Dorsey James Michael v World Sport Group Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 14 January 2014
• Date: 14 January 2014
• Docket Number: Civil Appeal No 167 of 2012
• Court: Court of Appeal (Singapore)

Dorsey James Michael

Plaintiff

and

World Sport Group Pte Ltd

Defendant

[2014] SGCA 4

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

V K Rajah JA

Civil Appeal No 167 of 2012

Court of Appeal

Civil Procedure—Interrogatories—Application for leave—Court having to take multi-factorial approach in assessing merits of pre-action interrogatories application

Civil Procedure—Interrogatories—Application for leave—Requirements for pre-action interrogatories—Order 26 A r 1 (1) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Contract—Contractual terms—Confidentiality agreement—Remedy for breach—Countervailing public interest consideration of exposing corruption

Tort—Defamation—Defence of fair comment

The appellant, James Michael Dorsey (‘Dorsey’), made extensive references to and quoted a report (‘the PWC Report’) and a Master Commercial Rights Agreement (‘MRA’) between the respondent, World Sport Group (‘WSG’), and the Asian Football Confederation (‘AFC’) in his blog posts. The PWC Report generated great international media interest and controversy as it raised troubling questions about the propriety of the MRA structure and its terms. WSG sought leave to serve on the appellant pre-action interrogatories to ascertain the sources of his information. In making this application, WSG alleged that the PWC Report and the MRA had been distributed to third parties and Dorsey in breach of a duty of confidentiality owed to it. WSG additionally alleged that the PWC Report contained statements and innuendos which defamed it. WSG stated that it was contemplating the commencement of proceedings for breach of confidentiality and defamation, and that pre-action interrogatories would assist them in ascertaining the nature of any breach of a duty of confidentiality and identifying potential parties to those proceedings.

The High Court directed Dorsey to answer the pre-action interrogatories pertaining to the sources' identity and relationship to the AFC, and reveal whether a copy of the MRA had been given to Dorsey and if so by whom.

Held, allowing the appeal:

(1) The grant of pre-action interrogatories, while not exceptional, is not usual. The requirements of relevance and necessity were crucial in assessing the justness of allowing pre-action interrogatories. In assessing necessity, considerations such as proportionality, the availability of alternative avenues and the intrusiveness of the interrogatories were relevant: at [47] to [49] .

(2) A court ought not to make an order for pre-action disclosure if it had not been provided with sufficient information to adequately assess the necessity of disclosure. The court ought to take a multi-factorial view and question whether it was just (as well as necessary) for the applicant to secure the information sought even before any proceedings were commenced. Generally, the applicant had to show that the circumstances of the case differed from the normal and that the order was sought for proper reasons of process, and not to embarrass and/or oppress: at [49] and [50] .

(3) WSG had made two separate allegations of wrongdoing: one against Dorsey for publishing defamatory remarks and the other against the sources for publishing the contents of the PWC Report and/or the MRA. WSG seemed far more serious about pursuing the latter than the former: at [52] to [54] .

(4) It was premature to assess Dorsey's potential success in running the defence of fair comment, and the materials on the matter were scant. While the prospect of a significant denial of justice was a factor in the balance of interests, it was not a decisive consideration: at [59] and [60] .

(5) The high level of exposure that the PWC Report had already received in the international press and the fact that WSG had not been singled out for mention cast doubt over WSG's ‘real interest’ in needing to identify the sources. Moreover there was no evidence that Dorsey or the sources were motivated by malice or ill feeling against WSG: at [61] , [62] and [65] .

(6) Pre-action interrogatories could only be ordered in relation to intended proceedings in a Singapore court. It was not clear that the breach or leakage of information to Dorsey even occurred in Singapore at all and there were no likely prospects of subsequent proceedings being held in Singapore: at [66] to [70] .

(7) WSG had failed to explain why it had failed to act immediately to clear their name by suing Dorsey directly when there already appeared to be a complete cause of action in defamation against him: at [62] , [71] and [72] .

[Observation: Corruption anywhere raised serious concerns as it inevitably undermined good governance. If occurring in international organisations, it would not only undermine good governance but also distort international competitiveness and subvert fair play. It would be grotesque for a party implicated in corrupt activities to assert that the courts ought to defer to contractual arrangements importing confidence if those very arrangements were infected by sordid criminality. To adapt a well-known dictum,sunlight was the best disinfectant for corruption: at [76] .]

