World Sport Group Pte Ltd v Dorsey James Michael

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 10 April 2013
• Neutral Citation: [2013] SGHC 78
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 839 of 2012 (Registrar’s Appeal No 404 of 2012)
• Published date: 29 May 2013
• Year: 2013
• Hearing Date: 30 October 2012
• Plaintiff Counsel: Deborah Evaline Barker SC and Hewage Ushan Saminda Premaratne (KhattarWong LLP)
• Defendant Counsel: N Sreenivasan and Sujatha Selvakumar (Straits Law Practice LLC)
• Subject Matter: Civil Procedure,Interrogatories
• Citation: [2013] SGHC 78

Judith Prakash J:

The plaintiff in this Originating Summons, World Sport Group Pte Ltd, initiated these proceedings under O 24 r 6(1) and O 26A r 1(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”) in order to obtain pre-action discovery from, and administer pre-action interrogatories against, the defendant, James Michael Dorsey. The interrogatories sought to be administered were set out in Schedule 1 annexed to the Originating Summons. A copy of Schedule 1 is annexed to these grounds of decision. [LawNet Admin Note: Schedule 1 is viewable only to LawNet subscribers via the PDF in the Case View Tools.]

The application first came on for hearing before an assistant registrar (“AR”) and she ordered the defendant to answer all the interrogatories set out in Schedule 1. She refused, however, to order discovery of the documents specified in Schedule 2 (which was also annexed to the Originating Summons). The defendant appealed. There was, however, no cross-appeal by the plaintiff on the issue of discovery. On hearing the appeal, I decided that the defendant had to answer the following interrogatories, viz, nos 1, 2(a), 2(b), 2(c), 6 and 6.1. I allowed the defendant’s appeal in respect of the other interrogatories being nos 2(d), 2(e), 3.1, 3.2, 4, 5, 6.2 and 6.3. The defendant is not satisfied with this outcome and has appealed to the Court of Appeal.

Background

The plaintiff is a company which was incorporated in Singapore in 2002. It provides sports marketing and media and event management in connection with international sporting events throughout Asia. The plaintiff and its related entities have been in a contractual relationship with the Asian Football Confederation (“AFC”) since 1993 with respect to the commercial rights of major football competitions staged by the AFC. The AFC is the organiser, controller and official governing body of the sport of association football throughout Asia (including Australia).

The defendant is a Senior Fellow at the Nanyang Technological University’s S Rajaratnam School of International Studies (“NTU”). He has a keen interest in issues affecting the Middle East and North Africa including politics and the interaction of sports with politics, economics and culture. In addition, he is a blogger on his blog http://mideastsoccer.blogspot.sg/. He also has a Twitter account which he uses to tweet his posts and articles. The defendant writes articles on, inter alia, the political, social and economic development of soccer in the Middle East on his blog and in a multitude of other media, which he tweets through his Twitter account.

The AFC has been in contractual relationships with the plaintiff and its related entities since 1993. On 15 June 2009, the AFC and an associate of the plaintiff entered into a Master Rights Agreement (“the MRA”) for the exploitation of commercial rights to AFC football competitions taking place between 2013 and 2020. The MRA was novated to the plaintiff with effect from 1 January 2010. According to the plaintiff, the MRA contains a strict confidentiality clause which prevents the plaintiff from disclosing its contents unless required by law.

In July 2011, Mohamed Bin Hammam (“MBH”), the then president of AFC, was banned from the International Federation of Association Football (“FIFA”) as a result of allegations of election bribery made against him. Subsequently, the Court of Arbitration for Sport overturned this ban but FIFA then banned him again pending concerns regarding his management of AFC’s funds as well as pending a renewed investigation into the election bribery charges.

On or about 13 July 2012, PriceWaterhouseCoopers Advisory Service Sdn Bhd (“PWC”), under the instructions of AFC and its Malaysian solicitors, put up an audit report (“the Report”) reviewing transactions, accounting practices and contracts negotiated during MBH’s tenure as president of the AFC. The Report contains a number of references to the MRA and its commercial terms. According to the plaintiff, the Report states that it is intended solely for the “internal use and benefit” of AFC and its Malaysian solicitors and is therefore confidential. The plaintiff also alleges that remarks defamatory of it are contained in the Report.

