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Grounds publishedDecided 23 Dec 2015
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High Court

CIFG Special Assets Capital I Ltd (formerly known as Diamond Kendall Ltd) v Polimet Pte Ltd and others

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[2015] SGHC 325Case no. Suit No 758 of 2013 (Registrar's Appeal No 232 of 2015)

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  1. George Wei J:

  2. Introduction

  3. [2] RWY is a law firm in Kuala Lumpur, Malaysia. Mr Yip Huen Weng (“Mr Yip”) is an advocate and solicitor of the High Court of Malaya and a partner of RWY. There is no suggestion that Mr Yip has been called to the bar in Singapore or that he holds a Singapore practising certificate. The relevance of this point will become clearer below.

  4. Background

  5. The parties

  6. [4] The plaintiff, CIFG Special Assets Capital I Ltd (“CIFG”), is a private company incorporated in Mauritius. It was set up as a special purpose vehicle by Kendall Court Mezzanine (Asia) Fund 1 LP (“Kendall Court”) for the purpose of entering into Convertible Bond Subscription Agreements (“CBSAs”) with the defendants. It is worth noting that CIFG was formerly known as Diamond Kendall Limited and most of the material events took place prior to the change of name. To be clear, references to “the plaintiff” will include both CIFG and its previous incarnation, Diamond Kendall Limited.

  7. [5] The first defendant, Polimet Pte Ltd (“Polimet”), is a private limited company incorporated in Singapore. It is in the business of, inter alia, manufacturing lead-in wires and cold formed components for the glass diodes and semiconductor industry. The second to fifth defendants were the initial shareholders of Polimet. At present, the second defendant, Lee Sin Peng (“Ms Lee”), is a director of Polimet. I note that the second to fifth defendants are Malaysians.

  8. [6] The third parties, Chris Chia Woon Liat (“Mr Chia”) and Yeo Kar Peng (“Ms Yeo”), were the plaintiff’s former nominee directors in Polimet. They were directors of Polimet from 5 October 2007 to 21 September 2012, and 5 October 2007 to 26 March 2012 respectively. The third parties were the representatives of Kendall Court in the negotiations leading up to the CBSAs entered into between the plaintiff and the defendants. After the plaintiff was formed, the third parties were also the plaintiff’s representatives in all matters related to and arising out of the CBSAs.

  9. The agreements

  10. [7] In October 2007, the parties entered into a Convertible Bond Subscription Agreement dated 5 October 2007 (“2007 CBSA”) by which Polimet issued a convertible bond with a redemption value of US$8,333,333 (subsequently increased to US$9,166,667) and the plaintiff subscribed for the full amount the bond. In exchange, the plaintiff granted Polimet a facility in the sum of US$5,500,000 to be drawn down in three tranches.

  11. [8] On 16 October 2008, the parties entered into another CBSA (“2008 CBSA”). The parties also entered into a Supplemental Bond Subscription Agreement on the same date (“Supplemental 2008 CBSA”). Under these agreements, Polimet issued a convertible bond with a redemption value of US$4,666,667 and the plaintiff subscribed for the full amount of the bond. In exchange, the plaintiff granted Polimet a facility in the sum of US$2,800,000.

  12. [10] It is undisputed that Polimet drew down the entire facility extended by the plaintiff pursuant to the aforesaid agreements. In 2009, at Polimet’s request and in the light of the defendants’ inability to meet its upcoming payment obligations and maintain the financial ratios required of it under the 2007 CBSA and the 2008 CBSA, the parties entered into a Supplemental CBSA on 28 October 2009 (“Supplemental 2009 CBSA”). The purpose of the Supplemental 2009 CBSA was to grant Polimet a two-year grace period in respect of its payment obligations and eased the financial ratios to be maintained by Polimet under the 2007 CBSA and the 2008 CBSA.

  13. [11] In or around October 2011, the parties were in discussions about implementing a moratorium of Polimet’s obligations under the CBSAs (“the Proposed Agreement”). Mr Yip was appointed to draft the Proposed Agreement. On one hand, the plaintiff takes the position that Mr Yip was appointed as the plaintiff’s solicitor. On the other hand, the defendants argue that Mr Yip was the solicitor of both the plaintiff and the defendants.

  14. [12] The Proposed Agreement was never concluded. Pertinently, the Documents that are the subject of this appeal relate to the communications between the plaintiff and Mr Yip in relation to the Proposed Agreement.

  15. [13] It appears that the 2007 and 2008 CBSAs and the Supplemental 2009 CBSA were prepared by law firms in Malaysia. The Proposed Agreement in October 2011 was prepared by My Yip.

  16. The suit

  17. [14] To properly understand the issues arising in this appeal, it is necessary to have a broad understanding of the claims and defences in the main suit, ie, Suit No 758 of 2013 (“the Suit”). The plaintiff commenced this suit, claiming the outstanding sums due and owing to them under the CBSAs.

  18. (a) Against Polimet, the plaintiff claims to be entitled to terminate the CBSAs and be paid all monies due under the same as a result of Polimet’s breaches of the CBSAs. These breaches include the failure to make payments due under the CBSAs and the failure to maintain the requisite financial ratios.

  19. (b) Against Ms Lee and Mr Ho, the plaintiff claims (on the Personal Guarantees) for 50% of all the sums owing by Polimet under the CBSAs.

  20. (c) Against Ms Lee, Mr Ho, Mr Ong Puay Koon (ie, the fourth defendant) (“Mr Ong”) and Mr Yap Tien Sung (ie, the fifth defendant) (“Mr Yap”), the plaintiff claims sums due and owing under the General Indemnity Clause.

  21. [15] In their defence and counterclaim, the defendants dispute the plaintiff’s understanding of the General Indemnity Clause and further allege that there was an oral agreement between the plaintiff’s representatives, Mr Chia and Ms Yeo, and Ms Lee, that the second to fifth defendants’ liability was limited to the loss of their initial shareholding in Polimet.

  22. [16] In the alternative, the defendants take the position that the General Indemnity Clause was included in the 2007 CBSA under a common, or alternatively, a unilateral mistake on the defendants’ part as to its nature and effect on the liability of the second to fifth defendants. They further plead that Mr Chia and Ms Yeo, as the plaintiff’s representatives, had misrepresented the effect of the General Indemnity Clause to the second to fifth defendants.

  23. [17] The defendants further allege that the circumstances surrounding the negotiations for the Proposed Agreement in October 2011 cast light on the parties’ understanding of the effect of the General Indemnity Clause that is set out in the 2007 and 2008 CBSA. According to them:

  24. (a) In the course of the negotiations, Mr Ong wanted written confirmation from RWY that his liability under the Proposed Agreement shall be limited to the loss of his initial shareholding in Polimet, as it allegedly was “supposed to be” under the 2007 CBSA.

  25. (b) Mr Ong could not obtain a satisfactory answer from RWY. Consequently, Mr Ong was not agreeable to proceed with the Proposed Agreement which was ultimately never concluded.

