Leong Quee Ching Karen v Lim Soon Huat and others [2023] SGHC 234

The claimant, Ms Leong Quee Ching Karen, is a minority shareholder of the sixth defendant, Seng Lee Holdings Pte Ltd (“SLH”). The claimant commenced HC/OC 158/2022 (“OC 158”) against the majority shareholders of SLH for alleged minority oppression. As part of OC 158, the claimant applied in HC/SUM 2781/2022 (“SUM 2781”) for an interlocutory injunction to restrain the majority shareholders from transferring certain properties out of the ownership of SLH. The majority shareholders filed affidavits to oppose SUM 2781 and introduced email correspondence therein, which the claimant alleges is protected by “without prejudice” privilege (the “Emails”). Therefore, again as part of OC 158, the claimant has taken out the present application to strike out: (a) these Emails which were exhibited in the affidavits; and (b) the relevant paragraphs in the affidavits.

Having taken some time to carefully consider the parties’ submissions, I allow the claimant’s application to strike out all the Emails, save for the last email from Mr Robert Wee (“Mr Wee”) sent on 9 November 2020 at 4.42pm. I provide the reasons for my decision in this judgment.

Background facts

The background to the parties’ dispute

The dispute in OC 158 arose out of the conduct of the majority shareholders in SLH. The late Dato Lim Kim Chong (“Dato Lim”) set up SLH to hold assets that he wished to distribute for the benefit of certain members of his family. The claimant is one of Dato Lim’s eight children. The first to third defendants are the majority shareholders of SLH. The first defendant is Mr Lim Soon Huat (“Soon Huat”) and the second defendant is Mr Lim Soon Heng (“Soon Heng”). The third defendant is Lim Kim Chong Investments Pte Ltd (“LKCI”).

On 25 July 2013, Dato Lim and his children entered into a Deed of Family Arrangement (the “Original Deed”) to, among others, distribute a portion of his assets to his eight children in Singapore. To effect this, Dato Lim divided his eight children into two groups (“Group A” and “Group B”). Dato Lim then caused his various companies (and the properties they owned) to be divided between the fourth defendant, Sin Soon Lee Realty Company (Private) Limited (“SSLRC”), and SLH. The Group A beneficiaries, which include Soon Huat, became shareholders of SSLRC and the beneficial owners of the assets held by SSLRC and its subsidiaries. The Group B beneficiaries, which include Dato Lim, the claimant, and Soon Heng, became shareholders of SLH and the beneficial owners of the assets held by SLH and its subsidiaries. On 15 September 2016, Dato Lim supposedly gave his personal and beneficial stake in LKCI to Soon Huat. On 23 August 2017, Dato Lim also supposedly gave his personal and beneficial stake in SLH to Soon Huat. As a result, in addition to being a member of the Group A beneficiaries, Soon Huat also became a member of the Group B beneficiaries.

The Original Deed has been amended twice. On 28 February 2015, the members of the Lim family entered into an Amending and Restating Deed of Family Arrangement to amend certain terms of the Original Deed (the “Amended Deed”). Subsequently, on 11 January 2019, the parties to the Original Deed and the Amended Deed entered into a third deed, to provide, among others, for the disposal and handling of certain shares in an asset in Australia.

The obligations relevant to the present application are as follows. Under cl 9.1 of the Amended Deed, the Group A beneficiaries were obliged to procure SSLRC to make a gift or transfer two properties to SLH and/or its nominees. These two properties are known as the “Geylang Property” and the “Tamarind Road Property”. For convenience, I will refer to the two properties as the “Properties”. In addition, under cl 12.5 of the Amended Deed, the Group A beneficiaries were obliged to procure SSLRC to pay a sum of $9m, being part of the “Group B Assignment Amount” as defined in the Amended Deed, to SLH and/or its nominees. Again, for convenience, I will refer to this sum of $9m as the “Assignment Amount”.

The events leading to the Emails between the parties

Sometime in July 2020, Dato Lim proposed a meeting between the Group A and Group B beneficiaries to resolve the transfers mentioned above. On Soon Heng’s initiative, the meeting was eventually scheduled to take place on 7 August 2020. Soon Heng set out the agenda for the meeting in an email dated 15 July 2020:

As the claimant points out, what Soon Huat proposed in his email in relation to the Properties and the Assignment Amount departed from that provided for in the Amended Deed.

The above-mentioned meeting between the Group A and Group B beneficiaries took place as scheduled on 7 August 2020. It was attended by, among others: (a) certain members of Group A; (b) Mr Wee of Ho & Wee LLP, as the solicitor representing the Group A beneficiaries; (c) Soon Heng and the claimant, as members of Group B; (d) Mr Tan Teng Muan (“Mr Tan”) of Mallal & Namazie, as the solicitor representing the Group B beneficiaries at the time; (e) Dato Lim; (f) Mr Yang Shi Yong of Drew & Napier LLC, as Dato Lim’s solicitor; (g) Soon Huat; and (h) Mr Sarbjit Singh (“Mr Singh”) and Mr Thomas Ang of Selvam LLC, as the solicitors representing Soon Huat.

