On the 13th of October, 2016, the Singapore Law Review hosted Minister for Home Affairs and Minister for Law, Mr K Shanmugam, for an intimate dialogue session with law students to discuss proposed changes to the Elected Presidency. The dialogue session came just three days after a Bill to formally introduce these proposed changes into the Constitution of Singapore was tabled in Parliament.
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Keith Jieren Thirumaran
INTRODUCTION
There are three main areas that doctors engage in when practicing medicine: diagnosis, treatment and advice. In order for doctors to avoid negligence liability, they must meet the applicable standard of care expected of them. However, in the context of advice with respect to disclosure of risks, the test for determining whether a doctor is in breach of the applicable standard of care has attracted a considerable amount of attention. Singapore has retained the traditional doctor-centric test, but several overseas jurisdictions have since developed more patient-focused approaches – notably, the recent UK Supreme Court decision of Montgomery v Lanarkshire Health Board [Montgomery].1 This article will examine the various tests used by courts both locally and overseas, after which it will be submitted that the status quo in Singapore should be maintained in light of compelling local circumstances.
TESTS USED LOCALLY AND OVERSEAS
The Singapore position pre-Montgomery
The current position in Singapore is embodied in the Court of Appeal case of Dr Khoo James & Anor v Gunapathy d/o Muniandy [Gunapathy]2 where the Court applied the Bolam-Bolitho test to the disclosure of risks in the medical context.
The Bolam-Bolitho test is the locus classicus for the standard of care required of doctors and comprises of two separate tests. The plaintiff must show that a doctor defendant has failed either of these tests in order to establish a breach of the standard of care.
The Bolam test, formulated in Bolam v Friern Hospital Management Committee,3 requires a doctor to have acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. This means that a doctor will not be found negligent as long as part of the medical profession agrees with what the doctor did, even if there is a body of opinion that takes the contrary view,4 and even if the court prefers one of the views over the other.5
The Bolitho test, formulated in Bolitho v City & Hackney Health Authority,6 is a threshold test of logic and consistency when accepting the opinion of medical peers. This comprises two stages: the expert must have directed his mind to the comparative risks and benefits of the matter; and the opinion must be a defensible conclusion, meaning that it must be internally consistent and should not ignore known medical facts.7
The main reasons the Court of Appeal in Gunapathy cited for applying the Bolam-Bolitho test was that judicial wisdom has its limits. A judge unskilled in medicine has no business adjudicating matters which medical experts themselves cannot agree on.8 Furthermore, excessive judicial interference would hamper the proper development of medical science, give rise to defensive medicine, and lead to higher medical costs and wastage of medical resources. 9
The development of the “prudent patient” approach
In the UK case of Sidaway v Bethlem Royal Hospital Governors [Sidaway],10 Lord Scarman in his dissent suggested moving from the Bolam-Bolitho approach toward a “prudent patient” test similar to that found in the American case of Canterbury v Spence.11 In the Australian case of Rogers v Whitaker [Rogers],12 the High Court favoured Lord Scarman’s dissent13 and decided the case on the basis of what risks a “prudent patient” would wish to know, save for the exception of therapeutic privilege cases. The Canadian Supreme Court case of Reibl v Hughes14 and the Malaysian Federal Court case of Foo Fio Na v Dr Soo Fook Mun & Anor15 have also taken similar approaches to the disclosure of risks in the medical context.
In the UK itself, the majority decision in Sidaway is no longer good law. The case has since been effectively overruled by the recent Supreme Court decision of Montgomery.16 The Montgomery approach17 is that a doctor must disclose risks that a reasonable person in the patient’s position would attach significance to, as well as risks that the doctor should reasonably be aware that the actual patient would attach significance to. The patient need not question the doctor,18 though the doctor must engage in a proper dialogue with the patient to ensure that the latter is aware of and understands the risks.19
There are three exceptions to the above test where a doctor does not have to disclose the relevant risks.20 The first is when the patient does not wish to know any further information.21 The second is the therapeutic privilege exception which allows a doctor to withhold information from the patient if the doctor reasonably considers that its disclosure would be seriously detrimental to the patient’s health. 22. The third is in circumstances of necessity such as when treatment is required urgently but the patient is unconscious or otherwise unable to make a decision.23
Whether the risk is considered material enough to be disclosed depends on various factors such as magnitude of risk, nature of risk, effect of its occurrence upon the life of the patient, importance to patient of the benefits from treatment, alternative treatments and risks of those alternative treatments (“Montgomery Factors”).24
Singapore’s stance on the “prudent patient approach”
Although the Singapore High Court acknowledged Montgomery in the cases of Thong Jiang Andrew v Yue Wai Mun & Anor 25 and Hii Chii Kok v Ooi Peng Jin London Lucien and another,26 it left the question of which test should apply open (Bolam-Bolitho or Montgomery). Nonetheless, on the existing facts, it seems that the Singapore Courts favour the Bolam-Bolitho test.
Firstly, the Court of Appeal in Gunapathy, in the context of advice and disclosure of risks, did not find favour with Lord Scarman’s dissent in Sidaway, the foundations for the prudent patient approach as discussed above. Instead, the Court in Gunapathy preferred to follow the majority in Sidaway in applying the Bolam-Bolitho test to the context of advice and disclosure of risks.27
Secondly, the Court in Gunapathy also noted that Lord Bridge’s qualification in Sidaway (that if there was a substantial risk and no cogent clinical reason for non-disclosure, a Judge can conclude that no respectable medical expert would have failed to disclose that risk) was already subsumed under the Bolitho test and was therefore unnecessary.28
Thirdly, Chief Justice Sundaresh Menon, in his address at the Opening of the Legal Year 2016, has also emphasised the importance of preventing doctors from practicing defensive medicine.29 The Learned Chief Justice also promoted the use of alternative dispute resolution such as mediation, as opposed to litigation, for resolving medical disputes.30 This is further evidence of the importance of reducing medical litigation in Singapore, which is more in line with the Bolam-Bolitho test. The Montgomery test, on the other hand, may subject doctors to greater legal liability.
COMMENTARY ON THE FUTURE POSITION IN SINGAPORE
Since the position in the UK (which Singapore was following) has been changed by the case of Montgomery, the Singapore Court of Appeal will have to consider this and other international developments to determine which test should apply in Singapore. While some may be quick to cast their vote for a change to Montgomery, this author believes that Singapore should stick to its current position and uphold the Bolam-Bolitho test.
Underlying policy considerations in support of the Bolam-Bolitho test
Policy reasons form the basis for sticking to the Bolam-Bolitho test, in particular, hampering the proper development of medical science, giving rise to defensive medicine, higher medical costs and wastage of medical resources.31 As Chief Justice Menon pointed out in his address, a fear of litigation would distort medical practice and raise insurance costs.32 These are fundamental policy considerations that underpin the Bolam-Bolitho test and they are still as strong today.
At first glance, it would appear that the learned Chief Justice’s concerns were already considered by the Supreme Court in Montgomery. The Supreme Court in that case disagreed that there was a possibility of increased litigation and defensive medicine from its approach. Furthermore, the Court opined that its approach would result in patients being aware that the outcome of treatment is uncertain, and that its approach allows patients to take responsibility for the ultimate choice of undergoing that treatment.33 This, in the Court’s opinion, would therefore lower the likelihood of litigation in the event of an adverse outcome.34
However, this author respectfully disagrees with the views expressed in Montgomery. While it may be thought that less litigation would directly translate into less defensive practices, this is not necessarily true. The very fact that doctors under the Montgomery approach have to disclose more risks is itself a defensive practice which would lead to higher costs. Doctors would never be sure where to draw the line, and would “play safe” by disclosing many, if not all, the risks associated with the treatment.
In Montgomery, the Court failed to take into account the increased medical costs involved with their approach.35 The defensive medical practice of disclosing more risks of treatment (in order to avoid liability for failing to disclose a risk) would lead to “higher medical costs and wastage of precious medical resources”.36 More time will be needed to disclose and explain risks, which could have been spent treating another person or saving a life (which the Court in Montgomery did not discuss). Time wastage may be exacerbated where a patient who has been notified of many new risks is inclined to further question the doctor for explanations, elaborations, and evaluations on them, regardless of the significance of the risk. The Montgomery approach may raise medical costs, going against the aims that the learned Chief Justice and the Court in Gunapathy had sought to achieve.
