Case Details
- Citation: [2009] SGHC 270
- Title: Fish & Co Restaurants Pte Ltd v MFM Restaurants Pte Ltd and Another
- Court: High Court of the Republic of Singapore
- Date of Decision: 26 November 2009
- Coram: Belinda Ang Saw Ean J
- Case Number(s): Suit 670/2005, RA 152/2008, 153/2008
- Tribunal/Procedural Context: Appeal and cross-appeal arising from an Assistant Registrar’s assessment of damages following a consent judgment on liability and injunction
- Plaintiff/Applicant: Fish & Co Restaurants Pte Ltd (formerly known as O.B. Singapore Operations Pte Ltd)
- Defendants/Respondents: MFM Restaurants Pte Ltd and Low Theng Yong Dickson
- Legal Area(s): Damages (assessment), remoteness, contractual breach; expert evidence in damages assessment
- Key Topics: Damages – Assessment; Damages – Remoteness; Damages – Rules in awarding; Ascertainment difficult or impossible
- Counsel for Plaintiffs: Tony Yeo and Rosalynne Asmali (Drew & Napier LLC)
- Counsel for Defendants: Daniel John and Marc Wang (Goodwins Law Corporation)
- Judgment Length: 19 pages, 11,691 words
- Decision Date (Judgment Reserved): 26 November 2009
- Related Proceedings Mentioned: Suit 257 of 2004 (against Dickson); Suit 670 of 2005; consent judgment dated 27 November 2006; AR decisions delivered on 28 January 2008 and 4 April 2008
Summary
Fish & Co Restaurants Pte Ltd v MFM Restaurants Pte Ltd and Another concerned the assessment of damages after the defendants consented to judgment on liability for breaching restrictive undertakings contained in a settlement deed. The undertakings related to the defendants’ use of branding elements and culinary presentation associated with Fish & Co, including serving pans, slogans and jingles, certain phrases used in menus and marketing, and the use of a “garlic lemon butter sauce” that was required to be replaced with a sufficiently different sauce.
At the damages assessment stage, the Assistant Registrar awarded Fish & Co a total sum of $72,688 (with interest and indemnity costs) for two heads of loss: (i) loss of profits during the breach period (August 2005 to January 2007) and (ii) “post breach” or “springboard” loss of profits from February 2007 onwards. Both parties appealed: Fish & Co argued the damages were too low, while MFM and Dickson challenged the entire assessment. The High Court (Belinda Ang Saw Ean J) addressed the proper method for quantifying loss of profits, the extent to which the breach caused the claimed loss, and the role of expert evidence where precise quantification is inherently difficult.
What Were the Facts of This Case?
Fish & Co Restaurants Pte Ltd operated a chain of seafood restaurants in Singapore under the “Fish & Co” brand. MFM Restaurants Pte Ltd operated seafood restaurants in Singapore under the “The Manhattan Fish Market” brand. The dispute centred on MFM’s first restaurant, opened at Plaza Singapura on 20 May 2005.
The second defendant, Low Theng Yong Dickson (“Dickson”), had previously been employed by Fish & Co as its operations manager. Fish & Co alleged that Dickson, before resigning, took, used, and divulged confidential information, including a guide to secret recipes, cooking tips, and kitchen operations unique to Fish & Co, in an apparent attempt to establish “The Manhattan Fish Market” restaurants in Malaysia. Fish & Co commenced Suit 257 of 2004 against Dickson on 30 March 2005. That suit was later discontinued following a settlement.
Although MFM and three Malaysian companies were not named as defendants in Suit 257, they became parties to the settlement. The settlement terms were recorded in a Settlement Deed dated 27 April 2005 (“the Deed”). The Deed contained undertakings by the defendants under cl 3, which were central to the later damages assessment. These undertakings included: (i) not using pans identical or similar to those used by Fish & Co within four months; (ii) not using slogans and/or jingles identical or confusingly similar to Fish & Co’s; (iv) not using certain words and phrases described in Schedule 3 in menus, websites, promotional materials, and other documents (subject to a proviso that Fish & Co did not have exclusive rights to certain individual words); and (v) within three months, using a completely different garlic lemon butter sauce (the “MFM Sauces”) rather than Fish & Co’s “O.B. Sauces,” with the difference required to relate to taste and ingredients.