The events leading to the present application

On 27 July 2022, the claimant commenced OC 158 against, among others, the majority shareholders of SLH, including Soon Huat and Soon Heng, for minority oppression. For present purposes, it suffices to state that one of the alleged oppressive acts was that Soon Huat and Soon Heng intended for Soon Huat and his son, Mr Lim Yong Yeow Thomas (“Thomas”), to receive the Properties instead of SLH. Thus, the claimant filed SUM 2781, where she sought, among others, an injunction to restrain the transfer of the Properties to Soon Huat and Thomas pending the final determination of OC 158 and any appeals therefrom.

Against this background, on 22 August 2022, Soon Heng and Soon Huat filed affidavits to oppose SUM 2781. Soon Huat exhibited the Emails in his affidavit. In that affidavit, Soon Huat explained that he did so because three of the Group A beneficiaries sent a letter dated 15 June 2022 (the “15 June 2022 Letter”) that made reference to one of the said Emails, which Soon Huat took to be the Group A beneficiaries waiving the “without prejudice” privilege which attached to the Emails. Soon Heng also exhibited the Emails in his affidavit. He also relied on the 15 June 2022 Letter for exhibiting the Emails.

After the claimant discovered that Soon Heng and Soon Huat had exhibited the Emails, she sought, through her solicitors, for Soon Heng and Soon Huat to voluntarily strike out the Emails from their respective affidavits. When Soon Heng and Soon Huat refused to do so, the claimant filed the present application to strike out the Emails exhibited in Soon Heng’s and Soon Huat’s affidavits filed to oppose SUM 2781, as well as the relevant paragraphs in the said affidavits.

The parties’ positions

The claimant’s position

The claimant asserts that the Emails are protected by “without prejudice” privilege for the following reasons. First, they concerned disputed issues that had not been resolved during the meeting on 7 August 2020. As such, the Emails were sent as a continuation of the discussions at the meeting. Second, several of the Emails were marked “without privilege” and were sent by lawyers, including lawyers who represented the claimant at the time. Third, the emails were sent as part of a continuing discussion to resolve certain disputes, and via these emails some of the parties attempted, through their lawyers, to compromise on certain issues. Fourth, Soon Heng and Soon Huat implicitly recognised that the Emails are protected by “without prejudice” privilege. Finally, the claimant has not waived the “without prejudice” privilege over the Emails.

The defendants’ positions

The defendants maintained largely similar positions even though they were represented by two sets of lawyers. Mr Singh appeared for the first, third, and fifth defendants. Mr Tan appeared for the second defendant. As Mr Singh and Mr Tan indicated that they adopt each other’s submissions, I will refer to them collectively as the “defendants”.

The first (being Soon Huat), third, and fifth defendants make three points. First, the claimant does not have standing to assert “without prejudice” privilege over the Emails. Second, contrary to the claimant’s assertions, the Emails do not constitute admissions as part of a course of negotiations to settle a dispute. As such, the Emails are not protected by “without prejudice” privilege. Third, even if the Emails are protected by “without prejudice” privilege, the exception in the English Court of Appeal decision of Muller v Linsley and Mortimer (a firm) [1994] EWCA Civ 39 (“Muller”) applies to prevent the claimant from relying on such privilege. For convenience, I shall term this as the “Muller exception”. In addition, Mr Singh submitted before me that the claimant cannot be allowed to hide behind the “without prejudice” privilege to avoid making material disclosures in SUM 2781.

The second defendant (being Soon Heng) makes two points. First, the Emails are not protected by “without prejudice” privilege because they were not written in the nature of a compromise or a genuine attempt to settle the parties’ dispute. On the contrary, the Emails were, in substance, communications wherein the respective parties simply asserted their rights. Second, the claimant acquiesced to the disclosure of the Emails because she accepts that the 15 June 2022 Letter can be relied upon in these proceedings. The claimant cannot therefore be allowed to approbate and reprobate, in accordance with the English High Court decision of Express Newspapers plc v News (UK) Ltd and others [1990] 1 WLR 1320 (“Express Newspapers”). When I asked Mr Tan about the legal basis of this principle, Mr Tan alluded to broad public policy reasons but could not point me to an authority that regarded this principle as a specific exception to “without prejudice” privilege.

The relevant issues

With the parties’ positions in mind, there are, in my view, four relevant issues that I will need to address.

(a) First, whether the claimant has standing to assert “without prejudice” privilege.

(b) Second, whether the Emails are protected by “without prejudice” privilege.

(c) Third, assuming that the claimant has standing to assert “without prejudice” privilege, and the Emails are protected by “without prejudice” privilege, whether the claimant has waived such privilege.

(d) Fourth, even if the claimant has not waived “without prejudice” privilege, whether any exception to the privilege applies in the present case.

I turn now to deal with each of these issues.

Whether the claimant has standing to assert “without prejudice” privilege over the Emails

The applicable law

It is trite law that “communications in the course of negotiations genuinely aimed at settlement of a dispute are protected by ‘without prejudice’ privilege” (see the High Court decision of Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd [2009] 4 SLR(R) 769 (“Cytec”) at [14], citing Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 (“Rush & Tompkins”) at 1299). However, as a threshold issue, a third party cannot claim “without prejudice” privilege if it took “no part in the ‘without prejudice’ negotiations, either personally or through an agent” (see the High Court decision of A-B Chew Investments Pte Ltd v Lim Tjoen Kong [1989] 2 SLR(R) 149 (“A-B Chew (HC)”) at [16]).

