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    11:17 PM Ronald JJ Wong (Associate Director, Covenant Chambers LLC)

    Report on Tort Law Conference 2016: “Protecting Business and Economic Interests: Contemporary Issues in Tort Law”

        

    Co-organised by Associate Professor Lee Pey Woan from Singapore Management University’s Centre for Cross-Border Commercial Law in Asia, Professor Joachim Dietrich from Bond University and the Singapore Academy of Law, the conference traversed a wide range of interesting and controversial issues in tort law concerning the “economic torts”, defamation, the interface between tort and statute, and accessory and vicarious liability.

    After the welcome address by Professor Yeo Tiong Min, SC and an introduction by the Honourable Justice Vinodh Coomaraswamy, the Right Honourable Lord Hoffmann delivered the keynote address, setting the tone and laying the landscape, for the rest of the conference. Lord Hoffmann attempted a forceful deliverance of tort law from the function of regulating business interests, arguing that the courts lack expertise and political legitimacy to be making policy in the common law.

    After the keynote address, Session 1: “Concepts and Mechanisms for Protecting Economic Interests” began with Associate Professor Roderick Bagshaw, University of Oxford, presenting on “The Economic Torts: Protecting Against Competitors, Thwarted Rivals, Fraudsters, Pirates, Protestors and Government”. Bagshaw, resonating with Lord Hoffmann on the theme of preferring legislative regulation over common law policy-making, emphasised the need for economic torts to be defined narrowly as to prevent tort law from unduly interfering with the balance of pure economic interests. This is also because the determination of reasonable conduct is politically contentious, which judges are not well suited to make.

    Next, Associate Professor Dr Jeannie Marie Paterson from The University of Melbourne presented a paper, “In the Age of Statutes why do we still turn to Common Law Torts: Lessons from the Australian Statutory Prohibition on Misleading Conduct”, examining the trend that despite the introduction of statutory prohibitions on misleading or deceptive conduct, which do not require fault and which offer a range of remedies, litigants and lawyers are still resorting to the tort of negligent misstatement. She suggests the following reasons for this trend: (i) lawyers like common law; (ii) the legislative regimes are too complex; (iii) fault-based standards are attractive in defining the scope of defendant liability; (iv) the reasoning patterns in negligence provide an attractive framework for analysing difficult cases. Paterson also highlighted the Misrepresentation Act in Singapore and RBC Properties Pte Ltd v Defu Furniture Pte Ltd [2015] 1 SLR 997 where Phang JA highlighted the difficulties with certain interpretations of s 2(1) of the Act.

    Session 2: “Protected Interests And Policies” began with Phillip Morgan, The University of York, presenting a law and economics analysis paper arguing for the introduction of statutory liability protection for volunteers in the UK non-profit voluntary sector, following similar legislation in the United States, Australia, and Ireland, in his paper “Protecting the Economic Interests of Volunteers from Actions in Negligence?”

    Following Morgan was Associate Professor Goh Yihan and Assistant Professor Yip Man from Singapore Management University presenting on “Torts and Contract in the Protection of Business Interests: Interplay, Intersection and Independence”. They offered a taxonomy to analyse concurrent liability in tort and contract arising from the same factual matrix and suggested that in many decisions, the rules for one lead to the same outcome as the other although two separate sets of logic are at play. They also discussed the issue of concurrent liability and choice of law rules in private international law, noting that the characterisation of the claim would determine the application of the contractual choice of law clause.

    In Session 3: “Vicarious & Secondary Liability”, Professor Stephen Todd from the University of Canterbury and the University of Nottingham presented on “Personal Liability, Vicarious Liability, Non-delegable Duties and Protecting Vulnerable People”. He discussed The Catholic Child Welfare Society and others (Appellants) v Various Claimants and The Institute of the Brothers of the Christian Schools (Respondents) [2012] UKSC 56 (the “CCWS”) and Cox v Ministry of Justice [2016] UKSC 10 (“Cox”) to argue that the courts are widening the doctrine of vicarious liability to cases beyond employment, to especially protect vulnerable plaintiffs. Likewise the doctrine of non-delegable duties have been formulated by Lord Sumption in Woodland v Essex County Council [2013] UKSC 66 in a way which pursues this aim.

    In “Vicarious Liability and Organisations”, Professor Christian Witting, Queen Mary University of London explored possible theories justifying vicarious liability for non-profit organisations such as in the CCWS case. He suggests that the ability of organisations to adapt to external events and implement new norms of behaviour makes them deterrable. This “deterrable organisation” theory coupled with the enterprise liability theory justifies the imposition of vicarious liability.