Furthermore, even with the therapeutic privilege exception, disclosing every conceivable risk to a patient that is not “at-risk” can still cause unbalanced decisions and frighten the patient.37 A patient may opt for a more expensive treatment or refuse otherwise viable treatment when frightened by an insignificant risk. It is therefore submitted that in order to avoid higher medical costs and wastage of resources, the decision of which risks are significant enough to the patient and need to be disclosed should best be left to the judgment of the medical profession.
Lastly, the Court in Montgomery felt that imposing legal obligations was necessary to force doctors to engage in a discussion with their patients. However, as Baroness Hale said in Gregg v Scott,38 doctors are motivated by their natural desire and professional duty to do their best for their patients. It is this author’s opinion that a doctor would therefore engage in the discussion with their patients, even without legal obligations, as long as the doctor feels that it would be in the patient’s interest to know of a particular risk.
Montgomery’s human rights focus is inapplicable to Singapore
The decisions in the UK, such as Montgomery, may not be applicable in Singapore. This is because, as stated by the Singapore High Court, the UK decisions may have been influenced by the UK’s emphasis on human rights and autonomy.39 This emphasis on human rights and autonomy in the UK may be attributed to the European Convention of Human Rights [ECHR],40 enforced under the Human Rights Act [HRA].41
However, neither the ECHR nor the HRA is binding on Singapore Courts.42 Therefore, in the absence of any rights-based legislation, the Singapore Courts may not be inclined to adopt an approach, such as Montgomery, which is based on a strong emphasis of Human Rights.43
Bolam-Bolitho and Montgomery tests likely to reach the same conclusion
The Bolam-Bolitho test would, in this author’s opinion, already encompass the bulk of the Montgomery approach. It is submitted that the large majority of risks disclosed under the Montgomery approach would already be disclosed under the Bolam-Bolitho test, ultimately giving rise to same legal conclusions.
Firstly, if a doctor is aware that his patient would attach significance to a particular risk, then in the absence of cogent medical reasons such as the therapeutic privilege exception, there appears to be no reason why that doctor would not disclose that risk to the patient. Therefore, it appears that any reasonable doctor would disclose risks that he is aware his patient finds significant, thereby satisfying the Bolam test, while also satisfying the Montgomery test.
Secondly, even in the absence of any cognisance of specific significance to his patient, a doctor would disclose risks that the doctor believes should be disclosed. A doctor is likely to take into account the various Montgomery Factors listed above (save for “importance to patient of the benefits from treatment”) when making an assessment of what to disclose to a patient. Therefore, save for the internal thoughts of a patient, a reasonably doctor who satisfies the Bolam test by considering the Montgomery Factors would satisfy the Montgomery test and disclose all material risks.
Furthermore, in Singapore the minimum that the Bolam test requires a reasonable doctor to do would be to adhere to the Singapore Medical Council’s Ethical Code and Ethical Guidelines [Ethical Code].44 The Ethical Code requires doctors to keep a patient “adequately informed” of his treatment options so that “he is able to participate in decisions about his treatment”.45 The Ethical Code also requires doctors to “provide adequate information” so that a patient can make “informed choices”.46 As the wording is notably broad, it is highly probable that a doctor which satisfies the provision of “adequate information” under the Bolam test is likely to have disclosed all material risks and thereby satisfy the Montgomery test.
Thirdly, there is no risk of the medical profession exploiting the Bolam-Bolitho test. This is because if the responsible body of medical men would not have disclosed the risk, and if this is not founded on a logical basis, the Bolitho test would then step in.47 The Bolitho test is not an invasive inquiry into the merits of the medical opinion before the Court.48 However, if the medical profession illogically omits to warn of certain risks which patients should undoubtedly be informed of, the Court should interfere on the authority of Bolitho.49 This is especially so when the disclosure of that particular risk was so obviously necessary in order for the patient to make an informed choice.50 An example provided by the Court was if the risk is substantial, of grave consequences and there is no cogent clinical reason for omitting to disclose the risk.51 Therefore the Bolitho test will help to catch risks that should be disclosed under Montgomery but where the medical profession as a whole would not have done so.
The Montgomery test is impractical
Even with the practical similarities highlighted above, it is acknowledged there are a handful of risks that a prudent patient would want disclosed that a reasonable body of medical men would not have disclosed. This handful of risks would be caught by the Montgomery approach but would not have been caught under the Bolam-Bolitho test. The existence of these risks stem from the main difference between the Bolam-Bolitho test and the Montgomery approach: the perspective from which the test is applied.
It is submitted that the Montgomery test provides a very artificial guideline to follow and it would not be realistic to expect a doctor to adhere to such a test. While it is acknowledged that a doctor can attempt to think from the perspective of a reasonable patient, and thereby theoretically be able to cover some of the material risks from a patient’s perspective, the reality is that a doctor cannot tell with any precision or certainty what a reasonable patient would wish to know. Therefore, in their bid to escape liability under the Montgomery test, a doctor would practice defensive medicine by simply disclosing every conceivable risk. This is undesirable as it would lead to the aforementioned higher medical costs and wastage of medical resources.
Therefore, applying the Montgomery approach only gives the appearance of human rights and autonomy. Instead, the Montgomery approach would lead to more prevalent defensive practices as well as unnecessarily cause a greater number of doctors to be found negligent merely due to the unrealistic expectation of predicting what a prudent patient would want to know.
CONCLUSION
In conclusion, the Singapore Courts should not feel pressured to accept the approaches adopted in other jurisdictions but should choose the approach that is most desirable to the Singapore context and society. It may well be that maintaining the status quo could be the better approach for Singapore.
[1] Montgomery v Lanarkshire Health Board, [2015] UKSC 11.
[2] Dr Khoo James & Anor v Gunapathy d/o Muniandy, [2002] 2 SLR 414.
[3] Bolam v Friern Hospital Management Committee, [1957] 1 WLR 582 at 587.
[4] Ibid.
[5] Maynard v West Midlands Regional Health Authority, [1985] 1 All ER 635.
[6] Bolitho v City & Hackney Health Authority, [1998] AC 232 at 241-242.
[7] Supra note 2 at [64] – [65].
[8] Supra note 2 at [144].
[9] Ibid.
[10] Sidaway v Bethlem Royal Hospital Governors, [1985] AC 871.
[11] Canterbury v Spence, (1972) 464 F 2d 772.
[12] Rogers v Whitaker, (1992) 175 CLR 479.
[13] Ibid at [10].
[14] Reibl v Hughes, (1980) 114 DLR (3d).
[15] Foo Fio Na v Dr Soo Fook Mun & Anor, [2007] 1 MLJ 593.
[16] Supra note 1.
[17] Supra note 1 at [87].
[18] Supra note 1at [58].
[19] Supra note 1 at [90].
[20] Supra note 1 at [85] and [88].
[21] Supra note 1 at [85].
[22] Supra note 1 at [88].
[23] Supra note 1 at [88].
[24] Supra note 1 at [89].
[25] Thong Jiang Andrew v Yue Wai Mun & Anor, [2015] SGHC 119 at [36] – [37].
[26] Hii Chii Kok v Ooi Peng Jin London Lucien and another, [2016] SGHC 21.
[27] Supra note 2 at [142].
[28] Supra note 2 at [141].
[29] Chief Justice Sundaresh Menon: Response at the Opening of the Legal Year 2016 (11 January 2016), online: <http://www.supremecourt.gov.sg/Data/Editor/Documents/Response%20by%
20CJ%20%20Opening%20of%20the%20Legal%20Year%202016%20on%2011%20January%202016%20(Checked%20against%20Delivery%20110116).pdf> at [43].
[30] Ibid.
[31] Supra note 2 at [144].
[32] Ibid.
[33] Supra note 1 at [93].
[34] Ibid.
[35] It is suggested that the UK’s National Health Service may have been a contributing factor that would have downplayed the concern of patients’ medical costs for the Court in Montgomery.
[36] Supra note 2 at [144].
[37] Tong Seok May Joanne v Yau Hok Man Gordon, [2012] SGHC 252 at [76].
[38] Gregg v Scott [2005] UKHL 2 at [217].
[39] D’Conceicao Jeanie Doris (administratrix of the estate of Milakov Steven, deceased) v Tong Ming Chuan [D’Conceicao], [2011] SGHC 193 at [123]; Tong Seok May Joanne v Yau Hok Man Gordon [2012] SGHC 252 at [64] and [172].
[40] Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)
[41] Human Rights Act 1998 (UK), c 42.
[42] Supra note 38.
[43] Ibid.
