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 Process: 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 the present application): Lam Chye Shing; Rider Levett Bucknall LLP; RLB Consultancy Pte Ltd
- 4th Respondent (in the present application): CKR Contract Services Pte Ltd (“CKR”)
- Coram / Composition: Pang Khang Chau JC
- Counsel for Asplenium: Chuah Chee Kian Christopher, Kua Lay Theng, Candy Agnes Sutedja, and Liana Chek (WongPartnership LLP)
- Counsel for the 1st to 3rd Defendants: Nicholas Beetsma (Clasis LLC)
- Counsel for the 4th Defendant: Vikram Nair, Zhuang Wenxiong, and Ching Meng Hang (Rajah & Tann Singapore LLP)
- Legal Area: Legal Profession — Professional privileges
- Key Privilege Types Discussed: Legal advice privilege; litigation privilege; waiver
- Procedural Context: Application to restrain disclosure and/or use of documents in a separate suit (High Court Suit No 37 of 2015) and to restrain receipt/use by the opposing party
- Related Proceedings Mentioned: High Court Suit No 37 of 2015 (“Suit 37”); Originating Summons No 1025 of 2014 (“OS 1025”); Civil Appeal No 179 of 2017 (fourth respondent’s appeal dismissed by Court of Appeal on 17 September 2019 with no written grounds)
- Judgment Length: 32 pages; 17,779 words
- Statutes Referenced: Companies Act; Evidence Act (Cap 97) including s 128A; Interpretation Act (EA or the Interpretation Act, as indicated in metadata)
- Cases Cited (as per metadata): [2012] SGHC 43; [2019] SGHC 41 (editorial note references the same citation); Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42 (discussed in the extract)
Summary
In Asplenium Land Pte Ltd v Lam Chye Shing and others [2019] SGHC 41, the High Court considered whether communications could be withheld from disclosure on the basis of legal advice privilege and, in respect of a separate category of documents, whether litigation privilege also applied. The application arose in the context of a construction dispute: Asplenium had engaged CKR as main contractor and later terminated CKR’s contract. CKR subsequently sued for, among other things, alleged professional negligence by quantity surveying and consultancy providers (the “RLB Defendants”), including alleged failures relating to a replacement tender and the preparation of documents relied upon by Asplenium.
Asplenium was not a party to that suit. Nevertheless, Asplenium sought injunctive and declaratory relief to restrain the parties in the suit from disclosing and/or using certain documents that Asplenium claimed were privileged. The court granted Asplenium’s application, holding that legal advice privilege attached to the relevant communications and that the privilege was not waived merely because a third party (Lam) was copied on the emails. The court also addressed whether litigation privilege applied to another set of documents (the “Annexures”), and concluded that the privilege claims were properly made on the facts.
What Were the Facts of This Case?
The dispute traces back to a construction project in which Asplenium awarded a contract in 2013 to CKR Contract Services Pte Ltd to act as the main contractor. In parallel, Asplenium engaged Rider Levett Bucknall LLP to provide quantity surveying and consulting services for the project. Lam Chye Shing was a partner of Rider and also a director of RLB Consultancy Pte Ltd. In the contract arrangements, Lam was the designated quantity surveyor.
On 24 October 2014, Asplenium purported to terminate the contract with CKR. Asplenium then engaged RLB Consultancy to provide consultancy services for a tender process to engage a replacement contractor. A replacement contract was awarded in November 2014 to a company that was not a party to the present application or to the underlying suit. The termination and replacement tender became central to the parties’ later dispute.
As between Asplenium and CKR, the termination dispute was submitted to arbitration. Separately, CKR commenced High Court Suit No 37 of 2015 against the RLB Defendants. CKR’s pleaded case included allegations that the RLB Defendants were professionally negligent in two main respects: first, failing to exercise independent judgment and properly conducting the replacement tender; and second, failing to exercise independent judgment and properly calculating parts of documents known as “Annex A” and “Revised Annex A” (collectively, the “Annexures”), which Asplenium relied on in the arbitration.
