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Singapore
By Sushant Shukla 14 min read

United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and others [2017] SGHC 140

Litigation privilege subsists in an affidavit that is finalised and intended for use at trial, but not yet served or filed. Selective disclosure of such a document to an adversary in multi-party litigation does not necessarily constitute a waiver of privilege.

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Case Details

  • Citation: [2017] SGHC 140
  • Court: High Court of the Republic of Singapore
  • Decision Date: 15 June 2017
  • Coram: Aedit Abdullah JC
  • Case Number: Suit No 1250 of 2014; Registrar’s Appeal No 33 of 2017
  • Hearing Date(s): 14 March 2017
  • Appellant: Lippo Marina Collection Pte Ltd (First Defendant)
  • Respondent: United Overseas Bank Limited (Plaintiff)
  • Counsel for Appellant: See Chern Yang and Teng Po Yew (Premier Law LLC)
  • Counsel for Respondent: Eddee Ng, Alcina Chew, Lau Qiuyu and Sherlene Goh (Tan Kok Quan Partnership)
  • Practice Areas: Civil procedure; Discovery of documents; Litigation privilege; Without prejudice privilege

Summary

The decision in United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and others [2017] SGHC 140 addresses the complex intersection of litigation privilege and multi-party settlement dynamics. The dispute arose from an application for specific discovery filed by the first defendant, Lippo Marina Collection Pte Ltd, seeking the production of an affidavit (the "Affidavit") referenced in a settlement agreement between the plaintiff bank and the second and third defendants. The High Court was required to determine whether litigation privilege subsisted in a document that had been finalized and intended for use at trial but had not yet been served or filed, and whether the selective disclosure of that document to an adversary within a settlement framework constituted a waiver of privilege against the remaining non-settling parties.

Aedit Abdullah JC dismissed the appeal, affirming the decision of the Assistant Registrar in [2017] SGHCR 1. The court held that litigation privilege remained intact. The judgment establishes that the "dominant purpose" of a document is not vitiated merely because it is utilized as a lever in settlement negotiations, provided its primary raison d'être remains the conduct of litigation. Furthermore, the court clarified that the absence of a formal affidavit from the privilege-holder asserting the privilege is not a fatal procedural defect; the court is empowered to look behind bare assertions or the lack thereof to the substance of the document and the surrounding circumstances to determine the existence of privilege.

On the issue of waiver, the court adopted a restrictive approach to the "waiver against the world" doctrine. It held that the disclosure of a settlement agreement that merely references a privileged document does not automatically result in the loss of privilege over the underlying document itself. In the context of multi-party litigation, selective disclosure to one party for the purpose of settlement does not necessarily imply an intention to abandon privilege as against other defendants. This decision provides critical protection for litigants who seek to settle with a subset of defendants without compromising their evidentiary advantages against others.

The doctrinal contribution of this case lies in its refinement of the waiver principles in multi-party settings and its pragmatic application of the Evidence Act alongside common law privilege. It reinforces the policy that privilege is a substantive right that should not be easily eroded by the procedural complexities of modern commercial litigation or the strategic disclosure of settlement terms.

Timeline of Events

  1. 2011 to 2013: The first defendant, Lippo Marina Collection Pte Ltd, sold 38 units in the Marina Collection development to 38 separate purchasers.
  2. 26 November 2014: The plaintiff, United Overseas Bank Limited, commenced Suit No 1250 of 2014 against the defendants, alleging unlawful means conspiracy and deceit.
  3. 29 March 2016: The plaintiff entered into a Settlement Agreement with the second and third defendants. This agreement referenced an "Affidavit" affirmed by the second defendant.
  4. 15 April 2016: The plaintiff provided a copy of the Settlement Agreement to the first defendant, though the Affidavit itself was not attached.
  5. 13 June 2016: The first defendant requested a copy of the Affidavit from the plaintiff.
  6. 5 August 2016: The first defendant filed Summons No 3835 of 2016 seeking specific discovery of the Affidavit.
  7. 19 August 2016: The plaintiff filed an affidavit resisting discovery on the grounds of litigation privilege and without prejudice privilege.
  8. 30 August 2016: The second and third defendants’ solicitors informed the first defendant that they also claimed privilege over the Affidavit.
  9. 12 October 2016: The first defendant filed Summons No 4966 of 2016 for specific discovery of the Affidavit.
  10. 19 January 2017: Assistant Registrar Bryan Fang delivered written grounds in [2017] SGHCR 1, dismissing the application for discovery of the Affidavit.
  11. 1 February 2017: The first defendant filed Registrar’s Appeal No 33 of 2017 against the Assistant Registrar's decision.
  12. 14 March 2017: The substantive hearing for the appeal was conducted before Aedit Abdullah JC.
  13. 15 June 2017: The High Court delivered its judgment, dismissing the appeal.

