Recordtv Pte Ltd v MediaCorp TV Singapore Pte Ltd and Others

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 24 June 2009
• Neutral Citation: [2009] SGHC 146
• Court: High Court (Singapore)
• Published date: 24 June 2009
• Citation: [2009] SGHC 146
• Plaintiff Counsel: Ang Kai Hsiang (ATMD Bird & Bird LLP)
• Defendant Counsel: Dedar Singh (Drew & Napier LLC) (instructed) and Cheah Yew Khuin (Wong & Leow LLC)
• Subject Matter: Civil Procedure,Striking out,When cause of action should be struck out,Whether cease and desist letters sufficient basis to prevent claim in conspiracy from being struck out,Equity,Issue estoppel,When exception to issue estoppel might arise,What qualified as "sufficient change in circumstances" to effect limited exception to issue estoppel,Tort,Conspiracy,What was required to prove sufficient claim in conspiracy,Whether cease and desist letters sufficient basis to found claim in conspiracy
• Year: 2009

24 June 2009 Judgment reserved.

Tan Lee Meng J:

1 The appellant, Recordtv Pte Ltd (“RPL”), relying on s 200 of the Copyright Act (Cap 63, 2006 Rev Ed) (“the Act”), instituted an action against the 1st defendant, MediaCorp TV Singapore Pte Ltd, the 2nd defendant, MediaCorp TV12 Singapore Pte Ltd, the 3rd defendant, MediaCorp News Pte Ltd, and the 4th defendant, MediaCorp Studios Pte Ltd (collectively referred to as “the MediaCorp companies”) for making groundless threats of legal proceedings. In addition, RPL pleaded an alleged conspiracy on the part of the MediaCorp companies. Senior Assistant Registrar Yeong Zee Kin (“SAR Yeong”) ordered the striking out of the paragraphs in RPL’s Statement of Claim which concerned the alleged conspiracy as well as the particulars pertaining to the alleged conspiracy that were filed on 18 February 2008 pursuant to an Order of Court dated 30 January 2008. RPL appealed against SAR Yeong’s decision.

Background

2 RPL provides a self-service online recording facility known as the “Internet-based Digital Video Recorder” (“iDVR”) at the website www.recordtv.com. According to RPL, its iDVR is accessible by registered users of the iDVR in Singapore to record free-to-air television broadcasts for the registered user’s private and domestic use. RPL also explained that its registered users will be able to view recordings that have been made within 15 days from the time the recording was made.

3 The MediaCorp companies are broadcasters licensed by the Media Development Authority of Singapore to broadcast a number of free-to-air terrestrial channels in Singapore. These are Channels 5, 8 and U, which are the first defendant’s channels; Central and Suria, which are the second defendant’s channels; and Channel NewsAsia, which is the 3rd defendant’s channel.

4 Apart from operating the television channels referred to above, the MediaCorp companies also produce various television programmes and are the makers of cinematographic films of such television programmes, which are broadcast over their channels.

5 The MediaCorp companies regarded the re-broadcasting of its progammes by RPL as an infringement of its copyright. As such, on 24 July 2007, the MediaCorp companies’ former solicitors, M/s Allen & Gledhill, wrote to RPL to allege that the latter had committed acts of infringement by re-broadcasting the MediaCorp broadcasts and by making copies of them (“the first cease and desist letter”). The letter made it clear that the MediaCorp companies were entitled to commence legal proceedings against RPL but would refrain from doing so if RPL complied with the demands contained in the said letter.

6 On 24 September 2007, RPL received a letter from the MediaCorp companies’ present solicitors, M/s Wong & Leow, alleging that RPL had infringed their copyright in MediaCorp’s broadcasts as well as in various films made by the 3rd and 4th defendants (“the second cease and desist letter”). This time, legal proceedings were threatened and RPL’s solicitors were asked whether they had instructions to accept service of MediaCorp’s writ.

7 On 28 September 2007, RPL instituted legal proceedings against the MediaCorp companies, claiming that the latter had made groundless threats of legal proceedings pursuant to s 200 of the Act through the first and second cease and desist letters.

