Communications about paying a lawyer's fees were not legally privileged

[2] GLC acted for various claimants, including Mr Salim, in Singapore International Arbitration Centre Arbitration No 417 of 2021 (the “Arbitration”). On 8 February 2023, the claimants discharged GLC.

[3] A final award was issued in the Arbitration on 16 August 2023 in favour of the respondents, who are the applicants in these proceedings (“OA 891”). In OA 891, the applicants sought leave to enforce the award in the same manner as a judgment of the Singapore Court. Judgment was in due course entered against Mr Salim, among others.

[7] The R&Ms now seek the production of the following information and/or documents as set out in Annex A of their summons (“Annex A”):

[12] The following issues therefore arise for my consideration:

(b) Legal privilege: If (a) is answered affirmatively:

[13] I begin by considering the principles on which a receiver and manager is appointed by the court.

[14] The power of the court to appoint a receiver originated in the courts of equity (see Zhang Lan v La Dolce Vita Fine Dining Group Holdings Ltd and other appeals [2023] 2 SLR 137 at [29]). As explained in Kerr & Hunter on Receivership and Administration (Sweet & Maxwell, 21st Ed) (“Kerr & Hunter”) at para 2-24:

[15] A notable example within the first class of case was the appointment of a receiver by way of equitable execution. This was a means developed in equity for a judgment creditor to obtain recourse, where the judgment debtor’s interest in property was only equitable, such that execution at law was not possible (La Dolce Vita Fine Dining Co Ltd v Zhang Lan and others and another matter [2022] SGHC 278 (“La Dolce Vita (HC)”) at [1]; see also Tan Holdings Pte Ltd (in creditor’s voluntary liquidation) v Prosperity Steel (Asia) Co Ltd and others [2012] 1 SLR 80 at [44]–[45]).

[16] Examples of the second class included those in which the appointment was made to preserve property, such as pending litigation to decide the rights of parties, pending a grant of probate or administration, or when there is danger of the property being damaged or dissipated by those with legal title (Kerr & Hunter at para 2-29). The present case could be seen as an instance of the last example.

[17] In Singapore, the power to appoint a receiver has been codified in s 4(10) of the Civil Law Act 1909 (2020 Rev Ed) (“CLA”) (Lee Kuan Yew v Tang Liang Hong and another and other suits [1997] 1 SLR(R) 328 at [7]). Section 4(10) of the CLA states:

[18] I make a few observations regarding this power.

[19] First, while s 4(10) of the CLA is sometimes referred to as the source of the court’s jurisdiction to appoint a receiver, that is imprecise. The jurisdiction of a court is its authority to hear and determine a dispute, whereas the powers of a court constitute its capacity to give effect to its determination by making or granting the orders or reliefs sought by the successful party to the dispute (Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 at [31]).

[20] Second, although s 4(10) of the CLA only makes express reference to the power to appoint a receiver, the court’s power extends to the appointment of both receivers and managers (Singapore Civil Procedure 2025 vol 1 (Cavinder Bull SC gen ed) (Sweet & Maxwell, 2025) (“Singapore Civil Procedure 2025”) at paras 13/9/2–13/9/3). It is commonplace for the same person or persons to be appointed to both roles (see Kerr & Hunter at para 2-9). This is what was done in this case. Steven Chong J (as he then was) discussed the distinction between receivers and managers in Kao Chai-Chau Linda v Fong Wai Lyn Carolyn and others [2016] 1 SLR 21 at [19]:

[21] On this point, the position is the same as in English law, where the court’s power to appoint a manager derives from s 37(1) of the Senior Courts Act 1981 (c 54) (UK), even though that section only makes express reference to the appointment of a receiver (JSC BTA Bank v Mukhtar Ablyazov [2012] EWHC 648 (Comm) at [14]).

[23] Section 18(2) read with paras 5(a) or 5(c) of the First Schedule to the Supreme Court of Judicature Act 1969 (2020 Rev Ed) (“SCJA”) provides another basis for the appointment of a receiver. Section 18(2) of the SCJA confers on the General Division the powers in the First Schedule. Paragraphs 5 and 14 of the First Schedule to the SCJA list the following powers:

[26] As to the principles on which a receiver would be appointed, in Lee Kuan Yew v Tang Liang Hong and another and other suits [1997] 1 SLR(R) 328, the High Court stated at [7]–[8]:

[27] In particular, the High Court has the power to appoint a receiver, prejudgment, in aid of a Mareva injunction (Wallace Kevin James v Merrill Lynch International Bank Ltd [1998] 1 SLR(R) 61 at [17]). The power extends to aid post-judgment Mareva injunctions as well, such as in the present case.

