Jay Shah v My Republic Group Limited and another

JurisdictionSingapore
JudgeKoh Jiaying
Judgment Date30 October 2020
Neutral Citation[2020] SGDC 251
CourtDistrict Court (Singapore)
Docket NumberDistrict Court Summons No 1970 of 2020 in District Court Suit No 833 of 2020
Year2020
Published date05 November 2020
Hearing Date05 August 2020,03 September 2020,11 August 2020,02 September 2020
Plaintiff CounselNadia Ui Mhuimhneachain (August Law Corporation)
Defendant CounselDeborah Evaline Barker SC, Amarjit Kaur and Jayna Tan Yi Hui (Withers KhattarWong LLP)
Subject MatterCivil Procedure,Production of documents,Objections,Whistleblowing policy
Citation[2020] SGDC 251
Deputy Registrar Koh Jiaying:

This was the plaintiff’s application for the first defendant to produce the unredacted copy of a document shown at Annex A of the summons, and for the plaintiff to be at liberty to inspect and make copies of the same. While Annex A of the summons was a two page document, it was not disputed that the redacted document that was produced to the plaintiff was a three page document, with the third page left out in error and being immaterial to the application as it was not redacted.

The unredacted document sought for production was a chain of emails beginning with an email from the plaintiff to one Mr Yang Ban Seng of ComfortDelGro dated 30 October 2019 at 9:22:20 AM GMT (“CDG Email”) and ending with an email sent to Greg Mittman on 31 October 2019 at 1.14 pm (“CDG Email Chain”). Based on the pleadings, the CDG Email was the beginning of a chain of events which led to the termination of the plaintiff’s employment with the first defendant on 31 October 2019.

After considering the parties’ submissions, I allowed the application in part and ordered, in essence, that the first defendant produce Annex A, with some of the information unredacted, and that the plaintiff be at liberty to inspect the document so produced and to be provided with copies thereof. I set out the grounds for my decision below.

Background

The plaintiff was previously employed by the first defendant as a Chief Artificial Intelligence Officer pursuant to an employment contract executed by the plaintiff on 15 November 2018 (“Employment Contract”). The second defendant is the Chief Executive Officer of the first defendant and the defendants are represented by the same set of solicitors (“defendants’ counsel”). While the plaintiff has brought various claims in the present action against the defendants, the material claim relevant to the present application was the plaintiff’s claim against the first defendant for wrongful termination of the plaintiff’s employment. A primary allegation made by the plaintiff in this regard was that the plaintiff was accused of offering data and artificial intelligence (“AI”) services to a third party whilst being employed with the first defendant and the first defendant having failed to carry out any due inquiry process before terminating the plaintiff’s employment.1

In denying the plaintiff’s allegation of wrongful termination, the defendants’ pleaded case, amongst other things, was that the plaintiff had in the CDG email, solicited business in respect of digital transformation, AI, human capital management and business transformation services offered by a consulting group which the plaintiff stated he was in the midst of setting up, with such services being in competition with the services offered by the first defendant, despite being in the full-time employ of the first defendant at the material time.2 It was further pleaded that the second defendant noted that the CDG email warranted an urgent investigation into the plaintiff’s conduct and that the first defendant had conducted due inquiry in accordance with section 14(1) of the Employment Act.3

It is helpful to set out a chronology of the key documents filed and/or served by the parties in the main action to provide the context of the application. Statement of Claim filed on 23 March 2020; Defence and Counterclaim filed on 15 April 2020; Plaintiff’s Notice to Produce Documents referred to in Pleadings dated 17 April 2020 which was served on the defendants on 17 April 2020 (“Notice to Produce”); Notice where Documents may be inspected dated 22 April 2020 served on the plaintiff on 22 April 2020 (“Inspection Notice”); Reply and Defence to Counterclaim filed on 29 April 2020; Defence and Counterclaim (Amendment No. 1) filed on 13 May 2020; Further and Better Particulars filed by the defendants on 28 May 2020 (“F&BPs”); and Reply and Defence to Counterclaim (Amendment No.1) filed on 3 June 2020.

The redacted CDG Email Chain was produced pursuant to S/No. 1 of the plaintiff’s Notice to Produce, requesting “the email dated 30 October 2019 (and any attachments) referred to at paragraph 22(a)” of the Defence and Counterclaim filed on 15 April 2020. This email was defined as the “CDG Email” in paragraph 22(a) of the Defence and Counterclaim and I had therefore used the same term in [2] above. While the defendants’ Inspection Notice stated that the documents mentioned in the Notice to Produce may be inspected at the defendants’ counsel’s office by prior appointment on 29 or 30 April 2020, the defendants’ counsel proposed furnishing copies of the documents requested under cover of an email to the plaintiff’s counsel in light of the Circuit Breaker measures in effect at that time. These Notices were served pursuant to O 24 r 10(1) and r 10(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (Rules of Court”) respectively.

