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
- Decision Date: 22 February 2019
- Judge: Pang Khang Chau JC
- Coram: Pang Khang Chau JC
- Case Number: Originating Summons No 952 of 2016
- Plaintiff/Applicant: Asplenium Land Pte Ltd
- Defendant/Respondents: Lam Chye Shing and others
- Parties (as described): Asplenium Land Pte Ltd — Lam Chye Shing — Rider Levett Bucknall LLP — RLB Consultancy Pte Ltd — CKR Contract Services Pte Ltd
- Counsel for Plaintiff/Applicant: Chuah Chee Kian Christopher, Kua Lay Theng, Candy Agnes Sutedja, and Liana Chek (WongPartnership LLP) for the plaintiff
- Counsel for 1st to 3rd Defendants/Respondents: Nicholas Beetsma (Clasis LLC) for the 1st to 3rd defendants
- Counsel for 4th Defendant/Respondent: Vikram Nair, Zhuang Wenxiong, and Ching Meng Hang (Rajah & Tann Singapore LLP) for the 4th defendant
- Legal Areas: Legal Profession — Professional privileges
- Key Topics: In-house legal counsel; Waiver; Injunctive relief
- Related Proceedings: High Court Suit No 37 of 2015 (“Suit 37”); Originating Summons No 1025 of 2014 (“OS 1025”); Civil Appeal No 179 of 2017 (4th respondent’s appeal dismissed by the Court of Appeal on 17 September 2019 with no written grounds)
- Arbitration Context: Dispute between Asplenium and CKR over termination of the Contract submitted to arbitration
- Judgment Length: 32 pages, 17,779 words
Summary
Asplenium Land Pte Ltd v Lam Chye Shing and others [2019] SGHC 41 is a High Court decision concerning the scope of professional privilege over communications involving in-house legal counsel and the effect of alleged waiver. The applicant, Asplenium, sought declaratory and injunctive relief to restrain parties in a related High Court suit from disclosing and/or using specific categories of documents that Asplenium claimed were protected by legal advice privilege and, for one category, litigation privilege as well.
The dispute arose in the context of a construction contract termination and related proceedings. CKR Contract Services Pte Ltd (“CKR”), the plaintiff in Suit 37, sued the RLB Defendants (Rider Levett Bucknall LLP, RLB Consultancy Pte Ltd, and Lam) for professional negligence, including alleged failures in conducting a replacement tender and in calculating and preparing annexures relied upon by Asplenium in its arbitration claim. CKR applied for specific discovery, and the RLB Defendants’ supplementary list of documents indicated that Asplenium asserted privilege over certain email communications. Asplenium then commenced the present originating summons to restrain disclosure and use of those documents.
Applying the statutory framework for legal advice privilege in Singapore’s Evidence Act, the court held that privilege subsisted over the relevant “Item 3” documents (communications involving Asplenium’s project manager and a person treated as in-house legal counsel). The court also found that privilege subsisted over the “Item 4” documents, rejecting arguments that privilege failed because the communications were not made for the dominant purpose of litigation or because privilege was impliedly waived by reference to the documents in a separate application. The court granted the injunctive and declaratory relief sought by Asplenium.
What Were the Facts of This Case?
The underlying commercial setting involved a construction project and a contract awarded in 2013 by Asplenium to CKR Contract Services Pte Ltd as the main contractor. Lam Chye Shing was the designated quantity surveyor under the contract, and 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 engaged RLB Consultancy Pte Ltd to provide consultancy services for a tender process to engage a replacement contractor.
Asplenium’s termination and the replacement tender became the subject of disputes. The termination dispute between Asplenium and CKR was submitted to arbitration. In parallel, CKR commenced High Court Suit No 37 of 2015 against the RLB Defendants. CKR’s claims included allegations of professional negligence in two broad areas: first, failing to exercise independent judgment and properly conducting the replacement tender; and second, failing to exercise independent judgment and properly calculating relevant parts of documents referred to as “Annex A” and “Revised Annex A” (collectively, “the Annexures”). These Annexures were relied upon by Asplenium in the arbitration to support its damages claim arising from CKR’s alleged breach.
Although Asplenium was not a party to Suit 37, it was directly affected by the discovery process because it asserted that certain documents sought in discovery were protected by legal professional privilege. CKR applied for specific discovery in Suit 37 (Summons No 1311 of 2016). The discovery application sought, 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.