[44] Singapore Medical Council, Ethical Code and Ethical Guidelines, online: <http://www.healthprofessionals.gov.sg/content/dam/hprof/smc/docs/guidelines/SMC%20Ethical%20Code%20and%20Ethical%20Guidelines.pdf>.
[45] Ibid at 4.2.2.
[46] Ibid at 4.2.4.
[47] Supra note 2 at [141].
[48] D’Conceicao at [40].
[49] Ibid at [124].
[50] Supra note 10 at 900.
[51] Ibid.
The Singapore War Crimes Trials Web Portal was launched on the evening of the 29th of August 2016. The Singapore Law Review enjoyed the privilege of co-organising the launch with the Portal’s co-researchers, Dr Cheah Wui Ling (Assistant Professor, National University of Singapore) and Ms Ng Pei Yi (NUS alumni and Legal Counsel, Travelport (Asia-Pacific)).
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Loo Fang Hui
INTRODUCTION
In the 1998 film “A Civil Action”, John Travolta plays Jan Schlichtmann, a flamboyant and tenacious American personal-injury attorney who engages clients almost exclusively on a contingent fee basis. Under such an agreement, the lawyer agrees to render professional services in obtaining a judgment or settlement for the client, in exchange for a fee equal to a certain percentage of the ultimate recovery. Where the claim is defeated and no recovery is made, the lawyer receives no fee whatsoever. Film-viewers follow Schlichtmann as he absorbs a torrent of legal costs and resources, even driving his firm to the brink of bankruptcy, in pursuit of a meritorious but nebulous and unduly drawn-out claim which is contested at every turn.
While all-or-nothing contingent fee agreements may make for dramatic Hollywood fodder, they do not always enjoy the same unanimous support in the legal sphere. The common law has traditionally condemned such agreements as a form of champerty. In Wallersteiner v Moir,1 Lord Denning MR stated the general rule in the following terms:
In its origin champerty was a division of the proceeds (Campi partitio). An agreement by which a lawyer, if he won, was to receive a share of the proceeds was pure champerty... It mattered not whether the sum to be received was to be his sole remuneration, or to be an added remuneration (above his normal fee), in any case it was unlawful if it was to be paid only if he won, and not if he lost.
This essay seeks to outline the arguments for and against champertous agreements, before exploring whether such agreements have a role to play in our evolving legal landscape. Ultimately, I argue for the increased liberalisation of champertous agreements, in the name of enhancing access to justice.
HOW CHAMPERTOUS AGREEMENTS WORK
In the legal domain, champertous agreements often take the form of a lawyer offering to take up cases brought by clients who are unable to pay their legal fees upfront. In exchange for legal services, the client agrees to pay the lawyer a portion of the settlement or recovery if the claim is successful. The amount paid usually amounts to a higher sum than what the lawyer would have received under a conventional fee system. This is often referred to as a contingent fee agreement.
Variations on the contingent fee agreement also exist, such as the uplift fee agreement, where a basic minimum legal fee is agreed upon, but an additional sum is payable to the lawyer if the claim is successful.
Such agreements are generally referred to as champertous or conditional fee agreements, as payment of legal fees is conditional upon the success of the claim. Under such agreements, a person that is not well-to-do can nevertheless engage a lawyer, with the obligation to pay largely arising only if the claim is successful. The client is put at no financial risk if the claim is unsuccessful, as the burden is borne by the lawyer.
While such fee agreements seem like a surefire way to increase access to justice by enabling the less wealthy to have their day in court, the concept has seen more than its fair share of criticisms.
TRADITIONAL CRITICISMS
Critics have long contended that champertous agreements pose a risk to the sanctity of the legal industry. They argue that such agreements could tempt lawyers to cherry-pick the strongest claims as they would be investing their own time and money into uncertain prospects of recovery. Far from guaranteeing access to justice, champertous agreements could indeed have the opposite effect.2
There exists the fear that champertous agreements may tempt lawyers to inflame damages, suppress evidence, or even suborn witnesses for their own personal gain.3 This may potentially become the norm in a legal market where attorneys become financially invested in the suit, concerned with achieving a higher rate of return through an increased number of clients and suits. This could lead to a reduction in the quality of legal work and the commitment to principles of justice, as lawyers would be motivated to seek the quickest methods of settling a claim and getting a pay-out, instead of working towards the most beneficial solution for their clients. The role of a lawyer as an impartial advocate of his client's cause would correspondingly be perverted.4
Another criticism is the inevitable consequence that those who are forced to rely on such agreements end up paying much more for identical services than the wealthy, who are able to afford legal services charged on a conventional basis.5 This is especially apparent for claims involving large sums. While the wealthy client who can afford conventional legal fees pays a flat hourly rate for legal services, the impecunious client relying on a champertous agreement pays a percentage of the sum recovered, which may end up being much higher than the conventional rate.
This may be perceived as unjust and unfair discrimination, in essence offering “access to justice” to the impecunious at a significant mark-up.
THE POSITION IN SINGAPORE
All these criticisms seem to have been acknowledged locally, with s 107 of the Legal Profession Act6 prohibiting solicitors from acquiring any interest in any suit, action or proceeding, and from entering into agreements which provide for payment only if the claim is successful. Similarly, Rule 18 of the Professional Conduct Rules7 expressly prohibits contingent fee agreements. Both provisions seem to be premised on the conventional wisdom that advocates and solicitors must maintain their independent and professional standing (unaffected by any personal interest in the outcome of the matter) in order to be able to act effectively in representing the client's interests.8 Contravention of the aforementioned provisions may lead to disciplinary sanctions, including the offending lawyer being struck off the rolls.
The SGHC in Law Society of Singapore v Kurubalan [Kurubalan]10 recognized that a key element in effectively representing a client's interest is the ability of the lawyer to maintain a sufficient sense of detachment so as to be able to discharge his duty to the court. This duty ultimately paramount and trumps all other duties.11
Such is the commitment of the Singaporean courts to preserve justice and safeguard confidence in the profession that the doctrine has been extended as a general principle beyond the confines of court proceedings. Steps have been taken to bar champertous agreements in other areas of legal work such as arbitration,12 or even where local lawyers are involved in proceedings brought in foreign jurisdictions.13
VALID CONCERNS OR EXAGGERATIONS?
However, are such concerns well founded? While it is conceded that champertous agreements may potentially be abused, it is also undeniable that they allow cases to be brought which would otherwise never have had their day in court.
While lawyers may cherry-pick the most meritorious or profitable cases, this is surely only confined to the pool of potential cases where the claimant was in any case unable to afford conventional legal fees. There is no reason why less meritorious claims cannot continue to be brought by claimants willing and able to pay conventional legal fees. While the claims which are both unfunded and unmeritorious may continue to go unheard, this in no way detracts from the fact that champertous agreements can and will lead to a net increase in access to justice.
For truly meritorious claims, financial constraints will no longer be a barrier to justice. Although the claimant may be paying a higher proportion of legal fees than in a comparable claim with a conventional fee agreement, it must not be forgotten that the alternative is to recover nothing at all. Surely some recovery is better than none?
While this is a lacuna arguably fillable by pro bono, it is submitted that the local pro bono scene is not yet sufficiently developed to fully cater to the needs of society. It must first be acknowledged that commendable efforts and resources are being put in by the authorities, leading to more and more lawyers dedicating time to pro bono. However, it is undeniable that there is still a strata of society unable to avail themselves of publicly available pro bono services, perhaps due to the stringent means testing conducted by entities such as the Legal Aid Bureau.14 Unfortunately, such categorisation is unavoidable as long as manpower constraints remain. Until the day our pro bono system is sufficiently comprehensive and so well-staffed that it can cater to all meritorious but unfunded claims, it is submitted that champertous agreements should step in to provide some relief.
As for the concern that legal work will suffer as lawyers become more profit-focused, it is arguable that the converse could occur as well. Where lawyers stand to gain more or lose everything from each case, they could well be motivated to work even harder to champion their client's cause.
While some doubts may still remain regarding the potential abuses, it is submitted that we should not be ruled by fear. There is no clear evidence that relaxing the doctrine of champerty will definitely lead lawyers to pervert the law to win at all costs. Concerns regarding the possibility of profit-driven lawyers abandoning their duties to the court and instead abusing the legal process for personal gain, while valid, can be addressed through strict regulations. When lawyers “play by the rules”, champertous lawsuits can be fought just as honourably as those conventionally funded.
A SLOWLY CHANGING LEGAL LANDSCAPE?
