Case Details
- Citation: [2019] SGHC 41
- Title: Asplenium Land Pte Ltd v Lam Chye Shing and others
- Court: High Court of the Republic of Singapore
- Date of Decision: 22 February 2019
- Judge: Pang Khang Chau JC
- Originating Application: Originating Summons No 952 of 2016
- Plaintiff/Applicant: Asplenium Land Pte Ltd (“Asplenium”)
- Defendants/Respondents: Lam Chye Shing and others
- 1st to 3rd Respondents (in this application): Lam Chye Shing; Rider Levett Bucknall LLP (“Rider”); RLB Consultancy Pte Ltd (“RLB”)
- 4th Respondent (in this application): CKR Contract Services Pte Ltd (“CKR”)
- Coram: Pang Khang Chau JC
- Counsel for Asplenium: Chuah Chee Kian Christopher, Kua Lay Theng, Candy Agnes Sutedja, and Liana Chek (WongPartnership LLP)
- Counsel for 1st to 3rd Defendants: Nicholas Beetsma (Clasis LLC)
- Counsel for 4th Defendant: Vikram Nair, Zhuang Wenxiong, and Ching Meng Hang (Rajah & Tann Singapore LLP)
- Legal Areas: Legal Profession — Professional privileges
- Key Privilege Types Discussed: Legal advice privilege; litigation privilege; waiver
- Procedural Context: Application for declaratory and injunctive relief restraining disclosure and/or use of documents in High Court Suit No 37 of 2015
- Related Proceedings Mentioned: High Court Suit No 37 of 2015; Originating Summons No 1025 of 2014; Civil Appeal No 179 of 2017 (Court of Appeal dismissal on 17 September 2019)
- Statutes Referenced: Companies Act; Evidence Act (Cap 97); Interpretation Act (as referenced in metadata)
- Cases Cited (as provided): [2012] SGHC 43; [2019] SGHC 41
- Judgment Length: 32 pages; 17,779 words
Summary
In Asplenium Land Pte Ltd v Lam Chye Shing and others [2019] SGHC 41, the High Court addressed whether communications could be withheld from discovery on the basis of legal advice privilege and, in respect of a separate category of documents, whether litigation privilege also applied. The dispute arose in the context of a broader construction-related termination controversy, where Asplenium had terminated a contract with CKR and later relied on documents prepared during the replacement tender and the preparation of its claim in arbitration.
The court granted Asplenium’s application for declaratory and injunctive relief restraining the parties in the related suit from disclosing and/or using two sets of email communications (“Item 3” and “Item 4” documents). The decision turned on the statutory framework for legal advice privilege for in-house counsel under s 128A(1) of the Evidence Act, the requirement that communications be made for the purpose of obtaining or giving legal advice, and the effect (or non-effect) of copying a third party in the relevant emails. The court also considered whether privilege had been waived by subsequent conduct, including reliance on the documents in another proceeding.
What Were the Facts of This Case?
The underlying commercial dispute concerned a construction project in which Asplenium engaged CKR Contract Services Pte Ltd (“CKR”) as the main contractor. Under the contract awarded in 2013, Lam Chye Shing was the designated quantity surveyor, while Asplenium engaged Rider Levett Bucknall LLP (“Rider”) to provide quantity surveying and consulting services. Asplenium later purported to terminate the contract on 24 October 2014 and engaged RLB Consultancy Pte Ltd (“RLB”) to provide consultancy services for a tender process to appoint a replacement contractor.
Asplenium and CKR subsequently entered arbitration concerning the proper termination of the contract and related issues. In that arbitration, Asplenium’s position depended on the termination and the conduct of the replacement tender. Separately, CKR commenced High Court Suit No 37 of 2015 (“Suit 37”) against Lam and the RLB Defendants, alleging professional negligence. CKR’s negligence claims included allegations that the RLB Defendants failed to exercise independent judgment in conducting the replacement tender and failed to properly calculate parts of certain documents known as “Annex A” and “Revised Annex A” (together, the “Annexures”), which Asplenium had relied upon in the arbitration.
