Singapore Supreme Court rejects civil process torts

In August, the Singapore Supreme Court refused to adopt the tort of abuse of process and refused to extend the tort of malicious prosecution to the civil context.  The case is Lee Tat Development Pte Ltd v. Management Corp. Strata Title Plan No 301, [2018] SGCA 50 (Aug. 17, 2018) (summary).

Associate Justice Phang (Singapore Supreme Court)

The court opinion, which ranges over more than 100 pages, is a remarkable work of jurisprudence and should not go unnoticed by comparativist students of common law.  The opinion was authored by Associate Justice Andrew Phang Boon Leong.  Justice Phang is a Harvard LL.M./S.J.D. who worked his way up the academic ranks in law, business, and management in Singapore before his appointment to the bench about a dozen years ago.  He has a treatise in contracts among his bona fides.  I owe my awareness of this decision to James Lee, equity scholar and reader in English law at The Dickson Poon School of Law, King's College London.

My purpose here is not to get into the merits or challenges of the torts of abuse of process and malicious civil prosecution.  Suffice to say that if that is your interest, this opinion is mandatory reading.  From the 20,000-foot perspective, I'll say that for many years I did not teach these torts in 1L beyond the bare bones mentioned in my CAP casebook by Prof. Marshall Shapo.  Increasingly I'm feeling like I need to give these torts more bandwidth.  I'm not sure whether it's a function of coarsening society, a natural evolution of common law, or me just paying better attention, but I feel like these "meta-torts"—that is, torts about tort litigation; my term, not to be confused with meta-humans, nor with Birks, et al.'s quasi-tort equitable wrongs—are getting more play today than they used to.  Accordingly, this year I drafted multistate rules to guide students, and at some point, I will add the rules to my American torts primer.

Singapore Supreme Court (Terence Ong, CC BY-SA-2.0)

Instead I want to share three favorite bits of Justice Phang's opinion.  The first thing to notice here for the comparativist is that Singapore is a common law jurisdiction.  I confess, it's not the first nation I think of when reeling off a list of common law countries.  For an academic, it might ought be.  (I have been there, and it is a lovely, unique place.)  Singapore inherited English common law by way of the British East India Co., a distinction in which, of course, it is not unique.  At the same time, Singapore's unusual role as a tiny economic powerhouse, dependent on and defined by its commercial relationships with the world, make its common law a unique and worthy study in internationalism.  Thoughtful and contextualized, Justice Phang's opinion exemplifies this point.  For survey research, the court thanked academic amicus Prof. Gary Chan, a colleague of Phang's from the law school at Singapore Management University.

Of 'quenchless feuds'.  Justice Phang (¶ 1) elegantly characterized the land dispute that underlies Lee Tat:

As the Judge observed [in the High Court], this is yet another legal tussle in a series of bitterly fought litigation between the parties which stretches across more than four decades and which hitherto has resulted, inter alia, in five decisions of this court, excluding the present decision.  In the last of those decisions, this court characterised the protracted quarrel between the parties as a "marathon saga of litigation" [citation omitted].  At this juncture, some seven years and yet another set of proceedings later, it seems appropriate to say, in the words of Herman Melville, that it is a "quenchless feud" (Herman Melville, Moby-Dick; or, The Whale (Norton, 1892) at p 169).

That this dispute arose in what appears to be a Singaporean iteration of the Hatfields and the McCoys does bolster the court's conclusion on meta-torts.  If transaction costs are part of the problem in your legal system—we know they're a huge problem in the American system—you might want to think twice about piggyback litigation.  At some point the law of diminishing returns eclipses justice in the dogged search for truth.

Of 'timorous souls' and 'bold spirits'.  In considering the wisdom of extending Singaporean common law, Justice Phang (¶ 11) broke out a Lord Denning gem:

In considering possible recognition of the torts of malicious civil prosecution and abuse of process in Singapore, we bear in mind the oft-quoted observations by Denning LJ (as he then was) in the English Court of Appeal decision of Candler v Crane, Christmas & Co [1951] 2 KB 164, where the learned judge drew (at 178) a distinction between "timorous souls who were fearful of allowing a new cause of action" and "bold spirits who were ready to allow it if justice required".  These observations have, in fact, been quoted more than once by this court itself [citations omitted].  However, there is a limit to judicial law making.

This is a beautiful treatment of the seeming conflict between common law as a law-making device, renowned for its very capacity to grow and adapt to new circumstances, and the fundamental identity of the western judiciary as a creature of only corrective justice in the Aristotelian mold.  Otherwise put, the enterprise of common law often seems at odds with the purportedly non-normative job of the judge.  To set the problem in its popular American baseball metaphor, when is a judge, whose job it is only to call balls and strikes, duty-bound to change the size of the strike zone?  This problem in relation to the nature of the common law enterprises has been a puzzler in the United States at least since Holmes's Common Law and has at times generated nuances of distinction between otherwise like-minded judges in such a way as to vex legal scholars.

