Interactive Digital Finance Ltd and another v Credit Suisse AG and another [2023] SGHC 198

Case Details

• Citation: [2023] SGHC 198
• Case Number: Originating Claim No 225 of 2023 (Registrar’s Appeal No 95 of 2023)
• Decision Date: 24 July 2023
• Court: General Division of the High Court of Singapore
• Coram: Chua Lee Ming J
• Judgment Delivered By: Chua Lee Ming J
• Appellant(s): Interactive Digital Finance Ltd; Tiah Thee Kian (Claimants)
• Respondent(s): Credit Suisse AG (1st Defendant); Luckin Coffee Inc (2nd Defendant)
• Counsel for Appellant: Ng Ka Luon Eddee, Alcina Lynn Chew Aiping, Lee Pei Hua Rachel, Gitta Priska Adelya (Tan Kok Quan Partnership)
• Counsel for Respondent: Jordan Tan (Audent Chambers LLC) (instructed), Lim Yuan Jing (WongPartnership LLP) for the first defendant; Chin Yen Bing, Arthur (TSMP Law Corporation) for the second defendant (watching brief)
• Legal Areas: Civil Procedure; Production of Documents; Rules of Court 2021
• Statutes Referenced: Rules of Court (Cap 322, R 5, 2014 Rev Ed); Rules of Court 2021
• Key Provisions: Rules of Court 2021, O 3 r 1(2), O 3 r 2(2), O 9 r 1(2), O 9 r 2, O 9 r 9(3), O 9 r 9(4)(k), O 9 r 9(7), O 11 r 2(1), O 11 r 3(1), O 11 r 4, O 18 r 10; Rules of Court (2014 Rev Ed), O 24 rr 10, 11
• Disposition: Appeal dismissed; Assistant Registrar's order for production of documents referred to in the Statement of Claim upheld; 1st Defendant not entitled to production of specific documents #20, #28, #58; claimants and 1st defendant to bear their own costs.
• Reported Related Decisions: N/A

Summary

This case concerned the High Court's interpretation of the Rules of Court 2021 ("2021 Rules") regarding the production of documents referred to in pleadings, particularly in the absence of the specific "notice to produce" procedure found in the revoked Rules of Court (2014 Rev Ed) ("2014 Rules"). The claimants appealed against an Assistant Registrar's ("AR") order directing them to produce documents referred to in their Statement of Claim ("SOC") to the 1st defendant, Credit Suisse AG, before the Single Application Pending Trial ("SAPT") stage.

The High Court dismissed the claimants' appeal, affirming the AR's power to make such an order. The Court held that while the 2021 Rules do not contain an express notice to produce procedure, the court retains the power under Order 11 Rule 4 (court's power to order production of documents) and Order 3 Rule 2(2) (inherent power where no express provision) to direct the production of documents explicitly referred to or directly alluded to in pleadings. This power is rooted in the principle that a party is entitled to know the pleaded case against them, and such documents form part of that case, making early production logical and in the interests of justice, consistent with the Ideals of the 2021 Rules.

However, the Court also clarified the scope of what constitutes a "referred to" document. Applying the test from SK Shipping Co Ltd v IOF Pte Ltd [2012] SGHCR 14, it held that a document must be explicitly referred to or directly alluded to, and not merely referred to by inference. On this basis, the Court found that specific "records of communication" sought by the 1st defendant (requests #20, #28, #58) were not sufficiently referred to in the SOC, as the pleadings only mentioned the provision of certain reports (transactions) rather than the underlying communications themselves. Consequently, the 1st defendant was not entitled to the production of these specific documents at that stage. The Court also reiterated the high threshold for appellate intervention in procedural matters under Order 18 Rule 10 of the 2021 Rules, requiring "substantial injustice."

Timeline of Events

1. 13 April 2023: The claimants, Interactive Digital Finance Ltd and Mr Tiah Thee Kian, filed their claim against the defendants, Credit Suisse AG and Luckin Coffee Inc.
2. 21 April 2023: The 1st defendant filed and served a Notice to Produce ("NTP") on the claimants, using a form prescribed under the 2014 Rules, requesting 76 documents purportedly referred to in the claimants' Statement of Claim ("SOC"). The 1st defendant also sought an extension of time to file its defence.
3. 26 April 2023: The claimants responded, stating they would not provide the documents by the stipulated date and did not agree to the extension of time for the 1st defendant's defence.
4. 2 May 2023: At a case conference, the Assistant Registrar ("AR") directed the claimants to provide a further response to the NTP and to produce to the 1st defendant by 9 May 2023 any document referred to in the SOC and subject to the claim against the 1st defendant. The AR also extended the time for the 1st defendant to file its defence to 19 May 2023.
5. 9 May 2023: The claimants produced documents for 23 requests, stated 5 were not in their possession, and took the position that the 1st defendant was not entitled to 47 requests, arguing they were not referred to in the SOC.
6. 15 May 2023: The 1st defendant's lawyers wrote to the court requesting directions for the production of specific documents (requests #20, #28, #58) and a further extension of time for its defence.
7. 16 May 2023: The claimants filed the present appeal against the AR’s decision given at the case conference on 2 May 2023.
8. 23 May 2023: At a subsequent case conference, the AR extended the time for the filing of the 1st defendant’s defence until after the appeal was dealt with.
9. 24 July 2023: The High Court dismissed the claimants' appeal, upholding the AR's power to order production of documents referred to in the SOC, but found that documents in requests #20, #28, and #58 were not sufficiently referred to.

