Karan Bagga v Stichting Chemical Distribution Institute [2023] SGHC 97

Introduction

In HC/S 30/2022, the plaintiff claims against the defendant for damages arising from eight sets of statements which were allegedly defamatory and/or malicious falsehoods. To bolster his evidential case, the plaintiff filed the present two applications. In HC/SUM 3879/2022 (“SUM 3879”), he sought an order to examine eight witnesses who are based overseas. In HC/SUM 4340/2022 (“SUM 4340”), he sought an order to subpoena three witnesses who are based in Singapore and to dispense with their affidavits of evidence-in-chief (“AEICs”).

After hearing the parties on 10 February 2023, I dismissed both applications. I now set out my grounds of decision.

Facts

The parties

The plaintiff, Mr Karan Bagga, is a litigant-in-person in these proceedings. He is in the business of providing marine surveying services and undertaking other marine consultancy work. The defendant, Stichting Chemical Distribution Institute (also referred to as “CDI”), is a non-profit foundation which inter alia promotes the safety and security of the marine chemical industry by operating an inspection scheme known as the “CDI-M Scheme”. The plaintiff was accredited as an inspector under the CDI-M Scheme in November 2013.

Background to the present summonses

From May 2014, the defendant had been informed on multiple occasions of alleged concerns over the plaintiff’s excessive fees. On 27 October 2016, the defendant received a formal complaint regarding the plaintiff’s alleged excessive fees from MTM Ship Management Singapore (“MTMSM”). The defendant suspended the plaintiff on 28 October 2016 pending a review process, before eventually revoking his licence permanently with effect from 7 February 2017 upon the conclusion of this process.

On or around 28 January 2019, the Plaintiff filed a data subject access request (“DSAR”) with the defendant under article 15 of the Parliament and Council Regulation (EU) No 2016/679, also known as the United Kingdom (“UK”) General Data Protection Regulations. Subsequently, on 3 April 2019, the plaintiff filed a claim against the defendant before the High Court of England & Wales (Queen’s Bench Division) (“the UK proceedings”), alleging that the defendant was in breach of contract and duty of care in wrongfully revoking his accreditation. On 20 April 2020, the High Court endorsed a settlement of the UK proceedings in the form of a Tomlin order. This consent order provided for the immediate reinstatement of the plaintiff’s accreditation in addition to the payment of a sum of £645,000.00 to the plaintiff in settlement of the breach of contract claim.

As a result of the DSAR request and the plaintiff’s specific disclosure application in the UK proceedings, the plaintiff received from the defendant several documents concerning himself. The plaintiff’s case in HC/S 30/2022 is that certain statements made by the defendant, viz eight sets of words, were defamatory and/or malicious falsehoods (the “Words”). The Words relate to the defendant’s suspension and eventual revocation of the plaintiff’s accreditation in the CDI-M Scheme. The Words are set out in a table in Annex 1.

The plaintiff claims that the Words are false, undermine the plaintiff’s credibility, have caused grievous harm to the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, in addition to lowering the plaintiff’s professional and personal business and/or reputation in the estimation of right-thinking members of society. The plaintiff further claims that the Words were published with express malice and with improper motive to injure him and seeks general, aggravated and special damages against the defendant.

The defendant denies the plaintiff’s claims in their entirety. The defendant denies that the Words bore any defamatory meaning. The defendant further relies on the defences of justification and qualified privilege. The defendant also takes the position that it had an honest belief in the truth of the Words published, and the Words were therefore not published maliciously. In any event, the plaintiff has not suffered any damage because of the publication of the Words.

The present summonses

Turning to the present applications, in SUM 3879, the plaintiff sought, pursuant to O 39 r 2 of the Rules of Court (2014 Rev Ed) (“ROC 2014”), to issue letters of request to the relevant authorities in four separate jurisdictions for the examination of eight individuals based overseas (the “Foreign Witnesses”).

In SUM 4340, the plaintiff sought to subpoena three witnesses based in Singapore (the “Local Witnesses”) and for their AEICs to be dispensed with pursuant to O 38 rr 14 and 2(4) of ROC 2014 respectively.

