Michael Vaz Lorrain v Singapore Rifle Association

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 20 November 2020
• Neutral Citation: [2020] SGCA 114
• Plaintiff Counsel: Lee Hwee Khiam Anthony and Huineng Clement Chen (Bih Li & Lee LLP)
• Docket Number: Civil Appeal No 60 of 2019
• Date: 20 November 2020
• Hearing Date: 24 September 2020
• Subject Matter: Offer to settle,Civil Procedure,Damages
• Published date: 25 November 2020
• Defendant Counsel: Wong Hin Pkin Wendell, Chen Jie'an Jared, Wong Zi Qiang, Bryan and Andrew Chua Ruiming (Drew & Napier LLC)
• Court: Court of Appeal (Singapore)
• Citation: [2020] SGCA 114
• Year: 2020

Belinda Ang Saw Ean J (delivering the judgment of the court): Introduction

The appellant in CA/CA 60/2019 (“CA 60”) is Mr Michael Vaz Lorrain (“Mr Vaz”). The respondent, the Singapore Rifle Association (“SRA”), is a member of the Singapore Shooting Association (“SSA”). Mr Vaz is the president of SSA’s council. HC/S 109/2017 (“Suit 109”) is SRA’s action against Mr Vaz for breach of a mediation agreement entered into between, inter alia, SRA and Mr Vaz (“the Mediation Agreement”) and/or a duty of confidence owed to SRA. As Mr Vaz did not dispute liability, interlocutory judgment was entered against him.

Following the trial for the assessment of damages, the High Court judge (“the Judge”) awarded damages in favour of SRA in the sum of $8,100 along with interest and costs. In CA 60, Mr Vaz appeals against part of the Judge’s decision. SRA initially filed a cross-appeal against the Judge’s dismissal of SRA’s claim for punitive damages but this was subsequently withdrawn.

There are broadly three main issues in this appeal. The first issue is whether the judgment sum of $8,100, being legal fees and disbursements allegedly incurred by SRA, is recoverable by way of a claim for damages. The second issue is whether the Judge should have applied O 22A r 9(3) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) in respect of an offer to settle that was served by Mr Vaz on 3 April 2017 (the “OTS”). The second issue is related to the first issue in so far as the Judge held that the OTS sum of $25,000 (“the OTS Sum”) was not more favourable than the judgment obtained by SRA (ie, $8,100) together with SRA’s costs incurred up to the date the OTS was served (ie, the date of the OTS). The third issue is whether we should exercise our discretion under O 22A r 9(5) not to apply O 22A r 9(3) even if the requirements therein are satisfied.

Background facts

We begin with a brief summary of the background facts.

In 2016, the parties entered into the Mediation Agreement in an attempt to resolve certain disputes. The Mediation Agreement contained terms pertaining to the confidentiality of the mediation. Pursuant to that agreement, the parties attended a mediation session which proved to be unsuccessful.

Subsequently, Mr Vaz, in his capacity as president of the Singapore Gun Club Committee, sent a 12-page document to its members. This document contained a short extract which revealed details of what had transpired during the mediation session (“the Published Statement”). The document was later uploaded onto the Facebook page of a public Facebook group named “Singapore Gun Club” by one James Blackmore (“Mr Blackmore”). Thereafter, Mr Blackmore’s Facebook post was shared by Mr Vaz on his personal Facebook page. Mr Vaz’s post was accessible to any member of the public.

SRA commenced Suit 109 on 8 February 2017. SRA contended that by disseminating the Published Statement in the manner described above, Mr Vaz had breached the Mediation Agreement and/or a duty of confidence. Apart from claiming compensatory damages, SRA also sought punitive damages, which was quantified at $1.5m in SRA’s Opening Statement filed on 5 September 2018.

Mr Vaz filed his Defence on 2 March 2017. On 22 March 2017, SRA’s solicitors noted in a letter to Mr Vaz’s solicitors that Mr Vaz “ha[d] not raised any legal defences in his Defence on the issue of liability”. Accordingly, SRA sought Mr Vaz’s agreement for the parties to record a consent interlocutory judgment on the following terms: a) That [Mr Vaz] be restrained whether acting by himself, his servants, agents or any of them or otherwise howsoever from disclosing and/or using any Confidential Information or any part thereof including but not limited to the Published Statement; b) That [Mr Vaz] is liable to pay [SRA] damages; c) Damages, including punitive damages, to be assessed; d) That [Mr Vaz] pay [SRA] costs to be agreed or taxed.

In response, Mr Vaz’s solicitors informed SRA’s solicitors on 30 March 2017 that Mr Vaz was disputing SRA’s claim for punitive damages. However, if SRA withdrew that claim, Mr Vaz would be prepared to consent to interlocutory judgment.

