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(s): Suit 839/2006; RA 224/2009
- Procedural History: Appeal from Assistant Registrar Lim Jian Yi’s decision on a strike-out application concerning “without prejudice” privilege and related costs
- 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(s): Evidence; Privilege; Civil Procedure (strike-out; discovery-related pleadings; costs)
- Representing Counsel (Plaintiffs): Audrey Chiang and Calvin Lim (Rodyk & Davidson)
- Representing Counsel (Second Defendant): Foo Soon Yien and Daniel Tay (Bernard & Rada Law Corporation)
- Judgment Length: 3 pages; 1,469 words
- Cases Cited: Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR 42
- Outcome: Plaintiffs’ appeal dismissed with costs; plaintiffs indicated they 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 multiple members of the Lau family and their companies were embroiled in proceedings over properties and assets said to be held on trust. The evidential controversy focused on whether certain admissions allegedly made by the second defendant (“D2”) during meetings and discussions were protected by the “without prejudice” privilege, and if so, whether that privilege had been waived.
The High Court (Woo Bih Li J) dismissed the plaintiffs’ appeal against an Assistant Registrar’s decision. The Assistant Registrar had held that only the meeting of 30 November 2005 enjoyed “without prejudice” privilege and ordered that parts of the plaintiffs’ pleadings referring to that meeting be struck out. On appeal, the plaintiffs did not succeed in establishing waiver of privilege. The court also declined to interfere with the Assistant Registrar’s costs award.
What Were the Facts of This Case?
The dispute arose within a family-run corporate and asset-holding structure. The parties were members of the Lau family who were shareholders and directors of a fourth defendant company. The plaintiffs and certain defendants were described as four brothers (including the first and second plaintiffs and the first and third defendants), while D2 was their nephew. The litigation was not a narrow commercial dispute; it was rooted in allegations about how the family company’s properties and other assets were managed and whether assets held in the names of various family members and their companies were held on trust for the Lau family.
At the heart of the plaintiffs’ case was the contention that properties and assets held by the first to third defendants, their immediate family members, and related companies (including a fifth defendant) were held on trust for the wider Lau family. The defendants, including D2, contested these allegations. As is common in multi-party family asset disputes, the pleadings and documentary record became central to the litigation.
On 21 April 2009, D2 commenced an evidential challenge by filing Summons 1866 of 2009. The application sought to strike out parts of the plaintiffs’ pleadings, including particulars, on the basis that those particulars referred to alleged admissions made by D2 in circumstances where D2 was seeking to compromise or settle the plaintiffs’ claim against him. D2 argued that such communications were protected by the “without prejudice” privilege. The plaintiffs’ pleadings, according to D2, referred to more than ten documents and meetings in which admissions were allegedly made; D2 contended that many of those references were cloaked with privilege.
The summons was heard by Assistant Registrar Lim Jian Yi (“AR Lim”) on 8 May and 1 June 2009. On 2 June 2009, AR Lim decided that only one meeting—the meeting of 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 court also noted that the recording of that meeting was done without D2’s knowledge, and the same was presumably true for other meetings/discussions. Separately, AR Lim found that a telephone conversation on 30 November 2005 should have enjoyed the same privilege, but that D2 had waived the privilege for that conversation.
What Were the Key Legal Issues?
The appeal to the High Court had two main components. First, the plaintiffs challenged AR Lim’s decision regarding the meeting of 30 November 2005 and the transcript of that meeting. The plaintiffs argued, in substance, that the meeting was not protected by “without prejudice” privilege because it was not a genuine attempt to compromise or settle claims against D2. Alternatively, they argued that even if the privilege applied, it had been waived.
Second, the plaintiffs challenged the quantum of costs awarded by AR Lim. The plaintiffs contended that the costs award of $1,000 was manifestly low, given that D2 had lost most of the application below and succeeded only in respect of the minutes of the 30 November 2005 meeting. The plaintiffs also pointed to the relative simplicity of an oral application to amend pleadings in five places to ensure consistency.
Accordingly, the legal issues were: (1) whether the meeting of 30 November 2005 was properly characterised as a “without prejudice” communication; (2) whether the privilege was waived by D2 through subsequent conduct, including the use of the transcript in affidavits or during discovery arguments; and (3) whether the costs award should be disturbed on appeal.
How Did the Court Analyse the Issues?
On the first issue, the court approached the “without prejudice” characterisation by reviewing the transcript and the surrounding context. Both sides relied on selective excerpts to support their competing narratives: the plaintiffs emphasised parts of the transcript suggesting the meeting was not intended to compromise or settle claims against D2, while D2 emphasised parts supporting that it was indeed part of settlement discussions. After considering the transcript, Woo Bih Li J saw no reason to disturb AR Lim’s finding that the meeting enjoyed “without prejudice” privilege. This meant that the transcript was prima facie inadmissible unless waiver could be established.
The plaintiffs’ primary route on appeal therefore became waiver. Counsel for the plaintiffs, Ms Chiang, advanced two waiver arguments. The first was that the transcript of the 30 November 2005 meeting had been attached to an affidavit of the first plaintiff filed on 13 February 2009 in support of a discovery application relating to a property in Hong Kong and other documents. Ms Chiang argued that D2 did not file an affidavit in response to that affidavit, and that D2’s counsel did not object when the transcript was referred to during the discovery application hearing on 17 February 2009. The plaintiffs thus suggested that D2’s conduct amounted to waiver.