The High Court decision of Yeo Hiap Seng v Australia Food Corp Pte Ltd and another [1991] 1 SLR(R) 336 provides guidance. There, a contractual dispute arose between the plaintiff and the two defendants in relation to the supply of fruit juice by the plaintiff to the first defendant. The second defendant, being the director of the first defendant, applied to expunge parts of the plaintiff’s affidavit which exhibited negotiations between the plaintiff and the first defendant protected by “without prejudice” privilege. The High Court upheld the Assistant Registrar’s decision to dismiss the second defendant’s application. In doing so, the court reiterated the principle in A-B Chew (HC) as follows (at [14]–[15]):

Accordingly, the defendants are correct that a party needs to show, as a threshold issue, that he or she has standing by having taken part in the “without prejudice” privilege negotiations or communications either personally or through an agent.

My decision: the claimant has standing to assert “without prejudice” privilege over the Emails

In my judgment, the claimant has standing to assert “without prejudice” privilege over the Emails. This is because, at the times when the Emails were exchanged, the claimant was a party to these exchanges through Mallal & Namazie, who was representing her and Soon Heng. Indeed, Soon Heng expressly admitted to this in his affidavit dated 12 May 2023, when he said that “Group B (comprising myself and the Claimant and excluding Soon Huat) was represented by Mallal & Namazie” [emphasis added]. Since the defendants have not successfully challenged the fact of this representation, I find that the claimant has the requisite standing.

Whether the Emails are protected by “without prejudice” privilege

I turn then to the issue of whether the Emails are protected by “without prejudice” privilege. I first set out some important, and well-established, principles of law in this regard.

The applicable law

The common law rule on “without prejudice” privilege is statutorily embodied in s 23 of the Evidence Act 1893 (2020 Rev Ed) (the “EA”), which states as follows:

There are two well-established rationales for “without prejudice” privilege. They were summarised in the Court of Appeal decision of Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd and another [2006] 4 SLR(R) 807 (“Mariwu”) (at [24]):

The first, and the primary rationale, is public policy. Indeed, as the Court of Appeal explained in Greenline-Onyx Envirotech Phils, Inc v Otto Systems Singapore Pte Ltd [2007] 3 SLR(R) 40 (“Greenline-Onyx”), “without prejudice” privilege “is founded on the public policy of encouraging litigants to settle their differences rather than to litigate them to the finish” (at [14], citing Rush & Tompkins at 1299). As such, “parties should not be discouraged by the knowledge that anything said in the course of negotiations may be used to their prejudice in the course of proceedings” (at [14], citing Cutts v Head [1984] Ch 290 at 306). The second rationale is grounded in contract, in that “without prejudice” communications constitute an implied agreement arising out of what is commonly understood to be the consequences of offering or agreeing to negotiate without prejudice (see Mariwu at [24]).

In so far as s 23 of the EA expresses only the broad principles behind “without prejudice” privilege and does not specify the scope of its operation, many of the detailed rules governing the operation of “without prejudice” privilege must be discerned from the common law (see, eg, A-B Chew (HC) at [15]). I turn to examine these rules.

First, the existence of a dispute and an attempt to compromise it are at the core of the “without prejudice” privilege. As such, “without prejudice” privilege cannot be involved where no dispute exists (see Mariwu at [30]). Indeed, the communications in respect of which privilege is claimed must arise in the course of genuine negotiations to settle a dispute (see the Court of Appeal decision of Ernest Ferdinand Perez De La Sala v Compañia De Navegación Palomar, SA and others and other appeals [2018] 1 SLR 894 (“Ernest Ferdinand”) at [67]). In addition to the existence of a dispute, communications are protected by “without prejudice” privilege when such communications involve statements or conduct amounting to admissions against a party’s interests. The rationale behind this was explained by Sundaresh Menon JC (as he then was) in the High Court decision of Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd [2007] 2 SLR(R) 433 (“Sin Lian Heng”) in the following terms (at [43]):

As such, where correspondence shows an intention to compromise a dispute, or contains such an offer, this would amount to an admission against interest that can attract “without prejudice” privilege. This, as Menon JC explained in Sin Lian Heng, is entirely consistent with the rationale of encouraging parties to speak frankly in the course of their negotiations, without concern that anything which they have said can be used against them in the event of litigation.

Second, when determining whether a particular correspondence is protected by “without prejudice” privilege, the use of the label “without prejudice” is important but not conclusive. As the High Court explained in Swee Wan Enterprises Pte Ltd v Yak Thye Peng [2017] SGHC 313 (“Swee Wan”) (at [10], citing Cytec at [16]), “attaching a ‘without prejudice’ label to a communication does not conclusively or automatically render it privileged”. This is consistent with the focus that the law has on the substantive rather than just the form. However, this does not mean that the use of a “without prejudice” label should be completely disregarded. On the contrary, as the High Court also explained in Swee Wan (at [10]), “[t]he presence of such words would, however, place the burden of persuasion on the party who contends that they should be ignored”. This is again consistent with the idea that the law attributes importance to a person’s conduct, especially if it was knowing and intentional. As such, the intentional use of the “without prejudice” label has to mean something, and the very least that should lead to is that the party who contends that it should be ignored bears the burden of proving so. Further, correspondence that is not expressly labelled as being “without prejudice” will be privileged if it is written in reply to a correspondence that is so labelled, or is part of a continuing sequence of negotiations, whether by correspondence or orally (see Bankim Thanki QC, The Law of Privilege (Oxford University Press, 2nd Ed, 2011) at para 7.13).

