Case Details
- Citation: [2015] SGHC 228
- Title: Motorola Solutions Credit Co LLC v Kemal Uzan and others
- Court: High Court of the Republic of Singapore
- Date of Decision: 03 September 2015
- Judge: Chua Lee Ming JC
- Case Number: Suit No 1046 of 2013
- Related Application: HC/Summons No 2356 of 2015
- Tribunal/Coram: High Court; Coram: Chua Lee Ming JC
- Plaintiff/Applicant: Motorola Solutions Credit Co LLC
- Defendants/Respondents: Kemal Uzan and others
- Applicants (for the privilege declaration): Second to fifth defendants and seventh defendants
- Legal Area: Civil Procedure — Legal Privilege
- Sub-issue: Common interest privilege; waiver of privilege
- Key Relief Sought by Applicants: Declaration that four email chains were protected by common interest privilege; orders restraining use of the emails; delivery up or destruction of the emails
- Context of the Dispute: Enforcement of US and UK judgments in Singapore; related proceedings in Hong Kong
- Counsel for Plaintiff: Chan Daniel and Chua Sui Tong (WongPartnership LLP)
- Counsel for Second to Fifth and Seventh Defendants: Daniel Chia and Stephany Aw Shu Hui (Morgan Lewis Stamford LLC)
- Parties (as listed): MOTOROLA SOLUTIONS CREDIT COMPANY LLC; Kemal Uzan; Cem Cengiz Uzan; Murat Hakan Uzan; Melahat Uzan; Aysegul Akay; Antonio Luna Betancourt; Libananco Holdings Co Limited; Colin Alan Cook; Haj Capital Pte Ltd; Levant One Investments Pte Ltd; Kronos Investments & Trading Singapore Pte Ltd
- Judgment Length: 5 pages; 2,866 words
- Statutes/Authorities Referenced (as reflected in metadata): Applicants that the Emails were obtained pursuant to court orders granted in the HK Act; Applicants to maintain privilege over the Emails in view of the waivers in the HK Act; Emails from Phyllis Kwong in the HK Act; Emails in the HK Act; Emails pursuant to the order of court in the HK Act
- Cases Cited (as reflected in metadata): [2015] SGHC 228 (self-citation in metadata); plus authorities expressly mentioned in the extract (Derby & Co Ltd v Weldon; Buttes Gas; The Oriental Insurance Co Ltd v Reliance National Asia Re Pte Ltd; Gelatissimo Ventures (S) Pte Ltd v Singapore Flyer Pte Ltd; Winterthur; Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd; Bankim Thanki QC, The Law of Privilege; Colin Passmore, Privilege; The TAG Group Litigation Winterthur; Farrow; Patrick; Attorney-General for the Northern Territory v Maurice)
Summary
Motorola Solutions Credit Co LLC v Kemal Uzan and others concerned whether privileged emails obtained from a related Hong Kong proceeding could be used in Singapore litigation. The second to fifth and seventh defendants (the “Applicants”) sought a declaration that four email chains in the plaintiff’s possession were protected by common interest privilege. They also sought to restrain the plaintiff from using the emails in the Singapore action and to require delivery up or destruction of the emails.
The High Court (Chua Lee Ming JC) held that legal privilege had not been waived. The court found that the Applicants’ conduct did not amount to an implied waiver. Further, the court addressed whether a waiver by one member of a common interest group (Phyllis Kwong, an alleged nominee in the Hong Kong action) could operate as a waiver by other common interest holders. The court concluded that the Applicants were entitled to maintain privilege over the emails in the circumstances.
What Were the Facts of This Case?
The plaintiff, Motorola Solutions Credit Co LLC, had obtained substantial judgments in the United States against the first to sixth defendants, and later against the seventh defendant. The US judgments included a 2003 judgment for US$2,132,896,905.66, a 2006 judgment for an additional US$1 billion as punitive damages, and a 2010 judgment against the seventh defendant on the basis that it was the alter ego of the first to sixth defendants. These were collectively referred to as the “US Judgments”.
In parallel, the English High Court entered judgments against the second and fifth defendants in 2004 and against the first and third defendants in 2010. Those English judgments were entered based on the US 2003 judgment. These were collectively referred to as the “UK Judgments”. The plaintiff’s broader strategy was to enforce these US and UK judgments in Singapore by pursuing assets allegedly held by other defendants (the eighth to eleventh defendants) as agents or nominees for the judgment debtors.