    In Session 4: “Economic Torts: Specific Issues In Relation To Companies”, David Goodwin from RMIT University presented on “Lawyers, Gunns and Money: An Australian Perspective on Environmental Campaigns and the Economic Torts”. He explored the development of economic torts in the changing context of labour union disputes in the 20th century to the new context of environmental activism in the 21st century. This raises the issue of how the rules and principles under the economic torts should be applied in the contest between environmental campaign groups and businesses.

    Following that, Associate Professor Lee Pey Woan, Singapore Management University, presented on “Civil Conspiracy: Issues Specific to Companies”. She explored the potential of litigants and lawyers using the tort of conspiracy to cast a wider net of defendants or reach the assets of sister companies in the light of Prest v Petrodel Resources Ltd [2013] UKSC 3, which arguably limits corporate veil-piercing. Lee explored specific issues to companies in this regard, and suggested that civil conspiracy may be a more powerful tool for liability-stretching than veil-piercing given its nebulous elements and rules.

    In Session 5, “Protecting Business Reputation”, Professor Ursula Cheer, University of Canterbury, presented “Protecting Business and Economic Interests of Media in Defamation and Privacy Law”. Cheer traced the development of public interest defences in the torts of defamation and breach of privacy, exploring how public interest has been defined and applied by the courts in ways which take into account the commercial imperatives of modern media businesses. Cheer also considered the developing threshold requirement of “serious harm” in the UK law of defamation. She consider these developments to be protective of media businesses in an otherwise risky industry.

    Associate Professor Hilary Young from the University of New Brunswick, “Canadian Corporate Defamation Actions: An Empirical Study” presented a paper based on an empirical study of Canadian defamation cases between 1973-1983 and between 2003-2013. One interesting finding is that the average quantum of damages awarded to corporate plaintiffs increased by 125% between 1973-83 and 2003-13.

    Following Young was Associate Professor Gary Chan Kok Yew, Singapore Management University, “The Right to a Good (Business) Reputation and Truth: Re-examining the Declaration of Falsity”. Chan examined the recent decision in Low Tuck Kwong v Sukamto Sia [2014] 1 SLR 639 (CA) where the Court rejected the application for a declaration of falsity. Chan argued that the concerns proffered for the rejection could be addressed and that such a remedy should be allowed. He further discussed the comparable regime under s 15 of the Protection from Harassment Act 2014.

    Day 2 began with Session 6, “Concepts and Mechanisms for Protecting Economics Interests”. Professor Robert Stevens, University of Oxford, made a forceful case in “The Non-Existence of the Economic Torts” that the economics torts are not justifiable, emphasising that private law concerns identifiable private rights. The failure to distinguish rights and loss as the touchstone for developing private law remedies has resulted in the unjustifiable continuing existence of the ‘economic torts’.

    Professor Jason Neyers from Western University then presented a paper, “Damage as the Gist of Deceit” offering a theoretical explanation for the tort of deceit. He explores and rejects rights-based justifications such as right to truth and right to autonomy, as well as conventional morality, as theoretical bases. He suggested that the basis is the right of protection from dispossession of rights which the plaintiff already has. Damages is thus in respect of the dispossession of rights. This explains the requirement of damages as an element of deceit.

    Professor Joachim Dietrich, Bond University, presented a paper “Protecting Economic Interests using Accessory Liability: Striking the Balance in Intellectual Property”, discussing the development of accessory liability in intellectual property, particularly copyright, violations. Here again, the interface between common law and statute arose in the context of such accessory liability actions.

    In Session 7: “Competition And Statutory Torts”, Associate Professor Neil Foster, The University of Newcastle, presented “Protecting Economic Interests through the Nominate Tort Action for Breach of Statutory Duty”. Foster discussed how economic loss is the basis for different forms of statute-based tort actions, i.e. statutory torts and breach of statutory duties, and the nuances in the application of tort rules to such actions and the feasibility of breach of statutory duties actions.

    Associate Professor Burton Ong, National University of Singapore presented “The Economic Torts as a Framework for the Common Law of Unfair Competition”, offering an analysis of the economic torts in the context of unfair competition, focusing on how the common law courts have sought to demarcate the boundaries between legitimate forms of aggressive competition and unacceptable modes of “unfair competition”. He argued that there is a limited scope for an “archipelago” of economic torts to provide a framework in the common law for regulating unfair competition.

    Dr Siti Anisah, Faculty of Law, Islamic University of Indonesia (UII) Yogyakarta, Dr Trisno Raharjo, Faculty of Law, Universitas Muhammadiyah Yogyakarta (UMY) presented on the equivalent of torts under Indonesia law, which are known as ‘unlawful acts’, and unfair competition practices in “Regulation and Implementation of Unlawful Act in Indonesia Civil Code and Competition Law”. Their presentation highlighted the ambiguity as to the application of the unlawful act civil code article for the purpose of private law compensation.

