ED&F Man Capital Markets Ltd v Straits (Singapore) Pte Ltd

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
JudgeJudith Prakash JA,Steven Chong JA,Quentin Loh J
Judgment Date06 July 2020
Date06 July 2020
Docket NumberCivil Appeal No 132 of 2019 and Summonses Nos 31 and 46 of 2020

[2020] SGCA 64

Court of Appeal

Judith Prakash JA, Steven Chong JA and Quentin Loh J

Civil Appeal No 132 of 2019 and Summonses Nos 31 and 46 of 2020

ED&F Man Capital Markets Ltd
and
Straits (Singapore) Pte Ltd

Prakash Pillai and Koh Junxiang (Clasis LLC) for the appellant;

Toh Kian Sing SC, Ting Yong HongandDavis Tan Yong Chuan (Rajah & Tann Singapore LLP) for the respondent.

Case(s) referred to

Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2019] 2 SLR 341, CA (folld)

AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2020] 1 SLR 1158, CA (folld)

Beckkett Pte Ltd v Deutsche Bank AG [2005] 3 SLR(R) 555; [2005] 3 SLR 555 (refd)

BNX v BOE [2018] 2 SLR 215 (refd)

Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208 (folld)

Derby & Co Ltd v Weldon (No 2) The Times (20 October 1988) (refd)

ED&F Man Capital Markets Ltd v Come Harvest Holdings Ltd [2019] EWHC 1661 (Comm) (refd)

ED&F Man Capital Markets Ltd v Straits (Singapore) Pte Ltd [2019] EWCA Civ 2073 (refd)

Foo Jong Long Dennis v Ang Yee Lim [2015] 2 SLR 578 (refd)

Gabriel Peter & Partners v Wee Chong Jin [1997] 3 SLR(R) 649; [1998] 1 SLR 374 (folld)

Haywood Management Ltd v Eagle Aero Technology Pte Ltd [2014] 4 SLR 478 (refd)

Hong Lam Marine Pte Ltd v Koh Chye Heng [1998] 3 SLR(R) 526; [1998] 3 SLR 833 (refd)

Intas Pharmaceuticals Ltd v DealStreetAsia Pte Ltd [2017] 4 SLR 684 (refd)

JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd [2018] 2 SLR 159, CA (folld)

JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd [2020] SGCA 54 (refd)

Kuah Kok Kim v Ernst & Young [1996] 3 SLR(R) 485; [1997] 1 SLR 169 (folld)

Ladd v Marshall [1954] 1 WLR 1489 (refd)

Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2018] 2 SLR 866 (refd)

Lim Geok Lin Andy v Yap Jin Meng Bryan [2017] 2 SLR 760 (folld)

Lonrho plc v Fayed (No 5) [1993] 1 WLR 1489 (refd)

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (refd)

Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 (refd)

Relfo Ltd v Bhimji Velji Jadva Varsani [2008] 4 SLR(R) 657; [2008] 4 SLR 657 (refd)

Riddick v Thames Board Mills Ltd [1977] QB 881 (refd)

Sim Leng Chua v Manghardt [1987] SLR(R) 52; [1987] SLR 205 (refd)

Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] 2 SLR 1271 (folld)

Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157 (folld)

Legislation referred to

Interpretation Act (Cap 1, 2002 Rev Ed) s 2

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 24 r 6, O 26A r 1 (consd); O 24 r 1(1), O 24 r 6(3)(a), O 24 r 6(3)(b), O 25 r 8(1)(a), O 26A, O 26A r 1(3), O 26A r 1(3)(b)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) First Schedule para 12

Abuse of process — Collateral purpose — Pre-action disclosure — Party disclosing documents to resist pre-action disclosure — Counterparty using disclosed documents in foreign proceedings — Whether use of documents in foreign proceedings amounted to collateral purpose

Abuse of processRiddick principle — Pre-action disclosure — Party disclosing documents to resist pre-action disclosure — Counterparty using disclosed documents in foreign proceedings — Whether documents protected from use pursuant to Riddick principle

Civil Procedure — Discovery of documents — Pre-action discovery — Party applying for pre-action discovery — Whether there was genuine intention to commence proceedings in Singapore

Civil Procedure — Interrogatories — Pre-action interrogatories — Party applying for pre-action interrogatories — Whether there was genuine intention to commence proceedings in Singapore

Facts

In 2016, the appellant entered into repurchasing agreements with two Hong Kong companies (“the Companies”), where the Companies sold nickel products (“the Commodities”) to the appellant with the option of repurchasing them at a later date. As part of the transaction, the Companies gave the appellant what appeared to be original warehouse receipts that entitled the holder of the receipts to possession of the Commodities. The receipts reflected the respondent's endorsements which suggested that the respondent had sold the Commodities to the Companies, who in turn on-sold them to the appellant. The appellant later discovered that the receipts had been forged and its solicitors contacted the respondent's solicitors, seeking documents relating to the respondent's ownership of the Commodities and its relationship with the Companies. The respondent stated that it was not in a position to provide the appellant with the information and documents requested.

