"Thus, there are triable issues which are best determined at trial rather than a striking out application." — Per Choo Han Teck J, Para 7
Case Information
- Citation: [2023] SGHC 85 (Para 1)
- Court: In the General Division of the High Court of the Republic of Singapore (Para 1)
- Date: 30 March 2023; 5 April 2023 (Para 1)
- Coram: Choo Han Teck J (Para 1)
- Case Number: Originating Application No 137 of 2023 (Para 1)
- Area of Law: Civil Procedure — Appeals — Leave (Para 1)
- Counsel for the Applicant: Christine Chuah Hui Fen (D’Bi An LLC) (Para 1)
- Counsel for the Respondent: Respondent in-person (Para 1)
- Judgment Length: 9 paragraphs in the extracted judgment (Para 1)
What Was the Procedural Setting of CZV v Kanagavijayan Nadarajan T/A Kana & Co?
This matter came before the High Court as an application for leave to appeal from a decision below concerning a striking out application in a defamation suit. The applicant, Ms L, sought leave to challenge the District Judge’s dismissal of her appeal against the Deputy Registrar’s refusal to strike out Mr K’s claim. The court’s task at this stage was therefore not to determine the merits of the defamation claim itself, but to decide whether leave to appeal should be granted in circumstances where the underlying dispute turned on admissibility and privilege. (Para 1) (Para 3)
The judgment makes clear that the application was framed around a specific evidential objection: Ms L contended that the WhatsApp message relied on by Mr K was protected by marital privilege under s 124(1) of the Evidence Act 1893 (2020 Rev Ed). The court was thus required to consider whether that contention justified striking out the claim at an interlocutory stage, or whether the issue should be left for trial. (Para 2) (Para 3)
"Ms L now seeks leave by this application to appeal against the DJ’s decision." — Per Choo Han Teck J, Para 3
The procedural posture is important because the court repeatedly emphasised the distinction between pleadings and evidence. The application was not a trial of admissibility, and the court treated the attempt to use a striking out application as a vehicle for deciding whether the WhatsApp message could be admitted as premature. That procedural distinction ultimately drove the outcome. (Para 4) (Para 5)
How Did the Dispute Arise From a Divorce-Related WhatsApp Message?
The factual matrix was straightforward but legally significant. Mr Y was in divorce proceedings against his wife, Ms L, and Mr K was Mr Y’s lawyer in those proceedings. On 15 December 2021, Ms L sent Mr Y a WhatsApp message containing allegations about Mr K’s conduct in the divorce proceedings. Mr Y then forwarded the message to Mr K. Those facts formed the basis of the later defamation claim. (Para 1)
"On 15 December 2021, Ms L sent to Mr Y a WhatsApp message containing certain allegations of Mr K’s conduct in the divorce proceedings (“the WhatsApp Message”)." — Per Choo Han Teck J, Para 1
Mr K reacted strongly to the message and, about eight months later, commenced a defamation action against Ms L in August 2022. Ms L then responded by applying to strike out the claim, contending that the message was a marital communication and therefore inadmissible. The court’s summary of the chronology shows that the litigation was not about whether the message existed, but whether it could be used in the defamation suit and whether that issue could be resolved summarily. (Para 1) (Para 2)
"Mr Y forwarded this message to Mr K. Mr K was outraged and, eight months later, in August 2022, he sued Ms L for defamation." — Per Choo Han Teck J, Para 1
The applicant’s grievance was that a communication made during marriage was being deployed against her in a civil claim. The court recorded that she was “aggrieved” by that use and that her response was to seek striking out. That framing is significant because it shows the dispute was not about the existence of the communication, but about the legal consequences of its use in litigation. (Para 2)
"Ms L, aggrieved that a marital communication is being used against her in a defamation suit, applied to strike out Mr K’s claim." — Per Choo Han Teck J, Para 2
What Did Ms L Argue About Marital Privilege and the WhatsApp Message?
