Contributed By Kennedys Legal Solutions
Singapore’s legal development has been inextricably linked with England’s, its colonial master from its founding in 1819 until it attained independence in 1965. Representative proceedings originated from the Courts of Chancery, and were developed in response to the injustice arising from the old rule in the Courts of Chancery which mandated the presence of all parties interested in the matter to be joined in the proceedings for finality’s sake.
Recognising that the rule was counterproductive in attaining finality where the parties were so numerous, the Chancery Courts relaxed the rule and permitted a representative suit where the parties had a common interest and a common grievance. Following the Supreme Court of Judicature Act 1873 (c66) (UK) (the “1873 UK Act”), the representative action rule in the Chancery Courts was extended to common law actions through rule 10 of the Rules of Procedure set out in the Schedule to the 1873 UK Act, which eventually became replaced by Order 15 rule 12(1) of the Rules of the Supreme Court 1965 (SI 1965 No 1776) (UK) (RSC 1965 (UK)).
For civil proceedings commenced in Singapore on or after 1 April 2022, representative proceedings are governed by Order 4 rule 6 of Singapore’s Rules of Court 2021 (ROC 2021). Representative proceedings commenced prior to 1 April 2022 were previously governed by Order 15 rule 12(1) of Singapore’s Rules of Court (R 5, Cap 322, 2014 Rev Ed) (ROC 2014). This is the only general process in Singapore enabling group litigation. While England has since reformed its civil procedure rules to introduce group litigation orders in 2000 (under Part 19(III) of the English Civil Procedure Rules) to allow the English courts to properly manage claims that involve common or related issues of fact and law brought by a large number of claimants, there is no such equivalent mechanism in Singapore.
That said, given the equitable origin of Order 15 rule 12(1) ROC 2014, and recognising that there is no case-managed group litigation system or statutory class active device in Singapore, the Court of Appeal in Singapore has, in 2013, endorsed a “broad and flexible” application of Order 15 rule 12(1) ROC 2014 ((32) of Koh Chong Chiah and others v Treasure Resort Pte Ltd (2013) 4 SLR 1204 (“Treasure Resort”)). The Court of Appeal is Singapore’s apex court and court of final appeal.
With Order 15 rule 12(1) ROC 2014 being replaced by Order 4 rule 6(2) ROC 2021, which only came into force recently on 1 April 2022, there has not yet been a reported decision on the application of Order 4 rule 6(2) ROC 2021. However, it appears that the amendments have statutorily enshrined the flexible principles of interpretation endorsed by the Court of Appeal. Notably, Order 15 rule 12(1) ROC 2014 previously stated that the persons must have “the same interest” in the representative proceedings, whereas Order 4 rule 6(1) ROC 2021 now states that the persons are to have “a common interest” in the representative proceedings.
As mentioned in 1.1 History and Policy Drivers of the Legislative Regime, Singapore’s history of representative proceedings has equitable roots stemming from the Courts of Chancery. The Application of English Law Act 1993 provides the legal basis in Singapore for the general reception of the rules of English common law and equity. Section 3 of the Application of English Law Act 1993 provides that the common law of England (including the principles and rules of equity continue to be part of the law of, and in force in Singapore but subject to modifications as may be required by the local circumstances of Singapore. Thus, common law remains useful in guiding the Singapore courts in interpreting and applying the rules governing representative proceedings, although the decisions of the English courts and other commonwealth jurisdictions are not binding on Singapore.
Representative actions in Singapore are different from the US class action regime. A pivotal part of the US class action regime is the class certification process, which is kickstarted by a motion filed by the named claimant(s) and a proposed class. When a class is certified, the class action lawsuit has the potential to affect the rights of many people (except those who have opted out). In contrast, in Singapore, all members in the group must be identified and agreed before representative proceedings are even brought. Permission also does not need to be sought from the courts before an action is started as a representative proceeding in Singapore.
There is no applicable information in this jurisdiction.
The principal source of law for representative proceedings is Order 4 rule 6 ROC 2021.
Apart from representative proceedings that may be brought generally under Order 4 rule 6 ROC 2021, representative proceedings can also be brought under specific statutory provisions. For instance, Section 85 of the Building Maintenance and Strata Maintenance Act 2004 (BMSMA) empowers a management corporation of a development (eg, a condominium) to represent subsidiary proprietors to institute proceedings in respect of common property of the development. Such actions are typically commenced against the developer and/or main contractor for building defects affecting common property.
There is currently no restriction on the areas of law or types of disputes or issues in relation to which representative proceedings can be brought under Order 4 rule 6 ROC 2021.