  26. [18] The plaintiff, in contrast, has pleaded that RWY (which the plaintiff alleges was its solicitor exclusively) did not provide Mr Ong with written confirmation that his liability under the Proposed Agreement was limited to the loss of his initial shareholding in Polimet because his liability was not limited in that manner.

  27. [19] There are two issues before me in this appeal:

  28. (a) First, are the Documents relevant and necessary for the fair disposal of the matter or the saving of costs?

  29. (b) Second, even if the Documents are relevant and necessary, are the documents cloaked with privilege such that they should not be disclosed?

  30. Relevance of Documents

  31. [20] The AR took the view that the Documents were relevant. She reasoned that the negotiations and/or communication between RWY and the plaintiff’s representatives in the lead up to the Proposed Agreement are likely to reveal the state of the defendants’ knowledge and understanding of the extent of their liability, as well as the state of the plaintiff’s and/or RWY’s knowledge of the defendants’ understanding of the same.

  32. The arguments

  33. [21] The defendants’ stated purpose for seeking disclosure is to shed light on the parties’ understanding of the extent of their liability under the 2007 CBSA. More specifically, they contend that the Documents will show that the parties were under a mistake or that the plaintiff was aware of the unilateral mistake in respect of the inclusion of the General Indemnity Clause.

  34. [22] The plaintiff first submits that the Proposed Agreement and its terms are wholly irrelevant because it was never concluded and the plaintiff is not suing on it. Second, the plaintiff submits that the documents are unnecessary because documents that have been disclosed already show the plaintiff’s views on the extent of the defendants’ liability under the CBSAs. Third, the plaintiff contends that the defendants are fishing and that is impermissible. In its view, the category of documents sought is very broadly framed and includes all written communications between RWY and the representatives of Kendall Court in relation to the negotiations and discussions leading up to and execution of the Proposed Agreement in October 2011, extending far beyond those pertaining to the General Indemnity Clause.

  35. Decision

  36. [23] Order 24 r 5 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) permits a party to apply for the discovery of specific documents or a specific class of documents within the possession, custody or power of another party. The rule reads as follows:

  37. [24] Relevance is one of the essential pre-conditions to be satisfied before discovery will be ordered and it is defined by reference to the categories set out in O 24 r 5(3). Whether a document would affect that party’s claim, adversely affect another party’s case or support another party’s case depends on the issues pleaded in the action. Significantly, when seeking discovery of a class of documents, relevance must be shown in relation to the entire class described as a class, and not only some parts of the class: Singapore Civil Procedure 2015 vol 1 (G P Selvam gen ed) (Sweet & Maxwell, 2015) at para 24/5/1.

  38. [26] Having considered the parties’ submissions, I agree with the plaintiff that the category (class) of documents sought is overly broad and gives the overall impression of a fishing expedition. The category of documents relates to all written communications between RWY and representatives of Kendall Court in relation to the negotiations and discussions leading up to and execution of the Proposed Agreement in 2011. Moreover, given the broadly framed request, I am not convinced that all of the Documents would be relevant to the pleaded issues of mistake and misrepresentation in respect of the 2007 CBSA. All the relevant parties are joined in the Suit. The positions that they take on the General Indemnity Clause is clear. The discussions in 2011 over the Proposed Agreement arose in the context of an attempt by the parties to amicably resolve problems the first defendant (borrower) was facing in making repayment. It was the first defendant who appears to have requested negotiation for the Proposed Agreement in October 2011 and a moratorium. It bears repeating that the Proposed Agreement in October 2011 was not entered into.

  39. Whether the Documents are privileged

  40. [28] It is undisputed that (a) the Documents are not privileged as between the parties if there is joint privilege; and (b) there can only be joint privilege if the parties had jointly retained RWY. It logically follows that the Documents would only have to be disclosed if the defendants manage to prove that RWY was jointly retained by and acted for both parties in relation to the Proposed Agreement.

  41. The AR’s decision

  42. [29] Before the AR, the issues were broadly characterised as follows:

  43. (a) whether RWY was retained by both the plaintiff and the defendants, or just the plaintiff;

  44. (b) if it was the former, whether there was a joint retainer or two separate retainers.

  45. [30] On the first issue, the AR found that RWY had been engaged by the defendants under an implied retainer during the period of negotiation and discussion leading up to and execution of the Proposed Agreement. In arriving at her conclusion, the AR reviewed the correspondence between the parties and took the view that Mr Yip was appreciative of the fact that he was advising both sides and he had expressed his wish not to misadvise Mr Ong. In particular, she noted that Mr Yip did not state that he was singly engaged by the plaintiff when Ms Lee insisted that he was to advise both sides without fear or favour and on a neutral basis. Instead, Mr Yip went on to reply that he appreciated the situation that was facing them but he just needed to be sure that he was not misadvising Mr Ong, and that he was proceeding to advise parties on a neutral basis. The AR also noted that Mr Yip went on to issue a letter to Mr Ong and Ms Lee advising them of the legal effect of the various clauses under the Proposed Agreement. Subsequently, Mr Yip proceeded to issue a revised letter to clarify the contents of the first letter. In the midst of all these, Mr Yip had also issued an invoice to Polimet for the professional charges incurred.

  46. [31] On the second issue, the AR found that RWY was acting for the defendants pursuant to a joint retainer. The AR’s finding was based on the following facts: (a) the fact that the plaintiff was copied in all correspondences between RWY and the defendants; and (b) an invoice issued by RWY on 25 October 2011 (“the Invoice”) which stated that the law firm was providing “general advice for both parties’ benefits [sic]”.

  47. The arguments

  48. [32] It will be more convenient to begin with the defendants’ arguments. As mentioned earlier, the defendants argue that RWY was jointly engaged by the parties and had advised the defendants on their legal obligations pursuant to the joint engagement. In support of their case, the defendants assert that:

  49. (a) On 12 September 2011, Mr Andi Gunawan (“Mr Andi”), a representative of the plaintiff, emailed Ms Lee seeking her approval for the joint engagement of Mr Yip of RWY to advise both the plaintiff and the defendants on the terms of the Proposed Agreement. Ms Lee agreed to the appointment of Mr Yip in her reply on 13 September 2011.

  50. (b) On 7 October 2011, Ms Lee attended a meeting at RWY’s offices with, among others, Mr Ho and Mr Ong (“the 7 October 2011 Meeting”). Mr Yip took the defendants through and explained in detail the terms of the Proposed Agreement and advised them on the legal effect of the same. According to Ms Lee, Mr Yip did not inform the defendants that they should appoint their own lawyers.

  51. (c) RWY had issued written advice to Ms Lee and Mr Ong, including a letter sent on 21 October 2011 (“the 21 October 2011 Letter”) and a revised version of the letter on the same day on the terms of the Proposed Agreement.

