Case Details
- Case Title: ASPLENIUM LAND PTE LTD v LAM CHYE SHING & 3 Ors
- Citation: [2019] SGHC 41
- Court: High Court of the Republic of Singapore
- Originating Summons No: 952 of 2016
- Date of Decision: 22 February 2019
- Judges: Pang Khang Chau JC
- Plaintiff/Applicant: Asplenium Land Pte Ltd (“Asplenium”)
- Defendants/Respondents: Lam Chye Shing; Rider Levett Bucknall LLP; RLB Consultancy Pte Ltd; CKR Contract Services Pte Ltd (collectively, “the RLB Defendants” and “CKR” as context requires)
- Procedural Posture: Asplenium obtained injunctive relief at first instance; CKR appealed and the High Court provided its grounds of decision
- Related Proceedings: High Court Suit No 37 of 2015 (“Suit 37”); arbitration between Asplenium and CKR; Originating Summons No 1025 of 2014 (“OS 1025”)
- Key Legal Areas: Legal professional privilege; professional privileges; waiver; injunctive relief; discovery and restraint of disclosure
- Statutes Referenced: Evidence Act (Cap 97, 1997 Rev Ed) (“EA”); Companies Act (as referenced in the judgment’s metadata)
- Primary Privilege Provisions Discussed: s 128A(1) EA (legal advice privilege); s 131 EA (as pleaded/raised in argument)
- Key Privilege Types: Legal advice privilege; litigation privilege; implied waiver
- Length of Judgment: 65 pages; 19,197 words
- Notable Prior Authority: Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42
- Cases Cited (as provided): [2012] SGHC 43; [2019] SGHC 41
Summary
Asplenium Land Pte Ltd v Lam Chye Shing & 3 Ors [2019] SGHC 41 concerns whether certain categories of emails exchanged in the course of a construction dispute were protected by legal professional privilege and therefore should not be disclosed or relied upon in related proceedings. The dispute arose from a contract termination and subsequent replacement tender process, followed by an arbitration between Asplenium and CKR Contract Services Pte Ltd (“CKR”). In parallel, CKR sought specific discovery in High Court Suit No 37 of 2015 against quantity surveying and consultancy defendants associated with Asplenium’s replacement tender and the preparation of loss-related annexures.
The High Court (Pang Khang Chau JC) granted Asplenium’s application to restrain disclosure and use of the disputed documents. The court held that legal advice privilege subsisted over the “Item 3” emails because the communications were between Asplenium’s project manager and a person treated as Asplenium’s in-house legal counsel for the purposes of s 128A(1) of the Evidence Act. The court also addressed whether the copying of a non-employee (Lam) was fatal to privilege, and whether litigation privilege and/or legal advice privilege applied to the “Item 4” emails concerning the preparation of annexures relied upon in the arbitration. The court further considered whether any implied waiver occurred through prior use of the documents in earlier litigation.
What Were the Facts of This Case?
The underlying commercial context was a construction project in which Asplenium awarded a contract in 2013 to CKR Contract Services Pte Ltd as the main contractor. Lam Chye Shing was designated as the quantity surveyor under the contract, while Rider Levett Bucknall LLP was engaged by Asplenium to provide quantity surveying and consulting services for the project. In October 2014, Asplenium purported to terminate the contract and then engaged RLB Consultancy Pte Ltd to provide consultancy services for a tender process to engage a replacement contractor (“the Replacement Tender”). A replacement contract was awarded in November 2014 to a third party not involved in the present application.
Asplenium’s termination of CKR’s contract became the subject of an arbitration. CKR’s position in the arbitration was that the termination was improper, while Asplenium maintained that it was entitled to damages arising from CKR’s breach. In the arbitration, Asplenium relied on documents described as “Annex A” and “Revised Annex A” (collectively, “the Annexures”), which were said to represent estimated losses arising from the termination.
Separately, CKR commenced High Court Suit No 37 of 2015. In that suit, CKR sued Lam and the RLB Defendants for professional negligence in two broad respects: (a) failing to exercise independent judgment and properly conducting the Replacement Tender; and (b) failing to exercise independent judgment and properly calculating the relevant parts of the Annexures that Asplenium relied upon in the arbitration. Although the arbitration involved Asplenium and CKR, Asplenium was not a party to Suit 37.
