Dynacast (S) Pte Ltd v Lim Meng Siang and Another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JC
• Judgment Date: 25 August 1989
• Neutral Citation: [1989] SGHC 76
• Docket Number: Suit No 1140 of 1989
• Date: 25 August 1989
• Published date: 19 September 2003
• Year: 1989
• Plaintiff Counsel: K Shanmugam (Drew & Napier)
• Citation: [1989] SGHC 76
• Defendant Counsel: George Lim (Wee Tay & Lim)
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,Affidavit in support of application for interim order,Anton piller orders,Whether non-disclosure innocent or not,Failure to state source of information,Whether non-disclosure a mere irregularity,Whether failure to make full and frank disclosure,Whether order can be discharged after execution,O 41 r 4 Rules of the Supreme Court 1970

Cur Adv Vult

The plaintiffs are manufacturers of small precision metal and plastic components. They are a wholly owned subsidiary of a multinational corp with headquarters in the United Kingdom. The defendants were formerly the employees of the plaintiffs, having at different times resigned from the employment of the plaintiffs.

The aim of the present action is essentially to restrain the defendants from making use of the plaintiffs` confidential/proprietary information and/or property without the plaintiffs` consent and to require the defendants to return to the plaintiffs all books, equipment, software and other property of the plaintiffs which are in the defendants` possession.

By an ex parte application made to the judge in chambers, the plaintiffs were, on 16 June 1989, granted an Anton Piller order permitting the plaintiffs by their representatives to enter the defendants` premises to search for and remove certain specified documents and articles of the plaintiffs. The Anton Piller order was executed on the same day and the plaintiffs recovered a number of articles and documents pursuant thereto. The things recovered were duly recorded and acknowledged by both parties.

The matter now before me is a motion by counsel for the defendants praying that (i) the interim order made on 16 June 1989 be discharged; (ii) the documents and articles taken by the plaintiffs as a result of the execution of the Anton Piller order be returned to the defendants or their solicitors within three days; and (iii) there be an inquiry as to damages suffered by the defendants.

Counsel for the defendants raised three grounds in support of the contention that the interim order should be discharged. Firstly, there was no full and frank disclosure of material facts on the part of the plaintiffs at the time when the interim order was obtained. Secondly, there was no evidence, or no adequate evidence, before the judge for him to make the interim order. Thirdly, the plaintiffs do not really have any cause of action and are just fishing.

The affidavit in support of the application for the interim order was affirmed by one John Wilson, the managing director of the plaintiffs, and filed on 14 June 1989. In this affidavit, Mr Wilson gave a brief account of the employment of each of the three defendants, together with an indication of the sort of proprietary and confidential information to which each defendant was given access to. At the time of the termination of employment of the first and second defendants, they were each told in writing not to directly or indirectly disclose or use `any Dynacast confidential information which was gained during your employment with us`. Both the second and third defendants had each, on 15 July 1987, long before their resignation, signed a confidentiality agreement, under which each of them agreed:

(a) not, directly or indirectly, to disclose or make available to anyone or to use outside the company organization during or after my employment, any confidential information ...

(b) in the event of termination of my company employment, promptly to deliver to the company all materials ... in my possession or control ...

In the said affidavit, Mr Wilson also stated that it has come to his knowledge that the first defendant has started a business in direct competition with the plaintiffs and has employed the second and third defendants. Then followed two paragraphs which are the paragraphs now under contention before me and it is necessary that I set them out in full:

14 It has come to my knowledge, yesterday, that Lim, Lynda and Han are in possession of confidential and proprietary information and articles which were taken from the plaintiffs, without the plaintiffs` knowledge or permission. Annexed hereto and marked `JGW 5` are the types of property/information that the defendants are likely to have obtained. I have also come to know that the defendants intend to destroy this information and articles should the plaintiffs come to know of the same.

15 I verily believe that the defendants must have obtained the said information and articles when they were employed by the plaintiffs. The defendants` conduct in this matter has been untrustworthy and questionable. There is a serious risk of the information and articles being destroyed and/or spirited away. Further, the plaintiffs would suffer irreparable harm should the defendants continue to have access to and use the plaintiffs` information and articles. Accordingly, the plaintiffs pray for an order in terms of this application.

Let me at the outset briefly dispose of the third ground - fishing. The statement of claim sets out clearly what is the cause of action and what reliefs the plaintiffs seek. In the application for the Anton Piller order, they specified what nature of articles and documents they were looking for. Quite clearly, there is no merit in this ground and counsel for the defendants quite rightly did not seriously pursue it.

No full and frank disclosure

The first ground of objection relates to the words `it has come to my knowledge yesterday` and `I have also come to know` in para 14 of Mr Wilson`s affidavit. Counsel for the defendants submitted that by not disclosing the source of that information there was a lack of full and frank disclosure of a material fact on the part of the plaintiffs and following the decision of the Court of Appeal in R v General Commissioners of Income Tax for Kensington [1917] 1 KB 486, the interim order should be discharged without going into the merits. Counsel also cited to me Thermax v Schott Industrial Glass [1981] FSR 289 which extended the principle to a situation where the failure to disclose was due to an error of judgment rather than to a deliberate attempt to mislead.

However, the rigour of this principle has in recent years been tempered in a number of cases, eg Lloyds Bowmaker v Britannia Arrow Holdings plc [1988] 3 All ER 178 and Brink`s-MAT v Elcombe [1988] 3 All ER 188. These authorities led Sir Nicolas Browne-Wilkinson VC in Dormeuil Freres SA v Nicolian International (Textiles) [1988] 3 All ER 197 to clarify the principle established in the earlier cases thus at p 199:

It is a basic principle, applicable to all ex parte applications, that a plaintiff seeking ex parte relief must make full disclosure to the court of all facts which are material to the exercise of the court`s discretion whether or not to grant the relief. If such disclosure is not made by the plaintiff, the court may discharge the ex parte injunction on that ground alone. But if, in the circumstances existing when the matter

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