Asia Business Forum Pte Ltd v Long Ai Sin and Another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 13 February 2004
• Neutral Citation: [2004] SGCA 6
• Date: 13 February 2004
• Subject Matter: Order 20 r 5(1), O 57 r 13(1) Rules of Court (Cap 322, R 5, 1997 Rev Ed),Whether leave ought to be granted to amend applicant's Further and Better Particulars after judgment and after Notice of Appeal lodged to Court of Appeal,Pleadings,Amendment,Civil Procedure
• Docket Number: Civil Appeal No 102 of 2003
• Published date: 18 February 2004
• Defendant Counsel: Low Chai Chong and Kelvin Poon (Rodyk and Davidson)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Michael Hwang SC (instructed), Stanley Lai and Esther Ling (Allen and Gledhill)

13 February 2004

Chao Hick Tin JA (delivering the judgment of the court):

1 This motion was filed by the appellant-applicant, Asia Business Forum Pte Ltd (“ABF”), for leave to amend its pleadings (ie, the Further and Better Particulars) post-judgment and after a notice of appeal had been lodged to the Court of Appeal. We dismissed the application and now give our reasons.

The background

2 ABF is in the business of producing conferences. It was the plaintiff in the action (Suit No 949 of 2002) commenced on 13 August 2002 and the respondents were the defendants. The first respondent, Long Ai Sin (“Long”), was in the employment of ABF from early 1995 to 1999. After leaving ABF in September 1999, Long, together with her husband, set up Pacific Conferences Pte Ltd (“PCP”), the second respondent, which is in the same line of business as ABF. In the action, ABF claimed that Long had disclosed confidential information and trade secrets of ABF to PCP. It prayed for an injunction restraining Long from dealing with such information, delivery up of documents containing the information and damages or an account of profits made by the respondents from the use of the information.

3 The action came up before Kan Ting Chiu J who, after hearing the evidence, dismissed the action. ABF has appealed against the dismissal. The appeal is pending.

The pleadings

4 In the statement of claim, ABF described the nature of its business, its competitive and confidential nature, and set out some of the terms of Long’s contract of employment. One of the terms required that Long would not, during the period of employment and thereafter, “disclose to anyone any information of a confidential nature relating to the Company”. Another covenant was that:

[Long] will not copy, duplicate, record, reproduce, communicate, divulge or otherwise use for the benefit of himself or any other person or legal entity [any] confidential information and trade secrets obtained during his employment.

5 Paragraph 15 of the statement of claim averred that:

[T]he highly confidential information and trade secrets relevant to this action will be identified in a confidential schedule (“the Schedule”). The Schedule will be served after receipt of undertakings from the 1st and 2nd defendants and/or their solicitors to preserve the confidentiality of its contents.

6 Paragraph 20 of the statement of claim further averred that:

[T]he items in the Schedule are proprietary to [ABF] and are trade secrets. Alternatively, they are of such confidentiality as to merit protection as trade secrets or are otherwise confidential as to be legitimate interests that should be protected from disclosure by former employees.

7 Pursuant to an order of court of 2 October 2002 where ABF was required, in relation to para 15 of the statement of claim, to state the full particulars of the alleged confidential information and trade secrets which ABF would be relying upon in the action, ABF stated as follows:

Section A – TRADE SECRETS

1. The Plaintiffs’ Training Manual consisting of highly confidential information and trade secrets. This manual sets out the Plaintiff’s business model and techniques in conference organizing a conference from the first stage in topic selection, to research, marketing and running the conference. It also embodies the Plaintiffs’ unique system of work including briefing procedures, reporting forms, various formats and templates, etc.

...

Section B – CONFIDENTIAL INFORMATION

The Plaintiff’s database and contact information under the following categories:

1. The Plaintiffs’ database information comprising of speakers with full contact details, name of company, addresses and telephone numbers for conferences produced by the 1st Defendant.

2. The Plaintiffs’ database information comprising of speaker with full contact details, name of company, addresses and telephone numbers for conference supervised by the 1st Defendant.

3. The Plaintiffs’ database information comprising of delegates for all conferences produced by the 1st Defendant.

4. The Plaintiffs’ database information comprising of delegates for all conferences supervised by the 1st Defendant.

5. The Plaintiffs’ database information comprising of A-code or contact lists for conferences produced by the 1st Defendant.

6. The Plaintiffs’ database information comprising of A-code or contact lists for conferences supervised by the 1st Defendant.

7. Business cards of contacts and prospects including speakers, delegates, sponsors, publications and suppliers, obtained by the 1st Defendant during her course of employment, and which were not surrendered to the Plaintiffs when she left.

8 The amendments which ABF sought were to switch what were listed under “Confidential Information” to be “Trade Secrets” and vice versa. Effectively, this meant that ABF’s database and contact information would be re-classified as “trade secrets”. ABF stated that this was necessary because in accordance with the decision of the Court of Appeal in Faccenda Chicken Ltd v Fowler [1986] 1 All ER 617 only trade secrets would enjoy protection beyond the termination of employment. There was some doubt as to whether an express clause was capable of protecting confidential information post-termination of employment. Moreover, there were authorities, eg, Lansing Linde Ltd v Kerr [1991] 1 All ER 418, which indicated that customer lists and business listings could be protected as trade secrets.

Power to amend

9 It is settled law that the court, including the Court of Appeal, has the power to grant leave to a party to amend his pleadings at any time: see s 37(2) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) and O 20 r 5(1) and O 57 r 13(1) of the Rules of Court (Cap 322, R 5, 1997 Rev Ed).

10 In Ketteman v Hansel Properties Ltd [1987] AC 189, Lord Brandon of Oakbrook, after reviewing the authorities, summarised the principles under the following main heads (at 212):

First, all such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided. Secondly, amendments should not be refused solely because they have been made necessary by the honest fault or mistake of the party applying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights. Thirdly, however blameworthy (short of bad faith) may have been a party’s failure to plead the subject matter of a proposed amendment earlier, and however late the...