Case Details
- Citation: [2023] SGHC 24
- Court: High Court of the Republic of Singapore
- Date: 2023-02-08
- Judges: Andre Maniam J
- Plaintiff/Applicant: CSO
- Defendant/Respondent: CSP and another
- Legal Areas: Civil procedure — Privileges, Evidence — Admissibility of evidence, Evidence — Proof of evidence
- Statutes Referenced: Evidence Act, Evidence Act 1893, UK Patents Act 1977
- Cases Cited: [2017] SGHC 14, [2023] SGHC 24
- Judgment Length: 36 pages, 9,311 words
Summary
This case deals with the admissibility of "without prejudice" communications in civil proceedings. The plaintiff, CSO, filed an application seeking an injunction to restrain the defendants from calling on a guarantee. In support of its application, CSO made certain assertions about the defendant's conduct, which the defendant CSP sought to rebut by referring to email communications between the parties that were marked "without prejudice". The key legal issue was whether these "without prejudice" communications were admissible, or whether they were protected by privilege. The High Court held that the "without prejudice" privilege protects the entirety of such communications, not just admissions, and that an exception to this privilege (the "delay/acquiescence" exception) applied in this case, rendering the relevant portions of the emails admissible.
What Were the Facts of This Case?
The plaintiff, CSO, was engaged by the first defendant, CSP, to supply equipment for a project pursuant to a supply contract. CSO provided a guarantee issued by the second defendant bank in respect of its obligations under the supply contract. Disputes subsequently arose between CSO and CSP, including as to whether provisional acceptance under the supply contract had occurred and what further payments CSO was entitled to.
On or around 18 March 2022, CSP called on the guarantee, alleging that CSO had failed to fulfill its obligations under the supply contract and that provisional acceptance had not been achieved. In response, CSO filed an application seeking an injunction to restrain the defendants from calling on the guarantee and receiving payment.
In its supporting affidavit, CSO made two key assertions: (1) that CSP did not take any steps to extend the letter of credit (LC) issued in CSO's favor, and (2) that CSP did not take issue with the retention money being returned to CSO by the bank. These assertions were made in the context of CSO arguing that CSP's call on the guarantee was unconscionable, as its conduct was inconsistent with its subsequent assertion that provisional acceptance had not occurred.
What Were the Key Legal Issues?
The key legal issues in this case were:
- Whether the "delay/acquiescence" exception to the "without prejudice" privilege applied, rendering the relevant portions of the disputed emails admissible.
- Whether the "without prejudice" privilege protects the entire contents of such communications, or only admissions made therein.
How Did the Court Analyse the Issues?
On the first issue, the court found that the "delay/acquiescence" exception applied in this case. This exception allows for the admission of "without prejudice" communications where a party has delayed in objecting to the other party's assertions or has acquiesced to them. The court held that CSP's failure to object to CSO's assertions about the LC and retention money, as set out in CSO's supporting affidavit, meant that the "delay/acquiescence" exception applied to the relevant portions of the disputed emails.
On the second issue, the court examined the common law position on the scope of the "without prejudice" privilege. It noted that the privilege generally protects the entire contents of such communications, not just admissions. The court rejected the argument that section 23(1) of the Evidence Act, which refers only to the inadmissibility of "admissions" made in certain circumstances, limits the common law privilege to only cover admissions. The court held that the broad approach, which protects the entire contents of "without prejudice" communications, is the correct position at common law and is not precluded by the Evidence Act or local case law.
The court also found that the relevant portions of the disputed emails would be privileged even under the narrower approach that only protects admissions, as they contained communications about the parties' negotiations and settlement discussions, rather than just objective facts.
What Was the Outcome?
The court held that the "delay/acquiescence" exception applied to the relevant portions of the disputed emails, rendering them admissible despite the "without prejudice" privilege. Accordingly, the court allowed CSO's striking out application in part, striking out the portions of CSP's affidavit that referred to the disputed emails.
Why Does This Case Matter?
This case is significant for several reasons:
First, it clarifies the scope of the "without prejudice" privilege under Singapore law. The court affirmed that the privilege protects the entire contents of such communications, not just admissions, rejecting a narrower interpretation based on the wording of the Evidence Act. This provides certainty for practitioners on the extent of the privilege.
Second, the court's recognition of the "delay/acquiescence" exception to the "without prejudice" privilege is important. This exception allows for the admission of otherwise privileged communications where a party has failed to object to the other party's assertions or has acquiesced to them. This can be a useful tool for parties seeking to rely on "without prejudice" communications in certain circumstances.
Finally, the case highlights the importance of carefully managing "without prejudice" communications and objecting promptly to any assertions made by the other party. Failure to do so may result in the loss of the privilege protection, as demonstrated by the application of the "delay/acquiescence" exception in this case.
Legislation Referenced
Cases Cited
Source Documents
This article analyses [2023] SGHC 24 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.