There is some evidence that the local stance on champerty is slowly softening. The SGHC in Kurubalan recognized two previous local decisions15 concerning disciplinary proceedings arising out of champertous agreements. In both instances, the offending solicitors were struck off the roll. The court in Kurubalan however went on to dismiss the two decisions as dated and of “limited use or relevance”,16 instead proclaiming that the starting point for sentencing in such cases ought to be a period of suspension.17
In addition, the court took the deliberate step of clarifying that it was permissible and even honourable for a lawyer to act for an impecunious client in the knowledge that he would likely only be able to recover his appropriate fees if the claim was successful. This is premised on the idea that where a lawyer has examined a client's case and concluded in all honesty that there is a good cause of action or defence which, but for the client's impecuniosity would likely be litigated, then he would be doing no wrong to take on such an engagement.18
The decision in Kurubalan has since been construed as a local exception to the doctrine of champerty,19 and the apparent relaxation of the court’s stance on champerty has been extended recently in SATS Construction v Islam Md Ohidul [SATS]20 to cover pro bono cases. In SATS, Debbie Ong JC held that there was no reason why legal costs should not be awarded when the pro bono lawyer had rendered substantial work.21 In both cases however, the courts drew the line at champertous agreements where fees are calculated as a percentage of or on the basis of the amount recovered in the claim.
With respect, it is submitted that Singapore is well-poised to go a step further and endorse a restricted version of champerty where fees may be derived from the amount recovered beyond a minimum legal fee. This might in fact further incentivise lawyers to act for impecunious clients with meritorious claims, giving a welcome boost to access to justice in Singapore.
As fears regarding the potential perversion of the law understandably remain, perhaps a cue can be taken from Australia, where limited forms of champerty have been legalised in some states. The Queensland Legal Profession Act [QLPA]22 provides a fine example, where conditional costs agreements involving uplift fees are allowed but subject to strict limits. Under the QLPA, where a cost agreement involves an additional uplift fee payable only on the successful outcome of the claim, such a fee is capped at 25% of the legal costs, and an estimate of the uplift fee must be provided before the agreement is signed.
The QLPA strikes an appropriate balance between the merits of increased access to justice and the perils of unrestrained and profit driven contingent fee agreements. Under an uplift fee agreement, the basic legal fee payable is usually lower than commercial rates, making it more affordable. If the claim is unsuccessful, the client need only pay the discounted basic legal fee. However, if the claim is successful, the client then pays the additional uplift fee out of the monies recovered such that the lawyer receives a total sum of remuneration similar to or slightly higher than conventional rates. Where clients are impecunious and unlikely to be able to pay any substantial legal fees for an unsuccessful claim, the availability of such a fee agreement might incentivise lawyers to bear the risk and take on such a claim.
Similarly, the United Kingdom has decriminalised champertous agreements in 1967.23 In addition, conditional fee agreements are now permissible under the s 58 of the Courts and Legal Services Act,24 albeit subject to certain conditions. This includes requiring the agreement to be in writing, as well as compliance with other conditions as may be prescribed by the Lord Chancellor.
It is submitted that Singapore can and should adopt a similar stance which could greatly enhance access to justice whilst restraining unscrupulous lawyers from abusing the system.
CONCLUSION
While some risks may remain, the potential of champertous agreements to carve out a substantial new avenue for access to justice cannot be ignored. As long as robust regulations and sufficient supervision remain in place, potential abusers of the system can likely be kept in check. Other common law jurisdictions such as the United Kingdom and Australia have already largely embraced champerty, and it is high time Singapore joins their ranks in championing champerty.
[1] Wallersteiner v Moir (No 2), [1975] QB 373 at 393.
[2] Law Society of Singapore v Kurubalan [2013] SGHC 135, [2013] 4 SLR 91 at [27].
[3]M P Furmston, ed, Cheshire, Fifoot and Furmston's Law of Contract, 2nd ed, (Singapore: Butterworths Asia, 1998) at 639.
[4] Contingent Fee: Champerty or Champion, Arthur L. Kraut, 21 Clev. St. L. Rev. 15 (1972).
[5] Supra note 2, at [27].
[6] Legal Profession Act (Cap 161, 2001 Rev Ed Sing), s 107.
[7] Legal Profession (Professional Conduct) Rules 2015 (S 391/2011 Sing), r 18.
[8] Jeffrey Pinsler SC, Ethics and Professional Responsibility: A Code for the Advocate and Solicitor, (Singapore: Academy Publishing, 2007).
[9] Supra note 6, at s 83(2)(j).
[10] Supra note 2.
[11] Supra note 2 at [45].
[12] Otech Pakistan Pvt Ltd v Clough Engineering, [2006] SGCA 46, [2007] 1 SLR (R) 989 at [38].
[13] Supra note 2 at [64]-[66].
[14] Legal Aid Bureau, “Do I Qualify for Legal Aid?” (1 July 2016), online: Ministry of Law <https://www.mlaw.gov.sg/content/lab/en/eligibility/do-i-qualify-for-legal-aid.html>.
[15] See Law Society v Chan Chow Wang, [1974] SGHC 16, [1974-1976] SLR (R) 237 and Lau Liat Meng v Disciplinary Committee, [1967] SGPC 1, [1965-1967] SLR (R) 641.
[16] Supra note 2 at [69].
[17] Ibid at [78].
[18] Ibid at [86].
[19] Reynard Chua, “The Future of Champerty in Singapore?”, online: (2013) 5 Juris Illuminae 6 <http://www.singaporelawreview.com/juris-illuminae-entries/2015/the-future-of-champerty-in-singapore>.
[20] SATS Construction v Islam Md Ohidul, [2016] SGHC 99.
[21] Ibid at [19].
[22] Legal Profession Act 2007 (Qld), s 324.
[23] Supra note 2 at [62]-[63].
[24] Courts and Legal Services Act 1990 (UK), c 41.
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Muhammad Nurshazny bin Ramlan
INTRODUCTION
The enactment of the Administration of Muslim Law Act [AMLA]1 barely a few months after Singapore's independence followed the need to “make provision for regulating Muslim religious affairs”.2 AMLA only covers Muslim personal law which “governs a person's family matters”,3 such as divorce and succession or inheritance. This article will discuss (1) the faraid, or the Islamic law of succession, in the context of AMLA; (2) the persuasiveness of fatwa, or religious rulings issued by the Islamic Religious Council of Singapore (MUIS); and (3) how faraid and fatwa come together where the right of survivorship arises in the succession of a deceased Muslim's joint tenancy. As the Syariah Court’s jurisdiction is limited to adjudicating Muslim divorces, the courts referred to hereafter are the State Courts and the Supreme Court of Singapore.
I. Muslim Personal Law on Joint Tenancy
MUIS is the statutory body created under AMLA to advise on and administer Muslim law in Singapore.4 Under s 32 of AMLA, MUIS is empowered to form a Legal Committee and issue a fatwa either upon request (by private parties or the courts5) or whenever it wishes to.6 These fatwas are written by MUIS scholars on behalf of the local Muslim community. However, since a fatwa is merely a non-binding opinion,7 a court has the discretion to accept or reject the fatwa as it deems fit.
In Singapore, the faraid is governed by ss 111 and 112 of AMLA. They require the estate of “any Muslim person domiciled in Singapore dying intestate” to be subject to faraid, save for where “Malay custom” apply.8 MUIS publicly issued a fatwa in 2008 about the faraid position on joint tenancies,9 following the Supreme Court decision in Shafeeg bin Salim Talib and Anor v Fatimah bte Abud bin Talib and Ors [Shafeeg]. The fatwa opined that in the absence of express alternative arrangements or agreements such as gifts inter vivos or vows, the surviving joint tenant cannot have full ownership of the property and is only entitled to 50 percent or a “half-share” of its value. The remaining 50 percent belongs to the estate of the deceased and would be distributed according to faraid. This fatwa is supported by the faraid principle that a deceased person’s estate constitutes everything that could be considered as her assets at the time of death. These assets would be part of her estate as long as they belonged to her by personal effort, or by way of a gift or will, or by faraid.11 Assets excluded from this rule are those that have been disposed of as gifts inter vivos, by vows, or by will.