What Were the Facts of This Case?

The underlying litigation, Suit No 1250 of 2014, involved a claim by United Overseas Bank Limited ("UOB") against Lippo Marina Collection Pte Ltd ("Lippo Marina") and several other defendants. The core of the dispute concerned the sale of 38 units in a 99-year leasehold condominium development known as the Marina Collection, located at Sentosa Cove. Between 2011 and 2013, Lippo Marina sold these units to 38 purchasers in separate transactions. UOB provided housing loans to these purchasers to finance their acquisitions.

UOB’s claim was rooted in allegations of unlawful means conspiracy and deceit. The bank contended that the defendants had conspired to mislead it into granting housing loans that exceeded the maximum loan-to-value limits permitted under the Monetary Authority of Singapore ("MAS") Notice 632. Specifically, UOB alleged that Lippo Marina had offered significant furniture rebates to the purchasers, which were not disclosed to the bank. These rebates effectively reduced the actual purchase price, meaning the loans granted by UOB were based on inflated prices. UOB asserted that had it known the true net purchase prices, it would not have approved the loans in the amounts requested.

Lippo Marina denied these allegations, maintaining that it was not involved in any conspiracy or fraudulent conduct. It argued that the financing arrangements were matters between the bank and the purchasers and that UOB had conducted its own independent checks and risk assessments. The second and third defendants, who were also parties to the suit, initially filed a joint defense denying the conspiracy. However, the procedural landscape shifted significantly on 29 March 2016, when UOB entered into a Settlement Agreement with the second and third defendants.

The Settlement Agreement was a pivotal document in the discovery dispute. It contained recitals stating that the second defendant had affirmed an affidavit (the "Affidavit") which set out the nature and extent of the first defendant’s involvement in the alleged fraud and conspiracy. The agreement stipulated that the second defendant would provide truthful testimony at trial consistent with the contents of the Affidavit. In exchange, UOB agreed to regulate its future conduct of the claims, including a promise not to enforce any judgment against the second and third defendants, provided the second defendant testified truthfully.

Following the execution of the Settlement Agreement, UOB disclosed the agreement itself to Lippo Marina. Lippo Marina, noting the reference to the Affidavit, sought its discovery. Lippo Marina argued that the Affidavit was essential to its defense, as it likely contained the second defendant’s version of the events surrounding the furniture rebates and the alleged conspiracy. UOB resisted the discovery application, asserting that the Affidavit was protected by litigation privilege and without prejudice privilege. The second and third defendants, through their solicitors, also asserted privilege, although they did not file any affidavits in the discovery proceedings to support this claim or explain the circumstances under which the Affidavit was created.

The discovery application was first heard by an Assistant Registrar, who determined that the Affidavit was indeed protected by litigation privilege and that this privilege had not been waived by the disclosure of the Settlement Agreement. Lippo Marina appealed this decision to the High Court, leading to the present judgment. The appeal focused on whether the Affidavit met the legal requirements for litigation privilege and whether the actions of the settling parties amounted to an implied or express waiver of that privilege as against the non-settling first defendant.

The appeal raised three primary legal issues concerning the law of privilege and discovery in Singapore:

  • Issue 1: The Procedural Requirement for Asserting Privilege. The court had to determine whether litigation privilege could be successfully asserted when the party claiming the privilege (the second and third defendants) failed to file an affidavit specifically attesting to the facts supporting the claim of privilege. The first defendant argued that the absence of such an affidavit was fatal to the claim.
  • Issue 2: The Subsistence of Litigation Privilege. The court analyzed whether the Affidavit satisfied the two-limb test for litigation privilege: (a) whether there was a reasonable prospect of litigation at the time of the document's creation, and (b) whether the document was created for the dominant purpose of that litigation. A sub-issue was whether an affidavit prepared in the context of a settlement agreement could still be said to have the "dominant purpose" of litigation.
  • Issue 3: Waiver of Privilege in Multi-Party Litigation. The court examined whether the disclosure of the Settlement Agreement to the first defendant, or the reference to the Affidavit within that agreement, constituted a waiver of privilege over the Affidavit. The first defendant contended that by disclosing the agreement, the second and third defendants had waived privilege "against the entire world."

These issues required the court to balance the competing interests of full disclosure in the adversarial process against the protection of privileged communications and the policy of encouraging settlements.

How Did the Court Analyse the Issues?

