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

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 29 August 2019
• Neutral Citation: [2019] SGHC 203
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 533 of 2017 (Summons No 1087 of 2019)
• Year: 2019
• Published date: 15 July 2020
• Hearing Date: 31 May 2019,27 May 2019,14 June 2019
• Plaintiff Counsel: Prakash Pillai, Koh Junxiang, Charis Toh Si Ying (Clasis LLC)
• Defendant Counsel: Toh Kian Sing SC, Ting Yong Hong, Davis Tan Yong Chuan, Wang Yufei (Rajah & Tann Singapore LLP)
• Subject Matter: Civil Procedure,Injunctions,Anti-suit injunctions
• Citation: [2019] SGHC 203

Aedit Abdullah J: Introduction

In this application, the defendant sought both an injunction against the use of documents and information disclosed in Originating Summons No 533 of 2017 (“OS 533”) as well as an anti-suit injunction. The injunction against the use of the documents and information was granted as the plaintiff’s use of these in English proceedings would be an abuse of process and breached the implied undertaking that was the quid pro quo for the order for disclosure. The anti-suit injunction was refused, even after further arguments were made.

The plaintiff appeals against my decision enjoining it from using in English proceedings documents and information disclosed by the defendants in Singapore. The defendant appeals in turn against my decision refusing an anti-suit injunction against the plaintiff.

Facts

The plaintiff is a company registered in England. It is a global brokerage and financial services business with headquarters in England and offices in Dubai, Hong Kong, Switzerland and the US.¹ It claimed that it was the victim of fraud committed by two Hong Kong companies, Come Harvest Holdings Ltd and Mega Wealth International Trading Ltd (“the Hong Kong Companies”). That fraud was supposed to have involved forged warehouse receipts issued by a Singapore warehouse company and delivered to the plaintiff under nickel repurchase agreements entered into between the plaintiff and the Hong Kong Companies. The warehouse receipts were endorsed by the defendant to the Hong Kong Companies.²

The plaintiff initially sought information and documents from the defendant on a consensual basis, but eventually made an application in OS 533 for pre-action discovery and interrogatories against the defendant pursuant to O 24 r 6 and O 26A r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).³

In respect of that application, Ms He Yuzhen Sherraine (“He”), the Senior Vice President of the defendant, filed an affidavit affirmed on 27 June 2017 (“He’s 1st affidavit”) deposing information and exhibiting documents concerning the dealings the defendant had with the Hong Kong Companies. A number of other proceedings were also commenced. Eventually, the application for pre-action disclosure in OS 533 was dismissed by the Assistant Registrar. The plaintiff’s appeal against the decision in Registrar’s Appeal No 215 of 2018 (“RA 215”) was withdrawn.

In the meantime, the plaintiff commenced an action in England in December 2017 against the Hong Kong Companies, on the basis of English governing law and an exclusive jurisdiction clause in their contracts.⁴ The defence filed by the Hong Kong Companies on 28 June 2018 alleged that they believed that the warehouse receipts which they received from the defendant were genuine, and contradicted the allegations in He’s 1st affidavit that only scanned copies of the warehouse receipts had been sent to the Hong Kong Companies.⁵ In September 2018, the plaintiff joined various additional parties, including the defendant, to the English action, and brought claims of unlawful means conspiracy, liability to account as constructive trustee and knowing receipt against the defendant.⁶

The parties’ cases The defendant’s case

The defendant applied for an injunction restraining the plaintiff from using the documents and information that it disclosed in OS 533 in any foreign proceedings commenced by the plaintiff against the defendant. It argued that the plaintiff had made two representations by its commencement and pursuit of the proceedings in OS 533: first, that it would commence substantive proceedings in this regard against the defendant in Singapore; second, that the defendant’s disclosures in OS 533 would only be used in Singapore proceedings.⁷

In the alternative, the defendant submitted that its disclosures fell within the principle articulated in Riddick v Thames Board Mills Ltd [1977] QB 881 (“Riddick”), which protects disclosures of documents and information made under compulsion of court process from collateral use.⁸

The defendant also applied for interim and permanent anti-suit injunctions against the plaintiff to restrain it from continuing with the English proceedings against the defendant. The defendant submitted that the requirements for the grant of an anti-suit injunction were met. Singapore was the natural forum for the dispute between the parties.⁹ The plaintiff’s conduct in OS 533 had also misled the defendant and the court that the plaintiff intended to commence substantive proceedings in Singapore, and its conduct was vexatious and oppressive in its totality.¹⁰ Finally, there had also been no undue delay on the defendant’s part that precluded the grant of anti-suit relief.¹¹