Approximately five months after the Deed was signed, Fish & Co filed Suit 670 of 2005 on 20 September 2005 against MFM and Dickson for breach of cl 3. Fish & Co alleged that its sales continued to be affected by the defendants’ deliberate and calculated breach of the undertakings. On 27 November 2006, on the first day of trial, MFM and Dickson consented to judgment on liability, an injunction order mirroring the undertakings, and an order that damages be assessed. The present appeal and cross-appeal therefore concerned only the assessment of damages by the Assistant Registrar.
What Were the Key Legal Issues?
The primary legal issue was how to assess damages for breach of contractual undertakings where the plaintiff’s loss of profits must be inferred from commercial data and where multiple factors may have contributed to sales performance. The court had to decide whether the Assistant Registrar’s approach to quantifying loss—particularly the percentage attribution of loss to the breach and the selection of comparator outlets—was correct in law and supported by the evidence.
A second issue concerned remoteness and causation in damages: to what extent could Fish & Co recover profits lost during the breach period and “springboard” losses after the breach ended. This required the court to consider whether post-breach losses were sufficiently linked to the breach and whether the claimed continuation of loss was a foreseeable consequence of the defendants’ conduct.
Third, the case raised the evidential and methodological question of how the court should treat expert evidence in damages assessment. Where precise quantification is difficult or impossible, the court must still make a reasonable estimate. The legal question was not merely which expert was more persuasive, but whether the methodology adopted by the Assistant Registrar reflected the correct legal principles for damages assessment and for dealing with uncertainty.
How Did the Court Analyse the Issues?
The High Court began by framing the appeal as one arising from an Assistant Registrar’s assessment of damages following a consent judgment on liability. The court therefore focused on whether the AR’s findings and methodology were sound. The AR had rejected the defendants’ expert, Mr Sajjad Ahmad Akhtar, a chartered accountant, on the basis that his reasoning was “simplistic” and his comparison method was faulty. The AR criticised, for example, an approach that merely charted whether sales rose or fell without quantifying the magnitude of change, and a comparison based on month-on-month performance even during the breach period rather than using pre-breach data for a more accurate baseline.
In addition, the AR found that Mr Akhtar was not objective, noting that his testimony strayed beyond his field of expertise by opining on the effects of serving pans, slogans, and similar matters on customers. This aspect of the analysis is important for practitioners: the court’s assessment of expert evidence in damages is not limited to technical competence, but also includes whether the expert’s opinions are grounded in expertise and relevant evidence rather than speculation.
On the plaintiff’s side, Fish & Co relied on a forensic accountant, Mr Tony Samuel, who proposed two alternative methods (Method A and Method B) to ascertain loss of profits. The AR accepted that Method A was the correct method in principle, but modified the parameters of Method A. In particular, the AR held that the “Glass House” outlet was the only affected restaurant and selected comparator outlets as Fish & Co outlets at Bugis Junction, Centrepoint, and Suntec City. Under this modified Method A, the AR awarded damages based on a 60% loss in business profits for the breach period (August 2005 to January 2007) and a further 12 months of post-breach loss using the same 60% proportion. The plaintiff described these post-breach losses as “springboard losses.”
Fish & Co’s appeal attacked the AR’s discounting approach. Counsel argued that the AR should have used Mr Samuel’s Method A with its original parameters, and then applied a discount to reflect legitimate imponderables not attributable to the breach. Fish & Co contended that the AR’s allowance was too large: the AR effectively attributed only 60% of the loss to the breach, implying a 40% discount for other factors. Fish & Co argued that a fair and reasonable discount should be no more than 20%, meaning at least 80% of the loss should be attributed to the breach. Fish & Co further argued that the breach caused “confusion” among customers, leading them to go to the defendants’ outlet believing they were going to Fish & Co. It relied on Draper v Trist and Tristbestos Brake Linings Ltd [1939] 56 RPC 429 to support the proposition that where confusion is difficult to prove directly, substantial loss may still be recoverable without direct evidence of what was in the public’s mind.