What Were the Facts of This Case?

On 13 April 2023, the claimants, Interactive Digital Finance Ltd and Mr Tiah Thee Kian, commenced an action against the defendants, Credit Suisse AG (the "1st defendant") and Luckin Coffee Inc (the "2nd defendant"). The claimants sought to recover losses arising from investments in and/or based on securities issued by the 2nd defendant, which were transacted through the claimants' accounts held with the 1st defendant. These losses were allegedly incurred as a result of representations made by the defendants.

Following the filing of the Statement of Claim ("SOC"), the 1st defendant, on 21 April 2023, served a notice to produce ("NTP") on the claimants. This NTP, which was in the form prescribed under the revoked Rules of Court (2014 Rev Ed), listed 76 requests for documents that the 1st defendant contended were referred to in the claimants' SOC. Concurrently, the 1st defendant sought the claimants' agreement for a 14-day extension to file its defence, premised on the assumption that the requested documents would be produced by 26 April 2023.

The claimants, however, declined to provide the documents by the specified date and refused to grant the requested extension for the defence. This led the 1st defendant's lawyers to write to the court, seeking directions for the production of the documents in the NTP and an extension of time for filing its defence. The claimants' lawyers countered, asserting that the 1st defendant's request lacked legal basis or good reason.

At a case conference held on 2 May 2023, the Assistant Registrar ("AR") directed the claimants to provide a further response to the NTP and to produce, by 9 May 2023, any document referred to in the SOC that was subject to the claim against the 1st defendant. The AR also granted the 1st defendant an extension to file its defence until 19 May 2023. The claimants subsequently provided a partial response, producing some documents but disputing the entitlement to others, particularly 47 requests, on the basis that they were not referred to in the SOC.

The dispute escalated when the 1st defendant specifically pressed for the production of documents related to requests #20, #28, and #58, which the claimants continued to refuse. In response, the claimants filed an appeal against the AR's order of 2 May 2023. At a later case conference, the AR further extended the time for the 1st defendant to file its defence until after the appeal was determined.

What Were the Key Legal Issues?

The High Court was tasked with resolving several key legal issues arising from the claimants' appeal against the Assistant Registrar's order for the production of documents:

• Whether the Assistant Registrar had the power to order the production of documents that were referred to in the Statement of Claim under the Rules of Court 2021, given that the specific notice to produce procedure from the previous Rules of Court (2014 Rev Ed) was no longer expressly provided for.
• Whether the threshold for appellate intervention under Order 18 Rule 10 of the Rules of Court 2021 had been crossed, which requires an appellate court to intervene in procedural matters only if substantial injustice would otherwise be caused.
• Whether the specific documents sought in requests #20, #28, and #58 of the 1st defendant's notice to produce were documents that were "referred to" in the claimants' Statement of Claim, applying the established legal test.

How Did the Court Analyse the Issues?

The High Court first addressed the issue of whether the Assistant Registrar ("AR") had the power to order the production of documents referred to in the Statement of Claim ("SOC") under the Rules of Court 2021 ("2021 Rules"). The claimants argued that the old notice to produce ("NTP") procedure under the 2014 Rules was defunct, and any document production application had to be part of the Single Application Pending Trial ("SAPT") or with court approval. The Court disagreed with the claimants, finding that the AR did not base her order on the old NTP procedure but on the principles underlying the 2021 Rules, noting it was "odd" that documents referred to in the SOC were not being provided, which was inconsistent with the Ideals of the 2021 Rules.

The Court then analysed Order 11 of the 2021 Rules, which governs document production. While acknowledging that Order 11 Rule 2 (general exchange of documents relied on) was not intended for specific document requests and Order 11 Rule 3 (production of specific documents) generally required an application as part of SAPT, the Court found that the AR had the power to make the order under Order 11 Rule 4. This rule grants the court the power, of its own accord and at any time, to order any party to produce a copy of any document in their possession or control.

