ANB v ANC and another and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 21 August 2015
• Neutral Citation: [2015] SGCA 43
• Plaintiff Counsel: Edmund Kronenburg and Lynette Zheng (Braddell Brothers LLP)
• Docket Number: Civil Appeal No 115 of 2014 and Summons No 3690 of 2014
• Date: 21 August 2015
• Hearing Date: 12 September 2014,30 September 2014,11 September 2014,25 September 2014
• Subject Matter: Evidence,Confidence,Admissibility of evidence,Injunctions,Tort,Civil Procedure
• Year: 2015
• Citation: [2015] SGCA 43
• Defendant Counsel: S Suressh, Sunil Nair, Nicklaus Tan, Thian Wen Yi (Harry Elias Partnership LLP),Randolph Khoo (Drew & Napier LLC) on watching brief,Joseph Lee and Lim Xiu Zhen (Rodyk & Davidson LLP) on watching brief.
• Court: Court of Appeal (Singapore)
• Published date: 10 September 2015

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

This was an appeal against the decision of the High Court Judge (“the Judge”) which is reported as ANB v ANC and another [2014] 4 SLR 747 (“the GD”). At the conclusion of proceedings below, the Judge set aside, inter alia, an interim injunction previously granted at the ex parte stage in favour of the Appellant restraining the Respondents from using, disclosing or destroying certain information in their possession which was extracted from the hard disk of the Appellant’s personal notebook computer and which the Appellant alleged was taken, copied and distributed in breach of confidence. We allowed the appeal and granted an interlocutory injunction on terms and upon certain undertakings given by the Appellant and the solicitors of both parties. The full details of the orders made and the undertakings given are set out in the document titled “Annex A” which is appended to our grounds of decision.

We were informed only recently that the parties had arrived at an amicable full and final settlement. In the circumstances, and given that the parties had consented to the discharge of the undertakings mentioned in the preceding paragraph, this court directed that the undertakings be discharged forthwith without requiring the parties’ attendance before it. However, given the importance of the legal issues hitherto raised in the proceedings before us we are of the view that – in addition to setting out the reasons for our decision – we should also flag out some of the more salient points that will need to be considered in more detail when these issues come before the courts for a definitive ruling in the future.

The facts

The Appellant and the 1st Respondent were, at the time the appeal was heard and decided, husband and wife, respectively. They were also, at that particular point in time, involved in acrimonious divorce proceedings. They have two children aged six and eight who were, as noted by the Judge at various junctures of the GD, unfortunately caught in the acrimonious currents of the divorce proceedings. The 2nd Respondent was the law firm which represented the wife. Although there were various circumstances surrounding the divorce proceedings that were laid down by the Judge in the GD, we reproduce only the relevant facts that concerned the case before us, ie, those surrounding the alleged surreptitious copying of information stored in the Appellant’s personal notebook computer.

It was not disputed that the 1st Respondent had moved out of the matrimonial home on 26 September 2012 to reside somewhere else. Divorce proceedings were thereafter commenced by the 1st Respondent on 10 October 2012. The 1st Respondent then returned to the matrimonial home on 18 December 2012 while the Appellant was overseas with their two children to find the doors to the matrimonial home padlocked. She then, on the same day, engaged a locksmith to unlock the padlock for her to gain entry into the matrimonial home.

The 1st Respondent found the Appellant’s personal notebook computer while she was in the house. She took it from the house and passed it to her private investigator. The private investigator then, upon the 1st Respondent’s instructions, proceeded to make copies of files contained in the hard disk drive. The copied data was saved onto an external hard disk drive by the private investigator and he passed it to the 1st Respondent who then passed on the information to the 2nd Respondent for use in the divorce proceedings she was engaged in with the Appellant. The 1st Respondent also returned the Appellant’s personal notebook computer to its original location in the matrimonial home where she had initially found it.

The Appellant subsequently discovered the surreptitious copying of the information from his personal notebook computer when the 1st Respondent attempted to adduce some of that information as evidence in the divorce proceedings they were engaged in. He then commenced proceedings claiming, inter alia, breach of confidence and obtained the interim injunction which the Judge had discharged in the proceedings below.

