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    11:49 PM Debby Lim (Partner, Shook Lin & Bok LLP) and Jonathan Muk (Justices' Law Clerk, Supreme Court of Singapore)

    Equitable Remedies in Commercial Litigation

        

    Introduction

    On 5-6 March 2015, we attended the “Equitable Remedies in Commercial Litigation” conference which was organised by the Singapore Academy of Law in collaboration with the Chancery Bar Association. The inaugural joint conference in 2013 was a tough act to follow, but this year’s conference proved to be just as insightful and engaging. 

    The conference programme featured various plenary sessions, panel discussions and workshops presented by a stellar line-up of speakers, comprising both established names and up-and-coming talent from the local legal community in Singapore and the Chancery Bar of England and Wales.

    The event, which lasted a day and a half, traversed the similarities and differences between the English and Singapore positions on proprietary remedies, financial equitable remedies and non-financial equitable remedies, and this report sets out selected vignettes from the conference. In particular, we provide a précis of the keynote addresses by the Honourable the Chief Justice Sundaresh Menon and The Right Honourable Lord Justice Michael Briggs. 

    Day One

    Menon CJ compared the approaches taken in Singapore and the UK. He concluded that Singapore lawyers are no less ingenious than their counterparts in the UK. In both jurisdictions, they are equally able to champion equity’s ability to militate against the rigours of the common law, as they are to vigorously contest equity’s intrusion when the need arises. The strategies employed by counsel when advocating for or against the development of equity seem to transcend jurisdictional idiosyncrasies. He suggested that the divide that follows upon Chancery specialisation is less about substantive law and more about methods, processes and analytical approaches. 

    As for the approach of the Courts in the respective jurisdictions, Chief Justice Menon pondered whether the maintenance of a distinct Chancery Division encourages a certain view of equity and its development – an emphasis on the doctrinal difference between equity and common law rather than the achievement of the “just result” on the facts of the case? He also posed another rhetorical question as to whether a countervailing argument arises that the seemingly less disciplined or perhaps more fluid and dynamic Singapore approach, in treating the streams as one and the same, will end up muddying the analytical waters?

    Menon CJ concluded that the courts, while in some instances different in their approach to equitable remedies, generally have much to learn from one another. The Singapore courts have benefited greatly from the rich English jurisprudence and history. The English courts, too, have considered the Singapore approach from time to time. 

    We attended the Concurrent Session on Proprietary Estoppel which featured the Singapore Law Blog’s very own Assistant Professor Yip Man alongside practitioners from England and Singapore. From the English angle, the issues discussed included whether more intrusive equitable intervention is appropriate in the domestic as compared to the commercial context. Whether the dichotomy is defensible is certainly a matter of debate. Another interesting issue discussed was whether an equity arising from proprietary estoppel is a caveatable interest. A person who has obtained an injunction in respect of an estate or interest in land would have a caveatable interest. In this regard, this is something lawyers advising clients who are seeking to assert proprietary estoppel may wish to consider.  

    The hypothetical problem featuring the characters Mr Tan, Mr Bean, Betty and Chloe and their interests in Greenacres engendered a vivaciously stimulating discussion. The attendees were divided into groups advising different characters. Feisty debate arose as to whether Mr Tan’s assurance to Betty that she will have the house was clear and unqualified enough to make out a case for proprietary estoppel!

    At the end of the day, we attended Concurrent Session 2B on account of profits. The session touched on two significant English courts judgments concerning constructive trust and account of profits that were decided last year: FHR European Ventures LLP v Cedar Capital Partners LLC [2015] AC 250 (“FHR”) and Novoship (UK) Ltd v Mikhaylyuk [2015] 2 WLR 526. FHR marked a return to orthodoxy. The United Kingdom (“UK”) Supreme Court held that a bribed agent holds a bribe on constructive trust for his principal without needing to show that the bribe came from assets belonging to the principal. This has practical significance in the event of the agent’s insolvency, as a proprietary remedy would enable the principal to trace or follow the proceeds and take priority over the agent’s creditors. 

    Day Two

    The second day was no less an intensive event than the first and started with an opening address by The Right Honourable Lord Justice Michael Briggs of the Court of Appeal of England and Wales. His speech touched on the issue of equity’s relevance – in today’s world where the emphasis was on commercial certainty and practicality, did it really matter if the remedy was equitable or not? His answer was an unequivocal yes for four main reasons: (a) deep roots; (b) flexibility; (c) refreshment; and (d) conscience. 

    First, Briggs LJ gave the example of the interim injunction, which is dispensed on the basis of the balance of convenience test and inspired by equitable principles and said that it reminded one of the “treasure chest” of remedies in equity when its history was traced. 

    Second, Briggs LJ commented that equity is still relevant as it provides for a toolkit of flexible remedies to achieve practical justice beyond the realm of damages and money. Most equitable remedies are dispensed by the court on a discretionary basis, and the example of laches testifies to that – where there is a delay, the court will look at the reason and motive for a party’s delay before deciding whether or not a claim was barred. 

    Third, Briggs LJ remarked at equity’s ability to change with the times and reflected upon the time when the Chancery Division used to be referred to as the “property court”. Today, however, the work of the Chancery courts has become international in scope and regularly involves international disputes concerning the assets of wealthy families. He also mentioned the ascent of the Quistclose trust and the receding relevance of the presumption of resulting trust as evidence of how equity has shown its ability to move on with the times. 

    Finally, Briggs LJ noted equity’s ability to add a dimension of humanity into the law. This is something which no rule could ever achieve and which is not matched by any other system of law. This is because in some circumstances, black letter compliance is insufficient and equity provides a framework within which fairness can be balanced with the need for predictability in the law. 

    We attended the breakout session dealing with rectification and rescission. More questions than answers were given which indicate that contentions run deep in this area of the law. Some interesting questions raised by the speakers pertained to how much evidence should be admitted for the purposes of equitable rectification in the case of mistake and misrepresentation. In this regard, Singapore Law Blog’s very own Associate Professor Goh Yihan noted a key difference between Singapore and the UK in that the former had to grapple with the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”) while the latter did not. He also suggested that based on the drafting of the EA, the drafters seemingly intended for the EA to apply only to common law rectification.

    Conclusion

    The sonorous discussions demonstrate that equity is an area of the law which “reveals passions of force uncommon in the legal world” (per Lord Justice Pill in FHR [2013] EWCA Civ 17 at [61]) and which may not have any “plainly right or plainly wrong answer” (per Lord Neuberger in FHR [2014] UKSC 45 at [9]). The aim of the conference is for lawyers to better understand and identify both the commonalities and differences of laws amongst the various jurisdictions. This may lead to an exchange of ideas and cross-pollination in the law. All in all, the conference raised many issues for the participants to think about. Moving forward, it is hoped that some of these thoughts will translate into serious legal arguments before the courts in both the UK and Singapore. That, perhaps, would be the conference’s lasting legacy. 

    * This blog entry may be cited as Debby Lim and Jonathan Muk, "Equitable Remedies in Commercial Litigation", Singapore Law Blog (8 April 2015) (http://www.singaporelawblog.sg/blog/article/102)

    ** The opinions contained in the commentary reflect the authors' own views and are not to be understood as reflecting the views of the authors' employer.

    *** A PDF version of this entry may be downloaded here

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