Case Details
- Citation: [2023] SGHC 24
- Title: CSO v CSP and another
- Court: High Court of the Republic of Singapore (General Division)
- Date of decision: 8 February 2023
- Originating process: Originating Summons No 268 of 2022 (Registrar’s Appeal No 219 of 2022)
- Judges: Andre Maniam J
- Plaintiff/Applicant: CSO
- Defendants/Respondents: (1) CSP (2) CSQ
- Legal areas: Civil procedure — Privileges; Evidence — Admissibility of evidence; Evidence — Proof of evidence
- Statutes referenced: Evidence Act (including s 23(1)); Evidence Act 1893 (2020 Rev Ed); “Evidence Act 1893” as referenced in the judgment; also references to the Evidence Act framework on admissions
- Other legal references mentioned in metadata: References to “Gamble had made a threat actionable under the UK Patents Act 1977” and “UK Patents Act 1977” appear in the provided metadata, though the excerpted judgment text focuses on without prejudice privilege and the Evidence Act
- Judgment length: 36 pages, 9,311 words
- Key procedural posture: Registrar’s decision appealed to the High Court; dispute concerned whether certain emails were protected by “without prejudice” privilege and, if so, whether they could be used to prove admissions
- Cases cited (as provided): [2017] SGHC 14; [2023] SGHC 24
Summary
CSO v CSP and another [2023] SGHC 24 is a High Court decision addressing the scope of “without prejudice” privilege in civil proceedings and, in particular, whether the Evidence Act’s treatment of “admissions” limits the common law protection afforded to without prejudice communications. The dispute arose in the context of a supply contract, performance security arrangements (a guarantee and a letter of credit), and a subsequent call on the guarantee by the contractor. The plaintiff sought injunctive relief, contending that the contractor’s call was unconscionable because the contractor’s position on whether contractual conditions had been met was inconsistent with its earlier conduct.
The evidential battleground centred on five emails exchanged in February 2020. Those emails were marked with a “Settlement/Gentlemen Agreement” subject header and were relied upon by the first defendant to rebut the plaintiff’s assertions. The plaintiff argued that the emails were privileged as without prejudice communications and should not be admitted or used to prove admissions. The High Court held that the relevant portions of the disputed emails were indeed privileged. The court further confirmed that the “broad approach” at common law—namely that the privilege protects the whole of without prejudice communications rather than requiring the court to “dissect” identifiable admissions—was not displaced by s 23(1) of the Evidence Act.
What Were the Facts of This Case?
The first defendant (CSP) was engaged as a contractor for a project. In turn, the first defendant engaged the plaintiff (CSO) to supply equipment under a supply contract. To secure performance of the plaintiff’s obligations, the plaintiff provided a guarantee issued by the second defendant bank. The guarantee’s validity was extended successively, with the last expiry date being 24 March 2022.
In addition to the guarantee, the first defendant procured a letter of credit (“LC”) in favour of the plaintiff. Under the LC, certain sums would be paid to the plaintiff for the plaintiff’s performance of the supply contract. The first defendant was entitled to deduct and retain 7% of every approved payment as “retention money”. The retention money was contractually to be paid to the plaintiff within 30 days of provisional acceptance occurring under the supply contract.
Disputes arose between the parties regarding whether provisional acceptance had occurred and, consequently, what further payments the plaintiff was entitled to receive. On or around 18 March 2022, the first defendant called on the guarantee. The first defendant alleged that the plaintiff had failed to fulfil its obligations under the supply contract and that provisional acceptance had not been achieved.
Before the call on the guarantee, the plaintiff had earlier communicated with the first defendant about its intention to claim under the LC for retention money. The plaintiff’s case in the injunction proceedings was that the first defendant’s later assertion—that provisional acceptance had not occurred—was inconsistent with the first defendant’s earlier conduct. In particular, the plaintiff relied on two assertions made in its supporting affidavit: first, that the first defendant did not take steps to extend the LC; and second, that the first defendant did not take issue with the retention money being returned to the plaintiff by the LC-issuing bank. The plaintiff argued that these assertions, taken together, demonstrated that the first defendant accepted that provisional acceptance had occurred, and therefore the call on the guarantee was unconscionable.
What Were the Key Legal Issues?
The central legal issue was whether the disputed emails exchanged in February 2020 were protected by “without prejudice” privilege and therefore inadmissible (or at least not usable) in the proceedings. This required the court to examine the nature and purpose of the communications, and whether they fell within the policy-based common law rule that encourages parties to settle disputes without fear that their settlement communications will later be used against them.
A second issue concerned the relationship between the common law without prejudice privilege and the Evidence Act’s statutory treatment of admissions. The court had to consider whether s 23(1) of the Evidence Act—focused on when admissions are not relevant because they were made on an express or inferred condition that evidence of them should not be given—limits the common law privilege to admissions only. Put differently, the court needed to determine whether the privilege protects only admissions contained in without prejudice communications, or whether it protects the entire communication, subject to recognised exceptions.
Finally, the court had to address whether any recognised exceptions to without prejudice privilege applied. The excerpted judgment indicates that the “delay/acquiescence exception” was treated as a relevant exception in the case, and the court analysed whether the exception could be invoked to permit the disputed emails to be used.
How Did the Court Analyse the Issues?
