K Solutions Pte Ltd v National University of Singapore

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 16 June 2009
• Neutral Citation: [2009] SGHC 143
• Docket Number: Suit No 5 of 2007 (Registrar's Appeal No 432 of 2008)
• Date: 16 June 2009
• Year: 2009
• Published date: 24 June 2009
• Plaintiff Counsel: Lok Vi Ming SC, Audrey Chiang and Chu Hua Yi (Rodyk & Davidson LLP)
• Citation: [2009] SGHC 143
• Defendant Counsel: Cavinder Bull SC and Lim Gerui (Drew & Napier LLP)
• Court: High Court (Singapore)
• Subject Matter: Destruction of documents before and after commencement of action,Intention behind destruction,Whether striking out of statement of claim and defence to counterclaim justified,Whether possibility of fair trial was determinative factor,Factors to be considered in making decision to order striking out,Plaintiff deliberately suppressing documents in discovery process,Civil Procedure,Basis of court's power to order striking out,Principles governing court's exercise of discretion,Striking out

16 June 2009

Woo Bih Li J:

Introduction

1 On 3 October 2008, the defendant, National University of Singapore (“NUS”) applied by way of Summons No 4335 of 2008 (“Summons 4335/08”) to strike out the Statement of Claim (Amendment No 3) of the plaintiff K Solutions Pte Ltd (“KS”) and, in respect of NUS’ counterclaim, to strike out KS’ defence to counterclaim and for judgment to NUS for damages to be assessed and judgment for specific sums. NUS’ grounds were that KS had destroyed and continued to destroy relevant documents in the action, suppressed discovery and/or had been in contumelious disregard of its discovery obligations and/or had lied about its failure to make proper discovery and/or that there was a serious or real risk that a fair trial of the action might no longer be possible. On 14 November 2008, an assistant registrar granted NUS’ application. KS then filed an appeal by way of Registrars’ Appeal No 432 of 2008 (“RA 432/08”) which I heard. On 16 March 2009, I dismissed the appeal.

2 On 23 March 2009, KS’ solicitors made a written request for further arguments. At the same time, an application by way of Summons No 1336 of 2009 was filed for KS to adduce additional evidence at the intended hearing of further arguments. NUS opposed the request for further arguments and the application to adduce additional evidence.

3 On 6 April 2009, I heard arguments on KS’ application and dismissed it. I also decided that I would not hear further arguments in respect of RA 432/08.

4 KS has appealed against my decision in RA 432/08.

Background

5 I set out below the following additional definitions for easy reference:

“AL”	-	Albert Lim, managing director of KS
“D&N”	-	Drew & Napier, solicitors for NUS
“Faith”	-	Faith Koh, a KS staff
“MCS”	-	Margaret Cato-Smith who was project manager of KS
“M Rasa”	-	Mohan Rasa s/o Rasalingam, finance manager of KS
“R&D”	-	Rodyk & Davidson, the current solicitors of KS
“SLP”	-	Shaw Lay Pheng, deputy registrar at Registrar’s Office of NUS
“TKO”	-	Tan Keng Oon, manager of KS
“ISIS”	-	integrated student information system
“WMR”	-	Wayne Michael Revell who was KS’ manager for South Asia, Higher Education

6 KS’ business includes the development and maintenance of software. NUS, as the name suggests, is a national institution of higher education.

7 In April 2005, KS entered into a contract with NUS for the supply, delivery, development, configuration, installation, testing and commissioning of a fully operational, integrated, web-based ISIS and hardware architecture (“the Project”). This was a fixed price contract for $14,246,645.54.

8 NUS alleged that in mid June 2006, KS had informed it that KS had financial difficulties which prevented it from continuing with the Project. By 31 August 2006, all of KS’ staff had moved out of the offices provided by NUS for the Project. NUS also alleged that by 11 September 2006, all but three of KS’ staff for the Project had stopped work on the Project.

9 On 20 September 2006, NUS issued a written notice requiring KS to cure its defaults. On 6 October 2006, NUS terminated KS’ contract for the Project.

10 On 4 January 2007, KS commenced action against NUS for wrongful termination and claimed primarily damages of $30,773,965 or damages to be assessed. In turn, NUS counterclaimed damages of $6,516,498, or damages to be assessed and various specific sums.

11 NUS’ present complaints were in respect of KS’ obligation to make discovery of relevant documents for the litigation. The complaints were grouped around four categories of documents:

(a) Documents in AL’s email account.

(b) Documents in KS staff’s email accounts which were provided by NUS (“NUS email accounts”).

(c) Documents in KS staff’s email accounts which were provided by KS (“KS email accounts”).

(d) Audio recordings of meetings.

12 I should elaborate that the staff of KS who had worked at NUS were provided with email accounts referred to above as “NUS email accounts”. In addition, some or all of such staff also had email accounts provided by KS referred to above as “KS email accounts”. NUS’ complaints were that KS did not disclose any internal email between its staff from the NUS email accounts or from the KS email accounts including non-disclosure of any email from AL’s own email account (which was one of the KS email accounts) and that AL had lied about the reasons for non-disclosure. I should add that AL did not have an NUS email account and his email would have been sent from or to the KS email account.

