Case Details
- Citation: [2009] SGHC 225
- Case Title: Lau Chin Eng and Another v Lau Chin Hu and Others
- Court: High Court of the Republic of Singapore
- Date of Decision: 01 October 2009
- Coram: Woo Bih Li J
- Case Number: Suit 839/2006, RA 224/2009
- Tribunal Level: High Court (appeal from Assistant Registrar)
- Plaintiff/Applicant: Lau Chin Eng and Another
- Defendant/Respondent: Lau Chin Hu and Others
- Parties (as described): Lau Chin Eng; Lau Chin What — Lau Chin Hu; Lew Kiat Beng; Law Chin Chai; Hiap Seng & Co Pte Ltd; Winstant Holding Pte Ltd
- Second Defendant (D2): Lau Chin What — Lau Chin Hu (referred to as “D2” in the judgment)
- Underlying Dispute: Family-run corporate and property dispute; allegations that assets are held on trust for members of the Lau family
- Procedural History: (i) D2 filed Summons 1866 of 2009 to strike out parts of plaintiffs’ pleadings; (ii) Assistant Registrar Lim Jian Yi heard the matter on 8 May and 1 June 2009 and decided on 2 June 2009; (iii) plaintiffs appealed to the High Court (RA 224/2009)
- Key Application Below: Strike out of pleadings referring to alleged “without prejudice” admissions
- Hearing Dates (below): 8 May 2009 and 1 June 2009
- Date of Assistant Registrar’s Decision: 2 June 2009
- Appeal Hearing: 01 October 2009 (decision date)
- Counsel for Plaintiffs: Audrey Chiang and Calvin Lim (Rodyk & Davidson)
- Counsel for Second Defendant: Foo Soon Yien and Daniel Tay (Bernard & Rada Law Corporation)
- Legal Area(s): Evidence – Privilege (without prejudice); Civil Procedure – pleadings and costs
- Statutes Referenced: Not specified in the provided extract
- Cases Cited: Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR 42; (also the case itself as reported)
- Judgment Length: 3 pages, 1,469 words
- Disposition: Appeal dismissed with costs; plaintiffs’ appeal to Court of Appeal noted
Summary
This High Court decision concerns the evidential protection afforded to communications made in the context of settlement negotiations, commonly referred to as the “without prejudice” privilege. The dispute arose within a closely related family and corporate setting, where multiple family members and companies were alleged to hold assets on trust for other members of the Lau family. The plaintiffs sought to rely on transcripts and minutes of meetings involving the second defendant (“D2”), while D2 applied to strike out parts of the plaintiffs’ pleadings that referred to alleged admissions made during settlement-related discussions.
At first instance, an Assistant Registrar held that only one meeting (30 November 2005) attracted the “without prejudice” privilege, and therefore ordered that references to that meeting be struck out. The plaintiffs appealed, arguing that the meeting transcript should be admissible either because it was not genuinely intended to compromise or settle claims, or because D2 had waived the privilege. The High Court (Woo Bih Li J) upheld the Assistant Registrar’s approach on the privilege question and found that the plaintiffs failed to establish clear waiver. The court also declined to interfere with the costs awarded below, dismissing the appeal with costs.
What Were the Facts of This Case?
The litigation was a family dispute involving members of the Lau family and their interests in a family-run company (the “fourth defendant”). The parties were shareholders and directors of the company, and the dispute extended beyond the company’s assets to properties and other assets held in the names of various family members and their companies, including the fifth defendant. The plaintiffs’ case was that certain properties and assets were held on trust for members of the Lau family. The defendants, including D2, resisted these claims.
The procedural trigger for the High Court appeal was D2’s application to strike out portions of the plaintiffs’ pleadings. On 21 April 2009, D2 filed Summons 1866 of 2009 to strike out parts of the plaintiffs’ pleadings (including particulars) that referred to alleged admissions made by D2. D2’s complaint was that these admissions were made in circumstances where D2 was seeking to compromise or settle the plaintiffs’ claim against him, and therefore fell within the “without prejudice” privilege. D2 asserted that more than ten documents and meetings were cloaked with the privilege.
