Syed Suhail bin Syed Zin v AG

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 16 March 2021
• Docket Number: Originating Summons No 975 of 2020
• Year: 2021
• Court: High Court (Singapore)

Syed Suhail bin Syed Zin and others

and

Attorney-General and another

[2021] SGHC 59

See Kee Oon J

Originating Summons No 975 of 2020

General Division of the High Court

Administrative Law — Rights and liabilities of public servants — Rights — Whether plaintiffs precluded from instituting civil proceedings against individual public officers — Where public officers had acted in good faith, who would be liable for tortious acts committed

Civil Procedure — Discovery of documents — Application — Plaintiffs seeking pre-action discovery of correspondence between Singapore Prison Service and Attorney-General's Chambers to identify public officers involved in order to pursue claims in tort — Whether court could order pre-action discovery against the Government — Section 34(1) Government Proceedings Act (Cap 121, 1985 Rev Ed) — Section 54 Interpretation Act (Cap 1, 2002 Rev Ed)

Civil Procedure — Interrogatories — Application for leave — Plaintiffs seeking pre-action interrogatories to identify public officers involved in order to pursue claims in tort — Whether court could order pre-action interrogatories against the Government — Section 34(1) Government Proceedings Act (Cap 121, 1985 Rev Ed) — Section 54 Interpretation Act (Cap 1, 2002 Rev Ed)

Held, dismissing the application:

(1) The Government Proceedings Act (Cap 121, 1985 Rev Ed) (“GPA”) was derived from the UK Crown Proceedings Act 1947 (c 44) (UK), and was intended to allow a person to gain redress against the Government, and did not preclude the institution of civil proceedings against individual public officers. However, the GPA also provided that the Government was vicariously liable for the tortious acts of its officers, unless the public officers' actions had been disavowed: at [11] to [13].

(2) Under ss 19(1) and 19(3) of the GPA, all civil proceedings against the Government and/or public officers had to be commenced against the AG. Barring a finding that the public officer had not acted in good faith in pursuance of a duty imposed by law, the GPA already provided clear guidance that the AG could be liable in tort to the Plaintiffs. Furthermore, the Plaintiffs had not asserted that the relevant public officers were not acting in their capacities as agents of the Government. Indeed, they were unable to do so, given that the factual context would show that the acts in question were carried out by the public officers in the course of acting in their official capacities. Moreover, there was nothing to suggest that the Government had disavowed their actions. Accordingly, it would not be appropriate for this court to allow the Plaintiffs' applications for pre-action discovery or pre-action interrogatories for the purpose of trying to find recourse against the public officers personally: at [14] to [18].

(3) Pre-action discovery and pre-action interrogatories (“pre-action disclosures”) were underpinned by the objectives of saving of costs and time and the efficient management of court processes, and were creatures of statute which were subject to the limitations found under s 34(1) of the GPA and s 54 of the Interpretation Act (Cap 1, 2002 Rev Ed) (“IA”): at [20] to [31].

(4) Applications for pre-action disclosures occurred before substantive civil proceedings had been commenced and would not fall outside the scope of s 34(1) of the GPA. Pre-action disclosures were not conventional civil proceedings, and were a “limited” application for the purpose of obtaining information and were rendered spent once dealt with. In the absence of any express provision for pre-action disclosures against the Government, the effect of s 54 of the IA was that s 34 of the GPA defined and limited the scope of disclosures against the Government. To allow pre-action disclosures to be ordered against the Government could potentially open the floodgates to actions seeking such disclosures against the Government as it would be easier to obtain than in conventional discovery processes associated with judicial review. Accordingly, pre-action disclosures were precluded against the Government: at [32] to [38].

(5) Pre-action discovery was meant to address the situation where a potential plaintiff did not possess sufficient facts to commence proceedings, and were not necessary where the potential Plaintiffs did in fact possess sufficient facts. The AG had already made voluntary disclosure of all the Plaintiffs' correspondence that was forwarded by the SPS, in addition to disclosing that it had requested and did receive the correspondence of the first Plaintiff, as well as the 12th Plaintiff. It had also been categorically affirmed that the AG did not “use such correspondence, or otherwise gain any advantage, in any legal proceedings against the Plaintiffs”: see [42] to [44].

(6) In connection with the Plaintiffs' arguments premised on the tort of misfeasance in public office, the Plaintiffs were in possession of the material the SPS had disclosed to the AG, and were not precluded from bringing a claim against the AG asking for discovery of relevant information to show that an act was done maliciously or ultra vires, after commencing substantive civil proceedings. The information in pre-action discovery was to enable the applicant to formulate his/her pleadings, and not for the purpose of determining his/her chance of success: at [46] and [47].