    In Session 8: “Intellectual Property And Private Information”, Professor Susanna Leong, NUS Business School, in “Tort Law and Intellectual Property: Reflections on the past and Inflection points in the future” discussed tort liability rules in the context of copyright and explored the possible application of the law to new major technology trends such as mobile payments, big data and artificial intelligence.

    Assistant Professor Dr Mo, Yun-ching Jojo, City University of Hong Kong, then presented on “Misuse of Private Information as a Tort: The Implications of Google V Judith Vidal Hall”. She discussed the case of Google v Judith Vidal-Hall [2015] EWCA Civ 311 in which the English Court of Appeal recognised misuse of private information as a tort although the Court did not explain how this tort arose from the equitable doctrine of breach of confidence. It should be noted however the circumstances of the case being a case of service out of jurisdiction and thus requiring the characterisation of the claim for the purpose of the application. Mo discussed various issues arising from the acceptance of this tort, including its justifiability, its elements, and its remedies.

    At Session 9: “Negligence And Business Interests”, Associate Professor Dr Ding Chunyan, City University of Hong Kong, presented on “Misrepresentation of Accountants and Liability for Economic Loss to Non-clients: The Case of China”. Ding compared the tort of misrepresentation of accountants under a Chinese statute with the equivalent common law torts of negligence and negligent misstatement, studied how Chinese courts have interpreted and decided the Chinese equivalent of the tort and the key legal barriers to establishing liability in practice.

    In “Medical Businesses and the Boundaries of Liability for Economic Loss in Negligence”, Associate Professor Hannah Lim Yee Fen, Nanyang Technological University, examined various possible philosophical theories regarding liability for upkeep damages in respect of a negligent IVF procedure in the case of ACB v Thomson Medical Pte Ltd and others [2014] SGHC 36.

    Associate Professor Low Kee Yang, Singapore Management University, presented on “Non-Delegable Duty of Care: Woodland V Swimming Teachers Association and Beyond”, discussing Lord Sumption’s five-fold framework in Woodland v Essex County Council [2013] UKSC 66 and the recent Singapore Court of Appeal decision in MCST Plan No 3322 v Tiong Aik Construction Pte Ltd [2016] SGCA 40, which applied it in the context of independent contractors in construction.

    In Session 10: “Defences & Remedies”, Assistant Professor Iain Field, Bond University, presented on good faith defences for public servants carrying out their public duties under statutory law in “Good Faith Protections and Public Sector Liability”.

    Professor Michael Furmston, Sunway University Business School, in “Tort Claims and Ex Turpii Causa” discussed various issues arising from recent case law regarding illegality and tort actions, an undeveloped area of law. The issues he discussed include: (i) what turpis causa is for this purpose; (ii) what the necessary causal link is; (iii) what the position where both parties are implicated in the illegality is; (iv) and problems of attribution.

    Finally, the conference ended with Lord Neuberger, President of the UK Supreme Court, presenting a distinguished guest speaker lecture, “Some Thoughts on the Principles Governing the Law of Torts”. The main theme of his lecture was the pervasive issue of principles, policies and judicial functions, viz., whether courts should decide tort cases by applying principles or based on policy considerations. His thesis is that many aspects of tort law are attempts at distilling policy into principles. He offered various examples: (i) duress being no defence to tort; (ii) historical development in the law on privacy; (iii) principles which were subsequently declared to be wrong, citing the Bolam and Bolitho cases in medical negligence; (iv) principles with significant exceptions developed over time, e.g. the causation principles in the asbestos negligence cases; (v) policy masquerading as principles, e.g. the fair, just and reasonable element in English law of negligence; (vi) courts facing up to the fact that it is really policy. Lord Neuberger opined that although courts are unelected and lack expertise to make socio-economic policy determinations, nonetheless, for various reasons, legislatures may not always step in to fill the policy gaps. Where the courts deem it necessary to make law, judges will benefit from the contributions of the academy.

    The conference was a treat for the author and surely, all the other participants, as it brought together leading thinkers and jurists to dialogue on the latest developments and issues in tort law. Whatever our intellectual predilections about the role of the judiciary in tort law or the justifiability of the economic torts, judicial development of tort law in the context of business and economic interests are likely here to stay in the foreseeable future. Far from the deliverance of tort law from the function of regulating business interests, it appears then that the law of tort (“or is it the law of torts?”, as Lord Neuberger mused in his lecture) will continue to run its course through the tributaries and streams of our social-economic life, demarcating boundaries in a plethora of human and organisational interests.

    * This blog entry may be cited as Ronald JJ Wong, “Report on Tort Law Conference 2016: ‘Protecting Business and Economic Interests – Contemporary Issues in Tort Law’” (8 September 2016)  (http://www.singaporelawblog.sg/blog/article/169)

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

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