Case Details
- Citation: [2010] SGHC 35
- Title: Ng Chee Weng v Lim Jit Ming Bryan and Another
- Court: High Court of the Republic of Singapore
- Date of Decision: 29 January 2010
- Judge: Belinda Ang Saw Ean J
- Coram: Belinda Ang Saw Ean J
- Case Number: Suit No 453 of 2009
- Summonses: Summons No 2957 of 2009/H; Summons No 2966/J
- Plaintiff/Applicant: Ng Chee Weng (also known as Patrick Ng)
- Defendants/Respondents: Lim Jit Ming Bryan (D1) and Josephine Teo Soo Geok (D2)
- Legal Area: Civil Procedure (striking out; admissibility of evidence)
- Procedural Context: Applications to strike out paragraphs in the plaintiff’s Statement of Claim and supporting affidavits in a Mareva injunction application
- Key Evidentiary Issue: Whether “without prejudice” communications were improperly pleaded and relied upon
- Statute Referenced: Evidence Act (Cap 97, 1997 Rev Ed), in particular s 23
- Cases Cited (as referenced in the extract): Quek Kheng Leong Nicky v Teo Beng Ngoh [2009] 4 SLR(R) 181; Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280; Greenline-Onyx Envirotech Phils Inc v Otto Systems Singapore Pte Ltd [2007] 3 SLR(R) 40; Muller v Linsley & Mortimer [1996] PNLR 74; Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd & Anor [2006] 4 SLR(R) 807; Bradford & Bingley plc v Rashid [2006] 1 WLR 2006; Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd [2007] 2 SLR(R) 433; Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd [2009] 4 SLR(R) 769
- Counsel: Cavinder Bull SC, Woo Shu Yan and Lin Shumin (Drew & Napier LLC) for the applicants/defendants; Peter Low and Wong Shyen Sook (Colin Ng & Partners LLP) for the respondent/plaintiff
- Judgment Length: 5 pages; 2,724 words
Summary
In Ng Chee Weng v Lim Jit Ming Bryan and Another [2010] SGHC 35, the High Court considered whether certain paragraphs in a plaintiff’s pleadings and affidavits—filed in support of a Mareva injunction application—should be struck out on the ground that they disclosed communications made on a “without prejudice” basis. The defendants argued that the impugned paragraphs described settlement negotiations between the plaintiff and the first defendant, including offers and counteroffers, and were therefore inadmissible in evidence.
Belinda Ang Saw Ean J held that the relevant paragraphs were indeed describing negotiations aimed at settling an existing dispute to avoid litigation. The court emphasised that the “without prejudice” rule applies to exclude evidence of negotiations genuinely aimed at settlement, whether or not the words “without prejudice” were used. The court also rejected the plaintiff’s attempt to characterise the discussions as merely about payment terms rather than the existence of a dispute. The impugned paragraphs were struck out.
What Were the Facts of This Case?
The underlying dispute concerned the plaintiff, Ng Chee Weng (also known as Patrick Ng), who claimed to be the beneficial owner of 50% of the shares in SinCo Technologies Pte Ltd. The plaintiff’s pleaded case was that the shares were held on trust for him by the first defendant, Lim Jit Ming Bryan (“D1”). The plaintiff further alleged that D1 failed to pay him dividends declared on those shares from 2003 to 2007. In the main action, the plaintiff sought, among other relief, dividends totalling approximately S$8.8m against D1 and D1’s wife, Josephine Teo Soo Geok (“D2”).
As part of the plaintiff’s interim relief strategy, the plaintiff applied for a Mareva injunction. In support of that application, the plaintiff filed an affidavit dated 26 May 2009 (“the plaintiff’s first affidavit”). The defendants later brought two summonses to strike out certain paragraphs in (i) the plaintiff’s Statement of Claim and (ii) the plaintiff’s first affidavit, as well as (iii) paragraphs in an affidavit of a third person, Ng Soo Kok (also known as Roy Ng), who supported the Mareva injunction application. The defendants’ central contention was that the impugned paragraphs disclosed “without prejudice” communications between the parties made for the purpose of settlement.