The decision of the High Court

Aside from the Judge’s views concerning the exclusionary discretion of the court in civil proceedings which we will, for the reasons given below (at [10]–[12]), deal with tentatively at a later part of our grounds, the Judge, in discharging the interim injunction, based his decision on his finding that there was no serious question as to whether there was a breach of confidence to be tried. In coming to this conclusion, the Judge provided the following reasons (see the GD at [66]–[67]): The information did not possess the necessary quality of confidence and was different from the sexual affairs of a person – a matter found by Judith Prakash J to possess the necessary quality of confidence in the Singapore High Court decision of X Pte Ltd and another v CDE [1992] 2 SLR(R) 575 (“X v CDE”). The information was not obtained in circumstances importing an obligation of confidence as the relationship between the husband and wife had already broken down in the light of the fact that they were living apart.

Although his finding that there was no serious question to be tried was a sufficient ground for discharging the interim injunction, the Judge observed that the balance of convenience also lay in favour of the Respondents as, in relation to the information already placed before other courts in the course of the divorce proceedings, “allowing the [interim] [i]njunction to stand would be tantamount to interfering with another court’s fact-finding process and its right to decide on admissibility, relevance and weight” (see the GD at [72]).

Some words of caution

Before we give the detailed grounds for our decision, it is important, in our view, to state at the outset what this case is – and is not – about.

This case is, first and foremost, about the law of breach of confidence. It is not one that turns (at least on the facts of the present case) on the law of evidence. Further, this case relates to the granting of an interlocutory injunction and not a final injunction. Put simply, we allowed the appeal in the present case on the basis that the test applicable to the granting of an interlocutory injunction laid down in leading House of Lords decision of American Cyanamid Co v Ethicon Ltd [1975] AC 396 (“American Cyanamid”) was satisfied, since: (a) there was a serious question – as to whether a breach of confidence was committed – to be tried; and (b) the balance of convenience lay in favour of granting the interlocutory injunction.

In so far as the need to emphasise the point that this case related to the law of breach of confidence and not the law of evidence is concerned, we note at this particular juncture that the Respondents had, in the court below, focused instead (and wrongly, at least on the facts of the present case) on the law of evidence. Indeed, in the court below, counsel for the Respondents, Mr S Suressh, sought to argue that the principal precedent on which the Appellant had relied on in establishing his case that there had been a breach of confidence (viz, the English Court of Appeal decision of Imerman v Tchenguiz and others [2011] Fam 116 (“Imerman”)) was not applicable in the Singapore context because it was, inter alia, premised on a different rule of evidence. In particular, Mr Suressh submitted that Imerman proceeded on the assumption that the court could refuse to admit improperly or illegally obtained evidence whereas, by virtue of the decision of the Court of 3 Judges in Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 (“Phyllis Tan”), the Singapore courts had no similar discretion to exclude such evidence. However, the Judge noted, in this regard, that this court had, in the criminal decision of Muhammad bin Kadar v Public Prosecutor [2011] 3 SLR 1205 (“Kadar”), held that a court nevertheless retained a discretion to exclude improperly or illegally obtained evidence if the prejudicial effect of that evidence towards a party exceeded its probative value (hereinafter referred to as “the exclusionary discretion”). The Judge then proceeded to opine that the exclusionary discretion would not, however, be exercised in the context of civil proceedings in most instances (see the GD at [51]) and (more specifically) in the context of the present case (see the GD at [52]).

While it may be that an interlocutory injunction, if ordered, would practically prevent the Respondents from tendering the information as evidence by copying and distributing the information in any other suit in potential breach of confidence, it must be noted that such an injunction does not equate to a decision as to the admissibility of such information as evidence. The latter decision will only have to be made if, for example, the information in the present case was tendered as evidence in support of a suit and the Appellant objects to its admissibility on the ground that it was being used in breach of confidence.

Further, and with respect, it was by no means clear, in our view, that the Judge had rendered a correct statement of the relevant legal position as to the exercise of an exclusionary discretion in the context of civil proceedings for reasons which we tentatively state below. Our views (set out briefly below at [27]–[31]) are tentative simply because, as already mentioned, given the fact that this appeal turned on the law relating to breach of confidence (and whether there was a serious question to be tried in this regard), the law of evidence was not even engaged to begin with – at least on the facts of the present case. Since the issue of admissibility under the law of evidence did not even arise, the (further) issue as to whether or not the exclusionary discretion may also be exercised in civil...