Edwin Tong Chun Fai
Singapore
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“] (proc text)] [(proc text) Bill considered in Committee; reported without amendment; read a Third time and passed. (proc text)]”
“But obviously, we will continue to watch this space as well. In conclusion, Mr Deputy Speaker, the amendments in the Bill seek to tailor our Court procedures to allow our Courts to function more effectively, more efficiently and also empower them to respond better to vexatious conduct as they see it occur in the context of proceedings. The modifications to Court procedures will improve the Courts' management of their caseload, which will go some way towards ensuring that parties resolve their disputes expeditiously, and that is also in line with enhancing the interests of justice. By arming the Courts with a suite of measures to respond to litigants who, having had their day in Court, abuse the right to be heard by pursuing vexatious proceedings, the Courts will be able to husband their finite resources better and channel them to where they are most needed. There is no doubt that the improvement of Court procedures is and remains work-in-progress. As time goes by, we can expect to see further developments, such as in information technology and the like, which disrupt the way things are done today. Going forward, we will review the impact of the present amendments, continue to work with Members to consider if further improvements ought to be made. And, in doing so, we will also study the best practices of similar jurisdictions overseas to ascertain what best practices can be and should be imported into Singapore. Mr Deputy Speaker, on that note, I beg to move. [(proc text) Question put, and agreed to. (proc text)] [(proc text) Bill accordingly read a Second time and committed to a Committee of the whole House. (proc text)] [(proc text) The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai.”
“Further, as I mentioned earlier, section 74 continues to apply to criminal proceedings and an order under section 74 has more severe consequences in such a scenario as it can potentially affect a person's life and liberty. Therefore, having regard to all these factors, it is more appropriate to ensure that legal representation is mandated in such cases. That is why section 74 provides for that. Nonetheless, legal aid and the other pro bono assistance will continue, subject to the usual requirements; they will remain available for all parties who require but are not able to afford legal representation. I turn now to Mr Christopher de Souza's observation that the test under the civil restraint orders is "totally without merit" while the test under section 74 is "without any reasonable ground". And I think Mr de Souza sought elaboration on the differences between the two tests and the objectives. Broadly speaking, the policy underpinning both provisions would be similar: to prevent abuse of Court processes and allow the Courts to strike a balance between giving effect to the rights of a litigant to have access to the Courts while protecting, on the other hand, the Courts and the counterparty from being inundated with the unmeritorious litigation to the detriment of other parties and also to the detriment of the efficient allocation and usage of Court resources. I note that it is also the case in the UK that the "totally without merit" phrase or requirement is used for civil restraint orders, whilst the "without any reasonable ground" requirement is used for the equivalent provision to our section 74. So, we borrowed from that provision and we retained this distinction. This does not appear to have caused the UK courts any difficulty.”
“As for the issue of private prosecutions raised by Mr Murali Pillai, the control of these proceedings, ultimately, lies with the Public Prosecutor as well and the Public Prosecutor can intervene at any stage of the proceedings, as Mr Murali Pillai correctly pointed out. In fact, under section 13 of the Criminal Procedure Code (CPC), the Public Prosecutor has the power to discontinue the private prosecution. So, to that extent, the power remains vested with the Public Prosecutor. And if it is vexatious and if there is otherwise any issue which causes concern to the Public Prosecutor, then those powers under section 13 of the CPC can be exercised. The concern, therefore, about any potential abuse by vexatious litigants who initiate private prosecutions can be adequately addressed by or within the existing criminal procedure framework. Mr Murali Pillai also raised several other questions. First, in relation to the assignment of advocate and solicitor, and he asked why the new provisions relating to the civil restraint orders do not provide that the High Court shall assign an advocate and solicitor to the party against whom such an order is sought, unlike section 74. As I said, section 74 now remains in its place to deal with the most severe of cases which attract the most severe of restrictions and it also deals with criminal proceedings. A section 74 order is in force indefinitely while a general civil restraint order, which is the most severe of the three types of orders that we now have, is in force for a maximum of two years. A general civil restraint order can be extended, but only for a maximum period of two years at any given occasion.”
“But it takes into account the gravity of the issue, the nuances in terms of the complexity and the novelty of the matter and then decide whether it will be assisted by oral hearing. All of these factors would come in to bear. I now move on to Mr Murali Pillai's questions on the interplay between the civil restraint orders and section 74, and whether there remains a useful role for section 74. The new civil restraint orders seek to complement, but not replace, the current powers conferred on the Courts by section 74. Section 74 does provide for a suite of measures to deal with vexatious litigants and allows the Court to have the flexibility of calibrating its response to the unique challenges posed by a particular case. Furthermore, unlike the new civil restraint orders, section 74 is not limited to civil proceedings. So, it also applies to criminal proceedings which the provisions in the SCJA Bill do not do. Mr Murali Pillai also asked about the reason for not extending the application of the new civil restraint orders to criminal proceedings, in particular, private prosecutions instituted by vexatious litigants. At present, we do not see a need to extend the operation of such civil restraint orders to criminal proceedings, given that, as I said earlier, the presence of section 74 which can be used. Notably, civil restraint orders are adopted from the UK, which only applies these orders to civil proceedings. If, however, circumstances change, and there is a proliferation of similar issues in the criminal proceedings space, then that matter can be revisited.”
“Let me turn now to questions on procedure subsequent to the grant of a civil restraint order. Mr Louis Ng asked if the Courts can extend the period for which an extended or general civil restraint order remains in effect on its own motion or if an application from a party is required. The Court may exercise its power to extend the period for which an extended or general civil restraint order remains in effect on its own motion, or on the application of the Attorney-General or a party to the proceedings. On whether such extension is appropriate, the UK courts have considered whether there is sufficient evidence to demonstrate that there was reasonable apprehension of future vexatious conduct following the expiry of the original extended or general civil restraint order. And there is an authority on this if Members are interested, that is, Ashcroft vs Webster, which is a 2017 decision. So, one of the factors which the court will look at and have regard to in the UK would be the conduct of the party against whom the orders were made, subsequent to the making of the order. Mr Louis Ng also asked whether a party will have a right of appeal against the grant of a civil restraint order. Under section 73A(9), a party against whom a civil restraint order is made may bring an appeal to the Court of Appeal with the leave of the High Court or the Court of Appeal. Finally, Mr Louis Ng asked if a hearing is necessary where a party restrained under a civil restraint order applies for leave of Court to commence an action or make an application. The answer is yes, it would be. Where appropriate, the Court of Appeal, as you heard earlier, would be entitled to hear this also on paper.”
“The language that I have just quoted is from a UK decision applying their equivalent of the statute. This, I believe, gives the Court an ability to appreciate, in a particular case, the number of cases that are filed, the number of times the Court has faced with applications by this litigant, the period of time within which it is done. So, for instance if you file five cases over 10 years, it is quite different from five cases over two months. So, the Court is able to appreciate that better in the context of the case. The Court would also look at whether it is widespread, whether it is indiscriminate and whether one raises a series of allegations which have, basically, no legal merit. Another example is if the litigant just takes an approach that seeks to sully the name of a potential party with no reasonable legal basis. So, all that comes into play and comes into the mix. And the flexibility of this approach allows the Court to attenuate its response based on the facts of the instant case before it. Next, I would like to touch on the scope of the extended civil restraint orders under the new section 73C, a point that Mr Louis Ng raised, the question of the scope of the language under the new section 73C and whether it is intended to be identical to the interpretation the UK courts have taken under their Civil Procedure Rules, and the factors that the Court should consider in determining whether a new action or application falls under the extended civil restraint order. When construing the new section 73C, the position adopted by the UK courts may be persuasive, but our Courts are obviously not bound to follow their interpretation. Different considerations in different jurisdictions will obviously dictate differences in the approach.”