Third, “without prejudice” privilege can also arise in a multi-party situation. In this regard, the Court of Appeal in Mariwu recognised (at [28]) that because “the rationale of the s 23 [EA] privilege is to encourage settlements … [there is] no inconsistency between that section and Rush & Tompkins”. In the House of Lords decision of Rush & Tompkins, a dispute arose between the plaintiffs, the first defendant, and the second defendants over the construction of some buildings. As the plaintiffs and the first defendant reached an out-of-court settlement, this left only the plaintiffs and the second defendants engaged in litigation. The court denied the second defendants’ application for discovery of the correspondence between the plaintiffs and the first defendant leading to their settlement, because the correspondence was protected by “without prejudice” privilege. Lord Griffiths explained why it was important for “without prejudice” privilege to apply to a multi-party situation (at 1301):

Indeed, in so far as “without prejudice” privilege applies in a two-party situation to promote settlement negotiations, the same privilege applies to a multi-party situation to protect settlement negotiations between some of the parties, even if the other parties are not willing to resolve the matter amicably.

Further, the High Court decision of United Overseas Bank v Lippo Marina Collection Pte Ltd and others [2018] 4 SLR 391 provides a useful summary on the application of “without prejudice” privilege to a multi-party situation (at [103]):

My decision: some of the Emails are protected by “without prejudice” privilege

With the above principles in mind, I find that all of the Emails are protected by “without prejudice” privilege, save for the last email from Mr Wee sent on 9 November 2020 at 4.42pm, for the following reasons.

The Emails were intended to further discuss the issues in dispute that the meeting of 7 August 2020 was meant to resolve

Generally, I agree with the claimant that there remained disputed issues that were not resolved at the meeting of 7 August 2020. As such, the Emails were sent as a continuation of the discussions at the meeting.

As a starting point, I agree with Mr Singh’s reliance on the English High Court decision of BE v DE [2014] EWHC 2318 (Fam) (“BE”) for the proposition that the court must have regard to the circumstances of the meeting of 7 August 2020 in assessing whether the Emails were meant to follow up on discussions therefrom. In BE, the husband and wife had dinner in an attempt to reconcile their marriage. During the dinner, the husband presented his wife with an agreement to sign. This agreement stated, among others, that the wife shall continue to live in her property in London. The wife did not sign the agreement. She later sought to adduce the agreement as evidence to prove that she was domiciled in England, in support of her argument that the English court had jurisdiction. The husband sought to redact the agreement on the basis that it was made in the course of settlement negotiations. The English High Court, proceeding on the assumption that there was a dispute between the parties, held that the parties could not be said to have met to compromise the dispute as the wife merely attended a dinner with her husband and was not aware that it was an opportunity to negotiate (at [24]). Applying this to the present application, I have no difficulty agreeing with Mr Singh that the court must have regard to the circumstances from which the Emails originated from, when assessing whether they are protected by “without prejudice” privilege.

With this general premise in mind, I, however, disagree with the defendants’ characterisation of the meeting as being “less a discussion and more a declaration of the position taken by the Group A Beneficiaries”. This is because the circumstances in which the Emails originated against the backdrop of the meeting of 7 August 2020, which shows that they were exchanged with the aim of compromising the parties’ dispute. I say this for the following reasons.

First, the meeting of 7 August 2020 was apparently called for because it had been proposed that the transfer of the Properties and the Assignment Amount take place in a manner which departed from what was stated in the Amended Deed. Second, the members of the opposing Group A and Group B beneficiaries attended with their lawyers, a fact which shows that they anticipated needing to go into negotiations requiring the assistance of their lawyers. Third, the meeting was cut short because it was “tense”, as suggested by Soon Heng, which showed that there was a dispute between the parties that needed to be settled. Thus, when the Emails were exchanged between the parties’ lawyers, starting with the email sent by Mr Wee on 18 August 2020 at 10.47am, it was clear that the Emails were sent as a continuation of the discussion of the various issues raised at the meeting on 7 August 2020.

The fact that the Emails were meant to continue the parties’ discussion of the issues that had remained unresolved from the meeting on 7 August 2020 can be seen from the email that Mr Tan had sent on 24 August 2020 at 1.38pm, in which Mr Tan wrote at paragraph 28 that:

The italicised words speak for themselves. It is clear that, from the perspective of Mr Tan, that all of the parties “want to move forward”, and the parties should “work together to address the outstanding matters in Clauses 9 and 12 of the Amended Deed”. As such, far from each Group being resolute in their respective positions, Mr Tan’s email clearly suggests that the parties were attempting to reach a compromise in their dispute.