In Suit 37, CKR sought specific discovery from the RLB Defendants. In March 2016, CKR applied for specific discovery, including documents and correspondence relating to Asplenium’s instructions to the RLB Defendants regarding the conduct and/or supervision of the replacement tender, and documents and correspondence exchanged between Asplenium and the RLB Defendants relating to the provision of calculations used to prepare the Annexures. The application was allowed in part by an Assistant Registrar, and the RLB Defendants filed a supplementary list of documents dated 13 September 2016. In that list, the RLB Defendants asserted that Asplenium claimed privilege over certain documents (items 3 and 4 in the relevant schedule).
What Were the Key Legal Issues?
The High Court identified two broad issues. First, it had to determine whether legal advice privilege subsisted in the “Item 3 documents”, which were emails between Sia, Hwang, and Lam, during a specified period in 2014. Second, it had to determine whether legal advice privilege and/or litigation privilege subsisted in the “Item 4 documents”, which were emails between Asplenium, WongPartnership LLP, and Lam relating to the preparation of the Annexures.
Beyond these substantive privilege questions, the court also had to consider whether the declaratory and injunctive relief sought by Asplenium could and should be granted. This involved assessing the appropriateness of restraining disclosure and use of documents in a separate suit to which Asplenium was not a party, and whether the court should grant relief without requiring the opposing party to inspect the documents or seek redacted disclosure.
How Did the Court Analyse the Issues?
The analysis began with the legal framework for legal advice privilege under Singapore law, particularly the statutory extension in s 128A of the Evidence Act. Section 128A was introduced to clarify and extend the scope of legal professional privilege to communications involving in-house legal counsel. The court’s reasoning turned on whether the communications in Item 3 fell within the statutory definition of “legal counsel” and whether the relevant communications were made in the course of and for the purpose of that counsel’s employment.
On Item 3, the dispute focused on three sub-issues: (a) whether Hwang was a “legal counsel” of Asplenium for the purposes of s 128A(1); (b) whether Sia was authorised to seek and receive legal advice from Hwang on Asplenium’s behalf; and (c) whether Asplenium was precluded from asserting privilege because Lam was copied on the emails. CKR argued that s 128A(1) did not apply because Hwang was not Asplenium’s legal counsel, and because Sia was not an employee and was not authorised to seek and receive legal advice. CKR further argued that even if privilege existed, it was waived because Lam was copied and it was Lam who was being asked to disclose the documents.
The court approached these arguments by examining the factual matrix and the function performed by Hwang and Sia in relation to the communications. 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). It also accepted that Sia was the relevant project manager who was involved in the communications for the purpose of obtaining legal advice. Importantly, the court treated the statutory privilege as concerned with the substance and purpose of the communication, rather than formalistic labels about employment status, provided the communications were made in the course of and for the purpose of legal advice being sought and received.
On the waiver argument, the court rejected CKR’s contention that copying Lam automatically destroyed privilege. The court reasoned that the presence of a third party in privileged communications does not necessarily amount to waiver. The key question is whether the communication was made for the purpose of obtaining legal advice and whether the third party’s inclusion was consistent with that purpose. Here, Lam’s inclusion did not undermine the confidentiality or the legal character of the communications. The court therefore held that privilege was not waived merely because Lam was copied, even though Lam was a person who might be required to disclose documents in the discovery process.
Turning to Item 4 documents, the court considered whether legal advice privilege and/or litigation privilege applied to emails involving Asplenium, Lam, and WongPartnership LLP concerning the preparation of the Annexures. CKR’s position was that legal advice privilege did not subsist because Sia and Lam were not authorised employees of Asplenium to seek or receive legal advice from WongPartnership LLP. CKR also argued that litigation privilege did not subsist because the Annexures were routine documents rather than documents created for the dominant purpose of litigation. Finally, CKR argued that any privilege was impliedly waived because Lam referred extensively to the Annexures as an expert witness in OS 1025, an earlier related High Court application concerning an interim injunction to restrain Asplenium from calling on a performance bond.
