Re Civelli, Carlo Giuseppe and another [2024] SGHC 143

Case Details

• Citation: [2024] SGHC 143
• Court: General Division of the High Court of the Republic of Singapore
• Decision Date: 31 May 2024
• Coram: Kwek Mean Luck J
• Case Number: Originating Application No 258 of 2024; Registrar’s Appeal No 87 of 2024; HC/SUM 1029/2024
• Hearing Date(s): 17 May 2024
• Appellants: Carlo Giuseppe Civelli; Aster Capital SA (Ltd) Panama
• Counsel for Appellants: Cavinder Bull SC, Woo Shu Yan, Tay Hong Zhi Gerald, and Chua Ying Ying Erin (Drew & Napier LLC)
• Practice Areas: Civil Procedure; International Law; Evidence

Summary

The decision in Re Civelli, Carlo Giuseppe and another [2024] SGHC 143 addresses a critical procedural intersection between domestic civil procedure and international judicial comity. The primary legal question was whether the Evidence (Civil Proceedings in Other Jurisdictions) Act 1979 (2020 Rev Ed) (“ECPOJA”) precludes the Singapore High Court from appointing a private examiner to take evidence for use in foreign proceedings. This matter arose following a Letter of Request issued by the United States District Court for the Southern District of Texas, seeking the oral examination of a witness residing in Singapore. The Appellants sought to have this examination conducted by a nominated private examiner, a practice common in international litigation but one that faced initial resistance at the first instance level in Singapore.

At the heart of the dispute was the interpretation of Sections 3 and 4 of the ECPOJA. The Assistant Registrar had initially dismissed the application, reasoning that the statutory framework required the examination to be conducted by a judicial officer—specifically the Registrar or a Judge—to ensure the court maintained direct control over the proceedings, particularly regarding claims of privilege. The Appellants challenged this restrictive interpretation, arguing that the ECPOJA, when read alongside the Rules of Court 2021, provided the court with broad discretion to facilitate foreign requests for evidence through various means, including the appointment of fit and proper private individuals as examiners.

Kwek Mean Luck J, presiding over the appeal, reversed the lower court's decision. The Court held that the ECPOJA does not contain an express or implied prohibition against the appointment of private examiners. Instead, the Court found that the appointment of a private examiner is a "step" that can be taken for the purpose of "obtaining evidence" within the meaning of the Act. The judgment emphasizes that the court's role in international judicial assistance is to facilitate such requests unless they are oppressive or contrary to public policy. By allowing the appointment of a private examiner while imposing a condition that the examination occurs under the direction of the Registrar, the Court struck a balance between procedural flexibility and the necessary judicial oversight required by the ECPOJA.

This ruling serves as a significant clarification of the Singapore High Court's powers in the context of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. It confirms that Singapore’s domestic implementation of international evidence-gathering standards allows for the use of private examiners, thereby aligning Singapore’s practice with other major common law jurisdictions like England and Hong Kong. The decision reinforces Singapore's commitment to international judicial cooperation and provides practitioners with a clear pathway for utilizing private examiners in complex cross-border disputes.

Timeline of Events

1. 20 November 2023: The United States District Court for the Southern District of Texas issues a formal Letter of Request seeking judicial assistance from the Singapore authorities to obtain evidence from a witness located in Singapore.
2. Early 2024: Carlo Giuseppe Civelli and Aster Capital SA (Ltd) Panama (the Appellants) file Originating Application No 258 of 2024 (OA 258) in the General Division of the High Court of Singapore. The application seeks orders to give effect to the US Letter of Request, specifically requesting the appointment of Ms. Dianne Fischer as a private examiner to take the testimony of Mr. Gerard Rene Jacquin.
3. 12 April 2024: The Assistant Registrar (AR) hears OA 258. The AR dismisses the application, holding that the ECPOJA does not permit the appointment of a private examiner and requires the examination to be conducted by the Registrar or a Judge.
4. April 2024: The Appellants file Registrar’s Appeal No 87 of 2024 (RA 87) to appeal the AR's decision to a Judge in Chambers.
5. May 2024: The Appellants file HC/SUM 1029/2024 (SUM 1029) seeking to amend the prayers in OA 258. The amendments include a proposal that the private examination take place in the presence of and under the direction of the Registrar in Chambers to address the AR's concerns regarding judicial oversight.
6. 17 May 2024: The substantive hearing for RA 87 and SUM 1029 takes place before Kwek Mean Luck J. Counsel for the Appellants, led by Cavinder Bull SC, presents arguments on the statutory interpretation of the ECPOJA and the applicability of the Rules of Court 2021.
7. 31 May 2024: Kwek Mean Luck J delivers the judgment, allowing the appeal and granting the orders sought in OA 258 as amended. The Court confirms that the ECPOJA does not preclude the appointment of private examiners.