Plaintiff’s submissions

In relation to SUM 3879, the plaintiff submitted that the evidence of the Foreign Witnesses would be necessary to determine “the extent of publication in order to achieve a fair trial” and the issues relating to the defences of justification and qualified privilege, the falsity of the Words and the alleged malice on the part of the defendant.

In relation to SUM 4340, the plaintiff submitted that the applications to subpoena the Local Witnesses and for their AEICs to be dispensed with under O 38 rr 14 and 2(4) of ROC 2014 respectively, should be granted. This is because the evidence of these witnesses would be critical to determine the extent of publication of the Words, the assessment of damages, and the background facts to the claim.

Defendant’s submissions

In respect of SUM 4340, the defendant objected to the issuance of the subpoenas and dispensation of the AEICs of the Local Witnesses on the basis that the plaintiff had not shown that their evidence would be relevant or material to the issues in dispute.

Issues to be determined

There were two issues to be determined in the present applications. The first issue arising from SUM 3879 was whether it appeared necessary for the purposes of justice to grant the letters of request for the examination of the Foreign Witnesses out of jurisdiction under O 39 r 2 of ROC 2014. The second issue arising from SUM 4340 was whether the applications to subpoena the Local Witnesses and for their AEICs to be dispensed with, under O 38 rr 14 and 2(4) of ROC 2014 respectively, should be granted.

The application in SUM 3879 for the examination of the Foreign Witnesses out of jurisdiction

Before examining the parties’ submissions in respect of SUM 3879, it would be helpful to set out the law relating to applications for the examination of persons out of jurisdiction. This is set out in O 39 rr 1 and 2 of ROC 2014:

O 39 r 2(1) read with O 39 rr 1(1) and 1(2) of ROC 2014 empowers the court to order the examination of a person even if the person to be examined is out of jurisdiction. The touchstone for making such an order is whether it appears “necessary for the purposes of justice”, as set out in O 39 r 1(1).

The plaintiff relied on the relevance of the Foreign Witnesses as the primary factor in support of allowing the applications. The names of the Foreign Witnesses and their respective jurisdictions and designations at the material time when the Words were published are set out below:

The plaintiff averred that these witnesses are relevant to determine questions on the defence of justification, the defence of qualified privilege, the falsity of the Words and malice on the part of the defendant. This is because, as alleged by the defendant, they acted for and on behalf of the defendant such that there was no “publication” of the Words. Furthermore, they were responsible for the revocation of the plaintiff’s accreditation. They were also the recipients of the Words. The plaintiff stressed that every litigant has a general right to bring all evidence relevant to his case to the court’s attention, citing Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] 3 SLR 110 (“Basil Anthony”) at [24].

In response, the defendant referred to the decision of the Court of Appeal of England and Wales in Honda Giken Kogyou Kabushiki Kaisha v KJM Superbikes Ltd [2007] EWCA Civ 313 (“Honda”) which provides guidance on the relevant considerations in the grant of letters of request. These considerations, as set out in the judgment of Sir Anthony Clarke MR at [26]–[31], can be summarised as follows:

(a) First, in considering the letters of request, the court should ask whether the intended witnesses can reasonably be expected to have relevant evidence to give on the topics mentioned in the letter of request.

(b) Second, the court should ask whether the intention underlying the formulation of the topics is an intention to obtain evidence for use at the trial or is some other investigatory and therefore impermissible intention.

(c) If the two questions above are answered affirmatively, then subject to the four points below, the court ought to accede to the application and grant the letters of request:

(i) First, there may be circumstances in which it would be appropriate to refuse an application because the request would be oppressive.

(ii) Second, a letter of request must not be too wide.

(iii) Third, there may be other circumstances in which it would not be appropriate to accede to an application. For example, a case management judge may conclude that the costs of obtaining the evidence would be disproportionate or that the evidence would not be necessary for the fair determination of the issues in the action.

(iv) Fourth, an application might be refused because it was made too late.

