Andrew Phang Boon Leong JA (delivering the judgment of the court):
Introduction
This is an appeal against the decision of the High Court judge (“the Judge”) in Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2017] SGHC 121 (“the Judgment”). As the Judge observed (at [1]), 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 has hitherto 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” (Management Corporation Strata Title Plan No 301 v Lee Tat Development Pte Ltd [2011] 1 SLR 998 at [3]). 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).
In fact, the appellant had in 2008 ultimately obtained a decision in its favour with regard to the principal subject matter of their longstanding quarrel, namely, a disputed right of way over a narrow strip of land. Now that there is no longer any dispute over that original subject matter, the parties have turned their energies to disputing about the dispute itself. This time, the proceedings which culminated in the present appeal were commenced by the appellant, the owner of that strip of land, who has claimed against the respondent, who had been found not to have that right of way despite years of asserting that it did, in four causes of action, viz, abuse of process, malicious prosecution, malicious falsehood and trespass.
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. More specifically, of threshold importance to the appellant’s claims for abuse of process and malicious prosecution is the issue of whether these torts ought to be recognised by the Singapore courts in the first place. If this court does not recognise the existence of these torts in the Singapore context, then the appellant’s case would not even be able to take off.
At least two sub-issues arise in relation to this particular issue – first, whether the Singapore courts ought to recognise either or both torts simply because there is case law that endorses both them – and, in relation to one of the torts, case law that endorses the tort in a number of narrower situations. Put simply, does this last-mentioned point raise a “Donoghue v Stevenson moment”? To elaborate, it is well known that the landmark House of Lords decision of M’Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562 (“Donoghue”) birthed the modern law of negligence (albeit by a bare majority of three to two). In the process of arriving at its decision, the majority in Donoghue considered several streams of seemingly disparate precedents, drawing together a central thread via the now famous “neighbour principle” laid down by Lord Atkin (see also the classic account (albeit from an American perspective) by Prof Edward H Levi in his book, An Introduction to Legal Reasoning (The University of Chicago Press, 1949), especially at pp 8−27 and ch 3 of Robert C Beckman, Brady S Coleman and Joel Lee, Case Analysis and Statutory Interpretation – Cases and Materials (Faculty of Law, National University of Singapore, 2nd Ed, 2001), as well as the decision of this court in Lim Meng Suang and another v Attorney-General and another appeal and another matter [2015] 1 SLR 26 (“Lim Meng Suang”) at [80]). It is important to note that in Donoghue, the various precedents were indeed flowing (albeit as separate streams) in the same direction. It was therefore logical as well as fair and just for the court in Donoghue to gather together, as it were, those disparate smaller streams and channel them into the more powerful river that we now know as the tort of negligence. To state that this was a significant moment in the development of the common law of torts is an understatement of the highest order. Indeed, since Donoghue, the law of negligence has constituted the most important part of the law of tort and takes centre stage in textbooks and case books as well as in law schools across the Commonwealth.
As we shall see, there are possible parallels in the case before us. One of the principal (and relatively recent) decisions that has endorsed the extension of the tort of malicious prosecution to the civil sphere is that of the Judicial Committee of the Privy Council (on appeal from the Court of Appeal of the Cayman Islands) in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366 (“Crawford Adjusters”) (noted by Tom K C Ng in “The Torts of Malicious Prosecution and Abuse of Legal Process” (2014) 130 LQR 43 and discussed by Stephen Todd in “Liability for the Malicious Institution of Civil Proceedings” (2017) 4 J Int’l & Comp L 123 (“Todd”)), where the Board held in favour of the aforesaid extension – though only (as was also the case in Donoghue) by a narrow majority of three to two. Indeed, the decision in Crawford Adjusters was subsequently endorsed in the UK Supreme Court decision of Willers v Joyce and another [2016] 3 WLR 477 (“Willers”; discussed in Todd and James Lee, “The Judicial Individuality of Lord Sumption” (2017) 40 UNSW Law Journal 862 (“James Lee”) at pp 880−886) – again by a narrow majority of five to four (with all five of the judges who sat on Crawford Adjusters also sitting on this particular appeal (for further proceedings, see Willers v Joyce [2017] EWHC 1225 (Ch))).
By way of a side-note of sorts, the UK Supreme Court in fact delivered (in relation to Willers) a second decision devoted exclusively to the issue of stare decisis or binding precedent which suggested that, in certain circumstances, the Judicial Committee of the Privy Council could effectively decide that courts in England and Wales should follow its decision rather than the earlier decision of the House of Lords, the UK Supreme Court or of the English Court of Appeal on a point of English law (see Willers v Joyce (No 2) [2016] 3 WLR 534, especially at [19]−[21]). Although such an approach has not escaped academic criticism (see Peter Mirfield, “A Novel Theory of Privy Council Precedent” (2017) 133 LQR 1), it rests on a practical basis. As Lord Neuberger of Abbotsbury (with whom all the other judges agreed) observed (at [21]):
… [I]t seems to me to be not only convenient but also sensible that the [Judicial Committee of the Privy Council], which normally consists of the same judges as the [UK] Supreme Court, should, when applying English law, be capable of departing from an earlier decision of the [UK] Supreme Court or House of Lords to the same extent and with the same effect as the [UK] Supreme Court.
It is trite, though, that the Singapore courts are not bound to follow decisions of either the Judicial Committee of the Privy Council emanating from another jurisdiction or the UK Supreme Court. We are hence not bound to follow either Crawford Adjusters or Willers.
What will be of crucial importance in our analysis below is whether the various precedents which applied the tort of malicious prosecution in the civil sphere were indeed flowing in the same direction (as was the case with the precedents prior to Donoghue) or whether they were distinct streams that were flowing in separate directions (ie, were specific historical developments and no more) and therefore not susceptible of being consolidated and harnessed into a more effective river, as was done in Donoghue. We should pause to point out that one area of difference is that whereas Donoghue birthed a completely novel cause of action, by some accounts, the application of the tort of malicious prosecution to civil proceedings is nothing new. Indeed, the majority in Crawford Adjusters pointed out that there were prior cases that had endorsed the application of the tort of malicious prosecution in the civil sphere on an apparently general basis – although they, too, acknowledged that that was, by the time of the decision in Crawford Adjusters, no longer the law. However, as we shall also see, the minority in the same case (in particular, Lord Sumption) advanced an argument from history to demonstrate the contrary, that the tort had never been of such general application. What is clear is that the Board in Crawford Adjusters (and, subsequently, the UK Supreme Court in Willers) were faced directly with the issue as to whether the tort of malicious prosecution should (by way of a clear and unambiguous declaration of what the law should be) be extended to the civil sphere generally. Looked at in this light, the Board in Crawford Adjusters (and, subsequently, the UK Supreme Court in Willers) were indeed faced with a “Donoghue v Stevenson moment”. This is, a fortiori, the case as far as the Singapore position is concerned.
We pause to observe that the first sub-issue (see [4] above) outlined in the preceding paragraphs is also relevant to whether the tort of abuse of process ought to be introduced in the Singapore context, although it is not as important in relation to this particular tort as the second sub-issue, to which our attention must now turn.
The second sub-issue is this: Whether, regardless of the precedents themselves, there are persuasive arguments of general principle, policy, logic as well as justice and fairness that would lead, on balance, to the conclusion that the tort of malicious prosecution...
