KLW Holdings Ltd v Singapore Press Holdings Ltd

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 16 July 2002
• Neutral Citation: [2002] SGHC 150
• Docket Number: Originating Summons No 332 of 2002
• Date: 16 July 2002
• Year: 2002
• Published date: 19 September 2003
• Plaintiff Counsel: Prakash Mulani and Sean Say (J Koh & Co)
• Citation: [2002] SGHC 150
• Defendant Counsel: Hri Kumar and Vinod Sabnani (Drew & Napier LLC)
• Court: High Court (Singapore)
• Subject Matter: Whether to grant application,Whether rule applicable in Singapore,O 24 r 6 Rules of Court,Disclosure of documents,Nature of rule,Libel suit,Application for pre-trial discovery of interview notes and working drafts of newspaper article,Whether different considerations applicable in pre-trial discovery,'Newspaper rule',Civil Procedure

Judgment Cur Adv Vult

GROUNDS OF DECISION

Background To The Application

1. KLW Holdings Ltd ("KLW") owns a subsidiary company known as Barang Barang Pte Ltd ("Barang Barang"). This subsidiary was, at all material times, in the business of retailing home furnishing products. Sometime about 2000 KLW had bought over Barang Barang from its founding partners, Mr. Sonny Boey and Mr. Alvin Chua. The two former partners continued their ties with the company by signing service contracts with it, but these agreements were terminated (with ensuing litigation between the two partners and Barang Barang). Payments due from KLW to the two partners in respect of the purchase of Barang Barang were terminated by KLW. There were allegations by KLW that the two former partners were in breach of the purchase agreement because they had set up business in competition with Barang Barang. Arising from these events, the Business Times, a newspaper owned by Singapore Press Holdings Ltd, published a story on 22 February 2002. KLW is unhappy over two aspects of the published story, which, it says, created the impression that KLW defaulted in its payments to Mr. Boey and Mr. Chua from the outset. Mr. Mulani, counsel for KLW submitted that the payments were stopped because of the alleged breach of agreement by the two former partners. Secondly, KLW alleges that the Business Times story suggested that KLW defaulted because it was in financial difficulties. Singapore Press Holdings denies that the Business Times story is in any way libelous.

2. KLW applied by way of this Originating Summons for pre-trial discovery of documents against Singapore Press Holdings. The documents required were described in the applications as:

"a. notes of interview, in documentary or mechanical form, with the maker of the statements 'there was a clause that said the two men had to be paid for their stakes first. But since the takeover, KLW has been defaulting on the payment,' appearing in the article, and

b. working drafts of the article made in the course of publishing the said article".

The Broad Issues

3. There was no disguise that the purpose of the discovery application was to ascertain the source from which the Business Times obtained its information. It is obvious that KLW intends to take whatever action that it may be advised against the source. The assistant registrar dismissed the application and KLW appealed against that decision before me. Mr. Hri Kumar submitted on behalf of Singapore Press Holdings that KLW is not entitled to the discovery sought because it is, in substance, an application for an order that Business Times discloses its source of information. Mr. Kumar relies on the "newspaper rule" developed by the common law courts in England that protects the identity of a newspaper's source. Secondly, Mr. Kumar says, that even if we do not recognise such protection in Singapore, the court has a discretion in deciding whether such discover may be ordered. Thirdly, he submitted, even if discovery of the identity of the source is permitted, the documents required by KLW are irrelevant and that the information sought by KLW ought to have been asked for by way of interrogatory rather than a discovery of the specified documents.

4. KLW's application was made under O 24 r 5, which provides as follows:

"1. The Defendants shall within 14 days of the order to be made hereon, give discovery of the following documents pertaining to the article entitled "KLW in tussle with Barang Barang founder" appearing in The Business Times on Friday, 22 February 2002, viz.: -

a. notes of interview, in documentary or mechanical form, with the maker of the statements "There was a clause that said the two men had to be paid for their stakes first. But since the takeover, KLW has been defaulting on the payment," appearing in the said article, and

b. working drafts of the article made in the course of publishing the said article.

2. The said discovery shall be made by way of a list of documents, together with an affidavit verifying the said list, filed and served upon the Plaintiffs within 14 days of the order made hereon, stating whether the listed documents are or at any time have been in the Defendants’ possession, custody or power and, if not now in their possession, custody or power, when they parted with the same and what has become of them."

The "Newspaper Rule"

5. Counsel have conveniently referred to Mr. Kumar's mainline objection as the "newspaper rule". It appears from the reported authorities that the origin of this "rule" is vague. The rule has sometimes being conveniently regarded merely as a rule of practice (as per Lord Denning in Att. Gen v Mulholland -see below). In Broadcasting Corporation Of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163 it is described as "an exception from the general rule that a party to a suit must make discovery of and produce for inspection all documents relevant to the action and answer all relevant interrogatories. The rule is that newspapers will not be compelled to disclose sources of information in pre-trial discovery, including both production of documents and answers to interrogatories". Per McMullin J. This rule was examined in some detail in British Steel Corporation v Granada Television Ltd [1980] 3 WLR 774. The facts there are fairly simple. Granada Television (the defendant) aired a documentary programme about the steel strike in Britain about that time. Confidential documents belonging to the British Steel Corporation (the plaintiff) were used in the programme. It was not disputed that the person (or persons) who released those documents to Granada Television was in breach of his duty of confidentiality. Alexander Irvine QC, counsel for Granada Television made no attempt to suggest that the defendant received or used the documents in ignorance of their confidential nature. It was thus accepted for the purpose of the proceedings there that the defendant used the documents with the knowledge that it was in contravention of the British Steel Corporation's rights. Sir Robert Megarry V-C heard application by the British Steel Corporation at first instance. The plaintiff had sought, among other prayers, an order that Granada discloses the names of those who supplied it with the confidential documents. The primary proposition of Irvine QC, as summarised by Sir Robert Megarry, was that "the court has the discretion to refuse to order disclosure where disclosure would be in breach of some ethical or social value, and that the confidential relationship between newspapers or other media of information and their sources of information was an ethical or social value which the court ought to protect by refusing to order any disclosure". Sir Robert Megarry's order for disclosure was taken by Granada to the House of Lords, when it failed to persuade any of the Justices of Appeal in the Court of Appeal to its cause. Irvine QC's solitary success was to secure the dissent of Lord Salmon who was of the view that the "newspaper rule" had been too well established that "it would be wrong to sweep the immunity away" [1980] 3 WLR 774, at 846. Woodhouse J (and the two other appeal court judges) in the Broadcasting Corporation Of New Zealand case was in full agreement with Lord Salmon but he went further to express that the...