SRS Life Sciences Pte Ltd and others v Rastogi Mahika Suchet

• Jurisdiction: Singapore
• Judge: Ng Tee Tze Allen
• Judgment Date: 01 December 2023
• Neutral Citation: [2023] SGDC 278
• Court: District Court (Singapore)
• Docket Number: District Court Originating Application 77 of 2023, HC/RAS 16/2023
• Hearing Date: 01 November 2023,10 October 2023
• Citation: [2023] SGDC 278
• Year: 2023
• Plaintiff Counsel: Ammani Mathivanan, Han Guangyuan Keith and Santhiya d/o Kulasakeran (Oon & Bazul LLP)
• Defendant Counsel: Kulvinder Kaur (IRB Law LLP)
• Subject Matter: Confidence,Breach of confidence,Remedies,Injunctions,Sealing order
• Published date: 23 December 2023

District Judge Ng Tee Tze Allen: Introduction

This Originating Application (“OA 77”) arose out of a divorce between the 4th applicant (the husband) and the respondent (the wife). I do not intend to say much more about their marriage save that it was the respondent’s uncontested evidence that in May 2021 she discovered that the 4th applicant was having an extra-marital affair, and that the 4th applicant refused to end the affair.¹ This led to her filing for divorce on 29 December 2021. On 23 May 2022, the Family Justice Courts granted an interim judgment to dissolve the marriage.² The Family Justice Courts have made a maintenance order for her and the children. The respondent has applied to enforce the maintenance order. I shall refer to these proceedings collectively as the “Family Justice Courts proceedings”.

It is undisputed that the respondent exhibited various documents in her affidavits used in the Family Justice Courts proceedings.

On the applicants’ case, these documents contained confidential information personal to the 4th applicant, and confidential corporate information about the 1st to 3rd applicants. Briefly, the 1st to 3rd applicants are companies which the 4th applicant has a significant interest in: The 1st applicant is a Singapore incorporated company. Its shares are wholly held by the 4th applicant who is its sole director.³ The 2nd applicant is an Indian incorporated company. The 4th applicant holds 99% of its shares and the respondent holds the remaining 1%. The 4th applicant is a director of the 2nd applicant. The respondent is not.⁴ The 3rd applicant is an Indian incorporated company. The 2nd applicant holds all its shares. The 4th applicant and the respondent are not directors of the 3rd applicant.⁵ The applicants’ case is that the respondent obtained these documents through objectionable and surreptitious means.

On 9 May 2023, the applicants filed OA 77 against the respondent for breach of confidence. They sought the following orders: 1. A declaration that the Respondent is liable to the 1st to 4th Applicants for breach of confidence in respect of the Confidential Documents as listed in Annex A of this Application; 2. A permanent injunction be granted against the Respondent from using and/or disclosing the Confidential Documents; 3. The Respondent shall within three (3) days from the date of the Order herein, deliver up all the Confidential Documents and any copy or part of the Confidential Documents to the 1st to 4th Applicants or their solicitors, and provide a written confirmation that she is no longer in possession of any Confidential Document (including any soft copies); and 4. Costs of this Application to be paid by the Respondent to the 1st to 4th Applicants.

The respondent resisted OA 77. In her reply affidavit, she explained that many of the documents were in the public domain, and that she purchased them via an online website called Zaubacorp.com.⁶ She also alleged that the 4th applicant was using OA 77 to prevent her from using the documents in the Family Justice Courts,⁷ and to avoid discovery in the Family Justice Courts proceedings.⁸ In the hearing before me, the respondent’s counsel informed that the respondent did not intend to use the documents in any other context.⁹

The applicants accepted that the respondent had obtained certain documents from Zuaubacorp.com. They withdrew their application in respect of these documents. As for the remaining documents, the applicants’ counsel confirmed that the applicants were not asking that I restrain the respondent from using them in the Family Justice Courts proceedings.¹⁰ Their concern was that the respondent would use them outside those proceedings.

