Case Details
- Citation: [2015] SGHC 228
- Court: High Court of the Republic of Singapore
- Date: 2015-09-03
- Judges: Chua Lee Ming JC
- Plaintiff/Applicant: Motorola Solutions Credit Co LLC
- Defendant/Respondent: Kemal Uzan and others
- Legal Areas: Civil Procedure — Legal Privilege
- Statutes Referenced: 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: [2015] SGHC 228, 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), 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
- Judgment Length: 5 pages, 2,866 words
Summary
This case involved an application by the second to fifth and seventh defendants ("the Applicants") for a declaration that four email chains ("the Emails") in the possession of the plaintiff, Motorola Solutions Credit Co LLC, were protected by common interest privilege. The Applicants sought orders to restrain the plaintiff from using the Emails in the action and for the Emails to be delivered to the Applicants or destroyed. The key issues were whether the Applicants had waived legal privilege over the Emails by their conduct or as a result of a waiver by Phyllis Kwong, one of the recipients of the Emails, in separate Hong Kong proceedings.
What Were the Facts of This Case?
The plaintiff, Motorola Solutions Credit Co LLC, had obtained substantial judgments against the first to seventh defendants in the United States and the United Kingdom between 2003 and 2010. The plaintiff then commenced proceedings in Singapore to enforce these judgments and also commenced proceedings in Hong Kong against the first to seventh defendants and their alleged nominees.
In the Hong Kong proceedings, the plaintiff obtained the Emails from Phyllis Kwong, one of the alleged nominees, pursuant to a court order for discovery. The plaintiff subsequently obtained leave from the Hong Kong court to use the Emails in the Singapore proceedings. The Emails were exchanged between various parties, including the second defendant, Phyllis Kwong, and solicitors for the Applicants.
The plaintiff relied on the Emails in an affidavit filed in support of an application for specific discovery against the Applicants and another defendant. The Applicants then filed the present application seeking a declaration that the Emails were protected by common interest privilege and orders to restrain the plaintiff from using the Emails.
What Were the Key Legal Issues?
The key legal issues in this case were:
- Whether the Applicants had waived legal privilege over the Emails by their conduct, specifically by failing to object to the inclusion of the Emails in the plaintiff's list of documents until several months later.
- Whether the waiver of privilege by Phyllis Kwong in the Hong Kong proceedings amounted to a waiver of privilege by the Applicants.
How Did the Court Analyse the Issues?
On the first issue, the court found that the Applicants had not waived privilege by their conduct. The court noted that the Emails were provided to the Applicants together with numerous other documents, and it was reasonable for the Applicants and their lawyers to need time to review the documents. Once the Applicants saw the Emails in the plaintiff's affidavit, they promptly objected to the use of the Emails. The court held that the delay in objecting was not unreasonable in the circumstances.
On the second issue, the court examined the concept of common interest privilege. The court noted that common interest privilege allows one person to share privileged materials with others who have a common interest in the subject matter, without any loss of legal privilege. The court considered the differing approaches in England and Australia on whether a waiver of privilege by one common interest holder would constitute a waiver by the other holders.
The court ultimately concluded that the waiver of privilege by Phyllis Kwong in the Hong Kong proceedings did not amount to a waiver of privilege by the Applicants. The court found that the underlying rationale of implied waiver is one of fairness, and it would not be fair to deprive the Applicants of their privilege over the Emails simply because of Phyllis Kwong's actions in the separate Hong Kong proceedings.
What Was the Outcome?
The court granted the Applicants' application and declared that the Emails were protected by common interest privilege. The court ordered the plaintiff to be restrained from using the Emails in the proceedings and directed the plaintiff to deliver the Emails to the Applicants or destroy them.
Why Does This Case Matter?
This case provides important guidance on the principles of common interest privilege and the circumstances in which a waiver of privilege by one member of a common interest group will be deemed to constitute a waiver by the other members. The court's analysis of the differing approaches in England and Australia, and its adoption of the more flexible Australian approach based on fairness, is particularly noteworthy.
The case also highlights the importance of promptly objecting to the use of potentially privileged documents, even if they have been included in a list of documents by the opposing party. The court's finding that the Applicants' delay in objecting was not unreasonable in the circumstances provides a useful precedent for parties seeking to assert privilege over documents that have been disclosed.
Overall, this case is a valuable resource for practitioners dealing with issues of legal privilege, particularly in the context of cross-border litigation and the sharing of privileged materials between parties with a common interest.
Legislation Referenced
- 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
- [2015] SGHC 228
- 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)
- 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.