The Chimaera of the Test Case
Officially, lawyers read judgements to find the law. However, it’s often far more interesting to see how your peers get into trouble. Sometimes it’s a cautionary tale hiding between the lines. Judges mostly tend to be polite and cautious about their criticisms. It is a community, after all.
This judgement, however, is dedicated to criticising the lawyers on record. In short, liquidators appealed a case to the court of appeal, our highest court. They would like to advance a significant legal point in their area of law. The Court of Appeal obliges by appointing a court of five judges, more than the usual number.
The case starts to stink when the respondent fails to file arguments in the appeal. They wouldn’t even argue in the hearing as an ordinary party would. If pressed, they would say that they would adopt their case in the court below, meaning there is nothing more to say.
Oh, and if they were pressed even further, the respondents agreed to say that the liquidators and the respondent settled the dispute.
In dismissing the appeal, the Court of Appeal repeated the time-honoured adage that the court does not rule on “hypotheticals”. There has to be a live dispute with more than two sides fighting for different conclusions.
Some people might wonder why the court has to be so anal about this. If a party needs help, why can’t the court assist? In this case, the liquidators were concerned about the operation of a rule of law which affected their work. Beyond the dispute between two parties, some people need answers.
In this case, however, the requirement of a live dispute was critical. As only one party argued the appeal seriously, the court is deprived of the arguments against the appeal. The legitimacy of such a holding is likely to be always in question.
It’s easy to argue that counsel went too far in this case. However, it’s difficult not to sympathise with why they did it. Due to the scarcity of cases that come to the courts and go all the way to a written judgement with legal ramifications, being involved in a “test” case is critical for ambitious lawyers. Perhaps they thought that this would be the case. As one party goes into liquidation, the motivations of the other party to continue fighting changes. A settlement, whatever the merits of the case, is forthcoming. The test case is gone.
Personally, the rules for determining whether the Court of Appeal can be involved might be too strict. Singapore isn’t a big country where several cases, each with a different nuance, comes knocking on the Court of Appeal’s door every day. By excluding too many cases, the Court of Appeal may be depriving itself of opportunities to develop laws.
Far, far away, in another jurisdiction, an apex court finds that seeking $1 damages is sufficient for the court to hear the case. This was even the case when the defendant essentially gave up and changed its ways. It prompted this inspired dissent: “If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar.” Consider this, though: Not every case before the Supreme Court gets heard; four Supreme Court judges in the US must decide to take up a case before it can be heard.
These issues are complex and the solutions are not so obvious. The Singapore Court of Appeal is definitely trying to take on more cases and develop law. However, this one is not going to be one of them.
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