  52. (d) The description of work done in an invoice issued by RWY, ie, the Invoice referred to at [31] above, shows that RWY had acted for the defendants. The relevant part of the Invoice states:

  53. [33] On the other hand, the plaintiff’s primary position is that RWY was not jointly engaged by the plaintiff and the defendants, and had at all times represented only the plaintiff. To this end, the plaintiff asserts that:

  54. (a) The defendants were unrepresented while the plaintiff was represented in the previous CBSAs entered into between 2007 and 2009. Whilst the defendants were unrepresented, Polimet bore the legal fees for the drafting of the CBSAs as it was contractually obliged to do so.

  55. (b) In 2011, the plaintiff spoke to RWY about engaging RWY. It was also the plaintiff which negotiated RWY’s fees. The defendants were not involved in the process of engaging RWY. As it had been for the earlier agreements, Polimet was contractually obliged to bear the legal fees of the Proposed Agreement.

  56. (c) The plaintiff alone instructed RWY to prepare the Proposed Agreement. The parties did not jointly instruct RWY to prepare it.

  57. (d) After RWY prepared the Proposed Agreement, RWY did not send it to both parties – RWY only sent the draft Proposed Agreement to the plaintiff. It was the plaintiff which forwarded the draft to the defendants.

  58. (e) The defendants did not contact RWY directly, even though they had RWY’s email address. The defendants went through the plaintiff’s representative, Mr Chia, to arrange the 7 October 2011 Meeting. At the meeting, Mr Yip informed the defendants of their right to seek independent legal advice.

  59. (f) The defendants also referred to RWY as the plaintiff’s lawyer. Not once did they refer to RWY as their lawyer.

  60. (g) Polimet’s board never even considered appointing RWY as its solicitors in relation to the Proposed Agreement, much less actually appointing RWY. Ms Lee could not approve RWY’s appointment on behalf of Polimet because she was not a director of Polimet at the relevant time.

  61. (h) It is Mr Yip’s unchallenged evidence that RWY’s clerk prepared the Invoice and he had overlooked the mis-description in the Invoice.

  62. [34] In the alternative, the plaintiff argues that even if RWY was acting for the defendants, it was pursuant to a separate retainer. In order for the court to find a joint retainer, the plaintiff would have had to expressly or impliedly agree to a joint retainer. But there was no such evidence.

  63. Analysis

  64. [35] In a nutshell, the plaintiff seeks to resist the defendants’ discovery application by asserting legal professional privilege. Against that, the defendants argue that the privilege does not operate between the parties as RWY was jointly engaged by both sides.

  65. Relevance of choice of law analysis

  66. [36] Before delving into the arguments raised by the parties, I will first deal with a preliminary point pertaining to the applicability of Singapore law on professional privilege, bearing in mind that RWY is a Malaysian law firm and Mr Yip is a Malaysian lawyer. Much of the legal advice appears to have been provided in Malaysia. In particular, I note that the the 7 October 2011 Meeting took place at RWY’s office in Malaysia. This was followed by a number of letters said to amount to advice, such as the 21 October 2011 Letter sent by RWY via email to the first defendant’s office in Singapore.

  67. [37] Neither party initially raised issues on private international law and the question of whether Singapore rules of legal professional privilege extend to foreign legal advisers. Both parties approached the question of legal professional privilege on the basis that Singapore rules were applicable. Given the relevance and significance of the matter, I directed parties to tender further written submissions on the issue of the applicability of Singapore rules of legal professional privilege and professional conduct.

  68. [38] The central question here is: which law applies to govern the issue of legal professional privilege as between the parties and Mr Yip, bearing in mind that Mr Yip is a Malaysian lawyer and much of his communications with the parties occurred in Malaysia?

  69. [39] The starting point of the analysis is whether legal professional privilege is a matter of procedure or substance. Procedural matters are always governed by the law of the forum and it will only be necessary to proceed further in the choice of law analysis where the matter is substantive: Halsbury’s Laws of Singapore vol 6(2) (LexisNexis, 2013 Reissue) (“Halsbury”) at para 75.255. That said, the distinction between substance and procedure is by no means clear cut. The traditional common law approach was to distinguish the existence of a right from the enforcement of a right. The former was regarded as substantive and subject to choice of law rules whilst the latter was treated as procedure and governed by forum rules. It appears, however, that a “stricter” functional test has been applied in some other Commonwealth jurisdictions: Halsbury at para 75.255. The stricter test asks whether application of foreign law in the particular instance will seriously inconvenience the administration of justice.

  70. [40] Whatever are the merits of the stricter approach, Singapore law, as laid down in Star City Pty Ltd (formerly known as Sydney Harbour Casino Pty Ltd) v Tan Hong Woon [2002] 1 SLR(R) 306 still follows the traditional broader approach, that is, to ask whether the rule in question is one that affects the existence of the right or its enforcement. While the stricter approach has been recognised as persuasive, it has not yet been decided upon by the Court of Appeal in Singapore: see Goh Suan Hee v Teo Cher Teck [2010] 1 SLR 367.

  71. [41] The question of whether legal professional privilege is a matter of procedure or substance is the subject of considerable controversy. That said, whether it has been characterised as a matter of procedure or substance, the general view is that the issue of legal professional privilege is nevertheless governed by the law of the forum. I am not aware of any local authority that is directly on point, but this issue has arisen for determination in other jurisdictions

  72. Australia

  73. [42] In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 (“Daniels Corporation”) at [9]–[11], the High Court of Australia held that legal professional privilege is a rule of substantive law as it goes beyond a rule of evidence that is restricted to processes of discovery and inspection and the giving of evidence in judicial proceedings since it may be relied upon to resist other investigatory processes and is an important common law immunity.

  74. [43] In James McComish, “Foreign Legal Professional Privilege: A New Problem for Australian Private International Law” (2006) 28 Sydney Law Review 297 (“McComish”), the author argues that the same should hold true for purposes of private international law: legal professional privilege is not simply a procedural mechanism (at p 311). Rather, it is a substantive right that exists independently of any actual adjudicative process.

  75. [44] In the recent case of Stewart v Australian Crime Commission [2012] FCAFC 151 (“Stewart”), it was opined that legal professional privilege was governed by the law of the forum despite the HCA’s characterisation of the nature of legal professional privilege as a rule of substantive law. In that case, the appellants argued that documents prepared by an attorney-at-law in the United States, California, including legal advice, were subject to legal professional privilege based on the law of California. The appellants relied on the following facts:

  76. (a) the documents were prepared in California;

  77. (b) the documents were prepared by an attorney or attorneys admitted to practice in California;

  78. (c) the documents were prepared pursuant to a retainer, the proper law in respect of which was Californian law; and

  79. (d) the documents were prepared to advise clients primarily on Californian law.

  80. [45] Among the three judges, only Besanko J considered that an issue of choice of law had arisen. He went on to comment that the governing law for legal professional privilege was the law of the forum despite recognising that legal professional privilege was substantive and not procedural in nature under Australian law. His reasons were as follows (at [53]):

  81. [46] I note in passing that whilst the majority in Stewart agreed with the result (that the issue of legal professional privilege is determined by the lex fori), they rejected the idea that a choice of law issue had arisen. This was because Australian law of privilege extended to foreign lawyers, whether or not the law as to which they were advising was local or foreign, and whether the communications occurred within Australia or somewhere else (at [77]).

