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

• Jurisdiction: Singapore
• Judge: Edmund Leow JC
• Judgment Date: 11 August 2014
• Neutral Citation: [2014] SGHC 158
• Court: High Court (Singapore)
• Docket Number: Suit No 678 of 2012 (Registrar’s Appeal No 179 of 2014)
• Year: 2014
• Published date: 13 August 2014
• Hearing Date: 10 July 2014
• Plaintiff Counsel: Mohamed Niroze Idroos and Narayanan Vijya Kumar (Vijay & Co)
• Defendant Counsel: Michael Moey Chin Woon and V Gyana Sambandan (Moey & Yuen)
• Subject Matter: Civil Procedure,Privileges,Without prejudice privilege
• Citation: [2014] SGHC 158

Edmund Leow JC: Introduction

This case concerns a dispute between two brothers (“the Parties”) over their family home (“the Property”). The Plaintiff, having transferred his interest in the Property to the Defendant, now claims that the Defendant’s cheques for the purchase price of $255,997.62 were dishonoured. He is suing the Defendant for that sum. In his defence, the Defendant avers that although the Plaintiff had a 32% legal interest in the Property, his beneficial interest was only 8.61% and he had already separately received a payment of $95,194.83 for the transfer of his beneficial interest. The Defendant says that the cheques for the sum of $255,997.62 were issued solely to facilitate the transfer of legal title. The Parties had never meant for them to be presented for payment.

This appeal arises out of an application filed by the Plaintiff in Summons No 6252 of 2013 to strike out an email (“the Email”) included in the Defendant’s list of documents dated 15 February 2013 and expunge the Email from court records. The issues are whether the Email is covered by “without prejudice” (“WP”) privilege, and, if so, whether that privilege had been waived by the Plaintiff.

The facts

It is not disputed that the legal interest in the Property was held by the following persons as tenants-in-common in the following shares: The Defendant and his wife – 33% The Parties’ father – 33% The Plaintiff – 32% The Plaintiff’s wife – 1% The Parties’ sister – 1%

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. The Defendant says that he and the Plaintiff had agreed that the latter would be paid $95,194.83 for his share of the Property as this was the value of his beneficial interest in proportion to his contribution towards the purchase price of the Property. However, the Plaintiff denies that there was such an agreement and maintains that both his legal and beneficial interest in the Property was 32%.

On 16 February 2012, the Plaintiff sent the Email to Thanaraj s/o Ramakrishnan (“Raj”), who is a brother of the Parties. The Email stated as follows:

Hi,

Please refer to the New “Lentor Updated” spreadsheet file.

I need the $186,000 to purchase a new flat.

Tks.

Kumar

Attached to the Email were two tables setting out what was said to be the Plaintiff’s and the Defendant’s share entitlements in the Property. The Plaintiff explained that the tables were prepared by a family friend using data given by the Defendant and then amended by the Plaintiff. The first table stated that $144,000 was payable to the Plaintiff while the second table, which was based on a higher valuation of the Property, stated that $186,000 was payable to the Plaintiff after setting off a debt of $22,000 owed by the Plaintiff to the Defendant. Raj did not reply to the Email and forwarded it to the Defendant on 12 October 2012.

On 26 March 2012, the Defendant issued two cheques for $33,320 and $222,677.92 respectively to the Plaintiff. On 28 March 2012, the transfer of legal interests to the Defendant was completed. The cheques were returned dishonoured on 6 and 21 June 2012 respectively.

On 15 August 2012, the Plaintiff commenced these proceedings against the Defendant. The Defendant filed his Defence and Counterclaim on 11 September 2012 wherein he referred at para 15(a) to three emails 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 emails were sent on a WP basis. The Defendant and the Plaintiff filed their lists of documents on 15 February 2013 and 25 March 2013 respectively.

On 15 May 2013, the Plaintiff filed Summons No 2532 of 2013 (“SUM 2532/2013”) applying to strike out the paragraphs in the Parties’ pleadings that referred to the three emails as well as all references to the three emails in the Parties’ lists of documents. The Plaintiff argued that those emails were covered by WP privilege because they were sent in an attempt to resolve the Parties’ dispute. The Defendant replied that the three emails were not privileged and exhibited the Email (among other documents) in his reply affidavit to support his contentions. The Plaintiff’s application was allowed by an assistant registrar and the Defendant’s appeal was dismissed by a High Court Judge.

