were called. They testified on various aspects including the façade, vibrations, geotechnical engineering, structural dynamics and quantum (19). The court employed witness conferencing to hear the evidence of different experts simultaneously. For example, the façade experts sat together for 14 days and gave detailed evidence concerning the defects of the stone panels (20). This allowed the court to hear the immediate response of the other experts to one of their fellow experts. In one instance, the main contractor’s façade expert showed the court a bracket that he claimed was used on the office building. The other façade experts then examined the bracket. They doubted that it came from the building because on close examination, there were no signs of scratches or cement or epoxy on the bracket. The main contractor’s expert was then queried. He conceded that he had simply accepted the claim of one of the defendant’s representatives that the bracket was from the building (21). The court found that this episode undermined the strength of his evidence (22). In sum, the dialogue between the experts had immediately exposed certain shortcomings in his testimony.
16. Ultimately, the rules provide the court with a significant degree of flexibility to manage the use of expert evidence. The court does so actively with a view to the efficient administration of justice, and to respond to the needs of each case. This is in line with the practice of close, early and continuous judge-led case management which is a key feature of litigation in the SICC (23).
17. I now turn to a novel method of managing expert evidence, namely pre-hearing briefings for the judges. The case of Ila Technologies Pte Ltd v Element Six Technologies Ltd [2023] 1 SLR 987 (“Ila Technologies”) showcases the procedural flexibility that the court can bring to bear in dealing with the unique requirements of a challenging matter. Ila Technologies concerned a claim by Element Six Technologies Ltd that its competitor, Ila Technologies Pte Ltd (“Ila”), had infringed its patents relating to lab-grown diamonds. Ila denied any infringement. It also sought to revoke the patents as invalid (24). The technical background required to understand these patents was highly complex. It included understanding the physical properties of diamonds, how the patented technology enhanced the quality of lab-grown diamonds, and the measurement or evaluation of that improvement (25).
18. The matter was heard at first instance by the General Division of the High Court, not the SICC. Nevertheless, when the case went before the Court of Appeal, the process of case management was instructive. Because of the sheer complexity of the matter, the court took two steps before hearing the appeal (26):
(a) The first step was essentially a joint expert statement. The Court directed parties to prepare a “Primer” setting out their points of agreement and divergence on topics including the common general knowledge, the state of the art, and the inventive concept of the patent in issue.
(a) The first step was essentially a joint expert statement. The Court directed parties to prepare a “Primer” setting out their points of agreement and divergence on topics including the common general knowledge, the state of the art, and the inventive concept of the patent in issue.
(b) The second step was more novel. The Court convened a “Technology Tutorial” over three half-days. Each party was allowed to nominate two presenters from among their expert witnesses to address the topics in the Primer, as well as provide an introduction to the patent in issue and the “Metripol” system, an optical microscope imaging system used in the patented process (27).
19. The Technology Tutorial serves as an example of a procedural innovation that our courts have experimented with. It introduces the court to relevant technology or scientific concepts before hearing a matter. The court then has the background upon which to understand and properly analyse the technical evidence placed before it.
III. Conclusion
20. In conclusion, the SICC strives to be at the forefront of innovation and best practice in dealing with expert evidence. It has done so by adopting and experimenting with measures that triangulate between the efficient resolution of a dispute, fairness to a party’s right to advance its case, and the court’s areas of expertise.
21. We will now proceed to a panel discussion to consider these and other issues in relation to expert evidence.
(1) O 14 r 2(2)–(3) of the SICC Rules 2021.
(2) O 14 r 4(1) of the SICC Rules 2021.
(3) O 14 r 4(3) of the SICC Rules 2021.
(4) O 14 r 4(3)(b) of the SICC Rules 2021.
(5) See O 14 r 2(4) of the SICC Rules 2021.
(6) O 15 r 5(1) of the SICC Rules 2021.
(7) See, in the context of O 12 r 6 of the ROC 2021, Singapore Civil Procedure 2024 vol 1 (Cavinder Bull ed) (Sweet & Maxwell, 2024) at para 12/6/1.
(8) O 15 r 5(1)–(2) of the SICC Rules 2021.
(9) Compare O 12 r 6(1) of the ROC 2021, which states “[t]he Court may order the parties, their solicitors and the experts to meet …”.
(10) O 28 r 6(1) of the SICC Rules 2021.
(11) O 28 r 6(2) of the SICC Rules 2021.
(12) O 28 r 7 of the SICC Rules 2021.
(13) O 14 r 6(1) of the SICC Rules 2021.
(14) See O 14 r 6(4) of the SICC Rules 2021.
(15) Justice Steven Rares (Federal Court of Australia), “Using the ‘Hot Tub’: How Concurrent Expert Evidence Aids Understanding Issues” (12 October 2013), [27] (online: https://www.fedcourt.gov.au/digital-law-library/judges-speeches/speeches-former-judges/justicerares/rares-j-20131012)
(16) O 14 r 6(3) of the SICC Rules 2021.
(17) Millenia at [2]–[3].
(18) Millenia at [4], [169].
(19) Millenia at [5].
(20) Millenia at [208(b)].
(21) Millenia at [223(a)].
(22) Millenia at [223].
(23) Chief Justice Sundaresh Menon, “The Emerging Architecture of Transnational Commercial Justice”, Opening Address at the SICC Conference 2025 (14 January 2025) <https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh--opening-address-at-the-singapore-international-commercial-court-conference-2025>
(24) Ila Technologies at [3].
(25) Ila Technologies at [8].
(26) Ila Technologies at [8].
(27) Ila Technologies at [32].
2025/05/06
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