13 For easy reference, I attach a list of relevant applications and affidavits in chronological order as much reference was made to them in respect of the explanations given by AL for KS’ alleged omission to comply with its discovery obligations.

AL’s email

14 On 14 March 2007, the parties were ordered to give discovery of documents relevant to the issues in the action. On 25 July 2007, both KS and NUS filed their respective lists of documents. In KS’ list (“KS’ First (25/7/07) LOD”), KS had disclosed 1,303 documents with AL’s 4th affidavit of 25 July 2007. On the other hand, NUS had disclosed over 25,000 documents. For the purpose of the present proceedings, email and audio recordings were treated as documents and it was accepted that the discovery obligations of the parties extended to disclosure of relevant email and audio recordings.

15 Out of KS’ First (25/7/07) LOD, 807 documents were email but not a single internal email was disclosed even though KS had assigned more than 60 information technology (“IT”) consultants and/or sub-contractors to the Project. There was no explanation as to what had happened to the internal email.

16 On 4 September 2007, NUS demanded further discovery from KS. A reply dated 25 September 2007 from KS’ solicitors stated that KS had just discovered further documents in its possession, power or control (“the KS’ Further (25/9/07) Set”).

17 On 1 November 2007, KS filed a supplementary list of documents listing 81 items (“KS’ Second (1/11/07) LOD”) but the list excluded documents from KS’ Further (25/9/07) Set.

18 On 27 November 2007, KS filed the 8th affidavit of AL to disclose two digital video discs (“2 DVDs”). The 2 DVDs contained 27,000 email and attachments from KS’ Further (25/9/07) Set.

19 When NUS reviewed the 2 DVDs, it discovered the following:

(a) The email disclosed originated from only one of KS’ many staff, ie, MCS.

(b) The documents disclosed included a substantial number of email between MCS and AL but such email had not been disclosed in KS’ First (25/7/07) LOD.

20 On 7 December 2007, D&N sent a telefax to R&D to state that AL must have known that KS’ First (25/7/07) LOD had omitted a substantial number of email which he had sent or received and yet his 4th affidavit (which accompanied KS’ First (25/7/07) LOD) had falsely stated that there were no other relevant documents. KS was required to file an affidavit to explain the false or inaccurate statement in AL’s 4th affidavit.

21 On 13 December 2007, R&D replied to say that AL had configured his email account to clean out all items which were more than six months old “for housekeeping reasons and also to avoid breach of confidentiality and non-disclosure obligations (eg, in projects which require our client to dispose of confidential information upon conclusion of the engagement).” It was said that AL did not retain copies of email between himself and MCS or between himself and any other employee involved in the Project. Also, KS did not see any need for AL to file another affidavit merely to set out what had been stated in R&D’s reply.

22 Such an explanation was inadequate because it is a well-known requirement that a litigant is to disclose not only relevant documents that he has, but also those which he no longer has and to state what has become of the latter. Even if it was true that relevant email in AL’s email account had been deleted for the reasons given and no copy kept, it was incumbent on AL to disclose this in KS’ First (25/7/07) LOD. He did not and R&D’s reply of 13 December 2007 did not explain this omission.

23 D&N then sent a telefax dated 28 December 2007 to state, inter alia, that since AL chose not to file an affidavit to explain, NUS would take appropriate steps without further reference to R&D.

24 It was only then that R&D responded on 14 January 2008 to state that KS would file an affidavit “to explain the necessary”.

25 On 24 January 2008, AL’s 11th affidavit was filed. It repeated what R&D had already said about the deletion of email more than six months old but no reason was given for the omission to disclose this earlier.

26 Thereafter, D&N requested for more information about the destruction and eventually filed Summons No 2245 of 2008 (“Summons 2245/08”) on 21 May 2008 to compel KS to provide more of such information among other reliefs sought.

27 Before the hearing of Summons 2245/08, ALs’ 18th affidavit was filed. It stated at para 34 that he “did not know the full extent of [his] discovery obligations until the discovery process was in full swing on or around May 2007”.

28 This was of no comfort to NUS because KS’ First (25/7/07) LOD was filed on 25 July 2007. By AL’ own assertion, he would have been fully aware before then of KS’ discovery obligations and yet he did not mention the deletion of email from his email account.

29 At the hearing of Summons 2245/08 on 13 June 2008, NUS obtained an order requiring, inter alia, AL to provide more information on his deletion. Both sides appealed against that order. In the case of NUS, it wanted wider orders. The appeals were heard by Justice Belinda Ang (“Ang J”) on 17 July 2008. She dismissed KS’ appeal and allowed NUS’ appeal in that she made an order requiring KS to provide more information than was ordered below.

30 AL’s 23rd affidavit on 1 August 2008 stated that he had not stopped the deletion of documents in his email account. D&N...