REMEDIES

AuthorElise BANT BA, LLB (Hons) (University of Western Australia), BCL, DPhil (Oxford); Professor, Melbourne Law School, University of Melbourne.
Citation(2016) 28 SAcLJ 731
Date01 December 2016
Published date01 December 2016

Reflections and Perspectives

I. The evolving law of remedies

1 As Andrew Phang JA reminds us in his leading article in this special issue, the law of remedies has always been a subject of acute, perhaps pre-eminent, interest to counsel and clients engaged in private law disputes. It may be added that transactional lawyers are also only too aware of its significance in contract planning and drafting, as recent decisions on the doctrines of penalties by the highest courts in England and Australia attest.1 However, its proper appreciation across legal practice has not always been reflected in the teaching and formal study of the subject. Thus, in 1955, C A Wright remarked:2

Much can be said about the law of remedies as a social institution. The most important thing to say is that there is no law of remedies.

By this, Wright did not mean to suggest that there was no corpus of authority on the subject, or that it did not offer a discrete field of enquiry. Rather, the statement reflected his regret that there were as at that time “no treatises and few articles” addressing its structure, principles and operation.

2 Thankfully, that no longer remains the case. There has been a burgeoning interest in the principles and operation of private law remedies across common law jurisdictions in the past few decades. Indeed, this special issue reflects the great wealth of diverse and rigorous remedies scholarship that characterises its current phase of development. A particular aim of mine, as guest editor of this special issue, was to celebrate the depth and breadth of expertise on the law of remedies currently found in the Asia-Pacific region. To that end, the issue brings together distinguished scholars working in Singapore, Hong Kong, Australia and New Zealand, all with international standing and connections to the world's great law schools. Their work displays a

correspondingly firm command of the law of remedies across multiple jurisdictions. Each of their contributions to this issue provides a unique and original perspective on its chosen topic. As a collective body of work, the essays provide a wonderful opportunity to reflect on the ongoing evolution of this important field as a matter of theory and, relatedly, in practice.

3 In this respect, Phang JA rightly emphasises in his opening article the critical importance for remedies scholars to employ comparative scholarship that directly engages in practical legal reasoning. As an experienced and eminent teacher, scholar and judge, Phang JA has particular authority to speak, as he does in this article, on the complex and evolving interplay between the academy and bench and the comparative utility in that context of different modes of scholarship. His Honour illustrates the persuasive power and value of practical and comparative remedies scholarship with particular reference to three important decisions of the Singapore Court of Appeal: MFM Restaurants Pte Ltd v Fish & Co Restaurants Pte Ltd,3ACES System Development Pte Ltd v Yenty Lily4 (“Yenty Lily”) and RBC Properties Pte Ltd v Defu Furniture Pte Ltd5 (“RBC Properties”). The decisions draw on a significant body of legal scholarship to address (among other issues and respectively) the law of remoteness in contract, competing compensatory and restitutionary conceptualisations of the principles governing user-damages, and the relationship between statutory relief under the Misrepresentation Act6 and the ongoing evolution of general law remedies for fraudulent and negligent misstatement. As Phang JA observes, these are remedial issues of particular theoretical difficulty that also have profound practical significance.

4 In that context, it is a pleasure to see the power of his Honour's thesis so ably further illustrated by the other contributions to this special issue. All engage with considerable comparative analysis, often not only across jurisdictions but also, as a matter of historical enquiry, across time. All demonstrate with clarity why, in practice, their thesis matters – what difference it makes at the coal face of legal practice and dispute resolution. If this selection is emblematic of the quality of broader remedies scholarship, the future of the discipline appears to be bright.