What Were the Facts of This Case?

The proceedings originated from a cross-border legal dispute involving the Appellants, Carlo Giuseppe Civelli and Aster Capital SA (Ltd) Panama. To support their case in the United States, the Appellants required the testimony of Mr. Gerard Rene Jacquin, a resident of Singapore. On 20 November 2023, the United States District Court for the Southern District of Texas issued a Letter of Request addressed to the "Appropriate Judicial Authority in Singapore." This request was made pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, to which both Singapore and the United States are signatories.

The Letter of Request sought the oral examination of Mr. Jacquin under oath. The Appellants filed OA 258 in Singapore to obtain the necessary domestic orders to compel Mr. Jacquin's attendance and testimony. Crucially, the Appellants did not wish for the examination to be conducted by a Singapore judicial officer in the traditional sense. Instead, they proposed the appointment of Ms. Dianne Fischer as a private examiner. They further requested that the examination be conducted in accordance with the United States Federal Rules of Evidence and Federal Rules of Civil Procedure, to ensure the resulting evidence would be admissible and useful in the Texas proceedings.

The application was initially heard by an Assistant Registrar. The AR took a restrictive view of the court's powers under the ECPOJA. The AR's primary concern was that the ECPOJA framework, particularly Section 5 which deals with witness privilege, appeared to contemplate a process where the court (through a Judge or Registrar) maintains direct control over the examination. The AR reasoned that if a private examiner were appointed, the court would be "divesting itself" of its statutory duties. Consequently, the AR dismissed OA 258, concluding that the only "steps" the court could take under Section 3 of the ECPOJA were those involving an examination before the Registrar or a Judge.

The Appellants appealed this decision via RA 87. They argued that the AR had erred in law by reading a prohibition into the ECPOJA that did not exist. They pointed out that Order 55 Rule 4 of the Rules of Court 2021 explicitly contemplates the appointment of "any fit and proper person nominated by the person applying for the order" as an examiner. The Appellants contended that the ECPOJA and the Rules of Court should be read harmoniously to facilitate international requests for evidence. To mitigate the AR's concerns regarding oversight, the Appellants introduced SUM 1029, amending their prayers to suggest that the private examination occur "in the presence of and under the direction of the Registrar in Chambers." This amendment was intended to ensure that while a private examiner (familiar with US procedure) conducted the questioning, a Singapore judicial officer remained available to resolve any immediate disputes regarding Singapore law or privilege.

The factual matrix thus presented a pure question of statutory construction: did the ECPOJA's silence on private examiners constitute a prohibition, or did the Act's broad grant of power to "make such provision for the taking of evidence... as may appear to the court to be appropriate" include the power to appoint such examiners? The Court was required to determine if the procedural mechanisms of the ECPOJA could accommodate the flexibility sought by the Appellants while upholding the integrity of the Singapore legal system's role as a facilitator of foreign judicial requests.

What Were the Key Legal Issues?

