Case Details
- Citation: [2009] SGHC 225
- Title: Lau Chin Eng and Another v Lau Chin Hu and Others
- Court: High Court of the Republic of Singapore
- Decision Date: 01 October 2009
- Case Number: Suit 839/2006, RA 224/2009
- Coram: Woo Bih Li J
- Tribunal/Court Below: Assistant Registrar Lim Jian Yi (“AR Lim”)
- 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
- Key Individual (as described): The nephew and second defendant (“D2”)
- Legal Area: Evidence — Privilege-Waiver
- Procedural History: D2 filed Summons 1866 of 2009 to strike out parts of plaintiffs’ pleadings referring to alleged admissions made in meetings/communications said to be protected by “without prejudice” privilege; AR Lim allowed only the meeting of 30 November 2005; plaintiffs appealed; no cross-appeal by D2.
- Issues on Appeal: (1) Whether the 30 November 2005 meeting transcript was protected by “without prejudice” privilege and/or whether privilege was waived; (2) whether AR Lim’s costs award was manifestly low.
- Counsel for Plaintiffs: Audrey Chiang and Calvin Lim (Rodyk & Davidson)
- Counsel for Second Defendant: Foo Soon Yien and Daniel Tay (Bernard & Rada Law Corporation)
- Judgment Length: 3 pages, 1,445 words
- Subsequent Step: Plaintiffs appealed to the Court of Appeal.
Summary
Lau Chin Eng and Another v Lau Chin Hu and Others [2009] SGHC 225 concerned a family dispute in which the parties, all shareholders and directors of a family-run company, litigated over the company’s properties and assets and whether certain assets held in the names of other family members and companies were held on trust for the wider Lau family. The evidential battleground was the admissibility of a transcript of a meeting held on 30 November 2005, which the second defendant (“D2”) argued contained admissions made in the course of settlement discussions and therefore attracted “without prejudice” privilege.
The High Court (Woo Bih Li J) dismissed the plaintiffs’ appeal against AR Lim’s decision. The court agreed that the 30 November 2005 meeting enjoyed “without prejudice” privilege and found that the plaintiffs had not established waiver. The court also declined to interfere with AR Lim’s costs award, holding that there was no sufficient reason to disturb the amount of costs granted.
What Were the Facts of This Case?
The action arose from a dispute among members of the Lau family, particularly between four brothers—identified in the judgment as the first and second plaintiffs and the first and third defendants—and their nephew, D2. All parties were shareholders and directors of a fourth defendant, described as a family-run company. The litigation’s underlying substance was not merely corporate governance; it was about ownership and beneficial entitlement to the company’s properties and other assets.
According to the plaintiffs, the fourth defendant’s properties and assets, as well as certain properties and assets held in the names of the first to third defendants, their immediate family members, and related companies (including a fifth defendant), were held on trust for members of the Lau family. The plaintiffs’ case therefore required the court to consider whether the defendants’ conduct and arrangements amounted to trust obligations, and whether admissions made during internal discussions could be used as evidence.
In April 2009, D2 initiated an evidential challenge by filing Summons 1866 of 2009 to strike out parts of the plaintiffs’ pleadings (including particulars) that referred to alleged admissions made by D2. D2’s position was that those admissions were made in circumstances where he was seeking to compromise or settle the plaintiffs’ claim against him, and thus were protected by “without prejudice” privilege. D2 complained that more than ten documents and meetings in which such admissions were allegedly made were improperly treated as admissible.
The summons was heard by AR Lim on 8 May and 1 June 2009. On 2 June 2009, AR Lim held that only one meeting—the meeting of 30 November 2005—enjoyed “without prejudice” privilege. As a consequence, the transcript of that meeting was not admissible, and the plaintiffs’ pleadings that referred to that meeting were ordered to be struck out. AR Lim also dealt with a telephone conversation on 30 November 2005, concluding that it should have enjoyed the privilege but that D2 had waived it. The plaintiffs then appealed AR Lim’s decision, focusing on the 30 November 2005 meeting transcript and, separately, the quantum of costs.
What Were the Key Legal Issues?
The appeal raised two main legal issues. First, the court had to determine whether the transcript of the meeting of 30 November 2005 was protected by “without prejudice” privilege, and if so, whether that privilege had been waived. The plaintiffs did not merely argue that the meeting was not a settlement discussion; they also advanced waiver arguments based on subsequent conduct.
Second, the court had to consider whether AR Lim’s costs award was appropriate. The plaintiffs contended that the $1,000 granted below was manifestly low because D2 had lost most of the application and succeeded only in respect of the minutes of the 30 November 2005 meeting. The plaintiffs also argued that an oral application to amend pleadings in five places did not take long. D2’s position was that substantial time was spent identifying references in the pleadings and pointing out inconsistencies.
Although the privilege issue was the core evidential question, the costs issue mattered because it affected the practical consequences of the privilege ruling and reflected the court’s assessment of the work done and the extent of success below.
How Did the Court Analyse the Issues?
On the first part of the appeal, Woo Bih Li J approached the matter by reviewing the transcript and the surrounding context. Both parties had referred to selective parts of the transcript to support their competing narratives: the plaintiffs argued that the meeting was not intended to compromise or settle claims against D2, while D2 argued that it was. After considering the transcript, the judge saw no reason to disturb AR Lim’s finding that the meeting enjoyed “without prejudice” privilege. This indicates that the court treated the privilege question as one grounded in the substance and purpose of the communication, not merely the labels attached to it.
