Wee Soon Kim Anthony v UBS AG and Another Case

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 10 February 2003
• Neutral Citation: [2003] SGCA 5
• Date: 10 February 2003
• Subject Matter: Banking,Evidence Act (Cap 97, 1997 Rev Ed) s 176(1),Averment on affidavit that document irrelevant to action,Civil Procedure,Scope of expression "other books" under definition of bankersÂ’ books,Relevancy,Whether to be accepted on its face value,When requirement of "special cause" applies,Banker’s books,Evidence Act (Cap 97, 1997 Rev Ed) s 174,Evidence Act (Cap 97, 1997 Rev Ed) Part IV,Affidavits,Costs of the banks in application under Part IV of the Evidence Act,Costs,Discovery,Evidence Act (Cap 97, 1997 Rev Ed) s 170
• Docket Number: Civil Appeal No 75 of 2002
• Published date: 17 December 2003
• Defendant Counsel: Davinder Singh, Hri Kumar (Drew & Napier LLC)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Goh Aik Leng (Goh Aik Leng & Partners)

Delivered by Chao Hick Tin JA

1 This is an appeal against an interlocutory decision of the High Court granting the defendant’s application that orders be given under s 175 of the Evidence Act authorising four banks, namely, Bangkok Bank, ABN Amro Bank, Citibank NA and the Development Bank of Singapore, to allow the defendant to inspect and take copies of certain documents relating to the plaintiff’s accounts with those banks.

Background

2 The plaintiff, Mr Anthony Wee Soon Kim ("Wee"), was at all material times a customer of the defendant ("UBS"). He engaged, through UBS, in various foreign exchange transactions and incurred substantial losses. He instituted the present action against UBS claiming for losses suffered on account of, inter alia, fraudulent or negligent misrepresentation, breach of contractual duty of care and breach of fiduciary duty on the part of UBS.

3 The substance of Wee’s complaint is that UBS’ officers had failed to give him proper advice on the transactions, and in particular, that they did not advise him on "swap points" that might be imposed. In its defence UBS avers that Wee is an experienced and/or sophisticated investor in the foreign exchange market who understood the concept of "swap points" as reflecting "the interest rates differential between US$ and MYR for a given period" and would have been aware that the trading of the 12-month forward hedge was affected by "swap points". In reply, Wee says that his experience was limited to trading in shares.

4 On 8 February 2002, UBS filed summons-in-chambers No. 429/2002 (SIC 429) seeking the discovery of certain documents, relating to accounts maintained by Wee at six banks, to show his experience in foreign exchange transactions. At the hearing of SIC 429, arguments on relevancy were advanced. Eventually, the Assistant Registrar narrowed down the discovery order to:-

(i) All correspondence, statements, confirmation notes, confirmation advice and facility letters showing the date, nature and value of all transactions effected by or on behalf of the Appellant through the following entities for the period 1987 to December 1997:-

(a) Bangkok Bank;

(b) ABN Amro Bank;

(c) Citibank N.A.;

(d) Lehman Brothers, formerly known as Shearson Lehman Hutton;

(e) Sassoon Securities Ltd;

(f) UOB-Kay Hian Pte Ltd; and

(g) any other bank and/or financial institution and/or financial intermediary and/or brokerage and/or any similar entity, whether situate in Singapore or elsewhere in the world;

(ii) All statements of account from The Central Depository (Pte) Limited ("CDP") relating to the Appellant’s account(s) maintained with the CDP."

She deleted the general words "and documents of any other description whatsoever" from the order.

5 This discovery order was upheld on appeal by the judge in chambers. One of the objections raised and rejected by the judge was that the order given was oppressive as the documents sought to be produced were voluminous.

6 Later Wee said he could not comply with the discovery order because he "had misplaced his bank records on account of the shifting of his office premises on four occasions."

7 Trial of the action proper commenced before Kan J on 26 February 2002. On 6 March 2002, Wee objected to the production of the documents ordered in SIC 429. The next day, UBS sought unsuccessfully to have Bangkok Bank, DBS and ABN Amro produce the documents through the issue of writs of Subpoena Ad Testificantum and Duces Tecum due again to the objection of Wee.

8 On 23 May 2002, UBS, at the suggestion of the trial judge, made an application by Summons-in-Chambers No. 1595/2002 (SIC 1595) asking that, pursuant to s 175 of the Evidence Act ("the Act’), Bangkok Bank, ABN Amro, Citibank and DBS should within 14 days,

"disclose to the Respondent and/or their solicitors and allow the Respondent’s solicitors to inspect and take copies of any and all documents, including without limitation, any and all statements, correspondence, confirmation notes, confirmation advice, facility letters and documents of any other description whatsoever showing the date, nature and value of all Transactions effected on behalf of the Appellant for the period January 1987 to December 1997."