This position in faraid runs contrary to that in general law, where the central feature of joint tenancy – the right of survivorship– assumes that there are no ‘shares’ in the property. The right of survivorship prescribes that the interest of a joint tenant is extinguished upon her death, enabling her interest to be ‘survived’ by her other co–owners.12 The death of a co-owner can be reflected in the Torrens system by an update of the Land Register. This will result in the surviving co-owner becoming the registered sole-proprietor of the property.13
II. Shafeeg on the Limits to the Application of Muslim Law to Joint Tenancy in Singapore
The facts in Shafeeg involved a married Muslim couple who registered as joint tenants of a property under the Land Titles Act [LTA]14 and Land Titles (Strata) Act [LTSA].15 When her husband died intestate, the respondent widow gave the Land Registry a Notice of Death and subsequently assumed sole-proprietorship of the property. The appellants were the administrators of the late husband’s estate. Relying on a MUIS fatwa that had previously been issued to the parties, the appellants argued that the “half-share” belonging to the deceased by virtue of the joint tenancy could not be survived by the respondent and must be distributed as part of his estate.
Chan Sek Keong CJ (as he then was) presided over the case in the Court of Appeal. He recognised that while property law in Singapore is governed by common law and legislation such as the LTA and LTSA, land-owning Muslims are simultaneously subject to Muslim personal law in relation to their legal capacity as Muslims.16 His Honour went further to clarify how Muslim personal law ought to be applied in Singapore by citing case law from Singapore, Malaysia, and India: (i) that Muslim personal law only applies if expressly stated by statute; and (ii) that fatwas are not binding on the courts.
i. Muslim personal law only applies if expressly stated by statute
With the existence of AMLA, statutes will contain express provisions exempting Muslims. Chan CJ held that in absence of such provisions in the LTA and LTSA, these statutes would apply to Muslims.17 Therefore, all rules governing property ownership in general law, including the rights of survivorship in a joint tenancy, would prevail over faraid rules in Singapore.
ii. Fatwas are not binding on the courts
This is further supplemented by the assertion in Shafeeg that any fatwa issued by MUIS has no binding effect on courts. On this issue, Chan CJ followed the decision in an earlier High Court case, Saniah bte Ali v Abdullah bin Ali [Saniah],18 where LP Thean J (as he then was) opined that “the fatwa is merely an opinion of the Majlis and is not binding on this court which has full jurisdiction to decide on the matter in issue. What is before me is not really a point of Muslim law on which the Majlis is empowered under s 32 to issue the fatwa.”19 On this reasoning, Thean J rejected a prior MUIS fatwa20 and held that a statutory trust created by the CPF Act prevailed over the application of Muslim law to the fund in question.
Chan CJ in Shafeeg also explained that the MUIS fatwa cannot be binding especially in Saniah and Shafeeg because they were not obtained by the court, but by request of the private parties themselves. As such, they “will not ordinarily have the same standing”.21 It was acknowledged that there was a likelihood of these parties “framing a question based on assumed or hypothetical facts” in a way that misled MUIS, with the result that fatwas were irrelevant or inconsistent with existing law.22 All these re-emphasise the status of MUIS fatwas as nothing more than expert opinion which can be rejected if deemed irrelevant by the court.
CONCLUSION
It is now clear that Muslim law in Singapore applies only insofar as statutes allow it and MUIS’ fatwas are merely non-binding opinions. With regard to joint tenancy, the LTA, LTSA and other statutes concerning land law will continue to apply to Muslims and non-Muslims alike.
However, it is also important to recognise that the conflict between faraid and general law will arise only when succession is contested in the courts. Only then will the supremacy of general law be asserted, as in the decision in Shafeeg. When the beneficiaries and inheritors of an estate accept their standing and entitlements under faraid or the ‘alternative arrangements or agreements’ as specified by the MUIS fatwa, such a conflict will not arise at all. In Shafeeg, it was the estate of a Muslim joint tenant who brought the case to court.
In common inheritance disputes involving assets like CPF money and property, where statutes governing them do not make express exceptions for Muslims, the courts can now take Shafeeg as locus classicus. In fact, the holding in Shafeeg is a clear and helpful guide from the Court of Appeal for legal practitioners in advising their Muslim clients on Muslim personal law. It is also hoped that this would result in greater care and thought being put into estate planning as well as the purchase of matrimonial property as joint tenants.
[1] (Cap 3, 2009 Rev Ed Sing).
[2] Parliamentary Debates Singapore: Official Report, vol 25 at col 245 (17 August 1966).
[3] Black’s Law Dictionary, 10th ed, sub verbo “personal law”.
[4] AMLA, s 3.
[5] AMLA, s 32(1).
[6] AMLA, s 32(6).
[7] AMLA, s 32(3).
[8] AMLA, s 112(1). See generally. MB Hooker, Readings in Malay Adat Laws (Singapore: Singapore University Press, 1970). See also Nellie SL Tan–Wong & Vipin Patel, Adat Perpatih: a Matrilineal System in Negeri Sembilan, Malaysia and Other Matrilineal Kinship Systems Throughout the World (Malaysia: Wintrac Sdn Bhd, Malaysian Affiliate, Women's World Banking, 1992).
[9] Majlis Ugama Islam Singapura, “Fatwa on the Joint Tenancy”, Office of the Mufti, online: <http://www.officeofthemufti.sg/Fatwa/joint-tenancy(2008).html>.
[10] [2010] SGCA 11, [2010] 2 SLR 1123 at [23].
[11] Wan Noraini Mohd Salim, Islamic Law of Succession: A Practical Guide To The Laws of Faraid (Selangor, Malaysia: CLJ Publication, 2012) at 7, 53-133.
[12] Kevin Gray & Susan Francis Gray, eds, Elements of Land Law, 5th ed (Oxford: Oxford University Press, 2009) at 919.
[13] John Baalman, The Singapore Torrens System (Being a Commentary of the Land Titles Ordinance, 1956 of the State of Singapore) (The Government of the State of Singapore, 1961) at 191.
[14] (Cap 157, 2004 Rev Ed Sing).
[15] (Cap 158, 2009 Rev Ed Sing).
[16] Supra note 10 at [22].
[17] Supra note 10 at [44].
[18] [1990] SGHC 40, [1990] 1 SLR(R) 555.
[19] Ibid at [17].
[20] This fatwa was issued by MUIS in 1990 to clarify that under faraid, CPF moneys belong to the estate of the deceased CPF member.
[21] Supra note 10 at [65].
[22] Supra note 10 at [64]-[65].
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Goh Hui Si Priscilla
Announced in January 2015, the Vulnerable Adults Act [the Act] is slated for possible implementation within the year. The purpose of the Act is to legislate for the provision and protection of “vulnerable adults” deemed unable to take care of themselves, particularly in cases of self-harm and neglect. While the Act is still in relatively early stages of development, there are a few possible issues to consider that straddle both legal and policymaking spheres. This article addresses two major issues – terminology and contextual applicability – that the author finds must be sufficiently addressed in order for the Act to function effectively in Singapore’s increasingly ageing society.
The first issue is how a “vulnerable adult” should be defined. The most straightforward element to consider would be the person’s mental state. Where an individual is rendered mentally incapable of looking after himself, his impaired decision-making abilities create a possible area of weakness wherein his actions cause harm to his health, physical self, or both. Consequently, the Act would effectively serve to protect the individual from himself during the period of impairment by, inter alia, providing appropriate social work or medical institutions with easier access to this individual. This relatively straightforward scenario complements the provisions of the Mental Capacity Act [MCA]1 by providing an alternate legal pathway for family members or relatives to step in and make decisions on behalf of mentally incapacitated individuals.
The difficulty arises, however, where an individual is not mentally incapable of looking after himself, but is still deemed to be a “vulnerable adult” under the Act. This particular concern is raised in light of then Minister for Social and Family Development Chan Chun Sing’s speech during the introduction of the Act, where he pointed out that individuals who are not mentally incapable but undergo lack of care from their families or neglect may nevertheless fall within the Act’s purview.2
The present legal position per s 3(2) read with s (6) of the MCA is that individuals retain the freedom to choose whether or not to receive medical care, unless they are mentally incapable of making decisions in their best interest. In such exceptional situations, a legally appointed donee would make decisions relating to his life to promote the individual’s personal welfare.3 Consequently, the Act’s prerogative to legislate the intervention of an individual who is not mentally incapable of making decisions related to his life begs the question of what other factors can be so determinative as to override an individual’s validly held mental capacity to make his or her own life choices. Despite the Act’s focus on protecting individuals from their own actions, a possible factor is, ironically, the individual’s own choices and actions. There is then a need for the relevant stakeholders in the legislation to consider what actions would be so detrimental to an individual so as to necessitate overriding his freedom to choose his own actions in the course of his life, especially when he is in fact mentally capable of choosing so.