Meanwhile, on 3 April 2017, Mr Vaz served the OTS on SRA. The terms of the OTS were as follows:

[Mr Vaz] offers to settle this proceeding on the following terms: 1. [Mr Vaz] be restrained whether acting by himself, his servants, agents or any of them or otherwise howsoever from disclosing and/or using any Confidential Information or any part thereof including but not limited to the Published Statement (as defined in the Statement of Claim); 2. [Mr Vaz] pays [SRA] the sum of S$25,000 within 14 days of acceptance of this Offer to Settle; and 3. Within three (3) working days of the receipt of the sum of S$25,000, [SRA] will file its Notice of Discontinuance of claim.

SRA did not accept the OTS. On 7 April 2017, SRA filed HC/SUM 1604/2017, an application under O 14 of the Rules of Court for, among other things, “interlocutory judgment [to] be entered against [Mr Vaz] with damages, including punitive damages, to be assessed” (the “Summary Judgment Application”).

On 23 May 2017, the parties appeared before the Judge for the hearing of the Summary Judgment Application. At that hearing, Mr Vaz consented to interlocutory judgment being entered against him after, inter alia, it was clarified that his liability for punitive damages was to be determined at the trial for the assessment of damages. Accordingly, the Judge made the following orders pursuant to O 14 r 3: 1. Interlocutory judgment be entered against [Mr Vaz] for damages to be assessed. 2. The matter is to proceed to trial before a judge as respect to damages pursuant to O 37 r 4(b). For the avoidance of doubt, the question of whether [Mr Vaz] is liable for punitive damages is to be determined at the trial as respect to damages. 3. [Mr Vaz] be restrained whether acting by himself, his servants, agents or any of them or otherwise howsoever from disclosing and/or using any Confidential Information or any part thereof including but not limited to the Published Statement. 4. Costs of this action (including costs of the [Summary Judgment Application]) to be reserved to the judge hearing the assessment of damages.

The decision below Assessment of damages

On 25 February 2019, the Judge gave his decision in respect of the assessment of damages. We briefly summarise the Judge’s oral grounds.

The Judge allowed SRA’s “claim of $8,100 as legal fees and disbursements incurred to respond to Mr Vaz’s breach of his confidentiality obligations in relation to the mediation”. For convenience, we refer to these legal fees and disbursements as the “Legal Advice Costs”.

The Judge did not allow SRA’s claim for the time, effort and expense incurred by SRA’s council members to investigate and uncover Mr Vaz’s breaches. The Judge also did not allow SRA’s claim for the expenses it had incurred for the mediation.

Regarding SRA’s claim for punitive damages, the Judge held that “mediation agreements or, at the minimum, confidentiality provisions in mediation agreements fall within the exception to the general rule that punitive damages should not be ordered for breach of contract”. However, on the facts, the Judge found that SRA had not succeeded in proving that Mr Vaz’s conduct was “outrageous”, so as to warrant the imposition of punitive damages. The Judge therefore dismissed SRA’s claim for punitive damages.

Costs orders and OTS

On costs, the Judge held that costs would follow the event. The Judge was satisfied that the costs ought to be assessed on the High Court scale “as there were sufficient reasons to bring [Suit 109] in the High Court in the light of the novelty, complexity and public interest significance of the issues raised”. The Judge made various costs orders in favour of SRA, amounting to $62,300 in total, with reasonable disbursements to be agreed or taxed.

For ease of reference, we summarise the costs orders made by the Judge in the following table:

S/N	Description	Amount	Whether appealed by Mr Vaz
1	Costs of trial for assessment of damages	$50,000 to be paid by Mr Vaz to SRA.	Yes
2	Costs of Summary Judgment Application	$4,000 to be paid by Mr Vaz to SRA.	Yes
3	Costs of SRA’s application to amend statement of claim (“Amendment Application”)	No order as to costs as no amendments were occasioned to the Defence.	Yes
4	Costs of Mr Vaz’s application to set aside service of the subpoena against him (“Setting Aside of Service Application”)	No order as to costs as the court did not rule on the application. The parties agreed that the subpoena would be re-served.	Yes
5	Costs of summons for directions	$300 to be paid by Mr Vaz to SRA.	No
6	Costs of Mr Vaz’s application to transfer proceedings to the State Courts	$3,000 to be paid by Mr Vaz to SRA.	No
7	Costs of Mr Vaz’s application to set aside the subpoena against him	$5,000 to be paid by Mr Vaz to SRA.	No
Total	$62,300 and reasonable disbursements to be agreed or taxed

On Mr Vaz’s OTS, the Judge held that O 22A r 9(3) did not apply because he concluded that “the offered settlement sum of $25,000 [ie, the OTS Sum] is not more favourable than the damages award of $8,100 plus [SRA’s] costs (on a party-to-party basis) incurred up to the date of OTS”. This must have meant that the Judge was of the view that SRA’s costs up to the date of the OTS would have amounted to more than $16,900.

Parties’ respective positions on the three main issues to be determined in this appeal

We have already outlined broadly the three main issues in this appeal at [3] above.

On the first issue, Mr Vaz contends that the Judge erred in awarding $8,100 to SRA in respect of the Legal Advice Costs. SRA had failed to discharge its burden of...