The plaintiff’s case

The plaintiff submitted that the defendant had not shown that Singapore was the more appropriate forum¹² and had not addressed the significant factors connecting the parties’ dispute to England, including the exclusive jurisdiction clauses in the plaintiff’s contracts with the Hong Kong Companies.¹³ Furthermore, its conduct had not been vexatious, oppressive or an abuse of the Singapore court process. It had not commenced OS 533 for a collateral purpose; it genuinely sought to investigate the circumstances of the fraud and maintained the provisional view that proceedings might be commenced in Singapore.¹⁴ As regards any abuse of process arguments, it was the defendant that had unduly delayed seeking an anti-suit injunction.¹⁵

The plaintiff rejected the application of the Riddick principle in this case. The Riddick principle applies only to documents disclosed under compulsion, but the documents in question had been disclosed voluntarily by the defendant.¹⁶ The Riddick principle also does not apply to documents used in open court, and the disclosed documents here had been used in open court and formed an integral part of the Assistant Registrar’s decision in OS 533.¹⁷

My decision

The injunction against the use of information and documents disclosed by the defendant in OS 533 was granted to prevent their use in proceedings outside Singapore. Any orders that might have been made in the OS 533 application for pre-action discovery and interrogatories (both constituting what I will refer to as “pre-action disclosure”) and the disclosures made in those proceedings were meant for use only in Singapore proceedings. This conclusion applied both on a statutory analysis and under the Riddick principle. While an exception to the Riddick principle would arise where documents were disclosed voluntarily, I did not find that that was the case here: the “voluntary” disclosure that the plaintiff relied upon referred to the defendant’s disclosure of documents and information in its attempt to resist pre-action disclosure. That could not amount to voluntary use notwithstanding the defendant’s own statements that it had volunteered these documents;¹⁸ such statements must be taken against the context of the OS 533 application.

The plaintiff also invoked the open court use of the documents, citing the open justice principle articulated in Foo Jong Long Dennis v Ang Yee Lim and another [2015] 2 SLR 578 (“Dennis Foo”). But that case needs to be read in its factual context: the documents in Dennis Foo had been used in a prior trial, and given such use and consideration of the documents at trial, it is not surprising that any implied undertaking was considered spent. Different considerations would apply in the present case since the documents and information were referred to and considered only in the very application for pre-action disclosure, and expressed to be disclosed with express reservations.

The anti-suit injunction was declined as I was not persuaded by the defendant that Singapore was clearly the natural forum for the proceedings. There were factors relied upon by the defendant which pointed to Singapore being the natural forum; but other factors pointed instead to England. It suffices to note that given this close balance, the defendant did not make out the first requirement for the issuing of an anti-suit injunction. None of the factors relied upon by the defendant were sufficient in any event to establish vexation and oppression of the degree that would justify the issuing of an anti-suit injunction. The mischief or conduct raised could be better and specifically targeted by the injunction against the use of the documents and information disclosed.

Issue 1: Injunction against the use of the documents

An injunction is a form of relief granted to protect the legal or equitable rights of the claimant or plaintiff: it is a discretionary remedy. While injunctions are often issued in specific circumstances, there is no closed list of the types of injunctions that can be ordered as long as the plaintiff can make out a right that is infringed, or a cause of action that is to be protected.

Law on the use of documents given in discovery

The defendant argued that the Singapore court only has jurisdiction to order pre-action disclosure in aid of Singapore proceedings: Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208 (“Dorsey”) at [68] and [69]. The defendant argued that it follows that any application for pre-action disclosure for any purpose other than to aid proceedings in Singapore would be without basis, and would be liable to be dismissed. Any applicant seeking pre-action disclosure should be regarded as representing or undertaking to the court and the respondent that any substantive proceedings following from such disclosure would be commenced in Singapore, and that it would only use the documents obtained in such proceedings. At the very least, the applicant should be taken to have represented that it had a genuine provisional intention to commence proceedings in Singapore.¹⁹ The plaintiff had previously given indications that it would indeed pursue proceedings in Singapore. Had it been otherwise, its...