On 17 May 2017, the appellant filed Originating Summons No 533 of 2017 (“OS 533”) for pre-action discovery and interrogatories against the respondent. In the course of resisting OS 533, the respondent filed affidavits that contained some of the information and documents sought in OS 533 (“the disclosed documents”). The first affidavit filed on behalf of the respondent contained an express reservation that the disclosure was without prejudice to the respondent's position that the appellant was not entitled to any of the information or documents sought in OS 533. On 21 December 2017, while OS 533 was pending, the appellant commenced an action against the Companies in the United Kingdom (“the UK proceedings”) pursuant to a clause in the repurchasing agreements that provided for the exclusive jurisdiction of the English courts.

OS 533 was dismissed on 13 August 2018. On 17 September 2018, the appellant applied to join the respondent in the UK proceedings, relying on information in the disclosed documents. The respondent applied to the Singapore High Court for an injunction to restrain the appellant from using the disclosed documents in the UK proceedings. The judge (the “Judge”) granted the injunction.

The appellant appealed against the Judge's decision and filed two applications to adduce further evidence in the appeal. Summons No 31 of 2020 was an application to adduce the decisions of the English courts dismissing the respondent's jurisdictional challenge in the UK proceedings, and Summons No 46 of 2020 was an application to adduce correspondence exchanged between the parties' English solicitors on the effect of the injunction on the UK proceedings.

Held, dismissing the applications and the appeal:

(1) The evidence sought to be admitted in both applications was not relevant. The fact that the substantive action was now properly before the English courts was not a factor in the court's consideration of whether there had been an abuse of the process as regards the appellant's use of the disclosed documents under Singapore law. The solicitors' letters were not relevant because the proper scope of the injunction was a matter for the courts to decide, and if properly granted, the injunction would not be rendered improper or unjust merely because there was a potential for abuse by one party: at [27] and [28].

(2) Pre-action disclosure was unique by its very nature. First, unlike other interlocutory applications, an application for pre-action disclosure did not require a pleaded cause of action. When proceedings had commenced, the court was in a better position to determine the relevance of an application for discovery by reference to the pleadings, but it did not have a similar reference point in pre-action disclosure. Second, the entire purpose of pre-action disclosure was to discover documents and information to determine whether there was a viable cause of action against the respondent or to identify the appropriate parties to sue. An application for pre-action disclosure started and ended with only one object, ie, the determination of the sole issue of whether the documents should be disclosed prior to commencement of the action: at [30] and [31].

(3) Under the statutory regime, all documents and information disclosed in the course of pre-action disclosure could only be used in furtherance of commencing proceedings in a Singapore court. Where there was no likely prospect of subsequent proceedings being commenced in Singapore, the court would not order pre-action disclosure. An applicant for pre-action disclosure was free to commence proceedings in any other jurisdiction but if he elected to do so, he would not be permitted to use the documents and information he obtained in the course of the pre-action disclosure application: at [34] to [36].

(4) Given that the sole purpose of pre-action disclosure was to facilitate the commencement of proceedings in Singapore, it would be an abuse of the pre-action disclosure regime and contrary to its purpose if an application was commenced to obtain documents in aid of foreign proceedings. The fact that the order for pre-action disclosure was not eventually made could not render the jurisdictional limitation meaningless as it would be incongruous for the appellant to be better off as a result of an unsuccessful application: at [40] and [41].

(5) On the facts of the case, there was an additional basis to ground the finding of abuse of process as the appellant did not have any genuine intention to commence proceedings against the respondent in Singapore at the time of filing OS 533. There was no viable cause of action against the respondent alone as any contemplated action would involve the Companies, and any claim against the Companies in Singapore would be confronted by the exclusive jurisdiction clauses in the repurchasing agreements. The inference was that OS 533 was filed to obtain documents and information in aid of the UK proceedings, and this was substantiated by the appellant's non-disclosure of the UK proceedings and its implicit representation that it would not commence proceedings against the respondent in the UK: at [43], [53] to [55], [62] and [63].

[Observation: The Riddick principle was not engaged simply because information had been...

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2 cases
1 books & journal articles
  • Civil Procedure
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2020, December 2020
    • 1 December 2020
    ...Ltd v Koh Yew Choo [2020] SGHCR 9 at [80] and [81]. 75 CGS-CIMB Securities (Singapore) Pte Ltd v Koh Yew Choo [2020] SGHCR 9 at [83]. 76 [2020] 2 SLR 695. 77 ED&F Man Capital Markets Ltd v Straits (Singapore) Pte Ltd [2020] 2 SLR 695 at [3] and [4]. 78 ED&F Man Capital Markets Ltd v Straits......

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