HT S.R.L. v Wee Shuo Woon

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng JC
• Judgment Date: 15 February 2016
• Neutral Citation: [2016] SGHC 15
• Date: 15 February 2016
• Docket Number: Suit No 489 of 2015 (Registrar’s Appeal No 339 of 2015)
• Published date: 07 April 2017
• Plaintiff Counsel: Tan Gim Hai Adrian, Ong Pei Ching, and Yeoh Jean Wern (Morgan Lewis Stamford LLC)
• Hearing Date: 21 December 2015,08 January 2016
• Defendant Counsel: Lazarus Nicholas Philip (Justicius Law Corporation)
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,Remedies,Privileges,Admissibility of Evidence,Equity,Evidence

Hoo Sheau Peng JC: Introduction

Party A sues Party B. Subsequently, Party A’s computer systems are “hacked”, resulting in privileged and confidential communications between Party A and his lawyer which pertain to the pending suit being uploaded onto the internet. Party B has nothing to do with this. Can Party A stop Party B from using these communications in the pending suit? This was the central dispute in this appeal, and it raised interesting questions about the interaction between the concepts of admissibility, privilege, and confidentiality.

The facts

The facts are straightforward. The plaintiff, HT S.R.L. (“the Plaintiff”), an Italian company, specialises in security technology which it supplies to law enforcement and intelligence agencies. It commenced the present suit against the defendant, Wee Shuo Woon (“the Defendant”), for breaches of his employment contract.

After the commencement of the present suit, the Plaintiff’s computer systems were hacked by an unknown party. There is no evidence that the Defendant was involved in the hacking. Substantial amounts of information obtained from those systems were then uploaded onto the internet, including onto the website known as “WikiLeaks”. The uploaded information included certain email communications exchanged between the Plaintiff and their lawyers, M/s Morgan Lewis Stamford LLC (formerly known as Stamford Law Corporation) (“the Emails”). The Emails contained legal advice, as well as specific information and materials pertaining to the present suit. The Emails included express provisos that they “contain privileged and confidential information”.

Subsequently, the Defendant accessed the Emails on the internet. Relying on the contents of the Emails, the Defendant filed Summons No 3852 of 2015 under Order 18 r 19 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”), seeking to strike out the bulk of the Plaintiff’s Statement of Claim on the ground of abuse of process (“the striking out application”). The Defendant alleged that the present suit had been initiated for the collateral purpose of obtaining documents to further the Plaintiff’s interests in other proceedings. In the Defendant’s affidavit in support of the striking out application, he referred to the Emails and exhibited them. In response, the Plaintiff filed Summons No 3990 of 2015, seeking an order under O 41 r 6 of the Rules of Court for all references to the Emails in the body of the affidavit and the copies of the Emails themselves, which were exhibited in an annexure, to be expunged from the Defendant’s affidavit (“the prayer to expunge”), and for an injunction to restrain the Defendant from further use of the same (“the prayer for an injunction”). Should the prayer to expunge be allowed, the Defendant’s striking out application would not be sustainable as it was largely premised on the contents of the Emails.

When the parties appeared before the Assistant Registrar (“AR”), they were informed that injunctions were not routinely granted by ARs. In response, Plaintiff’s Counsel indicated that the Plaintiff was content to proceed only with the prayer to expunge, and not with the prayer for an injunction (while reserving the right to apply afresh for an injunction at a subsequent stage). Subsequently, the AR granted the prayer to expunge. Dissatisfied with the AR’s decision, the Defendant appealed. After hearing the parties, I dismissed the appeal. Given the novelty of the issues, I now provide my reasons.

The parties’ arguments

Before me, the parties did not dispute that prior to being uploaded onto the internet, the Emails attracted legal professional privilege, and that the Plaintiff did not waive such privilege. Also, the parties did not dispute that the Emails were originally confidential in nature. However, Counsel for the Defendant, Mr Nicholas Philip Lazarus (“Mr Lazarus”), contended that the AR had erred in proceeding on the basis that privilege continued to subsist in the Emails even after they had entered the “public domain” so as to grant the prayer to expunge. Broadly, Mr Lazarus put his case as follows: The question of whether the Emails may enter into evidence is a question of admissibility, and not privilege. The Evidence Act (Cap 97, 1997 Rev Ed) (“EA”) exhaustively governs the admissibility of evidence. Relevant evidence is admissible, unless such evidence falls within the exclusionary rules of the EA. All the provisions of the EA concerned with privileged communications, particularly ss 128 and 131, did not apply on the present facts. Any common law rule concerning privileged communications would not apply. In any event, under common law, the Emails would still be admissible. Even if the common law were to provide for the exclusion of privileged communications, the court should decline to do so because the Emails had already entered into the “public domain” in that they had been uploaded onto the internet and were freely available to anyone who might wish to access them.

