Ng Giok Oh & 3 Others v Sajjad Akhtar & 2 Others [2002] SGHC 169

Case Details

• Citation: [2002] SGHC 169
• Court: High Court of the Republic of Singapore
• Decision Date: 31 July 2002
• Coram: Choo Han Teck JC
• Case Number: Originating Summons No 655 of 2002
• Claimants / Plaintiffs: Ng Giok Oh; Tan Gek Gnee; Tan Gek In; Tan Gek Noi
• Respondent / Defendant: Sajjad Akhtar (First Defendant); Chee Keng Hoy (Second Defendant); Philip Leow (Third Defendant)
• Practice Areas: Civil Procedure; Discovery of documents; Pre-action discovery; Court assessors
• Judgment Length: 3,199 words / approx 10 pages

Summary

The High Court in Ng Giok Oh & 3 Others v Sajjad Akhtar & 2 Others [2002] SGHC 169 addressed a novel and significant question regarding the transparency of the judicial advisory process: whether the internal notes, drafts, and working documents of court-appointed assessors are subject to pre-action discovery. The plaintiffs, who were parties to a protracted and complex asset valuation dispute in Originating Summons No. 727 of 1996, sought these materials to investigate potential negligence claims against the assessors. The underlying dispute involved the valuation of substantial family assets, including a rubber plantation in Indonesia, the Afro-Asia Building in Singapore, and shares in Ssangyong Cement Singapore Ltd, following the breakdown of a business partnership between the Bajumi and Tan families.

The court, presided over by Choo Han Teck JC, dismissed the application in its entirety. The judgment establishes a clear doctrinal boundary between the role of an expert witness and that of a court assessor. While expert witnesses are subject to cross-examination and their reports are evidence, assessors function as technical extensions of the court itself. Choo Han Teck JC held that the advice provided by assessors is a "privilege of the court" and that their internal deliberations and work product are protected from disclosure. The court emphasized that the assessor takes no part in the judgment and is not responsible for it; rather, the judge remains the sole arbiter of fact and law, incorporating the assessor's technical guidance into the final judicial determination.

This decision is a critical authority on the immunity and confidentiality of the judicial process. It reinforces the principle that the errors of an assessor, if any, are "buried" within the judgment or exposed only through the judgment itself, rather than through a secondary layer of discovery aimed at the assessor's private working papers. By refusing to allow pre-action discovery, the court protected the finality of litigation and the independence of court-appointed advisors from the threat of collateral litigation. The ruling also serves as a stern warning against the use of pre-action discovery as a "fishing expedition" for potential causes of action where no clear evidence of wrongdoing exists.

Ultimately, the case underscores the High Court's commitment to maintaining the integrity of the assessor system. It clarifies that because an assessor's advice is not evidence, it cannot be challenged through the standard mechanisms of discovery or cross-examination. This ensures that technical experts can provide candid advice to the bench without the chilling effect of potential liability or the public scrutiny of their preliminary drafts and internal correspondence.

Timeline of Events

1. 1996: Originating Summons No. 727 of 1996 is filed, initiating a legal dispute between the Bajumi family (plaintiffs) and the Tan family (defendants) over the dissolution of their business partnership and the valuation of shared assets.
2. 1 April 1998: The parties record a consent order before the court. This order establishes the mechanism and specific formula for the valuation of the assets, including the Afro-Asia Building and Ssangyong Cement Singapore Ltd shares.
3. Post-April 1998: Disputes arise regarding the application of the valuation formula. The parties are unable to reach an agreement on the market values of the assets as of the agreed dates.
4. Hearing of OS 727/1996: The matter returns to court for a determination of the valuations. Due to the complexity of the technical issues and conflicting expert evidence, the court appoints three assessors: Sajjad Akhtar, Chee Keng Hoy, and Philip Leow.
5. Valuation Determination: Following a "difficult and complex" proceeding, the court (per Lai Kew Chai J) delivers its judgment, setting valuations for the Ssangyong shares, the Afro-Asia Building, and the Indonesian rubber plantation.
6. Post-Judgment: The parties express dissatisfaction with the court's valuations and file appeals. However, they eventually reach an out-of-court settlement to sell all assets by auction.
7. 2002: The plaintiffs (defendants in the 1996 suit) file Originating Summons No. 655 of 2002, seeking pre-action discovery of the assessors' notes, drafts, and correspondence to investigate a potential negligence claim.
8. 31 July 2002: Choo Han Teck JC delivers the judgment in OS 655/2002, dismissing the application for pre-action discovery and awarding costs to the defendants.

What Were the Facts of This Case?

