Innovation and Reform of Litigation Models in the Digital Era

Aedit Abdullah, Judge of the Singapore High Court

Your excellencies, and all honoured guests, good day. It is indeed a great honour for me to have been invited to speak in this session, on 'Innovation and Reform of Litigation Models in the Digital Era', in this Forum on the Rule of Law in the Digital Economy, hosted by the Supreme People's Court of the People's Republic of China.

There is a great imperative the world over for legal systems to adapt to changes wrought by technology and the changing expectations of the public, in all areas of the law. Much change is required in areas of substantive law such as property, contracts and torts. But even procedural law, including the rules and practices governing litigation, must adapt to a new paradigm, in which the old ways of doing things must give way to the new.

Traditional litigation occurred with the constraints primarily of space and time. Judges, lawyers, and witnesses all had to be present in a physical courtroom at a specified time; documents had to be sent in by paper, often well ahead of the eventual date, and hearings could often be much delayed. In the common law world, the pace of work would have been much more leisurely and the quantity less, with only small amounts of paper and an emphasis on oral arguments.

The demands of contemporary practice, especially in commercial areas, has changed the landscape. The pace, volume of material and pressure on court time and resources has only increased and will continue to increase. Matters have become much more complex, with disputed evidence taking up gigabytes of information or volumes of physical files, contracts spanning multiple pages, and witnesses dispersed across many continents.

It is against this backdrop that the advent of digitization has changed life for judges and lawyers, by transcending space and time. Remote hearings have become common place in the midst of the pandemic. Now, lawyers conduct cases, and witnesses testify, routinely from around the world in our courts in Singapore. Hearings need not even proceed at the same time. Complexity may also be both increased by digitization, by throwing up much more information and evidence, and also reduced and made manageable by sifting and winnowing the volume through astute use of technology. The process and framework of litigation should not only accommodate but promote increased digitalization wherever possible. In this regard, we have noted the work done by the SPC in this area, through the promulgation of the Online Litigation Rules, Online Mediation Rules, and the Online Operations Rules of the SPC. These are a comprehensive set of rules facilitating the administration of justice online, ensuring fair adjudication and the readiness of parties and the courts to make use of the advantages of digitalization.

In Singapore, we have also seen a number of changes which have either expressly addressed increased digitalization or provided greater flexibility for innovation. These measures may be categorized into the following:

(a) Facilitation of technology and digitalization

(b) Greater control or management

(c) Greater flexibility Taking first facilitating the use of technology and digitalization, this effort aims for the removal of impediments. Many of our rules and requirements were rooted in traditional ways of doing things; often, restrictions were written into our statutes without any actual intention to impede. Thus, for instance, we had a requirement in our statutes that hearings be held in a courthouse, i.e. a physical building designated as a court. The intention would of course have been to provide certainty: we would not want people ending up in makeshift buildings to have their cases heard. But in the digital age, and particularly in the midst of a pandemic, this requirement would be a hindrance. There is no need for a courthouse when hearings are held remotely: the judge, lawyers and even witnesses may, with adequate equipment and safeguards, preside, conduct and testify from various locations, including their homes or offices. The new provision in our legislation, introduced through the Courts (Civil and Criminal Justice) Reform Act 2021, allows the conduct of proceedings through a live video or audio link or other electronic means approved by the Chief Justice: s 52, amending s 8A of the Supreme Court of Judicature Act. Other requirements include restrictions on notarization or oath- taking, which were stipulated to be done physically. We have also, as in the PRC, issued guidance for parties, on various aspects of administering justice online, including guidance on the requirements of remote hearings, including safeguards. Various practical measures including videos assisting lay persons in the use of video platforms and the conduct of online proceedings have also been put in place.

Digitalization in addition calls for greater control and management of cases. This may seem counter-intuitive, but digitalization is often accompanied by an explosion of the volume of information, particularly in the form of documents and other evidence, including these days, emails, videos and social media messages. All of these have to be trawled through, preserved and at least indexed. Lawyers in the court system will have an understandable tendency to err on the side of caution and provide more information that would be strictly necessary. The Courts must have the mechanisms to control and manage this influx of information, sieving out those that are irrelevant or only marginally useful. Some mechanisms we have introduced in our Rules of Court 2021 that support these efforts include greater case management, the presence of over-arching principles of justice and proportionality, streamlined discovery and consolidation of applications. Our recent changes to rules also facilitate greater control over expert testimony which are often needed in complex commercial cases.

Finally, our litigation framework allows for greater flexibility. In particular, we now allow for more asynchronous hearings. There was a perception previously that justice required matters to be heard with all parties present at the same time. But this engendered inflexibility and inefficiency. It is often more productive to allow each participant to participate in the hearing at his or her own pace. We have introduced rules allowing this, mostly in preliminary hearings or case management matters. Our mobile app will eventually allow for easier asynchronous communications amongst all stakeholders.

There remain a number of areas of further development, including perhaps even more scope of greater judicial control and direction in managing complex cases digitally, and further measures to encourage parties to make full use of the possibilities of digitalization.

But in all of our efforts, we are aware we must ensure that we never neglect access to justice and fairness. Digitalization is only a step towards achieving justice for all. Measures must always be taken to ease access to justice for in-person litigants who are less familiar with online or digital litigation, including guidance, and where possible, provide appropriate facilities for them. Any changes to our litigation framework must always take into account the overriding need to achieve justice and fairness. We must also always be astute in monitoring the actual use of digital justice, to identify problems and weaknesses early.

Both technology as well as external circumstances have driven in these last few years a rapid shift towards digitalization in our litigation framework in Singapore. We are confident that what we have developed will meet the needs of the users of our court system, and we will continue to strive to ensure the fair and speedy administration of justice for all.

Thank you.

Aedit Abdullah

Judge of the Singapore High Court Republic of Singapore

Justice Aedit Abdullah was appointed Judicial Commissioner in 2014 and High Court Judge on 30 September 2017.

Justice Abdullah obtained a Bachelor of Laws (First Class Honours) from the National University of Singapore (NUS) in 1994, as well as a Bachelor of Civil Law (First Class) from the University of Oxford in 1998 and a Master in Public Management from NUS in 2007.

He joined the Singapore Legal Service in 1995 and began his career as a Justices’ Law Clerk. He then taught at the Faculty of Law, NUS, before re- joining the Singapore Legal Service. He has held various appointments, such as Deputy Public Prosecutor, Deputy Senior State Counsel and District Judge of the Subordinate Courts (renamed as State Courts in 2014). He was appointed Chief Prosecutor (Economic Crimes and Governance Division), and subsequently Chief Prosecutor (Criminal Justice Division) at the Attorney-General’s Chambers in 2011 and served as special counsel at the Monetary Authority of Singapore from January 2008 to June 2009. He was appointed Senior Counsel in 2012.

He is the Judge in charge of Transformation and Innovation in the Judiciary, and is also Chair of the Promotion of Legal Technology Innovation Committee of the Singapore Academy of Law.