The mix of contributing factors to the definitions within the Act is ultimately an extremely pertinent matter affecting the boundaries of the Act. Such boundaries must be narrow enough to ensure distinct identification of an individual considered to be vulnerable, but wide enough such that it reaches individuals who are on the margins of the targeted class of individuals. This aspect is particular crucial not just for the effectiveness of the Act itself, but to prevent social stigma from the mischaracterization of individuals eventually affected by the implementation of the Act.
An additional issue to consider is the function of the Act as part of the Ministry of Social and Family Development’s three-pronged approach towards reaching out to this targeted class of individuals. In his speech, the then-Minister strongly emphasised that the Act is to be used as a last resort, with the primary twin foci being on building family support for such individuals and strengthening community and social service support. It is evident that the Act developed as a safety net meant for cases that fall through the cracks of the twin foci. This has a significant impact on the Act’s scope. The tension lies between the need for legislation that covers a broad enough range of factual matrices in order to function as an effective legal safety net to catch cases requiring state intervention, and the need for legislation with narrow enough definitions that draw effectively enforceable boundaries.
The principal motivations behind the Act make discussion of its substance a particularly timely one in light of Singapore’s ageing population. However, given the conspicuous difficulties that legislators and drafters will face in crafting the Act, it is worth pondering if the Act suffices as a solution to the increasingly prevalent issues of self-harm and neglect, or if the relevant institutions should look towards improving present legislation to resolve these issues instead.
[1] Cap 177A, 2010 Rev Ed Sing
[2] Chan Chun Sing, Speech at MSF Committee of Supply 2015, online: Ministry of Social and Family Development <http://app.msf.gov.sg/Press-Room/Speech-at-MSF-Committee-of-Supply-Debate-2015>.
[3] Wong Meng Cheong and Ling Ai Wah and another, [2012] 1 SLR 549, [2011] SGHC 233 at [108]).
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Nguyen Vu Lan
Established in December 1995 in South Africa, the post-apartheid Truth and Reconciliation Committee (TRC) has received both praise and criticism from many legal, historical, philosophical, and political viewpoints. One of the most contentious issues about the TRC is its conditional amnesty provision1 for the perpetrators of wrongs under the apartheid, which provided amnesty on the condition that they come forward and tell the truth about what they did. Normally, one of the most common (and significant) goals of criminal law is to mete out retributive justice, punishing the offenders for the wrongs they have done. However, the conditional amnesty provision, premised on the concepts of truth and forgiveness, turned this notion on its head and pursued restorative justice instead. After all, laws are enacted for the good of the nation and the society, and here was one instance where the normal rule of law was bent to, presumably, serve the greater good of the “reconciliation” of the nation. But is the route of restorative justice really the best way to achieve national reconciliation, or would retributive justice have done a better job? This essay seeks to argue that firstly, the route of restorative justice embodied in the conditional amnesty provision was theoretically the best option in light of this aim of reconciliation, and secondly, despite many flaws, the TRC did achieve a somewhat modest reconciliation of the nation.
Truth, Forgiveness, Justice and Reconciliation
The TRC is unique in that it directly linked truth to exoneration from responsibility. Amnesty was promised to individuals guilty of politically motivated “gross violation of human rights”2 who told the whole truth about what they did. From a legal perspective, this intimate link inevitably raises questions about contentious concepts like truth, forgiveness, and justice. With the over-arching goal of national reconciliation in mind, this paper argues that the route of truth and forgiveness was theoretically better than prosecution and retributive justice.
According to Asmal et al,3 reconciliation is the “ending of the divisive cycle of accusation, denial and counter-accusation; not a forgetting of these accusations and counter-accusations, but more a settling of them through a process of evaluation”.4
One very important criticism against the TRC is that justice should be a pre-requisite of reconciliation, and not an alternative to it.5 This is the popular view in many legal systems. However, this depends on how we define “justice”. Normally, we tend to associate “justice” with “retributive justice” – the idea that justice requires the criminal to be punished proportionately to the crime he/she has done.6 Many families who had lived through the apartheid system opposed the TRC precisely because it was not meant to mete out retributive justice.
However, the TRC may well be in right in disassociating justice with retribution. One limit of retributive justice is that it may never be enough. Punishing the apartheid perpetrators cannot bring the victims back, and because of the lack of the death penalty in South Africa, the punishments would never be proportionate to the crimes (many of which were murder). Furthermore, there is always the risk of families of victims taking retributive justice into their own hands if they remain unsatisfied with the punishment meted out by the state. Reconciliation with the past would then be all the more difficult.
Another issue with retributive justice is that in the apartheid conflict where there were human rights abuses on all sides, it was difficult to assign blame and thus punishment to an individual. To quote Miriam Aukerman,7 “the central premise of individual responsibility portrays defendants as separate people capable of autonomous choice—when the phenomena of mass atrocities render that assumption at best problematic”. Many perpetrators of violence might have believed that they were acting for a just cause – and this was true for both pro-apartheid and anti-apartheid perpetrators. Although this does not mean that their actions were justified, it does show that retributive justice in this case might be too rigid an option. It might even cause uproars and protests from both sides, which would severely damage the reconciliation efforts.
Perhaps the TRC process was exploring justice in a more magnanimous form with reconciliation in mind – restorative justice, which “points beyond conventional retribution into a realm where justice and mercy coalesce”.8 This is a concept not too often acknowledged in traditional courts of law, but it should be looked at in the context of a freshly wounded nation wanting to start over. This restorative justice was supposed to be brought about by truth and forgiveness. When the victim forgives the perpetrator, the two can reconcile and move on together. Archbishop Desmond Tutu, chairman of the TRC, emphasized the concept of Ubuntu,9 and called for forgiveness, which would lead to peace and reconciliation. This forgiveness can only be brought about by truth. On a more symbolic level, because the apartheid system was founded on a lie (that blacks were inferior to whites), a truth commission would signify the dawn of a new day. Truth hurts but it also heals, and knowing what happened to their family members might bring a sense of closure to the victims. As Benedict Anderson argues, “The formulation of a shared national past is simultaneously the basis of the assertion of a shared national future.”10 With truth comes understanding, and with understanding comes peace and hope for a new future. Reconciliation would then be achieved, because both sides in the apartheid conflict would be able to move on with their lives, having understood and hopefully made peace with their past.
Evaluation of the Amnesty Provision
While the idea behind the TRC has been argued to be the best option for national reconciliation, in reality the TRC did not achieve its ideal completely. There were many flaws that meant that the TRC came rather short of what it wanted to achieve. However, overall, it did lead to some kind of modest national reconciliation.
One flaw of the TRC is that it had a very narrow focus. The amnesty is only provided for those who committed “gross violation of human rights”. This results in the perpetrators – more of the “trigger-pullers” rather than the political masterminds – having to bear the collective shame of the apartheid system. At the same time, the TRC also allowed those who committed wrongful acts under the apartheid that affected others socially and economically to get away. This ignores the various ways in which the apartheid system damaged human rights and human dignity, and even allows whites who did not commit murderous acts (but who discriminated blacks in other ways, and otherwise benefited from the apartheid system) to think of themselves as morally untainted by apartheid. This could be seen as a grave failure of the legal system, as certain wrongs went unpunished and moreover even “tolerated” or “glossed over”.
More importantly, the narrow focus meant that the TRC’s goal of documenting a collective history – by collecting “truths” from the perpetrators of violence – fell short. According to Piers, there was much disagreement over whether the whole truth had been told or not.11 The apartheid system was not just about physical violation of human rights; it was also about political, social and economic discrimination, and “truth” cannot be attained without these missing pieces. For instance, no senior member of any political party – the “masterminds” – came forward and told their versions of the truth. For those who did apply for amnesty, there was doubt that they only told the version that would fulfil the amnesty requirements.
This partial failure to collect truth made forgiveness and closure difficult. Many victims left the process feeling more bitter and frustrated because they felt that the perpetrators did not provide the whole truth of their accounts, and yet received amnesty. Oftentimes, the opposite of closure happened. For example, Sylvia Dlomo-Jele, the mother of murdered activist Sicelo Dlomo, believed that the perpetrators of her son’s murder disclosed the truths selectively to fulfil the amnesty requirements. She refused to forgive, as did many families who believed that the perpetrators had told half-truths.12 Coupled with the fact that there was little or no follow-up investigation of the perpetrators’ accounts, there was a justifiable feeling that TRC was not living up to its promises.