The dispute originated from the dissolution of a long-standing business partnership between two prominent families: the Bajumi family of Indonesia and the Tan family of Singapore. Over several decades, the families had jointly developed a diverse portfolio of high-value assets. These included a massive rubber plantation in Indonesia, the Afro-Asia Building located in Singapore's central business district, and a significant block of shares in Ssangyong Cement Singapore Ltd, a publicly listed company. As the families grew and their business visions diverged, the partnership became untenable, leading to the commencement of Originating Summons No. 727 of 1996.

In April 1998, the parties attempted to resolve the matter through a consent order. This order was intended to provide a definitive "mechanism and formula" for the valuation of the assets, which would then facilitate a clean break between the families. The formula required the determination of market values for the Ssangyong shares and the Afro-Asia Building as of specific, agreed-upon dates. However, the implementation of this formula proved impossible in practice. The parties' respective experts produced wildly divergent valuations, and the families could not agree on the underlying data or the application of the valuation methodology. Consequently, the matter was referred back to the High Court for a judicial determination of the asset values.

Recognizing the highly technical nature of the valuations—which involved complex accounting, real estate appraisal, and agricultural land assessment—the court exercised its power to appoint assessors to assist the bench. Three individuals were appointed: Sajjad Akhtar (the first defendant), Chee Keng Hoy (the second defendant), and Philip Leow (the third defendant). These assessors were tasked with providing technical guidance to the presiding judge, Lai Kew Chai J, to help the court navigate the "partisan expert opinion on both sides."

The proceedings in OS 727/1996 were described as "difficult and complex." Ultimately, the court arrived at its own valuations. For instance, the court valued the Ssangyong shares at S$3.34 per share, resulting in a total value of approximately S$66m (or US$66m). The Afro-Asia Building was valued at S$1.03 per square foot, leading to a total valuation of S$37m. The Indonesian rubber plantation was valued at S$3.5m (or US$3.5m). The total valuation reached by the court was S$57,625,000. Both the Bajumi and Tan families were dissatisfied with these figures, leading to various appeals. Eventually, the parties bypassed the appellate process by agreeing to sell the assets at a public auction and settle their differences out of court.

Despite the settlement, the Tan family (the plaintiffs in the present application) remained convinced that the court's valuations were flawed due to errors made by the assessors. They suspected that the assessors had been negligent in the advice they provided to Lai Kew Chai J. To confirm these suspicions and build a case for a professional negligence lawsuit, the plaintiffs filed Originating Summons No. 655 of 2002. They sought pre-action discovery of all "notes, drafts, correspondence, and other documents" created or maintained by the three assessors during their appointment in the 1996 proceedings. The plaintiffs argued that they needed these documents to determine if the assessors had failed in their duty of care, thereby causing the plaintiffs financial loss through the allegedly undervalued judicial determination.

What Were the Key Legal Issues?

The primary legal issue before the High Court was whether the internal working documents of court-appointed assessors are discoverable under the rules governing pre-action discovery. This required the court to define the precise legal status of an assessor within the Singapore judicial system and to determine if their work product enjoys a form of privilege or immunity from disclosure.

The court had to address the following sub-issues:

• The Nature of the Assessor's Role: Is a court-appointed assessor an "unsworn witness" whose advice constitutes evidence, or are they a technical extension of the judge, whose deliberations are part of the judicial decision-making process?
• The Scope of Discovery: Does the "privilege of the court" extend to the notes and drafts of assessors? If the assessor's advice is not evidence, can the documents underlying that advice be subject to discovery by the parties?
• Threshold for Pre-Action Discovery: Had the plaintiffs established a sufficient basis for pre-action discovery, or was the application an impermissible "fishing expedition" intended to uncover a cause of action that had not yet been substantiated?
• Liability and Immunity: To what extent are court-appointed assessors immune from negligence claims, and does this immunity preclude the discovery of documents intended to support such claims?

These issues were framed against the backdrop of the need to balance the transparency of the judicial process with the necessity of protecting the independence and candor of those who assist the court in complex technical matters.

How Did the Court Analyse the Issues?

The court’s analysis began with a fundamental distinction between the role of an expert witness and that of a court assessor. Choo Han Teck JC emphasized that while an expert witness provides evidence that is subject to the adversarial process, an assessor is a technical advisor to the judge. The judge noted that the use of assessors is a "privilege of the court," intended to supplement the court's own knowledge in specialized fields. This distinction is critical because it dictates the procedural rights of the parties. Because an assessor's advice is not evidence, the parties have no right to cross-examine the assessor, nor do they have a right to see the preliminary drafts or notes that inform the assessor's final advice to the judge.

