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 and Summons No 2966/J
- Applicant/Defendants: Lim Jit Ming Bryan (D1) and Josephine Teo Soo Geok (D2)
- Respondent/Plaintiff: Ng Chee Weng (also known as Patrick Ng)
- Legal Area: Civil Procedure (striking out; admissibility of “without prejudice” communications)
- Statutes Referenced: Evidence Act (Cap 97, 1997 Rev Ed), in particular s 23
- Cases Cited (as reflected in 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 (as stated in metadata)
Summary
Ng Chee Weng v Lim Jit Ming Bryan and Another [2010] SGHC 35 is a High Court decision concerning the admissibility of settlement communications under the “without prejudice” rule. The defendants applied to strike out portions of the plaintiff’s Statement of Claim and affidavits supporting a Mareva injunction application. The impugned paragraphs described meetings and telephone conversations in which the parties made offers and counteroffers to settle a dispute about dividends allegedly due to the plaintiff.
The court held that the relevant paragraphs disclosed negotiations genuinely aimed at settlement and were therefore prima facie protected by the “without prejudice” rule. Although the plaintiff argued that there was no longer a dispute because the defendant had admitted liability for the dividends, the court found that the plaintiff’s attempt to recharacterise the negotiations as merely about payment terms was unpersuasive. The striking out applications succeeded, and the offending paragraphs were removed from the pleadings and affidavits.
What Were the Facts of This Case?
The underlying dispute arose from 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 from 2003 to 2007. In his prayer for relief, the plaintiff sought, among other things, dividends totalling approximately S$8.8 million against D1 and D1’s wife, Josephine Teo Soo Geok (D2).
In the course of the litigation, the plaintiff brought an application for a Mareva injunction. In support of that application, he filed an affidavit dated 26 May 2009 (the “plaintiff’s first affidavit”). The defendants also filed their own affidavits and, crucially for this decision, they applied to strike out certain paragraphs in the plaintiff’s Statement of Claim and in the plaintiff’s first affidavit. The defendants’ position was that the impugned paragraphs disclosed communications made “without prejudice” for the purpose of settlement, and were therefore inadmissible in evidence.
The impugned content was not limited to the plaintiff’s own affidavit. A mutual friend, Ng Soo Kok (also known as Roy Ng), supported the plaintiff’s Mareva injunction application by filing his own affidavit dated 26 May 2009 (Roy Ng’s first affidavit). The defendants sought to strike out certain paragraphs in Roy Ng’s affidavit as well, on the basis that they too referred to settlement negotiations between the plaintiff and D1.
At the pleading and affidavit level, the relevant paragraphs described meetings and telephone conversations between the plaintiff and D1, and in some instances Roy Ng’s involvement as mediator. The plaintiff’s Statement of Claim contained paragraphs (notably paras 29 and 30(2)–30(5)) that alleged, in substance, that D1 did not deny holding shares on trust for the plaintiff, did not deny the plaintiff’s entitlement to dividends, and made offers to settle the plaintiff’s claim for those dividends. Similar narrative content appeared in the plaintiff’s first affidavit (paras 62, 69–74, 77–90 and 100) and in Roy Ng’s first affidavit (paras 6 and 18–42), including references to settlement “offers” and “proposals” and Roy Ng’s role in “mediating” the dispute.
What Were the Key Legal Issues?
The central legal issue was whether the communications described in the relevant paragraphs were protected by the “without prejudice” rule and, if so, whether they should be struck out as inadmissible. The defendants’ applications were premised on the proposition that the paragraphs disclosed settlement negotiations between the parties, and that such negotiations are generally excluded from evidence as a matter of public policy.
A subsidiary but important issue concerned the scope of the “without prejudice” rule where the existence of a dispute is contested. The plaintiff argued that there was no dispute because D1 had admitted that dividends were due to the plaintiff. On that view, the negotiations were said to relate only to payment terms, not to the settlement of an existing dispute. The court therefore had to consider whether the “without prejudice” privilege requires an actual dispute at the time of the communications, and whether the facts supported the plaintiff’s characterisation.
Finally, the court had to decide the appropriate procedural consequence. The defendants were not merely seeking to exclude evidence at trial; they sought striking out of paragraphs in pleadings and affidavits supporting an interlocutory Mareva injunction application. This raised the practical question of whether the “without prejudice” rule could be enforced at the pleading/affidavit stage by striking out inadmissible material.
How Did the Court Analyse the Issues?
The court 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 judge emphasised that the rule applies to exclude evidence of all negotiations genuinely aimed at settlement, whether oral or written. Importantly, the application of the rule is not dependent on the literal use of the phrase “without prejudice”. If the surrounding circumstances show that the parties were seeking to compromise an existing dispute, the communications may be treated as protected.
