Foo Jong Long Dennis v Ang Yee Lim and another

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 29 January 2015
• Neutral Citation: [2015] SGHC 23
• Plaintiff Counsel: Tan Chuan Thye, Kenneth Chua and Stephany Aw (Stamford Law Corporation)
• Docket Number: Suit No 72 of 2013
• Date: 29 January 2015
• Hearing Date: 18 November 2014
• Subject Matter: Discovery of documents,Civil Procedure
• Published date: 30 January 2015
• Citation: [2015] SGHC 23
• Defendant Counsel: Harry Elias SC, Andy Lem, Toh Wei Yi and Farrah Isaac (Harry Elias Partnership LLP)
• Court: High Court (Singapore)
• Year: 2015

Chan Seng Onn J: Introduction

The matter before me concerned an issue of law not hitherto considered by any court in Singapore. It was raised as a preliminary issue on the first day of trial by counsel for the first and second defendants (“the Defendants), Mr Harry Elias SC. In a nutshell, it pertained to whether a document disclosed during discovery in a prior suit – and that is thus subject to an implied undertaking not to be used for any collateral or ulterior purpose (the “Riddick principle”) – ceased to be subject to that undertaking once it had been used in open court in the prior suit.

The Parties

The relationship of the parties was not relevant to the specific question of law that was before the court. However, for completeness, I would briefly describe the history of their relationship. The plaintiff and the Defendants were shareholders of Raffles Town Club Pte Ltd (“RTC”), ABR Holdings Limited (“ABR”) and Europa Holdings Pte Ltd (“EH”). Their holdings in ABR were through two companies which were incorporated in the British Virgin Islands, namely, Goldhurst Properties Limited and Sullivan Developments Limited.

The plaintiff and the first defendant were directors of RTC, ABR and EH. The second defendant was also a director of RTC, ABR and EH, although he ceased to be a director before the plaintiff and 1st defendant did.

Background

In 2000, the following suits involving the parties were instituted (collectively referred to as “the Year 2000 Suits”): Suit No 742 of 2000 involved a third party, Peter Lim Eng Hock (“Peter Lim”), suing the plaintiff and the Defendants in this case for the specific performance of an oral agreement involving the shares of RTC. According to Peter Lim, the oral agreement involved a promise to him of 40% of the shareholding of RTC. Suit No 782 of 2000 involved a claim by RTC against the first defendant and Peter Lim for a sum in excess of $51 million. Suit No 905 of 2000 involved a claim by RTC against the second defendant for a sum of almost $6 million. Suit No 1000 of 2000 involved a suit in which the Defendants sued the plaintiff and Peter Lim, alleging them of the wrongful conversion of certain bearer share certificates.

The trial for the Year 2000 Suits commenced in 2001. The trial had been partially heard when the matters were referred to mediation. The mediation sessions at the Singapore Mediation Centre were attended by the plaintiff, the Defendants and Peter Lim, all of whom were involved in the Year 2000 Suits.

An agreement was finally reached and a Deed of Settlement was eventually executed by the plaintiff, the Defendants, Peter Lim and one Ricky Goh Hoon Kan on 19 April 2001.

The matter did not end there. In 2006, RTC instituted Suit No 46 of 2006 (“the Year 2006 Suit”) against Peter Lim, the plaintiff and the Defendants for breach of directors’ duties owed to RTC.

Pursuant to discovery obligations in the Year 2006 Suit, the Defendants furnished a handwritten document in the Chinese language. This document was titled “Minutes of Meeting” and dated 14 April 2001 (“the 14 April Minutes”). The 14 April Minutes had not been disclosed during the mediation process and negotiations leading up to the execution of the Deed of Settlement in 2001.

During the course of the trial for the Year 2006 Suit, counsel for Peter Lim referred to the 14 April Minutes during his cross-examination of the first defendant and second defendant. The 14 April Minutes was also referred to during the cross-examination of the second defendant by counsel for one Margaret Tung (who was added as a third party in the Year 2006 Suit). Parts of the official translation into English of the 14 April Minutes were read out during the cross-examination mentioned above. All of these were recorded in the verbatim transcripts of the trial proceedings. It was therefore not disputed that the 14 April Minutes was referred to and used in open court.

The Year 2006 suit ended with a dismissal of both the claim and the counterclaims by the High Court. On appeal, RTC’s appeal was dismissed but the appeal by the Defendants was allowed in part.