(7) In respect of the contemplated claim in breach of statutory duty, it was neither necessary nor relevant to establish the identities of involved public officers or their purported intentions in their confidential communications, in order for the Plaintiffs to establish the elements of the tort: at [48] and [49].

(8) In respect of the alleged breach of common law duty of care, the Plaintiffs were already able to mount their claims in tort. Thus, it would not be necessary or relevant to identify the individual public officers: at [53].

(9) Where the applicants might potentially have a complete cause of action, pre-action interrogatories would not be ordered. As the Plaintiffs could already file a civil action against the AG, the pre-action interrogatories which sought to identify individual public servants would not be necessary or relevant: at [55].

(10) The proper forum for disciplinary proceedings where the AGC's legal officers were concerned was the Law Society's Disciplinary Tribunal. Accordingly, the pre-action disclosures the Plaintiffs sought in contemplation of making complaints against the individual public officers were not available: at [59].

[Observation: The tort of misfeasance in public office might not be actionable without proof of material damage, even if it could be shown that the public officers had acted in bad faith: at [47].]

Case(s) referred to

Adams v Naylor [1946] AC 543 (refd)

AG v Ting Choon Meng [2017] 1 SLR 373 (folld)

AHQ v AG [2015] 4 SLR 760 (folld)

British Union for the Abolition of Vivisection v Secretary of State for the Home Department [2014] EWHC 43 (Admin) (distd)

Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582; [2006] 1 SLR 582 (folld)

Ching Mun Fong v Standard Chartered Bank [2012] 4 SLR 185 (folld)

Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208 (folld)

Fong Thin Choo, Re [1991] 1 SLR(R) 774; [1992] 1 SLR 120 (refd)

Gairy v AG of Grenada [2001] 1 LRC 119 (refd)

Gairy v AG of Grenada [2002] 1 AC 167 (refd)

Gobi a/l Avedian v AG [2020] 2 SLR 883 (refd)

Lines International Holding (S) Pte Ltd v Singapore Tourist Promotion Board [1997] 1 SLR(R) 52; [1997] 2 SLR 584 (refd)

Lord Advocate v Dumbarton District Council [1990] 2 AC 580; [1989] 3 WLR 1346 (refd)

Low Chai Ling v Singapore Medical Council [2013] 1 SLR 83 (refd)

MCST Plan No 3322 v Mer Vue Developments Pte Ltd [2016] 2 SLR 793 (refd)

Michael v Chief Constable of South Wales Police [2015] AC 1732 (refd)

Pannir Selvam a/l Pranthaman v AG [2020] 3 SLR 796 (folld)

PricewaterhouseCoopers LLP v Celestial Nutrifoods Ltd [2015] 3 SLR 665 (refd)

R (Black) v Secretary of State for Justice [2018] AC 215 (refd)

Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd [2009] 4 SLR(R) 788; [2009] 4 SLR 788 (refd)

Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100; [2007] 4 SLR 100 (refd)

Tan Juay Pah v Kimly Construction Pte Ltd [2012] 2 SLR 549 (refd)

Then Khek Khoon v Arjun Permanand Samtani [2012] 2 SLR 451 (refd)

TV Media Pte Ltd v De Cruz Andrea Heidi [2004] 3 SLR(R) 543; [2004] 3 SLR 543 (refd)

Watkins v Secretary of State for the Home Department [2006] 2 AC 395 (refd)

X v Bedfordshire County Council [1995] 2 AC 633 (refd)

Facts

The plaintiffs (“Plaintiffs”) were 22 inmates of Changi Prison who had been convicted of capital offences and sentenced to suffer death. This originating summons (“the OS”) was filed against the Attorney-General (“the AG”), who was named as the first defendant and the Superintendent of Changi Prison (Institution A1) (“the Superintendent”), who was named as the second defendant. At the commencement of the hearing of the OS, a consent order was made for the Superintendent to be removed as a party to the OS.

In a previous application for judicial review in separate proceedings before the Court of Appeal, it was observed that the Singapore Prison Service (“SPS”) had copied and forwarded correspondence from several of the inmates to the Attorney-General's Chambers (“AGC”). The Plaintiffs filed the present application seeking pre-action discovery in respect of the letters between the AG and the Superintendent concerning the AG's requests for copies of the correspondence between the Plaintiffs and their lawyers and families (“the Plaintiffs' correspondence”), as well as copies of the Plaintiffs' correspondence forwarded to the AG by the Superintendent, together with any enclosures thereto. The Plaintiffs also sought leave to serve pre-action interrogatories on the AG primarily with a view to...