Case Details
- Citation: [2025] SGHC 153
- Court: High Court (General Division)
- Judgment Date: 4 July 2025 (grounds of decision); 7 August 2025 (date shown in the report)
- Judge: Chua Lee Ming J
- Title: Compania de Navegacion Palomar, S.A. & 5 Ors v Ernest Ferdinand Perez de la Sala
- Proceedings / Suit No: Suit No 178 of 2012 (Summons No 970 of 2025)
- Other Proceedings / Originating Summons No: Originating Summons No 594 of 2018 (Summons No 971 of 2025)
- Other Proceedings / Suit No: Suit No 398 of 2018 (Summons No 975 of 2025)
- Plaintiff/Applicant: Compania de Navegacion Palomar, S.A. & 5 Ors (the “Companies”)
- Defendant/Respondent: Ernest Ferdinand Perez de la Sala (represented by the executrix of his estate)
- Other Respondents (in related summonses): John Manners and Company Limited; Isabel Brenda Koutsos
- Legal Areas: Civil procedure; discovery; confidentiality and implied undertakings; abuse of process; cross-border use of court documents
- Foreign Proceedings: Ontario Superior Court of Justice, Court File No CV-22-00688105-00CL (the “Canadian Proceedings”)
- Core Procedural Question: When do the Riddick principle and the implied undertaking restrict the use of affidavits/documents filed or disclosed in Singapore proceedings?
- Judgment Length: 16 pages; 3,408 words
Summary
This decision concerns the cross-border use of affidavits and disclosed documents from Singapore proceedings in related litigation before the Ontario Superior Court of Justice. The applicants were six companies that had previously sued the respondent, Ernest Ferdinand Perez de la Sala, and others in Singapore to recover substantial assets allegedly misappropriated and concealed through breaches of directors’ duties and related wrongdoing. After the Court of Appeal ordered the return of assets to the companies, the companies commenced Canadian proceedings against UBS and related entities, intending to rely on affidavits filed and documents disclosed in the Singapore proceedings.
The High Court addressed a central procedural question: when are affidavits filed and documents disclosed in the course of court proceedings protected by the “Riddick principle” (and the implied undertaking not to use discovered material for extraneous purposes), and when is the court’s permission required to lift or modify that protection? The court applied the structured approach articulated by the Court of Appeal in Ong Jane Rebecca, focusing first on the “element of compulsion” that determines whether the Riddick undertaking is engaged.
Ultimately, the court’s analysis turned on whether the relevant affidavits and disclosures were made under compulsion (such that the Riddick principle applied) or were voluntary (in which case the implied undertaking would not restrict extraneous use). The court then considered whether, even if the undertaking applied, the companies could use the protected material without permission due to the nature of the related enforcement proceedings, or whether permission was necessary and should be granted only after balancing the competing interests.
What Were the Facts of This Case?
The applicants (“the Companies”) were plaintiffs in three Singapore proceedings: Suit No 178 of 2012 (“S 178”), Originating Summons No 594 of 2018 (“OS 594”), and Suit No 398 of 2018 (“S 398”). Collectively, these proceedings formed the factual and procedural backdrop for the applications before the High Court in 2025 (SUM 970, SUM 971, and SUM 975). The respondent in SUM 970 was the defendant in S 178, Ernest Ferdinand Perez de la Sala (“Ernest”), who had since passed away. He was represented by the executrix of his estate.
In S 178, the Companies sought to recover substantial assets from Ernest, alleging, among other things, breaches of directors’ duties. The Companies alleged that Ernest transferred assets out of the Companies’ bank accounts into his personal bank accounts maintained with UBS Bank (Canada). The Court of Appeal later found that the Companies were the legal owners of the relevant assets and ordered that the assets be returned to the Companies. This appellate determination was important because it established the Companies’ proprietary and enforcement position, which then informed the rationale for the Canadian proceedings.
Following the Court of Appeal’s decision, the Companies commenced the Canadian Proceedings on 15 October 2021. Those proceedings were brought against UBS Bank (Canada), UBS AG, and ABC Corporation. The Companies alleged that UBS had unlawfully assisted Ernest in misappropriating and concealing the assets from the Companies and facilitated his continued dealings with them. To prosecute the Canadian claim, the Companies intended to disclose and use various affidavits filed in the Singapore proceedings.