A further example of the attempt to compromise the dispute can be seen in the email sent by Mr Ang on 24 September 2020 at 4.25pm. In that email, Mr Ang stated that Soon Huat “also confirms that he is prepared for the S$ 9 million [ie, the Assignment Amount] to be transferred to the Group B Holding Company immediately”. This is different from what Soon Heng promised in his email of 15 July 2020, where he suggested that the Assignment Amount be paid to Dato Lim instead. This is thus a concession on the part of Soon Huat, presumably in an attempt to compromise the dispute between the parties.

More holistically, I find that the Emails were, generally speaking, exchanges for the parties to negotiate on the conditions for the transfers of the Properties and the Assignment Amount. Indeed, while the language used may have been firm at times, it is clear that Mr Wee, on behalf of the Group A beneficiaries, was proposing certain conditions, which the other parties had not agreed to. The parties were trying to find a middle ground to resolve their dispute. Although, as we now know, the parties did not manage to resolve their dispute amicably, this does not mean that the Emails had not been an attempt to compromise that dispute.

However, I do not think that all of the Emails reveal such an attempt to resolve the parties’ dispute. In my judgment, the last of the Emails sent by Mr Wee on 9 November 2020 at 4.42pm cannot amount to such an attempt. While marked as being “without prejudice”, this email contains a host of allegations and contains no hint of an attempt to settle or compromise the parties’ dispute. Indeed, it expressly states at paragraph 5.2 that “[y]ou and your clients are free to do as they wish”. There is no attempt to settle or compromise the dispute.

Accordingly, I find that all the Emails, save for the one sent by Mr Wee on 9 November 2020 at 4.42pm, were intended to further discuss the issues in dispute that the meeting on 7 August 2020 was meant to resolve. This therefore cloaks them with “without prejudice” privilege.

The Emails were marked as being “without prejudice” and were sent by lawyers

I am fortified in my conclusion above by the fact that some of the Emails were marked as being “without prejudice” and were sent by lawyers. In my view, it is significant that several of the Emails were marked as being “without prejudice”. Notably, the first of the Emails, which was sent by Mr Wee on 18 August 2020 at 10.47am, was marked “without prejudice”. This shows that Mr Wee, who, being a lawyer, obviously can be taken to know the effect of the “without prejudice” label, regarded the purpose of his email to be for the discussion of the issues arising from the meeting on 7 August 2020, and with a view of settling them with the other parties. Moreover, Mr Wee continued to label his other emails (which are part of the Emails) as “without prejudice”.

Thus, as the High Court noted in Swee Wan (at [24]), it is important that correspondence is marked as “without prejudice” and more so if the correspondence was written by lawyers. This places the burden on the defendants, who are now urging the court to ignore the “without prejudice” label, to explain why the Emails are not privileged. Apart from the last email sent by Mr Wee on 9 November 2020 at 4.42pm, I am not satisfied that the defendants have provided a satisfactory explanation in this regard. Indeed, I do not think that it is satisfactory for the defendants to now explain before me that the “without prejudice” labels were used by the lawyers at the time only “out of caution”, when it is not clear what this caution is about. Instead, for the reasons I explained earlier, I do not think that the parties were so resolute in their positions that there was no compromise to be made.

For all of these reasons, I find that all of the Emails, save for the last email from Mr Wee sent on 9 November 2020 at 4.42pm, are protected by “without prejudice” privilege.

Whether the claimant has waived “without prejudice” privilege over the Emails

Having decided that all but one of the Emails are protected by “without prejudice” privilege, I turn now to consider if the claimant has waived such privilege.

The applicable law

Although s 23 of the EA does not address the doctrine of waiver, the Singapore courts have accepted that the doctrine of wavier applies to “without prejudice” privilege (see Swee Wan at [14]). The applicable law in relation to waiver is trite. First, waiver requires the consent of both parties (see Swee Wan at [14], citing the High Court decision of Krishna Kumaran s/o K Ramakrishnan v Kuppusamy s/o Ramakrishnan [2014] 4 SLR 232 at [22]). Apart from an express waiver, an implied waiver of privilege can only be effective if it is clear and involves “conduct that unequivocally points to an intention not to rely on the privilege” (see Sin Lian Heng at [61]). This must be proven to the standard of a balance of probabilities based on “clear evidence” (see the High Court decision of Lau Chin Eng and another v Lau Chin Hu and others [2009] SGHC 225 at [17]). As such, the fact that a party makes reference to the existence of a privileged document (but not its contents) cannot be taken as a waiver of “without prejudice” privilege.

Thus, in Sin Lian Heng, Menon JC noted that a “single reference to the letter in the context of correspondence between the parties themselves” did not amount to a waiver of privilege (at [61]). This can be contrasted with A-B Chew (HC), in which there was a waiver of privilege because the parties had not only referred to “without prejudice” communications, but also on affidavit “descended into the details of what had actually transpired” (at [24]). Indeed, “[r]ather than close the door of privilege, the defendant and his solicitors opened it even wider” (at [24]). Similarly, in Greenline-Onyx, the defendant failed to assert “without prejudice” privilege over certain documents that had been included in the agreed bundle of documents for the trial of the matter (at [20]–[22]).

Second, a party cannot unilaterally waive privilege only to claim it later when his opponent makes reference to those communications (see A-B Chew (HC) at [22]). This is consistent with the rule against cherry picking, that one party may not cherry pick parts of documents that were favourable and retain privilege for parts that were unfavourable (see the High Court decision of Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42 at [24]).