Although the excerpt provided does not include the remainder of the High Court’s reasoning, the structure of the dispute indicates that the court had to evaluate whether the AR’s modifications to Method A were justified and whether the 60% attribution and the duration of post-breach loss were legally and evidentially defensible. The High Court would also have had to consider whether the “springboard” concept was properly supported: that is, whether the defendants’ breach created an initial advantage that continued to depress Fish & Co’s profits even after compliance was restored. In damages law, such continuing effects must still satisfy causation and remoteness: the loss must be sufficiently connected to the breach and not too speculative.
From a legal principles perspective, the case sits within the broader Singapore approach to damages assessment where the court must make a best estimate based on available evidence, even when exact calculation is not possible. The court’s task is to ensure that the method of estimation is rational, grounded in evidence, and consistent with the legal requirements of causation, remoteness, and reasonable foreseeability. The AR’s rejection of the defendants’ expert and acceptance of the plaintiff’s method (albeit with modifications) illustrates the court’s willingness to scrutinise methodology and to prefer approaches that use appropriate baselines and quantify changes rather than relying on simplistic comparisons.
Finally, the High Court would have considered the proper appellate standard when reviewing an assessment by an Assistant Registrar. While the excerpt does not specify the standard, appellate courts in damages assessments typically intervene where the lower court has erred in principle, adopted an incorrect methodology, or made findings that are plainly wrong or unsupported by evidence. The parties’ competing arguments—Fish & Co seeking a higher award and the defendants seeking to overturn the entire assessment—would therefore have turned on whether the AR’s approach to attribution percentages, comparator selection, and the duration of loss was legally correct.
What Was the Outcome?
The provided extract does not include the final orders of the High Court. However, the procedural posture is clear: the High Court was hearing both an appeal (RA 152/2008) by Fish & Co against part of the AR’s damages assessment and a cross-appeal (RA 153/2008) by the defendants against the whole of the AR’s decision. The outcome would therefore have involved either affirming the AR’s $72,688 award (with interest and indemnity costs) or varying it—either by increasing the damages for Fish & Co, reducing them, or rejecting certain heads of loss such as post-breach “springboard” damages.
To complete a practitioner-ready analysis, the final judgment text (particularly the dispositive paragraphs) would be necessary to state precisely what the High Court ordered. If you provide the remaining portion of the judgment, I can update this article with the exact revised figures, whether the 60% attribution was adjusted, and whether the post-breach loss period was shortened, extended, or disallowed.
Why Does This Case Matter?
Fish & Co v MFM is significant for lawyers because it demonstrates how Singapore courts approach damages assessment in commercial disputes where loss of profits must be inferred from sales data and where the breach affects branding, customer perception, and market positioning. The case is also a useful reference for the evidential standards applied to expert testimony: the court’s criticism of simplistic analysis and non-objective expert opinion underscores that expert evidence must be methodologically sound and within the expert’s competence.
From a damages methodology standpoint, the case highlights the importance of selecting an appropriate baseline and comparator group. The AR’s preference for pre-breach data and its rejection of month-on-month comparisons during the breach period reflects a practical lesson for forensic accountants: the credibility of a loss-of-profits model often depends on how well it isolates the counterfactual “but for” scenario.
Finally, the case is relevant to the legal treatment of “springboard” or continuing losses. Where a breach creates an initial advantage, the plaintiff may seek recovery for subsequent profit depression. Practitioners should note that such claims must still satisfy causation and remoteness, and the court will scrutinise whether the continuing loss is sufficiently linked to the breach rather than attributable to independent market forces. The reliance on Draper v Trist also signals that, in appropriate contexts, courts may accept that direct proof of customer confusion is not always available, though damages must still be estimated on a rational evidential foundation.
Legislation Referenced
- (Not specified in the provided extract.)
Cases Cited
- Draper v Trist and Tristbestos Brake Linings Ltd [1939] 56 RPC 429
- [2009] SGHC 270 (the present case)
Source Documents
This article analyses [2009] SGHC 270 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.