BP Singapore

• Jurisdiction: Singapore
• Judgment Date: 10 December 2010
• Date: 10 December 2010
• Docket Number: Suit No 482 of 2010
• Court: High Court (Singapore)

BP Singapore Pte Ltd

Plaintiff

and

Quek Chin Thean and others

Defendant

[2010] SGHC 358

Lai Siu Chiu J

Suit No 482 of 2010 (Summonses Nos 3570, 3572, 3637 and 4608 of 2010)

High Court

Civil Procedure—Anton Piller orders—Company suing former employees for inducing other staff to leave for competitor and misusing confidential information—Company obtaining ex parte search orders against said employees—Whether extremely strong prima facie case shown—Whether damage suffered would have been very serious—Whether real possibility of destruction of relevant documents—Whether effect of search orders disproportionate to their legitimate object—Whether full and frank disclosure made

The six defendants were all former employees of the plaintiff company and had left to join a competitor in the middle of 2010. Their departures were part of a spate of mass resignations from the plaintiff's employment which, the plaintiff claimed, had been orchestrated by the defendants. The plaintiff also claimed that the defendants had, prior to their departures, copied its confidential information for the benefit of the competitor. The plaintiff thus sued the defendants for breach of fiduciary duty, breach of their employment contracts and misuse of confidential information.

The plaintiff proceeded to apply for and obtain ex parte injunctions and search orders against all six defendants. The injunctions restrained the defendants from using or disclosing the plaintiff's confidential information while the search orders compelled the defendants to allow the plaintiff to enter their homes to seize and make copies/images of their e-mails, computers, other electronic devices and documents.

All six defendants applied to set aside the search orders after they had been executed. The defendants argued that (a) the plaintiff did not have an extremely strong prima facie case; (b) the damage suffered would not have been very serious; (c) there was no real possibility of the defendants destroying relevant documents; (d) the search orders were unduly oppressive to the defendants and their families; and (e) the plaintiff had failed to make full and frank disclosure. The second defendant also applied to discharge the injunction against him.

Held, allowing the applications in part:

(1) There was an extremely strong prima facie case against the defendants as the affidavit evidence strongly suggested that the defendants had been coordinating the mass resignations of the plaintiff's employees and copying many of its files for the competitor's benefit: at [25], [27], [28], [32] and [33].

(2) In determining whether the plaintiff would suffer serious damage, it was necessary to consider the objective of the search order in each particular case in relation to the nature of the damage suffered if the subject matter of the search order was destroyed. As the objective of the search orders in the present case was to preserve evidence in the defendants' possession for trial, the plaintiff had to show that it would not be able to prove its case if such evidence was destroyed: at [43] and [44].

(3) The plaintiff would not suffer serious damage in relation to its allegations that the defendants had orchestrated the mass resignations because there was other evidence available to prove its case. The plaintiff already had fragments of documents evidencing the defendants' wrongdoing and the trial judge could draw adverse inferences against the defendants if they failed to produce the complete documents. On the other hand, the plaintiff would not be able to prove its allegation that the defendants had misused its confidential information if the evidence in the defendants' possession was destroyed. The plaintiff would thus have suffered serious damage: at [45] and [46].

(4) The conduct of the defendants (except the third defendant) was not nefarious enough to show a real possibility that they would destroy relevant documents. The mere fact that a defendant had been acting surreptitiously could not lead to the inexorable conclusion that he would destroy relevant evidence in contempt of court to frustrate a plaintiff's claim: at [48] and [51].

(5) There was a real possibility of the third defendant destroying relevant documents because he had deleted certain files both before and after the search orders were executed. A court was entitled to take into account both prior and ex post facto events in deciding whether to set aside a search order: at [52] to [55].

(6) The search orders were not out of proportion to their legitimate object in so far as the defendants themselves were concerned. It was necessary for the plaintiff to seize all their electronic devices and there were safeguards in place to protect the defendants' privacy if the copies and images of these devices were reviewed: at [58] and [59].

(7) However, the plaintiff had also unnecessarily seized items belonging to the defendants' spouses, children and maids when executing the search orders. The terms of the search orders did not allow the plaintiff to seize items which were not owned or controlled by the defendants in the first place: at [62], [64] and [65].

(8) The plaintiff had made full and frank disclosure. The items the defendants contended should have been disclosed were non-material and would not have affected the outcome of the plaintiff's ex parte application in any way: at [68].

