Tan Chin Seng and Others v Raffles Town Club Pte Ltd

• Judge: Chao Hick Tin JA
• Judgment Date: 16 July 2002
• Neutral Citation: [2002] SGCA 35
• Citation: [2002] SGCA 35
• Defendant Counsel: K Shanmugam SC and Boey Swee Siang ( Allen & Gledhill )
• Published date: 19 September 2003
• Plaintiff Counsel: Tong Beng Teck Roland and Wang Shao-Ing ( Wong, Tan & Molly Lim )
• Date: 16 July 2002
• Docket Number: Civil Appeal No 51 of 2002
• Court: Court of Appeal (Singapore)
• Subject Matter: Evidence as to factual background of dispute,'Train of inquiry' concept,Allegation of fraud,Criteria of relevancy,Civil Procedure,Discovery of documents,Evidence,Necessity of showing link between document sought and issues in the action,Relevancy dependent on issues pleaded,Necessity of pleading expressly such allegation with particulars,Pleadings,Admissibility of evidence,Whether admissibility of such evidence restricted to circumstances known to parties at or before time of contract

Judgment

GROUNDS OF DECISION

1 This was an appeal against the decision of the Judge in Chambers allowing the respondent’s appeal against an order of the Assistant Registrar requiring the discovery of certain categories of specific documents. After hearing the parties, the appeal was allowed only in respect of one category of documents. The others were dismissed. We now give our reasons.

The facts

2 The appellants, ten individuals in all, are taking this action on behalf of themselves and 4,885 other persons, who are all members of the Raffles Town Club (the Club), a proprietary Club, seeking reliefs against the respondent-proprietors, Raffles Town Club Pte Ltd (RTC), on the grounds of misrepresentation and breach of contract.

3 The hearing of the action is now in progress. The action is based on a common law prospectus issued by RTC when inviting members of the public to join the Club. The prospectus comprised the following documents:-

(i) a letter of invitation dated 9 November 1996;

(ii) a brochure;

(iii) a document giving general information in the

form of questions and answers.

4 The prospectus promised "lavish reception and facilities" and that the Club would be "without peer in terms of size, facilities and sheer opulence". It also gave, inter alia, the following specific indications as to what members could expect –

(i) there would be about 600 car parking lots for members;

(ii) the exclusive and limited membership would be fully transferable;

(iii) the total built-up area would be in excess of 400,000 square feet.

5 Potential subscribers were also told that there would be two classes of membership:-

(i) a limited number of exclusive transferable founder members at the subscription price of $28,000, on a first-come-first serve basis, provided the application was made before 30 November 1996. The selection process aimed at building up a network of like-minded professionals, executives and business people.

(ii) Those not successful under (i), and those who applied after 30 November 1996, would have to pay $40,000 and they would be "second class members."

6 From all the foregoing, the plaintiffs alleged that they were made to understand, and it was represented to them, that the total number of members at any given time would be limited so that the members and their spouses would not at any time be shut out from enjoying the facilities of the Club. The plaintiffs also said that these representations had become terms of the contract upon the plaintiffs’ applications to becoming founder members being accepted. The plaintiffs said that these representations turned out to be false because –

(i) Nineteen thousand people have become founder members. No invitation was issued to the public for the "second class members".

(ii) The facilities of the Club were inadequate to cater to the needs of 19,000 members.

7 By reason of the representations which turned out to be untrue, the plaintiffs asked for a rescission of the contract and the return of the money paid to become members, or damages for breach of contract.

Discovery

8 By summons-in-chambers made on 2 April 2002, the plaintiffs applied for an order for the discovery of nine wide-ranging categories of documents. The Assistant Registrar, while granting an order for discovery, drastically narrowed its scope when compared with that prayed for by the plaintiffs. Discovery was ordered in respect of twelve specific categories of documents. However, as some of the discovered documents were no longer in contention we would only set out those which were the subject of the appeal:-

1. Any one document of a date before 6 November 1996 recording decision (whether of the Board of RTC … its directors or its representatives) on the number of Raffles Town Club members to be taken in the first offering ending 30 November 1996 and for the fee of $28,000.

