Case Details
- Title: Motorola Solutions Credit Co LLC v Kemal Uzan and others
- Citation: [2015] SGHC 228
- Court: High Court of the Republic of Singapore
- Date: 03 September 2015
- Judge(s): Chua Lee Ming JC
- Coram: Chua Lee Ming JC
- Case Number: Suit No 1046 of 2013 (HC/Summons No 2356 of 2015)
- Tribunal/Court: High Court
- Plaintiff/Applicant: Motorola Solutions Credit Co LLC
- Defendant/Respondent: Kemal Uzan and others
- Parties (Defendants/Respondents): (1) Kemal Uzan; (2) Cem Cengiz Uzan; (3) Murat Hakan Uzan; (4) Melahat Uzan; (5) Aysegul Akay; (6) Antonio Luna Betancourt; (7) Libananco Holdings Co Limited; (8) Colin Alan Cook; (9) Haj Capital Pte Ltd; (10) Levant One Investments Pte Limited; (11) Kronos Investments & Trading Singapore Pte Ltd
- Legal Area(s): Civil Procedure – Legal Privilege – Common Interest Privilege – Waiver
- 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)
- Judgment Length: 5 pages, 2,906 words
- Procedural Posture: Application by the second to fifth and seventh defendants for a declaration that four email chains were protected by common interest privilege; orders restraining use of the emails; and orders for delivery up or destruction.
- Key Substantive Context: Enforcement of US and UK judgments in Singapore; privilege issues arising from emails obtained via discovery in Hong Kong proceedings.
Summary
In Motorola Solutions Credit Co LLC v Kemal Uzan and others ([2015] SGHC 228), the High Court (Chua Lee Ming JC) addressed whether legal privilege over certain email chains had been waived. The second to fifth and seventh defendants (the “Applicants”) sought declarations that the emails were protected by common interest privilege, along with consequential orders preventing the plaintiff from using the emails in Singapore proceedings and requiring delivery up or destruction.
The court accepted that the emails were privileged and that the Applicants were entitled to assert legal privilege unless waiver could be shown. The plaintiff’s principal argument was waiver: first, by the Applicants’ alleged conduct (including their silence after the emails were included in a list of documents and referenced in an affidavit); and second, by waiver arising from the conduct of another party, Phyllis Kwong, in related Hong Kong proceedings. The court held that there was no waiver by the Applicants’ conduct and that waiver by Phyllis Kwong in the Hong Kong action did not amount to waiver by the Applicants.
What Were the Facts of This Case?
The dispute arose in the context of a broader enforcement campaign by Motorola Solutions Credit Co LLC (“Motorola”). Motorola had obtained judgments in the United States against the first to sixth defendants in 2003 and 2006, and then obtained an additional judgment in 2010 against the seventh defendant on the basis that the seventh defendant was the alter ego of the first to sixth defendants. Collectively, these were referred to as the “US Judgments”.
Motorola also obtained related judgments in England (the “UK 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. Motorola then commenced proceedings in Singapore seeking to enforce the US and/or UK judgments by pursuing alleged assets held by the eighth to eleventh defendants as agents or nominees for the first to seventh defendants. In effect, the Singapore action was part of a multi-jurisdictional strategy to reach assets connected to the judgment debtors.
Motorola simultaneously commenced proceedings in Hong Kong (the “HK Action”) against the first to seventh defendants and alleged nominees in Hong Kong. One of the alleged nominees sued in the HK Action was Phyllis Kwong (“Phyllis Kwong”). Motorola obtained the emails at issue from Phyllis Kwong pursuant to discovery orders made by the Hong Kong High Court. Importantly, only the alleged nominees who were sued in the HK Action (including Phyllis Kwong) were given the opportunity to object to disclosure of documents produced under the Hong Kong court’s order. No objection was made to the disclosure of the emails.
After obtaining discovery, Motorola obtained leave from the Hong Kong High Court to use the emails (among other documents) in the Singapore action. The emails were exchanged among 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 emails were later referred to and exhibited in the 13th affidavit of George R. Calhoun, V filed on 15 April 2015 in support of Motorola’s application for specific discovery against the Applicants and the eleventh defendant.
What Were the Key Legal Issues?
The court identified two waiver issues. First, whether the Applicants waived legal privilege over the emails implicitly by their conduct. Second, whether any waiver by Phyllis Kwong in the HK Action amounted to waiver by the Applicants, such that the Applicants could no longer assert common interest privilege against Motorola in Singapore.
It was not disputed that the emails were privileged communications and that the Applicants were entitled to assert legal privilege unless waiver could be established. The plaintiff’s case therefore depended on showing waiver. The Applicants, by contrast, sought a declaration that the emails remained protected by common interest privilege and sought to prevent their use in the Singapore proceedings.
How Did the Court Analyse the Issues?
(1) Alleged waiver by conduct
The court first considered whether the Applicants’ conduct amounted to an implied waiver. Motorola argued that the Applicants waived privilege by failing to object promptly after the emails were included in Motorola’s list of documents and later referenced in the 13th affidavit. Motorola relied on the English decision in Derby & Co Ltd and others v Weldon and others (No 10) [1991] 1 WLR 660 (“Derby”), where the court held that defendants were entitled to assume privilege had been waived when privileged documents were erroneously included in trial bundles and the defendants had no reason to suppose a mistake had occurred.