“First, I wish to emphasise that each of the three types of civil restraint orders requires a distinct threshold to be met before they can be considered. While some cases may inevitably throw out a factual matrix where the type of order to issue is not so clear-cut and not so cut and dry, I would say that the Courts would be well-placed to apply the letter and intent of the law to these new and potentially multifarious situations. And they would do so having regard to the issue at hand, to the party in question and to the conduct in question as well in each individual case. It may be helpful to consider that these restraint orders have, in fact, been applied in jurisdictions like the UK, like I mentioned, and as far as we can tell, they have not faced issues with regard to the way in which one might distinguish the type of orders. The factors I believe are clear, and they have been considered in previous cases also in the UK. And our Courts will no doubt take reference too, although it will not be strictly bound by these cases, when they have regard to these applications with the specific facts before them in question. Mr Louis Ng asked what factors the Court would consider when deciding whether an extended civil restraint order is sufficient or appropriate, given that a general civil restraint order will be issued if an extended civil restraint order would not be sufficient or appropriate. To answer Mr Louis Ng's query, one scenario in which the general civil restraint order would be imposed would be where, for example, a vexatious litigant adopts a "blunderbuss approach" to litigation. He may bring in a slew of grievances against different parties, within a short period of time, without focusing on a particular single grievance.”
“I wish to inform Members that the litigants who are held to be "vexatious litigants" by our Courts have so far been far and few, thankfully. In 2017, only four orders were made under section 74 of SCJA. To date, no such orders have been made in 2018. The policy intention behind these amendments is, as I mentioned earlier, to allow the Courts to have, and to be able to take, a more nuanced approach in terms of the orders that they make in managing the different levels of culpability of the vexatious litigants. And this allows the judges to have more regard to the individual circumstances of each case and to make those distinctions. Second, in terms of how and when these orders are to be applied, it will be for the Courts to carefully consider all the facts and circumstances of each case before exercising their discretion on whether to do so or not. While I will clarify the ambit of each of these restraint orders shortly, the jurisprudence in this area must ultimately be left to be developed through the exercise of principled discretion by our judges, based on the actual facts and the context before them. Members would wish to note that this is also the position in the UK. With these in mind, let me address the concerns raised by Members, which, as I have heard, broadly falls into three categories. First, the definition and applicability of each of the civil restraint orders; second, the procedural details subsequent to the grant of a civil restraint order; and third, the interaction and, as Mr Murali Pillai puts it, the interplay between the civil restraint orders and section 74 of SCJA. Let me start by addressing Mr Christopher de Souza's concern that more disputes might arise because of the distinctions that are drawn in the three types of civil restraint orders.”
“Such a flexibility makes SICC a more attractive option for international parties to settle their disputes and also adds to the already existing suite of party-centric innovations, such as allowing foreign counsel to submit directly on foreign law without it having to be proven through expert evidence. To ensure that this option is only exercised in cases where the parties consent, section 34A(2) provides that appeals from any judgments or order of the SICC can be decided without hearing oral arguments only if every party to the appeal agrees. In other words, the choice is made by the parties themselves, and not, as I think Mr Murali Pillai suggested, by the SICC, which yes, remains as a division of the High Court. I turn now to the next basket of amendments which deal with controlling vexatious conduct. I would preface my response by reminding Members that the power to control vexatious conduct is already present. What is being sought to be introduced in these amendments are broadly two things: one, a gradated approach so that it is not a "one-size-fits-all" approach in section 74 of the SCJA as it is presently so; and second, it is to allow for parties, aside from the Attorney-General, to also make their application. Clause 10 of the Bill introduces the new civil restraint orders. They are meant, in the first instance, to be used in situations where the litigants have persistently initiated proceedings that are groundless and without merit. So, the litigant has to do it more than once, multiple times, at least twice in the case of the first rung or the lowest grade of the orders, and also without merit. These are done often with the purpose of annoying or embarrassing the other party.”
“Mr Murali Pillai further pointed out that section 34A(1) already provides that the Court of Appeal has the power to decide on matters without hearing oral arguments. Let me first clarify that section 34A(1) only empowers the Court of Appeal to decide any application to it without hearing oral arguments. The scope of this provision applies to potential applications which are ancillary to the main appeal. So, as I said in my opening speech earlier, they deal with applications, not the main substantive appeal itself. An example of such an "application" would be, going back to my earlier point, security for costs or applying to amend a part of the case, or trying to deal with the potential cost of the hearing. So, those are matters that are ancillary to, but not the main appeal. As a general principle nonetheless, where oral arguments are otherwise useful to elucidate the issues and to facilitate a just and expeditious disposal of an appeal before the Court of Appeal, those will still take place. That said, Mr Murali Pillai raised the question of SICC. SICC is set up to hear international and commercial matters which involve parties with no substantial connection to Singapore. Given that such matters may involve international parties or foreign registered lawyers, the parties may wish, on their own accord, to save time by obviating the need for the oral hearing to take place in Singapore. Further, any international judges on the coram would also not be required to travel to Singapore for that oral hearing.”
“We have our hearings now conducted first with extensive exchange of cases in writing and then the submissions by the skeletals as well just before the hearing. So, several written opportunities would be afforded to the parties already before the hearing itself. To that extent, the parties are encouraged, and I think quite rightly so, given the limited resources we have for hearing time, to ensure that all the available evidence would be before the Courts, before the hearing itself. And so, to that extent, when one is seeking to include further evidence in the appeal where that evidence was otherwise available to the party before the lower Court hearing, one has to be very circumspect about it and, in those situations, further evidence will only be allowed if leave is granted. This is in contradistinction to those cases where, subsequent to the hearing itself, new matters develop and, in those situations, I think it is reasonable to assume that if they have a bearing on the outcome of the appeal, satisfying the usual test for admission of evidence, then the evidence would be allowed. I would stress that this process strikes a proper balance between the right of the parties to rely on and adduce further evidence, and also the appropriate use of judicial and Court time in dealing with these matters. Next, I turn to dealing with matters that can be disposed of based on written submissions. Both Mr Christopher de Souza and Mr Murali Pillai touched on this question, and asked questions as to why section 34A(2), which allows the Court of Appeal to decide matters based on written submissions, is only restricted to appeals from SICC.”
“I turn now to clause 4 of the Bill which introduces the new Schedule, the Sixth Schedule, which sets out the coram of the Court of Appeal when exercising civil jurisdiction in matters. Mr Christopher de Souza asked what considerations may be taken into account when deciding on the Schedule. The key considerations would be the appropriate amount of judicial resources which should be expended on a particular class of matter, obviously issues as to the complexity and the novelty of the matters raised will remain high on the list of priority. In fact, as Mr de Souza knows, the Courts already consider complexity and novelty in deciding when to constitute a coram of three or five judges in a Court of Appeal as the case may be, for both civil and criminal appeals. For instance, a coram consisting of three Judges of Appeal would generally not be necessary to deal with matters incidental to determining the merits of the application or the primary application. So, for example, applications which have bearing on seeking security for costs or applying to discharge solicitors, those do not need the full coram of three. I turn now to deal with the question of further evidence in proceedings and I think all three Members touched on this. Mr Christopher de Souza, in particular, asked about the rationale as to why leave will now be required to admit further evidence. I would like to inform the Members that these revisions deal with the admission of new evidence, in relation to interlocutory matters. So, bear that in mind as you understand the concept and the construct on why these rules apply in this way. Most parties, I think Members would agree, would have the opportunity of raising all the evidence.”