Ms L’s central submission was that the WhatsApp message was inadmissible because it was protected by marital privilege under s 124(1) of the Evidence Act 1893 (2020 Rev Ed). The court recorded her position in direct terms: she said the message could not be used because it was a communication made during marriage, and therefore the defamation claim, which depended on that message, was unsustainable. (Para 2)
"The crux of her case is that the WhatsApp Message is inadmissible because it is protected by marital privilege under s 124(1) of the Evidence Act 1893 (2020 Rev Ed)." — Per Choo Han Teck J, Para 2
She went further and argued that because the WhatsApp message was the only defamatory particular pleaded, the entire claim should be struck out. In other words, her position was not merely that the message might be excluded at trial, but that without it there was no viable cause of action at all. The court captured this as an argument that the claim was “plainly unsustainable.” (Para 2)
"Since the WhatsApp Message pertains to the only defamatory particular pleaded, Ms L says that Mr K’s claim is plainly unsustainable and should thus be struck out." — Per Choo Han Teck J, Para 2
Ms L also advanced a second, more procedural argument. She said the case raised a novel issue of law because marital privilege had never been discussed in the context of a striking out proceeding, and she characterised the matter as one of greater professional interest. The court later described this as an ancillary argument, because it depended on the premise that the admissibility issue should be decided at the striking out stage. (Para 3)
"Her second argument is ancillary to her first. She says that this case raises a novel issue of law because marital privilege has never been discussed in the context of a striking out proceeding" — Per Choo Han Teck J, Para 3
Why Did the Court Say a Striking Out Application Was the Wrong Procedure?
The court’s first major response was procedural. It held that a striking out application is not the correct procedure for determining whether the WhatsApp message is admissible. That point was stated emphatically and became the foundation for rejecting the leave application. The court treated the admissibility question as one that should ordinarily be resolved in the evidential context of trial, not by a summary application directed at the pleadings. (Para 4)
"A striking out application is not the correct procedure for that." — Per Choo Han Teck J, Para 4
The court also rejected the suggestion that the novelty of the issue justified interlocutory appellate intervention. It described that argument as “self-defeating” because the very fact that the issue had not been discussed in the context of striking out did not mean that striking out was the right procedural mechanism for deciding it. The court’s reasoning was that novelty does not convert an evidential dispute into a pleading defect. (Para 4)
"It is a self-defeating argument." — Per Choo Han Teck J, Para 4
In practical terms, the court was saying that even if the privilege point was interesting or novel, that did not make the claim unsustainable on the pleadings. The court’s focus remained on whether the pleaded case disclosed a cause of action, not on whether the evidence supporting that case would ultimately be admitted. That distinction between pleading sufficiency and evidential admissibility was central to the refusal of leave. (Para 4) (Para 5)
How Did the Court Distinguish Pleadings From Evidence?
The court’s reasoning on this point was explicit and categorical. It stated that the focus of striking out proceedings is on the pleadings themselves, specifically the particulars that are pleaded. It then drew a sharp distinction between particulars and facts in pleadings on the one hand, and evidence on the other. This distinction meant that the court was not prepared to treat the possible inadmissibility of a piece of evidence as automatically fatal to the pleaded claim. (Para 5)
"The focus of striking out proceedings is on the pleadings themselves — specifically, the particulars that are pleaded. Particulars and facts in pleadings are different from evidence." — Per Choo Han Teck J, Para 5
That reasoning matters because Ms L’s argument assumed that if the WhatsApp message could not be admitted, the claim necessarily failed. The court did not accept that assumption. A claim may be pleaded on the basis of facts that are later proved by admissible evidence other than the disputed document or communication. The court therefore refused to collapse the pleading inquiry into an evidential ruling. (Para 5) (Para 6)
The judgment’s approach reflects a conservative use of striking out powers. Rather than deciding a contested evidential issue in the abstract, the court preferred to allow the litigation to proceed so that the admissibility question could be addressed in the proper forensic setting. That approach is consistent with the court’s repeated emphasis that the issue was not whether the message was ultimately admissible, but whether the claim was so obviously untenable that it should be terminated at the threshold. (Para 5) (Para 6)
Why Did the Court Think the Claim Might Still Proceed Even If the WhatsApp Message Was Inadmissible?