In developing the legal framework, the court relied on both common law and statutory authority. It cited the decision in Quek Kheng Leong Nicky v Teo Beng Ngoh for the general rule, and Rush & Tompkins Ltd v Greater London Council for the proposition that the phrase is not determinative. The court also referred to Greenline-Onyx Envirotech Phils Inc v Otto Systems Singapore Pte Ltd, which followed the same approach. The judge then drew on Muller v Linsley & Mortimer, where Hoffmann LJ explained the two justifications for the “without prejudice” rule: (1) public policy encouraging parties to negotiate and settle disputes out of court, and (2) an implied agreement that admissions made during negotiations should not be used if litigation ensues.
The court further connected these justifications to the Evidence Act. In Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd & Anor, the Court of Appeal had observed that s 23 of the Evidence Act is the statutory enactment of the common law principle. The judge highlighted that s 23 covers situations where the court can infer that the parties agreed that evidence of admissions made during negotiations should not be given. The court also noted Chan Sek Keong CJ’s interpretation in Mariwu: s 23 properly construed refers to cases where the parties attempt to renege on an express or implied agreement not to use admissions against each other. The judge also referenced the idea that the “without prejudice” rule can apply even without express labelling, where communications are made in the course of negotiations to settle a dispute.
Turning to the facts, the judge found it “obvious” that the relevant paragraphs described negotiations made in an attempt to settle the dispute between the plaintiff and D1 to avoid litigation. This conclusion was supported by the structure and content of the communications as pleaded: the presence of Roy Ng as mediator, the existence of multiple offers and counteroffers, and the plaintiff’s own affidavit narrative describing settlement proposals being made and rejected. The judge accepted the defendants’ point that these features indicated that the purpose of the negotiations was to settle the dispute, rather than to record admissions for evidential use.
The plaintiff’s main argument was that the prerequisite for the privilege—namely the existence of a dispute—was not satisfied. The judge treated this as the key contest. She explained that the “without prejudice” rule aims to encourage settlement and therefore applies only when there is a dispute between the parties. She cited Mariwu for the general requirement and then relied on Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd and Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd for the proposition that the dispute requirement is not met where the parties’ positions are such that there is no real controversy to settle.
On the plaintiff’s case, D1 had admitted that dividends were due, so there was no dispute. The judge, however, considered that the plaintiff’s attempt to reframe the negotiations as merely about payment terms was not persuasive in light of the pleaded and affidavit evidence. The narrative in the relevant paragraphs did not simply concern the mechanics of payment; it described settlement offers and proposals for global sums, rejection of offers, and counteroffers. The involvement of a mediator and the iterative nature of the negotiations were consistent with an ongoing disagreement about the extent of liability and/or the appropriate resolution of the claim, even if certain aspects were acknowledged.
Although the extract provided ends before the full discussion of the plaintiff’s “no dispute” argument, the court’s reasoning in the visible portion makes clear that the judge regarded the dispute requirement as satisfied on the facts. The judge accepted that the negotiations were genuinely aimed at settlement and that the plaintiff’s contrary position was “wholly without merit”. In other words, the court treated the relevant communications as falling squarely within the policy rationale of the “without prejudice” rule: parties should be able to negotiate settlement without fear that their offers and admissions will later be deployed as evidence.
What Was the Outcome?
The court granted the defendants’ striking out applications. The paragraphs in the plaintiff’s Statement of Claim and the plaintiff’s first affidavit, as well as the corresponding paragraphs in Roy Ng’s first affidavit, were struck out because they disclosed inadmissible “without prejudice” communications. The practical effect was that the plaintiff could not rely on those settlement communications as evidential support for the Mareva injunction application.
By enforcing the “without prejudice” rule at the interlocutory stage, the decision underscores that courts will protect settlement negotiations from being used in subsequent proceedings, even where the context is an urgent application such as a Mareva injunction.
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. It confirms that the “without prejudice” rule is not confined to communications expressly labelled “without prejudice”. Where the surrounding circumstances show that the parties were negotiating to settle an existing dispute, the communications are prima facie protected.
The case also illustrates the evidential and procedural consequences of failing to keep settlement communications out of pleadings and affidavits. Even though the dispute in this matter was litigated through an interlocutory Mareva injunction application, the court was willing to strike out offending paragraphs rather than allow the material to remain and potentially influence the court’s assessment. For litigators, this means that careful drafting is required when preparing affidavits in support of urgent applications, particularly where the affidavit narrative includes settlement discussions.
Finally, the decision reinforces the importance of the “dispute” requirement. While parties may attempt to argue that negotiations were unnecessary because liability was admitted, the court will look at the substance of the communications—such as the presence of offers, counteroffers, and mediation—to determine whether there was an actual dispute to be settled. The case therefore provides guidance on how courts may evaluate attempts to characterise settlement negotiations as mere payment discussions.
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.