The lack of a requirement for remorse also made the goal of forgiveness difficult sometimes. When victims met perpetrators and the perpetrators showed no repentance, the victims had to re-live the horrors of the past again without anything to comfort them. Admittedly, there were valid reasons why remorse was not required, because it would have deterred many people or forced people to put on a façade, thus impeding the goal of acquiring truth. Also, if it did, it would have devalued the moments when genuine remorse was present. To quote Peter Storey:13
In one case, a police officer who masterminded the butchering of a number of families in an attack on a rural village faced his victims: “I can never undo what I have done,” he said. “I have no right to ask your forgiveness, but I ask that you will allow me to spend my life helping you to rebuild your village and put your lives together.” In such moments, anger at the unrepentant is superseded by a glimpse of something more. Out of the horrors of the past, the TRC makes space for grace, and the potential for newness in South Africa shines through.
There were other weaknesses of the TRC as well. One of them is the fact that very few cases that were rejected for amnesty were actually followed up in criminal or civil courts. Effectively, there was not much difference between those who did receive amnesty (i.e. those who had to go through all the public hearings and spectacles), and those who did not (i.e. common criminals). This, again, shows a defect in the implementation, if not the substance, of the amnesty provision.
However, there were indeed things that the TRC did well. One of them is the fact that the TRC did not discriminate between black and white perpetrators – both sides committed acts that violated human rights. Justice and the law should be impartial, and in this respect, they were. The commission considered amnesty applications from all sides, from the apartheid state to the liberation forces, including the African National Congress. Some have decried this as a failure to make a moral distinction between one side which fought for equality and one side which were the oppressors, but such criticism treads dangerously close to the realm of victor’s justice. Indeed, this aspect of the TRC went far in the goal of reconciliation precisely because it acknowledged the fact that both sides did play a part in the brokenness of the nation, and this very acknowledgement was necessary for both sides to move on. It also sent out the important message that a morally justified struggle does not justify immoral and indiscriminate violence, which will remind the nation not to repeat its history.
Another more fundamental requirement was that the amnesty was conditional upon the perpetrators telling the truth. People were made to realize that their tormentors do not just get away freely – that “there is a difference between impunity, implying escape from accountability, and amnesty, which carries profound inward and social consequences”.14 These perpetrators will have to bear the shame for the rest of their lives, and will have to face their families, their friends, their communities with a black mark. The shame and the social disgrace may be nothing compared to what they did, but perhaps it was enough to restore the nation – not as harsh as retributive justice, but not too lenient either.
For the few perpetrators who truly felt remorseful, the TRC helped in reconciliation in another way: it somewhat cleansed their conscience. At least they came forward, told the truth, and perhaps had the chance to apologise to the victims. Some will live with shame for the rest of their lives, but some will live with grace, not letting their past define them and being able to move forward after “purging” their guilty conscience.
Conclusion
With all the flaws and strengths of the TRC, whether it has achieved its goal of national reconciliation is still debatable. However, with all the public hearings and media surrounding the TRC, perhaps it is fair to say that TRC has achieved its goal to a moderate extent. Many accounts of the truth have been provided in the TRC Report in 1997, allowing many to move on with their lives. This is an interesting instance where the law, by meting out restorative justice instead of retributive justice, might have achieved the greater good. Of course, there is no easy answer to the issue of whether restorative or retributive justice is better in the grand scheme of things, because truth and justice and reconciliation are rather intangible concepts that cannot be easily measured or seen. South Africa is an interesting case study for this question, but it leaves us with more questions than answers, and only time will tell what kind of justice or “mixture” of kinds of justice is required of the legal system in such a scenario.
[1] Promotion of National Unity and Reconciliation Act, No 34 of 1995, Cap 4.
[2] Promotion of National Unity and Reconciliation Act, No 34 of 1995, s 1(1).
[3] Kader Asmal, Louise Asmal, Ronald Suresh Roberts, Reconciliation Through Truth: A Reckoning of Apartheid's Criminal Governance, (Cape Town: David Philip Publishers, 1996), 46.
[4] Emphasis by author.
[5] Peter Storey, “A Different Kind of Justice: Truth and Reconciliation in South Africa” (1997) The Christian Century.
[6] Antony Duff, “Legal Punishment” (2003) The Stanford Encyclopedia of Philosophy.
[7] Aukerman Miriam J., “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice” (2002) 15 Harvard Human Rights Journal 39-97.
[8] Supra note 5.
[9] “A person with Ubuntu is open and available to others, affirming of others, does not feel threatened that others are able and good, based from a proper self-assurance that comes from knowing that he or she belongs in a greater whole and is diminished when others are humiliated or diminished, when others are tortured or oppressed.” (Tutu, Desmond, No Future Without Forgiveness (1999)).
[10] Wilson Richard A., “The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State” (Cambridge: Cambridge University Press, 2001).
[11] Piers Pigou, “False Promises and Wasted Opportunities? Inside South Africa’s Truth and Reconciliation Commission” in Deborah Posel & Graeme Simpson (eds), Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission (Johannesburg: Witwatersrand University Press, 2002), 37.
[12] Ibid.
[13] Supra note 5.
[14] Supra note 5.
On the 30th of September 2015, the Singapore Law Review was honoured to have the Honourable Justice Quentin Loh, Judge of the Supreme Court of Singapore, deliver our 27th Annual Lecture. His lecture was titled “The Singapore International Commercial Court: Entrenching Singapore’s Position as a Hub for Dispute Resolution”
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Kelvin Ho
The Spandeck test established in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency1 [Spandeck] laid out a clear framework to determine duty of care in tort of negligence cases, and was further extended to apply to cases previously brought under the separate nominate tort of occupier’s liability in See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd2 [STSK]. This article will evaluate the effectiveness of the Spandeck test in resolving the two main issues that plagued the tort of occupier’s liability as highlighted by the Court of Appeal in STSK, namely (1) the often illogical and arbitrary static-dynamic dichotomy, and (2) the invitee-licensee-trespasser trichotomy.
A brief outline of the Spandeck test involves the threshold stage of factual foreseeability, followed by the first stage of legal proximity between the plaintiff and the defendant to find a prima facie duty of care imposed on the latter, and then the second stage of whether there are any negating policy reasons to disaffirm this duty of care. Although it is to be applied incrementally by referring to analogous cases at each stage, the court is allowed to establish new categories of duty where appropriate.
The first problem of the static-dynamic dichotomy regarding the tort of occupier’s liability is that it is never always possible to clearly separate the static and the dynamic. The concept of static refers to the condition of the property while dynamic refers to the activities that take place on it. For example, in the seminal case of Australian Safeway Stores Proprietary Limited v Zaluzna3 [Zaluzna], the plaintiff suffered injuries after slipping on the wet floor of the foyer, which was part of the defendant’s supermarket. The Court opined that on one hand, the condition of the floor was due to the rain and was unrelated to any of the supermarket’s activity, but on the other, the supermarket was running a business at the exact premises where the accident occurred and the very movement of shoppers in the supermarket could definitely be seen as dynamic. As such, the factual matrix in Zalunza seemed to be equally susceptible to both classifications. The use of the Spandeck test can effectively eliminate this issue as it can now be transparently examined under the two stages of the test. With the application of the Spandeck framework, it is no longer necessary to distinguish between static or dynamic. This eliminates the arbitrariness and difficulty of the static-dynamic dichotomy that plagued the tort of occupier’s liability previously.
The second problem addressed by the Spandeck test is the invitee-licensee-trespasser trichotomy, which only arises when the case has been established to be one under the static category. The issue with this trichotomy is that “first (from the viewpoint of logic), it is potentially ambiguous whether an entrant is to be classified as an invitee, a licensee or a trespasser; and second (from the viewpoint of practice), the distinctions between the categories could turn on inconsequential details that potentially lead to injustice”, as opined by V K Rajah JA4. In eliminating the preliminary issue of the static-dynamic dichotomy as explained in the preceding paragraph, the Spandeck test effectively nips this problem in the bud. However, the Spandeck approach is not without its flaws in resolving cases of occupier’s liability.
