Jethanand Harkishindas Bhojwani v Lakshmi Prataprai Bhojwani

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Kwek Mean Luck JC
• Judgment Date: 16 November 2021
• Docket Number: Suit No 1242 of 2019

Jethanand Harkishindas Bhojwani

and

Lakshmi Prataprai Bhojwani (alias Mrs Lakshmi Jethanand Bhojwani) and others

[2021] SGHC 256

Kwek Mean Luck JC

Suit No 1242 of 2019

General Division of the High Court

Confidence — Breach of confidence — Son downloading father's documents without authorisation for use in mother's matrimonial and trust proceedings — Whether breach of confidence

Confidence — Breach of confidence — Son downloading father's documents without authorisation for use in mother's matrimonial and trust proceedings — Whether father's alleged breach of discovery/disclosure obligations in those proceedings displaced presumption of breach of confidence

Confidence — Breach of confidence — Son downloading father's documents without authorisation for use in mother's matrimonial and trust proceedings — Whether son's entitlement to documents as beneficiary of trust displaced presumption of breach of confidence

Confidence — Remedies — Damages — Pleadings amended to include damages after defendants consented to injunction — Whether pleadings amended in bad faith

Confidence — Remedies — Damages — Son downloading father's documents without authorisation for use in mother's matrimonial and trust proceedings — Whether general and special damages and damages for injury to feelings should be awarded

Confidence — Remedies — Injunctions — Documents displayed in affidavit and letter to court — Whether documents fell out of reach of equity and whether injunction could be granted

Held, allowing the claim in part:

(1) The need to prove necessary quality of confidence. There was no basis for the assertion that under I-Admin (Singapore) Pte Ltd v Hong Ying Ting[2020] 1 SLR 1130 (“I-Admin”), there was no need to prove that the information had the necessary quality of confidence about it, where the information was surreptitiously accessed and used without the plaintiff's knowledge or consent. The Husband therefore had to prove that the Copied Data for which he asserted his claim of breach of confidence, had the necessary quality of confidence about it: at [17] and [22].

(2) The level of particularisation required for a breach of confidence claim. While a plaintiff had to establish its case that there was breach of confidence with specificity, there was no strict legal requirement that a plaintiff had to identify each and every document for which he claimed confidence for. At the same time, within the facts of each case, the principle remained that there had to be enough particulars of sufficient specificity to allow the defendant to know the case to meet: at [35] and [36].

(3) Whether undisclosed evidence should be presumed as non-confidential. The proposition, that the court was entitled to presume that evidence which could be and was not produced was unfavorable to the person who withheld it, should not be applied here. While there was a factual matrix that the court examined in assessing if information was confidential, whether documents were confidential or not was ultimately a legal finding, not a purely factual one, and hence not suitable to be determined via a presumption of adverse inference in reliance on s 116 illus (g) of the Evidence Act (Cap 97, 1997 Rev Ed): at [41] and [42].

(4) Necessary quality of confidence. Communications which were concerned with an individual's private life, including his personal finances, personal business dealings, and (possibly) his other business dealings, had the necessary quality of confidence about them: at [50].

(5) The Obligation Argument. The Matrimonial Proceedings or Trust Proceedings had not yet commenced, either at the point where the third defendant accessed and downloaded the Copied Data or when the third defendant said he informed the second defendant and the Wife of this. The second and third defendants were also not parties to the eventual Matrimonial Proceedings or the Trust Proceedings. It was also undisputed that the Copied Data was not even restricted to documents relating to the Matrimonial Proceedings or the Trust Proceedings. A litigant should not be permitted to make use of a copy of privileged document which he had obtained by stealth or by acting improperly: at [66], [73] and [74].

(6) Clean hands. The argument that the Husband should be refused relief because of his lack of clean hands failed. The conduct complained of had to have an immediate and necessary relation to the equity sued for, and it had to be a depravity in the legal as well as in the moral sense. This was not the case here: at [70] to [72].

(7) The Entitlement Argument. The court would not condone the illegality of self-help consisting of breach of confidence (or tort) because it was feared that the other side would itself behave unlawfully and concealed that which should be disclosed. The proper approach would have been for the second and third defendants to seek remedy through the court, rather than to stealthily extract the Copied Data without the awareness or consent of the Husband: at [78].

(8) The Public Interest Argument. This argument was neither pleaded nor put to the Husband. It was also not supported by evidence. It was trite law that a party should be bound by its pleaded case, and allegations of vital importance ought to have been put directly to the plaintiff who should be given the opportunity to address it: at [58].

(9) Availability of a permanent injunction. An injunction was only available before the documents had entered into evidence or otherwise had been relied upon at trial. When a document had become a part of the record in any court proceedings, the information in the document entered into the public domain, and it would be too late to preserve the privilege in the document: at [92], [93] and [95].