  82. [47] Whilst it is not necessary for me to decide the point, I am, with respect, of the view that the approach taken by Besanko J is preferable. As Besanko J states at [48]:

  83. [48] Once it is decided that the issue of legal professional privilege is a matter of substance, the question as to whether the law of forum applies would necessarily have to be answered by reference to choice of law rules which have been developed to serve the ends of justice (see Halsbury at para 75.250). That said, the end result was the same as Besanko J found that the governing choice of law rule pointed to the lex fori.

  84. England

  85. [49] English courts have similarly classified legal professional privilege as a substantive right. In R v Derby Magistrates' Court, Ex p B [1996] AC 487 Lord Taylor of Gosforth CJ, with whose reasons the other members of the House agreed, stated at 507:

  86. [50] In R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563 at 606, Lord Hoffmann described legal professional privilege as “a fundamental human right long established in the common law”. In reaching that conclusion, he referred with approval to the judgment of the New Zealand Court of Appeal in Comr of Inland Revenue v West-Walker [1954] NZLR 191, where the privilege was described as not merely a rule of evidence but a substantive right founded on an important public policy.

  87. [51] Despite the characterisation of legal professional privilege as a matter of substance, the general view is that English law (ie, lex fori) applies.

  88. [52] In Re Duncan, Decd. Garfield v Fay [1968] P 306 at 311, it was held that privilege was a matter to be decided by the lex fori and the learned judge held, on that basis, that all documents which are communications passing between the plaintiff and his foreign legal advisers were privileged, whether or not proceedings in this or any other court were contemplated when they came into existence.

  89. [53] In Bourns Inc v Raychem Corporation and Anor [1999] 3 All ER 154, documents disclosed by the respondent in proceedings in the United Kingdom (“UK”) appeared to be material to the appellant’s case in another set of proceedings between the same parties in the United States (“US”). The respondent claimed that the documents were privileged and applied to restrain the appellant from using the documents in the US proceedings. The appellant, on the other hand, claimed that the respondent had waived privilege in the documents according to US law. It was held by Aldous LJ (at 167–168) that:

  90. [54] The English position is also clearly set out in Dicey, Morris & Collins, The Conflict of Laws vol 1 (Sweet & Maxwell, 15th Ed, 2012) (“Dicey, Morris & Collins”) at para 7-022:

  91. [55] Thus, it appears that the English position is that legal professional privilege falls to be governed by the lex fori. Indeed, it has been suggested that there are strong grounds for reconsidering the English position on the issue of whether legal professional privilege is governed by the lex fori. The learned author of Phipson on Evidence (Hodge M Malek gen ed) (Sweet & Maxwell, 18th Ed, 2013) states at paras 23-25 and 23-26:

  92. [56] Returning to the case at hand, the weight of authorities, as it stands, suggests that legal professional privilege is a matter to be addressed by the law of the forum. I agree. As was observed by Besanko J in Stewart, whilst the issue of privilege is linked to the contract of retainer between a lawyer and his client, it inevitably is dictated by and subject to, in the majority of cases, the policy in statute or delegated legislation based on considerations relevant to the administration of justice. This ultimately turns on the public policy considerations that find expression in the law of the forum. For now, it would suffice for our purposes to say that legal professional privilege falls to be governed by the law of the forum (ie, Singapore law). In any case, it is not necessary for me to express a concluded view on this since the parties have not pleaded or proved foreign rules on legal professional privilege.

  93. [57] In Singapore, legal professional privilege is statutorily embodied in ss 128 and 131 of the Evidence Act (Cap 97, 1997 Rev Ed). These provisions cover legal advice privilege and also an element of litigation privilege: Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR(R) 367 (“Skandinaviska”) at [27]. The statutory privilege applies to communications between clients and an advocate or solicitor of the Supreme Court of Singapore or a legal counsel which has been defined in s 3(7) of the Evidence Act to include:

  94. [58] Clearly, communications with foreign lawyers would fall outside the ambit of the statutory privilege. However, the Evidence Act is exhaustive only to the extent that all the rules which are not saved by statute and which are inconsistent with it (the Evidence Act) are inapplicable: see s 2(2) of the Evidence Act and Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 at [117]. Thus, despite the codification of legal professional privilege in Singapore, common law rules of privilege pertaining to foreign lawyers will continue to apply in so far as they are not inconsistent with the provisions of the Evidence Act.

  95. [59] In reaching this conclusion, I note that when the Evidence (Amendment) Bill was passed by Parliament in 2012, the Minister of Law, Mr K Shanmugam explained that the amendments would enhance the court’s discretion to consider relevant evidence as well as deal with “procedural justice”, including the confidentiality of legal advice by “widening legal professional privilege” (Singapore Parliamentary Debates, Official Report (14 February 2012) vol 88 at p 1127).

  96. [60] One of the amendments to legal professional privilege concerned an “extension” to communications with in-house legal counsel made for the purpose of obtaining legal advice. During the second reading debate, the observation was made by several Members of Parliament that the law of evidence in Singapore comprised the Evidence Act as well as common law rules, at least where the latter were not inconsistent with the statutory provisions. In appropriate cases, it was possible for gaps in the Evidence Act to be filled by the common law. One Member of Parliament noted that the common law may have covered the gap on communications with in-house counsel but that its application was “uncertain and subject to change and challenge” (at p 1129). Another Member of Parliament noted that the amendments (to broaden the definition of legal professional advisor to include in-house counsel) did not cover cases where clients sought legal advice from foreign lawyers or law firms overseas and questioned whether it was desirable to amend the Evidence Act to cover that situation (at p 1135).

  97. [61] The Minister of Law, in response, clarified that there was “no intention to affect privilege or deal with privilege between foreign lawyers and their local clients” (at p 1143). The Minister of Law’s response in full was:

  98. [62] The fact that Parliament choose to amend the Evidence Act so as to expressly cover communications with in-house counsel without dealing with foreign counsel did not mean that Parliament’s intention was to take away or make an affirmative statement that such communications with foreign lawyers was not protected. Instead, this was deliberately left to the common law.

  99. [63] The common law position is well-settled. Legal advice privilege will apply to advice received from foreign lawyers. In International Business Machines Corp and another v Phoenix International (Computers) Ltd [1995] 1 All ER 413, the document in issue was a road map prepared by the defendant’s (Phoenix) US attorneys which set out their advice on the legal position in the UK and the strategy to adopt in relation to contemplated proceedings. The plaintiff, IBM, submitted that the road map contained advice on English law and was not privileged because the author was a US attorney who was not a qualified practitioner in the UK. IBM, however, accepted that it would be a privileged document if it had been written by an English solicitor. Aldous J rejected IBM’s argument and held (at 429) that:

  100. [64] A variety of English commentaries hold the view that the privilege will extend to the advice given by foreign lawyers based abroad provided that they are qualified to practise under their own regulatory authority. In his helpful review, McComish citing cases such as Bunbury v Bunbury (1839) 2 Beav 173 concludes (at p 315) that “the great mass of English authority supports the view that privilege applies as much to communications to foreign lawyers as to local lawyers and that both are subjected to English (ie the forum’s) law of privilege.” McComish goes on to comment (at p 318): “[t]he fact that foreign lawyers are not subject to the supervision and discipline of domestic courts was no reason to deny their communications privilege under the law of the forum: so long as the lawyer was in fact admitted to practice in the foreign jurisdiction”.