Third, there is no requirement that waiver must result in injustice or detriment to the other party. This is because waiver is a rule of evidence and should not be confused with waiver as a form of proprietary estoppel, which is a rule of equity (see the Court of Appeal decision of Lim Tjoen Kong v A-B Chew Investments Pte Ltd [1991] 2 SLR(R) 168 at [25]).

My decision: the claimant did not waive “without prejudice” privilege over the Emails

With the above principles in mind, I find that the claimant did not waive “without prejudice” privilege over the Emails. First, I do not think the fact that the Group A beneficiaries referred to one of the Emails in the 15 June 2022 Letter is material because the claimant was not even a party to that Letter. Thus, she cannot be taken to have waived any privilege. Second, if the defendants’ argument is that the claimant has waived privilege by not objecting to the contents of the 15 June 2022 Letter being disclosed in Soon Heng’s and Soon Huat’s affidavits, I disagree. This is because the claimant did not discuss the contents of the Emails. Further, the 15 June 2022 Letter only contains a passing reference to one of the Emails, and did not discuss its contents. As such, this cannot, without more, amount to unequivocal conduct that is sufficient to waive privilege.

Accordingly, I find that the claimant did not waive “without prejudice” privilege over the Emails.

Whether any exception to “without prejudice” privilege over the Emails applies

The final issue that I must consider is whether any exception to “without prejudice” privilege over the Emails applies. The defendants have raised two exceptions: (a) the Muller exception; and (b) the doctrine of approbation and reprobation, which I shall consider in turn.

The applicable law on the Muller exception

Although the Muller exception has received considerable judicial attention in the UK, little – if at all – has been said about it in Singapore. In this regard, I will set out the relevant cases discussing the Muller exception in the UK, before turning to how it may potentially apply in Singapore.

The Muller exception in the UK

It is appropriate to begin with the English Court of Appeal decision of Muller, from which the Muller exception emanated. The brief facts are as follows. The plaintiffs sued the defendants – who were their solicitors – for negligence. The plaintiffs had consulted the defendants about a dispute between the plaintiffs and shareholders and directors of a company, which eventually culminated in a settlement. In the course of that dispute, the plaintiffs claimed the defendants negligently submitted an unstamped transfer document that led to the first plaintiff’s dismissal from the said company. As a result, the first plaintiff was forced to sell his shares in the company. The share price subsequently increased. One of the issues in the parties’ dispute was whether the settlement constituted a reasonable attempt by the plaintiffs to mitigate their damage. The plaintiffs sought to withhold disclosure of documents leading to the settlement based on “without prejudice” privilege. The court, which comprised Hoffmann, Swinton Thomas, and Leggatt LJJ, ordered the plaintiffs to disclose the documents. Hoffmann LJ reasoned his decision on an exception to “without prejudice” privilege:

Hoffmann LJ’s reasoning was that the public policy rationale of “without prejudice” privilege did not apply to statements that are relevant, not because of the truth of any fact it asserts or admits, but simply on the fact that it was made. On the other hand, Swinton Thomas and Leggatt LJJ reasoned their decisions on the basis that the plaintiffs had waived any “without prejudice” privilege that protected the negotiations.

The subsequent cases and the discussions of the Muller exception therein have centered around the following concerns: (a) whether the exception undermines the rationales behind “without prejudice” privilege; (b) what the basis for the exception is; and (c) what the test for the exception is. The upshot of these concerns is that the status of the Muller exception is very much in doubt in the UK.

The first concern is that the exception undermines the rationales behind “without prejudice” privilege. As mentioned earlier, the primary rationale is the public policy of encouraging parties to settle their disputes rather than litigate them. Indeed, in the English Court of Appeal decision of Unilever plc v Procter & Gamble Co [2000] 1 WLR 2436 (“Unilever”), Walker LJ stated as follows (at 2443–2444 and 2448–2449):

As such, Walker LJ proposed adopting a broader approach in respect of the Muller exception, such that communications between negotiating parties are protected by “without prejudice” privilege as a whole, and the court should not dissect parts of such communications as not being privileged. For convenience, I term this the “Broad Approach”.

Walker LJ’s concern was echoed in the House of Lords decision in Ofulue v Bossert [2009] AC 990 (“Ofulue v Bossert”). In Lord Rodger’s words, although “it would be possible to carve out an exception along those lines”, ie, the Muller exception, “[t]he question is whether creating such an exception would be consistent with the overall policy behind the rule” (at [39]). In the same judgment, Lord Neuberger also highlighted that the Muller exception does not consider the contractual rationale behind “without prejudice” privilege (at [95]):

For completeness, I note that in the UK Supreme Court decision of Oceanbulk Shipping and Trading SA v TMT Asia Ltd and others [2011] 1 AC 662, Lord Clarke stated as follows (at [27]):

The second concern is the unclear basis for the exception. As Fancourt J held in the English High Court decision of Briggs and others v Clay and others [2019] EWHC 102 (Ch) (“Briggs”), the exception may be justified on two alternative bases, and it was unclear which was the true basis for Hoffmann LJ’s decision (at [49]):

Briggs is additionally relevant for the gloss that it adds to the test set out in the Muller exception, ie, the third concern I have identified above. Indeed, it is clear that there is no one settled test in the application of the Muller exception. As Fancourt J puts it in Briggs, “the general principle that bringing a claim or making an allegation does not disentitle a party to rely on without prejudice privilege may well be qualified where an issue is raised that is only justiciable upon proof of without prejudice negotiations” (at [99]) [emphasis added]. In his view, this test is reflected in the reasoning in Muller, where all three judges “considered it to be material that the plaintiff had put in issue the reasonableness of his negotiations with the shareholders and that that issue would not be justiciable without disclosure of the negotiations” (at [98]). However, as later cases show, the test only resulted in further confusion as to what the test for the Muller exception really is.

