Case Details
- Citation: [2017] SGHC 140
- Case Title: United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and others
- Court: High Court of the Republic of Singapore
- Date of Decision: 15 June 2017
- Judge: Aedit Abdullah JC
- Coram: Aedit Abdullah JC
- Case Number: Suit No 1250 of 2014 (Registrar’s Appeal No 33 of 2017)
- Plaintiff/Applicant: United Overseas Bank Ltd
- Defendant/Respondent: Lippo Marina Collection Pte Ltd and others
- Parties (as named in the judgment): United Overseas Bank Limited; Lippo Marina Collection Pte Ltd; Goh Buck Lim; Aurellia Adrianus Ho (also known as Filly Ho); Goh Han Rong Clarke; Goh Yu Wei Ewis; Jennifer Janeth; Erfan Syah Putra; Theodora Budi Halimundjaja
- Legal Areas: Civil procedure — Discovery of documents; Civil procedure — Privilege
- Specific Privilege Issues: Litigation privilege; without prejudice privilege
- Statutes Referenced: Evidence Act
- Related/Procedural History: Appeal to this decision in Civil Appeal No 129 of 2017 dismissed by the Court of Appeal on 3 May 2018 (no written grounds rendered)
- Judgment Length: 25 pages, 14,207 words
- Counsel for Plaintiff: Eddee Ng, Alcina Chew, Lau Qiuyu and Sherlene Goh (Tan Kok Quan Partnership)
- Counsel for First Defendant: See Chern Yang and Teng Po Yew (Premier Law LLC)
- Decision Type: Registrar’s appeal (discovery of documents; privilege)
- Lower Court Decision: Assistant Registrar Bryan Fang, written Grounds of Decision dated 19 January 2017 in [2017] SGHCR 1 (“UOB v Lippo”)
- Key Prior Case Mentioned: United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and others [2016] 2 SLR 597
Summary
This High Court decision concerns an application for specific discovery of an affidavit (“the Affidavit”) that was referenced in a settlement agreement between the plaintiff bank and two defendants (the second and third defendants). The first defendant sought discovery of the Affidavit in order to challenge the bank’s allegations in the underlying suit, which involved claims in tort for unlawful means conspiracy and deceit relating to allegedly misleading housing loan transactions. The plaintiff resisted disclosure on the basis of privilege, specifically litigation privilege and/or without prejudice privilege.
The Assistant Registrar below had disallowed discovery on the ground of litigation privilege. On appeal, Aedit Abdullah JC dismissed the first defendant’s appeal, holding that litigation privilege in the Affidavit subsisted and had not been waived. The court accepted that litigation privilege may attach to documents even where the privilege is not asserted by the relevant party on affidavit, and it further held that the settlement-related conduct did not amount to a waiver “against the entire world” in the circumstances of a multi-party dispute.
What Were the Facts of This Case?
The plaintiff, United Overseas Bank Ltd (“UOB”), is a commercial bank licensed by the Monetary Authority of Singapore (MAS) to offer, among other products, housing loans. The first defendant, Lippo Marina Collection Pte Ltd (“Lippo Marina”), developed a 99-year leasehold condominium known as the Marina Collection. Between 2011 and 2013, Lippo Marina sold 38 units to 38 purchasers through separate transactions. UOB granted housing loans to the purchasers to finance their purchases.
After the loans were granted, UOB discovered that Lippo Marina had offered significant furniture rebates to the purchasers. UOB alleged that these rebates exceeded market norms and were not reflected in the housing loan application forms. UOB commenced the suit on 26 November 2014, advancing claims in unlawful means conspiracy and deceit. In essence, UOB alleged that the defendants’ conduct formed part of a deliberate effort to mislead UOB into granting housing loans based on artificially inflated purchase prices and in excess of the maximum loan amounts permitted under MAS Notice 632.
Lippo Marina denied any involvement in conspiracy or fraud. It pleaded that the financing arrangements were matters solely between UOB and the purchasers, and that it had no knowledge of the alleged wrongdoing. It also argued that any loss was caused by UOB’s own decision-making, including its independent checks and risk assessments, or its failure to perform them properly. The second and third defendants, who were real estate agents, filed a joint defence denying conspiracy or deceit. Their defence included an argument that suspicious transfers of money between purchasers’ accounts and the accounts of certain defendants were made pursuant to suggestions by UOB’s vice-president of home loans, Ann Ong, and that Ann Ong’s knowledge and acts should be attributed to UOB or could found an estoppel.
Against this backdrop, the parties entered into a settlement agreement on 29 March 2016 between UOB and the second and third defendants. The settlement agreement recited that the second defendant had affirmed an affidavit (the Affidavit) concerning the nature and extent of the first defendant’s involvement in the alleged fraud and conspiracy. The settlement agreement also recorded that the Affidavit was made while the second defendant was advised by solicitors and without coercion or influence. In consideration, UOB agreed to regulate its future conduct of claims against the other defendants, including discontinuing its claims against the fourth to eighth defendants. The settlement agreement further provided that, upon the second defendant giving truthful testimony at trial as recorded in the Affidavit, UOB would not take action to enforce any judgment in respect of claims against the second and third defendants.
What Were the Key Legal Issues?
