Asplenium Land Pte Ltd v Lam Chye Shing and others

• Jurisdiction: Singapore
• Judge: Pang Khang Chau JC
• Judgment Date: 22 February 2019
• Neutral Citation: [2019] SGHC 41
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 952 of 2016
• Year: 2019
• Published date: 19 September 2019
• Hearing Date: 10 July 2017,12 June 2017,29 August 2017,12 January 2017,08 June 2017
• Plaintiff Counsel: Chuah Chee Kian Christopher, Kua Lay Theng, Candy Agnes Sutedja, and Liana Chek (WongPartnership LLP)
• Defendant Counsel: Nicholas Beetsma (Clasis LLC),Vikram Nair, Zhuang Wenxiong, and Ching Meng Hang (Rajah & Tann Singapore LLP)
• Subject Matter: Legal Profession,Professional privileges,In-house legal counsel,Waiver,Injunctive relief
• Citation: [2019] SGHC 41

Pang Khang Chau JC: Introduction

In High Court Originating Summons No 952 of 2016, Asplenium Land Pte Ltd (“Asplenium”) applied for orders to: restrain the defendants in High Court Suit No 37 of 2015 (“Suit 37”) from disclosing certain documents which Asplenium claimed to be legally privileged; and restrain the plaintiff in Suit 37 from receiving and/or using these documents.

Having heard the parties’ submissions and observed the examination of key witnesses, I granted Asplenium’s application. The plaintiff in Suit 37 has appealed, and I now provide my grounds of decision.

Background Suit 37

The plaintiff in Suit 37 is CKR Contract Services Pte Ltd (“CKR”), who is the 4th respondent in this application.

The defendants in Suit 37 are Lam Chye Shing (“Lam”), Rider Levett Bucknall LLP (“Rider”), and RLB Consultancy Pte Ltd (“RLB”) (collectively, “the RLB Defendants”), who are the 1st, 2nd, and 3rd respondents in this application respectively. Lam is a partner of Rider and a director of RLB.

Suit 37 concerns a contract (“the Contract”) awarded in 2013 by Asplenium to CKR engaging the latter as the main contractor for a construction project (“the Project”). Lam was the designated quantity surveyor in the Contract, while Rider was engaged by Asplenium to provide quantity surveying and consulting services for the Project.

Subsequently, on 24 October 2014, Asplenium purported to terminate the Contract. It then engaged RLB to provide consultancy services for a tender process to engage a replacement contractor (“the Replacement Tender”). The replacement contract was awarded in November 2014 to a company which was not a party to this application or to Suit 37.

The dispute between Asplenium and CKR over the proper termination of the Contract has been submitted to arbitration.

Suit 37 similarly concerns the termination of the Contract and the conduct of the Replacement Tender. In that suit, CKR claims, amongst other things, that the RLB Defendants have been professionally negligent in the following two aspects: failing to exercise independent judgment and to properly conduct the Replacement Tender; and failing to exercise independent judgment and to properly calculate the relevant parts of the documents known as “Annex A” and “Revised Annex A” (collectively, “the Annexures”), which were being relied on by Asplenium in its arbitration dispute with CKR.

Asplenium is not a party to Suit 37.

CKR’s application for specific discovery in Suit 37

On 18 March 2016, in Summons No 1311 of 2016, CKR applied for specific discovery in Suit 37 against the RLB Defendants for, among other things: documents and correspondence relating to Asplenium’s instructions to the RLB Defendants regarding the conduct and/or supervision of the Replacement Tender; and documents and correspondence exchanged between Asplenium and the RLB Defendants relating to the provision of calculations used to prepare the Annexures.

On 18 August 2016, CKR’s application was allowed in part by an Assistant Registrar, pursuant to which the RLB Defendants filed a supplementary list of documents dated 13 September 2016 in Suit 37 (“the SLOD”) which stated, in para 4, that:

Asplenium Land Pte Ltd (the “Employer”) asserts privilege over the documents listed at item numbers 3 and 4 of Schedule 1 Part 1 below.

It was the disclosure of these documents at items 3 and 4 of Part 1 of Schedule 1 of the SLOD that formed the subject matter of the present application. In particular, item 3 referred to e-mails between Sia Wee Long (“Sia”), Mark Hwang Chengsie (“Hwang”), and Lam from the period between 29 October 2014 and 8 October 2014 (“the Item 3 documents”), while item 4 referred to e-mails between Asplenium, WongPartnership LLP, and Lam relating to the preparation of the Annexures from the period between 10 October 2014 and 21 October 2014 (“the Item 4 documents”).

The RLB Defendants subsequently clarified that the date ranges given in the SLOD were erroneous, and that the correct date ranges were 29 September 2014 to 8 October 2014 for the Item 3 documents, and 10 October 2014 to 31 October 2014 for the Item 4 documents.