Between 23 July 2012 and 22 September 2012, the defendant published several posts and articles on the world wide web. These included the following: on 23 July 2012, an article entitled “Bin Hammam Audit Opens Pandora’s Box – Analysis”; on 24 July 2012, an article entitled “UAE and UAE hire fired AFC Bin Hammam Associates – Analysis”; on 27 July 2012, an article entitled “FIFA’s suspension of Bin Hammam buys time”; on 28 August 2012, a post entitled “FIFA investigates: World Cup host Qatar in the hot seat” on his blog; on 28 August 2012 an article entitled “FIFA investigates: World Cup host Qatar in the hot seat”; on 5 September 2012, a post entitled “AFC reports stolen Bin Hammam payment documents to police” on his blog; on 12 September 2012, a post entitled “World Sport Group sues journalist in bid to squash reporting on Bin Hammam” on his blog; and on 22 September 2012, a post entitled “Iran accused WSG of overpricing in breach of international rules” on his blog.

In his article posted on his blog on 23 July 2012, the defendant referred to and quoted from the Report. The quoted parts included portions of the Report which the plaintiff says are defamatory of it. In this article, the defendant admitted that he had obtained a copy of the Report. Subsequently, in or about August 2012, media organisations in Australia, Saudi Arabia and northern California published articles which made reference to the Report.

The proceedings

The plaintiff commenced the present proceedings to obtain discovery of the Report and for leave to serve pre-action interrogatories pursuant to O 26A r 1 of the Rules (“O 26A r 1”) on the defendant to: identify the party or parties responsible for publishing the Report or its contents to third parties; and identify the party or parties who provided confidential information to the defendant pertaining to the MRA and to ascertain the nature of any breach of an obligation of confidentiality.

The plaintiff’s intention is to commence proceedings against the defendant and/or: any party whom the answers to the interrogatories show had provided a copy of the Report to any third party in breach of confidentiality and/or had published material defamatory of the plaintiff contained in the Report to any party by providing a copy of the whole or any part of the Report to any person; and any party whom the answers to the interrogatories show had provided confidential information to the defendant relating to the MRA.

The plaintiff’s position is that the Report was prepared without its representatives having been consulted or interviewed and that: the Report contains assertions and imputations that are prima facie defamatory; PWC was provided with inaccurate or incomplete information and materials which were insufficient for PWC to prepare a report containing an accurate picture of what actually transpired; and the Report makes conclusions that are speculative.

The defendant alleges that the Report is not confidential. He does not dispute that the Report contains defamatory allegations and/or conveys innuendos of the plaintiff that are defamatory. His position is that the plaintiff ought to direct its intended cause of action against the AFC for “disseminating the Report which allegedly contained defamatory remarks about the Plaintiff”. The AFC has, however, according to the plaintiff, denied that it disclosed the Report to anyone but FIFA. The AFC has also stated that the distribution of the Report is unauthorised and that those who have received it must destroy it. The plaintiff admits that it does not have any evidence that links the circulation of the Report with the AFC and/or its employees/officers/representatives.

The law

The relevant portions of O 26A r 1 provide as follows: Interrogatories against other person (O. 26A, r. 1) 1.—(1) An application for an order to administer interrogatories before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons.

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(3) The originating summons under paragraph (1) or summons under paragraph (2) shall be supported by an affidavit which must – (a) in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is ought is likely to be party to subsequent proceedings in Court and (b) in any case specify the interrogatories to be administered and show ... that the answers to the interrogatories are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both.

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(5) An order to administer interrogatories before the commencement of proceedings ... may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order and on such terms as it thinks just.

In Singapore Court Practice 2009 (Jeffrey Pinsler SC gen ed) (LexisNexis, 2009) (“Singapore Court Practice 2009”), it is noted at para 26A/1/5 that O 26A r 1(5) formulates the principle enunciated in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (“Norwich Pharmacal”). The principle laid down in Norwich Pharmacal is that a claimant may seek information for the purpose of identifying the person who is potentially liable to him. The wording of O 26A r 1(5) is broader than this original principle...