The resolution of this appeal turned on three primary legal issues, each centered on the interpretation of the Evidence (Civil Proceedings in Other Jurisdictions) Act 1979 (“ECPOJA”) and its relationship with the Rules of Court 2021:

• Statutory Interpretation of Section 3 and Section 4 of the ECPOJA: Whether the power of the High Court to "take such steps as may be appropriate for the purpose of obtaining evidence" under Section 3, and to make orders for the "examination of witnesses, either orally or in writing" under Section 4(1)(a), is broad enough to encompass the appointment of a private examiner. The core of this issue was whether the absence of the term "private examiner" in the Act implied a limitation to judicial examiners only.
• Compatibility with the Rules of Court 2021: Whether Order 55 Rule 4 of the Rules of Court 2021, which allows for the appointment of any fit and proper person as an examiner, can be applied to proceedings under the ECPOJA. The issue was whether the Rules of Court could expand or clarify the "steps" the court is authorized to take under the parent statute.
• The Requirement of Judicial Oversight and the Protection of Privilege: Whether the appointment of a private examiner would undermine the court's ability to perform its statutory duties under Section 5 of the ECPOJA, which requires the court to protect a witness's privilege under both Singapore law and the law of the requesting jurisdiction. The issue was whether "oversight" necessitated the physical presence of a Judge or Registrar as the person actually conducting the examination.

How Did the Court Analyse the Issues?

Kwek Mean Luck J began the analysis by examining the statutory language of the ECPOJA. Section 3 of the Act provides that where a request is received from a foreign court, the High Court "shall have power... to take such steps as may be appropriate for the purpose of obtaining evidence." Section 4(1) further specifies that the court may make provision "for the examination of witnesses, either orally or in writing." The Court noted that the Act does not define who must conduct the examination. The Court observed that the AR's conclusion—that the examination must be before the Registrar or a Judge—was not found in the express text of the ECPOJA.

The Court then turned to the Rules of Court 2021. Order 55 Rule 2 specifies that an application for an order under Section 3 of the ECPOJA must be made by Originating Application. Crucially, Order 55 Rule 4 states:

"The Court may order the examination to be conducted before the Registrar, or any fit and proper person nominated by the person applying for the order, or such other person as the Court may think fit (each referred to in this Order as the examiner)."

The Court found that this rule explicitly permits the appointment of a private examiner. Kwek J reasoned that the Rules of Court provide the procedural framework for exercising the powers granted by the ECPOJA. Since the ECPOJA grants the power to take "steps" to obtain evidence, and the Rules of Court define one of those steps as the appointment of a private examiner, there was no inherent conflict between the statute and the rules. The Court held that the AR had erred by treating the ECPOJA as if it contained a restrictive definition of "steps" that excluded the very procedures set out in the Rules of Court.

The Court also addressed the AR's concern regarding Section 5 of the ECPOJA, which deals with privilege. Section 5(1) provides that a person shall not be compelled to give evidence if they have a privilege under Singapore law or the law of the foreign jurisdiction. The AR had worried that a private examiner would not be able to adjudicate such claims. However, Kwek J pointed out that even when the Registrar conducts an examination, the Registrar does not have the final power to "compel" a witness who claims privilege; rather, the matter is referred to the Court if the witness refuses to answer. The Court cited Rio Tinto Zinc Corporation and others v Westinghouse Electric Corporation [1978] AC 547 at 633, noting that the court's role is to ensure the witness is not compelled to give evidence they are entitled to withhold. The Court concluded that the appointment of a private examiner does not "divest" the court of this duty, as the court remains the ultimate arbiter of any privilege claims that arise during the examination.

Furthermore, the Court looked at the legislative history and international context. The ECPOJA was enacted to give effect to the Hague Convention of 18 March 1970. The Court noted that the English equivalent (the Evidence (Proceedings in Other Jurisdictions) Act 1975), upon which the Singapore Act was modeled, has long been interpreted to allow for private examiners. The Court referred to Staravia Ltd v Consolidated Aeronautics Corp [1989] 2 SLR(R) 292, where the Court of Appeal emphasized that the court should lean towards assisting foreign courts unless the request is irrelevant or oppressive. Kwek J held that refusing to appoint a private examiner when the requesting party and the foreign court found it appropriate would be contrary to the spirit of international judicial cooperation.

Finally, the Court considered the Appellants' proposed amendment to have the examination take place in the presence of the Registrar. The Court found this to be a practical solution that addressed any lingering concerns about oversight. By having the Registrar present, the court maintains a direct "line of sight" to the proceedings, ensuring that any immediate legal hurdles or claims of privilege can be addressed efficiently without halting the examination entirely. This arrangement allowed the private examiner, Ms. Fischer, to lead the process according to US procedural requirements while keeping the process firmly within the "direction" of the Singapore court.