(10) The relevance of bad faith in the amendment of pleadings for damages. The argument that the Husband should not be allowed to claim for damages as his pleadings were amended in bad faith failed. Bad faith was usually considered when the court was deciding whether to grant leave to amend pleadings. Once the amendment had been made, the question of bad faith should not affect the claim, unless the defendant was asking for it to be struck out for, inter alia, being scandalous under O 18 r 19(1) of the Rules of Court (2014 Rev Ed): at [100] and [101].

(11) Sufficiency of pleadings for damages. Damages did not immediately and naturally flow from a breach of confidence. A plaintiff had to plead full particulars to show the nature and extent of the damages that were not the necessary and immediate consequence of a wrongful act. A plaintiff also could not make a claim for damages without placing before the court sufficient evidence of the quantum of loss it had suffered, even if it would otherwise have been entitled in principle to recover damages: at [103] to [105].

(12) Damages for injury to feelings. Foreign decisions cited that awarded damages for injury to feelings, were premised upon Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). Singapore had not signed or ratified that convention and there was no corresponding need to ensure effective protection of any rights under Art 8. Further, where injunctions and delivery up could right the wrong done to the plaintiff, no damages for injury should be awarded: at [110] and [111].

[Observation: Given the technological advancements today, where larger and larger amounts of data were easily stored, and large volumes of data could be quickly extracted, the imposition of a requirement to particularise each and every document would place an unnecessary and oppressive burden on a plaintiff bringing forth a claim for breach of confidence in situations where large volumes of his or her data had been extracted without his or her knowledge or consent. To do so would create an erroneous incentive for defendants to extract even larger volumes of data to make it harder for a plaintiff to particularise each and every document: at [34].]

Case(s) referred to

ANB v ANC [2015] 5 SLR 522 (folld)

Archer v Williams [2003] EWHC 1670 (QB) (distd)

Ashcoast Pty Ltd v Whillans [1998] QCA 34 (refd)

Biofuel Industries Pte Ltd v V8 Environmental Pte Ltd [2018] 2 SLR 199 (folld)

Bumi Geo Engineering Pte Ltd v Civil Tech Pte Ltd [2015] 5 SLR 1322 (distd)

Chiarapurk Jack v Haw Par Brothers International Ltd [1993] 2 SLR(R) 620; [1993] 3 SLR 285 (distd)

Coco v AN Clark (Engineers) Ltd [1969] RPC 41 (refd)

Cornelius v De Taranto [2001] EWCA Civ 1511 (distd)

E C Investment Holding Pte Ltd v Ridout Residence Pte Ltd [2012] 1 SLR 32 (folld)

Enholco Pte Ltd v Schonk, Antonius Martinus Mattheus [2015] SGHC 108 (folld)

Giller v Procopets (2008) 24 VR 1 (refd)

Harry Royston Cole v The Chief Officer of the States of Jersey Police [2007] JRC 240 (distd)

Hong Kong Exchanges and Clearing Ltd v Shi Huaifang [2019] HKCFI 1212 (refd)

HT SRL v Wee Shuo Woon [2016] 2 SLR 442 (refd)

I-Admin (Singapore) Pte Ltd v Hong Ying Ting [2020] 1 SLR 1130 (folld)

Imerman v Tchenguiz [2011] Fam 116; [2011] 2 WLR 592 (folld)

Ithaca Ice Works Pty Ltd v Queensland Ice Supplies Pty Ltd [2002] QSC 222 (refd)

Perestrello e Companhia Limitada v United Paint Co Ltd [1969] 1 WLR 570 (refd)

Press Automation Technology Pte Ltd v Trans-Link Exhibition Forwarding Pte Ltd [2003] 1 SLR(R) 712; [2003] 1 SLR 712 (refd)

QB Net Co Ltd v Earnson Management (S) Pte Ltd [2007] 1 SLR(R) 1; [2007] 1 SLR 1 (folld)

Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd [2008] 2 SLR(R) 623; [2008] 2 SLR 623 (refd)

Seow Teck Ming v Tan Ah Yeo [1991] 2 SLR(R) 38; [1991] SLR 169 (folld)

Shiffon Creations (Singapore) Pte Ltd v Tong Lee Co Pte Ltd [1990] 2 SLR(R) 472; [1990] SLR 141 (refd)

Shravan, The [1999] 2 SLR(R) 713; [1999] 4 SLR 197 (refd)

Sim Kon Fah v JBPB and Co [2011] 4 HKLRD 45 (refd)

Stratech Systems Ltd v Nyam Chiu Shin [2005] 2 SLR(R) 579; [2005] 2 SLR 579 (distd)

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