Case Details
- Citation: [2009] SGHC 235
- Case Number: OS 291/2009
- Decision Date: 21 October 2009
- Court: High Court of the Republic of Singapore
- Coram: Lai Siu Chiu J
- Procedural History: Appeal in Registrar’s Appeal No 207 of 2009 (defendant’s appeal) against the Assistant Registrar’s decision striking out passages from an affidavit; subsequent Notice of Appeal filed in Civil Appeal No 95 of 2009
- Judicial Officer (Trial/AR Decision): Assistant Registrar (AR) granted plaintiffs’ application to strike out certain passages
- Judges’ Role in This Decision: Lai Siu Chiu J heard and dismissed the defendant’s appeal
- Plaintiff/Applicant: Gelatissimo Ventures (S) Pte Ltd and Others
- Defendant/Respondent: Singapore Flyer Pte Ltd
- Other Plaintiffs (Tenants): Sunglass Hut Southeast Asia Pte Ltd; Select Service Partner (S) Pte Ltd; Red Dot Collections Pte Ltd; Virtual Flight Asia Pte Ltd
- Legal Areas: Civil Procedure; Evidence
- Key Statutes Referenced: Bankruptcy Act; Companies Act; Evidence Act (Cap 97, 1997 Rev Ed); UK Insolvency Act; UK Insolvency Act 1986
- Rules of Court Referenced: Order 24 Rule 6(1) (pre-action discovery)
- Evidence Act Provisions Discussed: s 128(2) (fraud exception); s 128 (legal advice privilege); s 131 (litigation privilege by common law)
- Judgment Length: 18 pages, 10,300 words
- Counsel for Plaintiffs: Navinder Singh and Peter Doraisamy (Navin & Co LLP)
- Counsel for Defendant: Lionel Tan and Sheik Umar (Rajah & Tann LLP)
- Core Topic: Legal professional privilege; waiver; inadvertent disclosure; effect of secondary evidence; fraud exception
Summary
In Gelatissimo Ventures (S) Pte Ltd and Others v Singapore Flyer Pte Ltd [2009] SGHC 235, the High Court (Lai Siu Chiu J) dealt with whether a defendant could rely on an email chain that it had received from a tenant who had withdrawn from the litigation. The plaintiffs sought pre-action discovery against the operator of the Singapore Flyer. In resisting discovery, the defendant relied on an affidavit that referenced communications between the plaintiffs and their solicitor, asserting that the plaintiffs were abusing the process and had a collateral motive.
The court upheld the Assistant Registrar’s decision to strike out passages in the defendant’s affidavit that referred to the email thread. Although the defendant argued that privilege had been waived by disclosure to the defendant, and alternatively that privilege was lost through disclosure, the court found that the privilege remained intact because the email thread was jointly owned by the plaintiffs (including the withdrawing tenant) and there was no clear evidence that all joint owners had agreed to waive it. The court also rejected the defendant’s reliance on older English authority to permit use of secondary evidence of privileged communications after inadvertent disclosure, preferring the more protective approach adopted in Singapore in Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd [2009] 1 SLR 42.
What Were the Facts of This Case?
The defendant, Singapore Flyer Pte Ltd, operated the Singapore Flyer, a large observation wheel, and was also the landlord of the retail terminal at 30 Raffles Avenue that surrounds the Flyer. The plaintiffs were tenants at that retail terminal. They entered into tenancy agreements with the defendant between September 2007 and February 2008.
On 23 December 2008, the Flyer stopped revolving due to a technical malfunction. Operations were suspended for about one month and resumed on 26 January 2009. The plaintiffs then commenced proceedings by filing an originating summons (OS 291 of 2009) with a summons for pre-action discovery (Summons No 1936 of 2009). The application was brought under Order 24 Rule 6(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed).
In resisting the pre-action discovery application, the defendant argued that the plaintiffs already had sufficient information to commence proceedings. It also alleged that the plaintiffs had a collateral purpose in seeking discovery, contending that the plaintiffs’ true motive was to feed any discovered documents to the press. To support these assertions, the defendant relied on an affidavit sworn by Mr Yeo Lay Wee, the Centre Manager of the Flyer.