The present application

On 19 September 2016, Asplenium filed the present application to restrain the parties in Suit 37 from disclosing and/or relying on the Item 3 documents and the Item 4 documents.

Before me, Asplenium explained that it had brought the present application in accordance with the directions and guidance given by Kan Ting Chiu J (as he then was) in Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42. In that case, the applicant had intervened in a suit to which it was not a party for the purpose of applying for a declaration that an e-mail from the plaintiff’s solicitors to the plaintiff was legally privileged and that the parties in the suit be restrained from using that e-mail in evidence. Kan J questioned the appropriateness of the intervention and directed the applicant to commence separate proceedings if it wished to raise these issues. Upon the applicant filing an originating summons for that purpose, Kan J, who also heard the application, declared that legal privilege attached to the e-mail and restrained its use in evidence by the parties to the suit. In the present case, no objections were raised by any party to the procedure adopted by Asplenium.

Overview of Asplenium’s case

Asplenium asserted that the Item 3 documents concerned ongoing discussions on various matters relating to the Project as well as the termination of the Contract. It claimed that it was entitled to assert legal advice privilege under s 128A(1) of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”) in respect of these documents because they were communications between Sia, who was Asplenium’s project manager for the Project, and Hwang, who was deemed to be Asplenium’s in-house legal counsel for the purposes of s 128A(1), in the course of and for the purpose of Hwang’s employment as such legal counsel. The fact that Lam was also copied in the e-mails did not preclude or waive such privilege.

As for the Item 4 documents, Asplenium explained that these were communications between Asplenium, Lam, and WongPartnership LLP relating to the preparation of the Annexures. According to Asplenium, the Annexures were a set of accounts that “basically represent[ed] the estimated amount of loss that [Asplenium] incurred and/or would incur arising from the termination as a result of [CKR’s] breach at that time”.¹ The Annexures were being relied on by Asplenium for its claim in arbitration against CKR for damages arising from the termination of CKR’s engagement under the Contract (see [6] and [10(b)] above). In that context, Asplenium claimed in relation to the Item 4 documents that: (a) legal advice privilege attached as the documents contained legal advice from WongPartnership LLP regarding the collation of evidence for the evaluation and substantiation of Asplenium’s claim against CKR; and (b) litigation privilege subsisted as the documents were created for the dominant purpose of contemplated litigation between it and CKR, at a time when there was a reasonable prospect of such litigation.

Overview of CKR’s case

CKR’s position on the Item 3 documents was that s 128A(1) of the EA did not apply because: Hwang was not a legal counsel of Asplenium for the purposes of s 128A(1) of the EA. Sia was not an employee of Asplenium and was not authorised to seek and receive legal advice on its behalf. In any event, privilege could not be asserted by Asplenium because Lam had been copied in the e-mails constituting the Item 3 documents even though he was not an employee of Asplenium, and it was he who was being asked in the specific discovery application to disclose the documents.

As for the Item 4 documents, CKR argued that: Legal advice privilege did not subsist because Sia was not an employee of Asplenium authorised to seek or receive legal advice from WongPartnership LLP. Further, Lam was also not an employee of Asplenium. Litigation privilege did not subsist because the Item 4 documents concerned the Annexures, which were routine documents and were not made for the dominant purpose of litigation. In any event, legal advice privilege and/or litigation privilege were impliedly waived when Lam referred extensively to the Item 4 documents as an expert witness in a related High Court application in Originating Summons No 1025 of 2014 (“OS 1025”). OS 1025 was CKR’s application for an interim injunction to restrain Asplenium from calling on a performance bond issued on behalf of CKR.

CKR further argued that Asplenium was, in any event, not entitled to the reliefs sought in the present application because, even though the title of Asplenium’s originating summons stated that this application was brought pursuant to s 131 of the EA, s 131 was not applicable because it applied only to preclude compulsory disclosure of privileged documents by the client of the legal professional adviser concerned (in this case, Asplenium) and did not preclude compulsory disclosure by any third party from whom those documents may be sought (in this case, the RLB Defendants).

No request was made by CKR for the court to inspect either the Item 3 documents or the Item 4 documents, in order to determine their status as to privilege from such inspection. Nor was there any request by CKR for a redacted disclosure of the parts of the documents that did not contain privileged material.

The issues to be decided

In the light of the foregoing, there were two broad issues to be decided: whether legal advice privilege subsisted in the Item 3 documents; and whether legal advice privilege and/or litigation privilege subsisted in the Item 4 documents.

An overarching question applicable to both issues was whether the declaratory and injunctive reliefs sought by Asplenium could and...