Gillingham James Ian v Fearless Legends Pte Ltd and others [2023] SGHCR 13

This judgment concerns the pre-action production of documents and information under O 11 r 11 of the Rules of Court 2021 (“ROC 2021”). An application for such production was filed by Mr Gillingham James Ian (“the Applicant”) against four respondents, ie, Fearless Legends Pte Ltd (“Fearless Legends”), Mr Christopher David Mansfield (“Mr Mansfield”), Mr Plaskocinski Thomas Andre (“Mr Plaskocinski”) and Mr Liam Patrick Jones (“Mr Jones”). Fearless Legends is presently in liquidation. It was unrepresented and absent from the proceedings because the lack of funding prevented its liquidators from participating or obtaining legal advice. The remaining respondents, Mr Mansfield, Mr Plaskocinski and Mr Jones (“the Represented Respondents”), were represented by a single set of counsel (hereafter referred to, for convenience, as “Respondents’ counsel”). I heard arguments on 26 July 2023 and 21 August 2023, and now render my judgment.

Background

The Applicant is an entrepreneur who, together with Mr Plaskocinski, co-founded Fearless Legends. Fearless Legends was incorporated in Singapore on 18 October 2019. It engaged in the business of developing software and technology relating to digital asset trading. One of its main assets was a proprietary code (“the Source Code”) used to set up a cryptocurrency platform named “FINXFLOW”. A brief background to the four individuals involved in the present application is as follows:

(a) The Applicant was a founding shareholder and director of Fearless Legends from its incorporation and served as its Chief Executive Officer (“CEO”) from March 2021. He held approximately 31% of the shares of Fearless Legends. He was dismissed as CEO and director on 8 April 2022, allegedly without being afforded a reasonable opportunity to defend himself before the board of directors or shareholders of Fearless Legends.

(b) Mr Plaskocinski was the other founding shareholder of Fearless Legends. He served as its Chief Technology Officer and was responsible for the development of Fearless Legends’ technical expertise and intellectual property, including the Source Code. Mr Plaskocinski also held approximately 31% of the shares of Fearless Legends.

(c) Mr Jones became a director of Fearless Legends around the time the company was incorporated. He became the CEO in January 2020, and served as a director until he resigned as director and CEO in March 2021. Mr Jones held approximately 11% of the shares of Fearless Legends.

(d) Mr Mansfield joined Fearless Legends as its local Executive Director on 18 March 2021. Mr Mansfield was and is not a shareholder of Fearless Legends.

There was a fifth individual – Mr Jeremy Gonske (“Mr Gonske”) – who, although mentioned in various of the production requests, was not named as a respondent to this application. Mr Gonske was an authorised representative of the BlocTech group of companies (“BlocTech Group”). The BlocTech Group included an entity known as the BlocTech Investment Group I LP, which held about 0.8% of the shares of Fearless Legends.

Following his removal as CEO and director of Fearless Legends, the Applicant suspected that there was a scheme (“the Diversion Scheme”), involving one or more (direct or indirect) shareholders, to take control of Fearless Legends’ resources and divert these to another entity – possibly OneX LLC. OneX LLC was a company incorporated in the United States and a direct competitor to Fearless legends, operating a cryptocurrency platform named “LiquidityOne”. The Applicant contended that the Diversion Scheme only benefited some of Fearless Legends’ shareholders, to the detriment of its remaining shareholders who were not involved or did not participate in the scheme. The Applicant further suspected that the scheme sought to deprive him of the value of his 31% stake in Fearless Legends. These suspicions were primarily premised upon four developments:

Based on these suspicions, the Applicant opined that he may have at least two viable claims:

The Present Application and Parties’ Arguments

In the circumstances, the Applicant brought the present application for the pre-action production of documents and information, seeking a total of 64 sub-categories of documents and information (see the Annex to this judgment). These may be grouped into seven thematic categories for ease of understanding:

(a) Category 1: Documents and information relating to asset diversion. This concerned the ostensible diversion of Fearless Legends’ assets to OneX LLC. The basis for claiming such diversion included (i) an email from a Fearless Legends shareholder, Mr Daniel Emery (“Mr Emery”), stating that he did not consider that “signing away the company’s entire intellectual property (essentially the entire value in the company) is in the best interests of the company, even less so when it is actually being signed away in favour of one of the company’s minority shareholders and/or related entities”; (ii) two draft licensing agreements and an executed licensing agreement (“the Licensing Agreement”) between Fearless Legends and OneX LLC; and (iii) Fearless Legends’ execution of a registered charge over its intellectual property in favour of OneX LLC (“the Registered Charge”). The terms of the Licensing Agreement, as understood through affidavits filed by Mr Mansfield and Mr Gonske in other proceedings, appeared impractical, unfeasible and onerous to Fearless Legends. Indeed, the Licensing Agreement and Registered Charge may have been entered into to avoid detection of the Diversion Scheme while enabling OneX LLC to obtain Fearless Legends’ intellectual property for less than fair value.

(b) Category 2: Documents relating to the Source Code. This category would enable the Applicant to instruct an expert to consider whether OneX LLC and/or LiquidityOne had used Fearless Legends’ intellectual property (such as the Source Code) for its operations.

(c) Category 3: Documents and information relating to employee diversion. This concerned the ostensible diversion of Fearless Legends’ employees to OneX LLC. The basis for claiming such diversion included (i) Mr Emery’s email, stating that “other employees who are employed by [Fearless Legends] have actually arranged to join the proposed licensee or a related company (employment contracts have been provided)”; and (ii) that as a matter of fact, at least ten employees had left Fearless Legends to commence work with OneX LLC.

(d) Category 4: Documents and information relating to customer diversion. This concerned the ostensible diversion of Fearless Legends’ customers to OneX LLC. The basis for claiming such diversion included conversations on the FINXFLO Telegram Group concerning a “token swap” by Mr Gonske, through which tokens issued by Fearless Legends may be swapped if they meet certain criteria of LiquidityOne. In the Applicant’s view, this meant that there was a “high chance” that Fearless Legends’ customers were being enticed to move to LiquidityOne.

(e) Category 5: Documents and information relating to the management of Fearless Legends. This category included matters relating to the Applicant’s performance and removal as CEO and director of Fearless Legends, as well as the involvement of Mr Mansfield, Mr Plaskocinski, Mr Jones and Mr Gonske in matters relating to the management of Fearless Legends.

(f) Category 6: Documents and information relating to OneX LLC. This category concerned the involvement of Mr Mansfield, Mr Plaskocinski and Mr Jones in matters relating to the management of OneX LLC and/or LiquidityOne, and whether they had benefited from the Diversion Scheme.

(g) Category 7: Documents relating to Fearless Legends’ legal fees. The Applicant contended that if the individual or entity funding Fearless Legends’ legal fees was either Mr Gonske or an entity from the BlocTech Group, this may suggest that they had a substantial interest in Fearless Legends apart from the 0.8% share held by BlocTech Investment Group I LP.

The Represented Respondents objected to the production of documents and information. Respondents’ counsel raised various arguments, which I have synthesized in the following paragraphs and classified according to each of the Applicant’s intended claims. I have also provided a shorthand name for each argument to facilitate subsequent cross-reference.

In relation to the Minority Oppression Claim, Respondents’ counsel’s arguments may be grouped under seven headings, as follows:

In relation to the Conspiracy Claim, Respondents’ counsel adopted arguments akin to the No Locus Standi Argument, the No Diversion Argument, the No Recoverable Loss Argument and the Director’s Decision Argument. He also raised two additional arguments:

Applicant’s counsel responded to the No Locus Standi Argument, the Circumvention Argument and the No Recoverable Loss Argument by citing four recent cases to demonstrate that a minority oppression claim could be founded on a shareholder’s suffering of a personal wrong over and above the corporate wrong suffered by the company – see [23(a)] below. In relation to the No Remedy Argument, Applicant’s counsel contended that the Applicant was on the cusp of securing a major investment of USD 20 million from one Mr Rohit Jain of CoinDCX, together with “at least two to three other family offices” which were ready to invest in Fearless Legends. Applicant’s counsel also pointed out that the fact that Fearless Legends was insolvent did not preclude relief such as a share buyout (citing Wei Fengpin v Raymond Low Tuck Loong and others [2022] 2 SLR 363 (“Wei Fengpin”)). In relation to the remaining arguments (ie, the No Diversion Argument, the No Buyout Argument, the Director’s Decision Argument, the No Intention To Injure Argument and the No Unlawful Means Argument), Applicant’s counsel argued that these matters could only be determined after pre-action production, or at trial.

