Gelatissimo Ventures (S) Pte Ltd and Others v Singapore Flyer Pte Ltd

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 21 October 2009
• Neutral Citation: [2009] SGHC 235
• Docket Number: Originating Summons No 291 of 2009 (Registrar's Appeal No 207 of 2009)
• Date: 21 October 2009
• Year: 2009
• Published date: 18 February 2010
• Plaintiff Counsel: Navinder Singh and Peter Doraisamy (Navin & Co LLP)
• Citation: [2009] SGHC 235
• Defendant Counsel: Lionel Tan and Sheik Umar (Rajah & Tann LLP)
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,Evidence

21 October 2009

Lai Siu Chiu J:

1 This was an appeal in Registrar’s Appeal No 207 of 2009 (the defendant’s appeal”) by Singapore Flyer Pte Ltd (“the defendant”) against the decision of the Assistant Registrar (“AR”) who had granted the application of Gelatissimo Ventures (S) Pte Ltd and four others (“the plaintiffs”) to strike out certain passages from the affidavit of Mr Yeo Lay Wee (“Yeo”) filed on behalf of the defendant on 21 April 2009. Yeo’s affidavit had been filed to contest a pre-action discovery application which had been taken out by the plaintiffs. The AR ordered the paragraphs to be struck out on the basis that they made reference to certain privileged communication between the plaintiffs and their solicitor. I heard and dismissed the defendant’s appeal. The defendant is dissatisfied with my decision and has filed a Notice of Appeal (in Civil Appeal No 95 of 2009) against the same.

The facts

2 The defendant is the operator of the Singapore Flyer (“the Flyer’), which is the world’s largest giant observation wheel. It is also the landlord of the retail terminal at 30 Raffles Avenue that surrounds the Flyer.

3 The plaintiffs are the tenants at the retail terminal. The plaintiffs entered into tenancy agreements with the defendant in the period between September 2007 and February 2008.

4 On 23 December 2008, the Flyer stopped revolving due to a technical malfunction. Operations at the Flyer were suspended for one month and the Flyer reopened on 26 January 2009. The plaintiffs subsequently filed in Originating Summons No 291 of 2009, Summons No 1936 of 2009 (“the application”) against the defendant for pre-action discovery pursuant to Order 24 Rule 6(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”).

5 The defendant resisted the application by countering, inter alia, that the plaintiffs already had sufficient information to commence proceedings. Further, the defendant claimed that the plaintiffs had a collateral purpose in seeking discovery because their true motive was to feed any discovered documents to the press. The defendant relied on the affidavit filed by Yeo who is the Centre Manager of the Flyer, to support its argument. In particular, it relied on certain paragraphs in Yeo’s affidavit which made reference to an email thread between the plaintiffs and their solicitor Navinder Singh (“NS”).

6 In his affidavit, Yeo asserted that the plaintiffs were seeking to abuse the court process by the application. He then set out the text of an email from NS to the plaintiffs on 27 February 2009 to support his assertion.

7 Upon receipt of Yeo’s affidavit, NS filed an affidavit on 24 April 2009. Essentially, NS claimed that the email in question which was part of an email thread contained privileged communications and he sought to expunge the portions of Yeo’s affidavit that made reference to it.

The circumstances under which the defendant obtained the email thread

8 The defendant received the email thread from Mr Jawahar Ali (“Jawahar”) of Shalimar Palace which is a tenant of the defendant. Jawahar was also originally one of the plaintiffs until 4 March 2009 when he informed them of his intention to withdraw from the legal action against the defendant. Following his withdrawal, Jawahar sent an email to the defendant to confirm that he would not be taking further action against them. The defendant came into possession of the email thread because the email it received from Jawahar contained the entire email chain between the plaintiffs and NS.

Counsel’s submissions

9 The plaintiffs claimed that the email thread was privileged and that the defendant should not be allowed to admit it as evidence of the communications between NS and the plaintiffs.

10 The defendant did not contest the privileged nature of the email thread. However, it claimed that the privilege had been waived when Jawahar forwarded the email to the defendant without reservations. In the alternative, the defendant relied on the case of Calcraft v Guest [1898] 1 QB 759 to contend that the privilege in a document is lost once it has been disclosed. Finally, the defendant argued that even if the privilege in the email had not been waived or lost, the court should not enforce the privilege because it fell within the fraud exception.