2. Any one document of a date before 6 November 1996 recording decision (whether of the Board of RTC …. its directors or its representatives) on the number of Raffles Town Club members to be taken in the second offering after 30 November 1996 and for the fee of $40,000.

3. Any one document of a date after 30 November 1996 but before 31 March 1997 recording (whether by the Board of RTC …. its directors or its representatives) the number of applications received and determining the number of applications to be accepted from the applications made in the first offering ending 30 November 1996 and for the fee of $28,000.

4. Any one document(s) dated after 1 January 1996 and before 31 September 1997 recording (whether by the Board of RTC …. its directors or its representatives) the criteria for approving applications in (i) the first offering ending 30 November 1996 and (ii) the second offering starting 1 December 1996, limited to documents where there is a material change in position from the previous document in time.

5. Any one document(s) dated after 1 January 1996 but before 31 September 2001 reflecting (whether by the Board of RTC …. its directors or its representatives or agents such as architects):- (a)(i) the final building plan/design submission to Building Control Authority; and (a)(ii) any material amendments to this final submission document thereafter; (b)(i) the decision shortly before June 2001 of using S$100,000,000 for additional facilities; and (b)(ii) the implementation plan for the use of this additional S$100,000,000.

6. Copies of correspondence (a) from members raising complaints; and, (b) the club management’s replies in relation to the inadequacy, and over-crowding of the RTC coffee-house, Chinese restaurant, car-park and swimming pool for the period March 2000 to July 2001.

7. Any documents relating to the use of the presidential or executive suits of RTC by a non-member person or body corporate in relation in which period and for what fee, for the period March 2000 to March 2001.

9 Except in relation to items 6, 8 and 9(a), RTC appealed against the discovery order made by the Assistant Registrar. Rubin J substantially allowed the appeal except for item 7, where he required RTC to discover a document or furnish best particulars of –

(a) the number of members of the Club as at December 1996; and

(b) the number of members of the Club as at 31 March 1997.

Item 5 was not insisted by the plaintiffs as it was not a category of documents requested by the plaintiffs but was nevertheless ordered by the Assistant Registrar.

10 In coming to his decision, Rubin J was of the view that the plaintiffs had not shown the relevance of the requested documents to the plaintiffs’ pleaded case. Relying on Thorpe v Chief Constable of the Greater Manchester Police [1989] 2 All ER 827 (Thrope’s case) he also felt that discovery should not be ordered if the material was to be used only for the purpose of cross-examination to establish the credibility of witnesses.

11 Being dissatisfied with the order of Rubin J, the plaintiffs appealed to this Court seeking basically to substantially restore the discovery order made by the Assistant Registrar.

Documents in issue on appeal

12 Before us counsel for the plaintiffs pursued only seven items which Rubin J did not allow namely, items 1, 2, 3, 4, 9(b), 10 and 11 as listed in 8 above.

Law on discovery

13 We should mention that the rules governing discovery have undergone some important changes when they were reformed in 1996. Not only was the previous system of mutual discovery by parties after the close of pleadings replaced by a system of discovery by orders of court, the applicable test is also different. The previous test, to determine whether documents should be discovered, was governed by the words "relating to any matter in question between them in the action" found in the previous O 24 r 2(1). This test was elucidated in the often quoted judgment of Brett LJ in the celebrated case Compagne Financiere Et Commerciale Du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 62-63:-

"… documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action … The doctrine seems to me to go farther than that and to go as far as the principle which I am about to lay down. It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party [requiring discovery] either to advance his own case or to damage the case of his adversary …

A document can properly be said to contain information which may enable the party [requiring discovery] to advance his own case or to damage the case of his adversary; if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences."

14 So documents which were indirectly relevant by reason of their potential to set-off "a train of inquiry" resulting in the discovery of evidence of direct relevance were discoverable. But this somewhat open-ended criteria often gave rise to difficulties in application to particular circumstances, abuses or fishing. It also gave rise to a trend of discovering huge volumes of insignificant documents.

15 The criteria adopted by the new Rules are more specific. They are set out in O 24 r 1(2):-

(2) The documents which a party to a cause or matter may be ordered to discover under paragraph (1) are as follows:

(a) the documents on which the party relies or will rely; and,

(b) the documents which could –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case.

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