What Was the Outcome?

The High Court allowed the appeal in Registrar’s Appeal No 87 of 2024. The Court set aside the decision of the Assistant Registrar and granted the orders sought by the Appellants in OA 258, as amended by SUM 1029 and further oral amendments made during the hearing. The Court's order facilitated the examination of Mr. Gerard Rene Jacquin by the nominated private examiner, Ms. Dianne Fischer.

The operative paragraph of the judgment, which encapsulates the court's final direction, states:

"Therefore, the appeal was allowed. I granted an order in terms of OA 258 as amended by the prayers in SUM 1029, and in line with the proposed further amendments raised by the appellants at the end of the hearing, which included the condition that the private examination before Ms Fischer of Mr Jacquin takes place in the presence of and under the direction of the Registrar in Chambers." (at [40])

The specific orders made by the Court included:

• The appointment of Ms. Dianne Fischer as the examiner to take the oral testimony of Mr. Jacquin.
• A requirement that Mr. Jacquin attend the examination at a specified location (the office of Prolegis LLC).
• A direction that the examination be conducted under oath and in accordance with the United States Federal Rules of Evidence and Federal Rules of Civil Procedure, to the extent they do not conflict with Singapore law.
• The critical condition that the entire examination process must occur in the presence of and under the direction of the Registrar in Chambers. This ensured that the Singapore court maintained active oversight of the proceedings.
• Provisions for the recording of the testimony (via stenography and/or videography) and the subsequent transmission of the deposition transcript to the United States District Court for the Southern District of Texas.

The Court did not make a specific costs award in the extracted summary, but the allowance of the appeal typically carries costs in favor of the Appellants. By granting the order, the Court ensured that the evidence required for the Texas proceedings could be obtained in a manner that was both procedurally efficient for the foreign litigation and legally sound under Singapore's statutory framework for international judicial assistance.

Why Does This Case Matter?

The decision in Re Civelli is of significant importance for several reasons, primarily concerning the clarity it provides for international judicial assistance and the interpretation of the ECPOJA. For decades, there was a degree of uncertainty or at least a lack of recent judicial guidance on whether the Singapore High Court would permit private examiners to lead the evidence-gathering process for foreign proceedings. This case provides an authoritative confirmation that such appointments are not only permissible but are supported by the combined reading of the ECPOJA and the Rules of Court 2021.

First, the case clarifies the scope of "steps" the court can take under Section 3 of the ECPOJA. By rejecting a narrow interpretation that would limit these steps to examinations before judicial officers, the Court has affirmed a flexible, purposive approach to international cooperation. This is vital in modern commercial litigation where foreign courts often require evidence to be taken in a specific format (such as US-style depositions) that may not perfectly mirror Singapore’s domestic trial procedures. The ruling ensures that Singapore remains a "pro-assistance" jurisdiction, capable of accommodating the procedural needs of foreign courts while maintaining its own legal standards.

Second, the judgment provides a blueprint for how practitioners can structure applications for private examiners. The "presence of the Registrar" condition is a novel and practical compromise. It addresses the court's legitimate concerns regarding the protection of witness privilege and the maintenance of judicial dignity, without burdening the Registrar with the task of actually conducting a foreign-style examination for which they may not be trained. This "hybrid" model of oversight—where a private examiner leads but a judicial officer supervises—is likely to become the standard for such applications in Singapore moving forward.

Third, the case reinforces the principle of comity. Kwek J’s reliance on the Hague Convention and English precedents like Rio Tinto Zinc demonstrates that Singapore’s courts view themselves as part of a global network of judicial authorities. The decision signals to foreign litigants and courts that Singapore will facilitate the taking of evidence in a manner that makes the evidence usable in the requesting jurisdiction. This enhances Singapore's reputation as a sophisticated legal hub that understands and supports the realities of transnational dispute resolution.