I was satisfied that Honda provides useful guidance in determining the appropriateness of granting the letters of request. I was persuaded by the defendant’s submissions as set out above, and I therefore found that the plaintiff had not shown that it would be necessary for the purposes of justice for the eight Foreign Witnesses to be examined out of jurisdiction. I shall elaborate on my reasons below.

Relevance and materiality of the evidence

The plaintiff had not shown that the intended witnesses could reasonably be expected to have relevant evidence to give on the topics mentioned in the letter of request. In relation to the plaintiff’s submission that the evidence would be necessary to “determine the extent of the publication”, this evidence would no longer be necessary in light of the defendant’s concession that they do not dispute the extent of the publication of the Words.

In relation to the link the plaintiff sought to draw between the intended witnesses’ potential evidence and the issues relating to the defences of justification and qualified privilege, the falsity of the Words, and malice on the part of the defendant, I found that this did not establish the materiality of their evidence. As the defendant rightly pointed out, all that was stated in the draft letters of requests on “Questions to be put to the persons to be examined or statement of the subject matter about which they are to be examined” was the following:

The scope of the plaintiff’s inquiry, as stated in the draft letters of request, merely echoes what is reflected in his 3rd Affidavit which was filed in support of SUM 3879:

In the absence of any specific questions to be put to the individual Foreign Witnesses, the letters of request as drafted were far too wide and ambiguous. The scope of the letters of request extended beyond the allegedly defamatory words or malicious falsehoods, and referred to “pricing, suspension and accreditation revocation” and even the plaintiff’s request for reinstatement of his accreditation and “inquiries into his [n]ationality and SIRE accreditation status”. The plaintiff had not shown how these issues were relevant to the disputed issues or how these issues related to the Foreign Witnesses. Furthermore, as I shall explain further below (at [32]), the plaintiff appeared to have conflated the issue of the defendant’s purported malice in its decision to revoke the plaintiff’s accreditation with the issue of whether the defendant’s making of the allegedly defamatory statements was also actuated by malice.

The plaintiff had not disclosed the specific questions to be put to the Foreign Witnesses, despite previously having indicated that he would do so by 3 November 2022, as set out at [25] above. He averred that he was not prepared to disclose these questions to the defendant, but he was prepared to disclose the same to this court on an “ex-part[e] basis”. According to the plaintiff, disclosing such interrogatories to the defendant would have caused them to lose the “element of surprise”, which the plaintiff argued was akin to a situation “where [a] party to the Suit is directed to disclose its questions (examination or cross-examination) months ahead of the witness examination”, thereby “giving the Witnesses adequate time to consult the Defendant and its Lawyers to prepare responses to their own benefit at trial”.

The plaintiff’s arguments on preserving the “element of surprise” were plainly misconceived. I am not aware of any proposition in law which affords a party to a civil suit an entitlement to such an “element of surprise”, a point on which the plaintiff had not offered any authorities in support. In fact, such “surprise” tactics should not be condoned. They would clearly be contrary to O 39 r 3(3) of ROC 2014, which expressly requires that “[i]f the evidence of the person to be examined is to be obtained by means of written questions, there must be filed with the letter of request a copy of the interrogatories and cross-interrogatories to be put to him on examination” [emphasis added]. In any case, the plaintiff made no effort during the hearing on 10 February 2023 to offer disclosure (“ex parte” or otherwise) of any of the specific questions that he purportedly had in mind to be put to the Foreign Witnesses.

The plaintiff contended that the evidence of the Foreign Witnesses would be necessary to test the defendant’s allegation that the Foreign Witnesses had acted for and on behalf of the defendant such that there was no “publication” of the Words. Furthermore, the plaintiff stressed that the Foreign Witnesses would be relevant given their role as recipients of the Words and given further that the defendant was responsible for the revocation of the plaintiff’s accreditation.

In my view, the plaintiff had failed to clearly frame the issues in dispute which he claimed that the Foreign Witnesses would be able to provide evidence on. Equally, he had not demonstrated how the evidence of the Foreign Witnesses would be relevant and/or material to the disputed issues. I was not persuaded that the evidence of the Foreign Witnesses would be relevant and material to the defences of justification or qualified privilege, the falsity of the Words and the alleged malice on the part of the defendant. Among these issues, it appeared that the only issue on which the Foreign Witnesses could possibly shed light on would be that of the alleged malice on the part of the defendant. That being said, I was not satisfied that the evidence of the Foreign Witnesses would be relevant or material.