“The Minister, ultimately, is accountable in Parliament to all Members, and this would apply to the decisions as regards what goes in or comes out of the Schedule. To the extent that there are any issues to be raised on this, Parliament can be the forum for this to be raised. On a related note, Mr Christopher de Souza did question as to whether there is a change in the policy rationale as to how a matter or the basis on which a matter is classified as non-appealable or appealable only with leave, within the SCJA framework. I thank Mr de Souza for allowing me to clarify that the policy rationale in deciding whether a matter is classified as one or the other – non-appealable or only with leave – has not changed. Matters are and will continue to be carefully differentiated based on their importance to the substantive outcome and also, quite importantly, balanced against the appropriate allocation of judicial resources to deal with those matters. Mr Murali Pillai queried why the power to amend the Schedules is vested in the Minister, but the power to amend the monetary limit under section 34(2)(a) is not. The reason, I referred to it in my original speech, is because it is consistent with sections 30 and 53(2) respectively of the State Courts Act, where it is the President who has the power to amend the monetary limits for the District Court and the Magistrates' Court, after consulting the Chief Justice. So, to that extent, that remains the province of the President and it finds its place in the main body of the statute, whereas the cases which go into the Schedules can be decided upon by the Minister in consultation with the Chief Justice.”
“Mr Deputy Speaker, Sir, I thank the Members for the comments and the wide-ranging number of suggestions and queries that have been raised. I will do my best to respond to them, also in the framework of the two broad baskets of revisions that have been introduced in this Bill. Let me start with queries on clause 5 of the Bill. As Mr Louis Ng and Mr Murali Pillai and I think also Mr Christopher de Souza have noted, it shifts matters which are non-appealable in section 34(1) to the Fourth Schedule, and those which are appealable with leave from section 34(2) to the Fifth Schedule. Mr Louis Ng, in particular, sought query on why that was being proposed. First, the amendments, as I said earlier, seek to consolidate all of these into one place. At present, you can find matters which are referred to, or necessary for leave to appeal, in the main body of the statute and also in the Schedule. And, likewise, for the matters which are non-appealable, also appearing in both places. So, the first objective of these amendments is to put them all into one location, so that the Schedule itself, the Fourth and the Fifth, will house all the matters for which it is either non-appealable or appealable only with leave. Second, moving them into the Schedules does allow for more flexibility and speed. As the Members will know, it takes more time to amend the primary legislation than it will be to change the Schedules. The Schedules will be revisited from time to time, and added to or removed from, by the Minister, in consultation with the Chief Justice. So, it is not just the Minister alone who will decide on what goes in, what comes out, of the Schedules. Mr Louis Ng did raise a concern as to whether the Schedules will remove the items going in or coming out from Parliament's oversight.”
“This accords with notions of fairness and also proportionality as litigants are restrained to different extents based on the severity of their vexatious conduct, instead of a one-size-fits-all approach under the current section 74. Finally, I would like to touch on some revisions on the imposition of late filing fees for non-compliance with the Rules of Court. In addition to the powers to manage vexatious proceedings, clause 16 of the Bill also ensures the efficient disposal of cases by allowing the Courts to impose late filing fees for non-compliance with the Rules of Court, Court orders or directions and practice directions. Currently, there are no automatic sanctions against the late filing of documents, and this tends to delay legal proceedings. These late filing fees seek to encourage parties and their lawyers to comply with the Rules of Court, Court orders and practice directions in relation to the filing of documents so that legal proceedings can be conducted and completed in a timely manner. Sir, in summary, these amendments are part of our continuing efforts to improve civil procedure in Court proceedings in Singapore. This is an ongoing and worthy endeavour, for it has often been said, and in my view, correctly, that procedure is the handmaid of justice. By enhancing our Court processes, and strengthening Court procedures, while at the same time ensuring that the interests of litigants are safeguarded, these amendments will enable the Courts to continue to fulfil their mission of providing a just, efficient and effective avenue for all its users. Sir, I beg to move. [(proc text) Question proposed. (proc text)]”
“Under the proposed amendments, the High Court or Court of Appeal may make these orders: (a) on its own motion, which it presently cannot do; (b) on an application by a party, again, which it presently cannot do; or (c) on an application by the Attorney-General, which is the current position envisaged under section 74. Before an order is made against a party, that party will be given an opportunity to be heard by the Court. In relation to proceedings before a lower Court, a party or the Attorney-General may make an application to the High Court for one of the abovementioned orders, so to the extent that this may appear in the district Courts or the magistrate's Courts, an application is made to the High Court. This power ensures that the High Court can also make the necessary orders to address vexatious proceedings occurring before a lower Court. It is more appropriate for the High Court to make such orders, instead of the lower Court, because the impact of such orders is potentially far-reaching and restrains a party’s ability to conduct legal proceedings. The party against whom an order is made may bring an appeal to the Court of Appeal with the leave of the High Court or the Court of Appeal. Similarly, clause 11 amends the existing section 74 such that a person against whom an order is made under that section may appeal against the order with the leave of the High Court or the Court of Appeal. These new powers were drawn from best practices in the United Kingdom (UK) and Canada. In moving from a single touchpoint for vexatious proceedings under section 74 to a gradated approach, Courts are now better equipped to manage varying degrees of vexatious conduct.”
“The three different types of orders are as follows. Firstly, a limited civil restraint order. This order may be made against a party who has made two or more applications that are totally without merit. The party will be restrained from making further applications in the particular proceedings in which the order is made, without leave of Court. Secondly, an extended civil restraint order. This order may be made against a party who has persistently commenced actions or made applications that are totally without merit. The party will be restrained from commencing any action or making any application concerning any matter involving, relating to, touching upon or leading to the proceedings in which the order is made, without leave of Court for a period not exceeding two years. Finally, a general civil restraint order. Such an order may be made against a party who has persisted in commencing action or making applications that are totally without merit, and in circumstances where an extended civil restraint order would not be sufficient or appropriate. The party will be restrained from commencing any action or making any application in any Court specified in the order, without leave of Court for a period not exceeding two years. This gradated approach gives more nuance in managing vexatious litigants, taking into account the specific facts of each case. The Court will also be empowered to stay the vexatious proceedings and order that no further documents be filed by a party if the filing of documents would be vexatious or otherwise for an improper purpose.”