It is observed that, apart from disputes brought about by management corporations for building defects, representative proceedings are not common in Singapore, with only two reported decisions that involved successfully-brought representative actions (Tan Chin Seng and Others v Raffles Town Club Pte Ltd (2003) 3 SLR(R) 307 and Treasure Resort). These cases involved club memberships and allegations of breach of contract and misrepresentation, brought by members of the clubs against their clubs.
Order 4 rule 6(1) ROC 2021 defines representative proceedings as follows: “Where numerous persons have a common interest in any proceedings, such persons may sue or be sued as a group with one or more of them representing the group”.
Prior to the amendments to the civil litigation procedure which came into force on 1 April 2022, Order 15 rule 12(1) ROC 2014 provided that representative proceedings could be brought where “numerous persons have the same interest in any proceedings”. The term “same interest” was considered by the Court of Appeal in Treasure Resort, which held the following.
As the Court of Appeal has pronounced a shift towards the commonality of issues, the same principles will likely remain instructive in determining whether the “common interest” requirement has been met under Order 4 rule 6(1) ROC 2021.
Apart from bringing a representative action pursuant to Order 4 rule 6(1) ROC 2021 or under specific statutory provisions such the Section 85 of the Building Maintenance and Strata Maintenance Act 2004, the Singapore courts have recently confirmed the possibility of an alternative mechanism for collective redress, where multiple individual claims are assigned to a corporate entity which will then act as the claimant in prosecuting the claims (see (89) to (90) of POA Recovery Pte Ltd v Yau Kwok Seng and others and another appeal (2002) SGHC(A) 2 (“POA Recovery”)). All the assigned claims would be “consolidated” and brought to court as a single high-value claim by the special purpose vehicle (SPV). The use of an SPV incorporated specifically to prosecute the claims is permissible, as long as the assignments do not run afoul of the rules of maintenance and champerty, with the court recognising that the use of an SPV may promote efficiency in the administration of justice. Maintenance means the giving of assistance or encouragement to one of the parties to a litigation by a person who has neither an interest in the litigation nor any other motive recognised by the law as justifying the interference. Champerty is a subset of maintenance, and it arises when a party maintains a civil action in consideration of a promise of a share in the proceeds if successful. An assignment of a cause of action to an SPV would likely not contain an element of impropriety if:
Regardless of the mechanism utilised, the action will be heard either by the State Courts or the General Division of the High Court. These are the two courts in Singapore that have original civil jurisdiction. Where the claim value is up to SGD250,000, the claim will be commenced in the State Courts. Where the claim value exceeds SGD250,000, then the claim will be brought in the General Division of the High Court.
All members of the group must give their written consent to the representative to represent all of them in the litigation and they must be included in a list of claimants attached to the originating claim or the originating application (Order 4 rule 6(2) ROC 2021). However, Order 4 rule 6(4) ROC 2021 provides an exception that allows representative actions on behalf of persons who “cannot be ascertained or cannot be found”. Unlike representative proceedings commenced before 1 April 2022 (to which ROC 2014 applies), there is no longer any express restriction on the type of proceedings where the exception in Order 4 rule 6(4) ROC 2021 applies. In that regard, Order 15 rule 13 ROC 2014 previously only permitted narrow exceptions where certain persons cannot be found or ascertained, being limited to the following types of proceedings:
ROC 2021 only recently came into operation on 1 April 2022, and there has been no reported decision on the interpretation or application on the scope of these provisions. That said, in view of the Court of Appeal’s pronouncements for the representative proceedings to be “broad and flexible” and the subsequent amendments to ROC 2014, it is likely that going forward, there may be more flexibility over the conduct of representative proceedings.
While there is no requirement to seek the court’s permission before a claimant commences proceedings as a representative action, the defendant may file an interlocutory application for an order that the action be discontinued as a representative action. There are two stages to determine whether the representative action should be permitted to continue ((26), (27) and (29) of Treasure Resort).
At the discretionary stage, the court may consider the following factors.
Ultimately, representative proceedings are meant to facilitate the efficient and speedy administration of justice. Thus, the court will discontinue an action as a representative action where the procedure will not provide an efficient or effective means of dealing with the claims in question, or where it is otherwise inappropriate in the circumstances.
It is an essential condition that the representative claimants bringing a representative proceeding under Order 4 rule 6 ROC 2021 must have “a common interest” with the persons that they are representing.
The applicable principles of law underlying the “same interest” requirement (which appear in ROC 2014 and earlier versions of the Rules of Court) have been summarised in Treasure Resort (at 78):
Representative proceedings operate on an opt in basis. The representative claimant(s) must be expressly authorised in writing to represent each member of the group in the action and their names must be included in a list of claimants attached to the originating claim or the originating application, unless the exception at Order 4 rule 6(4) ROC 2021 applies.
