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11 March 2019

Singapore Academy of Law Distinguished Speaker Lecture 2018 – “Certainty versus Creativity: Some Pointers towards the Development of the Common Law”

Sir Geoffrey Vos

Published on e-First 11 March 2019

In an October 2017 lecture entitled “Contractual Interpretation: Do Judges Sometimes Say One Thing and Do Another?”, I pointed out that the law on contractual interpretation as laid down in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 had not survived the two recent UK Supreme Court decisions in Arnold v Britton [2015] 2 WLR 1593 and Wood v Capita Insurance Services Ltd [2017] AC 1173. In a May 2018 lecture entitled “Preserving the Integrity of the Common Law”, I gave a number of examples of recent UK Supreme Court decisions, with which the highest courts in other Commonwealth common law jurisdictions had not agreed. I suggested that the development of the common law should be incremental and that judges should be cautious about seismic changes or approaching landmark cases with a blank sheet of paper. In this lecture, there is a return to the theme of the appropriate development of the common law, to ask how crucial certainty really is to the common law, as compared to impeccably reasoned judicial creativity. The lecture looks at some recent examples, including a further consideration of Patel v Mirza [2016] UKSC 42; [2017] AC 467 and Ochroid Trading v Chua Siok Lui [2018] 1 SLR 363.