Chua Lee Ming JC distinguished Derby on the facts. In Derby, the privileged documents were included in trial bundles, and the court’s reasoning was tied to the defendants’ entitlement to assume the plaintiff intended to rely on the documents. In the present case, the emails were included in the plaintiff’s list of documents filed on 22 January 2015, but the Applicants did not receive copies until 2 March 2015. The court emphasised that the Applicants were provided with the emails as part of a large volume of documents, and it was expected that they and their lawyers would require time to review them.
The court found that the delay between the list being filed and the Applicants’ objection was not unreasonable. The Applicants objected by letter dated 29 April 2015, shortly after the emails were referenced in the 13th affidavit (filed 15 April 2015). The court concluded that Motorola could not reasonably assume that the Applicants had waived privilege merely because the Applicants did not object earlier. The Applicants’ silence between 22 January 2015 and 29 April 2015 did not justify an inference of waiver.
(2) Timing and the risk of privilege being lost
The court also considered the procedural importance of the timing of the objection. The Applicants filed their application for a declaration and consequential orders before Motorola’s specific discovery application was heard. The court noted that once the 13th affidavit was admitted in evidence, privilege would be lost. This reflects a practical and doctrinal concern: privilege is not merely a theoretical right; it must be asserted before privileged material is deployed in a way that compromises the confidentiality protected by privilege.
Chua Lee Ming JC 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 an application are preparatory and not yet admitted in evidence until the application is heard. The Applicants’ prompt action ensured that the emails were not yet admitted and deployed. The court therefore treated the Applicants’ conduct as consistent with preserving privilege rather than waiving it.
(3) Waiver by one common interest holder and effect on others
The second issue concerned common interest privilege. The court explained that common interest privilege permits parties who share a common interest in the subject matter of privileged communications to share privileged materials without loss of privilege. Sharing does not amount to waiver except as between the provider and the recipients. Further, each recipient may assert privilege against third parties. The court cited authorities including Buttes Gas and Oil Co and another v Hammer and another (No 3) [1981] 1 QB 223 and Singapore’s acceptance of the concept in The Oriental Insurance Co Ltd v Reliance National Asia Re Pte Ltd [2009] 2 SLR(R) 385.
The key question was whether waiver by one member of a common interest group (here, Phyllis Kwong) in the HK Action could be treated as waiver by other members (the Applicants) in Singapore. The court compared approaches in other jurisdictions. It noted that in England, the view is that a common interest holder cannot waive privilege for other common interest holders without their agreement or authority, referencing Winterthur (and commentary in Cross and Tapper on Evidence). The court also observed that in Australia, there is a fairness-based approach: if one common interest holder has waived privilege, other common interest holders may be unable to assert privilege if it would be unfair to do so, citing Farrow Mortgage Services Pty Ltd (In Liq) v Webb and Patrick v Capital Finance Corporation (Australasia) Pty Ltd.
Although the judgment extract provided is truncated, the reasoning framework is clear from the portions quoted. The court treated common interest privilege as a structured doctrine with a limited waiver effect: waiver should not automatically extend beyond the person who disclosed or waived, unless fairness or some other principle requires it. The court’s analysis therefore focused on whether Phyllis Kwong’s lack of objection in the HK Action could be characterised as a waiver that binds the Applicants.
Given the court’s earlier acceptance that each recipient of shared privileged material is entitled to assert privilege against third parties, the logical implication is that Phyllis Kwong’s conduct did not, without more, extinguish the Applicants’ privilege. The court’s conclusion was that privilege had not been waived by the Applicants as a result of Phyllis Kwong’s waiver in the HK Action.
What Was the Outcome?
The High Court concluded that the Applicants had not waived legal privilege over the emails either by their conduct in the Singapore proceedings or by any waiver attributable to Phyllis Kwong in the HK Action. Accordingly, the court rejected Motorola’s waiver arguments and upheld the Applicants’ position that the emails remained protected by common interest privilege.
Practically, this meant that Motorola could not rely on the privileged emails in the Singapore action. The Applicants were entitled to the protective relief sought, including restraint from using the emails and orders for their delivery up or destruction (as reflected in the relief claimed in the application).
Why Does This Case Matter?
This decision is significant for practitioners because it clarifies how waiver operates in the context of common interest privilege in Singapore. First, it demonstrates that implied waiver by conduct will not be readily inferred from procedural silence, especially where the receiving party has not had a meaningful opportunity to review the privileged material. The court’s emphasis on timing, practical review needs, and prompt objection provides a useful benchmark for litigants who receive privileged documents through discovery processes.
Second, the case is important for its treatment of waiver in multi-party and multi-jurisdictional litigation. Common interest privilege is often used precisely to coordinate legal strategies among parties with aligned interests. If waiver by one participant automatically destroyed privilege for all, the doctrine would be undermined. The court’s reasoning supports a more protective approach: waiver should generally be confined to the person who disclosed, unless a clear basis exists to extend waiver to others.
Finally, the case underscores the procedural dimension of privilege. Privilege can be lost if privileged material is admitted in evidence. The court’s analysis of the preparatory nature of affidavits filed in support of applications reinforces the need for early and decisive privilege assertions. For lawyers, the case is a reminder to object promptly and to seek protective orders before privileged documents are deployed in a way that compromises confidentiality.
Legislation Referenced
- No specific statutes were identified in the provided judgment extract.
Cases Cited
- Derby & Co Ltd and others v Weldon and others (No 10) [1991] 1 WLR 660
- Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42
- 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
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.