“They may be initiated with the purpose of annoying or embarrassing the other party, and not for the purpose of having the Court decide on the issues. Apart from wasting judicial resources, vexatious conduct, especially when instituted habitually and persistently, causes distress and annoyance to other parties to the proceedings as they are subject to a litany of baseless lawsuits and applications. At present, section 74 of the Supreme Court of Judicature Act provides the only recourse against such vexatious litigants. If a party has habitually and persistently and without any reasonable grounds instituted vexatious legal proceedings in any Court, it is the Attorney-General who has to make an application to the Court to restrain such conduct. And upon the making of such a successful application, the High Court may order that: a) either no legal proceedings be instituted by that party without the leave of Court, and/or b) any legal proceedings instituted by that party in any Court before the making of the order shall not be continued by him without leave. This current approach is limited in two ways. First, the Court and the affected party have no power to act on their own to apply under section 74 regardless of the degree of vexatious conduct, the impact it may have had on the affected party, as the application must be made by the Attorney-General. Second, section 74 carries with it severe consequences and may not be proportionate to or properly calibrated to meet the mischief in question in all cases. [Deputy Speaker (Mr Lim Biow Chuan) in the Chair] To address these limitations, clause 10 of the Bill introduces a new power to allow the Courts to make three different types of civil restraint orders to address varying degrees of vexatious conduct.”
“Let me touch on two further amendments in relation to, firstly, the monetary threshold for appeals from the District and Magistrates’ Courts; and secondly, the Rules Committee being empowered to make rules relating to the manner in which evidence is to be adduced. On the first point, clause 3 increases the monetary threshold to $60,000 for decisions of the District and Magistrates’ Courts which are appealable with leave to the High Court. At present, as some Members may know, decisions of the District and Magistrates’ Courts are appealable to the High Court with leave if the amount in dispute does not exceed $50,000. However, the jurisdiction of the Magistrates’ Court is set at $60,000, which means that there are cases with claim values between $50,000 and $60,000 which would be appealable to the High Court without leave. The proposed amendment just seeks to ensure consistency and provides that there will be no automatic right of appeal for cases that fall within the $50,000 to $60,000 range. As to the second point I raised earlier, clause 14 seeks to clarify that under section 80(2)(h), the Rules Committee is empowered to make rules relating to the manner in which factual, expert or opinion evidence is to be presented in Court. I turn now to the next basket of amendments that deal with vexatious proceedings and tardy conduct in the legal proceedings. Vexatious litigation is a drain on our Court resources. They draw away precious Court time from dealing with meritorious applications. The Court of Appeal has had the opportunity to define vexatious proceedings in recent case law, and these amendments do not seek to change that. Broadly, vexatious proceedings are those which are groundless and without merit.”
“The Members can be assured that when the matters are moved into the Sixth Schedule, they will continue to reflect the current position that is based on section 30. As regards appeals on certain matters, the current section 34(1) and the Fourth Schedule set out the matters which are non-appealable to the Court of Appeal, while section 34(2) and the Fifth Schedule set out the matters which are appealable only with leave to the Court of Appeal. By clause 5 of the Bill, matters which are non-appealable will now be set out in the Fourth Schedule, and matters which are appealable only with leave will be set out in the Fifth Schedule. So, part of the amendments seeks to consolidate all the items into one Schedule rather than have them appear in parts of the Bill and in the existing Schedule. The only exception to this would be section 34(2)(a), which sets out the jurisdictional monetary limit and threshold. This, because it deals with the question of jurisdictional monetary limit, will remain in the primary Act. These amendments allow for a quicker revision of each of the above categories as amendments of the primary legislation would require more time to effect rather than the amendment of the Schedule itself. Placing these matters in the Schedules, therefore, allows more flexibility and speed as they can be amended by the Minister, in consultation with the Chief Justice. The Schedules can be revised swiftly to ensure that an efficient allocation of judicial resources can be balanced against the volume of appeals, so that the Court of Appeal can handle deserving cases expeditiously.”
“This is in respect of directions or orders which are ancillary to the main appeal and are unlikely to touch on the substantive merits of the case. The requirement for leave of Court ensures that Court resources would be directed appropriately to deal only with meritorious applications to discharge or vary. In deciding whether to grant leave or not for a party to vary or discharge a direction or order under section 36, the Court of Appeal will consider if such directions and orders are, in fact, ancillary to the appeal, or whether they go towards the merits of the appeal. Leave would be granted where it would be in the interest of justice to do so. Next, the Bill also seeks to introduce flexibility and efficiency in the Court process to allow for cases to be heard expeditiously and also have regard to the various shifting trends that may rise. In this regard, clauses 4 and 5 of the Bill introduce amendments to allow for matters relating to, firstly, the coram of the Court of Appeal, and secondly, as to which matters are non-appealable or only appealable with leave to the Court of Appeal, to be moved from the primary Act into the Fourth to Sixth Schedules. As to the coram of the Court of Appeal, section 30(1) of the Act states that the civil jurisdiction of the Court of Appeal shall be exercised by three or any greater uneven number of Judges of Appeal. Section 30(2) sets out the types of matters which can be determined by a Court of Appeal consisting of two Judges of Appeal. Clause 4 of the Bill will seek to introduce a new Sixth Schedule which would set out the number of judges that would be required to exercise the civil jurisdiction of the Court of Appeal for different matters, as specified in that Schedule.”
“In this regard, before a Court can summarily dismiss an appeal or application, it must give the appellant or applicant a reasonable opportunity to show cause as to why the appeal or application should not be dismissed and consider the representations of the appellant or applicant. Next, we are also proposing amendments in relation to the admission of further evidence on appeal. At present, further evidence can be admitted, on appeal, without leave of Court: one, in relation to interlocutory applications; and two, where matters occurred subsequent to the date of the earlier decision. In line with efficient judicial administration, parties should be encouraged to present all relevant evidence at the first instance hearing so that cases can be disposed fairly, efficiently and also comprehensively based on available evidence. This is, of course, with the exception of matters or evidence which occurred after the date of decision as parties would not obviously have known about it. Therefore, in this vein, clause 9 of the Bill proposes that leave of Court would be required before an application can be made to admit further evidence on appeal, except for matters which occurred subsequent to the date of decision. This means that parties who seek to admit further evidence on interlocutory applications will now require leave of Court in order to do so. This will ensure that only meritorious applications to adduce further evidence will be allowed to proceed. In the same vein, clause 8 introduces a new requirement for leave of Court to make an application to discharge or vary incidental directions or orders made by the Court under section 36 of the Act.”
“Let me touch on a few of these provisions. First, clause 6 of the Bill expands the range of cases that can be decided based on written submissions. At present, the Court of Appeal may decide any application for leave to appeal based on written submissions. Under this provision, it is now proposed that the Court of Appeal can determine (a) any application, and (b) in circumstances where parties consent, appeals from the Singapore International Commercial Court, based on written submissions. The amendment only empowers the Court of Appeal to decide any application to it without hearing oral arguments. So, an application in contrast to substantive appeal. The scope of this amendment does not extend to cover other substantive appeals, except for those which emanate from the Singapore International Commercial Court (SICC) and, even then, in situations where parties agree. Where the Court of Appeal is of the view that even with this power, oral arguments are necessary, it will continue to retain the power to, and will, in fact, hear such oral arguments before deciding the application or appeal. Second, clause 7 empowers the Court of Appeal on its own motion to summarily dismiss certain matters in two situations. First, where the Court lacks jurisdiction to hear and determine the appeal or application; or second, where there is no merit in the appeal or application because the issue has been decided by the Court of Appeal in an earlier matter in which the appellant or applicant was involved. This clause allows unmeritorious appeals or applications to be dismissed without expending unnecessary judicial time and resources. However, safeguards are put in place to ensure that the interests of the appellant or applicant are adequately protected.”