Crucially, the Court invoked the principle underlying the old NTP procedure, as articulated in SK Shipping Co Ltd v IOF Pte Ltd [2012] SGHCR 14 at [16]. This principle holds that a party referring to documents in its pleadings confers the same advantage as if the documents were fully set out, and such reference is a form of "disclosure." The Court affirmed this principle as sound and relevant under the 2021 Rules, stating that it is "logical and in the interests of justice that if requested by the other party, such documents should be produced." The other party is "entitled to know the pleaded case against him," especially before filing a defence. The Court also noted that a party opposing production of such documents must show "good cause," which would be "rare and exceptional."

Furthermore, the Court held that the AR also had the power to make the order under Order 3 Rule 2(2) of the 2021 Rules. This provision allows the court to do "whatever the Court considers necessary on the facts of the case before it to ensure that justice is done or to prevent an abuse of the process of the Court," where there is no express provision, so long as it is consistent with the Ideals. The Court found this power applicable because there was no express provision for production of documents referred to in pleadings, and such an order was necessary for justice and consistent with Ideals like "expeditious proceedings" and "fair and practical results." The Court concluded that for documents referred to in pleadings, a written request should suffice, and production should occur unless it is disputed that the documents are indeed referred to.

On the second issue, whether the threshold for appellate intervention under Order 18 Rule 10 had been crossed, the Court agreed with the 1st defendant. Order 18 Rule 10 states that an appellate court should intervene in procedural matters "only if substantial injustice will be caused otherwise." The Court found that the claimants had not demonstrated that substantial injustice would be caused by the AR's order, thus providing no reason for intervention.

Finally, the Court addressed whether the documents in requests #20, #28, and #58 were documents "referred to" in the SOC. The Court again referred to SK Shipping at [18]–[20], which clarified that a document is "referred to" if it has been "explicitly referred to or directly alluded to," but not if it was "merely referred to by inference." Direct allusion requires reference to the contents of the documents or the act of making the document itself, not just the effect of the document or a mere reference to a transaction.

Analysing paragraphs 23(c), 29(b), and 63(f) of the SOC, which pleaded that the 1st defendant "provided" or "forwarded" certain analyst reports, the Court found that these were "merely references to transactions." There was no explicit reference or direct allusion to the *records of the communication* by which these reports were provided. Therefore, the documents sought in requests #20, #28, and #58 were referred to only by inference, which was deemed insufficient for the purpose of this specific production principle. The Court clarified that this decision did not preclude the 1st defendant from seeking discovery of these documents through other rules.

What Was the Outcome?

The High Court dismissed the claimants' appeal, thereby upholding the Assistant Registrar's order for the production of documents referred to in the Statement of Claim. The Court affirmed that the AR had the power to make such an order under the Rules of Court 2021, specifically relying on Order 11 Rule 4 and Order 3 Rule 2(2).

However, the Court also ruled that the specific documents sought by the 1st defendant in requests #20, #28, and #58 were not documents that were "referred to" in the Statement of Claim, as they were only referred to by inference and not explicitly or by direct allusion. Consequently, the 1st defendant was not entitled to the production of those particular documents at that stage. Regarding costs, the Court ordered that the claimants and the 1st defendant were to bear their own respective costs.

For the reasons stated above, I dismissed the appeal. I also decided that the documents sought under requests #20, #28 and #58 were not documents that were referred to in the SOC. Accordingly, the 1st defendant was not entitled to the production of those documents. [...] In the circumstances, I concluded that the appropriate order as to costs was for the claimants and the 1st defendants to bear their own respective costs, and I ordered accordingly. [52]–[53]

Why Does This Case Matter?

This case is significant as it clarifies the court's powers regarding early document production under the Rules of Court 2021 ("2021 Rules"), particularly in the absence of the express "notice to produce" procedure found in the revoked 2014 Rules. The High Court affirmed that the principle of requiring production of documents explicitly referred to or directly alluded to in pleadings remains vital. It establishes that the court can order such production, even before the Single Application Pending Trial ("SAPT") stage and without a formal application, by leveraging its powers under Order 11 Rule 4 and Order 3 Rule 2(2) of the 2021 Rules. This ensures that parties can access documents forming part of the pleaded case early, facilitating the drafting of responses and promoting the Ideals of expeditious proceedings and fair results.

Doctrinally, this decision builds upon and adapts the principles laid down in SK Shipping Co Ltd v IOF Pte Ltd [2012] SGHCR 14 to the new procedural framework. It reinforces the strict interpretation of "referred to," requiring explicit reference or direct allusion to the document itself, rather than mere inference or a reference to the transaction the document records. This distinction is crucial for determining the scope of early production obligations and preventing overly broad requests.