To support enforcement, the plaintiff also commenced proceedings in Hong Kong (the “HK Action”) against the first to seventh defendants and alleged nominees in Hong Kong. One such alleged nominee was Phyllis Kwong (“Phyllis Kwong”). In the HK Action, the plaintiff obtained the relevant emails (“the Emails”) from Phyllis Kwong pursuant to discovery orders made by the Hong Kong High Court. Importantly, only the alleged nominees sued in the HK Action were given the opportunity to object to disclosure of documents produced under the discovery orders, and no objection was made to the disclosure of the Emails.
The Emails were exchanged among various parties, including Mr Ali Cenk Turkkan (a director of the seventh defendant), the second defendant, Phyllis Kwong, solicitors for the Applicants in Singapore, Hong Kong and France, and the then Singapore solicitors for the eighth to tenth defendants. The plaintiff relied on the Emails in Singapore by exhibiting them in a supporting affidavit (the 13th Affidavit) for an application for specific discovery against the Applicants and another defendant. The Applicants then brought the present application seeking declarations and protective orders relating to privilege.
What Were the Key Legal Issues?
The first legal issue was whether the Applicants waived legal privilege over the Emails. The plaintiff’s position was that privilege had been waived, and the court therefore had to determine whether waiver occurred either implicitly by the Applicants’ conduct or as a result of waiver by Phyllis Kwong in the HK Action.
On the conduct-based waiver question, the court focused on the Applicants’ response to the plaintiff’s disclosure and use of the Emails in Singapore. The plaintiff had included the Emails in a List of Documents filed on 22 January 2015. The Applicants did not inspect the documents in that list; instead, they requested copies and received them on 2 March 2015. The plaintiff later filed the 13th Affidavit on 15 April 2015, referring to and exhibiting the Emails. The Applicants objected by letter on 29 April 2015 and reserved their rights, and they then filed the present application on 15 May 2015.
The second legal issue concerned common interest privilege and the effect of waiver by one common interest holder. It was common ground that the Emails were protected by common interest privilege. The court therefore had to decide whether a waiver of privilege by Phyllis Kwong could amount to waiver by the other common interest holders, including the Applicants, even though those Applicants had not themselves waived privilege.
How Did the Court Analyse the Issues?
On the conduct-based waiver issue, the court began by accepting that the Emails were privileged communications and that the Applicants were entitled to assert legal privilege unless they had waived it. The plaintiff relied on the English decision in Derby & Co Ltd and others v Weldon and others (No 10) [1991] 1 WLR 660, where the court held that defendants could assume privilege had been waived when privileged documents were included in trial bundles and the defendants had no reason to suppose a mistake had occurred.
However, Chua Lee Ming JC distinguished Derby on the facts. In Derby, the privileged documents were erroneously included in trial bundles, and the court’s reasoning was tied to the defendants’ ability to assume that the plaintiff intended to rely on the documents. In the present case, the Emails were included in the plaintiff’s List of Documents, but the plaintiff’s reliance on waiver was essentially based on the Applicants’ silence between the filing of the list (22 January 2015) and the Applicants’ objection (29 April 2015). The court held that these facts did not justify the plaintiff making any assumption that the Applicants had waived privilege.
The court emphasised that the Applicants received copies of the Emails only on 2 March 2015, and that the Emails were provided alongside numerous other documents. It was therefore expected that the Applicants and their lawyers would need time to review the documents. Once the Applicants saw the Emails in the 13th Affidavit, they objected promptly on 29 April 2015. The court characterised the delay as not unreasonable and concluded that the plaintiff’s waiver argument based on conduct could not succeed.
The court also considered the procedural timing and the risk of privilege being lost through admission into evidence. The Applicants had acted promptly in seeking to have the privilege issue heard before the hearing of the plaintiff’s specific discovery application. The court noted that if the affidavit containing the Emails were admitted in evidence, privilege would be lost. The court relied on Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42 at [40]–[42] to explain that affidavits filed in support of applications are preparatory and not yet admitted in evidence until the application is heard. This reinforced the conclusion that the Applicants had not waived privilege by conduct.
Having rejected conduct-based waiver, the court turned to waiver within a common interest privilege framework. The court explained the doctrine of common interest privilege: it allows privileged materials to be shared with others who have a common interest in the subject matter without loss of privilege. The court cited authorities including Buttes Gas and Oil Co and another v Hammer and another (No 3) [1981] 1 QB 223 and the Singapore acceptance of the concept in The Oriental Insurance Co Ltd v Reliance National Asia Re Pte Ltd [2009] 2 SLR(R) 385.
Crucially, the court observed that sharing under common interest privilege does not amount to waiver except as between the provider and recipients. Each recipient can assert privilege against a third party. The key question, however, was whether waiver by one member of the common interest group could bind the others. The court drew an analogy with joint interest privilege, where waiver by one joint interest holder does not waive privilege for the other without agreement. It referred to Gelatissimo Ventures (S) Pte Ltd and others v Singapore Flyer Pte Ltd [2010] 1 SLR 833 and to Winterthur (as a comparative authority) for the proposition that waiver by one does not automatically extend to others in joint interest contexts.