[29] Regarding the extent of the receiver’s powers, I explained in La Dolce Vita (HC) at [42]:

[30] Bearing these principles in mind, I turn to the issues in this case.

[40] Section 128(1) of the EA states:

[41] The purpose and scope of legal advice privilege was explained in Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR(R) 367 (“Skandinaviska”) at [47], where the Court of Appeal quoted the following passage from the English Court of Appeal decision of Balabel v Air India [1988] 1 CH 317 at 330 with approval:

[42] The R&Ms submit that the information and/or documents they seek at paras 2(a) to 2(d) of Annex A are not privileged. These paragraphs relate specifically to information about Mr Salim’s payment of GLC’s legal fees.

[43] I agree that the information sought by the R&Ms is not privileged as long as the scope is confined to information and/or documents relating to payment of GLC’s fees, as specified in paras 2(a) to 2(d) of Annex A. These communications would not have been made for the purpose of seeking GLC’s legal advice, but for the purpose of paying GLC for its services in rendering that advice. Disclosure of the communications regarding Mr Salim’s payment of legal fees would not have jeopardised his ability to speak freely and in confidence for the purpose of obtaining legal advice.

[44] By contrast, the R&Ms’ broader request at para 1(a) of Annex A for “any and all information and/or documents pertaining to the assets of Mr David Salim in or outside of Singapore” would possibly include privileged information. Mr Salim may have communicated information about his assets to GLC for the purposes of seeking legal advice. Indeed, the R&Ms do not go so far as to argue that the category of information in para 1(a) is not privileged.

[45] For completeness, I consider the R&Ms’ submission that evidence of the receipt of funds is evidence of an act or transaction, whereas privilege only applies to communications. The R&Ms cite the Canadian case of Re Ontario Securities Commission and Greymac Credit Corp. Re Ontario Securities Commission and Prousky [1983] OJ No 2986, 41 OR (2d) 328 (“Greymac”). In Greymac, the Ontario High Court of Justice considered whether solicitor/client privilege extends to prohibiting a solicitor from answering questions as to the movement of funds into and out of this trust account. The court held at [22]–[23] that:

[46] The R&Ms also refer to Chen Siyuan and Lionel Leo, The Law of Evidence in Singapore (Sweet & Maxwell, 3rd Ed, 2022) at para 8.072, where the learned authors said:

[47] However, the distinction between facts and communications is not always a clear one. As Jeffrey Pinsler SC explained in Evidence and the Litigation Process (LexisNexis Singapore, 2023) at para 14.014:

[48] The distinction between communications and facts that Greymac draws in respect of lawyers’ fees has in fact been questioned in more recent Canadian cases. See, eg, Maranda v Richer [2003] 3 SCR 193 at [30]–[32]; Cinar Corp v Groia [2006] OJ No 4753 at [24] (Greymac “adopts a distinction between ‘fact’ and ‘communication’ that may no longer be acceptable”).

[49] In the present case, it is not entirely clear how the distinction would be drawn, or whether the distinction would assist the R&Ms. For instance, it would appear that the information Mr Salim provided to GLC during the onboarding process regarding the source of his funds and his ability to pay for GLC’s services (see para 2(d) of Annex A) would be entirely contained within communications between Mr Salim and GLC. There would not have been any fact of payment for GLC or its lawyers to observe at that point.

[50] I note that the learned authors of The Law of Evidence in Singapore, whom the R&Ms cite, likewise acknowledge that the distinction is not an easy one to draw in practice (see fn 161 at para 8.072). They also refer to Colin Liew, Legal Professional Privilege (SAL Academy Publishing, 2020) at [4.298]–[4.303], which suggests an alternative approach:

[51] In my view, this approach is more appropriate. It better coheres with the ultimate test endorsed in Skandinaviska at [47], namely whether the communication or other document was made confidentially for the purposes of legal advice. Applying that test, the information sought in paras 2(a) to 2(d) of Annex A is not privileged, whereas the information sought in para 1(a) of Annex A may include privileged information.

[52] The next issue is whether the R&Ms can obtain the information in the latter category notwithstanding that it may be privileged.