For practitioners, this case has several important implications. For litigation lawyers, it confirms that a party can still seek early production of documents explicitly mentioned in an opponent's pleadings, which can be critical for formulating a robust defence or reply. However, it also serves as a cautionary tale for those drafting pleadings: any document explicitly referred to or directly alluded to may be subject to early production, necessitating careful consideration of what is pleaded and ensuring readiness to produce such documents. Furthermore, the case underscores the high threshold for appellate intervention in procedural matters under Order 18 Rule 10, reminding lawyers that mere disagreement with a procedural ruling, without demonstrating "substantial injustice," is unlikely to succeed on appeal.

Practice Pointers

• Pleading Strategy: When drafting your Statement of Claim or Defence, be precise in your references to documents. If you intend to rely on a document, ensure it is explicitly referred to or directly alluded to. Be aware that any such document may be subject to early production upon request by the opposing party, even before the SAPT stage.
• Discovery Strategy (Requesting Party): If an opposing party's pleading explicitly refers to or directly alludes to a document, you may request its production early in the proceedings via a written request. If the request is refused, the court has the power under O 11 r 4 and O 3 r 2(2) of the 2021 Rules to order its production, without requiring a formal application or waiting for SAPT.
• Discovery Strategy (Responding Party): For documents explicitly referred to or directly alluded to in your pleadings, be prepared to produce them promptly upon request. However, you may legitimately resist requests for documents that are only referred to by inference, as this case confirms such indirect references are insufficient for this specific early production mechanism.
• Interpreting "Referred To": Understand that the term "referred to" is narrowly construed. It requires an explicit reference to the document itself or a direct allusion to its contents or creation, not merely a reference to the transaction or event that the document records. Avoid making assumptions about what constitutes a "referred to" document.
• Appellate Strategy for Procedural Orders: When appealing procedural decisions of an Assistant Registrar, be prepared to demonstrate that "substantial injustice" will be caused otherwise, as mandated by O 18 r 10 of the 2021 Rules. Mere disagreement with the AR's exercise of discretion or perceived inconsistency with general principles may not suffice.
• Case Management Flexibility: This case highlights the court's proactive and flexible approach to case management under the 2021 Rules, utilising case conferences and its inherent powers to ensure fair and expeditious resolution of disputes, even in areas not explicitly covered by specific rules.

Subsequent Treatment

As a recent decision of the High Court of Singapore (July 2023), Interactive Digital Finance Ltd and another v Credit Suisse AG and another [2023] SGHC 198 serves as an important clarification on the court's powers concerning document production under the Rules of Court 2021. It effectively codifies the principle that documents explicitly referred to or directly alluded to in pleadings are subject to early production, adapting the underlying rationale of the former "notice to produce" procedure to the new procedural framework. This decision builds upon and reinforces the interpretative guidance provided by SK Shipping Co Ltd v IOF Pte Ltd [2012] SGHCR 14 regarding the meaning of "referred to."

Given its recency, this case is likely to be applied by lower courts and serve as a guiding authority for practitioners navigating early document production requests under the 2021 Rules. It establishes a clear framework for when such requests can be made and the strict criteria for what constitutes a "referred to" document. While it is yet to be extensively tested or distinguished by subsequent appellate decisions, its clear articulation of the court's inherent powers and the application of the 2021 Rules Ideals suggests it will form a foundational precedent in this area of civil procedure.

Legislation Referenced

• Rules of Court (Cap 322, R 5, 2014 Rev Ed)
• Rules of Court 2021
• Rules of Court 2021, Order 1 Rule 2(3)(a)
• Rules of Court 2021, Order 2 Rule 9(1)
• Rules of Court 2021, Order 2 Rule 9(5)
• Rules of Court 2021, Order 2 Rule 9(8)
• Rules of Court 2021, Order 3 Rule 1(2)
• Rules of Court 2021, Order 3 Rule 2(2)
• Rules of Court 2021, Order 9 Rule 1(2)
• Rules of Court 2021, Order 9 Rule 2
• Rules of Court 2021, Order 9 Rule 9(3)
• Rules of Court 2021, Order 9 Rule 9(4)(k)
• Rules of Court 2021, Order 9 Rule 9(7)
• Rules of Court 2021, Order 11 Rule 2(1)
• Rules of Court 2021, Order 11 Rule 3(1)
• Rules of Court 2021, Order 11 Rule 4
• Rules of Court 2021, Order 11 Rule 5
• Rules of Court 2021, Order 11 Rule 8
• Rules of Court 2021, Order 11 Rule 9
• Rules of Court 2021, Order 18 Rule 10
• Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 24 Rule 10
• Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 24 Rule 11

Cases Cited

• SK Shipping Co Ltd v IOF Pte Ltd [2012] SGHCR 14: Cited for the principle that reference in pleadings is a form of disclosure, entitling the requesting party to production, and for the interpretation of "referred to" as requiring explicit reference or direct allusion, not mere inference.

Source Documents

• Archived Copy (PDF) — Litt Law CDN
• eLitigation