5 This embarrassment of riches provides an opportunity to reflect upon the possible reasons for the renaissance of remedies scholarship over recent decades. The following commentary identifies four key

factors or influences, all of which find expression in the contributions to this issue. The discussion is not meant to be exhaustive and, as we will see, the identified influences on the development of the field have a distinct capacity to overlap and reinforce one another in a manner that makes clear separation of their impact difficult. This interplay is also evident in the contributions which, although addressed in the following commentary in specific contexts, often span multiple categories of influence.
II. The decline of juries

6 One indubitable influence on the development of the law of remedies arises (as so frequently seems to be the case in the development of the substantive common law)7 from the evolution of civil procedure.8 The decline of juries has had a profound impact on the development of remedies as a discrete, substantive field of study. In many jurisdictions, jury trials have increasingly been restricted to serious criminal offences and to specialist areas of the law, such as defamation. The obvious consequence of the decline is that judges have progressively assumed jury functions, such as determining the purpose, award and measure of common law damages. This in turn has resulted in a substantial increase in the quantity and quality of the raw materials available for examination by remedies scholars. No longer is it necessary to infer or distil legal principles from the accepted form of directions to the jury or the measure of their award.9 In the hands of the judge, the reasons for relief must be made explicit, so becoming liable to review, appeal and, over time, systemisation to an extent previously considered to be impossible.

7 That said, as Katy Barnett's article10 amply demonstrates, much work remains to be done. Even in the relatively settled sphere of compensatory damages for breach of contract, repeated confusion and inconsistency in the cases demonstrates the underdeveloped state of foundational principles. Barnett examines a range of important areas in which a better understanding of the rationale and operation of the principle of mitigation would promote a more coherent and just law of

contractual compensation. In particular, she identifies two previously underappreciated features of the principle that have profound theoretical and practical consequences: first, that the mitigation requirement reflects the law's desire to encourage self-help on the part of plaintiffs and, secondly, that its application has profound distributive ramifications for the parties to a breach of contract claim. These features necessarily impact upon the extent to which any compensatory award for breach of contract can truly be said to be “substitutive” of the plaintiff's interest in, or right to, performance of the contract.

8 Outside the realm of compensatory damages, the opacity of jury reasoning continues to present an ongoing challenge to, as well as opportunities for, the development of a coherent and principled law of remedies. While juries were charged with administering remedies such as damages, the aims of those remedies could never really be known.11 Certainly, a dominant concern in the case of damages was compensation for loss. Some commentators12 and courts13 went so far as to argue that compensation was, or should be, the sole aim of damages. Increasingly, however, it has come to be recognised14 that jury awards probably reflected a variety of remedial aims such as punishment, deterrence, restitution or vindication. As juries have declined, a pressing issue has become to articulate the conditions for the principled award of noncompensatory damages.

9 A case in point involves “user-damages”, such as wayleave awards and mesne profits, commonly ordered in cases of proprietary torts such as trespass and conversion. Juries did not articulate the aim of these awards. However, what is clear is that they were frequently made in circumstances where there was little or no obvious loss suffered by the plaintiff. This has provided a fertile ground for academic analysis15 and, increasingly, curial consideration. Thus, as mentioned earlier, Phang JA observes in his article that the Singapore Court of Appeal

recently favoured a restitutionary over compensatory analysis of such awards in Yenty Lily. Courts in Australia have vacillated between the two.16

10 Kelvin Low seeks to challenge that alternative characterisation in his article.17 He posits that the relevant case law and commentary addressing the issue proceed on an overly narrow conception of loss (and thus the ambit of compensation). Stepping outside the treatment of user damages in the authorities, Low examines the wider usage of loss and compensation across common law and equity to show that compensable losses are conceived of very broadly, certainly extending well beyond purely pecuniary loss. Once the similarities between user damages and other awards in contract, tort and trust are appreciated, Low concludes that “the allure of the compensatory perspective is irresistible”.18 On this analysis, while a restitutionary counter-analysis may remain theoretically possible, in practice it is rendered largely redundant. In reaching this conclusion, Low notably diverges from the preferred view of the Court of Appeal. Both analyses, however, bear testament to the profound intellectual debt owed by those working in, or subject to, this area of the law, to the late Peter Birks, to whom we now turn.

III. The Birks legacy
A. Defining the field

11 It is...

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