Copies of the documents mentioned in the Notice to Produce, including the CDG Email, were then provided to the plaintiff’s counsel on 27 April 2020. While the initial document produced by the defendants on 27 April 2020 was the CDG Email (extracted as a stand-alone document), further to an exchange of correspondence between the parties, the defendants furnished the redacted CDG Email Chain, in the manner set out at Annex A of the summons (with the third page), to the plaintiff on 29 April 2020. The plaintiff thereafter took out the present application to compel the first defendant to produce the unredacted copy of the CDG Email Chain.

Legal basis of application

As the defendants’ counsel submitted, in their skeletal submissions, that production of the unredacted CDG Email Chain should be refused pursuant to O 24 r 5 and r 7 of the Rules of Court, I requested parties to submit on the legal basis of the application during the hearing.

Plaintiff’s counsel confirmed that the present application was made under O 24 r 11 of the Rules of Court, for the court to make an order for the production of the documents in question for inspection at such time and place, and in such manner as it thinks fit, subject to O 24 r 13(1) of the Rules of Court, which essentially provides that production is to be ordered only if necessary either for disposing fairly of the cause or matter or for saving costs. Further to plaintiff’s counsel’s confirmation of the legal basis of the application, defendants’ counsel also took the position that the application should be considered under O 24 r 11 of the Rules of Court.

In my view, the plaintiff’s position that the present application was made under O 24 r 11 of the Rules of Court was clearly consistent with the chronology of events set out in [7] and [8] above, and the hearing therefore proceeded on this basis.

Document sought: CDG Email or CDG Email Chain?

Plaintiff’s counsel submitted that the CDG Email Chain was referred to in paragraph 22(a) of the Defence and Counterclaim (Amendment No. 1) as it was mentioned that “the CDG Email was eventually forwarded to Mr Yeo at around 10.59 am” and further, that the defendants’ provision of the redacted email chain was an implicit admission that the CDG Email Chain was referred to.

The first defendant submitted that the CDG Email formed the only portion of the unredacted CDG Email Chain that was referred to directly at paragraph 22(a) of the Defence and Counterclaim and any disclosure in excess of the CDG Email went well beyond the first defendant’s strict legal obligations, and that the plaintiff was furnished with a copy of the redacted CDG Email Chain without any admission as to the relevance and/or necessity of such information. During oral submissions, the defendants’ counsel added that by providing the redacted CDG Email Chain, they had produced the CDG Email received by the first defendant in its original form, but that it was sufficient for the purpose of litigation if only the CDG Email was produced. The defendants’ position was that they were not obliged to produce the rest of the CDG Email Chain.

The specific document sought in the Notice to Produce was “the email dated 30 October 2019 (and any attachments) referred to at paragraph 22(a)” of the Defence and Counterclaim filed on 15 April 2020, which reads:

“On 30 October 2019, it was brought to the 2nd Defendant’s attention that the Plaintiff had sent an email dated 30 October 2019 at 9.22 am from his personal email account (XXX) to one Mr Yang Ban Seng (“Mr Yang”), the Chief Executive Officer of the ComfortDelgro Group (the “CDG Email”).”

In respect of the plaintiff’s counsel’s submission in [12] above, I noted that paragraph 22(a) of the Defence and Counterclaim filed on 15 April 2020 did not contain any reference to the email being forwarded to Mr Eugene Yeo, the first defendant’s Chief Operating Officer. This reference was only included in paragraph 22(a) when the Defence and Counterclaim was amended on 13 May 2020. In view of the lack of reference to the CDG Email being forwarded to Mr Eugene Yeo in the Defence and Counterclaim, which was the subject of the Notice to Produce, it was clear that the plaintiff specifically sought the email dated 30 October 2019 and any attachments to the same, ie. the CDG Email, in the Notice to Produce.

Plaintiff’s counsel further argued that it was clear that a document need not be expressly mentioned in the pleadings in order to invoke O 24 r 10 of the Rules of Court (which provides for a party’s entitlement to inspect documents referred to in pleadings and affidavits) and that where a document was not explicitly referred to in pleadings or affidavits, the court’s task was to ascertain whether, on a fair meaning of the words in their context, there was a “direct allusion” to the document and relied on SK Shipping Co Ltd v IOF Pte Ltd [2012] SGHCR 14 (“SK Shipping”) in this regard: see SK Shipping at [19] to [22].

The plaintiff’s submission based on this position was that even...

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