  101. [65] In Kennedy v Wallace (2004) 213 ALR 108, Allsop J explained the underlying rationale for extending privilege to communications with foreign lawyers. In coming to the decision that the law of the forum (Australia) recognised privilege over communications with foreign lawyers, the Full Federal Court recognised that in a global society, people may well need the advice of foreign lawyers. Allsop J held as follows (at [200]–[208]):

  102. [66] In view of the above excerpt (which I agree with), I accept that the common law position which extends privilege to communications passing between a client and his foreign legal adviser applies in Singapore as there is no inconsistency between the common law position and the statutory provisions. Whilst Jeffrey Pinsler SC, Evidence and the Litigation Process (LexisNexis, 5th Ed, 2015) (“Evidence and the Litigation Process”) at para 14.017 comments that communications with foreign lawyers are not protected by legal advice privilege, it is apparent that this comment was made in respect of the provisions of the Evidence Act as amended and not the common law position. Presently, it bears noting that the defendants accept that the documents are privileged. The only issue is whether the plaintiff is obliged to disclose the documents to the defendants on the basis that the privilege is jointly held by the parties.

  103. [67] It will also be seen later on that the applicable rules or codes of professional conduct may be relevant or helpful in the present case for providing the context of some of the discussions and communications sent by RWY in connection with the Proposed Agreement.

  104. Concluding remarks on choice of law

  105. [68] It bears recalling that the main question is whether the privilege in question is jointly held by the parties or singly held by the plaintiff. The answer to this main question requires the consideration of a subsidiary question concerning the existence and character of the contract of retainer between Mr Yip and the parties to this dispute. Where parties dispute the existence or the nature of the contract of retainer (which contains foreign elements), what then is the law governing such disputes? Ordinarily, this question has to be analysed through the lens of the forum’s choice of law rules. That said, it is again unnecessary to probe further in this respect since the parties have not pleaded or proved foreign law vis-à-vis the contract of retainer. In the absence of such proof, it is well established that the law of the forum applies by default.

  106. [69] To conclude, whilst Mr Yip is a Malaysian lawyer and much of the legal advice appears to have been provided in Malaysia, it must be borne in mind that the suit has been commenced in Singapore. As mentioned earlier, I am of the view that the issue of privilege is to be governed by Singapore law (ie, the law of the forum) and that Singapore law permits claims of privilege over communications between foreign lawyers and their clients. Further, in the absence of proof of foreign law, I will apply Singapore law to determine the issues arising out of this appeal.

  107. [70] I begin my analysis by setting out the applicable legal principles. Legal professional privilege is found in two principal forms, viz, legal advice privilege and litigation privilege. Both serve a common cause: the secure and effective administration of justice according to law: Skandinaviska at [23].

  108. [71] The plaintiff appears to be relying on the former category of privilege, viz, the legal advice privilege which protects from disclosure confidential communications between a client and his legal adviser which arise in a legal context in the course of their relationship: Evidence and the Litigation Process at para 14.001. The rationale for legal advice privilege is neatly encapsulated in the following passage in the Canadian Supreme Court decision of Minister of Justice v Sheldon Blank (Attorney General of Ontario, The Advocates’ Society and Information Commissioner of Canada (Interveners)) [2006] SCC 39 at [26]:

  109. [72] The above passage was quoted and accepted by the Court of Appeal in Skandinaviska at [23]. For legal professional privilege to apply, the solicitor-client relationship must be in existence or at least contemplated: Suzanne McNicol, Law of Privilege (The Law Book Company Limited, 1992) at p 76. A solicitor-client relationship may come about by an express retainer or a retainer that is implied by conduct: Royal Bank of Scotland v Etridge (No 2) [2001] 3 WLR 1021 at [179]. In particular, a retainer may be implied where on an objective consideration of all the circumstances, an intention to enter into such a contractual relationship ought fairly and properly to be imputed to all the parties: Anwar Patrick Adrian and another v Ng Chong & Hue LLC and another [2014] 3 SLR 761 (“Anwar Patrick”) at [49].

  110. [73] It is apposite to note that once a plea of privilege is made over the list of documents and verified by affidavit, the court will accept the plea as conclusive unless it is disproved: Singapore Court Practice 2014 (Jeffrey Pinsler gen ed) (LexisNexis, 2014) at para 24/3/4. As such, it is for the party seeking disclosure (ie, the defendants in the present dispute) to prove that the documents in question are not privileged.

  111. Joint Privilege

  112. [74] It will be helpful to also consider the nature and effect of a joint privilege. According to Bankim Thanki QC in The Law of Privilege (Oxford University Press, 2nd Ed, 2011) (“The Law of Privilege”) at para 6.01, joint privilege may arise in two circumstances:

  113. (a) Joint interest: Where, even though the parties have not jointly retained a lawyer, they have a joint interest in the subject matter of the communication at the time that it comes into existence.

  114. (b) Joint retainer: Where two (or more) parties jointly retain the same lawyer.

  115. Joint interest

  116. [75] In my view, the parties did not have a joint interest that gave rise to joint privilege in the negotiations leading up to the Proposed Agreement. Examples where such joint interest might arise are between (The Law of Privilege at paras 6.09–6.11):

  117. (a) a trustee and beneficiary;

  118. (b) a parent company and its wholly-owned subsidiary;

  119. (c) a company and its shareholders;

  120. (d) a company and its director; and

  121. (e) partners.

  122. [76] In the present case, there was no identity of interests between the plaintiff and the defendants during the negotiations in relation to the Proposed Agreement. Unlike the examples above, the parties here were essentially in a lender and borrower relationship with opposing interests. There was at least reason to believe that Polimet was in a “poor” financial state and was in no position to fulfil its repayment obligations under the original agreements. The negotiations were broadly an attempt (which ultimately was unsuccessful) to settle amicably the liabilities of the first defendant under the loan agreements. That was why the Proposed Agreement was necessary in the first place.

  123. [77] The defendants seem to suggest that their joint interest lay in executing the Proposed Agreement. Before me, counsel for the defendants argued this joint interest was evidenced by the following statement found in Mr Yip’s email to the parties after Mr Chia gave “the final green light on the last draft” of the Proposed Agreement:

  124. [78] I do not accept this contention. In the same email, Mr Yip recognised that the parties had opposing interests. He said, “I think the parties do appreciate each others [sic] position and are entering into the [Proposed Agreement] with the intention of resolving the issues rather that [sic] ‘fighting’ one another which we [sic] benefit neither party in the long run”.

