Lim Oon Kuin v Rajah & Tann Singapore LLP

JudgeSundaresh Menon CJ,Andrew Phang Boon Leong JCA,Judith Prakash JCA,Belinda Ang Saw Ean JAD,Chao Hick Tin SJ
Judgment Date04 April 2022
CourtCourt of Appeal (Singapore)
Docket NumberCivil Appeals Nos 20 and 21 of 2021
Lim Oon Kuin and others
Rajah & Tann Singapore LLP and another appeal

[2022] SGCA 29

Sundaresh Menon CJ, Andrew Phang Boon Leong JCA, Judith Prakash JCA, Belinda Ang Saw Ean JAD and Chao Hick Tin SJ

Civil Appeals Nos 20 and 21 of 2021

Court of Appeal

Civil Procedure — Parties — Joinder — Whether power of joinder could cover situations where something remained to be done between existing party and new third party seeking to be added to action, and there had been striking out of party sought to be replaced and its claims

Confidence — Breach of confidence — Whether respondent law firm should be restrained from acting for company on basis of breach of confidence, given certain documents and information provided in context of restructuring of group of companies

Legal Profession — Solicitor-client relationship — Whether respondent law firm should be restrained from acting for company on basis of supervisory jurisdiction of court to ensure proper administration of justice

Held, allowing the appeal:

(1) Under the two-part inquiry for a joinder application under O 15 r 6(2)(b) of the Rules of Court (2014 Rev Ed) (the “Rules”), the court would first determine whether the requirements of a particular limb thereunder were met, before considering whether its discretionary power to allow joinder should be exercised in favour of the applicant. The “necessity” limb under O 15 r 6(2)(b)(i) did not apply: the appellants did not assert an interest on behalf of the Companies that was necessary to the determination of OS 666 and OS 704, nor was their presence necessary to the issue of whether the Companies were entitled to the reliefs sought: at [25] to [28].

(2) It was, however, “just and convenient” to add the appellants under O 15 r 6(2)(b)(ii) of the Rules. The questions of confidential information and the supervisory jurisdiction of the court as raised by the appellants were undoubtedly linked to the injunctive relief claimed by the Companies. The claims substantially arose from the same facts, ie, disclosure of information to the respondent by the appellants and the Companies, which the appellants claimed would not have taken place had they known that the respondent could subsequently act for the JMs of the Companies in a manner adverse to their interests. The appellants had disclosed some information which appeared to have the necessary quality of confidence although this was subject to further investigation at trial. The question of whether the respondent ought to be restrained from acting on the basis of the supervisory jurisdiction of the court was also a broader concern that arose on the facts: at [29].

(3) It was argued by the respondent that O 15 r 6(2)(b)(ii) of the Rules did not apply to the present situation where the appellants were trying to bring themselves into OS 666 and OS 704 in a wholly different capacity, to prevent the actions being struck out when they had been started without due authority. However, the provision could not be so confined, and covered situations where something remained to be done between an existing party and a new third party seeking to be added to the action. In the present context, as the appellants had a cause of action on the basis of a breach of confidence or the supervisory jurisdiction of the court that was not frivolous or vexatious or obviously unsustainable, their title to sue could not be impugned at this interlocutory stage: at [30] and [31].

(4) On the applicable test for breach of confidence, the modified approach set out in I-Admin (Singapore) Pte Ltd v Hong Ying Ting[2020] 1 SLR 1130 (the “I-Admin approach”) was intended to specifically fill the lacuna in the law for cases involving alleged harm to a plaintiff's wrongful loss interest, and did not apply to cases involving alleged harm to a plaintiff's wrongful gain interest. The I-Admin approach differed from the previous framework in that the legal burden shifted onto the defendant at the third stage of the inquiry as to whether the cause of action was made out. This limitation to cases involving the unauthorised acquisition of confidential information was evident on the facts of I-Admin itself: at [39] to [42].

(5) On the first limb of the test, certain documents and information pointed to by the appellants possessed the requisite quality of confidence on a prima facie basis. Although the information was provided in the context of the group restructuring, it could not be said that such information therefore necessarily belonged to the Companies. The said information often related to individual companies among the Group Companies that were distinct from the Companies. On the second limb of the test, the longstanding client-solicitor relationship necessarily formed the backdrop against which the allegations of breach of confidence were to be understood. The information could be said to have been received in circumstances importing an obligation of confidence. From the point of view of the appellants, the appointment of the respondent as the solicitors for the Companies was made on the basis that the respondent, in seeking to resolve the financial predicament that the Companies were in, would have regard as well to the interests of their longstanding clients, the appellants. On the third and final limb of the test, the information included in-depth details of the workings of individual companies within the group, all of which were connected to the appellants. That very same information could potentially be utilised against the appellants by the JMs who were appointed thereafter. It was furthermore arguable that information and documents provided by the appellants which related to companies distinct from HLT and OTPL were provided apart from the purposes of any joint retainer, that was, to advise the Companies. The proposition in Winters v Mischon de Reya[2008] EWHC 2419 (Ch), which the Judge had applied, therefore did not necessarily preclude claims of confidence on the part of the appellants: at [47] to [55].