“Mr Speaker, on behalf of the Minister for Law, I beg to move, "That the Bill be now read a Second time." Sir, the Supreme Court of Judicature (Amendment No 2) Bill introduces amendments to achieve two desired outcomes. First, it seeks to streamline Court procedures to enhance efficiency, introduce flexibility in order to meet shifting trends and also accommodate the needs of individual cases. Second, it empowers the Courts to better manage vexatious or tardy conduct in proceedings. In the main, the amendments will allow the Courts to operate more effectively and efficiently, without compromising access to justice. This ensures that judicial resources are better allocated, and results in time and cost savings for litigants and lawyers alike. I will now take the House through the key features of the Bill. Technology has significantly changed the way we live and conduct our affairs. With the advancement of technology, we are able to accomplish tasks in a much faster and efficient manner. Similarly, if used meaningfully, technology has the ability to also make a positive impact on the way our Courts function. Clause 2 of the Bill, therefore, provides that the Courts can conduct hearings via electronic means, such as live video link or live television link. Previously, apart from the provision of evidence by witnesses in civil proceedings, the law did not provide for the general conduct of hearings through electronic means. With this amendment, legal proceedings which do not require the physical presence of parties or their lawyers in Court can be conducted quickly and more efficiently via electronic means. This enhances the Court process and saves time. The Bill also grants the Courts various powers so that they can swiftly dispose cases in the most appropriate manner.”
“As for whether or not the consumers of these items have a recourse subsequently, obviously it is, to some extent, caveat emptor when you buy but, certainly, HSA would welcome complaints that are being made. And as I mentioned, adverse reaction monitoring is being carried out. So, the sense of the market, the information and intelligence gathered from the market would help HSA in making those assessments.”
“I will deal with all three of the supplementary questions together. Health supplements, by definition, they contain minerals, usually vitamins, amino acids, and largely comprise substances that are natural from animal or plant extracts. And so, to that extent, when Dr Chia Shi-Lu speaks about the guidelines, there are guidelines and they are published, and Dr Chia may know that they are published for the industry's reference, and they do provide recommendations along the lines of the safety and quality standards: what ingredients are allowable and the claims that can be made about those ingredients, and also the heavy metal and microbial limits and weight of these items. HSA also provides guidelines on what precise information can appear on the labels to those items. In addition, Dr Chia Shi-Lu speaks of the post-marketing surveillance. That is being done by HSA. So, there is a post-market surveillance that monitors the safety of these products as they hit the shelves. They also allow HSA to initiate timely product recalls should there be any adverse reaction. As I mentioned earlier, HSA takes a risk-based approach to identifying what this sampling of the health products would take, what scope it would cover, and also takes an active step in looking at this in sampling, to test them for toxic heavy metals and other prohibited ingredients. The post-market surveillance testing for health supplements is also complemented by an adverse reaction monitoring, which Dr Chia Shi-Lu also mentioned in his third supplementary question. And all that taken together allows HSA to surveil the market. Whether or not these guidelines should eventuate into legislation, I would not rule that out but, at this point in time, there are no plans to do so.”
“Mr Speaker, the Health Sciences Authority (HSA) takes a risk-based approach in regulating the different categories of health products, and that includes the health supplements that Dr Chia Shi-Lu speaks about. Health supplements are used to support general well-being, and not for the purposes of preventing or treating diseases. Dealers are allowed to use authoritative reference texts, such as official publications issued by authorities and published literature, to support and substantiate their product claims. This approach to advertising claims for health supplements is similar to those adopted in the United States, Australia, Canada and Japan. However, advertisements on health supplements which claim to prevent or treat diseases are not allowed. When detected, these advertisers will be ordered to stop the publication of these advertisements. Non-compliant advertisers may face a maximum penalty of a fine of up to $5,000 or imprisonment up to two years or both. In addition, HSA also educates the public to be cautious of exaggerated advertising claims through consumer advisories. Mandatory testing by dealers to back up advertisement claims, therefore, is not being considered at this time.”
“This is also necessary to ensure that only "fit and proper" persons who are qualified are granted such licences to allow the licensee to undertake the spectrum of restructuring and insolvency work, as described in clause 47(1). Mr Dennis Tan also asked about what the conditions that might be specified are. If Mr Dennis Tan looks at clause 50(2), it provides for certain categories of persons who are qualified to act and to administer such insolvencies. Whilst the provisions are being developed, Mr Dennis Tan can take it from me that it will be along the same vein to ensure that the relevant expertise and proper experience befit the person to manage such restructurings and insolvencies. Mr Christopher de Souza asked about the purpose in clause 53(2) specifying 30 June as the date on which a valid licence that is not renewed would expire, given that the renewal for licences would all come at the same time. This is the point that Mr Christopher de Souza made. Under clause 50, a “qualified person” who is eligible to hold an insolvency practitioner’s licence means any person who is an advocate or solicitor, public accountant, chartered accountant or possesses such other qualifications as the Minister may prescribe. That is really not different from the scenario that we have today in terms of the qualifications. Currently, the registration of a public accountant or chartered accountant is valid from 1 January to 31 December of each year, whilst the practising certificates for advocates and solicitors run on a different time scale. They are 1 April to 31 March each year. So, the specified date of 30 June provides sufficient time for applicants for an insolvency practitioner’s licence to produce the required evidence of such registration or practising certificate.”
“In the Bill, these regimes now have provisions specific to themselves, with the necessary refinements to ensure that they are worded in the terminology consistent with the judicial management and winding up regimes. These include the provisions relating to proofs of debt in clauses 218 to 223, and the adjustment of prior transactions in clauses 224 to 229. Second, the Bill also introduces new provisions for disclaimer of onerous property, for judicial management and winding up in clauses 230 to 233, and personal bankruptcy in clauses 373 to 376. In particular, clauses 230(4)(a) and 373(4)(a) are new provisions that require the judicial manager, liquidator or Official Assignee, as the case may be, where the property is subject to any written law under the Second Schedule, to give notice of the intention to disclaim the property to the relevant regulatory authority. This written notice must be given before the officeholder may give the notice of disclaimer under clauses 230(1) or 373(1). This ensures that the relevant regulatory authority has the opportunity to address any issues relating to the property under the relevant environmental legislation. On the new licensing and regulatory regime, a point that both Mr Dennis Tan and Mr Christopher de Souza spoke about, Mr Christopher de Souza, in particular, noted that the new requirements to act as a practitioner are more stringent than the previous ones. To develop and strengthen Singapore as a restructuring forum of choice, a robust licensing and regulatory regime forms an integral and necessary part of the ecosystem. It is necessary to ensure that professional standards are maintained and upheld by all insolvency practitioners.”
“Thank you, Sir. Sir, I thank the Members for speaking up with their comments and also the various suggestions that have been made. These are very thoughtful, considerate comments and I will do my best to respond to them. I will do so, grouping them into five different topics. The first relates to the consolidation of personal and corporate restructuring and insolvency laws into one single legislation. It is omnibus, not omnipotent. Second, the new licensing and regulatory regime which regulates all insolvency practitioners. Third, the proof of debts during winding up. Fourth, the availability of third-party funding in judicial management and liquidation. And finally, the need to safeguard the interests of creditors and employees, a point that Mr Patrick Tay spoke very passionately about. Both Mr Murali Pillai and Mr Christopher de Souza commented on the benefits brought about by the Bill, which consolidates the personal and corporate insolvency provisions into one. Indeed, having them in a single piece of legislation will bring greater clarity and access, as well as expediency, cost-effectiveness and certainty through the reduction of numerous cross-referencing that we now see between the Companies Act and the Bankruptcy Act. I take this opportunity to highlight that the Bill also sets out common principles that run across the different regimes, where possible. So, for example, Part 9 introduces new provisions that are generally applicable to both judicial management and winding up. Currently, this is given effect to in judicial management and winding up by way of cross-referencing provisions in the Bankruptcy Act.”
