Brink's Inc and Another v Singapore Airlines Ltd and Another

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 15 May 1998
• Neutral Citation: [1998] SGCA 33
• Date: 15 May 1998
• Subject Matter: Civil Procedure,Legal privilege,Disclosure of documents,Whether report for dominant purpose of obtaining legal advice,Whether litigation a reasonable prospect,Report on investigations by loss adjusters
• Docket Number: Civil Appeal No 186 of 1997
• Published date: 19 September 2003
• Defendant Counsel: Lok Vi Min and Lim Tchuang Cheio (Rodyk & Davidson)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Steven Chong SC and Philip Tay (Rajah & Tann)

Brink's Inc and another

Plaintiff

and

Singapore Airlines Ltd and another

Defendant

[1998] SGCA 33

M Karthigesu JA

and

L P Thean JA

Civil Appeal No 186 of 1997

Court of Appeal

Civil Procedure–Disclosure of documents–Legal privilege–Report on investigations by loss adjusters–Whether litigation a reasonable prospect–Whether report for dominant purpose of obtaining legal advice

The appellants provided security services to escort gold bars. The first respondent shipped the gold bars by air to Penang. Upon arrival, the gold was received by the second respondent who was the ground handling agent. Before the gold could be stored in a vault, it was stolen from a stronghold room in the cargo complex. The appellants commenced an action against the respondents in respect of the loss of gold bars by robbery.

The first respondent commissioned a report of investigations on the robbery from a firm of loss adjusters, M/s Graham Miller. The appellants sought discovery of the report which the assistant registrar ordered. On appeal, the judge in chambers reversed the decision of the assistant registrar and held that the report was privileged from disclosure. The judge found that given the value of the goods stolen, it was clear to the respondents that a claim or legal action against them was extremely likely and in those circumstances, the respondents obtained the report with the view to ascertain their potential liability. The appellants appealed. Before the Court of Appeal, the issue was whether the report was obtained for the dominant purpose of obtaining legal advice.

Held, allowing the appeal:

(1) It was established law that communications between the client and third parties attracted legal privilege only if the document was obtained for the dominant purpose of obtaining legal advice upon pending or contemplated litigation. The onus was on the party refusing disclosure to prove that the facts satisfied this criterion: at [6].

(2) The purpose of obtaining legal advice was paramount. Privilege did not attach to all professional advice taken merely on the basis that it was normal or procedural for an insurer to instruct reports to be made in the immediate aftermath of an incident and for such reports to be forwarded to solicitors: at [7].

(3) While the size of any claim was an important factor in determining whether or not to seek legal advice, the material consideration had to be whether on the facts the value of the gold bars stolen elevated an average possibility of a claim to a level that litigation was a reasonable prospect: at [19].

(4) On the facts, the respondents did not prove that the report was obtained for the dominant purpose of obtaining legal advice at a time when litigation was a reasonable prospect. Accordingly the report was not privileged from disclosure and the appeal was allowed: at [20] and [22].

Canadian National Railway Co v McPhail's Equipment Co Ltd (1977) 16 NR 295 (refd)

Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 2 All ER 716; [1987] 1 WLR 1027 (distd)

Highgrade Traders Ltd, Re [1984] BCLC 151 (refd)

Melik & Co Ltd v Norwich Union Fire Insurance Society and Kemp [1980] 1 Lloyd's Rep 523 (folld)

Philippine Victory, Re The (26 November 1991) (refd)

Waugh v British Railways Board [1980] AC 521 (folld)

Steven Chong SC and Philip Tay (Rajah & Tann) for the appellants

Lok Vi Ming and Lim Tchuang Cheio (Rodyk & Davidson) for the respondents.

M Karthigesu JA

(delivering the grounds of judgment of the court):

1 This was an appeal from the decision of a judge in chambers in Registrar's Appeal No 213 of 1997 that “the report or reports of Messrs Graham Miller on the robbery of 6 January 1993” (“the Graham Miller report”) was privileged from disclosure. The report dated 9 March 1993 was of investigations conducted by Graham Miller, a firm of loss adjusters, into the armed robbery of 6 January 1993 at Bayan Lepas Airport in Penang, Malaysia of 50kg of gold bars worth US$578,703.70, which was the subject matter of this action. We allowed the appeal and now give our reasons.

Background facts

2 The appellants provided security services for escorting the gold bars in Singapore and had delivered the same to the first respondents, Singapore Airlines Ltd, for carriage by air. From Singapore, the gold bars were then shipped by air on board Singapore Airlines flight number 192 to Bayan Lepas Airport in Penang, Malaysia. Upon arrival, the gold bars were received by the second respondents, Malaysian Airlines System Bhd, who were the ground handling agents. They were then taken to the strongroom office in the cargo complex. The gold bars were temporarily placed on a table in the strongroom office before they could be moved into the vault where they were to be stored. It was at this moment that three armed robbers entered the strongroom, tied up the security guards and made off with the gold bars. The robbers had gained entry to the cargo complex by depositing forged identity cards at the security post in exchange for security passes. They were able to leave the complex before any security personnel could take down their vehicle number and there is to date no trace of the robbers or their loot.

Proceedings in the court below

3 The cargo owners' claims were settled by the first appellants' insurers. Rights of action for the loss of the gold bars were assigned to the appellants who claimed in these proceedings as assignors. The appellants commenced action against the respondents for the loss of 50kg of gold bars worth US$578,703.70 by armed robbery. The respondents denied liability. On 24 October 1996, the respondents filed a combined list of documents together...