In his submissions, the plaintiff appeared to have conflated the issue of whether the defendant’s decision to revoke his accreditation was actuated by malice with the issue of whether the defendant’s making of the alleged defamatory statements was actuated by malice. It is the latter issue that is relevant to the subject matter of the present dispute. In this regard, the plaintiff maintained during the hearing on 10 February 2023 that there was no such conflation and that the defendant was actuated by one and only one type of malice. The plaintiff argued that the defendant did not act bona fide in suspending his licence, leading to the inference that the defamatory statements were malicious. I did not agree that any malice in the defendant’s decision to suspend his accreditation, even assuming that this could be established, must necessarily mean that malice was also similarly present in the making of the alleged defamatory Words. I was not prepared to find that such an irresistible inference or any causal connection would ineluctably arise. The UK proceedings have been resolved and involved different causes of action.

In any event, as the defendants pointed out in their oral submissions, Mr Howard Smith, the General Manager of the defendant who was the central figure involved in the publication of the Words, will be called to testify as a witness. They also intend to call Mr Mike Bannon, who is part of the CDI-M accreditation committee. These two witnesses should be sufficient to provide evidence on the defendant’s state of mind at the material time when the Words were published. This conclusion would take the facts of the present case outside those of Credit Suisse v Lim Soon Fang Bryan [2007] 3 SLR(R) 414. In that case, the court made orders for the examination of witnesses residing in Taiwan, given that they were material witnesses and that the plaintiff ran a real risk that it would not be able to call the relevant evidence if the order was not made. Furthermore, I am persuaded that the examination of the Foreign Witnesses, most of whom the plaintiff alleged were mere recipients of the Words and not their authors, would not be likely to shed further light on the defendant’s state of mind.

I shall briefly address one objection raised by the defendant that I did not find convincing. The defendant noted in both its written and oral submissions that the plaintiff himself appeared to accept the lack of relevance or materiality of the evidence he had sought. According to the defendant, this was because the plaintiff had expressly confirmed to the assistant registrar at a pre-trial conference on 10 January 2023 that he would proceed with the trial fixed for August 2023, even if he was unable to procure the evidence of the Foreign Witnesses in time. Based on the plaintiff’s own confirmation, the defendant suggested that the evidence he sought was merely “good to have”, rather than essential evidence. I was not satisfied that the plaintiff’s confirmation that he would nevertheless proceed with the trial had indeed gone so far as to amount to an admission of the non-materiality of the Foreign Witnesses.

Costs and delay to proceedings

However, as the defendant correctly noted, there is a high possibility of delay in the proceedings given the time required by foreign jurisdictions to process the letters of request. At present, the trial for this matter has been fixed for early August 2023, which is only a few months away from the date when the present applications were being heard. According to the information provided by the various States on the website for the Hague Convention, the estimated time periods for the execution of letters of request in the USA would be two to three months for evidence obtained on a voluntary basis and three to six months for evidence that needs to be compelled. For the UK, the time taken just to process a request would usually range from six and 12 months.

I would also point out that in relation to Belgium, which is not a Contracting State to the Hague Convention, the plaintiff had not adequately addressed the defendant’s objection on whether the Belgian courts would even execute letters of request from Singapore. The plaintiff cited in his written submissions the “Belgian Judicial Code”, “the European E-Justice Portal for Belgium” and the “Research Paper on obtaining evidence in Belgium”. Without the benefit of any expert evidence on Belgian law, these documents the plaintiff had sought to rely on suggest that it is far from clear whether letters of request from Singapore courts can even be executed in Belgium via transmission of “commissions rogatory” to the Belgian courts. The “Research Paper on obtaining evidence in Belgium” itself states that the “Belgian courts must only carry out commissions rogatory received from foreign courts if a Treaty so provides.” I note that the plaintiff had not shown that there is any such treaty in force between Singapore and Belgium.

