As part of ‘dialogue’ with other common law jurisdictions, the Court of Appeal of the Republic of Singapore (Singapore’s highest court) in Tat Development PTE Ltd v Management Corporation of Grange Heights Strata Title Plan No 301 [2018] SGCA 50 has declined to follow the UK Supreme Court on extending the tort of malicious prosecution to civil proceedings. The Supreme Court recently held by a slim margin of 5-4 in Willers v Joyce [2016] UKSC 43; [2016] 3 WLR 477 that the tort of malicious prosecution be extended to cover the bringing of civil proceedings. This was a highly controversial decision attracting much academic comment. The Singaporean Court of Appeal has expressly declined to follow it, adopting the reasoning of the minority in Willers, in particular that of Lords Sumption and Mance.

Although not strictly a police case, the judgment together with the two earlier cases that the Supreme Court sought to resolve - Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419 (HL) and Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17, [2014] AC 366 delve deeply into the history of malicious prosecution and are an education as to the tort’s development and meaning.

The facts of the Lee Tat Development decision were far from those considered by the Supreme Court. The judgment opens by stating that the case was “yet another legal tussle in a series of bitterly fought litigation… which stretches across more than four decades and… five decisions of this court, excluding the present decision. Everything seems to rest on a disputed right of way over a narrow strip of land – of which the judgment provides a drawn sketch. Judgment was entered in respect of the primary action in 2008. One party then claimed that the other was guilty of malicious prosecution in respect of the civil action and, in the words of the court, “turned their energies to disputing about the dispute itself.”

The discussion of the law starts at [61]. The court was sceptical of the ‘attractive at first blush’ principle that for every injustice there should be a remedy at law. The fundamental difficulty with this was that it presupposed that the damage suffered constituted a legal wrong, such that the principle that there ought to be a remedy was no more than mere assertion [62].

To look to past authority was of limited benefit [65]. Where the cause of action was arguably new, past cases were likely to be equivocal and over-reliance upon them not productive [66]. Even then, the qualitative aspects of the relevant cases were more important than a quantitative measure [67].

The court noted that the rationale of the tort of malicious prosecution was to afford a private remedy for the abuse of state power. It had been extended to civil proceedings only insofar as they concerned applications (usually ex-parte for interlocutory remedies) which had the potential to cause immediate and irreversible damage to persons, property or reputation [69]. The rationale otherwise lay in the public character of the function performed by a criminal prosecutor.

All prosecutions in England were carried out by private individuals but in the name of the Crown, such that this was an essentially public function. Malice was a component of the tort because it negatived the public character of the function’s performance [71].

There were also essential differences between criminal and civil claims, both in terms of their character and performance [86]. The character of a criminal prosecution was to punish a public wrong whereas a civil claim was to vindicate a private right [87]. Criminal prosecution carried more serious effects than civil proceedings on a defendant’s reputation – that a person had committed a wrong against the community at large, making him worthy of punishment [88]. The legal consequences of a successful criminal prosecution were usually more invasive on a defendant than civil proceedings – the anxiety of civil defendants being meaningfully different from an accused in the dock awaiting a pronouncement on their alleged guilt [89]. That a public authority had seen it fit to bring a criminal charge carried greater weight in the eyes of society than a private individual bringing a case against another [90].

The tort, therefore, was a tool for constraining the arbitrary exercise of the powers of public prosecuting authorities, recognising the power which public prosecutors wielded [91].

The principle of extending malice to malicious prosecution in civil proceedings was inconsistent with the principle that if an act is lawful, a person has the right to so it regardless of ill motive [93]. A person had the freedom to perform lawful acts for any reason of their choosing [94]. Whereas in criminal proceedings, the concept of malice enables a court to balance the need to ensure that the public good is achieved by bringing criminals to book with the need to prevent abuse [95]. To extend the role of malice would bring an action intended to restrain abuse of a public function into the private sphere [96]. It would also exacerbate uncertainty [99] and cut across other areas of law, such as the law of privilege [100] which prevented a litigant from being liable in respect of things said or done in the course of civil proceedings [101]. It also was inconsistent with the principle that a litigant owed no duty of care to his adversary in the conduct of proceedings [102].

The court dispatched the Supreme Court’s dismissal of the ‘floodgates’ argument, stating that given the volume of litigation in Singapore, even a small percentage of cases giving rise to further claims of malicious prosecution would have a significant, adverse impact on the legal system [114]. Resources were finite and it was unwise to open itself to a flood of bad claims simply because there might, someday, be a good one [115]. Instead, abuse of process in the bringing of claims could be dealt-with by striking-out, judgment or costs [121].

As stated above, this does not affect the law in relation to claims of malicious prosecution in police cases. It also does not affect English law on malicious prosecution in civil actions. However, this decision of the Singaporean Court, together with the previously decided cases that it considers are well worth reading for their exposition of the tort, the value of precedent and considerations of public policy in judging – all at the very highest level.  

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