“For example, just last week, the Supreme Court of Singapore concluded two Memoranda of Understanding (MOUs) with the US Bankruptcy Court for the District of Delaware and the US Bankruptcy Court for the Southern District of New York. This follows from the MOU with the Seoul Bankruptcy Court in May earlier this year. These MOUs with key commercial and insolvency jurisdictions bode well for the future and will facilitate efficient cross-border restructuring and insolvency proceedings between the Courts. With this Bill, and our collective efforts, we will create a world-class restructuring and insolvency ecosystem in Singapore. Mr Deputy Speaker, I beg to move. [(proc text) Question proposed. (proc text)]”
“To balance the interests of the counterparty and other stakeholders, safeguards have also been included in clauses 440(4) and (5). First, certain types of contracts are exempted from this provision. These exemptions recognise that restricting the application of ipso facto clauses in certain categories of transactions or contracts would have a disproportionately adverse impact on markets, while balancing the efficacy of the restriction. These include prescribed eligible financial contracts and prescribed contracts that affect the national interest or economic interest of Singapore. Second, a counterparty may apply to Court, nonetheless, for relief on the basis of significant financial hardship. This provides an additional safeguard for relief in certain specific individual cases. Sir, in conclusion, this Bill ensures that our debt restructuring and insolvency laws remain modern and progressive. In particular, it strengthens our corporate debt restructuring regimes to better support companies, creditors and other stakeholders who seek to rehabilitate local and foreign companies here, balancing the commercial interests of all concerned. This Bill would not have been possible without the extensive consultation over the years with the industry bodies, with leading industry practitioners, academics and other stakeholders in the insolvency regime, such as the Courts. We received many helpful suggestions. These have been carefully considered in detail and incorporated into the Bill, where appropriate, and this makes the Bill far more robust. This Bill is part of a wider concerted effort to enhance Singapore's debt restructuring ecosystem.”
“This restriction, if applicable, operates from the commencement of those restructuring proceedings, that means, from the commencement of the judicial management proceedings or the restructuring by schemes until their conclusion. At this juncture, it is necessary to make it clear that clause 440 only limits a certain specific subset of ipso facto clauses, those I have just outlined above, in other words, by reason only of the restructuring efforts of the company. It does not affect ipso facto clauses that are triggered on any other contractually provided grounds. So, let me illustrate. In a case of a developer and a main contractor entering into a contract for the construction of a building, where the contract contains ipso facto clauses that may be triggered either on the commencement of restructuring proceedings, or the failure to meet construction milestones, which is not untypical in such a contract. If the main contractor is in financial distress and files an application to Court to place the company into judicial management, the developer will be restricted by clause 440 from relying on the ipso facto clause, because it is triggered by the filing of the application for a judicial management order, which is one of the specified restructuring proceedings in clause 440(6). If, however, in addition to the filing of the restructuring proceedings, the main contractor also fails to meet construction milestones and timelines which are built into the contract, the developer may use the ipso facto clause to terminate the contract or for a variety of other reliefs as specified in the contract. So, it is only by reason of the restructuring efforts set out in clause 440 alone that these ipso facto clauses are restricted.”
“"Ipso facto" or, in English, "without more" clauses in contracts allow one party to terminate or modify a contract upon a specified event occurring to the other party. In the restructuring and insolvency context, such clauses typically allow one party to terminate the contract upon the occurrence of a specified insolvency-related event affecting the other party, such as an application for a judicial management order or an application for a scheme under the Companies Act. Currently, there is no restriction on the operation of ipso facto clauses. If a company's business relies on key contracts and such contracts contain ipso facto clauses, that company will have difficulty commencing or entering into a debt-restructuring process because of the risk that counterparties would, simply by that reason alone, be able to terminate those key contracts. This new provision, therefore, facilitates the attempts of such a company to restructure by protecting its valuable commercial contracts from being terminated by reason only that the company has embarked on restructuring efforts, under certain specified circumstances. The concept of restricting the application of ipso facto clauses is also found in the laws of jurisdictions, such as the US, Canada and Australia. The language in clause 440, in particular, takes reference from section 34 of the Canadian Companies' Creditors Arrangement Act. Clause 440(1) provides that no party may by reason only that any restructuring proceedings as defined in clause 440(6) are commenced or that the company is insolvent and thereafter (a) terminate or amend, or claim an accelerated payment or forfeiture of the term under, any agreement with the company; or (b) terminate or modify any right or obligation under any agreement with the company.”
“This new avenue of funding may increase the likelihood of such an action being pursued. This will, in turn, benefit stakeholders by providing higher recoveries, if such actions are successful. This new power is similarly provided to liquidators in clauses 144(1)(g) and 177(1)(a). To avoid doubt, these new provisions are only intended to provide for the assignment of proceeds from such an action brought by the judicial manager or liquidator. This is not intended to affect other funding arrangements that are allowed under common law, such as funding for causes of action that belong to the company as its property, and funding for the investigation of potential causes of action for financially distressed companies. Clause 102 re-enacts section 227I of the Companies Act, which provides that the judicial manager of a company is deemed to be the agent of the company, but in clause 102, it omits the imposition of personal liability on the judicial manager. Let me explain. The present regime imposes personal liability on judicial managers for contracts entered into or adopted by the judicial managers, although the judicial manager is allowed to disclaim personal liability, and usually does so. The availability of such a disclaimer of personal liability ensures that the judicial manager is not otherwise discouraged from entering into or adopting contracts that would be beneficial to the company. However, the net effect of this practice is that it renders the imposition of personal liability quite academic in the first place. Therefore, at clause 102 of this Bill, the provision imposing personal liability on judicial managers has not been re-enacted. I turn now to clause 440 which introduces a new restriction on the operation of certain types of ipso facto clauses.”
“Turning to judicial management, clause 94 is a new tool which seeks to allow a company to place itself into judicial management provided that creditors agree to it and support it in doing so. Currently, a company may only enter judicial management by a Court order. Clause 94 provides an alternative mode of entry into judicial management in cases where creditors are supportive. The aim of this new provision is to minimise the expense, formality and delay in such cases, and the expedited procedure will allow the company to focus its resources on rehabilitation. It must be emphasised that once the company is placed into judicial management, the judicial management process will then continue in the same manner and under the supervision of the Court, regardless of how the judicial management was started. That is obvious because it is a judicial management with the Court having oversight. Clause 99 and the First Schedule provide for the powers of the judicial manager, including a new power at paragraph (f) of the First Schedule, to assign, in accordance with the prescribed regulations, the proceeds of an action set out in that paragraph. Judicial managers are provided certain powers under those provisions set out in paragraph (f) to bring an action in Court to unwind prejudicial transactions and avoid acts detrimental to creditors, for example, where errant directors have entered into a transaction to transfer assets of the company to a third party for no value or no valuable consideration. Currently, a majority of such actions may not be pursued due largely to there being a lack of financial resources. These new provisions allow the judicial manager to assign proceeds from such an action to a third party, in exchange for funding of the action.”