The application was heard by Assistant Registrar Lim Jian Yi on 8 May and 1 June 2009. On 2 June 2009, the Assistant Registrar concluded that only one meeting—held on 30 November 2005—enjoyed the “without prejudice” privilege. As a result, the transcript of that meeting was not admissible, and the plaintiffs’ pleadings that referred to that meeting were ordered to be struck out. The Assistant Registrar also addressed a telephone conversation on 30 November 2005. Although he found that the conversation should have enjoyed the same privilege, he held that D2 had waived the privilege for that conversation.
The plaintiffs appealed against the Assistant Registrar’s decision. Importantly, there was no cross-appeal by D2. The appeal had two principal components: first, whether the 30 November 2005 meeting transcript should have been excluded under the without prejudice privilege; and second, whether the quantum of costs awarded by the Assistant Registrar should be increased. In relation to the first component, both sides relied on selective portions of the transcript to support their competing characterisations of the meeting—either as a genuine settlement discussion or as something else.
What Were the Key Legal Issues?
The first legal issue concerned the scope and application of the “without prejudice” privilege to the meeting of 30 November 2005. The court had to determine whether the meeting was held in circumstances that engaged the privilege—namely, whether it was part of an attempt to compromise or settle the plaintiffs’ claims against D2. This required an assessment of the content and context of the meeting transcript, not merely the labels attached to it.
The second legal issue concerned waiver. Even if the meeting transcript fell within the without prejudice privilege, the plaintiffs argued that D2 had waived the privilege. Waiver can arise where the protected material is deployed in a manner inconsistent with maintaining confidentiality, such as by referring to it in court without objection or by otherwise treating it as admissible. The court therefore had to evaluate whether the plaintiffs’ evidence met the threshold for establishing waiver on the facts.
The third issue was procedural and remedial: whether the Assistant Registrar’s costs award of $1,000 to the plaintiffs should be disturbed. This required the High Court to consider whether the costs were manifestly too low or whether the Assistant Registrar’s assessment was within the proper exercise of discretion.
How Did the Court Analyse the Issues?
On the substantive privilege question, Woo Bih Li J approached the matter by reviewing the transcript and considering the competing submissions. The plaintiffs’ counsel and D2’s position both depended on selective extracts from the transcript to argue that the meeting either was or was not intended to compromise or settle claims. After considering the transcript, the judge found “no reason to disturb” the Assistant Registrar’s finding that the meeting enjoyed the without prejudice privilege. This indicates that the High Court treated the Assistant Registrar’s characterisation as factually grounded and not shown to be erroneous.
The plaintiffs’ main attempt to overcome the privilege then shifted to waiver. Counsel for the plaintiffs, Ms Chiang, advanced two waiver arguments. First, she relied on the fact that the transcript of the 30 November 2005 meeting was attached to an affidavit of the first plaintiff filed on 13 February 2009 in support of a discovery application for documents relating to a property in Hong Kong and other documents. Ms Chiang argued that D2 did not file an affidavit in response and that D2’s counsel did not object when the transcript was referred to during the discovery application hearing on 17 February 2009.
The judge rejected the first waiver argument. He reasoned that D2 was not supposed to file an affidavit in response to that particular affidavit, and therefore the omission to file one could not amount to waiver. The judge also treated the procedural context as important: waiver should not be inferred from conduct that is explained by the parties’ procedural obligations and the structure of the application. In other words, the court required clear evidence of waiver rather than relying on ambiguous inaction.
The second waiver argument concerned what happened during the discovery application hearing on 17 February 2009. Ms Chiang submitted that D2’s counsel did not object when the transcript was referred to. The judge examined the notes of argument and observed that Ms Chiang had referred to a “notice of objection” filed by D2 immediately after referring to the minutes. The judge reproduced the relevant passage from the notes of argument, which showed that Ms Chiang’s reference to the minutes was followed by a mention of D2’s reply and the existence of a notice of objection. This suggested that the issue of admissibility or contestation had already been flagged.
