Krishna Kumaran s/o K Ramakrishnan v Kuppusamy s/o Ramakrishnan

• Jurisdiction: Singapore
• Judgment Date: 11 August 2014
• Date: 11 August 2014
• Docket Number: Suit No 678 of 2012 (Registrar's Appeal No 179 of 2014)
• Court: High Court (Singapore)

Krishna Kumaran s/o K Ramakrishnan

Plaintiff

and

Kuppusamy s/o Ramakrishnan

Defendant

[2014] SGHC 158

Edmund Leow JC

Suit No 678 of 2012 (Registrar's Appeal No 179 of 2014)

High Court

Evidence—Admissibility of evidence—‘Without prejudice’ privilege—Plaintiff sending e-mail to third party for purposes of settling dispute with defendant—Third party forwarding e-mail to defendant—Defendant adducing evidence of e-mail in earlier proceedings—Whether e-mail covered by ‘without prejudice’ privilege—Whether privilege inadvertently waived by plaintiff

The plaintiff (‘the Plaintiff’) and the defendant (‘the Defendant’) (collectively ‘the Parties’) were brothers who, together with other family members, held shares in their family home (‘the Property’) as tenants-in-common. Sometime in September or October 2011, the Plaintiff, his wife and the Parties' sister agreed to transfer their respective shares in the Property to the Defendant. However, although the Plaintiff had a 32% legal interest in the Property, the Parties could not agree on the extent of his beneficial interest and consequently how much he should be paid for transferring his share to the Defendant.

On 16 February 2012, to settle the dispute, the Plaintiff sent an e-mail (‘the E-mail’) to another brother of the Parties (‘Raj’). In the E-mail, the Plaintiff asked for $186,000 and attached two tables setting out what was said to be his and the Defendant's share entitlements in the Property. Raj forwarded the E-mail to the Defendant.

The transfer of legal title to the Defendant was eventually completed on 28 March 2012. On 15 August 2012, the Plaintiff commenced proceedings claiming that the Defendant's cheques for the purchase price of $255,997.62 were dishonoured. In his defence and counterclaim, the Defendant averred that the Plaintiff had already received a separate payment of $95,194.83 for the transfer of his beneficial interest; the cheques for $255,997.62 were issued solely to facilitate the transfer of legal title. The Defendant also referred to three e-mails exchanged between a family friend and the Defendant's wife on 23 and 27 February 2012, purportedly showing the Plaintiff's knowledge that the cheques drawn by the Defendant were not to be presented for payment. In the Plaintiff's reply, he pleaded that the e-mails were sent on a ‘without prejudice’ (‘WP’) basis.

The Plaintiff then filed Summons No 2532 of 2013 (‘SUM 2532/2013’) applying to strike out the paragraphs in the Parties' pleadings that referred to the three e-mails as well as all references to the three e-mails in the Parties' lists of documents on the basis that they were covered by WP privilege. The Defendant replied that the three e-mails were not privileged and exhibited the E-mail(among other documents) in his reply affidavit to support his contentions. The Plaintiff's application in SUM 2532/2013 was eventually allowed by an assistant registrar and the Defendant's appeal was dismissed by a High Court judge.

On 3 December 2013, the Plaintiff applied to strike out the E-mail (which was also included in the Defendant's list of documents) and expunge the E-mail from court records. The Defendant argued that the E-mail was not covered by WP privilege and, in any event, any privilege over it had been waived by the Plaintiff because the E-mail was exhibited in the Defendant's affidavit for SUM 2532/2013 as well as the Plaintiff's own affidavit for the present application. The assistant registrar dismissed the Plaintiff's application on the basis that although the E-mail was covered by WP privilege, privilege had been waived by the Plaintiff inadvertently. The Plaintiff appealed.

Held, allowing the appeal:

(1) The doctrine of WP privilege was flexible enough to cater to situations where the relationship between two disputing parties had broken down to such an extent that they had to communicate through a third party to negotiate a settlement. Thus, assuming that the E-mail was sent by the Plaintiff in an attempt to settle a dispute with the Defendant, the fact that it was originally sent to Raj (who then forwarded it to the Defendant) did not prevent the Plaintiff from asserting WP privilege over it as against the Defendant: at [15] .

(2) The question of whether there was a dispute between the Plaintiff and the Defendant as at 16 February 2012 was res judicata. The assistant registrar in SUM 2532/2013 had expressly found that the dispute between the Parties concerning the Property had crystallised by January 2012 and that they were still in the course of negotiations as at 27 February 2012. This decision was upheld by the High Court judge and there had been no further appeal. The Defendant was therefore estopped from relitigating the issue of whether there was a dispute between the Parties over the Property at the time the E-mail was sent: at [18] .

(3) The E-mail clearly contained an admission by the Plaintiff. When read together with the attached tables, it was apparent that the Plaintiff was offering to transfer his share in the Property to the Defendant for $186,000. This sum was lower than the stated contract price of $255,997.62 and the Plaintiff's offer suggested an inference as to the proper share and/or value of his beneficial interest in the Property. It also suggested an inference as to whether the Parties had in fact agreed that the Plaintiff would be paid $255,997.62 for his share in the Property. The E-mail was therefore covered by WP privilege: at [20] .

(4) The principles governing the waiver of legal professional privilege were different from those governing the waiver of WP privilege. Here, the E-mail was not confidential as against the Defendant. Thus, the fact that it had been adduced as evidence in SUM 2532/2013 and in this application could not in itself amount to a waiver of WP privilege. It had to be shown on the circumstances of the case that the Plaintiff had expressly or impliedly agreed to the waiver of WP privilege over the E-mail: at [22] and [23] .

(5) In the present case, the Plaintiff was not the one who sought to rely on the E-mail; the Defendant was the one who included it in his list of documents and adduced evidence of it in SUM 2532/2013. Moreover, the Plaintiff had expressly claimed WP privilege over the E-mail in his reply affidavit in SUM 2532/2013. It therefore could not be said that the Plaintiff had impliedly consented to the waiver of privilege by his conduct in SUM 2532/2013: at [28] .

(6) The Plaintiff's introduction of the E-mail into evidence for the purposes of the present application similarly could not amount to a waiver. When it came to WP privilege, the issue was whether a communication that both parties were already privy to (barring cases where a third party was seeking disclosure of a WP communication) might be used as evidence in the proceedings between them. In other words, the issue was admissibility and not confidentiality. It was therefore senseless to argue that WP privilege was lost or waived simply because there was disclosure of the privileged document to the Defendant or to the court. The court had to consider all the circumstances of the case to determine whether such disclosure amounted to consent by the disclosing party to waive WP privilege. In the present case it was clear that the Plaintiff had not waived and did not intend to waive WP privilege: at [29] .

A-B Chew Investments Pte Ltd v Lim Tjoen Kong [1989] 2 SLR (R) 149; [1989] SLR 790 (refd)

Aird v Prime Meridian Ltd [2006] EWCA Civ 1866 (refd)

Greenline-Onyx Envirotech Phils, Inc v Otto Systems Singapore Pte Ltd [2007] 3 SLR (R) 40; [2007] 3 SLR 40 (refd)

Lim Tjoen Kong v A-B Chew Investments Pte Ltd [1991] 2 SLR (R) 168; [1991] SLR 188 (refd)

Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd [2006] 4 SLR (R) 807; [2006] 4 SLR 807 (folld)

Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 (folld)

Sobell v Boston [1975] 1 WLR 1587 (folld)

Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd [2009] 1 SLR (R) 42; [2009] 1 SLR 42 (refd)

Evidence Act (Cap 97...