For the foregoing reasons, I dismissed the application for the examination of the Foreign Witnesses out of jurisdiction in SUM 3879.

The application in SUM 4340 for the subpoenas of the Local Witnesses and for their AEICs to be dispensed with

At the outset, it would be pertinent to set out the context for SUM 4340. As provided in O 38 r 2(1) of ROC 2014, the general rule in civil trials is that the evidence-in-chief of a witness shall be given by way of affidavit (or “AEIC”). This is subject to the exceptional case where the court exercises its discretion under O 38 r 2(4) to allow a witness to give evidence orally:

It was within the above context that the plaintiff made his application to subpoena the Local Witnesses under O 38 r 14 of ROC 2014 and for the evidence of the Local Witnesses to be given orally under O 38 r 2(4). It was also within this context that the defendant objected to the issuance of the subpoena.

The critical issue here was whether the subpoenas to testify should be issued against the three Local Witnesses. This is because if it was found that the issuance of the subpoenas was appropriate, it followed as a matter of course that subpoenaed witnesses ought to be allowed to provide their evidence orally.

I turn now to the applicable principles for issuance of subpoenas. As the Court of Appeal held in Basil Anthony ([20] supra) at [23], the issuance of a subpoena to testify requires the court to determine whether the proposed witness is in a position to provide oral and documentary evidence that is not just relevant to the issues in dispute but which could have materially affected the outcome of some or all of the live disputes before the court. In making this determination, the court has to bear in mind the following principles (Basil Anthony at [24]–[26]):

While the court would tend to err in favour of admission rather than exclusion considering the grave consequences of prematurely shutting out evidence, the evidence must be relevant and material to the issues in dispute. On the relevance and materiality of the Local Witnesses, the parties naturally took differing positions. On the one hand, the plaintiff submitted that examination of the Local Witnesses would shed light on the issues in dispute. The Local Witnesses and their designations at the material time are as follows:

According to the plaintiff, Mr Mann’s evidence would be relevant and/or material for two reasons. Firstly, the defendant affirmed that it had deleted the emails containing the 6th and 8th set of Words. In the absence of the emails where these two sets of Words were circulated, the plaintiff submitted that it would be crucial that at least one individual (being Mr Mann), who was physically present at the meeting and who was a recipient of these two sets of Words, be examined as a witness. In particular, Mr Mann’s evidence would be relevant to determining facts in issue, the falsity of the defamatory statements, whether the words published were as spoken at the meeting or “forged” into the meeting minutes which would show malice on the defendant’s part, and the defendant’s motive and state of mind in publishing the Words. Secondly, as the plaintiff had not been directly named in the 6th and 8th sets of Words, the plaintiff relies on their innuendo meaning. Mr Mann’s evidence would thus be relevant to establish the “supplemental extrinsic facts” relevant to establishing this innuendo meaning.

In relation to Mr Dutta and Mr Rangroo, the plaintiff submitted that their evidence would be relevant and/or material for two reasons. Firstly, the defendant had not disclosed documents relating to correspondences between MTMSM and the defendant pursuant to a specific discovery order made in HC/SUM 3543/2022. In the absence of these documents, the examination of Mr Dutta and Mr Rangroo would be relevant to determine the meaning of the set of Words and the defendant’s motive and state of mind when it published the Words. Secondly, the defendant claimed that it acted to suspend and later revoke the plaintiff’s accreditation upon the receipt of a single complaint by Mr Dutta and Mr Rangroo. As these witnesses were also recipients of the Words, the examination of these witnesses would shed light on the issues of the defence of justification, the defence of qualified privilege”, the falsity of the Words and the alleged malice on the part of the defendant.

In relation to all three Local Witnesses, the plaintiff submitted that their evidence would elucidate the extent of publication of the Words, given that the defendant appeared to have taken contrasting positions on the persons whom the Words had been circulated to.