  125. [79] Furthermore, if taken to its logical conclusion, the defendants’ argument would mean that a vendor and purchaser who retain the same solicitor for the sale of a parcel of land would be taken to have a common interest, that is, in executing the sale and purchase agreement. That cannot be right. The court in Foo Ko Hing v Foo Chee Heng [2001] 1 SLR(R) 664 (“Foo Ko Hing”) expressly recognised that where a vendor and purchaser retain the same solicitor, a distinction must be made between communication to the solicitor in the character of one party’s own legal advisor and communication to him in the adverse character or legal advisor for the other party (Foo Ko Hing at [15]).

  126. Joint retainer

  127. [80] With the issue of joint interest out of the way, the only matter left to be determined is whether Mr Yip was acting for the plaintiff and defendants pursuant to a joint retainer (whether express or implied). The following comment in The Law of Privilege at para 6.02 provides a useful starting point for the analysis:

  128. [81] Parties who grant a joint retainer to solicitors retain no confidence as against one another: if they subsequently fall out and sue one another, they cannot claim privilege: Hellenic Mutual War Risks Association (Bermuda) Ltd And General Contractors Importing and Services Enterprises v Harrison (The Sagherra) [1997] 1 Lloyd’s Rep 160 at 165–166.

  129. [82] I turn now to consider whether the defendants have discharged their burden of proving that RWY was jointly engaged by the plaintiff and defendants (whether pursuant to an express or implied retainer).

  130. Was there a solicitor-client relationship between the defendants and RWY?

  131. [83] Before me, the defendants asserted that the plaintiff had, prior to its engagement of Mr Yip, sought and obtained the approval of Ms Lee. This suggests that the plaintiff was tasked to engage Mr Yip on behalf of all the parties to the Proposed Agreement.

  132. [84] There are thus two related issues. The first issue is whether there was an express joint retainer, ie, whether the plaintiff had appointed Mr Yip on behalf of all the parties to the Proposed Agreement. If the answer is no, the second issue arises, viz, whether an implied retainer had subsequently arisen between the defendants and RWY in the circumstances surrounding the negotiations in relation to the Proposed Agreement.

  133. Express retainer

  134. [85] I am unable to accept the defendants’ contention that there was an express joint retainer. My reasons are as follows.

  135. Previous conduct

  136. [86] The defendants’ contention that RWY was jointly engaged to represent all the parties to the Proposed Agreement is plainly incongruent with the defendants’ previous course of conduct. It is undisputed that the defendants were unrepresented while the plaintiff was represented in the previous CBSAs entered into between 2007 and 2009. This is reflected in the following table.

  137. [87] In 2007, the plaintiff had encouraged the defendants to engage their own legal counsel. The defendants declined because they did not want to spend money on their own legal fees given that they were already contractually obliged to pay for the plaintiff’s legal fees. Thereafter, the defendants were apparently content to be unrepresented for the other CBSAs that were subsequently concluded between the parties.

  138. [88] Against that backdrop, it seems rather odd that the defendants made an about-turn on the issue of legal representation when it came to the Proposed Agreement. At the hearing before me, the defendants’ counsel suggested that the nature of the Proposed Agreement was different from the previous CBSAs. He said that if the Proposed Agreement had proceeded, one of its effects was to dilute the shareholdings of all the parties, and that it was not inconceivable that all the parties would have used the same solicitor in light of this common interest. As was pointed out by the plaintiff’s counsel, this assertion is wholly unsubstantiated. The defendants have not come forward to say on affidavit that they realised the need for legal representation because of the character and effect of the Proposed Agreement.

  139. Email correspondence

  140. [89] I am also unable to agree with the defendants’ interpretation of the email correspondence in which Ms Lee’s approval was allegedly sought and given for the appointment of Mr Yip. I will first set out the contents of the relevant emails.

  141. [90] By an email dated 12 September 2011 at 11.16 am, the plaintiff’s representative, Mr Andi, wrote to Ms Lee:

  142. [91] In an email dated 13 September 2011 at 11.14 am, Ms Lee replied as follows:

  143. [92] Ms Lee in her affidavit asserted that Mr Andi was seeking her approval for the joint engagement of Mr Yip to advise both the plaintiff as well as the defendants on the terms of the Proposed Agreement. She further asserted that there would otherwise be no reason for Mr Andi to email her informing her of the same, or to seek her approval for their estimated professional fees. I am unable to agree with her interpretation of the above emails.

  144. [94] Second and more significantly, Ms Lee had no authority to approve RWY’s appointment on behalf of Polimet because she was not a director of Polimet at the material time. Mr Chia and Ms Yeo were the only directors of Polimet then, and it is undisputed that Polimet’s board of directors were not asked to consider the issue of who to appoint as Polimet’s counsel. In any case, Ms Lee could not consent to the appointment of RWY on behalf of the remaining defendants since there is no evidence to show that she had authority to do so except on behalf of herself.

  145. [95] Third, if the parties had indeed agreed that the plaintiff was to appoint Mr Yip on behalf of all the parties to the Proposed Agreement, the parties would have had to inform Mr Yip of the arrangement. It is inconceivable that an express joint retainer can be concluded without the lawyer’s knowledge. Furthermore, there is no evidence that Mr Yip knew or understood that he was acting for all the parties at the point of engagement. In contrast, the material before me showed that Mr Yip was under the impression that the plaintiff was his only client. He had re-used the file reference that was previously used for the previous matter that he handled for Kendall Court. It is his evidence that this was done because there was no change in client since Kendall Court gave instructions on behalf of the plaintiff in relation to the Proposed Agreement. Mr Yip further stated that if he had been jointly engaged by both sides, he would have opened a new file in September 2011.

  146. [96] Whilst the defendants have attempted to discredit Mr Yip’s evidence by asserting that Mr Yip had ample reason to favour the plaintiff since he had acted for the plaintiff in the past, this is a bald assertion. It bears recalling that the onus is on the defendants to prove that there was an express joint retainer since they are the ones challenging the plaintiff’s claim of privilege and alleging the existence of joint privilege. Discrediting the plaintiff’s evidence does not amount to such proof.

  147. [97] Finally, I would like to conclude the issue with the observation that the defendants’ case appears to lack internal coherence. On one hand, the defendants argue that Ms Lee’s approval was sought for the engagement of Mr Yip for the plaintiff and the defendants. On the other hand, the defendants also contend that Mr Chia, being one of the nominee directors of Polimet at the material time, had appointed RWY on behalf of both the plaintiff and Polimet. Leaving aside the question of Ms Lee’s authority, why would her approval be necessary if Mr Chia could, in his capacity as the plaintiff’s nominee director on Polimet’s board, engage Mr Yip on behalf of the plaintiff as well as Polimet? In addition, even if it is accepted that Mr Chia had indeed engaged RWY on behalf of Polimet and the plaintiff, the defendants’ argument would fail for a further reason – there is no suggestion that Mr Chris Chia had the authority to appoint RWY on behalf of the second to fifth defendants as well.