The court gave a further reason for refusing to strike out the claim: it remained plausible that the disclosure of the WhatsApp message could be adduced at trial by other means. The judgment specifically mentioned cross-examination of Ms L as one possible route. This meant that even if the message itself were subject to privilege in one form, the underlying facts might still emerge through admissible trial processes. (Para 6)
"Thus, it remains plausible that the disclosure of the WhatsApp Message may be adduced at trial by other means — such as from a cross-examination of Ms L." — Per Choo Han Teck J, Para 6
This point was decisive because it undercut the premise that the claim was “plainly unsustainable.” The court was not prepared to assume, at the leave stage, that the alleged defamatory matter could never be proved. If there was a realistic possibility that the relevant facts could be elicited through cross-examination or other trial evidence, then the claim could not be said to fail as a matter of law at the interlocutory stage. (Para 6)
The court therefore rejected the proposition that the absence of the WhatsApp message as direct evidence necessarily doomed the action. It held that the claim should not be struck out “for want of evidence at this stage.” That formulation is important because it shows the court was concerned with timing: the evidential objection might be available later, but it was not a basis for terminating the action before trial. (Para 6)
"Accordingly, I do not accept Ms Chuah’s argument that Mr K’s claim ought to be struck out for want of evidence at this stage." — Per Choo Han Teck J, Para 6
What Role Did Systematic Airconditioning Pte Ltd v Ho Seng Ken Play in the Court’s Reasoning?
The only case referred to in the extracted judgment was Systematic Airconditioning Pte Ltd v Ho Seng Ken and others [2023] SGHC 10. The High Court cited it for the proposition that marital privilege over a spousal communication was, in that case, only a privilege of the recipient spouse and not the communicating spouse. That citation was used to support the broader point that marital privilege is not a simple, absolute bar to all use of marital communications in litigation. (Para 6)
"The High Court in Systematic Airconditioning Pte Ltd v Ho Seng Ken and others [2023] SGHC 10 held that marital privilege over a spousal communication was, in that case, only a privilege of the recipient spouse of that communication and not the communicating spouse." — Per Choo Han Teck J, Para 6
The judgment did not elaborate further on Systematic Airconditioning, but its use is telling. It shows that the court viewed the privilege issue as legally nuanced and context-dependent, rather than as a straightforward rule that automatically barred the claim. That nuance reinforced the court’s reluctance to dispose of the matter summarily. (Para 6)
In the present case, the citation to Systematic Airconditioning served a limited but important function: it demonstrated that the law of marital privilege had already been treated as requiring careful analysis of who holds the privilege and in what circumstances it may be invoked. That made the applicant’s attempt to convert the privilege point into a striking out issue even less persuasive. (Para 6)
What Was the Court’s Final Holding on Leave to Appeal?
The court’s final conclusion was that leave to appeal should be refused. After explaining why the striking out application was not the correct procedural vehicle and why the claim might still be supported at trial, the judge concluded that there were triable issues best determined at trial rather than on a striking out application. The application for leave to appeal was therefore dismissed. (Para 7)
"Thus, this application for leave to appeal is dismissed." — Per Choo Han Teck J, Para 7
The court also ordered that costs be reserved to the trial judge. That order indicates that the question of who should bear the costs of the interlocutory application was left open for later determination in the substantive proceedings. The judgment did not award immediate costs against either party. (Para 7)
"I order that costs are reserved to the trial judge." — Per Choo Han Teck J, Para 7
In substance, the holding was that the applicant had not shown a sufficient basis for appellate intervention at this stage. The court was satisfied that the issues raised were not suitable for summary disposal and that the dispute should proceed to trial, where the admissibility and privilege questions could be addressed in context. (Para 7)
How Did the Court Treat the Lower Courts’ Decisions?
The extracted judgment records that the Deputy Registrar dismissed Ms L’s strike-out application because he thought it was plausible that marital privilege might not apply to the communication in question. The District Judge then dismissed Ms L’s appeal and affirmed the Deputy Registrar’s order. The High Court’s reasoning did not disturb those conclusions; instead, it endorsed the practical result that the matter should not be struck out at the interlocutory stage. (Para 3)
"Deputy Registrar Teo Guan Kee (“the DR”) who heard Ms L’s application dismissed it because he thought that it was plausible that marital privilege may not apply to the communication in question." — Per Choo Han Teck J, Para 3
"Her appeal was dismissed by District Judge Toh Yung Cheong (“the DJ”), who affirmed the DR’s order." — Per Choo Han Teck J, Para 3
Although the High Court was hearing an application for leave to appeal rather than a full appeal on the merits, its reasoning effectively confirmed the lower courts’ reluctance to terminate the claim summarily. The judge’s analysis shows that the lower courts were not plainly wrong to allow the matter to proceed, because the privilege issue was not suitable for resolution by striking out. (Para 3) (Para 4) (Para 5)
The judgment therefore reflects a layered judicial consensus: the Deputy Registrar saw the privilege issue as at least plausible; the District Judge agreed; and the High Court concluded that the issue was triable and should be left for trial. That progression is important because it demonstrates that the applicant’s attempt to obtain leave to appeal did not reveal any obvious error warranting appellate correction. (Para 3) (Para 7)
Why Did the Court Say the Case Raised Triable Issues Best Left for Trial?