8 In addition to the issue of groundless threats, RPL also alleged that the MediaCorp companies had conspired with the sole or predominant intention of injuring it or had conspired to injure it by unlawful means. It pleaded in its Statement of Claim at [10] and [11] as follows:

10 Further and in the alternative, the Defendants (or any two or more together) conspired and combined together wrongfully and with the intention and/or in the sole or predominant intention of injuring the Plaintiff and/or in causing loss to the Plaintiff, by way of the aforesaid unlawful threats.

Particulars

(a) The Plaintiff is a competitor of the Defendants. The Defendants had acted in concert to make the aforesaid threats. The motivation of the Defendants was to damage or destroy the Plaintiff’s business.

11 As a result of the Defendants’ conspiracy as set out in paragraph 10 above, the Plaintiff has suffered loss and damage. The Plaintiff will suffer further loss and damage unless the Defendants are restrained.

Particulars

(a) The particulars set out under paragraph 9 above are repeated.

9 In response, the MediaCorp companies filed a counterclaim in relation to copyright infringement of their broadcasts and films.

10 On 25 April 2008, the MediaCorp companies filed an application to strike out the conspiracy claim. The application was allowed on 9 May 2008 by the Assistant Registrar. However, the decision was reversed by Andrew Ang J in RAS No 211 of 2008 on 2 June 2008.

11 After the Assistant Registrar’s decision was reversed, RPL reiterated its request for further discovery in respect of:

(a)	all correspondence and/or minutes of meetings between the 1st, 2nd and 3rd defendants in relation to the decision to issue the first cease and desist letter; and
(b)	all correspondence and/or minutes of meetings between the 1st, 2nd, 3rd and 4th defendants in relation to the decision to issue the second cease and desist letter.

12 As the MediaCorp companies claimed privilege over the documents referred to above, RPL took out Summons No 4855 of 2008 to obtain an order that the MediaCorp companies provide the information in question. However, RPL’s application was dismissed and no appeal against the said dismissal was filed.

13 In due course, the affidavits of evidence-in-chief (“AEIC”) were exchanged. No evidence of the alleged conspiracy by the MediaCorp companies was disclosed in any affidavit filed in support of RPL’s case. Not surprisingly, the MediaCorp companies applied for the striking out of paragraphs 10 and 11 of the Statement of Claim as well as paragraphs 15-20 of the particulars filed pursuant to the Order of Court dated 30 January 2008 on 18 February 2008. SAR Yeong allowed the application. RPL appealed against his decision.

Whether the offending paragraphs should be struck out

14 Order 18 r 19 of the Rules of Court provides as follows:

(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that —

(a)	it discloses no reasonable cause of action or defence, as the case may be;
(b)	it is scandalous, frivolous or vexatious;
(c)	it may prejudice, embarrass or delay the fair trial of the action; or
(d)	it is otherwise an abuse of the process of the Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

15 In Gabriel Peter & Partners v Wee Chong Jin [1998] 1 SLR 374 (“Gabriel Peter”), the Court of Appeal, while considering the principles for striking out an action under O 18 r 19 of the Rules of Court, reiterated that the court’s power to strike out an action is a draconian one and should not be exercised too readily unless the plaintiff’s case is wholly devoid of merit. The Court of Appeal explained as follows at [18]:

In general, it is only in plain and obvious cases that the power of striking out should be invoked. … It should not be exercised by a minute and protracted examination of the documents and facts of the case in order to see if the plaintiff really has a cause of action. The practice of the courts has been that, where an application for striking out involves a lengthy and serious argument, the court should decline to proceed with the argument unless, not only does it have doubts as to the soundness of the pleading but, in addition, it is satisfied that striking out will obviate the necessity for a trial or reduce the burden of preparing for a trial.

16 In the present case, the MediaCorp companies asserted that the claim relating to a conspiracy should be struck out under O 18 r 19 (b) – (d) as none of RPL’s witnesses had given any evidence of a conspiracy in the...