“" This amendment empowers the Minister to prescribe by regulations that the commencement of specified proceedings, or the continuation of specified proceedings, or both, is not affected by the moratoria. The intention is to apply this power in a targeted manner where necessary, in particular, with respect to writs for an action in rem against a vessel. The current practice, as I understand it, is that for urgent cases in rem, writs and applications for leave are to be filed simultaneously, and the Supreme Court registry accepts such filings with the Court thereafter deciding if the claim may proceed. The power under clause 64(12)(b) will be used to provide that the first step of the filing of an in rem writ is not itself impeded by the moratoria, and this is in order to preserve the claims against the vessels because time stops running when you have filed the claim. However, leave of Court under clause 64(1)(c) or (8)(c) will still be required to continue with such proceedings. A similar provision is also inserted at clauses 65(7)(b), 95(3)(b) and 96(5)(b). Second, clause 70 empowers the Court to approve a scheme of arrangement despite there being dissenting classes of creditors, provided that the scheme is fair and equitable to the dissenting class. This re-enacts section 211H of the Companies Act, but with one key difference at clause 70(4)(b)(ii)(B), that persons subordinate in priority to the dissenting class must not receive or retain any property “of the company”. So, the insertion of the words "of the company” clarifies and confirms the position outlined in Parliament last year when this provision was introduced in the 2017 amendments, that the cram-down provisions introduced were “not concerned with adjustments to shareholder interests".”
“When the Companies Act was amended last year to strengthen Singapore’s debt restructuring regime, it was noted during the Second Reading that, “[t]he need for debt restructuring is on the rise globally”, referring to high profile cases, such as Hanjin Shipping, and Singapore-listed businesses like Swiber and Ezra. Since the passage of those amendments, several more high-profile cases, illustrating the need for an effective debt restructuring and rehabilitation scheme, have been in the news, including well-known names like Toys "R" Us in the US, Noble, our own Hyflux and Nam Cheong. This Bill further strengthens our debt restructuring regimes for the rehabilitation of companies in financial distress, while including appropriate safeguards to balance the interests of stakeholders. With this in mind, I will touch on the amendments to schemes of arrangement first, followed by judicial management and, finally, the new restrictions on ipso facto provisions. In respect of schemes of arrangement, the Bill makes two amendments. First, clause 64 re-enacts section 211B of the Companies Act, with a new subsection (12)(b). Clause 64(1) gives the Court the power to make one or more orders restraining certain actions and proceedings against the company on an application by a company that has proposed a compromise or arrangement with its creditors or intends to do so. Clause 64(8) provides for an automatic moratorium of not more than 30 days to apply upon the making of an application under clause 64(1). The new clause 64(12)(b) provides that neither an order made by the Court under clause 64(1) nor the automatic moratorium under clause 64(8) affects "the commencement or continuation of any proceedings that may be prescribed by regulations.”
“This has led, in some cases, to undesirable situations where either a liquidator or a judicial manager whose conduct has fallen short of standards could not otherwise be punished besides or beyond looking at that individual’s professional licensing regime. So, it is a narrower framework. To raise standards and improve accountability, the Insolvency and Public Trustee’s Office under MinLaw will regulate more than 300 insolvency practitioners, who will fall under this new regime. Its key features include: first, the licensing of insolvency practitioners, who must meet minimum qualifications and prescribed requirements to obtain and renew their licences under clauses 50 to 51. In particular, clause 50 provides that a “qualified person” means any person who is an advocate or solicitor, a public accountant, a chartered accountant or possesses such other qualifications as the Minister may prescribe; and second, the investigation and discipline against insolvency practitioners for breaches of their conduct as insolvency practitioners under clauses 56 to 60. I turn next to touch on the enhancements made to our debt restructuring regime. A successful debt restructuring avoids liquidation and allows the company to get back onto its feet, to continue its business as a going concern. Compared to liquidation, this provides a better return to creditors, and also benefits stakeholders, such as employees who get to keep their jobs, and trading counterparties who rely on the company's businesses.”
“Third, clause 239 introduces a new "wrongful trading" provision that replaces the old insolvent trading regime in sections 339 and 340, in particular, sections 339(3) and 340(2) of the Companies Act. The current regime is unsatisfactory as criminal liability must first be found as a prerequisite before the making of an application to impose civil liability against the officer of the company, and has not, as far as we are aware, been used in any reported case in Singapore. Under clause 239, therefore, a company trades wrongfully if the company incurs debts or liabilities without reasonable prospect of meeting them in full when the company is insolvent, or becomes insolvent as a result of the incurrence of such debt or liability. The new clause 239 empowers the Court to declare that any person who was a knowing party to the company trading wrongfully shall be personally liable and responsible for those debts or liabilities of the company. Clause 239(10) further provides that a company or any person party to, or interested in becoming a party to, the carrying on of business with a company, may apply to the Court for a declaration that a particular course of conduct, transaction or series of transactions would not constitute wrongful trading. I now turn to deal with the licensing and regulatory regime. Clauses 47 to 60 establishes a new licensing and regulatory regime applicable to all persons acting as “insolvency practitioners”, as defined in clause 47. Currently, such practitioners are regulated, if at all, under the professional regimes to which they belong. For example, public accountants are regulated by the Accounting and Corporate Regulatory Authority (ACRA). However, there is no specific regime applicable only to and for insolvency practitioners.”
“In the present regime, there is no summary procedure that caters to cases where companies may have insufficient assets to pay for the administration of their own winding up. The impetus for this new procedure is to streamline the use of public resources and funds in administering cases where there are insufficient assets to fund even the administration of the liquidation. There is a sizeable number of such cases and, to give Members a sense of the scale, as of 31 August 2018, there were more than 100 companies undergoing winding up by the Official Receiver, with estimated realisable assets of less than S$1,000 in each case. Without the new provision, a significant number of man-hours and public resources will need to be expended to liquidate such companies, with little or even no return to creditors. The early dissolution procedure may be utilised by the Official Receiver and by private liquidators who have obtained the prior consent of the Official Receiver. It may be used where the liquidator has reasonable cause to believe that (a) the realisable assets of the company are insufficient to pay even for the expenses of the winding up; and (b) where the affairs of the company do not otherwise require further investigation. In such cases, the liquidator may give notice to the creditors and contributories that the name of the company will be struck off the register and the company will be dissolved at the expiration of 30 days from the date of the notice. Relevant stakeholders who oppose the early dissolution may appoint a replacement liquidator or apply to the Court for relief. So, there is the option if one does not agree with the proposal.”
“This facilitates greater certainty and transparency in projected returns to the relevant stakeholders and also facilitates a more efficient administration of the bankruptcy. Next, I turn to liquidation which appears in clauses 119 to 250. These provisions have also been ported over from the Companies Act with various amendments. The key changes include the reforms made to the appointment of the Official Receiver as liquidator, the introduction of a new early dissolution procedure, and also a new wrongful trading provision. Let me deal with these. Clause 135 sets out the circumstances where the Official Receiver may be nominated as liquidator in a Court application to wind up a company. Currently, the Official Receiver is the default liquidator where there is no liquidator appointed by the Court, or there is a vacancy in the position of liquidator in a Court-ordered winding up. This is undesirable because there is no obligation imposed on the applicant to attempt to appoint a private liquidator, even where the company may have sufficient assets to pay for such liquidators. This amendment thus refocuses the Official Receiver’s role on overseeing the conduct of liquidation and cases. Under clause 135(3) of the Bill, the Official Receiver may only be nominated to act as liquidator if the applicant for a winding up has taken reasonable steps but is unable to obtain the consent of a licensed insolvency practitioner to be appointed as liquidator, and the Official Receiver then consents to such nomination. Second, clauses 209 to 211 introduce a new procedure for the early dissolution of a company in liquidation.”