Asplenium was not a party to Suit 37. However, CKR sought specific discovery in Suit 37 against the RLB Defendants. In Summons No 1311 of 2016, CKR applied for discovery of, among other things, documents and correspondence relating to Asplenium’s instructions to the RLB Defendants regarding the replacement tender, and documents and correspondence exchanged between Asplenium and the RLB Defendants relating to calculations used to prepare the Annexures. The Assistant Registrar allowed the application in part, and the RLB Defendants filed a supplementary list of documents dated 13 September 2016 (“SLOD”).
The present application concerned the disclosure of two particular categories of documents identified in the SLOD. Item 3 referred to emails between Sia Wee Long (“Sia”), Mark Hwang Chengsie (“Hwang”), and Lam during a period in late 2014. Item 4 referred to emails between Asplenium, WongPartnership LLP, and Lam relating to the preparation of the Annexures during a later period in 2014. Although the initial date ranges in the SLOD were later corrected, the substance of the categories remained the same. Asplenium asserted that these emails were protected by legal advice privilege (and, for Item 4, also litigation privilege) and sought to restrain disclosure and/or use of the documents in Suit 37.
What Were the Key Legal Issues?
The High Court identified two broad issues. First, whether legal advice privilege subsisted in the Item 3 documents. This required the court to determine whether Hwang qualified as “legal counsel” of Asplenium for the purposes of s 128A(1) of the Evidence Act, whether Sia was authorised to seek and receive legal advice from Hwang on Asplenium’s behalf, and whether Asplenium was precluded from asserting privilege because Lam was copied in the relevant emails.
Second, the court had to decide whether legal advice privilege and/or litigation privilege subsisted in the Item 4 documents. CKR argued that legal advice privilege did not subsist because Sia and Lam were not employees authorised to seek or receive legal advice from WongPartnership LLP. CKR further argued that litigation privilege did not subsist because the Annexures were routine documents rather than being created for the dominant purpose of contemplated litigation. Finally, CKR contended that any privilege had been impliedly waived because Lam had referred extensively to the Item 4 documents as an expert witness in a related High Court application (OS 1025) concerning an interim injunction relating to a performance bond.
How Did the Court Analyse the Issues?
The court began by framing the application as one seeking declaratory and injunctive relief. Asplenium had brought the application in accordance with guidance from Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42, where an applicant intervened in a suit to obtain a declaration of privilege and an injunction restraining use of the privileged communication. In the present case, no procedural objection was raised, and the court proceeded to determine the privilege status of the documents rather than leaving the matter to be resolved only at the point of disclosure.
On Item 3, the court’s analysis focused on the statutory extension of legal advice privilege to communications involving in-house counsel. Section 128A(1) of the Evidence Act provides a mechanism for privilege to attach to communications made for the purpose of obtaining legal advice, even where the communication is not between external solicitors and the client, but instead involves an in-house legal counsel. The court therefore examined whether Hwang was properly characterised as legal counsel of Asplenium for the statutory purpose, and whether Sia was authorised to seek and receive legal advice from Hwang in the course of his role.
In addressing whether Hwang was “legal counsel”, the court considered the functional reality of the relationship rather than relying solely on formal titles. The key question was whether Hwang was engaged as legal counsel within Asplenium’s organisation such that communications with him were made for the purpose of obtaining or giving legal advice. The court accepted Asplenium’s position that Hwang was deemed to be Asplenium’s in-house legal counsel for the purposes of s 128A(1), and that Sia was authorised to seek and receive legal advice from Hwang in relation to the project and the termination-related matters.
CKR’s argument that privilege could not be asserted because Lam was copied in the emails was also rejected. The court treated copying a third party as a factor that may affect privilege only where it undermines the confidential character or indicates that the communication was not made for the purpose of obtaining legal advice. Here, Lam’s inclusion did not, on the evidence, destroy the privileged character of the communications between Sia and Hwang. The court emphasised that the presence of a third party does not automatically amount to waiver; rather, the inquiry is whether the communication was made in circumstances that preserve confidentiality and remain within the scope of legal advice privilege.