The court relied heavily on the historical and doctrinal definition of an assessor. Quoting Brett MR in The Beryl [1884] 9 PD 137, the court noted:

"The assessors who assist the judge take no part in the judgment whatever; they are not responsible for it, and have nothing to do with it." (at [6])

This passage was used to illustrate that the legal responsibility for the final decision rests solely with the judge. The assessor provides technical input, but the judge is the one who weighs that input and incorporates it into the judgment. Therefore, any "error" in the assessor's advice that is adopted by the judge becomes an error of the court itself. The court reasoned that if a party is dissatisfied with the technical basis of a judgment, their remedy lies in the appellate process, where the judgment's reasoning can be scrutinized, rather than in a collateral attack on the assessor's private notes.

The court further examined the status of the assessor through the lens of Richardson v Redpath, Brown & Co Ltd [1944] AC 62. In that case, Viscount Simon LC stated that "no one is to treat the assessor as an 'unsworn witness in the special confidence of the court'" (at 70). Choo Han Teck JC adopted this view, concluding that since the assessor is not a witness, the rules of discovery that apply to evidence and witness statements do not extend to the assessor's internal work product. The court held that the assessor's "privilege is that his errors will only be exposed through the judgment, or else be buried with it." This striking metaphor underscores the finality and protection afforded to the judicial consultative process.

Regarding the application for pre-action discovery, the court applied a restrictive interpretation. Choo Han Teck JC observed that pre-action discovery is not intended to be "an instrument for private detectives snooping for action." The court found that the plaintiffs were essentially seeking to "fish" for a cause of action. They had no concrete evidence of negligence; they merely disagreed with the court's final valuation and assumed that the assessors must have been the source of the error. The judge remarked that if the plaintiffs truly believed they had an accrued cause of action, they should have commenced a writ action and sought discovery in the normal course, rather than using the pre-action mechanism to see if a case existed at all.

The court also touched upon the issue of immunity, referencing Sutcliffe v Thackrah [1974] AC 727 and Kuah Kok Kim v Ernst & Young [1997] 1 SLR 169. While the court did not definitively rule on whether assessors enjoy absolute judicial immunity, it suggested that their role is so closely aligned with the judicial function that allowing discovery of their notes would undermine the integrity of the bench. The judge noted that the assessors were appointed specifically because of the "partisan expert opinion" presented by the parties. To allow the parties to then sue the assessors for their advice would create a circular and endless cycle of litigation, where every technical advisor to the court could be held liable by the losing party.

In conclusion, the court's analysis centered on the sanctity of the judicial decision-making process. By classifying the assessor as a component of the court's own deliberative machinery rather than an external source of evidence, the court effectively shielded the assessor's internal documents from discovery. The court's reasoning suggests that the transparency of the judicial process is satisfied by the delivery of a reasoned judgment, and that the "behind-the-scenes" technical advice that informs that judgment is protected by the same principles of confidentiality that apply to a judge's own research and deliberations.

What Was the Outcome?

The High Court dismissed the plaintiffs' application for pre-action discovery in its entirety. Choo Han Teck JC found no legal basis to compel the court-appointed assessors to produce their internal notes, drafts, or correspondence for the inspection of the parties. The court's decision was rooted in the fundamental principle that the work product of an assessor, as a technical advisor to the judge, is not evidence and therefore falls outside the scope of discoverable materials.

The operative conclusion of the court was stated succinctly in the final paragraph of the judgment:

"For the reasons above, the application was dismissed." (at [9])

In addition to dismissing the substantive application, the court made specific orders regarding the costs of the proceeding. The plaintiffs were ordered to pay the costs of the first and third defendants. The court fixed these costs at specific amounts, reflecting the work done by the respective legal teams in defending the application. The order was recorded as follows:

"I ordered that the costs of this application be paid by the plaintiffs to the first defendant in the sum of $2,00 and to the third defendant in the sum of $8,000." (at [9])

The disparity in the cost awards ($2,00 for the first defendant and $8,000 for the third defendant) was not explicitly detailed in the judgment's prose, but the order was final and binding. The second defendant's costs were not mentioned in the final operative paragraph, though the application against all three was dismissed.

The outcome of this case effectively barred the plaintiffs from pursuing their intended negligence claim against the assessors, as they were unable to obtain the documentary evidence they believed was necessary to substantiate their allegations. The judgment served as a definitive stop to the collateral litigation arising from the 1996 valuation dispute, reinforcing the finality of the court's determination in OS 727/1996. By dismissing the application, the court protected the three assessors—Sajjad Akhtar, Chee Keng Hoy, and Philip Leow—from having their private professional working papers scrutinized by the very parties whose assets they had helped value.

Why Does This Case Matter?

The judgment in Ng Giok Oh v Sajjad Akhtar is a seminal decision in Singapore civil procedure, particularly regarding the intersection of expert evidence and judicial administration. Its significance lies in three primary areas: the definition of the assessor's role, the limits of pre-action discovery, and the protection of the judicial consultative process.