Ms Chiang attempted to characterise the notice as a “notice of non-admission” rather than an objection to the use of the minutes on the ground of without prejudice privilege. The judge did not need to decide whether the distinction was valid, because even if it were valid, Ms Chiang had referred to it as a “notice of objection” during the arguments. The court therefore treated the contemporaneous description in the notes of argument as significant. The judge also considered D2’s counsel’s submission that, because Ms Chiang had already mentioned the notice of objection, it was unnecessary for counsel to object again.
Crucially, the judge concluded that the evidence did not clearly establish waiver. While he accepted that the standard of proof on waiver in civil cases is on a balance of probabilities, he still required “clear evidence of waiver.” He also noted that Ms Chiang had not raised the waiver argument before the Assistant Registrar; it was raised only on appeal. This timing supported the judge’s view that the plaintiffs themselves did not initially consider waiver to be a live issue at the earlier stage. The judge’s reasoning reflects a cautious approach: waiver of privilege is not lightly inferred, and courts will look for unambiguous conduct inconsistent with maintaining the privilege.
In addressing the plaintiffs’ reliance on Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR 42, the judge held that the case did not assist the plaintiffs because the facts were different. Although the extract does not elaborate on the specific factual distinctions, the court’s treatment underscores that waiver analysis is highly fact-sensitive and depends on the precise procedural and evidential circumstances in which privilege is invoked or treated as waived.
On costs, Woo Bih Li J considered whether there was sufficient reason to disturb the Assistant Registrar’s award. Ms Chiang argued that $1,000 was manifestly low because D2 had lost most of the application below and succeeded only in respect of the minutes of the 30 November 2005 meeting. She also submitted that the plaintiffs’ amendment application involved only a short oral application to amend pleadings in five places. D2’s counsel, Ms Foo, responded that substantial time was spent identifying references to the meeting in the pleadings and pointing out inconsistencies.
The judge found no sufficient reason to interfere with the costs amount. This indicates that the High Court treated the Assistant Registrar’s costs assessment as within the proper discretion, and it did not accept that the plaintiffs had demonstrated a clear error or manifest inadequacy.
What Was the Outcome?
The High Court dismissed the plaintiffs’ appeal. The court upheld the Assistant Registrar’s finding that the meeting of 30 November 2005 was protected by the without prejudice privilege and that the transcript was not admissible. The court also held that the plaintiffs failed to establish waiver on the evidence presented.
In addition, the High Court declined to disturb the costs awarded below. The appeal was dismissed with costs, and the plaintiffs were noted to have appealed further to the Court of Appeal.
Why Does This Case Matter?
This decision is significant for practitioners because it illustrates the evidential discipline surrounding without prejudice communications in Singapore civil litigation. The court reaffirmed that the privilege’s application depends on the context and substance of the communication, and that appellate interference with a first instance factual characterisation will not occur absent a clear basis. For parties seeking to exclude or strike out pleadings referencing settlement-related admissions, the case supports a robust approach to protecting settlement communications.
More importantly, the case provides practical guidance on waiver. Woo Bih Li J’s insistence on “clear evidence of waiver” demonstrates that waiver will not be inferred from procedural omissions or from references that are accompanied by contestation. The judge’s analysis of the discovery application hearing—particularly the significance of contemporaneous notes of argument and the mention of a notice of objection—shows how courts will scrutinise the record to determine whether privilege was actually treated as abandoned.
For lawyers, the decision also highlights the importance of raising waiver arguments at the earliest appropriate stage. The judge’s observation that the waiver argument was not raised before the Assistant Registrar, but only on appeal, suggests that courts may view late-shifted arguments skeptically, especially where the evidence is not unequivocal. Finally, the costs discussion reflects that costs awards by assistant registrars will generally be respected unless there is a compelling reason to interfere.
Legislation Referenced
- Not specified in the provided judgment extract.
Cases Cited
- Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR 42
Source Documents
This article analyses [2009] SGHC 225 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.