Cosco Nantong Shipyard Co Ltd v Logitel Offshore Rig II Pte Ltd and another [2019] SGHC 279

Originating Summons No 1106 of 2017 (“OS 1106”) was brought by Cosco Nantong Shipyard Co Ltd, the plaintiff, on 29 September 2017 for pre-action discovery against Logitel Offshore Rig II Pte Ltd and Logitel Offshore Pte Ltd, the first and second defendants respectively. The defendants’ director, Mr Matthew Blake, filed an affidavit to oppose OS 1106 (“Blake’s 2nd Affidavit”) on 28 November 2017. Certain financing documents (hereafter called the “Financing Agreements”) were mentioned in paragraph 57 of Blake’s 2nd Affidavit. The Financing Agreements became the subject matter of the plaintiff’s Notice to Produce dated 18 December 2017, issued pursuant to O 24 r 10 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).

The plaintiff filed Summons No 632 of 2018 (“SUM 632”) after the defendants objected to the production of the Financing Agreements for inspection. The Assistant Registrar who heard SUM 632 ordered production of two categories of documents to the plaintiff for inspection (ie, the Financing Agreements). Registrar’s Appeal No 64 of 2018 (“RA 64”) is the defendants’ appeal against the decision of the Assistant Registrar. I affirmed the decision of the Assistant Registrar on 25 July 2019 and the defendants, being dissatisfied with my decision in RA 64, filed Summons No 3934 of 2019 for leave to appeal (“SUM 3934”).

Having read the written submissions and heard the parties’ oral arguments, I would dismiss SUM 3934 for the reasons explained below.

Before going into the defendants’ written submissions in RA 64, a quick narration of the relevant procedural history would be helpful. After the plaintiff filed its Notice to Produce which sought the production of thirteen categories of documents, the defendants filed their Notice Where Documents May Be Inspected on 12 January 2018 (“the defendants’ Notice”) agreeing only to the production of three out of the thirteen categories of documents. In particular, the defendants objected to the production of the Financing Agreements on the sole ground that they were not in their possession, custody or power. It is evident that the abuse of process argument was not contemplated in the defendants’ Notice.

As a consequence, the plaintiff filed SUM 632 on 2 February 2018 seeking production of the remaining ten categories of documents including the Financing Agreements.

In the defendants’ reply affidavit for SUM 632 filed by Mr Blake on 12 February 2018, the following grounds of objection were raised in relation to the Financing Agreements:

The position taken before the Assistant Registrar who heard SUM 632 can be summarised as such. Four main grounds were raised by the defendants: (a) confidentiality; (b) lack of possession, custody or power; (c) abuse of process; and (d) lack of necessity. In particular, abuse of process as a ground, if successful, would serve to “knock out”, so to speak, SUM 632 without the need to go into the other three grounds. Before the Assistant Registrar, the point on abuse of process in the form of the plaintiff’s purported circumvention of the requirements of pre-action discovery was ventilated but it was conflated with the point about the use of discovered documents to commence litigation outside Singapore (ie, the Riddick principle).

For present purposes, I set out the material part of the Assistant Registrar’s decision on 12 March 2018 concerning abuse of process:

The submissions in RA 64 before me, however, took on a different shape. This is most apparent from the defendants’ submissions in RA 64, which I turn to now. The material portions of the defendants’ written submissions dated 2 July 2018 state:

On an objective reading of the two paragraphs set out above, the abuse of process averred to in the defendants’ written submissions is not quite the same point raised by Mr Singh in the leave to appeal application (ie, SUM 3934). In brief, Mr Singh submits that the Tyco principle takes on two hues: (a) a Notice to Produce calling for the production of the very documents that are the subject of an underlying pre-action discovery application is prima facie an abuse of process (per Hely J); and (b) the same production may or may not constitute abuse of process depending on the facts and circumstances (per Hill J). While the language in the written submissions for RA 64 above may be reminiscent of that employed in Tyco, the two points are arguably distinct.

My attention was also drawn to two other paragraphs in the defendants’ written submissions:

Neither of these two paragraphs assist the defendants’ present leave to appeal application. For the same reasons stated earlier, paragraph 34(b) of the defendants’ written submissions clearly makes a different point from Tyco. As for paragraph 85, it should be highlighted that the defendants’ above submissions dated 2 July 2018 were tendered for both Registrar’s Appeal No 63 of 2018 (“RA 63”), being the defendants’ application to amend Mr Blake’s affidavits, RA 64 as well as Summons 2186 of 2018 (“SUM 2186”), being the defendants’ application to adduce further evidence for RA 64. It is evident that the reference to abuse of process therein was made in the context of RA 63. At the hearing that followed on 4 – 5 July 2018, the then counsel for defendants, Mr Bazul Ashhab (“Mr Bazul”), made no other submission (written or oral) relating to abuse of process, save for the reference to the same paragraph 85. In my view, that reference to abuse of process is plainly a generic one, in contradistinction to the Tyco principle now raised by the defendants. It suffices to note that on 5 July 2018 I dismissed RA 63 and adjourned the hearing of RA 64 and SUM 2186 to a date to be fixed.