The court began by restating the foundation of without prejudice privilege at common law. It cited the general principle that communications between parties made on a without prejudice basis in the course of settlement negotiations are not admissible. The court also emphasised the policy rationale: encouraging settlement by ensuring that parties are not discouraged from negotiating by the knowledge that what is said during negotiations may later be used to their prejudice. The judgment relied on established authorities, including Cutts v Head, which articulated that parties should be encouraged to settle and should not be deterred by the risk that their negotiation communications—including failures to reply—will be used against them.
Having set out the policy and common law rule, the court then addressed the statutory overlay. Section 23(1) of the Evidence Act provides that in civil cases, no admission is relevant if it is made upon an express condition that evidence of it is not to be given, or upon circumstances from which the court can infer that the parties agreed that evidence of it should not be given. The key interpretive question was whether this statutory provision narrows the common law privilege such that only admissions within without prejudice communications are excluded, while other parts of the communications remain admissible.
The court rejected that narrowing approach. It held that neither s 23(1) nor binding local authority limited the common law in the manner suggested. The court endorsed what it described as the “Broad Approach” to without prejudice privilege. Under this approach, the court does not “dissect out identifiable admissions and withhold protection from the rest” of the without prejudice communications. This reflects the logic that the privilege is designed to protect the integrity of the settlement process as a whole, not merely to exclude discrete admissions.
The court further considered whether the Broad Approach was precluded by local case authority, including a reference to Ernest Ferdinand (as indicated in the excerpt). The court concluded that the Broad Approach remained applicable. This meant that the privilege could extend beyond admissions and protect the whole of without prejudice communications, subject to recognised exceptions.
Turning to the facts, the court analysed whether the relevant portions of the disputed emails were privileged in the first place. The emails had subject headers indicating “Settlement/Gentlemen Agreement”. The first defendant relied on five emails dated 17 to 21 February 2020. The emails suggested that the parties should discuss settlement, postpone remaining payments under the LC, and extend the LC. The plaintiff’s position was that these emails were part of without prejudice settlement negotiations and should not be used to prove admissions or inconsistent conduct.
The court held that the relevant portions of the disputed emails were privileged. It reasoned that the emails were communications made in the course of negotiations for settlement. Importantly, the court also addressed the delay/acquiescence exception. The excerpt indicates that the court treated the delay/acquiescence exception as a recognised exception to without prejudice privilege. The court then examined whether the exception could apply on the facts—particularly whether the relevant portions of the emails were communications of objective facts unconnected with the parties’ negotiations. The court concluded that the relevant portions were not such objective facts. Instead, they were tied to the negotiation context and therefore remained within the privileged sphere.
In addition, the court indicated that even if the privilege only covered admissions, the relevant portions would still be privileged. This reinforces the court’s view that the emails were properly characterised as without prejudice communications, and that the plaintiff’s attempt to use the emails to prove admissions (or to treat them as admissible evidence of inconsistent conduct) could not succeed.
What Was the Outcome?
The High Court allowed the privilege objection. It held that the relevant portions of the disputed emails were protected by without prejudice privilege and were therefore not admissible for the purpose for which the first defendant sought to rely on them. As a result, the plaintiff’s position that the emails should not be used to establish admissions or inconsistent conduct was upheld.
Practically, the decision means that parties in Singapore litigation can rely on without prejudice communications to negotiate settlement without fear that the communications will be admitted to prove admissions, unless a recognised exception applies. The court’s confirmation that s 23(1) does not narrow the privilege to admissions only strengthens the evidential protection afforded to settlement communications.
Why Does This Case Matter?
CSO v CSP and another [2023] SGHC 24 is significant for two reasons. First, it clarifies the interaction between the common law without prejudice privilege and the Evidence Act’s statutory framework on admissions. By affirming the Broad Approach, the High Court confirmed that the privilege protects the whole of without prejudice communications rather than requiring courts to carve out and admit identifiable admissions. This is important for litigators because it affects how parties structure settlement communications and how they anticipate evidential risks in later proceedings.
Second, the decision provides guidance on the scope of exceptions, including the delay/acquiescence exception. While the court recognised that exceptions exist, it emphasised that the exception will not automatically apply merely because a communication contains information that could be characterised as an admission or because the negotiation process later becomes contentious. The court’s analysis focused on whether the relevant portions were connected with the parties’ negotiations and whether they were objective facts unconnected with those negotiations.
For practitioners, the case underscores the need to treat settlement communications carefully. If parties intend communications to be without prejudice, they should ensure that the communications are genuinely part of settlement negotiations and are not drafted in a way that introduces separable objective facts intended to be relied upon outside the settlement context. Conversely, parties seeking to admit without prejudice communications must be prepared to demonstrate a clear basis for an exception, not merely that the communications are relevant or contain statements that could be framed as admissions.
Legislation Referenced
- Evidence Act 1893 (2020 Rev Ed) — Section 23(1) (Admissions in civil cases when relevant)
- Evidence Act (as referenced in the judgment excerpt, including the statutory expression of the admissions rule)
Cases Cited
- Quek Kheng Leong Nicky and another v Teo Beng Ngoh and others and another appeal [2009] 4 SLR(R) 181 (“Nicky Quek”)
- Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd and another [2006] 4 SLR(R) 807
- Cutts v Head [1984] Ch 290
- Rush & Tompkins Ltd v Greater London Council [1989] AC 1280
- Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd [2007] 2 SLR(R) 433
- Unilever Plc v Procter & Gamble Co [2000] 1 WLR 2436
- Ernest Ferdinand (as referenced in the excerpt)
- [2017] SGHC 14 (as provided in metadata)
- [2023] SGHC 24 (the case itself, as provided in metadata)
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.