The court rejected this submission. Woo Bih Li J held that the failure to file an affidavit in response was not, in the circumstances, a waiver. The reasoning was partly procedural: D2 was not supposed to file an affidavit in response, and the omission to ask for leave to file such an affidavit could not fairly be treated as waiver. In other words, the court was unwilling to infer waiver from conduct that was not legally meaningful in the procedural context. This reflects a cautious approach to waiver, consistent with the protective rationale of privilege.
The second waiver argument concerned what happened during the discovery application hearing. Ms Chiang submitted that the transcript had been referred to in arguments without objection by D2’s counsel, Ms Foo. The court examined the notes of argument from that hearing. It observed that Ms Chiang had alluded to a “notice of objection” filed by D2 immediately after referring to the minutes. The actual document filed by D2 was a notice of non-admission filed on 14 August 2008. Ms Chiang suggested before the High Court that the notice of non-admission was really to contest authenticity rather than to contest admission on the basis that the meeting was to compromise or settle claims. However, the court found it unnecessary to decide whether that distinction was valid, because during the discovery arguments Ms Chiang had referred to it as a notice of objection, not as a notice of non-admission.
Ms Foo’s position was that because Ms Chiang had already mentioned the notice of objection, it was unnecessary for her to object again. Woo Bih Li J did not fully accept this as a basis for waiver. The court noted that it appeared the court in the discovery application had not ruled expressly on the objection/non-admission issue; presumably, it was not necessary to do so. The High Court therefore focused on the evidential threshold for waiver: waiver must be clearly established, and the party relying on waiver bears the burden.
Importantly, Woo Bih Li J articulated the standard of proof in civil cases. While the court accepted that the standard is on a balance of probabilities, it still required clear evidence of waiver. On the facts, the court found that the evidence did not clearly establish waiver. The court also added a further practical indicator: Ms Chiang did not raise the waiver argument at the hearing before AR Lim. Instead, the waiver argument was raised only during the appeal before the High Court. This suggested that even Ms Chiang initially did not think there was waiver on 17 February 2009, and later advanced the argument when appealing. While not determinative on its own, this supported the court’s conclusion that waiver was not established.
The court also addressed the plaintiffs’ reliance on Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR 42. Ms Chiang argued that Tentat supported the plaintiffs’ waiver position. Woo Bih Li J held that Tentat did not assist because the facts were different. Although the judgment extract does not reproduce the detailed holdings in Tentat, the High Court’s approach indicates that waiver analysis is highly fact-sensitive, and that authority cannot be applied mechanically without matching the relevant circumstances.
Turning to costs, Woo Bih Li J considered the plaintiffs’ complaint that the $1,000 award was manifestly low. The plaintiffs emphasised that D2 had failed on most of the application below and succeeded only in respect of the minutes of the 30 November 2005 meeting. They also argued that the oral application to amend pleadings in five places was not time-consuming. D2’s counsel, Ms Foo, responded that significant time was spent identifying references in the pleadings to the 30 November 2005 meeting and pointing out inconsistencies.
The High Court concluded that there was no sufficient reason to disturb AR Lim’s costs award. This reflects the appellate restraint typically exercised in costs matters, particularly where the Assistant Registrar has already assessed the effort required and the proportionality of the work done. The High Court did not find that the costs award was plainly wrong or unjustified.
What Was the Outcome?
The High Court dismissed the plaintiffs’ appeal with costs. The practical effect of the decision was that the meeting of 30 November 2005 remained protected by “without prejudice” privilege, and the transcript was not admissible. Consequently, the plaintiffs’ pleadings that referred to that meeting remained struck out, preserving the evidential exclusion ordered by AR Lim.
On costs, the High Court upheld the Assistant Registrar’s award of $1,000. The plaintiffs indicated that they appealed to the Court of Appeal, but as of the High Court decision, the strike-out and costs position stood.
Why Does This Case Matter?
Lau Chin Eng v Lau Chin Hu is a useful authority for practitioners dealing with “without prejudice” privilege in Singapore civil litigation, particularly where the dispute concerns whether privilege applies and, if it does, whether it has been waived. The case underscores that waiver is not lightly inferred. Even where privileged material is referenced in affidavits or during hearings, the court will scrutinise whether the conduct amounts to a clear and intentional relinquishment of privilege.
The decision also illustrates the evidential and procedural nuance involved in waiver arguments. The court refused to treat the failure to file an affidavit response as waiver where the procedural rules did not require or permit such a response. It also examined the content and context of what was said during discovery arguments, including the distinction between a notice of objection and a notice of non-admission. For litigators, this highlights the importance of precise documentation and clear objections when privileged material is inadvertently or strategically mentioned.
From a strategic perspective, the case serves as a cautionary tale: if a party intends to rely on privilege, it should ensure that objections are explicit and contemporaneous, rather than assumed to be “covered” by a reference to another document. Conversely, if a party seeks to argue waiver, it must marshal clear evidence of conduct that is genuinely inconsistent with maintaining privilege. Finally, the court’s approach to costs demonstrates that appellate courts will generally not interfere absent a sufficient basis, reinforcing the need to present concrete reasons why a costs assessment is wrong rather than merely low.
Legislation Referenced
- Not specified 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.