CKR then sought specific discovery in Suit 37. In March 2016, CKR applied for discovery against the RLB Defendants for documents and correspondence relating to Asplenium’s instructions regarding the conduct and supervision of the Replacement Tender, and for documents and correspondence exchanged between Asplenium and the RLB Defendants relating to calculations used to prepare the Annexures. An Assistant Registrar allowed the application in part, and the RLB Defendants filed a supplementary list of documents (“SLOD”) indicating that Asplenium asserted privilege over documents at items 3 and 4 of Schedule 1 Part 1. Item 3 concerned emails between Sia Wee Long (“Sia”), Mark Hwang Chengsie (“Hwang”), and Lam during a specified period in 2014. Item 4 concerned emails between Asplenium, WongPartnership LLP, and Lam relating to preparation of the Annexures during a later period. After correction of date ranges, Asplenium brought the present originating summons to restrain disclosure and/or reliance on the Item 3 and Item 4 documents.
What Were the Key Legal Issues?
The High Court had to decide multiple interrelated questions concerning the scope and subsistence of legal professional privilege, and the effect of alleged waiver. The first major issue was whether legal advice privilege subsisted in the Item 3 documents. This turned on whether Hwang was a “legal counsel” of Asplenium for the purposes of s 128A(1) of the Evidence Act, and whether the communications were made “in the course of and for the purpose” of that legal counsel’s employment or engagement.
The second major issue was whether Sia was authorised to seek and receive legal advice on behalf of Asplenium. Even if Hwang could be characterised as legal counsel, privilege would not necessarily attach unless the communications were within the privilege framework—namely, that the relevant employee or representative was acting for the purpose of obtaining legal advice from the legal counsel.
For the Item 4 documents, the court had to determine whether legal advice privilege and/or litigation privilege subsisted. CKR argued that the Annexures were routine accounting documents and not created for the dominant purpose of contemplated litigation. CKR also argued that legal advice privilege did not apply because Sia and Lam were not authorised employees of Asplenium for the purpose of receiving legal advice from WongPartnership LLP. Finally, CKR contended that privilege was impliedly waived because Lam had referred extensively to the Item 4 documents as an expert witness in OS 1025.
How Did the Court Analyse the Issues?
The court began by setting out the procedural and doctrinal framework for privilege in the context of discovery. Asplenium’s approach followed guidance in Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42, where the court had indicated that an applicant seeking a declaration of privilege and injunctive relief should commence separate proceedings rather than intervening inappropriately. In the present case, no party objected to Asplenium’s procedure, and the court proceeded to determine whether privilege attached to the specified documents and whether restraint should be granted.
On the Item 3 documents, the court focused on the statutory requirement in s 128A(1) EA that legal advice privilege attaches to communications between a client and legal counsel (including in-house legal counsel) made in the course of and for the purpose of the legal counsel’s employment. The central factual and legal question was whether Hwang was properly characterised as Asplenium’s legal counsel. The court applied a structured analysis to determine whether an employment relationship existed between Hwang and another entity (Tuan Sing), and whether, as a matter of purposive interpretation, Hwang should be treated as Asplenium’s in-house legal counsel for the privilege provision.
In assessing whether an employment relationship existed, the court considered multiple factors: the test for existence of an employment relationship, the working arrangements, the extent of control exercised over Hwang, the degree of integration into the purported employer’s operations, remuneration, any obligation to work exclusively or primarily for one employer, provision of tools and equipment and training, obligations to provide and accept work, and the right to dismiss, suspend, or evaluate. The court’s reasoning reflects the principle that privilege analysis often depends on the real substance of working arrangements rather than labels. The court concluded that the employment relationship (and thus the “legal counsel” characterisation) was sufficiently established for the purposes of s 128A(1) EA.
The court also addressed CKR’s argument that purposive interpretation required non-recognition of the employment relationship between Hwang and Tuan Sing. The court rejected this approach, emphasising that the privilege regime in the Evidence Act is designed to protect confidential communications made for the purpose of obtaining legal advice. Where the factual matrix demonstrates that the communications were genuinely within that purpose, the court was not persuaded that a narrow or formalistic approach should defeat privilege.
Having found that Hwang was a legal counsel for privilege purposes, the court then considered whether Sia was authorised to seek and receive legal advice on Asplenium’s behalf. The court’s analysis treated authorisation as a functional inquiry: whether Sia acted as the relevant representative through whom Asplenium sought legal advice. The court examined the role Sia played in the project and the context in which the emails were exchanged. It concluded that Sia was sufficiently authorised for the communications to fall within the privilege framework.