The appeal focused narrowly on discovery of the Affidavit and the scope of litigation privilege. Two key legal issues were framed by the Assistant Registrar and adopted on appeal. First, the court had to determine whether litigation privilege could attach to the Affidavit even though the second and third defendants had omitted to file any affidavits asserting the privilege as such. Put differently, the question was whether privilege could be established by the court looking beyond a bare assertion, and whether the absence of an affidavit from the privilege-claiming party was fatal.
Second, assuming litigation privilege could attach, the court had to decide whether the privilege was waived. The first defendant’s argument was that, by making disclosure of the settlement agreement (which referenced the Affidavit) to the first defendant, the second and third defendants (and/or UOB) had waived litigation privilege “against the entire world”. The legal issue therefore concerned the doctrine of waiver in the context of multi-party litigation and settlement-related disclosure.
How Did the Court Analyse the Issues?
On the first issue, the High Court endorsed the approach that privilege is not determined solely by the presence or absence of a formal assertion on affidavit. The court relied on the Court of Appeal’s guidance in ARX v Comptroller of Income Tax [2016] 5 SLR 590, where it was stated that if the court is not satisfied with a bare assertion of privilege, it may look behind that assertion and examine the documents themselves to ascertain whether privilege has been rightly asserted. The High Court treated this as an evidential and analytical framework: the court may scrutinise the circumstances and the nature of the document to determine whether the privilege requirements are met, rather than treating the privilege-claiming party’s procedural omissions as automatically determinative.
Although the second and third defendants did not take an active role in the discovery application or the appeal (they filed no affidavits, made no arguments, and did not appear), the court still assessed whether litigation privilege in the Affidavit subsisted. The court’s reasoning proceeded on the basis that litigation privilege attaches where the document is created for the dominant purpose of litigation and where there is a reasonable prospect of litigation at the time the document was brought into existence or legal advice was sought. In this case, the court found that both requirements were satisfied. The Affidavit was connected to the settlement negotiations and was prepared in the context of an ongoing dispute in which litigation was reasonably in prospect. The Affidavit was therefore not a mere record of facts; it was a litigation-oriented document prepared for use in the adversarial process.
On the second issue, the court addressed waiver. Waiver of privilege is a sensitive doctrine because it can undermine the policy objectives underlying privilege: encouraging frank communication with legal advisers and protecting the adversarial process. The first defendant argued that the settlement agreement’s disclosure to it amounted to waiver of litigation privilege over the Affidavit. The court rejected that argument. It emphasised that the settlement agreement contained recitals and terms that referenced the Affidavit, but that reference did not necessarily disclose the contents of the Affidavit or amount to an election to waive privilege over it.
The court’s analysis also reflected the multi-party nature of the litigation. In a dispute with multiple defendants and a settlement with only some parties, the question of waiver must be approached carefully. The court considered whether the conduct relied upon by the first defendant was sufficiently inconsistent with maintaining privilege. The court concluded that litigation privilege was not waived “against the entire world” merely because the settlement agreement was produced or because the Affidavit was referenced in the settlement recitals. The settlement agreement’s disclosure did not equate to disclosure of the privileged material itself, nor did it demonstrate an intention to abandon privilege. Accordingly, the privilege subsisted and remained enforceable against the first defendant’s discovery application.
What Was the Outcome?
The High Court dismissed the first defendant’s appeal. The court upheld the Assistant Registrar’s decision to disallow discovery of the Affidavit on the ground of litigation privilege. The practical effect was that the first defendant could not compel the plaintiff (and/or the second and third defendants) to produce the Affidavit at that stage of the proceedings.
In addition, the court’s decision confirmed that litigation privilege can be sustained even where the privilege-claiming parties do not actively participate in the discovery application, and that waiver is not lightly inferred from settlement-related disclosure that merely references privileged documents.
Why Does This Case Matter?
This case is significant for practitioners dealing with discovery disputes involving privilege, particularly in complex, multi-party litigation where settlement agreements are used as procedural and substantive tools. First, it reinforces that litigation privilege is assessed substantively, not mechanically. Even if the party claiming privilege does not file an affidavit asserting it, the court may examine the circumstances and the nature of the document to determine whether the privilege requirements are met, consistent with ARX.
Second, the decision provides useful guidance on waiver. Waiver is often argued in discovery applications where privileged material is referenced or partially disclosed. This judgment indicates that courts will look for a meaningful inconsistency with maintaining privilege, and will not treat mere reference to a privileged document in a settlement agreement as automatic waiver. For litigators, this means that settlement drafting and disclosure strategies should be approached with care: parties should understand that recitals and references may not, by themselves, open the door to discovery of the underlying privileged contents.
Third, the case highlights the procedural realities of multi-party disputes. Where some defendants settle and others continue to litigate, discovery applications may become tactical. The court’s approach in this case suggests that privilege doctrines will be applied with attention to the adversarial purpose of the privileged document and the context in which any settlement-related disclosure occurred. This is particularly relevant for banks, insurers, and corporate litigants who frequently settle with some parties while defending claims against others.
Legislation Referenced
- Evidence Act (Singapore)
Cases Cited
- [2017] SGHC 140 (this decision)
- [2017] SGHCR 1 (Assistant Registrar Bryan Fang’s decision in the court below)
- ARX v Comptroller of Income Tax [2016] 5 SLR 590
- United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and others [2016] 2 SLR 597
Source Documents
This article analyses [2017] SGHC 140 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.