For common interest privilege, the court acknowledged that the law was less clear. It canvassed differing approaches in England and Australia. In England, it was suggested that a common interest holder cannot waive privilege for other common interest holders without their agreement or authority, though the court noted that the reasoning in the cited English authorities was not fully developed and included dicta. In Australia, the approach was fairness-based: if one common interest holder has waived privilege, other holders may not be able to assert privilege if it would be unfair to do so. The court referred to Farrow Mortgage Services Pty Ltd (In Liq) v Webb and others and Patrick v Capital Finance Corporation (Australasia) Pty Ltd, and to the underlying fairness rationale discussed in Attorney-General for the Northern Territory v Maurice and others.
Although the extract provided is truncated before the court’s final articulation of its conclusion on this point, the court’s overall holding was that privilege had not been waived. The reasoning, as reflected in the decision’s structure and the court’s earlier findings, proceeded from the foundational principle that common interest privilege is designed to permit sharing without loss of privilege for each recipient. The court’s approach therefore protected the Applicants’ ability to maintain privilege notwithstanding Phyllis Kwong’s position in the HK Action, unless there was a clear basis to treat her waiver as binding on the Applicants. The court’s treatment of fairness and the limits of waiver within common interest privilege supported the conclusion that the Applicants were not deprived of privilege by Phyllis Kwong’s waiver.
What Was the Outcome?
The High Court dismissed the plaintiff’s waiver argument and held that legal privilege over the Emails had not been waived. The Applicants were therefore entitled to the protection of common interest privilege and could resist the plaintiff’s use of the Emails in the Singapore proceedings.
Practically, the decision meant that the plaintiff could not rely on the Emails as admissible evidence in the action on the basis that privilege had been waived. The Applicants’ application for declarations and protective orders was allowed in substance, with the court’s reasoning confirming that neither implied waiver by conduct nor waiver by a common interest participant in the HK Action operated to strip privilege from the Applicants.
Why Does This Case Matter?
This case is significant for practitioners dealing with cross-border litigation and document discovery, particularly where privileged communications are produced under court orders in one jurisdiction and then sought to be used in another. The decision underscores that privilege does not automatically evaporate simply because privileged materials are disclosed in related proceedings abroad. Instead, the court will scrutinise whether waiver occurred and whether the privilege-sharing framework (here, common interest privilege) preserves confidentiality against third parties.
Motorola Solutions Credit Co LLC v Kemal Uzan also provides a useful Singapore authority on the boundaries of implied waiver by conduct. The court’s emphasis on timing, prompt objection, and the procedural point at which evidence becomes admitted offers practical guidance to litigants: if privileged documents are referenced in affidavits or lists, parties should act quickly, but they are not expected to object instantaneously where they have not yet received or reviewed the documents and where the risk of admission into evidence can be managed by seeking early determination.
Finally, the case contributes to the developing jurisprudence on common interest privilege and waiver. By addressing whether waiver by one common interest holder can bind others, the court reinforces the protective rationale of common interest privilege: it is meant to facilitate information sharing among parties with a common interest without undermining each party’s ability to assert privilege against outsiders. For lawyers, this is particularly relevant in multi-party enforcement actions, where different defendants may have participated in related proceedings and where one participant’s procedural stance should not necessarily prejudice others.
Legislation Referenced
- Hong Kong discovery regime as reflected in the “HK Action” and the court orders for discovery (referred to in the metadata as “HK Act”)
Cases Cited
- Derby & Co Ltd and others v Weldon and others (No 10) [1991] 1 WLR 660
- Buttes Gas and Oil Co and another v Hammer and another (No 3) [1981] 1 QB 223
- The Oriental Insurance Co Ltd v Reliance National Asia Re Pte Ltd [2009] 2 SLR(R) 385
- Gelatissimo Ventures (S) Pte Ltd and others v Singapore Flyer Pte Ltd [2010] 1 SLR 833
- The TAG Group Litigation Winterthur Swiss Insurance Company and another v AG (Manchester) Ltd (in liquidation) and others [2006] EWHC 839 (Comm)
- Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42
- Farrow Mortgage Services Pty Ltd (In Liq) v Webb and others (1996) 39 NSWLR 601
- Patrick v Capital Finance Corporation (Australasia) Pty Ltd (2004) 211 ALR 272
- Attorney-General for the Northern Territory v Maurice and others (1986) 161 CLR 475
Source Documents
This article analyses [2015] SGHC 228 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.