  148. [98] For the foregoing reasons, I find that there was no express joint retainer. In other words, I find that Mr Yip was singly appointed as the plaintiff’s lawyer at the point of engagement. I now turn to consider if an implied retainer had subsequently arisen between Mr Yip and the defendants during the negotiations for the Proposed Agreement.

  149. Implied retainer

  150. [99] Before delving into the analysis proper, it bears repeating that RWY is a Malaysian law firm and Mr Yip is a Malaysian lawyer. The meeting took place at RWY’s offices in Kuala Lumpur. Neither side raised the question as to whether it is the professional conduct rules of Singapore or Malaysia which are relevant (if at all) in determining the question whether an implied retainer had arisen. This is a point to which brief reference has been made at [67] above. To be clear, whilst references was made to the Singapore Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“PCR”), no submissions or evidence was placed before me as to whether the equivalent Malaysian rules were the same or different. The significance of the professional conduct rules is that they may assist as relevant background material against which the statements and conduct of Mr Yip is to be assessed as part of the determination of whether an implied retainer had arisen. Apart from a reference to a Malaysian decision on the duty of a lawyer to a party with no legal representation discussed below at [126], there was no evidence as to the Malaysian Rules brought before me. As I have mentioned at [68] above, I shall proceed on the basis that Singapore law applies for this issue in the absence of proof of Malaysian law. I shall address this matter further below.

  151. [100] This case raises the difficult question of the extent of a lawyer’s duty to unrepresented parties who have interests that are opposed to his client’s. There are various ethical rules that may come into play. On one hand, it is well established that a lawyer is duty-bound to advocate and advance his client’s interests fearlessly within available legal means: see r 12 of the PCR. As a corollary, the lawyer is not permitted to act against his client by advising another party with opposing interests: r 30 PCR. On the other hand, the lawyer is under an obligation to not take unfair advantage of third parties, including opposing parties: see r 53A of the PCR. I pause to briefly observe that the Legal Profession (Professional Conduct) Rules 2015 (S 706/2015) (“PCR 2015”) has recently come in force on 18 November 2015, superseding the earlier PCR (the provisions of which will be considered in this judgment). To be clear, only the provisions of the earlier PCR are relevant to the present application.

  152. [101] Where an opposing party elects to be unrepresented, the lawyer has to strike a balance between doing his best for the client and not taking unfair advantage of the opponent’s lack of legal knowledge. In these situations, the lawyer is placed in an invidious position. Should he overreach by providing more assistance to the opponent than he ought to, the lawyer could find himself with a new putative client if an implied retainer is found. Besides that, he may also find himself in breach of his duty not to act against his (original) client. However, should he provide less assistance than he ought to, he could be blamed for having taken unfair advantage of third parties. This, put broadly, was the dilemma that Mr Yip found himself to be in.

  153. [102] With the above in mind, it is apposite to now consider the law on implied retainers. I begin with the leading case in Singapore, Anwar Patrick, in which the Court of Appeal held that “[a] retainer might be implied where, on an objective consideration of all the circumstances, an intention to enter into such a contractual relationship ought fairly and properly to be imputed to all the parties” (at [49]).

  154. [103] In Anwar Patrick, the solicitor in question had been retained by Agus Anwar to assist him on various financial transactions. A bank with which Agus maintained a credit facility demanded further collateral when the value of Agus’ existing collateral diminished. Agus told his solicitor that he was agreeable to the terms save for the term that required his sons to provide personal guarantees. Subsequently, the bank sent his solicitor security documents which required Agus’ sons to each provide a personal guarantee. The solicitor forwarded the security documents to Agus’ sons who signed them. Later, as Agus was unable to meet his obligations under the credit facility, the bank commenced a suit against Agus and his sons.

  155. [104] Agus’ sons commenced a suit against the solicitor in question for failing to bring the personal guarantee clauses to their attention or advising them on it before they signed off. The Court of Appeal found an implied retainer. Several factors were taken into account.

  156. [105] From the perspective of the solicitor, he had signed off as “the solicitor for the mortgagors” on the Certificate of Correctness which formed part of the security documents. As a seasoned solicitor, he had to be taken to have known of the importance of his signing the Certificate of Correctness which was an official document of paramount importance. Thus, from an objective standpoint, he must have thought that he had the authority to act for Agus’ sons and that he was their agent (at [58]).

  157. [106] From the perspective of the putative clients, they would have legitimately considered the respondent to be their solicitor. The respondent had signed off as their solicitor on the Certificate of Correctness. The respondent was the only legally trained person on their side, and the other side had a solicitor representing them as well. They were therefore entitled to think that the respondent was their solicitor on record (which he was) who would help them through the transaction (at [59]).

  158. [107] In Anwar Patrick, reference was made to the earlier case of The Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR(R) 308 (“Ahmad Khalis”). In Ahmad Khalis, the Court of Three Judges found an implied retainer. One of the issues that arose was whether an advocate and solicitor who had been engaged to act for the administrator of an estate also acted for the remaining beneficiaries of the estate by implication. The solicitor was held to have been engaged under an implied retainer because of several reasons. First, he had given express advice on the relevant documents to the putative clients without qualifying the answers or telling them that they should seek independent advice. Further, he did not say or make it clear to the putative clients that he was acting solely for his original client. Additionally, the solicitor had acted for the estate in petitioning for the letters of administration. All of these happened in a situation where there was no other solicitor acting for the putative clients. Thus, the Court of Three Judges was satisfied that there was an implied retainer between the solicitor and the beneficiaries.

  159. [108] In The Law Society of Singapore v Uthayasurian Sidambaram [2009] 4 SLR(R) 674 (“Uthayasurian”), the respondent-solicitor acted for the complainant who was an investor in a proposed joint development of a piece of land (“the Property”) with the Royal Brunei Government (“RBG”).

  160. [109] The project commenced in 2001 when the respondent was approached by one Ang, who claimed to be a close business associate of another named PSN who represented RBG’s business interests in Singapore. PSN allegedly represented to the respondent over the telephone that he could take instructions from Ang or his son, Atamaya. The respondent was subsequently introduced to one Lim. Lim had incorporated a company, LKIL, and claimed that he had PSN’s consent to negotiate with potential developers and that LKIL was to enter into a joint development agreement with RBG. The approved developer would then enter into a joint venture with LKIL or become a subsidiary of LKIL.

  161. [110] In April 2006, the respondent was informed by Ang that he had found a potential joint developer, Chin, a director and shareholder of another company, LKIPL. The respondent prepared a pre-contract agreement for the joint development of the Property (“the Pre-Contract Agreement”) between LKIL and LKIPL. However, Ang subsequently informed the respondent that Chin was found not to be a suitable joint developer.

  162. [111] Around this time, the complainant decided to invest $1m into the project as well as buy out Chin’s interest. He appointed the respondent as his solicitor and signed a warrant to act. The complainant deposited $1m into the respondent’s client account and following that, authorised Ang to disburse funds on his behalf. Sums were subsequently released pursuant to Ang’s instructions.