Two other Singapore matters were also relevant to the procedural landscape. First, OS 594 arose from the Court of Appeal’s decision in S 178 and involved an application to appoint a trust company to replace the Companies as trustees of various trust assets. The extract indicates OS 594 was stayed and no further action was taken. Second, S 398 involved a claim against Isabel Brenda Koutsos (“Isabel”), in which the High Court found that a sum of US$2.75m transferred to Isabel came from monies Ernest had misappropriated from the Companies. The court found Isabel liable for knowing receipt, breach of fiduciary duties, and unjust enrichment, and ordered her to return the sum to the Companies. These findings were part of the Companies’ broader narrative of misappropriation and concealment, which they sought to advance in Canada.
What Were the Key Legal Issues?
The applications raised a focused but significant procedural issue: the circumstances in which affidavits filed and documents disclosed in Singapore proceedings are protected by the Riddick principle. The Riddick principle, originating from Riddick v Thames Board Mills Ltd [1977] QB 881, is concerned with the implied undertaking that discovery obtained under compulsion may only be used for the purpose of the action in respect of which discovery was obtained. The court had to determine whether the materials the Companies wished to use in Canada were within the scope of that implied undertaking.
A second issue followed from the first: even if the Riddick undertaking applied, could the Companies use the protected documents without seeking permission because the Canadian proceedings were sufficiently “related” to enforcement proceedings arising from the Singapore litigation? The court’s framework required it to consider whether the nature of the related proceedings justified extraneous use without lifting the undertaking.
Finally, the court had to consider the “element of compulsion” in a more granular way. The Companies argued that the Riddick principle should not apply merely because material was disclosed in the course of court proceedings. They submitted that the critical question was whether the disclosure was made under compulsion—such as by an order of court or enforcement of a rule of court—rather than being voluntary or made for a party’s own purposes without any demand or compulsion.
How Did the Court Analyse the Issues?
The High Court began by restating the Riddick principle and its rationale. The implied undertaking not to use discovered documents for other purposes is an obligation owed to the court, and only the court can modify it. The Riddick principle seeks to balance the public interest in full and complete disclosure in the interests of justice against the privacy that discovery on compulsion intrudes upon. This balancing function is central: the court’s task is not to prevent legitimate use of evidence, but to prevent misuse of compelled disclosure beyond the scope for which it was obtained.
The court then relied on the Court of Appeal’s clarification in Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] 2 SLR 584. Ong Jane Rebecca provided a structured three-step approach. First, the court must determine whether, based on the element of compulsion, a document disclosed in court proceedings is covered by the Riddick undertaking. Second, if the undertaking applies, the court must consider whether the protected documents may nevertheless be used without permission due to the nature of related enforcement proceedings. Third, if neither applies, the party must seek permission for the undertaking to be lifted, and permission will be granted only if, in all the circumstances, the interests advanced for extraneous use outweigh the interests protected by the undertaking (as reflected in Lim Suk Ling Pricilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] 2 SLR 912).
On the “element of compulsion”, the court emphasised that the Riddick principle is not engaged simply because information has been disclosed in court proceedings. The critical factor is whether the disclosure was made under compulsion. The court drew on ED&F Man Capital Markets Ltd v Straits (Singapore) Pte Ltd [2020] 2 SLR 695 to explain that the mere fact that disclosure was not made pursuant to a court order does not necessarily mean it was voluntary; the context matters. Conversely, the fact that disclosure was made in court does not automatically mean it was compelled.
The court identified categories where compulsion is present. It noted that the Riddick principle applies where one party compels another to disclose documents or information, either by enforcement of a rule of court or a specific order of the court. It also highlighted that certain procedural contexts inherently involve compulsion. For example, affidavits filed in examination of judgment debtor (“EJD”) proceedings are covered because the EJD process involves the applicant demanding information and documents from the debtor. Similarly, documents exhibited in an affidavit filed to resist an application for those documents to be adduced as further evidence may be protected where the affidavit expressly includes a reservation that the documents are provided subject to the Riddick principle (as in BNX v BOE and another appeal [2018] 2 SLR 215).
Equally important, the court explained when disclosure is voluntary and therefore outside the Riddick undertaking. Where a party decides for its own purposes to use documents rather than maintain privacy, without any demand being made for documents of that class, the disclosure is voluntary and the Riddick principle would not apply. The court also considered the scenario where documents are disclosed to resist a pre-action disclosure application: the mere fact that the application was for pre-action disclosure does not automatically engage the Riddick principle. These distinctions are practical: they require the court to examine the procedural posture and the reason the documents were disclosed.