Thus, in the English High Court decision of Berkeley Square Holdings and others v Lancer Property Asset Management Ltd and others [2020] EWHC 1015 (Ch) (“Berkeley (HC)”), Roth J applied the Muller exception as developed in Briggs. His interpretation of “fairly justiciable” was whether “the evidence is so central to an issue which the party resisting disclosure has introduced that there is a serious risk that there will not be a fair trial if that evidence is excluded” (at [83]). On the facts of Berkeley (HC), Roth J admitted the relevant evidence, because “if the material is not admitted, the court at the trial will be misled” (at [88(iii)]).

When Berkeley (HC) went on appeal, the English Court of Appeal, however, voiced concerns about the seeming extension of the Muller exception (see Berkley Square Holdings Ltd and others v Lancer Property Asset Management Ltd and others [2021] 1 WLR 4877 (“Berkley (CA)”)). Richards LJ raised the following concerns:

(a) A new exception was developed by Fancourt J in Briggs and Roth J in Berkeley (HC). This exception “would apply where one party raises an issue which cannot, or cannot fairly, be decided without recourse to evidence of without prejudice negotiations or communications but the party raising the issue resists disclosure or use of such evidence” (at [84]).

(b) There is uncertainty over the word “justiciable”. The word is conventionally used to describe an issue that the court will not consider because of its subject matter, ie, it must be impossible to determine the issue without recourse to the “without prejudice” evidence. However, Roth J in Berkeley (HC) set the bar lower, by referencing whether the court is able to fairly determine an issue and to the centrality of the evidence (at [87]).

(c) It is unclear whether the exception “is available in both two-party cases and three-party cases. If it is available where the person resisting disclosure or admission has not waived privilege, it would logically appear to be as applicable in a two-party case as in a three-party case” (at [88]).

(d) There “would need to be careful consideration of whether this exception would involve an unacceptable interference with the public policy of encouraging compromises which is the reason for the without prejudice rule” (at [89]).

Despite his concerns, Richards LJ ultimately concluded that Berkeley (CA) was “not the case to decide whether a new exception of this type exists” because it was unnecessary on the facts of the case (at [90]). That said, it is clear that Richards LJ had expressed considerable doubt about the Muller exception.

I conclude my analysis of the development of the Muller exception in the UK by stating that there is uncertainty over whether the exception should even apply as a matter of principle, and even if it applies, what the scope of the exception is.

The Muller exception in Singapore

(1) The relevant cases

Turning then to how the Muller exception may apply in Singapore, I begin with the Court of Appeal decision of Quek Kheng Leong Nicky and another v Teo Beng Ngoh and others and another appeal [2009] 4 SLR(R) 181 (“Quek Nicky”), which discussed Unilever (at [23]):

I note that Quek Nicky considers that Unilever (at 2444–2445) sets out “the most importance instances” of exceptions to the rule on “without prejudice” privilege. For brevity, I reproduce only what Walker LJ in Unilever said about the Muller exception (at 2444–2445):

Contrary to the defendants’ submission, I do not think that Quek Nicky can be taken as authority that the Muller exception applies in Singapore. In my view, when the Court of Appeal referred to Unilever and the exceptions to “without prejudice” privilege therein, the court did not go so far as to say that those exceptions apply in Singapore, and more specifically, that the Muller exception applies. Even if the Muller exception applies in Singapore, the development of the exception in the UK since Quek Nicky was decided in 2009 requires that I nevertheless determine the true scope of the exception.

There are two High Court decisions that I consider to be relevant to my decision: Sin Lian Heng and CSO v CSP and another [2023] SGHC 24 (“CSO v CSP”). First, in Sin Lian Heng, Menon JC considered the issue of whether “without prejudice” privilege applies to negotiations on quantum even if there has been an admission of liability. Menon JC cited Unilever and alluded to the Broad Approach (at [49]–[51]):

Second, in CSO v CSP, the High Court discussed the interaction between s 23 of the EA and the common law rule on “without prejudice” privilege, holding that such privilege applied to the whole of “without prejudice” communications and not only admissions. The court considered that the Broad Approach in Unilever applies in Singapore (at [51]–[58]):

The court in CSO v CSP (at [73]–[76]) also considered the compatibility of the Broad Approach with the Court of Appeal decision of Ernest Ferdinand, which I reproduce:

(2) My decision: the Muller exception does not apply in Singapore

As a starting point, I am bound by s 2(2) of the EA, which states “all rules of evidence not contained in any written law, so far as such rules are inconsistent with any of the provisions of this Act, are repealed”. As the EA codified only the law of evidence existing at the time of its enactment, new rules of evidence can be given effect to only if they are not inconsistent with the provisions of the EA or their underlying rationale (see the High Court decision of Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 at [117], cited with approval in the Court of Appeal decisions of Lee Chez Kee v Public Prosecutor [2008] 3 SLR(R) 447 at [116] and ARX v Comptroller of Income Tax [2016] 5 SLR 590 at [32]).