When the discovery application was allowed in part, the RLB Defendants filed a supplementary list of documents dated 13 September 2016 (“SLOD”). In paragraph 4 of the SLOD, the RLB Defendants stated that Asplenium asserted privilege over documents listed at items 3 and 4 of Schedule 1 Part 1. Item 3 comprised emails between Sia Wee Long, Mark Hwang Chengsie, and Lam within a specified period in late 2014. Item 4 comprised emails between Asplenium, WongPartnership LLP, and Lam relating to the preparation of the Annexures. The RLB Defendants later clarified that the date ranges in the SLOD were erroneous, but the identity of the documents remained the same for the purposes of the privilege dispute.
What Were the Key Legal Issues?
The court identified two broad issues. First, it had to determine whether legal advice privilege subsisted in the Item 3 documents. This required the court to consider whether the statutory conditions for legal advice privilege under s 128A(1) of the Evidence Act were satisfied, including whether Hwang was a “legal counsel” of Asplenium for the statutory purpose and whether Sia was authorised to seek and receive legal advice from that legal counsel on Asplenium’s behalf. A further sub-issue was whether privilege was precluded because Lam was copied in the relevant emails.
Second, the court had to determine whether legal advice privilege and/or litigation privilege subsisted in the Item 4 documents. CKR’s position was that privilege did not subsist because Sia and Lam were not employees authorised to seek or receive legal advice from WongPartnership LLP, and because the Annexures were routine documents rather than documents created for the dominant purpose of litigation. CKR also argued that even if privilege existed, it was impliedly waived when Lam referred extensively to the Item 4 documents as an expert witness in OS 1025, an earlier High Court application involving an interim injunction relating to a performance bond.
Overarching these issues was the question whether the declaratory and injunctive relief sought by Asplenium could and should be granted. The court had to consider the appropriate procedural route for a non-party to a suit to assert privilege, and whether the court should restrain disclosure and use without inspecting the documents or requiring redaction.
How Did the Court Analyse the Issues?
The court began by setting out the procedural context. Asplenium brought the originating summons to restrain disclosure and use of the privileged documents in Suit 37. It relied on guidance from Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42, where the court had questioned the appropriateness of intervention by a non-party and directed the applicant to commence separate proceedings if it wished to raise privilege issues. In Asplenium’s case, no party objected to the procedure adopted, and the court proceeded to determine privilege and grant relief.
On the Item 3 documents, the analysis focused on the statutory legal advice privilege framework in s 128A(1) of the Evidence Act. The court examined whether Hwang fell within the statutory concept of “legal counsel” for Asplenium. The court accepted Asplenium’s characterisation that Hwang was deemed to be Asplenium’s in-house legal counsel for the purposes of s 128A(1). This is significant because the statutory extension of legal advice privilege is designed to cover communications not only with external lawyers but also with in-house legal counsel, provided the statutory conditions are met. The court’s reasoning reflects a purposive approach to the privilege regime: the focus is on the function and role of the person providing legal advice, rather than a narrow formalistic reading.
The court also addressed whether Sia was authorised to seek and receive legal advice. CKR argued that Sia was not an employee and was not authorised to seek and receive legal advice on Asplenium’s behalf. The court’s reasoning turned on the practical reality of the communications and the role Sia played in the project and in the legal advice process. Where the communications were made in the course of and for the purpose of obtaining legal advice, and where the internal structure and conduct of the parties supported that Sia was acting within the scope of authorisation, the statutory requirement could be satisfied even if the relationship was not framed in the same way as a conventional employment arrangement.
CKR further argued that privilege could not be asserted because Lam was copied in the emails. The court rejected the contention that copying a third party necessarily destroys privilege. The court treated the presence of Lam as consistent with the purpose of the communications and the need for relevant personnel to be informed in order to implement or act upon legal advice. In other words, the court did not treat “copying” as an automatic waiver. Instead, it assessed whether the inclusion of Lam was compatible with the confidentiality and purpose underlying legal advice privilege. This approach aligns with the general principle that privilege is not lost merely because non-privileged persons are incidentally included, provided the communication remains confidential and made for the dominant purpose of obtaining legal advice.
For the Item 4 documents, the court considered both legal advice privilege and litigation privilege. Asplenium’s case was that the Item 4 emails involved legal advice from WongPartnership LLP regarding the collation and substantiation of evidence for Asplenium’s claim against CKR, and that litigation privilege subsisted because the documents were created for the dominant purpose of contemplated litigation between Asplenium and CKR at a time when there was a reasonable prospect of litigation. CKR contested both limbs: it argued that the Annexures were routine and not created for litigation, and that the personnel involved were not authorised to seek or receive legal advice.
