Society of Construction Law (Singapore)

Overview

In Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2018] SGCA 50 the Singapore Court of Appeal recently clarified the applicability under Singapore law of 2 closely-related torts of English origin and considerable vintage.

It held that the tort of malicious prosecution should not be extended to civil proceedings generally and that the tort of abuse of process is not recognised under Singapore law.

Of particular interest is both the settling of a previously murky area of law in Singapore and the reasoning behind the SGCA's calculated departure from the position under English law.

Remarkably this decision represents the culmination of a series of court actions between the same parties over four decades. The SGCA noted, drolly: "These proceedings are, in fact, replete with irony as well as legal significance. It is ironic that a dispute bitterly fought over several decades by two parties who have nothing but personal ill will towards each other has engendered (for Singapore law) questions of the first importance in relation to the development of the common law in general and tort law in particular."

The Torts

The tort of malicious prosecution provides that a party is entitled to damages in respect of the other party's prosecution of previous legal proceedings against it where that prosecution was "without reasonable or probable cause" and "malicious".

As for the tort of abuse of process, a party is entitled to damages where the other party has brought legal proceedings for "an illegitimate purpose" to seek "some wholly extraneous benefit other than the relief sought and not reasonably flowing from or connected with the relief sought".

Under English law abuse of process is a recognised tort, while it was clarified quite recently that the tort of malicious prosecution does extend to civil proceedings generally (including Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366 (Privy Council) and Willers v Joyce and Anor [2016] UKSC 43).

Facts

The case originally concerned a dispute over whether the residents of a condominium (Grange Heights), who were represented by their management corporation (MCST), had a right of way over a neighbouring strip of land owned by Lee Tat.

In 2009 the SGCA overruled its 2005 decision (which had held that the residents enjoyed the right of way), on the basis that the right of way had been extinguished by operation of the law (as a result of the amalgamation of two adjoining plots of land on which Grange Heights had been built).

In the action commenced by Lee Tat from which the present appeal arose, Lee Tat claimed damages from the MCST, including for:

• maliciously prosecuting 2 of the previous actions given the MCST did not genuinely believe that the Grange Height residents were entitled to use the right of way; and

• abusing the court's process by participating in 4 of the previous actions for the collateral purpose of enhancing the value of its land by retaining the "Grange Heights" address and name, which it sought to do by retaining the right of way.

The SGCA upheld the High Court's first instance decision to dismiss the MCST's claims. It held that

• • While the tort of malicious prosecution applies to the prosecution of criminal proceedings, it does not extend to civil proceedings generally, and only applies in very limited and specific types of case which may "inflict immediate and perhaps even irreversible damage to the reputation of the victim" (e.g. some ex parte interlocutory orders, and bankruptcy and winding up petitions). None of these exceptions were applicable in the present case.
• 
  • The tort of abuse of process is not recognised in Singapore.

Reasons

The SGCA declined to extend the tort of malicious prosecution to civil proceedings generally for reasons which it categorised in its judgment as being either reasons of principle or "legal policy":

Principle

• • The differences between criminal and civil proceedings (and their consequences) justify a distinction as regards the applicability of the tort of malicious prosecution. The SGCA noted that the "public character and harsh consequences of criminal proceedings undergird the law's recognition that those who suffer at the hands of prosecutors who abuse their function for malicious or improper motives are deserving of a remedy". While it was acknowledged that maliciously brought civil proceedings may also cause damage to a defendant, the Court was not persuaded that "the risk that such injury will go without remedy is sufficient to outweigh" other problems if the tort extended to civil proceedings.

• • Extending the tort to civil proceedings generally would be inconsistent with the principle that "malice is generally irrelevant in the context of tort law" – i.e. a person has a right to perform lawful acts, regardless of the motive for doing so.

  • Extending the tort to civil proceedings generally could have an unintended impact on other, connected areas of law, such as the law of absolute privilege which covers statements made in the course of judicial proceedings, and the principle that a party owes no duty of care to his counterparty in the conduct of litigation.

• 
  Legal Policy

• • Extending the tort to civil proceedings generally would undermine the principle of finality in the law and legal process as it could encourage unnecessary satellite litigation (as seen in the present case, where the parties were disputing not the original subject matter but the conduct of the dispute itself), thereby opening the "floodgates" of litigation and wasting the court's time and resources.

  • Extending the tort to civil proceedings generally would have a "chilling effect" on regular litigation. Genuine potential litigants may be deterred from invoking the court's jurisdiction.

  • The current rules of civil procedure already avail a party of other potential remedies (e.g. award of costs on an indemnity basis) coupled with legal mechanisms to bring malicious prosecutions to a prompt and early end (e.g. striking out claims which are frivolous, vexatious or otherwise an abuse of process). Parties on the receiving end of a malicious prosecution are unlikely to be completely without a remedy, therefore.

  As for the tort of abuse of process, the SGCA noted that it was closely-related to the tort of malicious prosecution, with the two torts sharing similarities as regards both their "elements" and "underlying rationale".

  For the same policy reasons that led to its decision not to extend the tort of malicious prosecution to civil proceedings generally, the SGCA declined to recognise the tort of abuse of process.

Concluding remarks

Both the English and Singapore Courts have grappled with the clear tension between what the SGCA described as the "common instinct that a remedy should be provided to those who suffer injury as a result of abusive legal proceedings brought against them" on the one hand, and the potential difficulties which could arise from the recognition of the torts of malicious prosecution and abuse of process on the other.

The SGCA - taking a somewhat pragmatic approach based on considerations of principle and policy – essentially concluded that those potential difficulties outweigh the potential benefits.

In doing so the SGCA noted that "whilst a parochial approach to legal development ought to be assiduously eschewed, this court cannot ignore – where relevant – the lack of suitability of any rule or principle of English law to the local circumstances of Singapore".

Although exactly what "local circumstances" the SGCA was referring to is not entirely clear, what is clear is that the Singapore courts will continue to chart their own course, including where they consider there to be compelling policy considerations which justify a departure from English law.