Applying these principles to the Companies’ applications, the court had to evaluate the particular affidavits and documents the Companies sought to use in Canada, and determine whether each was filed or disclosed under compulsion. The extract indicates that the Companies’ submissions focused on when affidavits were filed and when documents were disclosed “in the course of proceedings” but not pursuant to any order of court. The court’s analysis therefore required a careful contextual inquiry rather than a blanket rule based on the existence of court proceedings.
Although the provided extract is truncated before the court’s final application to each category of material, the structure of the reasoning is clear. The court would first classify each relevant document by reference to compulsion. If compulsion was established, the Riddick undertaking would protect the material. The court would then consider whether the Canadian Proceedings were the kind of related enforcement proceedings that could justify use without permission. If not, the Companies would need permission to lift the undertaking, which would be granted only after balancing the interests in extraneous use against the interests protected by the undertaking.
What Was the Outcome?
The High Court’s decision, as framed by the grounds of decision, was directed at whether permission should be granted for the Companies to disclose and use affidavits and documents from the Singapore Proceedings in the Canadian Proceedings. The outcome therefore depended on the court’s findings on the element of compulsion and, where applicable, the balancing exercise for lifting the Riddick undertaking.
Based on the court’s articulated framework, the practical effect of the orders would be to either (a) permit the Companies to use specified categories of affidavits/documents in Canada where the Riddick principle did not apply (because disclosure was voluntary or not compelled), or (b) grant permission to lift the undertaking where the Riddick principle applied but the interests in extraneous use outweighed the protected privacy interests. Conversely, where the undertaking applied and the balancing did not favour extraneous use, the court would restrict or refuse permission for use of the protected materials.
Why Does This Case Matter?
This case is significant for practitioners because it reinforces that the Riddick principle is not triggered by the mere fact that material appears in court proceedings. Instead, the decisive inquiry is the element of compulsion, assessed in context. For litigants seeking to use Singapore court materials in foreign proceedings, the decision underscores the need to map each document to the procedural mechanism by which it entered the record—whether by discovery under compulsion, by court order, by EJD-type processes, or by voluntary disclosure for a party’s own litigation strategy.
The decision also illustrates the continuing importance of Ong Jane Rebecca’s structured approach. Lawyers should treat the three-step framework as a practical checklist: (1) determine whether the Riddick undertaking applies; (2) if it does, consider whether the related proceedings fall within an enforcement category that permits use without permission; and (3) if neither applies, seek permission and be prepared to address the balancing of interests. This is especially relevant in cross-border asset recovery cases, where evidence gathered in one jurisdiction is often essential to enforcement in another.
Finally, the case highlights the court’s role in policing the boundary between legitimate use of evidence and improper use of compelled disclosure. The implied undertaking exists to protect privacy and fairness in the discovery process. Even where the extraneous use is for a related dispute, permission will only be granted if the interests advanced outweigh those protected by the undertaking. Practitioners should therefore anticipate that the court will scrutinise both the necessity of the documents for the foreign proceedings and the extent to which the documents were compelled rather than voluntarily produced.
Legislation Referenced
- No specific statutes were identified in the provided extract.
- Note: The judgment discusses procedural rules and the implied undertaking associated with discovery; however, the extract does not list particular statutory provisions.
Cases Cited
- Riddick v Thames Board Mills Ltd [1977] QB 881
- BNX v BOE and another appeal [2018] 2 SLR 215
- Beckkett Pte Ltd v Deutsche Bank AG [2005] 3 SLR(R) 555
- Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] 2 SLR 584
- Lim Suk Ling Pricilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] 2 SLR 912
- ED&F Man Capital Markets Ltd v Straits (Singapore) Pte Ltd [2020] 2 SLR 695
- Prudential Assurance Co Ltd v Fountain Page Ltd and another [1991] 1 WLR 756
- Derby & Co Ltd and others v Weldon and others (No 2) The Times (20 October 1988)
- Compañia De Navegación Palomar, SA and others v Koutsos, Isabel Brenda [2020] SGHC 59
- Ernest Ferdinand Perez De La Sala v Compañia De Navegación Palomar, SA and others and other appeals [2018] 1 SLR 894
Source Documents
This article analyses [2025] SGHC 153 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.