Leong Quee Ching Karen v Lim Soon Huat

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Goh Yihan JC
• Judgment Date: 23 August 2023
• Docket Number: Originating Claim No 158 of 2022 (Summons No 3376 of 2022)

Leong Quee Ching Karen

and

Lim Soon Huat and others

[2023] SGHC 234

Goh Yihan JC

Originating Claim No 158 of 2022 (Summons No 3376 of 2022)

General Division of the High Court

Abuse of Process — Inconsistent positions — Non approbation and reprobation — Application to strike out e-mails — Whether doctrine of approbation and reprobation barred application

Civil Procedure — Privileges — Without prejudice privilege — Admissibility of e-mails pertaining to settlement negotiations — Whether Muller exception applied in Singapore

Held, allowing the application:

(1) As a threshold issue, a third party could not claim without prejudice privilege if it had not taken part in the without prejudice negotiations, either personally or through an agent: at [19] to [21].

(2) The common law rule on without prejudice privilege was statutorily embodied in s 23 of the Evidence Act 1893 (2020 Rev Ed) (the “EA”). However, s 23 of the EA did not specify the scope of its operation. Many of the detailed rules governing without prejudice privilege had to be discerned from the common law: at [24] and [27].

(3) There were two rationales for without prejudice privilege. The first, and primary rationale, was the public policy of encouraging litigants to settle their differences rather than litigate them to the finish. The second was contract, as there was an implied agreement arising out of what was commonly understood to be the consequences of offering or agreeing to negotiate without prejudice: at [25] and [26].

(4) For without prejudice privilege to arise, the communications had to have arisen in the course of genuine negotiations to settle a dispute. They had to also have involved statements or conduct amounting to admissions against a party's interests. An example was correspondence that showed an intention to compromise a dispute or contained such an offer. This was consistent with the rationale of encouraging parties to speak frankly in negotiations: at [28].

(5) The use of the label “without prejudice” was important, but not conclusive. The label did not conclusively or automatically render it privileged. However, the presence of a label would place the burden of persuasion on the party who contended that it should be ignored: at [29].

(6) Correspondence that was not expressly labelled as being “without prejudice” would be privileged if it was written in response to a correspondence that was so labelled, or was part of a continuing sequence of negotiations, whether by correspondence or orally: at [29].

(7) Without prejudice privilege could arise in a multi-party situation. The privilege would arise to protect settlement negotiations between some of the parties, even if the other parties were not willing to resolve the matter amicably: at [30].

(8) Although s 23 of the EA did not address the doctrine of waiver, it applied to without prejudice privilege: at [47].

(9) The requirements for a waiver of without prejudice privilege were as follows. First, there had to be consent of both parties. Apart from an express waiver, an implied waiver could only be effective if it was clear and involved conduct that unequivocally pointed to an intention not to rely on the privilege. This had to be proven to the standard of a balance of probabilities based on clear evidence. Second, a party could not unilaterally waive privilege only to claim it later when his opponent made reference to those communications. Third, it is immaterial that the waiver results in injustice or detriment to the other party: at [47], [49] and [50].

(10) Section 2(2) of the EA codified the law of evidence existing at the time of its enactment. New rules of evidence could be given effect to only if they were not inconsistent with the provisions of the EA or their underlying rationale: at [71].

(11) In the UK, without prejudice privilege did not arise if correspondence was relevant not because of the truth of any fact it asserted or admitted but simply in the fact that it was made (the “Muller exception”). The Muller exception did not apply in Singapore because it was incompatible with the twin rationales behind without prejudice privilege. First, for the public policy rationale, the Muller exception would prevent the parties from being able to speak freely in negotiations because they would be preoccupied with determining which portion of their negotiations fell within the Muller exception. For the contract rationale, it was unclear how the Muller exception was compatible with the implied agreement, especially when the Muller exception required dissecting parties' negotiations into admissions and all other communications: at [55] and [72].

(12) A broad approach to without prejudice privilege applied, in that such privilege applied to the whole of without prejudice communications and not only admissions. Therefore, it would be inconsistent to apply the Muller exception, as the broad approach prevented the court from dissecting communications that were protected by without prejudice privilege: at [69], [70] and [73].

(13) The doctrine of approbation and reprobation prescribed that a person who accepted a benefit under an instrument had to adopt it in its entirety and renounce any other rights that were inconsistent with it. The doctrine extended more broadly to a situation of inconsistent positions asserted against different parties in different proceedings, as long as the party had received an actual benefit as a result of an earlier inconsistent position: at [76].

(14) The doctrine of approbation and reprobation did not require the electing party to make a conscious choice between alternative rights and remedies, but a party's election that gave rise to a prior position had to still be reasonably clear to be effective: at [77].