The Procedural Requirement for Asserting Privilege

The first defendant argued that because the second and third defendants (the actual holders of the privilege) had not filed an affidavit to assert privilege over the Affidavit, the claim must fail. They relied on the principle that the burden of proof lies on the party claiming privilege. However, Aedit Abdullah JC rejected this formalistic approach. Relying on the Court of Appeal decision in ARX v Comptroller of Income Tax [2016] 5 SLR 590, the court noted that while a bare assertion of privilege is often insufficient, the court is not precluded from looking at the documents themselves or the surrounding circumstances to determine if privilege is rightly asserted.

The court held at [20] that "the court may, if it is not satisfied with a bare assertion of privilege, look behind that assertion on affidavit to the documents themselves to ascertain if the privilege has been rightly asserted." By extension, the court found that even in the absence of an affidavit from the privilege-holder, the court could rely on other evidence—such as the plaintiff’s affidavit and the terms of the Settlement Agreement—to determine the status of the document. The court found sufficient evidence in the Settlement Agreement's recitals to conclude that the Affidavit was prepared by the second defendant while advised by solicitors for the purpose of the ongoing suit.

The Subsistence of Litigation Privilege

The court applied the established two-limb test for litigation privilege as set out in Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd [2007] 2 SLR 367 ("Asia Pacific Breweries"). The test requires that: (a) there was a reasonable prospect of litigation, and (b) the document was created for the dominant purpose of litigation.

Regarding the first limb, there was no dispute that Suit No 1250 of 2014 was already underway when the Affidavit was created in early 2016. Thus, the "reasonable prospect" requirement was clearly met. The crux of the analysis focused on the "dominant purpose" limb. The first defendant argued that the Affidavit was created for the purpose of settlement, not litigation. The court disagreed, reasoning that an affidavit, by its very nature, is a document intended for use in judicial proceedings. The fact that it was used as a condition for settlement did not strip it of its primary character as a litigation document. The court observed that the Affidavit was intended to stand as the second defendant's evidence-in-chief at trial. At [51], the court noted that "the Affidavit was prepared for the purpose of the Suit," and its use in the settlement did not displace this dominant purpose.

The court also considered the status of unserved affidavits. Drawing on English authorities and the Evidence Act, the court concluded that a witness statement or affidavit remains privileged until it is actually served or used in court. Since the Affidavit had neither been filed nor served, the privilege remained intact.

Waiver of Privilege

The most significant part of the analysis concerned whether privilege had been waived. The first defendant argued that the disclosure of the Settlement Agreement (which described the Affidavit) to them constituted a waiver. They further argued that once privilege is waived to one party, it is waived "against the world."

The court rejected the "waiver against the world" argument in the context of litigation privilege. It distinguished between legal advice privilege and litigation privilege, noting that the latter is more robust in multi-party settings. The court held that selective disclosure of a privileged document to one party (the plaintiff) for the purpose of settlement does not automatically waive privilege against other parties (the first defendant). The court emphasized that waiver depends on whether the conduct of the privilege-holder is "plainly inconsistent" with the maintenance of the privilege.

The court found that the disclosure of the Settlement Agreement was a requirement of the court's earlier directions and did not manifest an intention to waive privilege over the underlying Affidavit. At [86], the court stated:

"I find that litigation privilege subsists in the Affidavit and has not been waived as against the first defendant by the second and third defendants’ selective disclosure of it to the plaintiff."

The court also addressed the "implied waiver" doctrine, noting that merely referencing a document in a pleading or a settlement agreement does not constitute a waiver of the document's contents unless the party relies on the contents of the document to advance its case in a way that would be unfair to the other side. Here, the plaintiff was not yet relying on the Affidavit's contents in the litigation; it was merely a document that might be used in the future.

Without Prejudice Privilege

The court briefly addressed without prejudice privilege under Section 23(1) of the Evidence Act. It noted that while the Settlement Agreement itself might be protected, the Affidavit was a separate document. However, given the finding on litigation privilege, the court did not find it necessary to make a definitive ruling on whether without prejudice privilege also applied to the Affidavit, although it noted that the Affidavit was clearly "connected" to the settlement negotiations.

What Was the Outcome?

The High Court dismissed the appeal in its entirety. The court upheld the Assistant Registrar’s decision that the Affidavit was protected by litigation privilege and that such privilege had not been waived. Consequently, the first defendant's application for specific discovery of the Affidavit was denied.

The operative conclusion of the court was stated at [119]:

"The appeal is therefore dismissed. Directions for arguments on costs will be given separately."

The court's orders meant that the plaintiff and the second and third defendants were not required to produce the Affidavit to the first defendant at that stage of the proceedings. The court also clarified that the second and third defendants’ failure to actively participate in the appeal did not prejudice the claim of privilege, as the court was satisfied on the evidence provided by the plaintiff and the documents themselves that the privilege was validly asserted.

