Speech by Mr. Louis Ng Kok Kwang, MP for Nee Soon GRC at the Second Reading of the Supreme Court of Judicature (Amendment No.2) Bill [Bill no. 33/2018]
Sir, I stand in support of this Bill, which updates our civil procedure framework.
In particular, I welcome the clarification that the court may hear matters through live video or television link.
This aligns the legislative framework with the tools already at the disposal of court users such as the Technology courts and Mobile Technology Facility Services for use in non-technology courtrooms and hearing chambers.
The Bill also proposes a number of other amendments, which have been perceived by some members of the public as imposing limits on a litigant’s right to be heard.
These amendments include requiring leave of court before an application can be made to admit further evidence on appeal, allowing the Court of Appeal to determine a broader range of matters based on written submission, and allowing the Court of Appeal to summarily dismiss appeals or applications on its own motions.
While each amendment may be unremarkable on its own, the collective effect of all these amendments is to significantly encroach on the various aspects of the right to be heard.
The right to be heard is a fundamental rule of natural justice. We should be cautious when imposing any limits on that right. As such, I will be seeking clarifications on two matters.
First, the Minister’s power to determine which civil matters may or may not be appealed to the Court of Appeal.
Second, the range of restraint orders that a Court may now grant for vexatious proceedings.
The rationale for imposing these limits and the scope of their application should be clear so that litigants do not feel deprived of their right to be heard. Justice must both be done and be seen to be done.
Moving appealable and non-appealable civil matters to the Fourth and Fifth Schedule
Sir, Section 34 will be amended to allow the Minister to specify in the Fourth and Fifth Schedules which civil matters may or may not be brought on appeal to the Court of Appeal.
This amendment moves the determination of appealable civil matters further from Parliamentary scrutiny.
Changes to the Schedules can be decided by the Minister in consultation with the Chief Justice without needing to be passed through Parliament.
In its response to the public consultation conducted, the Ministry noted that there is sufficient accountability since the Minister is answerable to Parliament.
The rationale behind moving the list of appealable and non-appealable civil matters from the main body of the Act to the Schedules is to provide flexibility for amendments.
However, this decision is a significant one that involves curtailing parties’ rights of appeal as was noted by respondents to the public consultation. Whether a civil matter should be appealable is a decision that warrants further deliberation and debate.
The amendment suggests that the need for flexibility outweighs the value of deliberation. Can the Minister elaborate further on why the list of appealable and non-appealable civil matters might need to be amended so urgently that it justifies moving the decision out of Parliament’s oversight?
Interpretation of powers to grant restraint orders
Next, Sections 73A to 73D are significant new additions to the SCJA, which grant the court more tools to restraint unmeritorious or vexatious proceedings and litigants. The new orders that the court may grant are intended to introduce a more nuanced approach to restrain a vexatious litigant.
However, I am concerned that the expanded powers may have the converse effect of leading to the courts being more willing to resort to restraint orders.
The new Section 73C provides for an extended civil restraint order which restraints an individual from commencing an action or making an application which concerns any matter “involving, relating to, touching upon or leading to” the legal proceedings at hand.
These are incredibly broad terms. Can the Minister elaborate on the factors that the Court should consider in determining whether a new action or application falls under an extended civil restraint order?
The wording of “involving, relating to, touching upon or leading to” in Section 73C is taken from paragraphs 3.2 and 3.3 of Practice Directions 3C of the UK’s Civil Procedure Rules.
Is the scope of the language under the new Section 73C intended to be identical to the interpretation the UK courts have taken of extended civil restraint orders under their Civil Procedure Rules?
The new Section 73D(1) provides that the court may make a general civil restraint order where an extended civil restraint order “would not be sufficient or appropriate”.
Can the Minister elaborate further on what factors the court should consider in determining whether an extended civil restraint order is sufficient or appropriate?
Can the Minister also provide some examples of when an extended civil restraint order would be deemed insufficient or inappropriate?
Next, Sections 73B(5), 73C(6) and 73D(6) allows a party subject to a restraint order to appeal where the High Court refuses to grant leave to commence an action or make an application. However, this right of appeal is in relation to the new action or application after a restraint order has already been made. Does the party have a right of appeal against the granting of the restraint order in the first place?
Under the UK’s Civil Procedure Rules relating to civil restraint orders, an application for permission to commence an action or make an application may be determined without a hearing.
Can the Minister clarify whether a hearing is necessary where a party applies for leave of court to commence an action or make an application?
Under Sections 73C(5) and 73D(5), the court may extend the period for which a extended or general civil restraint order remains in effect if it considers it appropriate to do so.
Can the Minister clarify whether the court has the power to do so on its own initiative or whether an application from a party is required?
Can the Minister also elaborate on the circumstances or factors to be considered in determining whether an extension is appropriate?
Sir, I appreciate that these amendments are intended to allow the court to tailor procedures to meet the needs of individual cases.
Nonetheless, flexibility should be exercised in a principled manner that respects the individual right to be heard. I hope the Minister will be able to clarify the above matters and provide litigants greater clarity on when the provisions may or may not apply.
Notwithstanding the above concerns and clarifications requested, I stand in support of this Bill.