Global Indian International School v Kathikala Vikram Sagar and Another

• Jurisdiction: Singapore
• Judge: Shobha G. Nair
• Judgment Date: 25 November 2008
• Neutral Citation: [2008] SGDC 351
• Court: District Court (Singapore)
• Year: 2008
• Published date: 07 January 2009
• Plaintiff Counsel: Deborah Barker, SC with Foo Cheow Ming (Khattar Wong)
• Defendant Counsel: Darshan Singh (Darshan & Teo),Daniel Koh with Wendy Low (Rajah & Tan LLP)
• Citation: [2008] SGDC 351

25 November 2008

District Judge Shobha G. Nair:

Introduction

1. This was an application by the 1^st and 2^nd defendants to discharge or vary an Anton Pillar Order (APO) and interlocutory injunction granted by a district judge in chambers on 5 June 2008 pursuant to an application made ex parte by the plaintiffs’ counsel.[note: 1]An application was also taken out by the 2^nd defendant to stay the execution of the orders pending the outcome of the applications for the discharge/variation of the same.[note: 2]Having heard from counsel for the plaintiff and defendant, I issued the following orders:

(a) In respect of summons 9389/2008 (application for discharge/variation by the 2^nd defendant) and 9470/2008 (application for discharge/variation by the 1^st defendant) the orders made ex parte on 5 June 2008 shall be discharged in its totality.

(b) An inquiry shall be made as to the damages sustained by the 1^st and 2^nd defendants by reason of the search order and injunction order which the plaintiff ought to pay according to the undertaking contained in the said order.

(c) The date seized by the plaintiff, copied and contained in three hard disks and held by the supervising solicitor shall be returned to the defendant. The same shall be held by the defendant’s counsel in safe custody pending the trial.

(d) Additionally there shall be no changes made to the DPS portal by the defendants pending litigation with the plaintiff.

(e) No order on summons 9856/2008.

(f) Costs to be agreed or taxed.

Factual matrix

2. The plaintiffs are a non-profit foundation incorporated in Singapore. Its principal focus is to serve the education needs of Indian expatriates globally. They run an educational institution in Singapore known as the Global Indian International School (GIIS) to cater for the education needs of the children of Indian expatriates. A software known as MyGIIS and the ownership of the same by the plaintiff form the central focus of the applications before me.[note: 3]

3. The 1^st defendant was an employee of the GIIS from May 2004. There appears to be a difference in the position of the parties as to the date he left the employ of the GIIS.[note: 4]He was in the employ of Maximas Technologies LLP for a short period of about three months thereafter before taking on the position of Senior Systems Analyst with the 2^nd defendant, Bliss Educational Trust Limited, also a Singapore registered company which runs the DPS International School (DPS). This school also caters for the education of the children of Indian expatriates in Singapore.

4. It was the plaintiff’s position that it owned the copyright and other intellectual property rights to a software known as MyGIIS. At GISS, the 1^st defendant was responsible for the maintenance duties of MyGIIS. This software is only available for use online over the Intranet of the plaintiffs. It is alleged that the 1^st defendant had therefore, access to confidential and proprietary information such as source codes, design documents, an exclusive mailing list of persons who were given copies of the GIIS newsletter online, assignments, worksheets created by the teachers of the GIIS solely for the students of GIIS and a complete electronic copy of the MyGIIS software. The plaintiffs maintained that the information is confidential and that the school would lose its competitive advantage in the education services industry should the confidential information fall into the hands of its competitors or other unauthorized persons. The defendants posed as competitors.

5. It was the position of the 1^st defendant that there was no originality in the MyGIIS software nor were the plaintiffs the owners of the software. It was not disputed that many persons were involved in the development of the MyGIIS software at GIIS. The 1^st defendant maintained that the information he possessed in his laptop which he was permitted by the plaintiffs’ chairman, Mr Arul Temurnika, to take with him when he left the employ of GIIS, was not critical information.

6. It was the plaintiffs’ position that the 1^st defendant had in breach of the terms of an employment agreement and in breach of his duty of fidelity to the plaintiffs, wrongfully passed on the confidential information to DPS. The 1^st defendant took the position that the employment contract itself was not binding on him as it was drafted by the GIIS, was not signed by the 1^st defendant and he was not even given a copy of the same. He accepted that a code of ethics was signed by him but was of the view that this did not form part of the employment contract.

7. Following the wrongful transmission of the information, it was alleged by the plaintiffs that the 2^nd defendant then infringed the plaintiffs copyright in the MyGIIS software by reproducing the work by using a substantively similar online application as the MyGIIS software and the same application filenames.

The discharge of the Anton Pillar Order and Injunction

8. The APO granted ex parte allowed the supervising solicitor (Mr Chung Ting Fai) together with counsel Foo Cheow Ming or Wun Rizwi from the firm of the plaintiffs solicitors and up to three other persons to enter the 2^nd defendant’s premises and have access to the computers on the premises or in the control of the defendants so that they can search for, inspect, photograph or photocopy, make electronic images or copies of and deliver into the safekeeping of the plaintiff’s solicitors the plaintiffs confidential information. The defendants were also obliged to allow the persons to complete their search and if necessary to allow re-entry into the premises on the same day or the following day to complete the search. The order went on to provide for certain restrictions and the ability of the defendants to seek legal advice before permitting entry to persons other than the plaintiffs solicitors and the supervising solicitor.

9. Paragraphs 6(b)(i) – (iii) reflected the injunction order. It provided that the 1^st defendant was restrained from acting in breach of the employment agreement or generally, the duty owed to the plaintiffs. It also provided that the defendants (the servants, employees or agents of the 2^nd defendant) were restrained from transmitting, disclosing, divulging, revealing, disseminating, publishing or otherwise howsoever using the plaintiffs’ confidential information in breach of confidence or as infringement of copyright to unauthorised persons, or cause, enable or assist others to do the same for the defendants own benefit or for the benefit of parties other than the plaintiffs. The defendants were also restrained from reproducing or causing or allowing the reproduction of the plaintiffs’ GIIS software or otherwise howsoever infringing the copyright in the plaintiffs’ GIIS software.

10. The substantive basis for granting an interlocutory injunction are clearly spelt out in the often quoted case of American Cyanimid Co Ltd v Ethicon Ltd (1976) AC 396 which has been approved locally as seen in the case of Federal Computer Services Sdn Bhd v Ang Jee Hai Eric [1991] SLR 259. Is there a serious question to be tried?[note: 5]Would an award of damages be adequate compensation to the plaintiffs should it be successful at the trial and are the defendants in a position to pay? What is the risk of injustice being done on granting the injunction? These are important questions to be addressed although in Chuan Hong Petrol Station v Shell Singapore [1992] 2 SLR 720, the Court of Appeal had expressed the view that the American Cyanamid principles are only guidelines. The governing test should be which course would carry a lower risk of injustice?

11. The APO is a draconian order to make. The court is placed in a position of having to balance the plaintiffs’ right to recover his property or preserve important evidence and the defendants’ right to privacy and a full opportunity to present their side of the case. I had to be satisfied that the plaintiffs have a strong prima facie case, the damage to its interests would be very serious, that there is clear evidence that the defendants have in their possession incriminating evidence and that there is a real risk that such evidence would be destroyed.

12. In my capacity as a judge...