Justice Philip Jeyaretnam: Keynote Address for the SCL(S) Conference 2025: Transformation in the Infrastructure and Energy Sectors

1. It is timely for this conference to focus on the energy sector and its transformation. Energy demand is rising given the computing needs of the AI revolution and the growth in digital assets. At the same time, the falling cost of renewables such as solar power offers the promise of abundant cheap energy. Getting from here – beset as we are by the extreme weather effects of climate change – to a stable and indeed transformed future is the challenge of the day. The role of construction lawyers and other building professionals includes helping to manage and reduce transaction costs that might otherwise hinder the needed expansion and transformation of the energy sector. One aspect of transaction costs concerns the efficiency of resolving disputes when they arise. Efficiency is both a matter of time and costs.

2. This brings me to the role of expert witnesses and how such important evidence can best be managed for both effectiveness and efficiency. Expert witnesses play a very important role in infrastructure disputes. Such experts may be architects, building surveyors, engineers, quantity surveyors or others. The decision-maker will often need assistance on technical questions, such as structural support, ground conditions, delay and quantum. Expert evidence is thus a necessary feature of how such cases are determined fairly and justly. Unfortunately, sometimes expert evidence adds to cost and complexity, without illuminating or shedding light. This highlights the importance of early and effective case management concerning the scope of expert evidence and how it will be adduced. This entails both the decision-maker (whether a court or arbitral tribunal) and the parties coming to grips with how potential expert evidence relates to the issues in the case so that decisions can be taken on whether there should be expert evidence on what matters and whether this should be via a single joint expert or by party-appointed experts. In addition, detailed directions tailored to the nature of the dispute need to be given to ensure that expert evidence is given in a form that makes it easier rather than harder for the real issues in dispute to be finally determined. 

3. Broadly, there are two options: there is the single joint expert or as labelled in the SICC Rules, a common expert, and then there is the party appointed expert. The method of party-appointed experts is more usual. It offers the apparent convenience of both parties being able to choose precisely the person they have confidence in. However, left uncontrolled having two party-appointed experts may generate more heat than it sheds light. First, parties likely arrive at the appointment on the basis that the expert for whom they will be paying should where possible be offering an opinion that is positive for that party. Given this likely expectation and even pressure from parties, the courts and arbitration tribunals have made explicit that the expert’s duty to the court or tribunal is paramount and trumps the expert’s duty to the appointor. This certainly serves as an important reminder to experts and helps to focus them on their task of assisting the decision-maker rather than advocating for the party. Nonetheless, the party’s expectation looms in the background like the dark clouds of an impending thunderstorm. And perhaps more significantly at trial much of the cross-examination is often directed at showing that the other side’s expert is motivated by advocacy. This approach may certainly bear on the credibility of the expert but it does not directly address the strength or force of the expert’s opinion itself. As such, it is a side show and a use of resources (including court or tribunal time) that is not directly related to determining the right answer.

4. Secondly, the two party-appointed experts naturally start from different positions, because they are first briefed by opposing parties. In the past, they might well have had differential access to potential witnesses and documentary information. This would result in a lot of time being spent at trial to explore that differential access before the experts can finally join battle on a given set of facts. This is once again an inefficient use of time and resources.

5. Thirdly, left to themselves, experts may define the technical issues differently, because they are approaching the case from divergent directions. As a result, the opinion of one will be hard to map against the opinion of the other. As a result, they may “pass each other in the night”, much to the frustration of court or tribunal. 

6. In this connection, I commend the SCL and its Council for working on a protocol for the use of expert joint statements in arbitration. Helpfully, it will include a model Tribunal’s Procedural Order as a well as a model form for joint statements.

II. How expert evidence is handled in the SICC 

7. I will use the SICC as an example of effective management of expert evidence. 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. 

8. In the SICC, cases are docketed to the judges who will hear it, and regular judge-led case management conferences are held. This feature is very helpful when it comes to the management of technical expert evidence.

9. 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. No expert evidence may be adduced unless the court grants permission. The court will only grant permission if the expert evidence will contribute materially to the determination of any issue in the case. Sometimes, technical evidence is only needed by way of background and so this can be provided by an agreed statement of facts or by submission based on mutually agreed technical materials.¹

10. In order for the court to decide that expert evidence is necessary, the party seeking to adduce such evidence will have to relate the potential evidence of the expert to the pleaded issues in the case and in addition show what the technical issue or question would be on which the expert’s evidence will be sought.