  163. [112] An issue that arose was whether the respondent had, by implication, acted for all the parties in the project. The Court of Three Judges held that on an objective consideration of all the circumstances, there was an implied retainer between the respondent-solicitor and all the parties to the project.

  164. (a) First, the respondent acted only on the instructions of Ang in relation to the disbursement of funds.

  165. (b) Second, in the interim bill tendered, the respondent stated that the payment of $100,000 was for the work done and services rendered to all the parties, not simply the complainant.

  166. (c) Third, both PSN and Atamaya gave instructions via their conduit, Ang.

  167. (d) Fourth, the respondent prepared the Pre-Contract Agreement under which Lim and LKIL both agreed to jointly develop the Property subject to LKIL securing the mandate from RBG.

  168. (e) Finally, under cross-examination, the respondent testified that he was “acting for PSN” as well as for LKIL and Lim.

  169. [113] The observations of the Court of Three Judges are illuminating (at [41]–[42]):

  170. [114] The plaintiff has referred me to the English High Court decision in Burkle Holding v David Eric Laing [2005] EWHC 638 (“Burkle v Laing”). The case concerned an application for disclosure of specific documents relating to two loan transactions between Burkle (lender) and Mr Laing (borrower). Burkle’s lawyer, Mr Kelly, had prepared a loan agreement for both Burkle and Mr Laing to sign. Mr Laing claimed that Mr Kelly was acting for both Burkle and Mr Laing on the basis of a joint retainer, and sought disclosure of the documents on that basis

  171. [115] No disclosure was ordered and the court’s reasoning was as follows. The test of whether or not Mr Laing and Mr Kelly were in a solicitor-client relationship at the relevant time requires answering the question of whether Mr Kelly gave Mr Laing advice relating to his rights, obligations or remedies under private law. In coming to the conclusion that there was no solicitor-client relationship between Mr Kelly and Mr Laing, the court took the following matters into account.

  172. (a) The court found that the correspondence between Mr Kelly and a third party contained references to “our client” and “my client” which clearly meant Burkle. But there were no references to Mr Kelly acting for Mr Laing (at [60], [62] and [67]).

  173. (b) It is a well-recognised circumstance in relation to a loan agreement that the borrower pays the lender’s costs. A letter from a solicitor to a borrower informing him that he was to be responsible for the solicitor’s costs does not necessarily connote or establish a solicitor-client relationship between the borrower and the solicitor (at [70]).

  174. [116] A few key points may be gleaned from the discussion of the cases above. First and foremost, it bears emphasising that the inquiry is one that is extremely fact-sensitive: see Ahmad Khalis at [64]. The factual matrix will be evaluated in its entirety and it is unlikely that any single factor will be determinative.

  175. [117] Second, the perspectives of the parties involved are relevant and material to determine whether an implied retainer had arisen in the circumstances. Ultimately, it is a question of whether an intention to enter into a contractual relationship ought fairly and properly to be imputed to all the parties. The inquiry is by no means limited to the perspective of the putative clients, although having said that, the perspective of the alleged putative clients would nonetheless feature significantly. More critically, the subjective intentions and perspectives of the parties are not the be all and end all; they must be construed in an objective context. As was held in Ahmad Khalis, “the question is whether it was reasonable for the respondent or the beneficiaries to have arrived at the conclusions that they did in respect of their characterisation of their relationship inter se” (at [66]).

  176. [118] Finally, these are some of the factors that have led to the finding of an implied retainer:

  177. (a) Solicitor providing advice to the alleged putative client without qualifying the answers or informing the latter to seek independent advice: Ahmad Khalis;

  178. (b) Solicitor failing to clarify that he was not acting for the alleged putative client: Ahmad Khalis;

  179. (c) Solicitor signing off as the solicitor for the alleged putative client on a legally important document: Anwar Patrick;

  180. (d) Solicitor issuing an invoice that included work done and services rendered to the alleged putative clients: Uthayasurian; and

  181. (e) Solicitor taking instructions from the alleged putative client: Uthayasurian.

  182. [119] Applying the principles set out above, I find that an implied retainer did not arise between RWY and the defendants. My reasons are as follows.

  183. The Invoice

  184. [120] One of the reasons why the AR found an implied retainer was that RWY issued the Invoice to Polimet. In this connection, the defendants also placed reliance on the Invoice which stated inter alia that Mr Yip had liaised with and advised both parties (reproduced at [32(d)] above). In my view, however, the addressee and the contents of the Invoice do not unequivocally point to the existence of an implied retainer between the defendants and Mr Yip.

  185. The Malaysian statement of claim

  186. [122] The defendant also relies on a statement of claim filed by RWY in Malaysia in March 2015 where it is stated that: “[t]he terms of the legal services rendered by [RWY] to [Polimet] are as stated in [RWY’s] invoice” (“the Malaysian SOC”). To provide some context, the Malaysian proceedings were commenced by RWY to recover, from Polimet, fees for their legal services. The statement relied upon by the defendants, when construed in its context, does not lead to the unequivocal conclusion that Mr Yip had understood himself to be advising both sides to the transaction. In fact, it was clearly stated in the Malaysian SOC that RWY’s client was the plaintiff. The relevant part of the Malaysian SOC reads:

  187. In this context, it is clear that the reference to “legal services rendered by [RWY] to [Polimet]” cannot be construed to mean that RWY was advising all the parties. The Malaysian SOC was directed at Polimet only because of the parties’ understanding that Polimet was to pay for the plaintiff’s legal fees. That does not in itself make Polimet RWY’s client.

  188. The “advice” that was provided

  189. [124] It bears recalling that the AR found that Mr Yip had advised the defendants and did not state that he was singly engaged by the plaintiff. Moreover, according to the defendants, Mr Yip had provided them with advice on several occasions.

  190. (a) At the 7 October 2011 Meeting, Mr Yip advised, inter alia, Ms Lee and Mr Ong on the legal effect of the terms of the Proposed Agreement.

  191. (b) In an email dated 10 October 2011, Mr Yip expressly advised the defendants on the legal implications of various clauses in the Proposed Agreement and asked for Ms Lee’s instructions on whether to proceed with the execution of the Proposed Agreement.

  192. (c) On or around 20 October 2011, Mr Ong had certain reservations about his personal liability under the Proposed Agreement and requested that Mr Yip issue a letter of advice to him explaining the same. Ms Lee relayed Mr Ong’s request to Mr Yip, and Mr Yip replied that he would have to “run [the letter of advice] by Mr Chris Chia (the Plaintiff’s representative) before issuing [it]”.

  193. (d) On 21 October 2011, Mr Yip issued the 21 October 2011 Letter, a “letter of advice” to Mr Ong and Ms Lee advising them of the legal effect of the various clauses under the Proposed Agreement and their liability under the same. Subsequently, on 15 November 2011, Mr Yip issued a revised letter of advice to clarify the contents of the first letter and to inform Mr Ong of his obligations (“the 15 November 2011 Letter”).

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