(6) On the appellants' invocation of the supervisory jurisdiction of the court in order to restrain the respondent from acting for the JMs, the test was whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that the legal practitioner be restrained from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice. Although the appellants might have made certain concessions before the Judge that would appear to have confined their cause of action to one based in confidence, there was arguably a broader case engaging the supervisory jurisdiction of the court, which was supported by affidavits filed by the appellants. These asserted that the appellants had sought advice from the respondent on the steps that the appellants should take to protect their and the Group Companies' interests, and provided information and documents relating to the Group Companies in the belief that these would be used to advise and protect these same interests. On the other hand, the truth of the respondent's assertion that it was not engaged in any such group restructuring and had not advised or acted for any of the appellants in their personal capacities in relation to the financial distress of these companies would have to be established at trial. The long history between the respondent and the appellants might also be relevant in assessing whether an injunction should be granted: at [65] and [70] to [74].

Case(s) referred to

Abdul Gaffer bin Fathil v Chua Kwang Yong [1994] 3 SLR(R) 1056; [1995] 1 SLR 484 (refd)

Alliance Entertainment Singapore Pte Ltd v Sim Kay Teck [2007] 2 SLR(R) 869; [2007] 2 SLR 869 (refd)

ARW v Comptroller of Income Tax [2019] 1 SLR 499 (folld)

Black v Taylor [1993] 3 NZLR 403 (refd)

Chiarapurk Jack v Haw Par Brothers International Ltd [1993] 2 SLR(R) 620; [1993] 3 SLR 285 (refd)

Cleveland Investments Global Ltd v Evans [2010] NSWSC 567 (refd)

Coco v AN Clark (Engineers) Ltd [1969] RPC 41 (refd)

D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 (refd)

Davies v Clough (1837) 8 Sim 262 (refd)

Doran Constructions Pty Ltd, Re (2002) 194 ALR 101 (refd)

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

Everingham v Ontario (1992) 88 DLR (4th) 755 (refd)

Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612 (refd)

Grimwade v Meagher [1995] 1 VR 446 (refd)

Harsha Rajkumar Mirpuri (Mrs) née Subita Shewakram Samtani v Shanti Shewakram Samtani Mrs Shanti Haresh Chugani [2018] 5 SLR 894 (folld)

Hin Leong Trading (Pte) Ltd (In Liquidation) v Rajah & Tann Singapore LLP [2022] SGCA 28 (refd)

I-Admin (Singapore) Pte Ltd v Hong Ying Ting [2020] 1 SLR 1130 (refd)

Imerman v Tchenguiz [2011] Fam 116; [2011] 2 WLR 592 (refd)

IPM Group Pty Ltd, Re [2015] NSWSC 240 (refd)

Jasper Johannes Raats v Gascoigne Wicks [2006] NZHC 598 (refd)

Konigsberg, Re [1989] 1 WLR 1257 (refd)

Lee Bee Eng v Cheng William [2021] 3 SLR 968 (folld)

Lim Seng Wah v Han Meng Siew [2016] SGHC 177 (refd)

LVM Law Chambers LLC v Wan Hoe Keet [2020] 1 SLR 1083 (refd)

Ocean Tankers (Pte) Ltd v Rajah & Tann Singapore LLP [2021] SGHC 47 (refd)

Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 (refd)

Recover Ltd, Re [2003] 2 BCLC 186 (refd)

Sagheera, The [1997] 1 Lloyd's Rep 160 (refd)

Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 17 IPR 545 (refd)

Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 (refd)

Tan Yow Kon v Tan Swat Ping [2006] 3 SLR(R) 881; [2006] 3 SLR 881 (refd)

Then Khek Khoon v Arjun Permanand Samtani [2012] 2 SLR 451 (folld)

Williamson v Nilant [2002] WASC 225 (refd)

Winters v Mishcon de Reya [2008] EWHC 2419 (Ch) (refd)


The appellants were the key management figures in two related companies (the...

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