AG v Observer Ltd [1990] 1 AC 109 (refd)

Anglo Irish Bank Corp plc v West LB AG [2009] EWHC 207 (Comm) (refd)

Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033 (refd)

Asta Rickmers Schiffahrtsgesellschaft mb H & Cie KG v Hub Marine Pte Ltd [2006] 1 SLR (R) 283; [2006] 1 SLR 283 (refd)

Bayerische Hypo- und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd [2004] 4 SLR (R) 39; [2004] 4 SLR 39 (refd)

British Steel Corp v Granada Television Ltd [1981] AC 1096 (folld)

Clift v Clarke [2011] EWHC 1164 (QB) (refd)

Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 (refd)

Foo Ko Hing v Foo Chee Heng [2002] 1 SLR (R) 664; [2002] 2 SLR 361 (refd)

John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 (distd)

Kneale v Barclays Bank plc [2010] EWHC 1900 (Comm) (refd)

Kuah Kok Kim v Ernst & Young [1996] 3 SLR (R) 485; [1997] 1 SLR 169 (refd)

Long Beach Ltd v Global Witness Ltd [2007] EWHC 1980 (QB) (refd)

Navigator Investment Services Ltd v Acclaim Insurance Brokers Pte Ltd [2010] 1 SLR 25 (refd)

Ng Giok Oh v Sajjad Akhtar [2003] 1 SLR (R) 375; [2003] 1 SLR 375 (refd)

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (refd)

P v T Ltd [1997] 1 WLR 1309 (refd)

President of the State of Equatorial Guinea v Royal Bank of Scotland International [2006] UKPC 7 (refd)

R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2009] 1 WLR 2579 (refd)

Rugby Football Union, The v Consolidated Information Systems Ltd [2012] 1 WLR 3333; [2013] FSR 23 (refd)

Tan Seow Cheng v Oversea-Chinese Banking Corp Ltd [2003] SGHC 30 (refd)

United Company Rusal plc v HSBC Bank plc [2011] EWHC 404 (QB) (refd)

XL London Market Ltd v Zenith Syndicate Management Ltd [2004] EWHC 1182 (Comm) (refd)

Prevention of Corruption Act (Cap 241, 1993 Rev Ed) s 36

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 24 r 6, O 26 A r 1, O 26 A r 2 (consd) ;O 24 r 7, O 26 A, O 26 A r 1 (3) , O 26 A r 1 (3) (b) , O 26 A r 1 (5) , O 26 A r 5

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 18 (2) , 34 (1) (a) , First Schedule, First Schedule para 12, Fourth Schedule para (i)

Defamation Act 1974 (NSW) s 22

N Sreenivasan SC and Sujatha Selvakumar (Straits Law Practice LLC) and George Hwang (George Hwang LLC) for the appellant

Deborah Barker SC and Ushan Premaratne (Khattar Wong LLP) for the respondent.

Judgment reserved.

V K Rajah JA

(delivering the judgment of the court):

1 This appeal raises important questions about the proper exercise of judicial discretion in the ordering of pre-action interrogatories. The grant of pre-action interrogatories, while not exceptional, is not usual. It requires a court to take a multi-factorial approach that necessitates the answering of a number of questions. What matters can and/or ought to be considered by a court in assessing the merits of a pre-action application for interrogatories? What is the relevance of the particular subject matter of the proceedings? When is it just to grant pre-action interrogatories? Here, at the heart of the existing legal controversy are potential claims for defamation and breach of confidence arising from the publication of certain blog posts alleging that serious improprieties had been committed by a former head of an international sports body by entering into questionable transactions with certain commercial entities.

Facts

Parties to the dispute

2 The appellant, James Michael Dorsey (‘Dorsey’) is a senior fellow at the SRajaratnam School of International Studies, Nanyang Technological University (‘NTU’). In addition, Dorsey asserts that he continues to be a journalist and has been one for almost four decades. He has at various times worked as a foreign correspondent for the New York Times, Financial Times, and the Wall Street Journal. At all material times, Dorsey maintained a blog titled ‘The Turbulent World of Middle East Soccer’ (http://mideastsoccer.blogspot.sg/), where he discussed political, economic and social issues relating to the sport of soccer in the Middle East.

3 The respondent, Word Sport Group (‘WSG’), is an international sports marketing, media and event management company. Part of its business involves the sale and exploitation of commercial rights in connection with sporting events taking place throughout Asia and the Middle East. WSG and its related entities have had commercial links with the Asian Football Confederation (‘AFC’) since 1993. On 15 June 2009, the AFC and World Sport Football, a company associated with WSG, entered into a ‘Master Commercial Rights Agreement’ (‘MRA’) in relation to the commercial rights of major football competitions held under the auspices of the AFC. The MRA was novated to WSG on 1 January 2010. It is this document that takes centre stage in...