CKR further argued that privilege could not be asserted because Lam was copied in the Item 3 emails, and Lam was the person being asked to disclose the documents. The court treated this as a waiver or loss-of-privilege argument in substance. It held that copying a third party does not automatically destroy privilege; what matters is whether the communication remained confidential and whether the third party’s involvement was reasonably necessary for the purpose of obtaining or receiving legal advice. In the circumstances, Lam’s inclusion did not amount to a waiver or a fatal disclosure that would negate privilege.
For the Item 4 documents, the court analysed both legal advice privilege and litigation privilege. Asplenium’s position was that the emails between Asplenium, WongPartnership LLP, and Lam related to the collation of evidence and preparation of the Annexures for use in the arbitration. The court accepted that legal advice privilege could attach where communications with solicitors were made for the purpose of obtaining legal advice or for the solicitor’s work in providing that advice. It examined the nature of the Annexures and the context in which they were prepared, rejecting the characterisation that they were merely routine documents. The court’s approach reflects a common privilege principle: documents can be protected even if they have an accounting or factual form, provided they are created or exchanged as part of the process of obtaining legal advice or preparing for litigation.
On litigation privilege, the court considered whether the dominant purpose of creating the Item 4 documents was the contemplation of litigation and whether there was a reasonable prospect of litigation at the relevant time. CKR argued that the Annexures were not made for the dominant purpose of litigation. The court’s reasoning indicates that the dominant purpose test is fact-sensitive and depends on the timing and circumstances—particularly whether the parties had moved beyond routine business preparation into a litigation-oriented posture. The court found that the requisite litigation contemplation existed and that the documents were prepared for that dominant purpose.
Finally, the court addressed implied waiver. CKR argued that Asplenium waived privilege because Lam referred extensively to the Item 4 documents as an expert witness in OS 1025. The court considered whether such use constituted a waiver of privilege over the documents themselves, and whether the earlier use was inconsistent with maintaining confidentiality. The court’s analysis indicates that waiver is not lightly inferred; it requires conduct that demonstrates an intention to abandon privilege or that makes it unjust to maintain confidentiality. On the facts, the court concluded that the elements for implied waiver were not made out, and privilege was not lost.
What Was the Outcome?
The High Court granted Asplenium’s application and restrained the defendants in Suit 37 from disclosing the Item 3 and Item 4 documents and restrained the plaintiff in Suit 37 from receiving and/or using those documents. The practical effect was to prevent CKR from obtaining the privileged emails through discovery and from relying on them as evidence in Suit 37.
Because the court upheld Asplenium’s privilege claims and rejected CKR’s waiver and subsistence arguments, the injunction ensured that the confidentiality protected by s 128A(1) EA and the related privilege doctrines remained effective in the litigation context.
Why Does This Case Matter?
This decision is significant for practitioners because it provides a detailed, structured approach to determining whether legal advice privilege subsists in communications involving in-house or quasi-in-house legal counsel and corporate representatives. The court’s emphasis on the real substance of working arrangements—particularly in assessing whether a person is a “legal counsel” for the purposes of s 128A(1) EA—will be useful in disputes where privilege is challenged on technical grounds relating to employment status and authorisation.
The case also clarifies that copying a third party (including a person who is later a target of discovery) does not automatically destroy privilege. Instead, the analysis turns on whether the communication remained confidential and whether the third party’s involvement was connected to the purpose of obtaining legal advice. This is a practical point for document management and internal communications in corporate settings, where multiple stakeholders are often copied on legal emails.
For litigation strategy, the judgment is also instructive on the interaction between legal advice privilege and litigation privilege in the context of document preparation. It demonstrates that documents with an ostensibly factual or accounting character (such as loss annexures) may still be privileged if they are created or compiled as part of obtaining legal advice or preparing for contemplated proceedings. Finally, the court’s treatment of implied waiver underscores that privilege is not easily lost through prior references, and that waiver requires a careful assessment of inconsistency with maintaining confidentiality.
Legislation Referenced
- Evidence Act (Cap 97, 1997 Rev Ed), in particular s 128A(1) (legal advice privilege)
- Evidence Act (Cap 97, 1997 Rev Ed), s 131 (as raised in argument regarding the relief sought)
- Companies Act (referenced in the case metadata)
Cases Cited
- Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42
- [2012] SGHC 43
- [2019] SGHC 41
Source Documents
This article analyses [2019] SGHC 41 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.