(9) Since the plaintiff had satisfied the requirements for a search order only as against the third defendant, the search orders against the other defendants were set aside on their solicitors' undertaking to take control of the seized copies of items and images. The plaintiff also had to return the images of electronic devices seized from all six defendants' spouses, children and maids in any event: at [69] and [70].

(10) The injunction against the second defendant was discharged on his undertaking not to destroy, use or disclose any information belonging to the plaintiff pending trial or further order: at [74].

Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 (refd)

Asian Corporate Services (SEA) Pte Ltd v Eastwest Management Ltd (Singapore Branch) [2006] 1 SLR (R) 901; [2006] 1 SLR 901 (folld)

Asian Corporate Services (SEA) Pte Ltd v Impact Pacific Consultants Pte Ltd [2005] 4 SLR (R) 61; [2005] 4 SLR 61 (refd)

Bengawan Solo Pte Ltd v Season Confectionery Co (Pte) Ltd [1994] 1 SLR (R) 448; [1994] 1 SLR 617 (folld)

Booker McConnell plc v Plascow [1985] RPC 425 (refd)

Computerland Corp v Yew Seng Computers Pte Ltd [1991] 2 SLR (R) 379; [1991] SLR 247 (refd)

Expanded Metal Manufacturing Pte Ltd v Expanded Metal Co Ltd [1995] 1 SLR (R) 57; [1995] 1 SLR 673 (refd)

Indicii Salus Ltd v Chandrasekaran [2007] EWHC 406 (Ch) (refd)

Lock International plc v Beswick [1989] 1 WLR 1268 (refd)

Yousif v Salama [1980] 1 WLR 1540 (refd)

Indranee Rajah SC, Daniel Tan, Rakesh Kirpalani, Daniel Soo and Liang Hanting (Drew & Napier LLC) for the plaintiff

Sarjit Singh Gill SC, Pradeep Pillai, Georgina Lum, Lareina Tay, Moses Lin and Koh Junxiang (Shook Lin & Bok LLP) for the defendants.

Lai Siu Chiu J

Introduction

1 The applications that I recently heard in the above suit concerned several search orders (previously known as Anton Piller orders) and injunctions which BP Singapore Pte Ltd (“the plaintiff”) had obtained ex parte on 5 July 2010 against six of its former employees, who are the defendants in this suit. Their names are listed as follows:

1. (a) Quek Chin Thean (“Quek”), the first defendant;

2. (b) Cheong Wai Khuen Simon (“Cheong”), the second defendant;

3. (c) Foo Fung Hai John (“Foo”), the third defendant;

4. (d) Paul John Bradshaw (“Bradshaw”), the fourth defendant;

5. (e) Chang Peng Hong Clarence (“Chang”), the fifth defendant; and

6. (f) Kuan Sui Sum Laura (“Kuan”), the sixth defendant.

2 The search orders stipulated, inter alia,that the defendants were to allow the plaintiff's solicitors to enter their homes to seize and make copies or images of:

1. (a) all e-mail correspondences on their e-mail accounts;

2. (b) all computers and other electronic items in their homes which could process/store/communicate data such as mobile phones and thumb drives; and

3. (c) all documents (whether in hard or soft copy) relating to the trade secrets, confidential or proprietary information of the plaintiff.

The search orders also allowed the plaintiff to review the seized items in order to extract all relevant information relating to its claim against the defendants, but only upon further order of the court.

3 The injunctions that were obtained restrained the defendants from using or disclosing any information relating to the trade secrets and confidential or proprietary information of the plaintiff.

4 The search orders were simultaneously executed at the defendants' homes on 6 July 2010. In addition to items personally belonging to the defendants, the plaintiff's solicitors also seized electronic items belonging to the defendants' spouses, children, and (in Cheong's case ) the maid. After the seized items had been copied or imaged, one copy of the images was retained by the supervising solicitors while another copy was retained by the defendants' solicitors upon their undertaking to prohibit the defendants from accessing and/or deleting any part of the images. All six defendants subsequently applied to set aside the search orders. Cheong also applied to set aside the injunction obtained against him while the plaintiff applied for liberty to review the images.

The applications

5 The parties' applications came before me for hearing and are listed as follows:

(a) Summons No 3570 of 2010 - This was Cheong's application to set aside the injunction.

(b) Summons No 3572 of 2010 - This was the defendants' application to set aside the search order, for the seized items to be returned to their solicitors and for damages payable by the plaintiff...