Having considered the points above, I found that the plaintiff had not shown that the evidence of the Local Witnesses would be relevant and/or material to the issues in dispute. Specifically, I did not see how the evidence of the Local Witnesses would assist in shedding light on the defendant’s state of mind in publishing the Words. As the defendant pointed out, these witnesses were employees of third parties at the material times. They were not representatives of the defendant, nor were they authorised by the defendant to act for any particular purpose. Furthermore, I agreed with the defendant that all three witnesses were mere recipients of the Words. I found it difficult to see how they would be able to shed much light on the state of mind of the defendant.

In relation to Mr Dutta and Mr Rangroo, it also appeared that the plaintiff was seeking to adduce the evidence of both these witnesses in his attempt to challenge the defendant’s suspension of his accreditation. However, this was irrelevant to the issues in the present dispute. This was evident from the submissions the plaintiff himself had made on the relevance and/or materiality of the evidence of Mr Dutta and Mr Rangroo. According to the plaintiff, MTMSM was the party that made the complaint which eventually led to the suspension and revocation of his accreditation. Hence, Mr Dutta’s evidence would be necessary since he was placed on suspension following the complaint contained in an email from Mr Dutta. In relation to Mr Rangroo, he would also be a “key witness in this action” as the complaint would have been discussed with Mr Rangroo before it was formally made.

In his oral submissions, the plaintiff sought to further explain why the evidence of Mr Dutta and Mr Rangroo would be essential. He asserted that this was because the defendant had yet to disclose documents relating to correspondences between MTMSM and the Defendant which had been ordered to be disclosed pursuant to a specific discovery order made in HC/SUM 3543/2022. In the absence of these documents, there would have been no other way for him to make his case without the testimony of Mr Dutta and Mr Rangroo. According to the plaintiff, the correspondence would point towards collusion between MTMSM and the defendant in bringing the complaint against him. The plaintiff questioned whether there was a common interest between MTMSM and the defendant to ensure the plaintiff’s suspension and revocation. The plaintiff went on to insinuate that this collusion could have arisen due to the results of the last inspection the plaintiff did for MTMSM being unsatisfactory to the latter given that he had found a number of non-conformities. I indicated during the course of the hearing that I was not prepared to consider this argument given that this was new evidence which was not contained within the plaintiff’s affidavits.

The plaintiff’s grounds for requiring subpoenas for Mr Dutta and Mr Rangroo involved little more than speculation on his part as to how their evidence might be relevant or material to his case. Perhaps more importantly, the plaintiff’s chief focus appeared to be on impugning the correctness of the defendant’s decision to suspend and revoke his accreditation. However, this is not an issue to be determined in HC/S 30/2022, which involves the plaintiff’s claims of defamation and malicious falsehoods.

In relation to the plaintiff’s argument that the evidence of the Local Witnesses would be crucial to determine the extent of publication of the Words, I was not satisfied that this remained a valid justification in the face of the defendant’s confirmation that there is no dispute as to the extent of the publication of the Words.

In relation to Mr Mann, the plaintiff emphasised in his oral submissions that Mr Mann would be able to testify as to whether the Words published were as spoken at the meeting or “forged” into the meeting minutes. He maintained that if there had been inconsistencies between the words spoken and what was recorded in the minutes, this would tend to show malice on the defendant’s part.

In this connection, I was not satisfied that Mr Mann would be able to provide any real assistance for the plaintiff’s case. The plaintiff’s belief was that Mr Mann could testify as to whether the published Words were accurate or not. Any discrepancies in the minutes could indicate malicious intent on the defendant's part. However, the meetings where Mr Mann was present took place about five or more years ago. It was highly speculative but also quite improbable that Mr Mann could confirm or disconfirm the accuracy of the published Words. At any rate, it was not possible for the Plaintiff to say whether Mr Mann even had any recollection of what was spoken during the meetings (ie, Inspector Working Group Meeting #4 and #5 on 16 March 2017 and 14 March 2018 respectively) where Mr Mann was purportedly present. A period of almost five years would have elapsed since the date of the last meeting. In my view, it was unlikely that Mr Mann would be able to testify as to whether the words published were as spoken (or otherwise) at the meeting.

Conclusion

Annex 1: Tabulation of the relevant words