Not unlike the defendants’ aforementioned written submissions, there was no reference to abuse of process in the Tyco sense (or any sense for that matter) in the defendants’ further written submissions for RA 64 dated 22 July 2019. It is apparent that the further written submissions centred on the issue of whether the Financing Agreements could be said to be in the possession, custody or power of the defendants, as had been first stated in the defendants’ Notice. Tellingly, the transcript of the proceedings for RA 64 from 24 – 25 July 2019 also do not touch on abuse of process, whether in the Tyco sense or otherwise. Therefore, to this extent, I agree with counsel for the plaintiff, Mr Toh Kian Sing SC (“Mr Toh”), that the defendants’ circumvention point had not been explicitly canvassed before me in RA 64 in the manner suggested by Mr Singh and hence it is a new point.

Be that as it may, even taking the defendants’ case at its highest – that the abuse of process argument had been raised in RA 64 and is thus not a new point – I find that the test laid out in Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR(R) 862 (“Lee Kuan Yew”) for granting leave to appeal against my decision in RA 64 has not been satisfied.

Before I turn to the test set out in Lee Kuan Yew, I make the following points. The defendants’ characterisation of the plaintiff’s Notice to Produce under O 24 r 10 as a circumvention of the requirements of pre-action discovery and hence an abuse of process, is a distraction. The truth of the matter is that there is no procedural bar to the plaintiff serving a Notice to Produce under O 24 r 10 in the context of an application for pre-action discovery under O 24 r 6 of the ROC. In fact, O 24 r 6(8) extends O 24 r 10 and O 24 r 11 to applications for pre-action discovery. This is the position held by Professor Jeffrey Pinsler – that “a party seeking discovery under [O 24 r 6] may avail himself of the provisions in rr 10 and 11, if he needs to do so” (Singapore Court Practice 2018 (Jeffrey Pinsler SC, gen ed) (LexisNexis, 2018) at para 24/6/12).

It follows that the serving of the Notice to Produce (including SUM 632) is not for a collateral purpose and, as such, there is no reason to view it as an abuse of process. What transpired is that the defendants here, by means of Mr Blake’s 2nd Affidavit, unwittingly created an opportunity that the plaintiff spotted and it seized that opportunity by seeking production of the Financing Agreements referred to therein. There is nothing untoward in and about what the plaintiff did invoking O 24 r 10 to gain a litigation advantage. Any decent counsel presented with the same opportunity would have done the same thing.

I now turn to the three limbs of the test in Lee Kuan Yew.

First, there is no prima facie error of law in the decision in RA 64. In my view, the line of cases beginning with Tyco in Australia does not assist the defendants’ case. Regardless of the precise contours of the Tyco principle, I do not consider it applicable in Singapore. The relevant ROC regime in Singapore is unambiguous. The linchpin of the plaintiff’s application for the Financing Agreements is O 24 r 6(8) of the ROC. O 24 r 6 enshrines the pre-action discovery regime. Rule 6(8) when read with rr 10 and 11 deems any application for inspection and production of documents referred to in an affidavit for the pre-action discovery, a “cause or matter”. Put differently, the ROC clearly contemplates and connects the provisions of O 24 r 10 and orders for production of documents for inspection in O 24 r 11 to O 24 r 6 pre-action discovery applications. That is the very import of O 24 r 6(8).

I now turn to the second limb. I do not consider there to be a question of general principle to be decided for the first time. According to counsel for both parties, there has been no published decision in Singapore on the application of O 24 rr 10 and 11 in the context of O 24 r 6 of the ROC. While that appears to be true, I find it unnecessary for a decision to be made on this because the answer to the question is already clearly prescribed in O 24 r 6(8) as explained above.

For the same reasons, the third limb of the test in Lee Kuan Yew is not satisfied. I do not consider this case to involve a question of such importance that its determination by a higher tribunal would be advantageous to the public. In addition, given the fact-centric nature of the inquiry into issues of possession, custody or power, and necessity under O 24 rr 11 and 13, I find that the present case is not one that engages public interest considerations.