On 3 December 2013, the Plaintiff filed this application in respect of the Email. The assistant registrar (“the AR”) found that the Email was covered by WP privilege because it was sent in an attempt to settle a genuine dispute and contained an admission against the Plaintiff’s interests. However, the AR took the view that privilege had been waived by the Plaintiff because the Email was exhibited in the Defendant’s affidavit for SUM 2532/2013 as well as the Plaintiff’s own affidavit for this application. He therefore dismissed the Plaintiff’s application. The Plaintiff appealed.

My decision Was the Email covered by WP privilege? Whether the privilege applies against third parties

The starting point for considering claims of WP privilege is s 23(1) of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”), which provides as follows:

Admissions in civil cases when relevant 23.—(1) In civil cases, no admission is relevant if it is made — (a) upon an express condition that evidence of it is not to be given; or (b) upon circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.

Since the Email was sent by the Plaintiff to Raj and not the Defendant, and there is no evidence that Raj was acting as the Defendant’s agent, a preliminary issue is whether s 23(1) prevents a litigant who was not a party to the WP communication from adducing evidence of it. The Defendant submits that it does not. He referred me to Lim Tjoen Kong v A-B Chew Investments Pte Ltd [1991] 2 SLR(R) 168 (“Lim Tjoen Kong (CA)”) at [21], where the Court of Appeal observed that “[a] literal reading of s 23 suggests that the privilege from disclosure of without prejudice negotiations is confined to the parties to the action (and their solicitors or agents)”. He also cited Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd and another [2006] 4 SLR(R) 807 (“Mariwu”), where Chan CJ, writing on behalf of the Court of Appeal, stated (at [25]):

In [Lim Tjoen Kong (CA)], I said that a literal reading of s 23 suggested that the section appeared to be confined to the parties to the action (and their solicitors and agents). … I continue to hold this view. Section 23, properly construed, only refers to situations where it is the parties to the negotiations themselves who are attempting to renege on an express or implied agreement not to use admissions made in the course of negotiations against each other. The admissions in such cases are not relevant.

I accept that s 23(1) does not apply in the present case where a third party to the communication is seeking to adduce evidence of it. But that is not the end of the matter – I still have to consider the common law on WP privilege. In Rush & Tompkins Ltd v Greater London Council and another [1989] AC 1280 (“Rush & Tompkins”), the issue was whether the second defendant could obtain specific discovery of WP communications between the plaintiff and the first defendant which resulted in a settlement between the latter two parties. The House of Lords held that WP privilege operated to shield those communications from disclosure even though the second defendant was not a party to them. Lord Griffiths stated the court’s reasoning as follows (at 1301):

… Suppose the main contractor in an attempt to settle a dispute with one subcontractor made certain admissions it is clear law that those admissions cannot be used against him if there is no settlement. The reason they are not to be used is because it would discourage settlement if he believed that the admissions might be held against him. But it would surely be equally discouraging if the main contractor knew that if he achieved a settlement those admissions could then be used against him by any other subcontractor with whom he might also be in dispute. The main contractor might well be prepared to make certain concessions to settle some modest claim which he would never make in the face of another far larger claim. It seems to me that if those admissions made to achieve settlement of a piece of minor litigation could be held against him in a subsequent major litigation it would actively discourage settlement of the minor litigation and run counter to the whole underlying purpose of the "without prejudice" rule. I would therefore hold that as a general rule the "without prejudice" rule renders inadmissible in any subsequent litigation connected with the same subject matter proof of any admissions made in a genuine attempt to reach a settlement. It of course goes without saying that admissions made to reach settlement with a different party within the same litigation are also inadmissible whether or not settlement was reached with that party. [emphasis added]

In Mariwu, the Court of Appeal held that the rule of evidence set out in Rush & Tompkins was applicable in Singapore as it was consistent with s 23(1) of the EA (at [28]):

Section 23's...