Regarding costs, the court reserved the issue for further submissions, following the standard practice in interlocutory appeals where the substantive outcome may influence the final costs order.

Why Does This Case Matter?

This case is a landmark for practitioners navigating the complexities of multi-party litigation and the strategic use of settlement agreements. Its significance can be categorized into three main areas: the robustness of litigation privilege, the limits of the waiver doctrine, and the procedural flexibility of the court in privilege disputes.

1. Protection of Unserved Evidence: The judgment confirms that affidavits and witness statements remain protected by litigation privilege until the moment they are served or filed. This is crucial for litigators who often prepare multiple drafts or "trial-ready" documents during settlement negotiations. The court’s recognition that a document can have a "dominant purpose" of litigation even if it is used as a bargaining chip in settlement provides a necessary safety net for parties attempting to resolve disputes without losing their evidentiary shield.

2. Restrictive Approach to Waiver: The decision is a significant blow to the "waiver against the world" theory in Singapore. By holding that selective disclosure in a multi-party context does not necessarily result in a total loss of privilege, the court has prioritized the policy of encouraging settlements. If every settlement with a single defendant required the disclosure of all privileged materials to all other defendants, the incentive to settle would be greatly diminished. This case ensures that a plaintiff can "arm" itself with information from a settling defendant without being forced to immediately share that information with the remaining adversaries.

3. Substance Over Form in Asserting Privilege: The court’s willingness to look behind the absence of a formal affidavit from the privilege-holder is a pragmatic development. It acknowledges that in complex litigation, the party holding the privilege may be a settling defendant who has no interest in participating in further interlocutory skirmishes. By allowing the court to determine privilege based on the "nature of the document" and the "surrounding circumstances," the judgment prevents the loss of substantive rights due to procedural defaults by third parties.

4. Doctrinal Lineage: The case reinforces the Asia Pacific Breweries framework while integrating the ARX approach to judicial scrutiny of privilege claims. It also provides a clear application of the Evidence Act to modern discovery issues, particularly the interaction between Section 131 (litigation privilege) and Section 23 (without prejudice privilege). For practitioners, this case serves as the primary authority for resisting discovery of settlement-linked affidavits in multi-party suits.

Practice Pointers

  • Drafting Settlement Agreements: When referencing privileged documents (like draft affidavits) in a settlement agreement, ensure the recitals clearly state that the document was prepared for the purpose of the litigation and that privilege is expressly reserved.
  • Selective Disclosure: If you must disclose a privileged document to one party in a multi-party suit, do so under a clear "common interest" or "limited waiver" agreement to further protect against arguments of general waiver.
  • Affidavits for Privilege: While the court in this case was lenient, the best practice remains for the privilege-holder to file an affidavit explaining the "dominant purpose" and the circumstances of the document's creation to avoid the risk of a court finding the evidence insufficient.
  • Timing of Service: Remember that privilege is lost upon service. If a settlement falls through after an affidavit has been served as part of the agreement's terms, the privilege cannot be clawed back.
  • MAS Notice Compliance: In banking litigation involving property loans, be aware that non-disclosure of rebates may be framed as a conspiracy to circumvent MAS Notice 632, making the "dominant purpose" of internal investigations and related affidavits highly likely to be litigation-oriented.
  • Monitor Multi-Party Dynamics: In cases with numerous defendants, a settlement with one can be a discovery "gold mine" for others. Use this case to shield sensitive cooperation materials from non-settling defendants.

Subsequent Treatment

The ratio of this case—that litigation privilege subsists in a finalized but unserved affidavit and is not waived by selective disclosure in a settlement context—has been integrated into the broader body of Singapore civil procedure law. It is frequently cited in discovery disputes where one party attempts to leverage settlement references to gain access to privileged witness materials. The decision's emphasis on the "dominant purpose" remaining litigation-focused despite settlement utility has become a standard defense against discovery of "cooperation" documents in commercial fraud cases.

Legislation Referenced

  • Evidence Act (Cap 97, 1997 Rev Ed): Sections 23, 128, and 131 were central to the analysis of without prejudice and litigation privilege.
  • Rules of Court (Cap 322, R 5, 2014 Rev Ed): Order 14 Rule 12 (concerning the determination of questions of law) and Order 24 Rules 5 and 7 (concerning specific discovery) provided the procedural framework for the application.
  • Civil Evidence Act: Referenced in the context of the status of witness statements before service.

Cases Cited

Source Documents

Written by Sushant Shukla
Topics
Singapore SLW Case Law Singapore High Court Civil Procedure litigation privilege 2017 cases
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