One would not be faulted for thinking that was the end of the saga. It was not to be. The plaintiff instituted this suit against the Defendants for damages for, inter alia, deceit, misrepresentation, conspiracy and for breach of the Memorandum and Articles of Association (“M&A”) of RTC and EH and for breach of the Singapore Exchange Trading Limited Listing Manual (“SGX Rules”).

According to the plaintiff, the 14 April Minutes constituted evidence of an agreement (“the Agreement”) between the Defendants and third parties which provided, inter alia, that the Defendants agreed to sell their shares in RTC, ABR and EH to the third parties for $36 million. The plaintiff claimed, inter alia, that the Agreement was in breach of the M&A of RTC and EH, and by failing to disclose the Agreement during the mediation and negotiations leading up to the execution of the Deed of Settlement in 2001, the Defendants had acted fraudulently. The plaintiff also claimed damages for misrepresentation and conspiracy. In addition to the above, the plaintiff claimed that the failure to disclose the Agreement was a breach of the SGX Rules on public disclosure to shareholders since ABR was a listed company.

The 14 April Minutes became crucial to the plaintiff’s claim. It was the main piece of evidence that the plaintiff was relying on to establish the Agreement.

One of the defences raised by the Defendants was that the use of the 14 April Minutes was a breach of the Riddick principle. According to the Defendants, the 14 April Minutes obtained by the plaintiff through discovery in the Year 2006 Suit had to be used only for purposes relating to the Year 2006 Suit. The use of the 14 April Minutes in this suit was thus for an improper or collateral purpose and in breach of the Riddick principle.

On the other hand, the plaintiff’s position was that the Riddick principle was not breached because it ceased to apply to the 14 April Minutes once it had been used in open court.

Prior to trial, the Defendants took out an application in Summons No 2757 of 2013 to strike out the plaintiff’s statement of claim pursuant to O 18 r 19 of the Rules of Court (Cap 332, R 5, 2006 Rev Ed) on the basis that the use of the 14 April Minutes was a breach of the Riddick principle. The application to strike out was not granted.

On the first day of trial, Mr Harry Elias SC raised this same issue as a preliminary point for determination. As mentioned above (at [13]), the 14 April Minutes was central to the plaintiff’s case. In fact, had I found that the Riddick principle applied to prevent the plaintiff from using the 14 April Minutes, that would have been fatal to the plaintiff’s case. This much was conceded by counsel for the plaintiff, Mr Tan Chuan Thye.

After hearing both parties, I decided that the Riddick principle did not apply to the April 14 Minutes. Accordingly, I ordered the trial to continue. The trial is presently part-heard. As the Defendants appealed against my ruling on the preliminary issue, I now give my reasons.

The Issue

The sole preliminary issue which concerned the court was whether the Riddick principle ceased to apply once the 14 April Minutes had been used in open court.

My Decision The Riddick principle in Singapore

It was not disputed that a party to litigation who had obtained discovery of a document owed an implied undertaking to the court not to use that document for any collateral or ulterior purpose. The principal question concerned the nature of the exceptions (if any) to the general Riddick principle. In Riddick v Thames Board Mills Ltd [1977] QB 881 (“Riddick”), an issue arose as to whether the staff report prepared by the defendant on Riddick, which was disclosed during discovery in an action brought by Riddick for wrongful dismissal, could be used in a subsequent defamation suit that was based on the very report disclosed in the first suit (which was eventually settled before trial). The Court of Appeal held that Riddick was not entitled to use the report. Lord Denning MR explained as follows at 895:

Discovery of documents is a most valuable aid in the doing of justice. The court orders the parties to a suit - both of them - to disclose on oath all documents in their possession or power relating to the matters in issue in the action. Many litigants feel that this is unfair…

The reason for compelling discovery of documents in this way lies in the public interest in discovering the truth so that justice may be done between the parties. That public interest is to be put into the scales against the public interest in preserving privacy and protecting confidential information. The balance comes down in the ordinary way in favour of the public interest of discovering the truth, i.e. in making full disclosure. This balancing act – of weighing the competing public interests – is what I advocated in my judgment in D. v. National Society for the Prevention of Cruelty to Children… The thing to do in every case is to weigh the competing public interests and see which way the scales come down…

I proceed to hold the balance in the present case. On the one hand discovery has been had in the first action. It enabled that action to be disposed of. The public interest there has served its purpose. Should it go further so as to enable the memorandum of 16 April, 1969, to be used for this libel action? I think not. The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party – or anyone else – to use the documents for any ulterior or alien purpose. Otherwise the courts...