Case Update: Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2018] SGCA 50 - Court of Appeal holds no tort of abuse of process and no malicious prosecution.

Article by Nee Yingxin.

Significance

The Court of Appeal held that there is no tort of abuse of process in Singapore, and also that a party is not entitled to claim for damages for the tort of malicious prosecution in civil cases.

Background

This appeal concerned the outcome of a lengthy dispute between the management corporation of a condominium, Grange Heights (the “MCST”) and owners of an adjacent plot of land, Lee Tat Development Pte Ltd (“Lee Tat”). The dispute was over a strip of land owned by Lee Tat, used as a shortcut by residents of Grange Heights to access Grange Road and Orchard Road easily.  The Court of Appeal held in 2008 (overruling their previous decision in 2005) that the residents of Grange Heights did not have an easement over the strip of land. Following the 2008 decision, Lee Tat then sued the condominium’s MCST, claiming damages for (1) malicious prosecution for two prior suits to assert the easement (2) abuse of process for four prior actions (3) expressing malicious falsehoods (4) trespass on Lee Tat’s property by continuing to access the shortcut until the Court of Appeal held in 2008 that the condominium residents were not entitled to access.

All four claims were dismissed, the reasons for which are as follows:

Malicious prosecution

Although a party is entitled to claim damages for malicious prosecution in criminal proceedings, a party can only recover damages for malicious prosecution in civil proceedings in very limited and defined circumstances. The Court considered Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366 and Willers v Joyce and another [2016] 3 WLR 477, two English cases extending malicious prosecution to civil proceedings, and ultimately rejected them. The Court justified this on principle and policy.

The first rationale for this is due to essential differences between criminal and civil proceedings, in terms of character and consequence. Criminal prosecution carries a stigma which affects a defendant’s reputation more than civil proceedings. The consequences of a successful criminal prosecution is also more invasive for a defendant more than that of civil proceedings. Furthermore, given that criminal prosecution is carried out by public authorities, society would be more likely attach credibility to the charge against the defendant. In light of the public character and harsh consequences of criminal proceedings, it is justifiable for the law to provide remedy for those who have suffered damage at the hands of prosecutors who abuse their function for malicious or improper reasons. The Court was not persuaded that the risk of injury without remedy in a maliciously prosecuted  civil case would outweigh the problems that would arise from extending this tort to civil cases.

Extending the tort of malicious prosecution to civil cases is also inconsistent with the principle that malice is generally irrelevant in tort law. As long as it is lawful for a party to commence legal proceedings against another party, he should not be civilly liable if those proceedings turn out to be unmeritorious. A further problem would be the introduction of uncertainty into cognate areas of law such as the law of privilege.

Regarding policy reasons, it would affect the principle of finality in the law by allowing for unnecessary “satellite litigation”. This may open a floodgate of litigation, leading to a waste of the court’s time and resources. It would also deter genuine claimants from bringing actions and lead to an overall chilling effect on regular litigation. Furthermore, the rise in litigation would be a step back from the general trend towards mediation in Singapore. Lastly, claims that would generally fall under malicious prosecutions would likely already be put to an abrupt end by existing measures in civil procedure..

Abuse of process

The Court refused to recognise the tort of abuse of process in Singapore, and felt no need to decide on the issue as the case at hand did not even meet the criteria of the equivalent English tort. As the elements of the malicious prosecution are similar, the Court applied the same rationale with regards to policy to the abuse of process. The same issues of undermining the principle of finality, and creating a chilling effect on genuine litigants apply here. Furthermore, there already exists a system of rules of civil procedure which deal with abusive litigation - for example, applying to court to strike out a plaintiff’s claim as frivolous or applying for a summary judgment against the defendant.

Malicious falsehood

MSTC made two assertions that the condominium residents were entitled to the easement, and both assertions were claimed by Lee Tat to be malicious falsehoods. The Court held that the two assertions were not, as they had not been made with malice and the MCST had a plausible case for having had an honest belief  in the truth of their statements. This was due to the “weight of judicial authority” at the time that MSTC had made its assertions.

Trespass

Lee Tat’s claim in trespass is limited to the period between 24 December 2006 and 1 December 2008. The Court held that Lee Tat is estopped from pursuing its claim in trespass with reference to this period because firstly, although the Court in 2008 had erroneously set aside the 2005 decision, there was no reason for the Court at present to maintain this error by holding MSTC accountable for trespass. Secondly, although the 2005 and 2008 decisions were contradictory, the parties could only have relied on the 2005 decision during the time period for which Lee Tat is claiming trespass.

As recognised in The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporation Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104, the Court in 2005 had reached an erroneous decision based on a misunderstanding of a prior decision in 1992. The Court in 1992 had made no determination on whether the right of way that had been granted to Lot 111-34 extended to Lot 561, but the Court in 2005 mistakenly thought that it had. However, when the Court in 2008 then set aside the 2005 decision on the basis of the mistake, it had ““sidestep[ped] impermissibly the true estoppel created by the decision of the majority in the [2005 decision]”. On the basis of the principle of finality, the erroneous decision by the Court in 2005 should have been given effect. Nevertheless, given that the 2008 decision overturned the 2005 decision, it is the most recent decision that should be given effect. However, there was no reason for the Court in this case to perpetuate the error of setting aside the 2005 decision by allowing Lee Tat to retrospectively establish a claim in trespass. The residents of Grange Heights could not be liable for trespass because “the legitimacy of [the 2005 decision’s] effect on the parties during the period between 24 December 2006 and 1 December 2008 cannot reasonably be questioned, even now, and in that sense, it preserves a measure of finality to this day.” [203]

It was also held that Lee Tat is unable to rely on the Arnold exception to work around issue estoppel. It could not show that the MCST obtained that decision by actual fraud. Furthermore, the Arnold exception allows “the re-opening of a decision only to affect future relief”, but in this case Lee Tat was aimed at “[seeking] to undo the effect of [the 2005 decision]”, and this was impermissible. [46]