The plaintiffs’ appeal therefore turned on waiver. Waiver is a critical concept in privilege law: even if a communication is initially protected, privilege can be lost if the protected material is deployed in a way inconsistent with maintaining confidentiality. The plaintiffs’ counsel, Ms Chiang, advanced two waiver arguments. First, she submitted that the transcript had been 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 matters. D2 did not file an affidavit in response. Second, Ms Chiang argued that during the discovery application hearing on 17 February 2009, D2’s counsel referred to the transcript without objection.
On the first waiver argument, the judge rejected it. He held that D2’s failure to file an affidavit in response to the plaintiffs’ affidavit did not amount to waiver. The reasoning was partly procedural: D2 was not supposed to file an affidavit in response, and the omission to seek leave to file one was not meaningful in the privilege context. This reflects a careful approach to waiver, where the court requires conduct that clearly and unambiguously indicates an intention to abandon the privilege.
On the second waiver argument, the judge examined the notes of argument from the hearing on 17 February 2009. The relevant passage showed that counsel for the plaintiffs referred to the minutes and immediately thereafter mentioned a “notice of objection” filed by D2 to the document. The judge noted that the actual notice filed was a “notice of non-admission” dated 14 August 2008. Ms Chiang suggested before the High Court that the notice was really intended to contest authenticity rather than admission on the basis that the meeting was to compromise or settle claims. However, Woo Bih Li J did not need to decide whether that distinction was valid because, even assuming it could be relevant, Ms Chiang had referred to the notice as a notice of objection rather than as a notice of non-admission during the arguments.
Importantly, the judge also addressed the evidential significance of what D2’s counsel did (or did not do) in response. Ms Foo submitted that because Ms Chiang had already mentioned a notice of objection, it was unnecessary for her to object again. Woo Bih Li J observed that the court had neither ruled in favour of nor against the objection in the discovery application, implying that the procedural context did not provide a clear adjudication on admissibility. The judge further remarked that, ideally, Ms Foo should have expressly objected rather than assume that the plaintiffs’ reference to a notice of objection was sufficient. This is a practical lesson for litigators: privilege disputes are fact-sensitive, and counsel should make clear objections on the record.
Ultimately, the judge concluded that waiver was not clearly established. He emphasised that while the standard of proof for waiver in civil cases is on a balance of probabilities, the evidence must still be clear. In his view, the plaintiffs’ evidence did not meet that threshold. He also noted that Ms Chiang did not raise the waiver argument before AR Lim; it was raised only on appeal. This timing suggested that the plaintiffs themselves did not initially think there had been waiver, and the judge treated that as a further indication that the waiver case was not strong.
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 it did not assist because the facts were different. While the judgment extract does not elaborate on Tentat’s holding, the key takeaway is that waiver analysis depends heavily on the specific litigation conduct and procedural posture. Counsel cannot assume that a general principle from another case will apply without matching factual circumstances.
On the costs issue, Woo Bih Li J considered the parties’ competing submissions. The plaintiffs argued that $1,000 was manifestly low given that D2 succeeded only on the transcript of the 30 November 2005 meeting. D2 countered that significant time was spent identifying references to the meeting in the pleadings and pointing out inconsistencies. The judge found no sufficient reason to disturb AR Lim’s costs decision. This indicates that appellate review of costs awards is generally deferential unless there is a clear error or an identifiable misapprehension of principle.
What Was the Outcome?
The High Court dismissed the plaintiffs’ appeal with costs. The court upheld AR Lim’s decision that the meeting of 30 November 2005 enjoyed “without prejudice” privilege and that the transcript was not admissible. It also rejected the plaintiffs’ waiver arguments, finding that the evidence did not clearly establish waiver.
In addition, the court declined to interfere with AR Lim’s quantum of costs. The practical effect was that the plaintiffs’ pleadings referencing the privileged meeting were struck out, and the costs consequences of the privilege ruling remained as determined below.
Why Does This Case Matter?
Lau Chin Eng v Lau Chin Hu is a useful authority for practitioners dealing with “without prejudice” privilege and, in particular, the evidential burden of proving waiver. The decision underscores that waiver is not lightly inferred. Even where privileged material is mentioned or referenced in later proceedings, the court will scrutinise whether the conduct is sufficiently clear and intentional to demonstrate abandonment of privilege.
The judgment also highlights the importance of procedural context. The court rejected a waiver argument based on the absence of a responsive affidavit where the procedural rules did not require or permit such a filing. This reinforces that waiver analysis should not be conducted in a vacuum; it must be anchored in what parties were expected to do in the relevant procedural setting.
For litigators, the case provides a practical courtroom lesson: if counsel intends to preserve privilege, objections should be expressly stated on the record rather than assumed from another party’s references to notices or documents. Woo Bih Li J’s comment that it would be “ideal” for counsel to expressly object reflects a broader principle of litigation hygiene—clear steps reduce ambiguity and limit the risk of an adverse finding on waiver.
Legislation Referenced
- No specific statutes were referenced in the provided judgment extract.
Cases Cited
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.