The first morning of the Electronic Litigation Conference organised jointly by the Supreme Court of Singapore and the Singapore Academy of Law has yielded so much of interest and importance that I am in danger of losing it if I do not note it up straight away. Quite apart from anything else, I am due to give a summary to the judicial and other VIP delegates and guests at lunchtime tomorrow, and must stand back from it a bit to be ready for that.
We started being impressed before the first speaker had opened his mouth. A large room is packed with rows of seats, with judges and other VIP speakers and guests at the front and the rest behind. So far as I could see, every seat was taken. The organisers are courteous but firm, imposing a degree of discipline which keeps us in our place. The rules include a ban on photography, so my posts will be missing their usual illustrations.
The proceedings were opened by the Honourable Justice Lee Sieu Kin, a judge of the Singapore Supreme Court and chairman of the conference, who told us that we had over 350 guests and speakers from 36 countries. The original plan, he said, had been to focus on electronic discovery, but it had become clear that other related technology developments, including the use of social media, warranted places in the agenda. He introduced the Honourable Chief Justice Chan Sek Keong, President of the Singapore Academy of Law, to give the opening address.
It became clear very quickly that the Chief Justice was no mere figurehead speaker at a legal technology conference. The challenge of dealing with electronic documents was a problem in all common law jurisdictions, he said, but Singapore had taken the view that discovery was only one part of the litigation process which must be grasped to ensure that access to justice was not hindered by excessive cost. That, as the conference chairman had said, warranted the extension of the subject-matter into the management of litigation generally
Electronic filing, he said, was now common in many jurisdictions, but was not necessarily justified in small jurisdictions, especially when Singapore embarked on it in the late ’90s. Singapore aspired to be an international business hub, and a decision was taken to concentrate on clearing the courts’ backlog. Singapore had always adopted a practical approach, with nothing being done for its own sake but only because time and effort could be saved as a result. Studies were made of the best practices in all jurisdictions to identify the best way of providing research, the management of cases and convenient access to the court process by electronic means without sacrificing justice to speed and efficiency.
There was, the Chief Justice said, an innate resistance to change on the part of the legal profession but the lawyers found that resistance was futile in the face of the courts’ determination to provide the world’s first nationwide paperless system with facilities for electronic filing, service of documents etc. The court and the Singapore Academy of Law had produced LawNet which, in addition to the electronic filing system, includes Legal Workbench for legal research and Due Diligence for up-to-date searches for litigation-related information from the courts and elsewhere.
Work is in hand on further electronic processing and on the use of electronic forms to generate court orders. There are developments also on the better use of technology in the courts, with paperless hearings in the Court of Appeal and trials of a voice recognition facility. A website has been developed to spread awareness of all these developments.
The lawyers and courts did not have much experience of electronic discovery to draw on but had studied the experience of other jurisdictions and produced Practice Direction 3/2009 to provide an opt-in framework for the management of electronic documents. It is not enough to enhance the procedures alone. Singapore law still required Peruvian Guano train of enquiry discovery which was not seen as efficient in the modern environment despite the fact that Singapore had not had cases as big as those in the US, Australia and the UK. The New York Times article Armies of Expensive Lawyers Replaced by Cheaper Software had been read as closely in Singapore as elsewhere [My article King Ludd and the Lawyers – e-Discovery and the Luddite Fallacy addressed the arguments raised in that article]
Amongst the lessons learnt from larger jurisdictions was the growing idea that you could not find all the documents when justice, the fair disposal of the matter and the saving of costs was taken into account. Master Whitaker was to return to this subject in his speech later.
The Chief Justice had instructed the institution of what he called a root and branch review, of which the 2009 practice direction was part. More can be done, he said, to increase expertise but the legal profession will take too long if the task is left to market forces. Singapore needed to benefit from the new industry specialists in forensics and eDiscovery support, he said, if the Singapore courts were to expand and to develop expertise in, for example, cross-border disputes. It was, he said, a “lofty goal” that he had set.
A technology and skills programme was being established which, it was hoped, would be distributed cost-effectively via LawNet and the cloud. The “cadre of stalwart paralegals” needed upgraded skills as well as the lawyers.
One focus was on the interaction between lawyers and their clients – the clients conducted all their business electronically but then the lawyers printed everything out. Lawyers must be encouraged to design an electronic workflow even before litigation or an arbitration commenced, with the court encouraging them to retain documents in digital form. Such a venture must necessarily involve the private sector with early adopters being given incentives to participate.
The Chief Justice ended by launching a new LawNet iPad app with much the same style as Steve Jobs launched the iPad itself.
It is easy to say that such reforms are less of a challenge in a small jurisdiction. It is probable that Singapore can wield more resources relative to case volumes than can be done in bigger jurisdictions. The fact is, however, that Singapore started this program a long time ago, and did so with the twin incentives of maintaining justice and capitalising on a growing services sector – the latest Singapore GDP figures show manufacturing down but services up, and it is instructive to compare the Singapore courts’ central role with the rather wet efforts made by the UK’s Ministry of Justice to promote the export potential of our legal services. The UK has its centre of excellence in the Commercial Court, a fine new building to house it and the other specialist courts, and one or two other standout projects aimed at the higher end of the litigation market. What impresses about Singapore is that the big initiatives aimed at the aspiration to be an international business hub had gone hand in hand with attention to the requirements of justice across the broader and more local needs of litigants – things badly neglected in the UK. [See my article UK Government bids for a world-class legal reputation whilst neglecting the basics back home]
We were to hear next from Lord Justice Jackson who brought us up to date with what is happening in England and Wales. The initiatives are many and various and, if successful, will give us a lead in some important aspects of court-led provision of civil justice, but they depend rather too much for my liking on the efforts of a few individuals (like Sir Rupert Jackson himself) and groups, in contrast to the integrated approach adopted in Singapore. By “integrated”, I mean that everything from Singapore’s economic ambitions in its region down to access to individual justice is treated as part of a single endeavour; we, meanwhile, close down county courts whilst publishing vapid papers to comply with the Chancellor’s demand for anything with the word “growth” in it.
Notwithstandng this, the UK’s contribution to the morning’s learning was substantial. What we heard from Singapore’s Chief Justice, however, emphasises something I say often: every common law jurisdiction has something to learn from the others, and conferences like this provide a great forum for sharing ideas.