“If the Bill is passed and comes into force, the Bankruptcy Act will be repealed in its entirety; the provisions in the Companies Act relating to corporate insolvency and restructuring will be repealed; and necessary consequential and related amendments will be made to about 70 other Acts of Parliament. The repeals, however, will not affect existing cases and pending applications that are now before the Courts under the current Bankruptcy Act and Companies Act, as long as they are before the date of commencement of the Bill. The relevant provisions of the Bankruptcy Act and Companies Act will continue to apply to those cases and applications. I will go over some of the key provisions relating to personal bankruptcy. Clauses 273 to 437 relate to personal bankruptcy. These provisions have been ported over from the existing provisions in the Bankruptcy Act and remain largely unchanged. Given the significant amendments that were made in 2015, the present amendments are less substantial. Of these, one of the changes is to make the administration of bankruptcy cases more efficient. Currently, secured creditors do not need to indicate an intention to claim interest on debts owed by the bankrupt. Under clause 327(4) of the Bill, secured creditors are required to notify the trustee administering the bankruptcy, within 30 days after the bankruptcy order, if they intend to claim interest on the debt for the period after the making of the order. Given that secured creditors are in most cases paid out fully from their security, this change allows the trustee to have a more complete picture of the full extent of the bankrupt’s assets and liabilities early on.”
“This will professionalise and raise the quality and standards of insolvency practitioners. Third, the Bill also enhances our insolvency and debt restructuring regimes. In particular, the reforms continue the enhancement of Singapore's corporate rescue and debt restructuring framework that commenced under the Companies Act amendments last year. The latter introduced US Chapter 11 concepts into our English law-based schemes of arrangement regime, such as worldwide moratoriums, super-priority rescue financing, prepackaged restructurings and cram-downs. This Bill will further enhance the restructuring regime, with new provisions, such as a restriction on ipso facto clauses, which I will touch on in a minute. Taken as a whole, these reforms benefit local businesses experiencing financial difficulties by providing them with more robust tools to rehabilitate, to get back onto their feet; position Singapore as a forum of choice for foreign debtors to restructure, creating new and greater opportunities for our professional services, such as the legal, accounting and financial services; create value for our economy, by supporting Singapore’s position as an international legal, financial and business centre through a strong restructuring regime. With that, Mr Speaker, let me now take Members through the key provisions of the Bill. The Bill introduces a new legislation that consolidates the personal and corporate insolvency and debt restructuring laws that are currently in the Bankruptcy Act and in the Companies Act into a single Act.”
“I am pleased to report that the amendments to the Companies Act that came into effect on 23 May 2017 have made a positive impact. In a little more than a year, close to 100 applications under the new provisions have been filed with the Singapore Courts, which is a significant number within a short period of time. It is heartening that parties are taking advantage of the new provisions to seek better outcomes for creditors, debtors and other stakeholders, like the employees of financially distressed companies. Our reforms have also garnered attention internationally, including Singapore being recognised as the "Most Improved Jurisdiction" at the inaugural Global Restructuring Review Awards in June 2017. This Bill is the last phase of this current round of reforms, and builds on the foundation laid by the earlier amendments. Taken together, these reforms ensure that our insolvency and restructuring laws remain progressive and modern. This Bill achieves this aim through three specific objectives. First, to promulgate a new single Act, which consolidates the corporate and personal insolvency and debt restructuring laws into one place. They are currently found in two separate statutes. This has numerous benefits, including setting out common principles and aligning procedures across the regimes under a single law, rationalising existing inconsistencies and minimising current uncertainty due to cross-referencing across the various pieces of legislation, and enhancing the clarity and accessibility of the laws for advisers and the parties involved. This will be welcomed as it removes the need to refer to multiple primary and subsidiary legislation. Second, the Bill establishes a regulatory regime for insolvency practitioners.”
“Mr Deputy Speaker, on behalf of the Minister for Law, I beg to move, "That the Bill be now read a Second time." Sir, Singapore's debt restructuring and insolvency laws have undergone significant changes in the last three years, guided by the recommendations of two expert committees: firstly, the Insolvency Law Review Committee in 2013, which conducted a holistic study of Singapore's insolvency and restructuring landscape; and secondly, the Committee to Strengthen Singapore as an International Centre for Debt Restructuring in 2016, which focused on strengthening Singapore's debt restructuring ecosystem. The Committees, together, made close to 150 recommendations. On top of these recommendations, the Ministry of Law (MinLaw) also conducted further studies and received extensive stakeholder feedback proposing other reforms. In view of the large number of complex legislative changes required to give effect to the recommendations and other reforms, a phased approach to implementation was adopted. Prior to this Bill, in 2015, the Bankruptcy Act was amended to create a more rehabilitative discharge framework for bankrupts, encourage institutional creditors to exercise financial prudence when granting credit, and facilitate better utilisation of public resources by requiring institutional creditors to appoint private trustees in bankruptcy. In 2017, the Companies Act was amended to enhance our corporate rescue and debt restructuring processes to strengthen Singapore as a forum of choice for debt restructuring. The reforms introduced features adapted from Chapter 11 of the United States (US) Bankruptcy Code, and the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency.”
“This will be taken into account when designing the CareShield premiums. But as I said, if you take a leaf out of the ElderShield scheme, there is already coverage by way of supplements for those who have less than three ADLs.”
“Mr Speaker, Sir, CareShield Life will protect Singaporeans against the long-term care costs of severe disability by providing monthly cash payouts when a policyholder is unable to perform three or more Activities of Daily Living (ADL). To keep the scheme sustainable and premiums affordable for all, it is targeted at severe disability, given that the needs and costs for caring someone with severe disability are most significant. Should the scheme be expanded to cover mild to moderate disabilities, premiums will be significantly higher and affordability will be affected. Allowing policyholders to receive payouts, whether full or partial, once they are unable to perform one ADL will result in higher premiums. To illustrate, if policyholders are able to receive payouts once they are unable to perform two ADLs, premiums will need to increase by about one-third. If we loosen the claims criterion further to one ADL, premiums will increase even more significantly. Reducing the payouts by two-thirds at one ADL will not fully offset the premium increase required to cover the individuals who are unable to perform one ADL, as there will still be more claimants overall. Singaporeans who wish to have better coverage, including making a claim when they are unable to perform two ADLs, can consider purchasing Supplement policies from the private insurers, which are currently already available under the existing ElderShield. We also have other Government assistance schemes, such as the Seniors' Mobility and Enabling Fund, as well as Government-funded safety nets, such as MediFund and ComCare, to complement personal savings and family support to help Singaporeans with mild or moderate disabilities and who are facing financial difficulties.”
“(proc text)] [(proc text) The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai.] (proc text)] [(proc text) Bill considered in Committee; reported without amendment; read a Third time and passed. (proc text)]”