Finally, the decision highlights the importance of the Rules of Court in interpreting parent statutes. The Court’s analysis of Order 55 Rule 4 shows that the Rules are not merely administrative but are essential tools for understanding the practical exercise of statutory powers. This serves as a reminder to practitioners to always look to the subsidiary legislation and procedural rules when interpreting broad statutory grants of power. In the context of the ECPOJA, the Rules of Court 2021 have been confirmed as the definitive guide to the "appropriate steps" the court may take.

Practice Pointers

• Nominate Fit and Proper Examiners: When applying for a private examiner under the ECPOJA, ensure the nominee is a "fit and proper person" as per Order 55 Rule 4. This usually means a qualified legal professional, often one familiar with the laws and procedures of the requesting foreign jurisdiction.
• Incorporate Judicial Oversight in Prayers: To avoid the initial hurdles faced in this case, practitioners should consider including a prayer that the private examination take place "in the presence of and under the direction of the Registrar." This proactively addresses concerns regarding the court's statutory duty to oversee privilege claims.
• Align with Foreign Procedural Rules: Explicitly request that the examination be conducted according to the foreign jurisdiction's rules (e.g., US Federal Rules of Civil Procedure). The Court in Re Civelli was willing to grant this to ensure the evidence's utility abroad, provided it does not contravene Singapore public policy.
• Address Privilege Early: Be prepared to explain how claims of privilege under both Singapore law and the foreign law will be handled. The presence of the Registrar facilitates this, as the Registrar can immediately refer disputed questions to a Judge if necessary.
• Use the Correct Originating Process: Applications under the ECPOJA must be made via Originating Application (OA) as required by Order 55 Rule 2 of the Rules of Court 2021.
• Provide the Letter of Request: The application must be supported by the formal Letter of Request from the foreign court. Ensure the letter clearly specifies the witness to be examined and the nature of the evidence sought.
• Consider Logistics: The order should specify the location, the method of recording (stenography/videography), and the process for certifying and transmitting the final transcript to the foreign court.

Subsequent Treatment

As a relatively recent decision delivered on 31 May 2024, Re Civelli has not yet been extensively cited in subsequent reported judgments. However, its ratio—that the ECPOJA does not preclude the appointment of private examiners—is now the leading authority on this point of civil procedure in Singapore. It effectively settles the debate regarding the court's power to delegate the conduct of examinations to private individuals while maintaining ultimate judicial oversight. It is expected to be the primary reference point for all future applications seeking judicial assistance for foreign proceedings under Order 55 of the Rules of Court 2021.

Legislation Referenced

• Evidence (Civil Proceedings in Other Jurisdictions) Act 1979 (2020 Rev Ed): Specifically Sections 3, 4, and 5. Section 3 grants the power to take steps to obtain evidence; Section 4 outlines the types of orders the court can make; Section 5 protects witness privilege.
• Rules of Court 2021: Specifically Order 55 (International Judicial Assistance), including Rule 2 (Application for Order), Rule 4 (Examination), and Rule 5 (Enforcement of Attendance).
• Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters: The international treaty which the ECPOJA implements in Singapore.

Cases Cited

• Applied: Rio Tinto Zinc Corporation and others v Westinghouse Electric Corporation [1978] AC 547. Applied regarding the court's duty to protect witness privilege and the principle that the court should not compel evidence that a witness is entitled to withhold.
• Relied on: Staravia Ltd v Consolidated Aeronautics Corp [1989] 2 SLR(R) 292. Relied on for the principle of international comity and the court's general duty to assist foreign courts unless the request is oppressive.
• Considered: Regina v Rathbone, Ex parte Dikko Noga Commodities (Overseas) Inc and another v Rijn Maas-en Zeescheepvaartkantoor N.v. and others [1985] 2 WLR 375. Considered in the context of English practice regarding private examiners.
• Considered: AB v X and others [2022] 2 HKC 406 and Angela Chen also known as Angela C. Sabella v Vivien Chen & another [2011] HKCU 2382. These Hong Kong authorities were considered to demonstrate that similar legislative regimes in other common law jurisdictions permit the appointment of private examiners.

Source Documents

• Original Judgment (PDF)
• eLitigation Case Summary