With s 2(2) of the EA in mind, I find that the Muller exception does not apply in Singapore. This is because the Muller exception is incompatible with the public policy and contract rationales behind “without prejudice” privilege. For the public policy rationale, I broadly agree with Walker LJ’s explanation in Unilever that parties will be unable to speak freely in negotiations if they are preoccupied with determining which portion of their negotiations falls within the Muller exception and is admissible as evidence. For the contract rationale, as Lord Neuberger alluded to in Ofulue v Bossert, it is unclear how the Muller exception is compatible with the contract rationale for “without prejudice” privilege. This is because if the basis for “without prejudice” privilege is the implied agreement between negotiating parties that their communications are privileged, for the Muller exception to apply, a similar implied agreement must apply. Yet, I find it difficult to fathom how there can be such an implied agreement, especially when the Muller exception requires dissecting parties’ negotiations into admissions and all other communications.

Further, in so far as the Broad Approach applies in Singapore, I consider that it will be inconsistent to adopt the Muller exception in Singapore. This is because, as I mentioned above, the Broad Approach prevents the court from dissecting communications that are protected by “without prejudice” privilege. Yet, an application of the Muller exception requires the court to undertake this exact process of dissection.

My decision on the Muller exception: the exception does not apply

Given my finding that the Muller exception does not apply in Singapore, I reject the defendants’ argument that the claimant is precluded from relying on “without prejudice” privilege for the Emails.

In the event that I am wrong, and the Muller exception applies in Singapore, I similarly reject the defendants’ argument that the claimant is precluded from relying on “without prejudice” privilege for the Emails. This is because, applying the test for the extended Muller exception as developed in Briggs and Berkeley (HC), I do not find that the defendants have satisfactorily particularised an issue which cannot, or cannot fairly, be decided without recourse to the Emails. In any event, when Mr Singh realised that the Muller exception had been subject to such trenchant criticism in Berkeley (CA), he dropped his reliance on the exception without more.

The applicable law on the doctrine of approbation and reprobation

I turn then to Mr Tan’s argument that the claimant should not be allowed to approbate and reprobate. The law on the doctrine of approbation and reprobation has been comprehensively explored by the Court of Appeal in BWG v BWF [2020] 1 SLR 1296 (at [101]–[118]) and I need not add to it. To briefly summarise, the doctrine is a principle of equity that a person who accepts a benefit under an instrument must adopt it in its entirety and renounce any other rights that are inconsistent with it. For instance, a person who has benefitted from a judgment cannot allege the invalidity of the judgment that conferred him the benefit. The doctrine extends more broadly to a situation of inconsistent positions asserted against different parties in different proceedings, as long as the party has received an actual benefit as a result of an earlier inconsistent position, as reflected in the English decisions of Express Newspapers and First National Bank plc v Walker [2001] 1 FLR 505.

Unlike the common law doctrine of election, the doctrine of approbation and reprobation does not require the electing party to make a conscious choice between alternative rights and remedies, but a party’s election that gives rise to a prior position must still be reasonably clear to be effective (see the Court of Appeal decision of Aries Telecoms (M) Bhd v ViewQwest Pte Ltd [2018] 1 SLR 108 at [5]).

In the context of the present application, I consider that there may also be a related issue of whether a party may use “without prejudice” privilege to escape disclosure obligations, such as in without notice applications under the Rules of Court 2021 (the “ROC 2021”). In my view, no such concern arises. This is because when communications are protected by “without prejudice” privilege, the parties have no obligations to disclose this to the court. I raise O 9 r 3 of the ROC 2021 as an example, which states that “without prejudice” communications must not be disclosed to the court:

Accordingly, in so far as communications are protected by “without prejudice” privilege, parties have no obligation to disclose them to the court. On the contrary, they are obliged to not disclose them to the court.

My decision on the doctrine of approbation and reprobation: the doctrine does not apply

With the above principles in mind, I find that the doctrine of approbation and reprobation does not apply here. In my judgment, the claimant has not simultaneously accepted a benefit and renounced any rights inconsistent with that benefit. The claimant is seeking only to strike out the Emails, and not the 15 June Letter. As a result, the defendants can rely on the 15 June Letter in SUM 2781. Accordingly, and contrary to the defendants’ submission, the doctrine of approbation and reprobation does not apply in the present application.

I also do not find that the claimant has, by relying on “without prejudice” privilege, failed to make any material disclosure in SUM 2781. This is because, as I set out above, when communications are protected by “without prejudice” privilege, the parties have no obligation to disclose them to the court.

Conclusion

For all these reasons, I allow the claimant’s application to the extent that I find that all of the Emails, save for the one sent by Mr Wee on 9 November 2020 at 4.42pm, are protected by “without prejudice” privilege. I accordingly order that all these Emails, as well as the relevant paragraphs, be expunged from the affected affidavits as set out in the present application. The defendants are to refile the affected affidavits, without the expunged materials, within 14 days of this decision.