There are no stipulated limits on the number within a class or size of the class, as Order 4 rule 6(1) simply apples to “numerous persons” having the common interest. In one of the reported decisions, the representative action was brought by ten claimants suing on their own behalf as well as on behalf of another 4,885 persons named in a schedule to the statement of claim (Tan Chin Seng v Raffles Town Club Pte Ltd).
While there is no minimum number that constitutes “numerous persons”, Syed Nomani v Chong Yeow Peh (2017) 4 SLR 1064 may be instructive. In that case, the claimant sued only one defendant and applied for an order from the court for that one defendant to represent and defend 11 other parties whom he could have sued as well but did not. The defendant naturally did not have any consent, agreement or authority from the 11 other parties to represent them. The High Court observed that where there were only 11 other parties with the same interest, representative proceedings would not have led to significant procedural efficiency. The High Court therefore found that it would be feasible for the claimant to join the 11 other parties as defendants to the action without great inconvenience, as opposed to making an order for the defendant to be appointed as a representative defendant of the 11 other parties.
Further parties can be joined to any form of proceedings by applying to court to amend the pleadings and/or to add parties. Under ROC 2021, this should be dealt with at a single application pending trial, in which the single application deals with all matters that are necessary for the case to proceed expeditiously. The court’s approval to file applications other than those directed at a case conference must be sought by letter setting the reasons why it is necessary at that stage of the proceedings.
The court will not allow any such application made less than 14 days before the commencement of the trial except in a special case.
ROC 2021 was enacted to enhance judicial control over the process of civil litigation and provide for flexibility in the management of cases. Instead of leaving it to the parties to determine the pace of the proceedings, the court will order the parties to focus on the key issues and provide case management directions. The Judges and Registrars have the autonomy and flexibility to manage cases, with the judge being actively involved from the outset and as cases progress, working with parties to eliminate extraneous issues.
Specifically in the context of representative proceedings, the Court of Appeal in Treasure Resort has also indicated that the court will take a broad and flexible view of its case management powers, and it is open to the court to make the relevant orders to deal with the issues raised by the parties as it deems necessary and/or just. The court retains the power to reshape the proceedings at a later stage if they become impossibly complex or if the defendant is prejudiced.
The average length of proceedings is subject to various factors such as the number of the parties, the complexity of the issues, the volume of documents, the amount of interlocutory applications taken out by the parties (including any appeals therefrom) and the number of witnesses.
For reference purposes, apart from disputes brought about by management corporations for building defects which tend towards settlement rather than a full-blown trial, the two reported decisions on representative actions spanned across several years. In Tan Chin Seng and others v Raffles Town Club Pte Ltd, the Court of Appeal rendered its decision on August 2005, close to four years after the representative action was first commenced in November 2001. In Koh Chong Chiah and others v Treasure Resort Pte Ltd, it took four years and two levels of appeal before the Court of Appeal finally affirmed that part of the proceedings could proceed as a representative action ‒ this timeframe does not even include the trial for the substantive issues.
The courts are empowered to strike out any or part of any pleading (Order 9 rule 16 ROC 2021), order default judgment (Order 2 rule 4 ROC 2021), and/or order summary judgment against any defendant (Order 9 rule 17 ROC 2021). The courts are also empowered to decide any question of law or the construction of any document without a trial or hearing on the facts, and, if the court’s decision fully determines the entire matter, to give judgment or to dismiss the action (Order 9 rule 19 ROC 2021).
There are no specific rules for the funding of representative actions. However, the following restrictions apply for actions generally:
The effect of the aforementioned restrictions means that litigants are usually expected to fund their own litigation.
In Singapore, costs are in the ultimate discretion of the courts (Order 2 rule 13 ROC 2021). Generally, party-to-party costs will be awarded to the successful party unless the circumstances of the case justifies some other order to be made (Order 21 rule 3 ROC 2021). For instance, the court may disallow or reduce a successful party’s costs or order the successful party to pay costs if (Order 24 rule 4 ROC 2021):
In exercising its power to fix or assess costs, the court must have regard to all relevant circumstances, including (Order 21 rule 2(2)):
There are also costs guidelines at Appendix G of the Supreme Court Practice Directions 2021; these guidelines only serve to provide a general indication on the quantum and methodology of party-and-party costs awards in the Supreme Court. For instance, the costs guidelines indicate a range of SGD6,000 to SGD16,000 for a daily tariff for trial in respect of commercial matters. The precise amount awarded always remains at the court’s discretion, and the court may depart from the amounts set out in the costs guidelines.
