Wright Norman and Another v Oversea-Chinese Banking Corp Ltd and Another Appeal

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 01 August 1992
• Neutral Citation: [1992] SGCA 49
• Citation: [1992] SGCA 49
• Defendant Counsel: Charles Gray QC and Sarjit Singh Gill (Shook Lin & Bok)
• Published date: 19 September 2003
• Plaintiff Counsel: Patrick Milmo QC and Tan Sei Bee (Arthur Loke & Partners)
• Date: 30 November 1993
• Docket Number: Civil Appeals Nos 54 of 1989 and 27 of 1991,Civil Appeal No 82 of 1992
• Court: Court of Appeal (Singapore)
• Subject Matter: Further and better particulars,Inference that application was a 'fishing expedition',Whether relevant to issues in dispute,Appeal against exercise of judicial discretion in interlocutory matter,Application for,Civil Procedure,Discovery of documents,Whether court should intervene in the absence of clear error of law or principle,Application for leave,Appeals,Interrogatories,Application,Role of appellant court,Further and better list of documents,Form of application similar to interrogatories,Applicant unable to particularize allegations,Width of categories of documents sought,Pleadings

Cur Adv Vult

Before us are two interlocutory appeals. The first is Civil Appeal No 54 of 1989 in which Norman Wright and Egon Zehnder International Pte Ltd, who are the first and third defendants in Suit No 3190 of 1987, are appealing against the order of Chao Hick Tin JC (as he then was) in which the learned judicial commissioner refused to grant them leave to serve a set of seven interrogatories on Oversea-Chinese Banking Corp Ltd (`OCBC`), who are the plaintiffs in that action, and to order OCBC to make and serve on them a further and better list of documents. The second appeal is Civil Appeal No 27 of 1991 in which Norman Wright, who is the plaintiff in Suit No 98 of 1988, is appealing against the order of Karthigesu J in which the learned judge refused to order OCBC to deliver further and better particulars of their defence and to give discovery of certain classes of documents. These two appeals, though raising different issues, are related in some material respects, as will be seen in a moment, and it is convenient and appropriate for us to deal with both of them at the same time, though separately, in his judgment.

The circumstances that gave rise to the appeals are these. On 17 November 1987, there appeared in the Business Times an article written by Alvin Tay, the banking correspondent, with the caption `OCBC plans to recruit four top-ranking bankers`. On top of the caption were printed the photographs of four well-known banking personalities in Singapore and under the photographs were the words: `On OCBC wanted list ... (from left) Mrs Elizabeth Sam, Mr Ng Tat Pun, Mr Lai Teck Poh and Mr Goh Chee Hiong.` Alvin Tay`s article was followed by another article on executive search in the Business Times on 23 November 1987. In response to this second article, Norman Wright, in his capacity as managing partner of Egon Zehnder International, South-east Asia, wrote a letter to the editor of the Business Times and the letter was published in the weekend issue of the Business Times for 28-29 November 1987 with a very prominent caption `Searching for executives`, on top of which were printed the words `Need to maintain confidentiality`. This letter contained, inter alia, the following passage:

A case of how not to go about attracting top executives was demonstrated in the front page article which appeared in your November 1987 issue regarding OCBC`s reported plans to hire four, named, senior banking officers. Professional executive search firms will 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 of OCBC to have allowed such a breach of confidentiality to happen. I doubt that a professional executive search firm would have been involved.

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.

OCBC complained that this passage was libellous of them, and by their solicitors` letter dated 3 December 1987, demanded from both Norman Wright and Times Business Publications Ltd (`Times Publications`), the publisher of the Business Times , a full and complete withdrawal and an apology in a form and on terms to be approved by OCBC`s solicitors, to be published in one issue of the Business Times in as prominent a position as the letter complained of. Norman Wright`s solicitors responded on 4 December 1987, denying that the passage was libellous and stating that the statements complained of were an expression of opinion in respect of the issue of `executive search` only and that no aspersions were cast on OCBC`s integrity or ability as bankers, and, in any event, maintaining that the statements in that passage were fair comment made without malice upon a point of public interest, namely, the manner in which an organization recruits senior executives. Times Publications, on the other hand, through their solicitors on 4 December 1987, came forward with an apology which they would be prepared to publish on the following day. OCBC`s solicitors, however, immediately informed the solicitors for Times Publications that OCBC would be agreeable to abandon their claim for damages provided Times Publications agreed to publish an unreserved apology exactly in the form of a draft required by OCBC. The solicitors for Times Publications agreed to the publication of the unreserved apology in those very terms, and the apology appeared on the weekend issue of Business Times for 5-6 December 1987. The apology read as follows:

In the 28 November 1987 issue of the Business Times we published a letter of Mr Norman Wright, managing partner of Egon Zehnder International South-east Asia, titled `Searching for executives` and sub-titled `Need to maintain confidentiality`. [lt ]1p[gt ] Business Times is satisfied and accepts that the statements concerning the Oversea-Chinese [Banking] Corp Ltd in the said letter were and are wholly unfounded. We know of no carelessness or failing on the part of Oversea-Chinese Banking Corp Ltd to have allowed any breach of confidentiality to happen and we accept that we know of no basis or foundation whatsoever for the statements. [lt ]1p[gt ] Business Times is glad to take this earliest opportunity of expressing to the Oversea-Chinese Banking Corp Ltd its unreserved regrets for any distress, inconvenience or embarrassment caused to them by the said statement.

On 12 December 1987, OCBC commenced an action in Suit No 3190 of 1987 (`the 1987 action`) against the three defendants, namely, Norman Wright, Egon Zehnder International South-east Asia (sued as a firm) and Egon Zehnder International Pte Ltd.

Slightly over two weeks later, Norman Wright took objection to the unreserved apology, and through his solicitors, complained that the apology was defamatory of him and demanded from OCBC and Times Publications an apology. Both OCBC and Times Publications refused to provide the apology and thereupon Norman Wright commenced an action against Times Publications and OCBC in Suit No 98 of 1988 (`the 1988 action`) on 16 January 1988.

In the 1987 action, OCBC claimed that the words contained in the passage complained of, in their natural and ordinary meaning, meant and were intended to mean:

(a) that OCBC had caused or permitted a breach of confidence to take place in relation to their intended hiring of the four senior bankers whereby certain embarrassment and potential damage had been caused to those concerned; and/or

(b) that OCBC had either deliberately or through ignorance or carelessness broken an express or implied promise of confidentiality to the four bankers they were seeking to hire and so subjected them to difficulties vis-a-vis their then employers; and/or

(c) that OCBC were not able to keep confidential matters or information which by their nature should be kept confidential.

The first and third defendants each filed separate defences; however, their defences were identical in all material respects. They denied that the words complained of were defamatory of OCBC. In the alternative, they averred that the words complained of were a fair comment on a matter of public interest, ie the methods of recruitment of senior executive officers by a major banking corporation. Particulars of the facts and matters on which the defence of fair comment was made were pleaded. Subsequently, pursuant to an order of court, further and better particulars were given by Norman Wright, and in those particulars, he set out in 22 paragraphs what he averred were reasonable steps a reputable search firm would take to ensure that the names of potential candidates were not prematurely publicly announced, and he further averred that OCBC failed or neglected to take one or more of the 22 steps. However, Norman Wright was unable to be more precise than that and, in particular, he was unable to point out specifically to any act or omission on the part of OCBC which amounted to causing or permitting a breach of confidence to take place. It is significant to note that no defence of justification was pleaded by either of the defendants.

In their reply, OCBC maintained that the words complained of were statements of fact and not comment and accordingly were not susceptible of the defence of fair comment. In the alternative, they pleaded that Norman Wright and, through him, his co-defendants were actuated by express malice. Among the matters relied upon in support of the plea of actual malice were the following: that Norman Wright had failed or neglected to check with them, or at all, the truth of his assertions before publication; that Norman Wright`s dominant motive in publishing the words was to promote the service offered by the company by whom he is engaged at the expense of OCBC`s good name and reputation in the business community; and that Norman Wright`s object in commencing the 1988 action was to discourage OCBC from pursuing the 1987 action.

On 27 August 1988, the first and third defendants applied for leave to serve on OCBC the following interrogatories:

(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 search 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...