The Law

The present application was brought under O 11 r 11(1) of ROC 2021, which provides as follows:

O 11 r 11 of ROC 2021 enables a scope of pre-action production that extends beyond the parameters set out in Norwich Pharmacal v Customs & Excise Commissioner [1974] AC 133. Under O 11 r 11 of ROC 2021, pre-action production may be sought not just to identify possible parties to any proceedings, but also to “trace” a party’s property, or for “any other lawful purpose”, guided by the overarching “interests of justice” (Jeffrey Pinsler SC, Singapore Civil Practice (LexisNexis, 2022) (“Singapore Civil Practice”) at para 30-145).

The Court of Appeal has observed some tension in the ROC 2014 provisions concerning whether pre-action disclosure ought to be ordered (see Ching Mun Fong v Standard Chartered Bank [2012] 4 SLR 185 (“Ching Mun Fong”) at [18]). On the one hand, an applicant is expected to demonstrate “relevance”, which requires him/her to possess sufficient grounds for making the application (entailing, amongst other things, justifying the relevance of the requests based on issues which are likely to arise out of an intended claim) (see O 24 r 6(3) of ROC 2014). As such, an applicant who cannot even set out the core substance of a complaint will not be granted pre-action disclosure (Intas Pharmaceuticals Ltd v DealStreetAsia Pte Ltd [2017] 4 SLR 684 (“Intas Pharmaceuticals”) at [29]). On the other hand, an applicant must demonstrate the “necessity” of the requests (see O 24 r 7 of ROC 2014) – ie, that the documents and information sought are necessary for the applicant to have sufficient knowledge of the intended causes of action and the basis upon which the causes of action have arisen (rather than for the applicant to plead a cause of action that is likely to succeed at trial) (Intas Pharmaceuticals at [32], citing Ching Mun Fong). An applicant may demonstrate necessity by showing that there is some gap in his/her knowledge which must be filled by the information obtained through pre-action disclosure (CSR v CSS [2022] 5 SLR 675 (“CSR”) at [5]).

While the mentioned tension may be less immediately apparent based on the text of O 11 r 11 of ROC 2021, it nonetheless remains very much part of the pre-action production mechanism, save that the requirement of “necessity” has been replaced by “material[ity]” (O 11 r 3(3)(b) of ROC 2021; and see Singapore Civil Procedure 2022 (Vol 1) (Cavinder Bull SC, gen ed) (Sweet & Maxwell, 2022) (“Singapore Civil Procedure 2022”) at para 11/3/6). The “material[ity]” touchstone differs from the “necessity” touchstone in that the former connotes a higher level of importance to the case at hand (see, eg, Singapore Civil Procedure 2022 at para 11/3/6; and see Singapore Civil Practice at para 30-64, observing that “if a document is material to an issue its production is obviously necessary”).

The upshot of the tension means that the pre-action production mechanism is generally intended for an applicant who has some basis for believing that he/she has a viable cause of action, but who is unable to properly plead his/her claim because he/she requires certain documents and information to cover “critical gaps” in the intended claim (see, eg, CSR at [5] and [8], and Toyota Tsusho (Malaysia) Sdn Bhd v United Overseas Bank Ltd and another [2016] SGHC 74 at [12]). One example of such a “critical gap” is where an intended claim is “largely based on circumstantial and hearsay evidence” (see, eg, CSR at [8] and China Merchants Bank Co Ltd v Sinfeng Marine Services Pte Ltd [2019] SGHC 238 (“China Merchants Bank”) at [20]). The documents and information obtained through the pre-action production mechanism must be “material” to the applicant’s determination of whether there is a cause of action which may be fashioned into a viable claim against a potential defendant (rather than whether the applicant has a meritorious claim that is likely to succeed at trial) (see Ching Mun Fong at [23] and Intas Pharmaceuticals at [32]). It follows that in assessing whether such production should be ordered, the court takes into consideration the applicant’s intended cause of action to determine whether the applicant has the requisite information to assess the viability of his/her claim (CSR at [5], citing Haywood Management Ltd v Eagle Aero Technology Pte Ltd [2014] 4 SLR 478 at [45]).