Central to the dispute was that the defendant came into possession of an email thread between the plaintiffs and their solicitor, Navinder Singh (“NS”). The defendant received the email thread from Mr Jawahar Ali, a tenant of the defendant who had originally been one of the plaintiffs but withdrew from the legal action on 4 March 2009. After withdrawing, Jawahar emailed the defendant confirming that he would not be taking further action. The email sent by Jawahar contained the entire chain of emails between the plaintiffs and NS. The defendant then sought to use portions of that email thread by referring to them in Yeo’s affidavit, thereby prompting the plaintiffs to apply to strike out those passages on the basis of legal professional privilege.
What Were the Key Legal Issues?
The defendant’s appeal raised several interrelated issues concerning the status and enforceability of legal professional privilege in the context of disclosure to an adversary. First, the court had to determine the status of the email thread: whether it was privileged as legal advice privilege and/or litigation privilege, and whether it also constituted confidential information protected from unauthorised disclosure or use.
Second, the court had to consider whether privilege had been waived. The defendant did not dispute that the email thread was privileged, but argued that privilege was waived when Jawahar forwarded the email thread to the defendant without reservations. Third, the court had to address the effect of inadvertent disclosure: whether the defendant could rely on secondary evidence of privileged communications after receiving them from a third party. Finally, the court had to consider whether the “fraud exception” applied, namely whether the privilege could be overridden under s 128(2) of the Evidence Act.
How Did the Court Analyse the Issues?
Status of the email thread (legal advice privilege and litigation privilege). The court began by explaining that legal professional privilege in Singapore is conceptually divided into legal advice privilege and litigation privilege. Legal advice privilege is provided by s 128 of the Evidence Act and covers communications between a party and his lawyer. Litigation privilege, recognised by common law and reflected in the Evidence Act framework, protects communications made for the predominant purpose of litigation (the court referred to the approach in Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR 367).
Applying these principles, the court found that the email thread was part of the communications between the plaintiffs and their solicitor. Accordingly, it fell within legal advice privilege under s 128. The court also held that the communications were made for the predominant purpose of preparing for litigation against the defendant, meaning they were simultaneously protected by litigation privilege. The court further emphasised that privilege and confidentiality are distinct doctrines. Even if privilege were set aside, the email thread was prima facie confidential information, and the defendant could not use it unless it could show why both the privileged and confidential nature had been lost.
Waiver of privilege. The court then addressed waiver. It was not disputed that NS was jointly retained by the plaintiffs (including Jawahar) for the purpose of commencing legal action against the defendant. The court therefore treated the privilege as jointly owned. As a matter of principle, joint privilege can only be waived if all joint owners agree to waive it. The court relied on authorities including Re Konigsberg (A Bankrupt) [1989] 1 WLR 1257 and The Sagheera [1997] 1 Lloyd’s Rep 160 to support the requirement of unanimity for waiver.
On the evidence, it was unclear whether Jawahar intended to waive privilege when he forwarded the email thread to the defendant. What was clear, however, was that the remaining plaintiffs had not taken any steps to show they were willing to waive privilege. The court found it “surprising” if they had agreed to waive privilege, and accordingly concluded that the plaintiffs did not waive their privilege in relation to the email thread. This reasoning reflects a cautious approach: waiver is not inferred lightly, particularly where privilege is jointly held and the party seeking to defeat privilege cannot demonstrate the consent of all joint owners.
Effect of inadvertent disclosure and the admissibility of secondary evidence. The defendant’s next argument relied on Calcraft v Guest [1898] 1 QB 759 and related English authorities, contending that once a privileged document is disclosed, the privilege is lost and secondary evidence may be adduced. The court rejected this approach as representing the current state of Singapore law. It reasoned that the applicability of Calcraft had been doubted in Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd [2009] 1 SLR 42, where Kan Ting Chiu J had reviewed authorities and expressed uncertainty over Calcraft’s rationale and application.
In Tentat, the High Court adopted a more protective stance. It allowed a party to object to the use of privileged documents or copies and to seek restraint from further use. The court in Gelatissimo also noted that other jurisdictions had refused to apply Calcraft as a general rule permitting secondary evidence of privileged communications. It further observed that in Tentat, Kan J had effectively rejected the Calcraft principles in favour of preserving privilege where the documents had not yet become part of the record in court proceedings or been released into the public domain.