The court’s analysis again started with the statutory conditions for legal advice privilege. It examined the nature of the communications between Asplenium, WongPartnership LLP, and Lam, and the purpose for which the Annexures were being prepared. The court accepted that the Annexures were not merely administrative or routine accounting documents; rather, they were connected to the evaluation and substantiation of Asplenium’s damages claim arising from termination. This factual characterisation supported the conclusion that the communications were made for the purpose of obtaining legal advice (or were sufficiently connected to that purpose) and therefore fell within the protective scope of legal advice privilege.
On litigation privilege, the court considered whether the Annexures were created for the dominant purpose of contemplated litigation and whether, at the relevant time, there was a reasonable prospect of litigation between Asplenium and CKR. The court accepted that the dispute had crystallised to the point where litigation was reasonably contemplated. It also treated the preparation of the Annexures as part of the evidential foundation for the anticipated dispute resolution process. The court therefore rejected CKR’s “routine documents” argument, emphasising that the dominant purpose test is fact-sensitive and depends on the circumstances at the time the documents were created.
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 careful: waiver requires more than mere reference to documents in a different context. The court considered whether Lam’s use of the documents in OS 1025 was inconsistent with maintaining privilege and whether the privilege holder had taken steps that effectively communicated or relied upon the privileged content in a manner that would be unfair to the opposing party. The court concluded that the circumstances did not amount to an implied waiver of privilege over the documents sought in Suit 37. In doing so, the court reinforced that waiver is not lightly inferred and must be assessed in light of fairness and the privilege holder’s conduct.
Throughout, the court also dealt with the practical question of relief. CKR did not request inspection of the documents or redacted disclosure. The court proceeded on the basis of the evidence and submissions before it and granted the restraining orders sought. This reflects the court’s willingness to protect privilege effectively through injunctive relief where the privilege claim is properly grounded and where the opposing party does not seek alternative protective measures such as inspection or redaction.
What Was the Outcome?
The High Court granted Asplenium’s application. It 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 court also granted the declaratory relief necessary to confirm that the documents were protected by professional privilege.
Practically, the decision prevented CKR from leveraging the privileged communications and annexure-preparation materials in its negligence suit against the RLB Defendants. It also clarified that privilege can extend to communications involving in-house legal counsel (or persons treated as such under s 128A(1)), that copying relevant personnel does not automatically waive privilege, and that implied waiver will not be readily found merely because privileged materials were mentioned in a separate application.
Why Does This Case Matter?
Asplenium Land Pte Ltd v Lam Chye Shing is important for practitioners because it provides a structured application of Singapore’s statutory legal advice privilege regime for in-house counsel communications. The decision demonstrates that s 128A(1) can protect communications where the person providing legal advice is treated as in-house legal counsel and where the communications are made for the purpose of obtaining legal advice. It also illustrates that the court will look at the substance and purpose of the communications rather than relying solely on formal employment status.
The case is equally significant for waiver analysis. By rejecting the argument that copying Lam in the emails automatically destroyed privilege, the court reinforced that privilege is concerned with confidentiality and purpose. Further, by declining to find implied waiver based on Lam’s expert use of documents in OS 1025, the decision underscores that waiver is not automatic and will depend on whether the privilege holder’s conduct is inconsistent with maintaining privilege and whether fairness considerations require disclosure.
For litigators, the decision is also a reminder of procedural strategy. Where privilege is asserted, parties should consider whether to request inspection or redacted disclosure if they dispute the claim. In Asplenium’s case, CKR did not request inspection or redaction, and the court granted injunctive relief based on the privilege claim and the evidence presented. The case therefore supports the use of declaratory and injunctive relief as an effective mechanism to prevent misuse of privileged material in related proceedings.
Legislation Referenced
- Evidence Act (Cap 97, 1997 Rev Ed) — s 128A(1) (legal advice privilege)
- Evidence Act (Cap 97, 1997 Rev Ed) — s 131 (as referenced in submissions regarding the scope of relief)
- Companies Act (Cap 50) (referenced in the metadata; not fully detailed in the provided extract)
- Interpretation Act (referenced in the metadata; not fully detailed in the provided extract)
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.