When the Court first subsumed the tort of occupier’s liability under the general tort of negligence in STSK5, V K Rajah JA emphasized the control of the premises as the key factor in determining a prima facie duty of care in most cases. Admittedly, the concept behind the static-dynamic dichotomy and the invitee-licensee-trespasser trichotomy is intertwined with the idea of control, since there tends to exist a higher degree of control over the static rather than the dynamic, and similarly over an invitee or licensee as opposed to a trespasser. However, the factor of control was not explicitly examined vis-à-vis the Spandeck stages: in particular, whether control should be examined under the proximity stage or the policy stage was left unclear by the Court. Control can be discussed either way: in the proximity stage as the “defendant’s control over the source of the risk of harm to the claimant”, or in the policy stage as the defendant’s control over “a class of individuals of which the claimant is a member”, as noted by Professor David Tan in The Phoenix Rises: Resurrecting Occupier’s Liability Within The Negligence Framework6. Thus, there remains a grey area on whether the factor of control should be examined under the proximity or policy limb of the Spandeck test and this will affect future applications of the test in cases of occupier’s liability.
Assuming control is to be studied in the first stage of proximity, control itself is also insufficient to impose a prima facie duty of care, contrary to what was suggested in STSK that “control of the premises concerned is a sufficient foundation per se for imposing on an occupier a prima facie duty of care under the Spandeck approach”7. Other factors such as the occupier’s knowledge of potential entrants entering onto its controlled premises and the vulnerability of such entrants must be considered in light with the factor of control. For example, in cases where the occupiers are aware of the high possibility that children, who are usually deemed vulnerable, may trespass onto their controlled premises, there should be a closer relationship between the occupier and the trespasser. Thus, it is insufficient to use control as the only factor when considering proximity.
V K Rajah JA made an exception to this by stating that the control factor is alone sufficient when dealing with cases involving lawful entrants8. However, making this reference only seems to bring back remnants of the invitee-licensee-trespasser trichotomy which the Spandeck test initially tried to dismiss, as lawful entrants can be seen as an invitee or a licensee. In fact, the distinction of lawful and residual entrants should no longer be an issue since the enquiry is effectively subsumed under the first stage of proximity in Spandeck; by examining the circumstantial relationship between the occupier and the entrant. Thus, as Sundaresh Menon CJ9 opined, it is better to take full advantage of the flexibility of the Spandeck test itself and do away completely with the distinction between lawful and residual entrants.
In conclusion, the concept of classifying the tort on occupier’s liability under the general tort of negligence, and hence the application of the Spandeck test for cases involving occupier’s liability, was only established recently in the case of STSK in 2013. Even though it was a valiant attempt to make uniform the tort of occupier’s liability via the general Spandeck test, there are still certain unresolved areas as highlighted above, owing perhaps due to the problems in force fitting an age-old tort under an already well-established two-staged test. Nonetheless, the drawbacks of the Spandeck test can still be rectified in future cases, such as clearly defining the factor of control as either a stage one or stage two consideration. Indeed, since the origins of the primary issue of occupier’s liability, being the static-dynamic dichotomy, was “not founded on logic or principle” but rather because “it is rooted in convoluted English legal history” 10, the application of a more recent and established approach such as the Spandeck test in such cases is still very much welcomed.
[1] Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency, [2007] SGCA 37, [2007] 4 SLR (R) 100.
[2] See Toh Siew Kee v Ho Ah Lam Ferrocement, [2013] SGCA 29, [2013] 3 SLR 384.
[3] Australian Safeway Stores Proprietary Limited v Zaluzna, [1987] HCA 7, [1987] 162 CLR 479.
[4] Supra note 2 at [48].
[5] Supra note 2 at [100].
[6] [2013] 21 TLJ 59 at page 70.
[7] Supra note 2 at [100].
[8] Ibid at [80].
[9] Ibid at [130].
[10] Ibid at [21].
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Laura Lim
In EFT Holdings, Inc v Marinteknik Shipbuilders (S) Pte Ltd1 [EFT], the Singapore Court of Appeal (SGCA) discussed the tort of unlawful means conspiracy. While the Court addressed several interesting questions, much was ultimately left to be decided in future cases. Although arguably the more prudent approach, this leaves the tort of unlawful means conspiracy in a tangled mess. Of all the unanswered questions about the tort, one strikes me as particularly fundamental, but was scarcely addressed in EFT – precisely what constitutes “unlawful means”? At first blush, the answer may seem simple enough, but the history of the tort and its development in other jurisdictions suggest that there is more than meets the eye. Before we proceed, it may be useful to understand the elements of unlawful means conspiracy as helpfully laid out by the SGCA in EFT2:
The scope of “unlawful means” therefore evidently relates to the substance of the third element. This requirement of unlawfulness is particularly crucial to distinguish unlawful means conspiracy from conspiracy by lawful means, which is a separate tort requiring not only that the alleged conspirators had the intention to injure the plaintiff (as per element (2)), but that they did the acts with the predominant intention of injuring the plaintiff.
In considering the substance of “unlawful means”, perhaps the best starting point is a statement by Lord Walker in the case of Total Network SL v Revenue and Customs Commissioners3, cited with approval by the SGCA in Beckkett Pte Ltd v Deutsche Bank AG4, that “unlawful means, both in the intentional harm tort and in the tort of conspiracy, include both crimes and torts (whether or not they include conduct lower on the scale of blameworthiness)”. This statement not only (1) suggests that the content of “unlawful means” includes “crimes and torts”, but also (2) reminds us of similar torts involving “unlawful means” such as the intentional harm tort. These will be examined in turn.
Firstly, specifying the content of “unlawful means” to include “crimes and torts” seems intuitively fair. Given that this is not an exclusive definition, however, it remains unclear if other forms of “unlawful” behaviour can also be considered. Pertinently, it remains to be determined if a breach of contract or a breach of confidence constitutes unlawful means for the purpose of establishing unlawful means conspiracy (as has been held in several High Court cases5 in which the breaches were simply assumed to be unlawful). Given the existence of the tort of lawful act conspiracy, which has a higher threshold for establishing intention, it is submitted that as long as the distinction between lawful and unlawful conspiracy is preserved, a breach of contract or confidence would have to be considered “lawful” so as not to render the tort of lawful act conspiracy devoid of substance and, consequently, otiose6.
Secondly, the question of what constitutes “unlawful means” may ultimately turn on the larger issue of whether the tort of unlawful means conspiracy can be considered a species tort to the genus of a broader unlawful means tort or the general body of economic torts such as conspiracy, indirect interference with contract, and intimidation. This issue is relevant to the discussion about “unlawful means” because the term is often an element that requires definition in these torts. While the question of whether to consider the torts together was discussed by the SGCA in EFT, the court eventually made no definite pronouncement. The furthest the court went was to note that while economic torts were traditionally understood as being related, this view has since been rejected by the House of Lords in OBG Ltd v Allan7 [OBG] on the basis that each tort within the supposed “genus” is in fact supported by a distinct underlying rationale.
It would be helpful for the SGCA to clarify whether or not a unified body of economic torts can be said to exist in Singapore. If the English position in OBG is accepted, the task of clarifying the content of “unlawful means” in the tort of conspiracy becomes much less daunting, since courts would no longer have to consider the many potential knock-on effects on other doctrines. Conversely, if Singapore courts reject the English position and recognise a unified doctrine of economic torts, it becomes all the more critical to develop a robust definition of “unlawful means” to apply uniformly to the whole body of economic torts for the sake of clarity and doctrinal coherence.
Until then, this area remains mired in uncertainty.
[1] [2013] SGCA 64, [2014] 1 SLR 860.
[2] Ibid at [112].
[3] [2008] UKHL 19, [2008] 1 AC 1174.
[4] [2005] SGCA 34, [2009] 3 SLR (R) 452 at [120].
[5] See The Monarch Beverage Company (Europe) Ltd v Kickapoo (Malaysia) Sdn Bhd [2009] SGHC 55; Nagase Singapore Pte Ltd [2007] SGHC 169, [2008] 1 SLR(R) 80; Clearlab SG Pte Ltd v Ting Chong Chai [2014] SGHC 221, [2015] 1 SLR 163.
[6] See Lee Pey Woan, "A Rare Case of Conspiracy by Lawful Means", Singapore Law Blog (25 December 2014) (http://www.singaporelawblog.sg/blog/article/72), in which Lee notes that in SH Cogent Logistics Pte Ltd v Singapore Agro Agricultural Pte Ltd [2014] SGHC 203, “possibly the first and only instance of lawful means conspiracy in Singapore”, the means employed by the defendants were “not, on closer examination, entirely lawful in nature”.
[7] [2007] UKHL 21, [2008] 1 AC 1.
