Oversea-Chinese Banking Corp Ltd v Wright and Another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JC
• Judgment Date: 15 May 1989
• Neutral Citation: [1989] SGHC 48
• Docket Number: Suit No 3190 of 1987
• Date: 15 May 1989
• Year: 1989
• Published date: 19 September 2003
• Plaintiff Counsel: Charles Anthony St John Gray QC and Ronnie Quek (Shook Lin & Bok)
• Citation: [1989] SGHC 48
• Defendant Counsel: Patrick Milmo QC and Koh Kok Wah (Arthur Loke & Partners)
• Court: High Court (Singapore)
• Subject Matter: Further and better list of documents,Whether 'fishing' expedition,Whether they should be allowed,Whether necessary for case,Civil Procedure,Discovery of documents,Application for leave,Interrogatories,Whether order should be made,Application,Whether interrogatories merely a 'fishing' expedition

Cur Adv Vult

This is an appeal against two interlocutory orders made by the assistant registrar on 31 October 1988 and 13 January 1989. Under the first order, leave was granted to the first and third defendants to issue certain interrogatories to the plaintiffs. The second order requires the plaintiffs to furnish a further and better list of documents. This is an action for libel on account of a certain letter which the first defendant wrote in his capacity as the managing partner of the second defendant. He is also the managing director of the third defendant. The matter arose out of a news article appearing in a newspaper, the Business Times , of 17 November 1987. In this news article, written by one Alvin Tay, it was reported that `OCBC plans to recruit four top-ranking bankers` and the names of the four persons were given therein. In the letter written by the first defendant on the subject of maintaining confidentiality in the search for executives, and which was published in the Business Times of 28-29 November 1987, the following words, among others, appeared:

A case of how not to go about attracting top executives was demonstrated in the front page article which appeared in your 17 November issue regarding OCBC`s reported plans to hire four named senior banking officials. Professional executive search firms would recoil in horror at such publicity.

Your reporter has met his professional duty to `find and report the news`, but there is a prima facie case of rank amateurism or carelessness at OCBC to have allowed such a breach of confidentiality to happen. It shows clearly how difficult it is for an organization to maintain confidentiality when it conducts its own search. The leakage is potentially damaging to those named, at the very least embarrassing, and the effect on the morale of their present staff and indeed, on that of the staff at OCBC, must be unfortunate.

The plaintiffs allege that by reason of the publication of those words they had been injured in their reputation and brought into public scandal, odium and contempt. They claim for damages and for an injunction.

In their defence filed, the defendants deny that the words complained of were defamatory of the plaintiffs. In the alternative, they say that those words are a fair comment on a matter of public interest, ie the methods of recruitment of senior executive officers by a major banking corporation. The defence of justification is not pleaded. As is required under O 78 r 3(2) of the Rules of the Supreme Court 1970 (RSC) and in accordance with case law where the defence of fair comment is raised ( Cunningham-Howie v Dimbleby & Sons [1950] 2 All ER 882) the defendants have set out in their defence certain particulars of facts and matters upon which the comment was based. I do not think it is necessary for me to set out all the facts and matters enumerated except for para 6(2) and (8) which reads:

6(2) Executive search firms commonly act on behalf of commercial concerns to search for and select senior executives for recruitment by their clients. Any reputable search firm will carry out such duties in confidence in relation to the identities of their clients and selected executives, and will take all reasonable steps to ensure that the names are not prematurely publicly disclosed.

(8) The plaintiff had failed or neglected to take any sufficient steps to ensure that the facts and matters mentioned in Alvin Tay`s said article were not publicly disclosed until the appointment of the four persons were officially announced.