Notwithstanding the applicants’ clarification, the respondent’s counsel maintained her objections. She said that this was for costs.¹¹ When I highlighted the possibility of me making the necessary orders and just hearing parties on costs, the respondent maintained her objection.¹² Though not articulated, it seemed that the respondent was concerned that an injunction would prevent her from using the documents in potential enforcement proceedings in India.¹³

Having heard the parties and considered the evidence, I found the respondent to be in breach of confidence for all but one of the remaining documents. Accordingly, I: made a declaration to that effect; and granted a permanent injunction against the respondent from using and/or disclosing the confidential documents save for the Family Justice Courts proceedings and any appeals therefrom. I was, however, not prepared to order the respondent to deliver up the confidential documents given that copies of the same were exhibited in affidavits filed in the Family Justice Courts and I had not restricted her use of those documents there. I was also not prepared to grant a free-standing exception to permit her to use the confidential documents in the potential Indian enforcement proceedings. Instead, I gave parties liberty to apply.

Dissatisfied with my decision, the respondent appealed. The applicants have not appealed. I now set out the full grounds of my decision.

The law

The first point to note is that this case is to be determined by the law of breach of confidence, not the law of evidence. This is clear from ANB v ANC [2015] 5 SLR 522 (“ANB”). ANB concerned an acrimonious divorce. While the husband was away, the wife illegally entered the husband’s home and obtained information from his personal notebook computer. She attempted to use some of that information in the divorce proceedings. The husband sued for, inter alia, breach of confidence. The issue before the Court of Appeal was whether an interlocutory injunction should be granted.

The Court of Appeal held that the case before it was about the law of breach of confidence and whether the American Cyanamid test was satisfied (see ANB at [10]-[11]). The case was not the law of evidence. As regards the latter, the Court of Appeal explained at [12]:

12 While it may be that an interlocutory injunction, if ordered, would practically prevent the Respondents from tendering the information as evidence by copying and distributing the information in any other suit in potential breach of confidence, it must be noted that such an injunction does not equate to a decision as to the admissibility of such information as evidence. The latter decision will only have to be made if, for example, the information in the present case was tendered as evidence in support of a suit and the Appellant objects to its admissibility on the ground that it was being used in breach of confidence.

(emphasis in original)

The court will apply the legal principles relating to the law of breach of confidence even where a permanent injunction is sought. In Jethanand Harkishindas Bhojwani v Lakshmi Prataprai Bhojwani [2022] 3 SLR 1211 (“Jethanand”), a husband sued his former wife and his children for breach of confidence. The son downloaded documents from his laptop without permission. The former wife sought to use that information in matrimonial proceedings. The husband started separate proceedings seeking, inter alia, a permanent injunction to restrain the defendants from using, disclosing, or destroying the copied information. The High Court applied the law of breach of confidence to determine whether a permanent injunction should be granted.

The court’s approach to breach of confidence claims is set out in the Court of Appeal decision of I-Admin (Singapore) Pte Ltd v Hong Ying Ting and others [2020] 1 SLR 1130 (“I-Admin”) at [61]:

61 … a court should consider whether the information in question “has the necessary quality of confidence about it” and if it has been “imparted in circumstances importing an obligation of confidence”. An obligation of confidence will also be found where confidential information has been accessed or acquired without a plaintiff’s knowledge or consent. Upon the satisfaction of these prerequisites, an action for breach of confidence is presumed. This might be displaced where, for instance, the defendant came across the information by accident or was unaware of its confidential nature or believed there to be a strong public interest in disclosing it. Whatever the explanation, the burden will be on the defendant to prove that its conscience was unaffected…

Issues

In line with I-Admin, I consider the following issues to determine whether there has been a breach of confidence: Whether the applicants established that documents contain information with the necessary quality of confidence; Whether the applicants established that the documents were imparted in circumstances importing an obligation of confidence; and If (a) and (b) are answered in the affirmative, whether the respondent proved that her conscience was unaffected.

I will thereafter consider: (a) whether there was any other reasons why the applicants should not be allowed to sue for breach of confidence, and (b) whether the applicants are entitled to the remedies they seek.

Whether the documents contain information with the necessary quality of confidence

I start with the issue of whether the documents in question contained information with the necessary quality of confidence. The documents which formed the subject matter of OA 77 were described in Annex A to the Originating Application and exhibited in the 4th applicant’s first affidavit.

As noted, the applicants accepted that many documents set out in Annex A were in the public domain, and accordingly did not pursue them. These documents are from s/n 2 to 14. The remaining documents can be categorised into five sets which I consider in turn.

Set 1: List of bank accounts and their balances

Set 1 comprised one document. It is set out at s/n 1 and is described as “List of bank accounts belonging to various companies within the SRS corporate group”. This list set out a number of...