[59] In my judgment, the key aspect of the court’s reasoning in Greymac was that if a receiver has the power to waive privilege, that power must be limited to the purposes for which the receiver was appointed.

[63] The present case is readily distinguished. It is not disputed that legal advice privilege, if it applies, belongs to Mr Salim. As his solicitors, GLC would be obliged to invoke this privilege unless it has been waived.

[65] Parties also addressed me on the extent to which the position of a receiver and manager was comparable to that of a trustee in bankruptcy in respect of their powers to obtain privileged information. I turn to consider this aspect of the issue.

[66] In Shlosberg v Avonwick Holdings Ltd [2017] Ch 210 (“Sholsberg”), a bankrupt’s trustees in bankruptcy and his principal creditor were represented by the same firm of solicitors. The creditor sought to bring a claim against the bankrupt, using information contained in records that had been obtained by the trustees in bankruptcy pursuant to their power under s 311(1) of the Insolvency Act 1986 (c 45) (UK) (“UK Insolvency Act”). The bankrupt applied for an injunction compelling both the trustees and the creditor to discharge the solicitors, on the basis that some of the information was privileged. The UK Court of Appeal considered two issues relevant to the present proceedings.

[67] First, the UK Court of Appeal considered and rejected the argument that legal privilege attaching to the records was “property” within the meaning of the UK Insolvency Act that vested in the trustees as part of the bankrupt’s estate. Sir Terence Etherton MR stated at [63]:

[68] Second, the UK Court of Appeal held that s 311(3) of the UK Insolvency Act allowed the trustee to use the privileged information for the statutory purpose of getting in and realising the bankrupt’s estate, but not to use the information in a way that would amount to a waiver of privilege. Section 311(1) of the UK Insolvency Act states:

[69] Sir Etherton MR analysed the above provision as follows (at [70]–[71]):

[70] The analogous statutory provision in Singapore is s 369(1) of the IRDA, which states:

[71] Section 369(1) of the IRDA is given effect by s 370 of the IRDA, which provides:

[72] Each of these provisions contains a clause expressly authorising the Official Assignee to seize records “including any which would be privileged from disclosure during any proceedings”. These powers are also granted to a trustee in bankruptcy appointed in place of the Official Assignee (s 39(1)–(2) of the IRDA).

[73] The extent of the powers of the Official Assignee or trustee in bankruptcy to obtain and use legally privileged documents does not appear to have been directly considered by our courts. However, in Chan Kwong Shing Adrian (in his capacity as the joint and several trustee of the bankruptcy estate of Ng Yu Zhi) and another v Invidia Capital Pte Ltd (in creditors’ voluntary liquidation) [2024] 4 SLR 1224, Goh Yihan J analysed s 370(1) of the IRDA and noted obiter at [21] that:

[74] Similarly, Goh J held at [23] that:

[76] First, in my view, legal privilege is and should be treated as a personal right (see Go-To Developments at [24]). It is not and should not be treated as a right that can be exercised or waived by a receiver and manager on an individual’s behalf. This accords with the purpose of the privilege, which is to enable legal advice to be sought and given in confidence (see Skandinaviska at [47]). An individual would not be able to speak with the assurance of confidentiality if his right to legal privilege was not treated as a right personal to and exercisable only by him.

[78] Lord Hobhouse went on to explain at [44] that while the context of the passage from Simms concerned human rights,

[79] As to what constitutes necessary implication, Lord Hobhouse stated at [45] that:

[80] This was the approach applied in Shlosberg to the interpretation of a trustee in bankruptcy’s powers under statute. This approach has also been endorsed and applied in Singapore (Yap Sing Lee v Management Corporation Strata Title Plan No 1267 [2011] 2 SLR 998 (“Yap Sing Lee”) at [43]–[46]). In Yap Sing Lee, Belinda Ang Saw Ean J (as she then was) considered s 47 of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed), which empowered subsidiary proprietors to apply for certain information from a management corporation. Ang J found that the statutory provision did not expressly or by necessary implication override legal advice privilege (at [46]).

[85] Sealing orders are granted pursuant to the court’s inherent power (BBW v BBX [2016] 5 SLR 755 at [25]). This power stems from the court’s role as an adjudicating organ of the legal system, and allows the court to make the appropriate orders to achieve the ends of justice (Re Tay Quan Li Leon [2022] 5 SLR 896 (“Leon Tay”) at [23]).

[92] I am unable to accept the R&Ms’ contentions.