Specifically, paragraphs 29 and 30(2)–30(5) of the Statement of Claim referred to meetings and telephone conversations between the plaintiff and D1. The plaintiff pleaded that D1 did not deny that he held shares on trust for the plaintiff, did not deny that the plaintiff was entitled to dividends paid on those shares, and made offers to settle the plaintiff’s claim for those dividends. Similar content appeared in the plaintiff’s first affidavit (paragraphs 62, 69–74, 77–90 and 100) and in Roy Ng’s first affidavit (paragraphs 6 and 18–42). These were collectively referred to as “the Relevant Paragraphs”.
The defendants’ submissions described the settlement discussions in detail. On 23 March 2009, at a meeting involving the plaintiff, D1 and Roy Ng acting as mediator, D1 offered to pay S$3.5m to settle the plaintiff’s claim for dividends from 2003 to 2007. On 31 March 2009, after the plaintiff rejected the S$3.5m offer, D1 made a second offer of S$4.5m. On 15 April 2009, Roy Ng relayed the plaintiff’s rejection of the S$4.5m offer and the plaintiff’s proposal of a global settlement sum of S$6.5m; D1 rejected that proposal. On 16 April 2009, the plaintiff copied D1 on an email to a third party (Terence Ng) stating that the plaintiff had turned down D1’s offer and proposed settlement at S$6.5m, which D1 rejected. The defendants argued that these were quintessential settlement negotiations.
What Were the Key Legal Issues?
The principal issue was whether the Relevant Paragraphs disclosed communications that were protected by the “without prejudice” rule and were therefore inadmissible in evidence. If so, the court would be justified in striking out those paragraphs from the pleadings and affidavits supporting the Mareva injunction application.
A closely related issue concerned the scope and prerequisites of the “without prejudice” rule in Singapore law. The plaintiff contended that the rule should not apply because, in his view, there was no genuine dispute: D1 had admitted that dividends were due to the plaintiff. The plaintiff’s position was that the discussions were therefore not negotiations to settle a dispute, but rather concerned only payment terms. This raised the question of what constitutes an “existing dispute” for the purposes of the rule.
Finally, the court had to consider whether the presence of a mediator (Roy Ng) and the form of the communications (offers, counteroffers, and settlement proposals) were sufficient to show that the communications were genuinely aimed at settlement, even if the plaintiff later characterised them differently in his affidavit evidence.
How Did the Court Analyse the Issues?
Belinda Ang Saw Ean J began by restating the general principle: communications between parties made on a “without prejudice” basis in the course of negotiations for settlement are not admissible in evidence. The court noted that the rule is not confined to cases where the phrase “without prejudice” is expressly used. Instead, it applies where it is clear from the surrounding circumstances that the parties were seeking to compromise an existing dispute, whether or not legal proceedings had already been commenced.
The judge relied on established authorities to explain the rationale and operation of the rule. The court cited Rush & Tompkins Ltd v Greater London Council for the proposition that the rule applies to negotiations aimed at settlement even if the communications are not labelled “without prejudice”. The court also referred to Greenline-Onyx Envirotech Phils Inc v Otto Systems Singapore Pte Ltd to reinforce that the surrounding circumstances can establish the settlement character of the communications.
In developing the legal justifications, the court quoted the helpful explanation of Hoffmann LJ in Muller v Linsley & Mortimer: the rule is founded on (1) public policy encouraging parties to negotiate and settle disputes out of court, and (2) an implied agreement arising from the common understanding that negotiations conducted without prejudice should not be used against the negotiating party if litigation ensues. The Court of Appeal’s approval of these justifications in Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd & Anor was also emphasised.
Critically, the court linked the common law principle to the statutory framework in s 23 of the Evidence Act. The judge observed that s 23 is the statutory enactment of the common law principle relating to admissibility of “without prejudice” communications, particularly where an admission is made under circumstances from which the court can infer that the parties agreed that evidence of it should not be given. The court also highlighted Chan Sek Keong CJ’s interpretation in Mariwu that s 23 is concerned with situations where parties attempt to renege on an express or implied agreement not to use admissions made in the course of negotiations against each other. In other words, the rule is anchored in the parties’ settlement process and the implied understanding that such communications will not be deployed as evidence in subsequent litigation.