Pursuant to an order of court granted at the instance of the plaintiffs, the first defendant furnished further particulars in relation to the said paras 6(2) and 6(8) of the defence. The first defendant listed out in 22 subparagraphs what are the reasonable steps a reputable search firm will take to ensure that the names of potential candidates are not prematurely publicly announced. In answer to the particulars required under para 6(8), the first defendant was only able to say that the plaintiffs failed or neglected to take one or more of the said 22 measures (mutatis mutandis). Subsequently, on 27 August 1988, the first and third defendants applied for leave to serve on the plaintiffs certain interrogatories and I think I should set them out in full:

1 Was not the plaintiff company in November 1987, or if in some other month what month, seeking to recruit four, or if some other number what number, top-ranking bankers to fill senior positions within the company?

(2) If the answer to the first interrogatory is yes, is it not a fact that the plaintiff company did not retain an independent and reputable executive firm, or any firm

carrying on a similar practice, to recruit or assist the company in the recruiting of the said bankers?

(3) If the answer to the first interrogatory is yes, did not the persons whom the plaintiff company were seeking to recruit include the following persons, or some and which of them, Mrs Elizabeth Sam, Mr Ng Tat Pun, Mr Lai Teck Poh and Mr Goh Chee Hiong?

(4) Look at the article by Alvin Tay in the issue of Business Times of 17 November 1987, if the answer to the third interrogatory is yes, was not the publication of the names of the said persons in the said article without the knowledge and consent of:

(a) staff at the plaintiff company`s offices,

(b) the persons named,

(c) the firms by which such persons were currently employed or at which they were working,

or without the knowledge and consent of some and which of the above mentioned?

(5) Did the plaintiff company on 11 December 1987 announce the appointments of Messrs Ng, Lai and Goh as executive vice-presidents of the company, and on 29 December 1987 announce the appointment of Mrs Sam as head of the investment banking division of the company?

(6) Did the plaintiff company take any steps to ensure that the names of the said persons were not disclosed in a newspaper prior to the said announcements of their appointments, and in particular in the said article of Alvin Tay?

(7) If the answer to the sixth interrogatory is yes, what steps did the plaintiff company take?

The assistant registrar who heard the application granted leave to the first and third defendants to serve the interrogatories.

In the meantime, pursuant to a summons for directions, an order was made that the parties should serve on each other a list of documents with an affidavit verifying the same. This was done by both the plaintiffs and the first and third defendants. By a notice for further documents filed on 18 November 1988, the first and third defendants applied for an order to require the plaintiffs to make and serve on the first and third defendants a further and better list of documents. On 13 January 1989 the application was partially granted by the assistant registrar who ordered that the plaintiffs do make and serve a further and better list of documents which shall be confined to documents which formed the foundation of two press releases attached to two letters from the plaintiffs to the Business Times dated 11 December 1987 and 29 December 1987. The plaintiffs have appealed against the order granting leave to the first and third defendants to issue the interrogatories. Both the plaintiffs and the first and third defendants have appealed against the order requiring the making and serving of a further list by the plaintiffs, with the plaintiffs taking the stand that the order should not have been made at all and the defendants contending that the order given is too restrictive.

Interrogatories

The first question for my consideration is whether the first and third defendants should be given leave to serve the interrogatories on the plaintiffs. Generally, interrogatories are admissible if they come to support the applicant`s case or to impeach or destroy the opponent`s case. The object of interrogatories is to `see whether the party who interrogates cannot obtain an admission from his opponent which will make the burden of proof easier than it otherwise would have been`: see Cotton LJ in A-G v Gaskill (1882) 20 Ch D 519 at p 528. Obviously each case has to be decided in the light of the facts set out and/or issues raised in the pleadings. In any event, interrogatories will only be allowed as shall be considered necessary either for disposing fairly of the cause or matter, or for saving costs. If the admission of a fact can be proved by a witness who will be called at the trial, interrogatories will not, as a rule, be allowed because it will not save but add to costs.

In relation to defamation actions the following statements at para 26/1/11 in the Supreme Court Practice (1988 Ed) are pertinent:

Where fair comment is pleaded and the defendant has given particulars of the matter on which his comments were based, he may interrogate the plaintiff as to the truth of the matter relied on in the particulars ...

Where fair comment only was pleaded, interrogatories to the plaintiff as to similar statements in other newspapers and as to the truth of the...