Issues raised

11 The defendant’s appeal raised the following issues:

(a)	What was the status of the email thread?
(b)	Had the privilege in the email thread been waived?
(c)	What was the effect of inadvertent disclosure of a privileged document to an adversarial party?
(d)	Did the email thread fall within the ambit of the fraud exception under s 128(2) of the Evidence Act (Cap 97, 1997 Rev Ed) (“the EA”)?

The status of the email thread

12 Legal professional privilege can be divided into legal advice privilege and litigation privilege. Legal advice privilege is contained in s 128 of the EA. It covers all communications between a party and his lawyer. Litigation privilege exists in s 131 of the EA by virtue of the common law. It covers all communications between a party and his lawyer as well as with other third parties that were made for the predominant purpose of litigation (see Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and Other Appeals[2007] 2 SLR 367 (“Skandinaviska”)).

13 In this case, the email thread was part of the communication between the plaintiffs and their solicitor. Hence, there was little doubt it fell within the ambit of legal advice privilege under s 128 of the EA. At the same time, the communication in the email was made for the predominant purpose of preparing for litigation against the defendant. Consequently, it was also protected by litigation privilege under s 131 of the EA

14 Among the emails included in the email thread, there was one sent by NS to the plaintiffs (including Jawahar) on 19 February 2009 at 20:41, that said:

…I have to emphasise we are ALL bound by strict confidentiality and any disclosure to the management of what we discuss will not only prejudice our case but incur personal individual liability for the common law tort of breach of confidence. I can easily persuade a judge to compel disclosure of sources of confidential information the Flyer was not supposed to have.

15 Looking at the above email, I was of the view that whatever information that was exchanged between NS and the plaintiffs was done in circumstances that imposed on all parties a duty of confidentiality. That must have been clear to the defendant when it saw the email thread. Privilege aside, the email thread constituted confidential information and was prima facie eligible for protection against unauthorised disclosure or use.

16 It should be noted that privilege and confidentiality are two separate legal doctrines that entail different legal consequences. Since the email thread constituted both privileged and confidential information, the defendant could not use it unless it was able to show why both the privilege and confidential nature of the documents had been lost.

Had the privilege in the email thread been waived?

17 It was not disputed that NS was jointly retained by the plaintiffs (including Jawahar) for the purpose of commencing legal action against the defendant. Accordingly, the privilege that attached to the email thread was owned jointly by the plaintiffs and could only be waived if all of them agreed to do so. (see Re Konigsberg (A Bankrupt)[1989] 1 WLR 1257; The Sagheera [1997] 1 Lloyd’s Rep. 160).

18 In this case, it was not clear whether Jawahar intended to waive the privilege in the email thread when he sent it to the defendant. What was clear, however, was that the remaining plaintiffs had done nothing to show that they would be willing to waive the privilege in respect of the email thread. Indeed, I would be surprised if they had done so.

19 Accordingly, I find that the plaintiffs did not waive their privilege in relation to the email thread.

Did the inadvertent disclosure of the email thread affect its privileged status?

20 Counsel for the defendant had relied on the case of Calcraft v Guest (supra 10) as well as Webster v James Chapman & Co (a firm) [1989] 3 All ER 939 to support his argument that even if the information contained in the email thread was privileged, secondary evidence of that communication (ie, the email thread) could be produced in evidence.

21 I did not think that the principles cited in those two cases represented the status of the law of privilege in Singapore. First, the applicability of Calcraft had been doubted by the Singapore High Court in Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and Others [2009] 1 SLR 42“Tentat”]. In that case, Kan Ting Chiu J, having reviewed various authorities on the effect of inadvertent disclosure of privileged documents, stated at p 53 para [38] that

Although Calcraft is established law, uncertainties remain over its rationale and application. Ashburton, on the other hand, is clear in allowing a party to object to the use of privileged documents or copies of such documents. Ashburton is uncomplicated on its own; it is its relationship with Calcraft that is challenging”.

22 Secondly, the learned judge pointed out that the Australian High Court in Baker v Campbell 49 ALR 385 had refused to apply Calcraft, while the New Zealand Court of Appeal in R v Uljee [1982] 1 NZLR 561 had stated clearly that it did not regard Calcraft as standing for the proposition that secondary evidence of privileged documents was admissible.

23 Thirdly, looking at the actual decision in Tentat, it seemed clear that Kan J had actually rejected the principles stated in Calcraft in favour of a more protective attitude towards privileged documents. In Tentat the plaintiff had applied for summary judgment against the defendant. One of the defendant’s witnesses included within his affidavit an email communication from the plaintiff’s...