Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd
Judge | Andrew Ang J |
Judgment Date | 06 August 2009 |
Neutral Citation | [2009] SGHC 177 |
Subject Matter | Laches,Correspondence amounting to acknowledgment of debt,Correspondence contained implied admission of debt,Striking out,Admissibility of evidence,Whether equitable defence applied to legal remedy in aid of legal right,Seller suing for debt owing for purchased goods,Section 26(2) Limitation Act (Cap 163, 1996 Rev Ed),Whether correspondence subject to "without prejudice" privilege,Civil Procedure,Whether acknowledgment stopped time bar from running,Evidence,Limitations of actions,Defences,Equity |
Citation | [2009] SGHC 177 |
Year | 2009 |
Defendant Counsel | Adrian Tan and Julian Kwek (Drew & Napier LLC) |
Plaintiff Counsel | Yap Yin Soon and Edmund Tham (Allen & Gledhill LLP) |
Court | High Court (Singapore) |
Published date | 07 August 2009 |
6 August 2009 |
|
Andrew Ang J:
Introduction
Background
WITHOUT PREJUDICE
AND SUBJECT TO CONTRACT
…
Dear Raymond
I am embodying a proposal for settlement in this short note:
(a) |
APP shall procure a third party payment to Bayer and Cytec for the sum of US$13 million and legal costs within 21 days of any settlement agreement. In return, and subject to the matters below, a new credit insurance line of US$11.7 million shall be granted to APP by Coface. |
(b) |
APP, Bayer and Coface will jointly agree an annual purchase volume within 48 hours from the date hereof. |
(c) |
APP will accept drafts for new deliveries maturing at 60 days from sight for a maximum order per month of US$1.2 million. If the draft is unpaid at maturity an avalisation from a Japanese Trading House acceptable to Coface shall be required within 5 working days. |
(d) |
This offer shall lapse at 1600 hours Singapore time on 3 August 2001. |
…
Yours sincerely
[signed]
Guy Lepage
Chairman
WITHOUT PREJUDICE
…
Dear Mr. Lepage:
I am sorry to inform you that we can not accept your proposal dated 31 july [sic] 2001. The proposal we offered in the meeting on 31 July 2001 in Singapore is already the best we can do to resolve the overdues considering the difficult situation we are currently in. Please kindly reconsider our proposal so we can start to discuss with Bayer and estimate the volume/value of purchase that we plan to re-route through Bayer/other trading firms. The payment scheme will follow our 110% program, that is the overdue payment will be paid to you in advance based on the 110% value of our purchases. In return you will provide credit insurance coverage to the purchase with 180 days terms.
I hope we can find an agreeable solution soon. Looking forward to hearing from you.
Yours sincerely,
Raymond Liu
[emphasis added]
Issues
9 Four main issues arise in the Registrar’s Appeals before me:
(c) Whether the plaintiff’s claim was time-barred.
(d) Whether the defence of laches was applicable.
Whether the correspondence in question was subject to “without prejudice” privilege
11 Counsel for the defendant argued that the Coface letter and the Raymond Liu e-mail (see [6] and [7] above) were protected by “without prejudice” privilege as they were expressly labelled as such and were part of negotiations aimed at settlement of a dispute concerning, inter alia, the Debt. According to the defendant, citing Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd
12 The plaintiff, on the other hand, relied on the analysis of Bradford & Bingley plc v Rashid [2006] 1 WLR 2066 (“Bradford & Bingley”) in Greenline-Onyx Envirotech Phils, Inc v Otto Systems Singapore Pte Ltd
(b) The use of a statement as an acknowledgment under s 26(2) of the Act.
The first represented the view of the majority of the law lords in Bradford & Bingley (see [20] below), and the latter two were derived from two separate minority opinions (see [33] and [34] below). I note that the Court of Appeal in Greenline-Onyx applied Bradford & Bingley in its entirety without endorsing the approach of the majority or the minority, leaving it open as to which view represented the correct balance between the “without prejudice” rule and the principle of acknowledgment. Because the contents of the letter in question clearly fall within all these formulations of principle expressed by their Lordships in Bradford & Bingley, the Court of Appeal was of the view that it was not necessary to decide which of the formulations ought to be followed for purposes of their judgment. Similarly, in the present case, the plaintiff argued that on all three counts, the Coface letter and the Raymond Liu e-mail were not subject to “without prejudice”...
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