Applying Tentat, Lai Siu Chiu J held that the defendant should not be allowed to refer to the email thread. The communications had not been used in any court proceedings and had not been released into the public domain. There was therefore no reason for the court to permit the defendant to use the privileged material merely because it had been inadvertently disclosed to it. This analysis underscores that Singapore courts treat privilege as something to be protected and preserved, rather than something automatically forfeited upon receipt by an adversary.
Fraud exception under s 128(2). The court also considered whether the email thread fell within the fraud exception under s 128(2) of the Evidence Act. While the provided extract truncates the remainder of the judgment, the structure of the issues indicates that the court had to examine whether the communications were made in furtherance of fraud or whether the privilege should be overridden on that basis. The fraud exception is a narrow carve-out: it does not permit a general attack on privilege but is designed to prevent legal advice from being used to facilitate wrongdoing. In the context of this case, the defendant’s broader narrative was that the plaintiffs had abused the process and had a collateral motive to publicise information. The court’s approach would therefore have required a careful distinction between improper motive in litigation and the specific threshold for the fraud exception.
What Was the Outcome?
The High Court dismissed the defendant’s appeal. The court affirmed the Assistant Registrar’s decision to strike out the passages in Yeo’s affidavit that referred to the privileged email thread. The practical effect was that the defendant could not rely on those communications to support its resistance to pre-action discovery.
As a result, the defendant’s attempt to use the email thread as evidence of alleged abuse of process or collateral purpose failed at the privilege stage. The court’s decision preserved the confidentiality and privileged status of the communications between the plaintiffs and their solicitor, preventing their use in the discovery dispute.
Why Does This Case Matter?
Gelatissimo is significant for practitioners because it clarifies how Singapore courts treat legal professional privilege when privileged material is received from a third party and then referenced in court affidavits. The case reinforces that privilege is not automatically waived by unilateral disclosure by one joint owner, absent clear evidence that all joint owners agreed to waive it. This is particularly relevant in multi-party disputes where counsel is jointly retained and one party later withdraws.
The decision is also important for evidence strategy. It demonstrates that Singapore courts are reluctant to allow adversaries to benefit from inadvertent disclosure by invoking older English authorities that permit secondary evidence. Instead, the court aligned with Tentat’s protective approach: privilege can be preserved and the court can restrain use of privileged communications where they have not entered the public domain or become part of the court record.
Finally, the case illustrates the interaction between privilege and confidentiality. Even where privilege is the primary ground, courts may treat the underlying communications as confidential information eligible for protection against unauthorised disclosure or use. For litigators, this means that privilege arguments should be framed not only as technical evidential objections but also as safeguards for the integrity of the solicitor-client relationship and the administration of justice.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2006 Rev Ed), Order 24 Rule 6(1)
- Evidence Act (Cap 97, 1997 Rev Ed), s 128 (legal advice privilege) [CDN] [SSO]
- Evidence Act (Cap 97, 1997 Rev Ed), s 128(2) (fraud exception) [CDN] [SSO]
- Evidence Act (Cap 97, 1997 Rev Ed), s 131 (litigation privilege framework) [CDN] [SSO]
- Bankruptcy Act (referenced in the judgment)
- Companies Act (referenced in the judgment)
- UK Insolvency Act (referenced in the judgment)
- UK Insolvency Act 1986 (referenced in the judgment)
Cases Cited
- Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and Other Appeals [2007] 2 SLR 367
- Re Konigsberg (A Bankrupt) [1989] 1 WLR 1257
- The Sagheera [1997] 1 Lloyd’s Rep 160
- Calcraft v Guest [1898] 1 QB 759
- Webster v James Chapman & Co (a firm) [1989] 3 All ER 939
- Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and Others [2009] 1 SLR 42
- Godddard And Another v Nationwide Building Society [1987] QB 670
- Baker v Campbell 49 ALR 385
- R v Uljee [1982] 1 NZLR 561
Source Documents
This article analyses [2009] SGHC 235 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.