11. If convinced of the need for or desirability of expert evidence, the court will then proceed to consider whether the expert evidence should be adduced by way of separate party-appointed experts or through a common expert. Whichever of these options is decided upon, the court will require parties to work on a list of issues or questions to be referred to the expert or experts as well as a common set of agreed or assumed facts. It often happens that this set of facts contains more than one version of assumed facts. Thus, the expert or experts can be invited to provide opinions on the facts for which the claimant contends and also on the facts for which the respondent contends. In this way, once the court determines what the facts are it can consider the opinion of the expert or experts on those found facts, and leave aside opinions given on the rejected version of facts.

12. I now highlight two procedural tools that are helpful in streamlining the litigation process prior to the evidentiary hearing.

13. The first tool is the court’s power to order the experts to meet at any time to try to narrow any dispute.² This is sometimes known as an “experts’ conclave”.³ 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.⁴ The SICC Rules 2021 also do not require the parties or their solicitors to be present.⁵ However, whether the experts’ meeting could also be attended by parties or lawyers is open for discussion at the case management conference. So is the question of their role if they are permitted to attend.

14. 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.

15. 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.⁶ The Court may also direct the experts to produce a joint report on the issues on which they agree.⁷ Joint statements have become one of the most effective ways to reduce the time experts spend in court being questioned.

16. 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.⁸ 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.

17. Turning to the presentation of evidence at trial, the court has broad power to order the experts to testify as a panel.⁹ 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.¹⁰ 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”.¹¹ Traditionally, one limitation of this hot-tubbing 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.¹²

18. 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.¹³ The owner of the building brought claims for breach of contractual and tortious duties against the main contractor, its subcontractor, and various engineers.¹⁴

19. At the trial, 16 expert witnesses were called. They testified on various aspects including the façade, vibrations, geotechnical engineering, structural dynamics and quantum.¹⁵ 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.¹⁶ 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 main contractor’s representatives that the bracket was from the building.¹⁷ The court found that this episode undermined the strength of his evidence.¹⁸ In sum, the dialogue between the experts had immediately exposed certain shortcomings in his testimony.

20. A more recent example of successful witness conferencing is the case of PT Adidaya Energy Mandiri v MS First Capital Insurance Ltd [2022] 4 SLR 371. This was an SICC matter which involved a marine insurance dispute where an insured claimed against an insurer for damages resulting from collisions between a single point mooring buoy (“SPM”) and the storage vessel attached to it. The parties agreed on “hot tubbing” such that two experts gave evidence at a time and cross-examination of the conventional kind did not occur, although parties were given the opportunity to do so (at [30]). Joint expert reports were also compiled (at [28]). The court ultimately preferred the evidence of the defendant’s expert witnesses. It found that the plaintiff’s expert witnesses “were both placed in an invidious position by the instructions that they had received and the apparently limited information made available to them at the time of their reports” (at [32]).

21. Even with strong active case management of party-appointed experts, a number of disadvantages remain. These include the residual risk of partisanship, higher overall costs due to the duplication of appointments and the tendency for opposing experts’ views to harden, leaving the court struggling to reconcile them or find a nuanced answer.

22. For this reason, the option of a common expert becomes attractive. The court or tribunal hears one coherent account of the technical evidence relevant to the issues in the case. The expert can be questioned by both parties and by the court or tribunal, and should received neutral, balanced and complete answers. At the same time, having only one expert raises the risk of unchallenged error. A sole expert, however eminent, may still be wrong. Without a countervailing expert to challenge assumptions or highlight flaws, the sole expert’s aura of neutrality may in fact mask error.

23. That there are risks or disadvantages with either option highlights the importance of close attention to the nature of the particular dispute and the role of expert evidence in relation to the actual arising in that case. As a generalisation, the cost and efficiency advantages of a common expert make this option more attractive when the use of expert evidence is more to inform and educate the tribunal about the technical background to the case, or where it is to apply establish principles of expert knowledge to routine situations. In recent months, I have considered the appointment of a common expert to be preferable to deal with such matters as the broad principles of foreign law as well as the question of mental capacity.  On the other hand, the more complex, involved and contested a technical issue is the more likely that having two party-appointed experts will be more valuable and appropriate. In my view, in the field of construction law, routine defects claims can appropriately be opined on by a single joint expert.

24. 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.¹⁹

25. 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.²⁰ 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.²¹

26. 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:²²