Rockline Ltd and Others v Anil Thadani and Others

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 17 September 2009
• Neutral Citation: [2009] SGHC 209
• Court: High Court (Singapore)
• Published date: 22 September 2009
• Citation: [2009] SGHC 209
• Plaintiff Counsel: Indranee Rajah SC, Rakesh Kirpalani and Arvindran Manoosegaran (Drew & Napier LLP)
• Defendant Counsel: Eddee Ng, Cheryl Koh and Emmeline Lim (Tan Kok Quan Partnership),S Suressh (Harry Elias Partnership),Vinodh Coomaraswamy SC and David Chan (ShookLin & Bok LLP)
• Year: 2009

17 September 2009 Judgment reserved.

Choo Han Teck J:

1 This decision concerned the preliminary applications by the defendants - except the 5^th and 6^th - (“the defendants”) to expunge a total of 409 passages from the affidavits of evidence-in-chief of two of the plaintiffs’ witnesses, Gordon Stavert Byrn (“Byrn”) and Peter Leslie Everson (“Everson”), and the plaintiffs to expunge various documents from the defendant’s bundle of documents. The numbers and length of text in the expungement exercise were matched only by the written submissions of counsel. This suit is related to Suit 834 of 2005 (“the first action”) which has been concluded but judgment deferred until the conclusion of this suit because part of this suit had been consolidated and heard together with the first action. The first action was an action founded on breach of contract. This action (“the second action”) was founded on breach of contract, namely, the Silverlink Shareholders Agreement, and the tort of conspiracy by some of the principal individuals involved in the matters litigated in the first action.

2 The defendants’ objections to the Byrn and Everson affidavits in the second action fall into three broad categories. The first was based on s 54 of the Evidence Act (Cap 97, 1997 Rev Ed) which provides that:

In civil cases the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is irrelevant, except in so far as such character appears from facts otherwise relevant.

Section 54 is not a shelter for bad character. In civil cases, as it is generally, the law protects a person from adverse findings against him only on the evidence that he was of bad character. Character in itself is an irrelevant fact. A person might be in breach of contract whether or not he was of good character; and conversely, a person of bad character might suffer a civil wrong inflicted on him by a person of good character. Section 54 emphasized the point that relevant evidence may sometimes leave impressions of character that might influence the court’s findings of fact but such subsidiary impressions are not grounds for rejecting the otherwise relevant evidence. The second ground was based on the complaint that the passages in the affidavits in question contain scandalous or vexatious assertions concerning some of the defendants. Where affidavits are concerned, the applicable rule is found in O 41 r 6 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) which provides as follows:

The court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive

The reference to “vexatious” matters appears only in O 18 r 19(2), but that rule applied only to pleadings and not affidavits. The relevant objection on this ground before me must rest on O 41 r 6 and the inherent jurisdiction of the court. One can say that generally, there can be assertions that are ostensibly scandalous while others can be deemed scandalous only in the context of the entire statement in which the assertions appear. Again, generally, assertions of dishonesty or impropriety are not scandalous if they are relevant to the issues at trial. The third ground was based on the rule commonly referred to as the rule regarding “similar fact evidence”, encapsulated in ss 14 and 15 of the Evidence Act (Cap 97, 1997 Rev Ed) (“the Act”) which appear to have a more generous application than what was stated in Makin v A-G for NSW [1894] AC 57, (“Makin”) the locus classicus for similar fact evidence, or in the further explanation in DPP v Boardman [1975] 1 AC 421 (“Boardman”):

14 — Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant when the existence of any such state of mind or body or bodily feeling is in issue or relevant. 15 — When there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

But it is important to remember that Makin and Boardman are criminal cases whereas ss 14 and 15 apply to civil as well as criminal cases as the illustrations there show. The court in a criminal case is likely to be stricter when exercising its discretion in admitting similar fact evidence. The point was made by Lord Denning in Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] 1 Ch 119, at 127:

The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side: and also that the other side has fair notice of it and is able to deal with it.

I am in full agreement with the passage quoted above. I need only add one further point to it. Many of the rules of...