Case(s) referred to

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

Aries Telecoms (M) Bhd v ViewQwest Pte Ltd [2018] 1 SLR 108 (refd)

ARX v Comptroller of Income Tax [2016] 5 SLR 590 (refd)

BE v DE [2014] EWHC 2318 (Fam) (refd)

Berkeley Square Holdings v Lancer Property Asset Management Ltd [2020] EWHC 1015 (Ch), HC (Eng) (refd)

Berkeley Square Holdings Ltd v Lancer Property Asset Management Ltd [2021] 1 WLR 4877, CA (Eng) (refd)

Briggs v Clay [2019] EWHC 102 (Ch) (refd)

BWG v BWF [2020] 1 SLR 1296 (refd)

CSO v CSP [2023] SGHC 24 (refd)

Cutts v Head [1984] Ch 290 (refd)

Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd [2009] 4 SLR(R) 769; [2009] 4 SLR 769 (refd)

Ernest Ferdinand Perez De La Sala v Compañia De Navegación Palomar, SA [2018] 1 SLR 894 (refd)

Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320 (refd)

First National Bank plc v Walker [2001] 1 FLR 505 (refd)

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

Krishna Kumaran s/o K Ramakrishnan v Kuppusamy s/o Ramakrishnan [2014] 4 SLR 232 (refd)

Lau Chin Eng v Lau Chin Hu [2009] SGHC 225 (refd)

Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239; [2008] 2 SLR 239 (refd)

Lee Chez Kee v PP [2008] 3 SLR(R) 447; [2008] 3 SLR 447 (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 (refd)

Muller v Linsley and Mortimer [1994] EWCA Civ 39 (refd)

Oceanbulk Shipping and Trading SA v TMT Asia Ltd [2011] 1 AC 662 (refd)

Ofulue v Bossert [2009] AC 990 (refd)

Quek Kheng Leong Nicky v Teo Beng Ngoh [2009] 4 SLR(R) 181; [2009] 4 SLR 181 (refd)

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

Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd [2007] 2 SLR(R) 433; [2007] 2 SLR 433 (refd)

Swee Wan Enterprises Pte Ltd v Yak Thye Peng [2017] SGHC 313 (refd)

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

Unilever plc v Procter & Gamble Co [2000] 1 WLR 2436 (refd)

United Overseas Bank v Lippo Marina Collection Pte Ltd [2018] 4 SLR 391 (refd)

Yeo Hiap Seng v Australia Food Corp Pte Ltd [1991] 1 SLR(R) 336; [1991] SLR 567 (refd)

Facts

The claimant commenced HC/OC 158/2022 (“OC 158”) claiming for alleged minority oppression by the majority shareholders of the sixth defendant, Seng Lee Holdings Pte Ltd (“SLH”). The claimant was one of the eight children of the late Dato Lim Kim Chong, who set up SLH. The first to third defendants were majority shareholders of SLH (respectively, “Soon Huat, “Soon Heng” and Lim Kim Chong Investments Pte Ltd (“LKCI”)). The fourth defendant was Sin Soon Lee Realty Co (Pte) Ltd (“SSLRC”). The fifth defendant was the son of Soon Huat (“Thomas”).

One of the alleged oppressive acts was that Soon Huat and Soon Heng intended for Soon Huat and Thomas to receive some properties instead of SLH. The claimant applied in HC/SUM 2781/2022 (“SUM 2781”) for an interlocutory injunction to restrain the defendants from transferring the properties out of the ownership of SLH. The defendants filed affidavits to oppose SUM 2781 and introduced e-mail correspondence therein. The claimant brought the present application to strike out the e-mail correspondence and the relevant paragraphs in the affidavits.

Legislation referred to

Evidence Act 1893 (2020 Rev Ed) ss 2(2), 23

Rules of Court 2021 O 9 r 3

Ng Ka Luon Eddee, Tnee Zixian Keith, Lee Pei Hua RachelandNatalie Ng Hai Qi (Tan Kok Quan Partnership) for the claimant;

Sarbjit Singh Chopra, Roshan Singh ChopraandSakthi Vels/oRaman (Selvam LLC) for the first, third and fifth defendants;

Tan Teng Muan and Loh Li Qin (UniLegal LLC) for the second defendant;

Eugene Jedidiah Low Yeow Chin (Ark Law Corporation) for the fourth defendant (on watching brief).

23 August 2023

Judgment reserved.

Goh Yihan JC:

1 The claimant, Ms Leong Quee Ching Karen, is a minority shareholder of the sixth defendant, Seng Lee Holdings Pte Ltd (“SLH”). The claimant commenced HC/OC...