For representative proceedings, an order for costs can be made only against the representative claimant(s), but not against the represented persons, even if the defendant(s) succeeds in defending the representative action ((36) and (127) of Treasure Resort). However, this will not be an obstacle to the court’s exercise of its discretion to make such order which will ensure that all the costs appropriately incurred by the defendant(s) as a representative action are recoverable ((127) of Treasure Resort).
Disclosure of documents in representative proceedings is governed by the same procedural rules that apply to all civil litigation.
In general, the production of documents under ROC 2021 is guided by five ideals (“Ideals”) and two principles (Order 11 rule 1(2) ROC 2021).
At the minimum, all parties will be required to produce the following documents (Order 11 rule 2 ROC 2021):
The court may order any party to produce a specific document or class of documents (the “requested documents”) if the requesting party (Order 11 rule 3 ROC 2021):
The following documents will not be ordered for production, except in a special case (Order 11 rule 5 ROC 2021):
No application for the production of documents can be taken out 14 days before the commencement of the trial, except in a special case and with the trial judge’s approval (Order 9 rule 9(10) ROC 2021).
Document(s) subject to any privilege will not be ordered to be produced, unless the party entitled to the privilege consents (Order 11 rule 8 ROC 2021). Moreover, inadvertent disclosure does not lead to a loss of privilege (Order 11 rule 8(2) ROC 2021).
Parties can withhold the production of documents on the following grounds.
The court has the power to grant all remedies at law and in equity, including declaratory relief. Even where only declarative relief is sought by way of the representative action, the court has the discretion to allow each claimant to subsequently (if the representative action were to succeed) bring separate individual proceedings to prove their loss ((77) of Treasure Resort).
The Singapore courts strongly encourage settlement and the use of ADR/non-court resolution.
Prior to the commencement and during the course of any action, the party has the duty to consider amicable resolution of the dispute (Order 5 rule 1 ROC 2021). Before commencing the action, the party is to make an offer to settle the action or to make an offer to resolve the dispute other than by litigation (“offer of amicable resolution”), unless the party has reasonable grounds not to do so. An offer of amicable resolution must not be rejected unless the party has reasonable grounds to do so.
An offer of amicable resolution and any rejection must be in writing (Order 5 rule 2(1) ROC 2021). The terms of an offer that has been made but not accepted must not be conveyed to the court until after the court has determined the action (Order 5 rule 2(3) ROC 2021).
The court has the power to order the parties to attempt to resolve the dispute by amicable resolution (Order 5 rule 3(1) ROC 2021). In deciding whether to exercise its power, the court will consider the Ideals and all other relevant circumstances, including whether any of the parties have refused to attempt to resolve the dispute by amicable resolution. The court may also suggest solutions for the amicable resolution to the parties at any time (Order 5 rule 3(5) ROC 2021).
There may be costs consequences for a party’s failure to discharge its duty to consider amicable resolution. When awarding costs, the court will have regard to the efforts made by the parties at amicable resolution (Order 21 rule 2(2)(a) ROC 2021). For instance, the court may disallow or reduce a successful party’s costs or even order that party to pay costs if that party has not considered amicable resolution or made an offer of amicable resolution (Order 21 rule 4(c) ROC 2021).
Under ROC 2021, a party seeking to enforce a judgment (the “enforcement applicant”) takes out a single application for one or more of the following methods of enforcement:
Where there are multiple methods of enforcement sought, the enforcement applicant should state whether the sheriff is to enforce them in any particular sequence or whether all or some methods are to be enforced simultaneously (Order 22 rule 2(4)(l) ROC 2021).
There are other enforcement modes such as committal proceedings and proceedings under the Debtors Act 1934 and the Distress Act 1934, but these are not commonly utilised.
Presently, there are no policy developments or initiatives to reform the law concerning representative proceedings in Singapore.
However, the Singapore courts have recently confirmed that it may be permissible to incorporate an SPV to bring a collective action as an assignee of multiple individual claims. The apex court has clarified that the use of an SPV to bring a class action (as an alternative to representative proceedings) may not necessarily offend or sidestep the rules on maintenance and champerty (POA Recovery Pte Ltd v Yau Kwok Seng and others and another appeal (2022) SGHC(A) 2). This remains a developing area, and in future cases, it is likely that the courts will take the opportunity to develop the ever-changing dispute resolution landscape in Singapore.
Presently, there do not appear to be proposals for legislative reform.
Brexit has had no impact on collective redress and representative proceedings in Singapore.
COVID-19 does not appear to have an impact on collective redress and representative proceedings in Singapore. There have been no reported cases on representative proceedings that have arisen directly out of COVID-19.
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