9 The application also defined the word "transactions" to mean –

"all investments in and/or purchase and/or sale of listed and unlisted securities, bonds, mutual funds, unit trusts, options, futures contracts, currencies, commodities, derivatives and/or investments and financial instruments of any other description whatsoever."

10 The trial judge granted the application without the general words "and documents of any other description whatsoever." The scope of this order is identical to that made in SIC 429. What is now before this court is the appeal of Wee against the order made in SIC 1595.

Issues

Before us, counsel for Wee raised the following issues:-

(i) whether the application in SIC 1595 is in compliance with Part IV of the Act;

(ii) whether the application is made in bad faith and is a fishing expedition;

(iii) whether the documents asked for in the application are bankers’ books within the meaning of s 175.

Non compliance with Part IV

12 On this issue, what counsel contended is that the fact that the application in SIC 1595 asked for an order in terms similar to those in SIC 429, it does not mean that an order must be granted. He also asserted that he was entitled to re-argue the issue of relevancy because, before an order is made under s 175, "special cause" must be shown as required under s 174.

13 It will be recalled that in SIC 429, Wee had argued that the documents sought to be discovered in that application were not relevant to the issues in the action. However, notwithstanding his objection, the Assistant Registrar granted the order, having narrowed down its scope by deleting certain open-ended words. Wee’s appeal against that discovery order was dismissed by the judge-in-chambers. He did not pursue the matter any further. Wee could not comply with the discovery order because he had misplaced the documents, having moved office four times during the relevant period. It was on account of this reason that UBS applied for an order under s 175 to authorise the banks to release the requested documents to UBS.

14 In our judgment, the question of relevancy is no longer an argument which is available to Wee. The doctrine of issue estoppel is applicable here. The application in SIC 1595 was consequential upon Wee’s inability to comply with the discovery order. Accordingly, we would uphold the decision of Kan J that this issue cannot be re-litigated.

15 The next argument of Wee concerns s 174 of the Act which reads:-

"An officer of a bank shall not, in any legal proceeding to which the bank is not a party, be compellable to produce any banker’s book the contents of which can be proved under this Part, or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of a judge made for special cause."

In particular, emphasis was placed by Wee on the last two words "special cause".

16 With respect, it seems to us that Wee has misread s 174. We do not see how that section is applicable to the fact situation here. What it provides is that an officer of a bank shall not, in any proceedings to which the bank is not a party –

(a) be compellable to produce any banker’s book the contents of which can be proved under this Part; or

(b) to appear as a witness to prove the matters, transactions and accounts therein recorded,

unless it is pursuant to an order of a judge made for special cause. UBS was not, in SIC 1595, seeking to require any bank officer to do any of the things prescribed in the two limbs of the section.

17 It is clear that Part IV of the Act, in particular s 174, was enacted for the benefit of bankers and its object is to relieve bankers of the necessity of actually attending court with their books under a subpoena as that would unduly interfere with the business of the banker. Special cause must be shown to exist before the court would inconvenience a bank by granting an order requiring the attendance of a bank officer in any legal proceedings to which the bank is not a party.

18 This point was clearly elucidated by the Privy Council in Sir William Randolph Douglas v Sir Lynden Oscar Pindling [1996] AC 890 where the Board said -

The judges of the Court of Appeal took the view that the effect of section 6 was that no evidence about the contents of a banker’s books could be given otherwise than in pursuance of an order of a judge made for "special cause". This was erroneous. The purpose of sections 3, 4, 5 and 6 was to enable attested copies of entries in a banker’s books to be made available in evidence without the necessity of the books themselves being produced in court together with an officer of the bank to speak for them. In relation to the United Kingdom Bankers’ Books Evidence Act 1879 (42 & 43 Vict. C. 11) which is in substantially identical terms to the Bahamian Act, Lindley M.R. said in Pollock v Garle [1898] 1 CH 1, 4:

"the Bankers’ Books Evidence Acts were passed for the obvious purpose of getting over a difficulty and hardship as to the production of bankers’ books. If such books contain anything which could be evidence for either of the parties, the banker or his clerk had to produce them at the trial under a subpoena duces tecum, which was an intolerable inconvenience to bankers when the books were in daily use. The leading object of the Acts was to protect bankers from that inconvenience. This is accompanied by the first six sections of the Act of 1879, which enable bankers to send attested copies of entries in their books instead of producing the books."

Since attested copies of entries in the books were by the Act made capable of being given in evidence it would be only in exceptional cases that the books themselves...