THE LAW OF REMEDIES

• Citation: (2016) 28 SAcLJ 746
• Date: 01 December 2016
• Published date: 01 December 2016
• Author: Andrew PHANG Judge of Appeal, Supreme Court of Singapore.

The Importance of Comparative and Integrated Analysis *

Two simple – and related – theses are advanced in this essay. The first is that, in the search for principle (whether in the law of remedies in particular or in the law in general), comparative analysis is extremely important. Secondly, this essay seeks to explain as well as demonstrate the importance of integrating academic scholarship with practical analysis. While both these theses are deceptively simple, they are by no means easy to accomplish and (perhaps as, if not more) importantly, might even entail a change in one's mindset.

I. Introduction

1 The importance of the law relating to remedies cannot be overstated. Indeed, when counsel or litigants collect judgments from the court, I am told that – on virtually every such occasion – they turn immediately to the last page of the judgment in order to ascertain the result of the case. Not surprisingly, litigants are interested in the result of both potential as well as actual litigation. More specifically, they would like to know what remedies they are – or are unable – to obtain. Such remedies often take the form of common law damages but they could include equitable remedies (such as specific performance and injunctions).1 It is also not surprising, therefore, to find an increasing number of learned texts on the topic of remedies across the common law world.2 This special issue of the Singapore Academy of Law Journal is

an extremely valuable addition to this body of literature and, in this short reflection, I would like to say something about how the scholarly literature in the field has influenced – and can continue to influence – the development of the law in this important area of the law by the courts. Indeed, I hope to persuade the reader that this is an important collaborative enterprise that needs to be treasured as well as nurtured. As we shall see, this was not always the case. There is also the danger that this may no longer be the case if all concerned become arrogant and/or complacent. Before proceeding to do so, however, I would like to take this opportunity to congratulate all the writers on their perceptive scholarly contributions not only to this volume but also (and more importantly) to the development of the law in the foreseeable future in courts and legal systems across the Commonwealth (and beyond). Special congratulations are due to the guest editor of this volume, Prof Elise Bant. She is an internationally renowned legal scholar whose works grace the shelves of libraries (both private and public) across the globe.3 The high quality of the present volume is due, in no small measure, to her prodigious as well as insightful efforts.

2 Although this piece focuses on the integrative efforts required from both academia on the one hand and the profession as well as the courts on the other, I would like to commence this short reflection by first focusing on yet another theme which I also consider to be of great significance — the importance of comparative legal analysis.

II. The importance of comparative analysis

3 It is now axiomatic that the common law is no longer as common as we once thought it to be.4 Indeed, there have – all over the globe – been efforts by courts to develop autochthonous legal systems which more appropriately reflect the culture and mores of the society concerned.5 As the Singapore High Court observed in Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board:6

… English law, having been ‘exported’ to so very many colonies in the past, has now to be cultivated with an acute awareness of the soil in which it has been transplanted. It must also be closely scrutinised for appropriateness on a more general level – that of general persuasiveness in so far as logic and reasoning are concerned. This is the essence of the ideal of developing an autochthonous or indigenous legal system sensitive to the needs and mores of the society of which it is a part. Only thus can the society concerned develop and even flourish. …

It is therefore to be welcomed that English law is no longer accepted blindly. This is not to state that it has not served jurisdictions such as Singapore, even outstandingly well. But there ought to be departures where either local conditions and/or reason and logic dictate otherwise. Indeed, the essence of the former is embodied within s 3(2) of the Application of English Law Act (Cap 7A, 1994 Rev Ed).