William the Conqueror

Of the Norman Conquest.  In examining the policy rationale for malicious (criminal) prosecution to test its applicability in the civil context, Justice Phang (¶ 87) traced the division between criminal and civil law to 1066:

The character of a criminal prosecution, carried out with a view to punishing a public wrong, is fundamentally different from that of a civil prosecution which is carried out with a view to vindicating a private right.  The difference between these two types of proceedings was explained in the following passage from an earlier decision of this court, Public Prosecutor v. UI [2008] 4 SLR(R) 500 at [52]:

... With the reign of William the Conqueror, the [English] criminal justice system, as it then stood, changed drastically.  A distinction was created between liability for private wrongs and liability for public wrongs.  Sir William Blackstone explained clearly the distinction between public wrongs and private wrongs in Commentaries on the Law of England vol 4 (A Strahan, 15th Ed, 1809) as follows (at p5):

[P]rivate wrongs, or civil injuries, are in infringement or [a] privation of the civil rights which belong to individuals, con[s]idered merely as individuals: public wrongs, or crimes and [misdemeanours] are a breach and violation of the public rights and duties, due to the whole community, con[s]idered as a community, in [its social] aggregate capacity.

As a result of the above change in the English criminal justice system, the individual victim was replaced by the State.  The offence was considered to be committed against the State and the liability of the offender was, accordingly, owed first and foremost to the State.  This is the criminal justice system which Singapore has inherited and maintains to this day.... [emphasis added by Justice Phang].

Justice Phang (¶¶ 88-90) derived from this history three salient distinctions between criminal and civil process.  First, criminal charges more than civil claims can impugn a defendant's reputation in the community.  Second, the consequences of criminal conviction are more invasive of the defendant's rights than the consequences of civil liability.  Third, criminal prosecution is an enterprise of public authorities, while civil prosecution is a private pursuit.  In all three respects, then, the need for a remedy to malicious prosecution is greater in the criminal context than in the civil context.

A useful review of abuse of process, malicious (criminal) prosecution, and "malicious use of civil process" in American law can be found in Barry A. Lindahl, 4 Modern Tort Law: Liability and Litigation ch. 40 (updated June 2018) (available on Thomson Reuters Westlaw), which begins (§ 40.1) by differentiating the three concepts.  Meanwhile Justice Phang's opinion in Lee Tat takes an elegant snapshot of the common law world.

The Death of Civil Justice: It Was a Good Run, 900 years

Opening panel at Anglia Ruskin University Sports Law 2016: Leonardo Valladares Pacheco de Oliveira, Ian Blackshaw, Tom Serby, Andrew Smith, and Antoine Duval

Last week I was privileged to attend a tremendous one-day Sports Law program at Anglia Ruskin University in Cambridge, UK, focusing on the question, “the future of ‘the legal autonomy’ of sport.”  Experts in the academy and in practice gave timely and informative commentary on contemporary sport governance from perspectives of contract law, politics, and dispute resolution. 

Though justifiably through the lens of sport, the program raised a broader and important question concerning the future of civil justice.  Dispute resolution in international sport today is the province of the Court of Arbitration for Sport (CAS), in Lausanne, Switzerland, under the very loose supervision of the Swiss Federal Tribunal.  CAS has a complicated relationship with international sport governance organizations such as the IOC and FIFA.  Certainly the court is not their stooge.  At the same time, through the magic of contract law, the mandatory use of the arbitration system carries down through the echelons of world sport from the IOC to the national sporting federation, and all the way to the athlete.

Transnational sport governing bodies, such as the IOC and FIFA, want their disputes handled in this single channel, because it renders them largely immune to oversight by the democratic instrumentalities of the world’s governments, especially the courts.  The transnationals have legitimate and less legitimate motivations.  They fairly worry about potential liability in multitudinous courts, each national judiciary applying its unique domestic law anchored in local priorities and prejudices.  Bypassing national legal systems, the transnationals can conserve resources for objectives in the public interest, such as sport for development and peace, and the promotion of human health and competitive achievement.  The logic supporting consolidation of international dispute resolution under one supra-national banner is the same by which the U.S. Constitution places interstate commercial disputes in U.S. federal courts, supervening the potential vagaries and favoritisms of the states.

But international arbitration has its dark side—in fact, nearly literally, as CAS operates in the opacity that typically surrounds arbitration.  Observers, including journalists and NGO watchdogs, grow frustrated and skeptical, as secrecy breeds unfairness and unaccountability.  This problem is the same that has generated angst within the United States over the “secret justice” system that has so thoroughly superseded the civil trial—see the excellent work of the Reporters Committee for Freedom of the Press in its Secret Justice series, linked from here. 