The court’s reasoning on Item 4 emphasised the purpose for which the Annexures were prepared and the role of the legal process. The Annexures were not treated as mere routine accounting documents. Rather, they were characterised as being prepared to substantiate and evaluate Asplenium’s loss and claims arising from CKR’s breach and termination of the contract, in circumstances where litigation or arbitration proceedings were reasonably contemplated. The court accepted that legal advice was sought from WongPartnership LLP regarding the collation and evaluation of evidence for the substantiation of Asplenium’s claims. This supported the conclusion that legal advice privilege attached to the communications.
As to litigation privilege, the court considered whether the documents were created for the dominant purpose of contemplated litigation. The court accepted that at the relevant time there was a reasonable prospect of litigation/arbitration between Asplenium and CKR, and that the Annexures were prepared to support Asplenium’s position in that dispute. The court therefore found that litigation privilege also subsisted, at least in relation to the relevant communications and materials.
On waiver by reference in OS 1025, the court analysed whether Lam’s use of the Annexures as an expert witness amounted to an implied waiver of privilege. The court’s approach was careful: waiver is not automatic; it depends on whether the privileged content was deployed in a manner inconsistent with maintaining confidentiality. The court concluded that the circumstances did not justify a finding of implied waiver that would strip privilege from the documents sought in the present application. In effect, the court treated the expert use as not necessarily equivalent to a voluntary disclosure of the privileged communications themselves, particularly where the privilege claim was tied to the legal advice and litigation purpose of the documents.
Finally, the court addressed the overarching question of whether declaratory and injunctive relief should be granted. CKR argued that the court should not grant relief without inspecting the documents or ordering redacted disclosure. The court, however, accepted that the procedural route adopted by Asplenium was appropriate in light of earlier guidance in Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42. In Tentat, the court had questioned intervention in a suit by a non-party but had also indicated that separate proceedings could be commenced to determine privilege and restrain use. Here, no objections were raised to Asplenium’s procedure, and the court was satisfied that the privilege claims could be determined without requiring inspection or redaction in the manner CKR suggested.
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 practical effect was to preserve Asplenium’s ability to maintain confidentiality over privileged communications and to prevent CKR from leveraging those documents in the ongoing negligence dispute.
Although CKR appealed, the court’s decision stood. The metadata indicates that the fourth respondent’s appeal in Civil Appeal No 179 of 2017 was dismissed by the Court of Appeal on 17 September 2019 with no written grounds of decision rendered, confirming the High Court’s approach to privilege and waiver.
Why Does This Case Matter?
Asplenium Land is significant for practitioners because it illustrates how Singapore courts apply legal advice privilege in the context of in-house or quasi-in-house legal counsel arrangements and communications involving non-lawyer corporate personnel. The case reinforces that privilege can extend beyond traditional solicitor-client communications where the statutory conditions in s 128A are satisfied, and it underscores that the purpose of the communication is central to the privilege analysis.
The decision is also useful on waiver. The court’s rejection of a broad “copying equals waiver” argument provides practical guidance for corporate litigation teams. Where third parties are included in privileged communications for legitimate operational reasons connected to obtaining legal advice, privilege may remain intact. This is particularly relevant in complex commercial disputes where project managers, consultants, and quantity surveyors are often copied on legal correspondence.
Finally, the case demonstrates the court’s willingness to grant injunctive and declaratory relief to protect privilege even where the privilege-holder is not a party to the underlying suit. For lawyers, this supports the strategic use of separate proceedings to resolve privilege disputes and to prevent privileged material from being used in discovery or evidence, thereby avoiding the “irreversible” consequences of disclosure.
Legislation Referenced
- Evidence Act (Cap 97) — s 128A (legal advice privilege involving in-house legal counsel)
- Companies Act (Cap 50) (referenced in metadata)
- Interpretation Act (referenced in metadata as “EA or the Interpretation Act”)
Cases Cited
- Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42
- [2012] SGHC 43
- [2019] SGHC 41 (editorial note / same citation as the decision)
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.