I should state that Mr Lazarus’s arguments were different from those which he raised before the AR. Then, Mr Lazarus argued that privilege had been lost because of the Plaintiff’s iniquitous conduct in that the Plaintiff had initiated the present suit for a collateral purpose. This argument was not pursued on appeal, possibly because of the reasons given by the AR, who held that “this is far from a case whether there has been iniquitous conduct”.

In response, Counsel for the Plaintiff, Mr Adrian Tan (“Mr Tan”), submitted that the EA did not apply in this case since the EA did not govern the presentation of evidence by way of affidavits.

Relying on the position at common law, Mr Tan submitted that there was legal basis to grant the prayer to expunge. The Defendant had confused the concept of privilege with that of confidentiality. These are different legal doctrines with different consequences. The fact that the Emails could be viewed on the internet (and, presumably, that confidentiality has been lost), did not necessarily entail that privilege no longer subsisted. Considering the circumstances leading to the Emails being uploaded onto the internet, there could not be said to have been any waiver of privilege by the Plaintiff.

Turning to the “public domain” argument, Mr Tan stated that the expression “public domain” is a term of art which means entry into the court’s record. It is only when this takes place that otherwise privileged documents will lose their privileged status. The inclusion of privileged material in an affidavit, without more, does not constitute an entry into the court’s record if the substantive hearing in respect of which that affidavit has been filed has not taken place. Since the Defendant’s striking out application has yet to be heard, the Emails had yet to enter the “public domain”.

As privilege subsisted in the Emails, Mr Tan argued that “they obviously do not belong anywhere in the Court documents.” On a point of policy, he submitted that legal professional privilege would be critically undermined if the appeal were to be allowed because it would set a precedent that “a party can obtain information of the other party, by fair means or foul, and put the information in the public domain and then use it.”

The issues

From the foregoing, it is clear that the parties disagreed whether the matter should be examined through the lenses of the admissibility of evidence, privilege or confidentiality. For clarity, I thought it necessary to reframe the issues as follows: Was the matter governed exclusively by the EA? If Mr Lazarus was correct that only the EA need be considered, then the bulk of Mr Tan’s submissions, based on the common law, need not be considered. Did the common law provide the Plaintiff any basis to seek the prayer to expunge? The underlying question was whether the matter should be governed by the admissibility of evidence, privilege or confidentiality, or a combination of two or all three. Did the fact that the Emails had been uploaded onto the internet and were generally accessible pose a barrier to the grant of the prayer to expunge? In considering this issue, I will examine the “public domain” arguments raised by the parties.

Before I turn to the issues, I make one preliminary point. The prayer to expunge was brought under O 41 r 6 of the Rules of Court which provides that the “[c]ourt may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive.” The parties did not address me on the ambit of O 41 r 6, and proceeded broadly on the premise that if it were established that this court had any legal basis to restrain the use of the Emails, then the court could grant the prayer to expunge under O 41 r 6. Accordingly, I proceeded on this basis.

Was this matter governed exclusively by the Evidence Act?

Mr Lazarus submitted that the EA only protects legal professional privilege as follows: (a) it enjoins advocates and solicitors from disclosing any communications made to them in the course of and for the purpose of their employment as advocates and solicitors without their client’s express consent (s 128(1) of the EA); and (b) it affords persons an immunity from being compelled to disclose confidential communications between them and their legal professional advisors (s 131(1) of the EA). It was clear that neither of these provisions applied in this matter. Mr Lazarus further submitted that the EA exhaustively governs all rules relating to evidence in judicial proceedings, and the absence of any specific provision providing for the exclusion of privileged communications from evidence is therefore fatal to the prayer to expunge. In my view, the Defendant’s latter contention was unmeritorious.

First, the EA does not go so far as to say that the common law is entirely irrelevant. Section 2(2) says that “[a]ll rules of evidence not contained...