4 The need to develop an autochthonous legal system must, of course, be balanced against the need to eschew legal parochialism.7 This is especially the case in relation to commercial law in general and the law of remedies in particular. That having been said, there can be no doubt that courts in different jurisdictions can develop the law differently – even in the law of remedies. Such difference may not, in my view, be a bad thing. Indeed, for jurisdictions which are in the process of developing their own law in the same area, diversity can be a boon rather than a bane. In Singapore, for example, the law of contract has been characterised by a search for principle in which the need to develop the law in view of local circumstances is balanced with the need to eschew unnecessary and undesirable parochialism. Courts have frequently drawn upon or adopted established English law, but have also sometimes entirely departed from it, or distinguished it to reflect and accommodate the local context. There is thus no mechanistic approach towards received English law but an integrated and comparative enquiry in which considerations of doctrine and fairness interact.8 Singaporean courts engaged in this “search for principle” also – in appropriate instances – consider and cite decisions from jurisdictions outside Singapore and England. This arguably reflects a desire to distil the best legal principles available in the relevant area of the common law, regardless of their jurisdictional origin.9

5 Although what I have just described relates specifically to the Singapore experience, there is no reason in principle why it could not apply in the context of other jurisdictions as well.10

6 Beyond the role of courts in developing comparative analysis in the development of legal principle, it is always desirable (in my

respectful view at least) for legal scholars to adopt (wherever possible) a comparative approach in their research and writing (and, I would hasten to add, teaching as well). Their scholarship can become only more textured as a result.11 Indeed, I would go further and suggest that case law from another jurisdiction might – on occasion at least – even constitute the catalyst for reconceptualising existing ideas or even creating new ones. On a practical level, however, such (comparative) scholarship would simultaneously aid courts in their “search for principle”. Put simply, courts would be aided in this search not only by relevant foreign decisions but also by relevant foreign scholarship as well.

7 I believe that what I have described applies with equal – if not more – force to the law of remedies. There is so very much that we can learn from other jurisdictions – particularly in developing areas of law such as that relating to unjust enrichment (a recent example of which is the Singapore Court of Appeal decision of Wee Chiaw Sek Anna v Ng Li-Ann Genevieve).12 However, even in more “traditional” areas, the recourse to comparative material is invaluable. One relatively recent illustration may be found in relation to the law of remoteness of damage in contract law in Singapore. In particular, the Singapore Court of Appeal, in MFM Restaurants Pte Ltd v Fish & Co Restaurants Pte Ltd13 (“MFM Restaurants”), clarified that the apparently new legal criterion introduced by Lord Hoffmann in the House of Lords decision of Transfield Shipping Inc v Mercator Shipping Inc14 (“The Achilleas”) in the context of the test for remoteness of damage in the law of contract did not represent the law in the Singapore context. MFM Restaurants is also significant in the context of the present piece because it is also directly relevant to the second theme which I would like to deal with – the importance of integrating academic scholarship with practical analysis. I will therefore turn to that theme, generally, first before discussing MFM Restaurants in relation to both those themes. However, before

proceeding to do so, it is important to note, if only in the briefest of terms, that the first theme (which deals with the use of comparative materials) can – and often does –overlap with the second theme (that of integrating academic scholarship with practical analysis) inasmuch as the academic scholarship itself often hails from different jurisdictions as well.

III. The importance of integrating academic scholarship with practical analysis

8 In the not too distant past, citation of secondary literature (at least under English law) was extremely rare (if not virtually nonexistent). Indeed, it was traditionally thought (by some judges at least) that such literature could not be cited unless the author himself or herself had passed on.15 Fortunately, that is no longer the case.16 Even allowing for any bias I might have as a former academic, it is clear that courts eschew the consideration and citation of relevant academic scholarship at their peril. This is especially the case in developing areas of the law such as unjust enrichment. However, that having been said, it is important to emphasise the word “relevant”. Put simply, there is also academic scholarship that is too divorced from practical reality and application and is therefore of little – or no – use to the courts. In this particular regard, I once observed thus:17

[The] strict dichotomy occasionally drawn between academic work on the one hand and court judgments on the other is, in the medium and longer terms, a recipe for disaster. This is because theory cannot be divorced from practice. Each...