The court’s use of the phrase “triable issues” is the clearest expression of its substantive conclusion. The judge considered that the dispute over marital privilege, admissibility, and the possible use of the WhatsApp message through other evidential routes could not be resolved fairly on a striking out application. Because those issues depended on context and proof, they were better determined at trial. (Para 6) (Para 7)
"Thus, there are triable issues which are best determined at trial rather than a striking out application." — Per Choo Han Teck J, Para 7
This conclusion followed from the court’s earlier reasoning that pleadings are not evidence and that the possible inadmissibility of one item of evidence does not necessarily extinguish a pleaded cause of action. The court was therefore not persuaded that the claim was doomed at the threshold. Instead, it saw a live dispute requiring factual and legal development. (Para 5) (Para 6)
The practical effect of this reasoning is that litigants cannot ordinarily use a strike-out application to obtain a premature ruling on contested evidential privilege questions. If the pleaded case is otherwise arguable and the evidence issue may be resolved later, the court will generally prefer to preserve the action for trial. That is the core lesson of the judgment. (Para 4) (Para 5) (Para 7)
Why Does This Case Matter?
This case matters because it clarifies the boundary between pleading challenges and evidential objections. The court made clear that a striking out application is not the correct procedure for deciding whether a communication protected by marital privilege can be used at trial. That distinction is important for practitioners because it limits the use of interlocutory applications as a substitute for trial management. (Para 4) (Para 5)
It also matters because it shows that even where a plaintiff’s case appears to depend on a particular communication, the court will not automatically strike out the claim merely because the admissibility of that communication is disputed. The possibility that the relevant facts may be proved by other means, including cross-examination, can be enough to keep the action alive. That is a significant practical point for defamation litigation and for privilege disputes more generally. (Para 6)
Finally, the case is useful as a reminder that novelty alone does not justify interlocutory appellate intervention. The court rejected the idea that because marital privilege had not been discussed in the context of striking out, the issue should be elevated to a summary appellate question. Instead, the court preferred to let the matter proceed in the ordinary course. (Para 4) (Para 7)
Cases Referred To
| Case Name | Citation | How Used | Key Proposition |
|---|---|---|---|
| Systematic Airconditioning Pte Ltd v Ho Seng Ken and others | [2023] SGHC 10 | Cited as authority on marital privilege over spousal communications | Marital privilege over a spousal communication was, in that case, only a privilege of the recipient spouse and not the communicating spouse (Para 6) |
Legislation Referenced
- Evidence Act 1893 (2020 Rev Ed), s 124(1) (Para 2)
"124.—(1) No person who is or has been married may be compelled to disclose any communication made to him or her during marriage by any person to whom he or she is or has been married; nor may he or she be permitted to disclose any such communication unless the person who made it or his or her representative in interest consents, except in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other." — Per Choo Han Teck J, Para 2
"General Division of the High Court — Originating Application No 137 of 2023 Choo Han Teck J 30 March 2023 5 April 2023" — Per Choo Han Teck J, Para 1
"Ms L now seeks leave by this application to appeal against the DJ’s decision." — Per Choo Han Teck J, Para 3
"She says that the DR and DJ erred in law in holding that the WhatsApp Message may be admissible when it is undoubtedly inadmissible." — Per Choo Han Teck J, Para 3
"The focus of striking out proceedings is on the pleadings themselves — specifically, the particulars that are pleaded. Particulars and facts in pleadings are different from evidence." — Per Choo Han Teck J, Para 5
"Accordingly, I do not accept Ms Chuah’s argument that Mr K’s claim ought to be struck out for want of evidence at this stage." — Per Choo Han Teck J, Para 6
"I order that costs are reserved to the trial judge." — Per Choo Han Teck J, Para 7
"- Sgd - Choo Han Teck Judge of the High Court" — Per Choo Han Teck J, Para 9
Source Documents
This article analyses [2023] SGHC 85 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.