Turning to the facts, the judge found it “obvious” that the Relevant Paragraphs described negotiations made in the course of an attempt to settle the dispute between the plaintiff and D1 to avoid litigation. The court accepted the defendants’ point that Roy Ng’s presence as mediator and the existence of settlement offers and counteroffers—together with the plaintiff’s own counteroffer—demonstrated that the purpose of the negotiations was settlement. The judge further concluded that the plaintiff’s later attempt to dispute that characterisation was “wholly without merit”.
The plaintiff’s argument, as distilled by counsel, was that the prerequisite for the “without prejudice” privilege—namely the existence of a dispute—was not satisfied. The judge accepted that the “without prejudice” rule is aimed at encouraging settlement and therefore applies only when there is a dispute between the parties. The judge referenced authorities including Mariwu for the proposition that the rule applies only where a dispute exists, and Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd and Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd for the concept that the dispute may cease if one party has effectively “waved the white flag of surrender” by admitting liability such that no dispute remains.
However, the judge’s reasoning indicates that the plaintiff could not establish that no dispute existed. The Relevant Paragraphs themselves, as pleaded and deposed, described not merely a discussion about how dividends would be paid, but a series of settlement negotiations involving offers, rejections, and counterproposals. The court treated these features as inconsistent with the plaintiff’s characterisation that D1 had already admitted liability in a manner that eliminated the dispute. The judge therefore held that the communications were prima facie protected by the “without prejudice” rule and that the plaintiff’s attempt to circumvent the rule by reframing the discussions as payment-term discussions failed.
What Was the Outcome?
The court granted the defendants’ applications to strike out the Relevant Paragraphs from the plaintiff’s Statement of Claim and from the plaintiff’s first affidavit, as well as from Roy Ng’s first affidavit. The practical effect was that the plaintiff could not rely on those settlement communications as evidence in support of the Mareva injunction application.
By striking out the paragraphs, the court reinforced the evidential boundary around settlement negotiations: even where a party later seeks to use settlement-related admissions to support interim relief, the “without prejudice” rule prevents such use where the communications were genuinely aimed at settlement of an existing dispute.
Why Does This Case Matter?
Ng Chee Weng v Lim Jit Ming Bryan and Another is a useful authority for practitioners dealing with the admissibility of settlement communications in Singapore civil litigation, particularly in the context of interim applications such as Mareva injunctions. The decision underscores that the “without prejudice” rule is not a technical label but a substantive evidential protection grounded in public policy and implied agreement. Lawyers should therefore assume that settlement negotiations—especially those involving offers, counteroffers, and mediation—will likely attract protection even if the communications are later pleaded as admissions.
The case also illustrates the importance of the “existing dispute” requirement. While the plaintiff attempted to argue that there was no dispute because D1 had admitted dividends were due, the court treated the pleaded and deposed content as showing that the parties were negotiating settlement of a contested position. For litigators, this highlights a practical drafting and evidential discipline: affidavits and pleadings should avoid reproducing settlement communications in a way that invites the court to characterise them as “without prejudice” negotiations.
For law students and researchers, the judgment provides a compact synthesis of the doctrinal basis for the rule in Singapore, including the relationship between common law principles and s 23 of the Evidence Act, and the interpretive approach taken in Mariwu. It also demonstrates how courts apply the rule to real procedural settings, where parties may be tempted to use settlement discussions to strengthen interim relief. The decision therefore serves as a cautionary precedent on evidence handling and the limits of using settlement communications as factual support.
Legislation Referenced
- Evidence Act (Cap 97, 1997 Rev Ed), s 23
Cases Cited
- Quek Kheng Leong Nicky v Teo Beng Ngoh [2009] 4 SLR(R) 181
- Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280
- Greenline-Onyx Envirotech Phils Inc v Otto Systems Singapore Pte Ltd [2007] 3 SLR(R) 40
- Muller v Linsley & Mortimer [1996] PNLR 74
- Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd & Anor [2006] 4 SLR(R) 807
- Bradford & Bingley plc v Rashid [2006] 1 WLR 2006
- Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd [2007] 2 SLR(R) 433
- Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd [2009] 4 SLR(R) 769
Source Documents
This article analyses [2010] SGHC 35 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.