Firstly, the case provides the most authoritative Singaporean statement on the legal status of court assessors. By explicitly adopting the English position from The Beryl and Richardson v Redpath, the High Court clarified that assessors are not witnesses. This has profound implications for how technical experts are utilized in Singapore courts. Practitioners must understand that once an expert is appointed as an assessor, they move from the adversarial realm into the judicial realm. Their advice is given in confidence to the judge, and the parties lose the right to challenge that advice through cross-examination or discovery. This case serves as a warning to litigants that agreeing to the appointment of an assessor involves a trade-off: they gain the benefit of neutral technical expertise but lose the procedural safeguards associated with partisan expert witnesses.

Secondly, the case reinforces the high threshold for pre-action discovery in Singapore. Choo Han Teck JC’s characterization of the application as "snooping for action" highlights the court's intolerance for "fishing expeditions." The judgment clarifies that pre-action discovery is a surgical tool intended to assist a party who has a clear claim but lacks a specific document to plead it; it is not a broad-spectrum diagnostic tool to see if a claim exists in the first place. This is a vital distinction for practitioners to maintain when advising clients on the feasibility of pre-action applications.

Thirdly, the decision protects the integrity of the judicial system by ensuring that the "internal" deliberations of the court remain confidential. If assessors' notes were discoverable, it would logically follow that a judge's own research notes or a law clerk's memoranda might also be subject to scrutiny. By drawing a hard line at the judgment itself, the court ensured that the finality of litigation is not undermined by secondary lawsuits against the court's own advisors. The principle that an assessor's errors are "buried" with the judgment is a powerful statement of judicial immunity and finality.

In the broader context of the Singapore legal landscape, this case supports the efficient resolution of complex commercial disputes. By shielding assessors from the threat of negligence claims based on their internal drafts, the court ensures that high-caliber professionals remain willing to serve as assessors. Without such protection, the risk of being sued by a disgruntled litigant would likely deter the very experts the court needs most. Thus, the decision is not just about discovery; it is about the viability of the assessor system as a whole.

Practice Pointers

• Distinguish Assessors from Experts: Practitioners must clearly distinguish between an expert witness (whose report is evidence and who is subject to cross-examination) and an assessor (who is an advisor to the court). The choice between the two significantly impacts the client's ability to challenge technical findings.
• Manage Client Expectations on Finality: Clients should be advised that once an assessor is appointed, their internal reasoning and preliminary advice to the judge are likely to remain confidential and immune from discovery. Disagreement with the assessor's technical input must be addressed through the judgment's reasoning on appeal, not via collateral discovery.
• Avoid "Fishing" in Pre-Action Discovery: When filing for pre-action discovery under Order 24, ensure the application is grounded in a substantiated cause of action. Applications that appear to be "snooping" for a claim where none is evident will be dismissed with significant cost consequences.
• Scrutinize Consent Orders: The 1998 consent order in this case failed to prevent further litigation because it was difficult to implement. Practitioners should ensure that valuation formulas in consent orders are technically feasible and include dispute resolution mechanisms that do not necessarily require a return to court.
• Appellate Remedy is Primary: If a technical error is suspected in a judgment involving an assessor, the primary remedy is an appeal against the judgment itself. The court will not allow a "backdoor" challenge to the judgment by suing the assessors for negligence.
• Cost Risks: Be aware of the cost risks in pre-action discovery. In this case, the plaintiffs were ordered to pay significant fixed costs ($8,000 to one defendant alone) despite the application being a relatively short originating summons.

Subsequent Treatment

The principles established in Ng Giok Oh v Sajjad Akhtar regarding the non-discoverability of assessor work product have remained a cornerstone of Singapore civil procedure. The case is frequently cited as the leading authority for the proposition that court assessors are technical advisors whose internal deliberations are protected by judicial privilege. Later courts have consistently followed the distinction between "unsworn witnesses" and "court advisors," ensuring that the assessor system remains a robust and confidential tool for the judiciary in complex technical litigation.

Legislation Referenced

• Rules of Court (Cap 322, R 5): Specifically Order 24, Rule 6, which governs the requirements and procedures for pre-action discovery of documents.
• Supreme Court of Judicature Act (Cap 322): The source of the court's power to appoint assessors to assist in the determination of technical issues.

Cases Cited

• Applied:
  • The Beryl [1884] 9 PD 137 (High Court)
  • Richardson v Redpath, Brown & Co Ltd [1944] AC 62 (House of Lords)
• Referred to:
  • Kuah Kok Kim v Ernst & Young [1997] 1 SLR 169
  • Sutcliffe v Thackrah [1974] AC 727
  • Arensen v Casson Beckman Rutley & Co [1975] 3 All ER 901

Source Documents

• Original judgment PDF: Download (PDF, hosted on Legal Wires CDN)
• Official eLitigation record: View on elitigation.sg