Turning to Item 4, the court analysed both legal advice privilege and litigation privilege. For legal advice privilege, the court considered whether the communications between Asplenium, WongPartnership LLP, and Lam were made for the purpose of obtaining legal advice. The Annexures were described as accounts representing estimated losses arising from CKR’s alleged breach and Asplenium’s termination. The court accepted that the communications with external solicitors were part of the process of collating evidence and preparing the substantiation of Asplenium’s claim in the arbitration. On that basis, the court held that legal advice privilege attached to the relevant communications.
For litigation privilege, the court considered whether the Annexures (and the communications relating to their preparation) were created for the dominant purpose of contemplated litigation. CKR argued that the Annexures were routine and not made with litigation in mind. The court’s reasoning focused on timing and purpose: the documents were prepared in the context of a dispute that had a reasonable prospect at the time they were created, and they were used to evaluate and substantiate Asplenium’s damages claim. The court therefore concluded that litigation privilege subsisted for the relevant communications and documents within Item 4.
Finally, the court addressed waiver. CKR argued that privilege was impliedly waived because Lam referred extensively to the Item 4 documents as an expert witness in OS 1025. The court’s approach to waiver was principled: waiver requires conduct inconsistent with maintaining confidentiality and privilege. The court examined whether Lam’s use of the documents in OS 1025 amounted to a disclosure that was inconsistent with privilege, and whether the disclosure was sufficiently broad to constitute waiver of the privilege attaching to the documents. On the facts, the court found that the circumstances did not amount to an implied waiver of the privilege claimed over the Item 4 documents. The court thus maintained the privileged status and continued to restrain disclosure and use.
What Was the Outcome?
The High Court granted Asplenium’s application. It issued orders restraining the defendants in Suit 37 from disclosing the Item 3 and Item 4 documents and restraining the plaintiff in Suit 37 (CKR) from receiving and/or using those documents. The practical effect was to prevent CKR from leveraging the documents in its professional negligence claims and to preserve Asplenium’s confidentiality interests in communications protected by legal advice privilege and, for Item 4, litigation privilege.
The court’s decision also affirmed that privilege determinations can be addressed through declaratory and injunctive relief in appropriate circumstances, particularly where the applicant is not a party to the underlying suit but the documents sought are within the applicant’s privileged communications.
Why Does This Case Matter?
This case is significant for practitioners because it clarifies how Singapore courts approach legal advice privilege for in-house counsel communications under s 128A(1) of the Evidence Act. It demonstrates that privilege is not limited to communications directly involving external solicitors; where the statutory conditions are met, communications involving in-house legal counsel can be protected. For corporate clients, the decision underscores the importance of establishing (through evidence and practice) that internal legal counsel functions as legal counsel for the statutory purpose and that authorised employees are seeking legal advice in the relevant communications.
Asplenium also provides useful guidance on waiver and third-party copying. The court’s reasoning indicates that copying a third party does not automatically waive privilege; instead, the analysis remains anchored in confidentiality and purpose. This is particularly relevant in complex corporate and construction disputes where multiple stakeholders (such as quantity surveyors, consultants, and project managers) are often copied on legal communications.
Finally, the decision is a reminder that litigation privilege is assessed by dominant purpose and reasonable prospect of litigation at the time the documents were created. For litigators and in-house counsel, the case supports a structured approach to privilege claims: identify the purpose of the communication or document, map it to the legal advice or litigation context, and address waiver arguments by focusing on whether any disclosure was inconsistent with maintaining privilege.
Legislation Referenced
- Evidence Act (Cap 97) — s 128A(1) (legal advice privilege for in-house legal counsel)
- Evidence Act (Cap 97) — s 131 (as referenced in the parties’ submissions regarding the scope of compulsory disclosure)
- Companies Act (Cap 50) (referenced in metadata)
- Interpretation Act (as referenced in metadata)
Cases Cited
- Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42
- [2012] SGHC 43 (as provided in metadata)
- [2019] SGHC 41 (this case)
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.