Further threatening the integrity of these proceedings, the contracts that bind parties to arbitration, and are then construed in arbitration, generally are adhesion contracts: drawn up by the transnationals themselves, weighted to their favor, and presented as fait accompli to young athletes with Olympic gold medals dancing in their dreams.  Barrister Andrew Smith, Matrix Chambers, conceded that these contracts are not meaningfully negotiated.  Their acceptance at the international level apparently marks the same phenomenon that has been documented with alarm, but as yet no serious reform, at the consumer level within the United States in works such as Nancy Kim’s Wrap Contracts and Margaret Jane Radin’s Boilerplate.

Upon my inquiry, Smith pointed out that for many reasons, athletes, given the choice, would themselves prefer arbitration to redress in the courts.  A plaintiff often desires secrecy as much as a defendant.  An expert arbiter might be more likely than a civil court to reach a conclusion that recognizes the nuances of divided merits, rather than erring in favor of dismissal as against the plaintiff’s burden of proof.  Though affordable representation for claimants has been a problem for the CAS system, organized arbitration systems still do a better job looking out for claimant’s access to representation than the usual civil court.  And most important to potential litigants are the time and costs of civil justice, often prohibitive deterrents that make faster and cheaper arbitration more appealing.

Nevertheless, panelists agreed that for the arbitration system to work fairness, stakeholders including athletes must take part in developing the process.  Conference organizer Tom Serby of Anglia Law School emphasized the need for democratization of sport governing bodies.  Smith said that organization of athletes into representative bodies is essential, noting with approval that “the United States is farther along with collective bargaining.”

With disparate levels of enthusiasm for the merits of judicial abstention, three speakers—Serby; Antoine Duval of the Asser Institute,Den Haag; and Simon Boyes of the Centre for Sports Law atNottingham Law School—all opined that national courts have been generously deferential to private dispute resolution in international jurisdiction.  Quotes from the iconic British jurist Lord Denning were offered both for and against the position.  Denning on the one hand bemoaned the courts’ relative lack of expertise in matters of private regulation, respecting the brightly formalist lines of conserved judicial power.  On the other hand, he declared, as quoted in Baker v. Jones, [1954] 1 W.L.R. 1005, “‘If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void.’”  Duval and Boyes mapped the ground between, where court intervention seems justified.  Boyes boiled down viable grounds to the protection of natural justice, human rights, and free competition and trade.

Incidentally the same autonomy question was taken up in similar dichotomy by Judge Richard Matsch and then the Tenth Circuit in Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev’d & remanded, 601 F.2d 516 (10th Cir. 1979).  Asked to intervene after an on-field altercation, Judge Matsch opined, on the “larger question” of “the business of professional football” and “the business of the courts,” that “the courts are not well suited” to allocate fault or probe causation.  For fear of excessive litigation and inconsistent rulings, any “government involvement” in the “self-regulated industry” of professional football was, in Matsch’s view, “best considered by the legislative branch”—Denning-like formalism.  Instead applying the law of recklessness to the dispute at hand, the Tenth Circuit disagreed.  Persuasive was the oft quoted reasoning of the Illinois Appellate Court in Nabozny v. Barnhill, 334 N.E.2d 258, 260—if a decision about teen athletes playing that other kind of football—that “some of the restraints of civilization must accompany every athlete onto the playing field.”

Well intentioned aspirations for meaningful athlete-as-stakeholder involvement and debate about the selective intervention of courts all gloss over the broader and more troubling trend of public, civil justice eclipsed by the private sphere.  I confess that what troubled me most about the sports lawyers’ commentaries on arbitration and autonomy was a problem beyond the scope of their charge: the disappearance of civil justice in our society at large.

Plenty has been written at the national level about vanishing civil justice and the rise of private dispute resolution.  But as the realities of globalization decree that every dispute becomes an international one—whether a youthful athlete against an international federation, or a homeowner against a floorboard maker—it it seems that public civil justice is dying.  Blind deference to adhesion contracts is hastening the trend, and the courts seem plenty eager to stand by and cede power.  They purport to further the laudable aims of deference to experts or freedom of contract.  But courts have always been in the business of second-guessing professed experts, and the contemporary commercial contract is hardly a product of free choices.

Dystopian science fiction in popular culture has in recent years flourished upon an obsession with burgeoning social angst over the corporatization of public life.  In 2013 and 2014, the Canadian TV series Continuum traced the personal struggle of an anti-terrorism agent who came to doubt the virtue of the corporate-dominated future she was sent back in time to protect.  Themes of abusive corporate supremacy and submissive, corrupted government dominate the visions of current hits, such as Killjoys and The Expanse, the latter based on the novels of James S.A. Corey.  The next year will see the premieres of Incorporated, a dark Matt Damon-Ben Affleck project, and the plainly titled Dystopia, which imagines 2037: “Governments are now powerless puppets for the biggest corporations.”

Western democracy has 900 years of experience developing a public system of civil justice to patrol the boundaries of right and wrong among us.  We ought not jettison that system so readily, nor so casually.  We ought not capitulate to the conveniences of globalization, nor certainly to the burdens of transaction costs.  Would that we spend more time and energy trying to fix the public system that we have rather than ushering it into the past and replacing it with the corporatized private justice of our nightmares.