While the viability of the applicant’s intended claims and the state of his/her knowledge about those claims are important considerations in deciding whether pre-action production is warranted, these are not exhaustive of the court’s inquiry as to whether pre-action production is justified in the manner sought. The court’s discretion in ordering such production is ultimately rooted in the broader exercise of achieving the “interests of justice” (a phrase found in O 11 r 11(1) of ROC 2021), which “echoes the concept of ‘justness’ that undergirds the exercise of the court’s power under [O 24 r 6 of ROC 2014]” (ROC Practice Guide at p 250). Two cases – Dorsey James Michael and Intas Pharmaceuticals – have provided useful guidance on the factors to be considered in determining whether pre-action production would be in the “interests of justice”, with the latter building upon some (but not all) aspects of the former. These factors continue to apply in the context of O 11 r 11(1) of ROC 2021. Synthesizing both cases, a non-exhaustive set of six factors for consideration includes:

Finally, as with the assessment of “necessity” under ROC 2014, there is a temporal element to the assessment of “material[ity]” under ROC 2021. As such, a court may dismiss an application for production of a specific document or piece of information at the time of the application, while leaving it open to the applicant to apply at a subsequent stage where the requested document or information has become “material” (see, eg, Trek Technology (Singapore) v FE Global Electronics [2003] 3 SLR(R) 685 at [5] in the context of ROC 2014; and see Singapore Civil Practice at para 30-65).

Decision

Based on the information and evidence available to me, I find that both the Minority Oppression Claim and the Conspiracy Claim are viable claims for the purposes of pre-action production (see [21] to [31] below). I further find that on a holistic assessment of the “interests of justice”, the Applicant’s wide-ranging requests must be significantly narrowed (see [32] to [39] below).

Viability of the Minority Oppression Claim

In relation to the Minority Oppression Claim, the threshold issue is that engaged by the No Locus Standi Argument; namely, whether there are any actionable personal wrongs (as opposed to corporate wrongs) for which the Applicant may seek redress. This issue is sometimes far from straightforward. The Court of Appeal has observed that the distinction between personal and corporate wrongs “will not always be clear”, and there are many “overlap cases” in which there are plausible arguments that what appears to be a corporate wrong is also, in some way, a personal wrong (Ho Yew Kong at [115]). The Court of Appeal set out an analytical framework to guide the court in a situation where a minority oppression action features both personal wrongs and corporate wrongs, as follows:

The Court of Appeal’s findings on the facts of Ho Yew Kong illuminate how the analytical framework is to be applied. These merit further discussion given some similarities with the present factual matrix.

(a) In relation to the twin questions concerning “injury”, the Court of Appeal found that there was a “picture of systemic abuse” (emphasis in original) by two persons in relation to certain impugned transactions and the management of the company’s affairs (Ho Yew Kong at [126]). The aggrieved minority shareholder in that case had invested in the joint venture and clearly had the “legitimate expectation that its funds would not be mismanaged, much less siphoned away in the way that was done by [the two culpable persons]” (ibid). The Court of Appeal further found that the two culpable persons had “engaged in fraudulent schemes to mislead [the aggrieved shareholder] … and conceal the true nature of the transactions” (ibid). This constituted not just a wrong against the company (in the sense that the company’s assets were misappropriated), but also a “distinct personal wrong” (emphasis in original) against the aggrieved shareholder, whose trust was abused through “systemic abuses which benefitted one group of shareholders… at the expense of the other” (ibid at [127]). The Court of Appeal further observed that while some of the impugned transactions may not, on their own, have sufficed as a basis for relief under s 216 of the Companies Act, the transactions “taken together, coupled with the systemic nature of … abuse, occasioned serious commercial unfairness to [the aggrieved shareholder]” (ibid). Returning to the present facts, assuming that the Applicant’s version of events is true, there appears plausible basis that the Applicant had suffered a distinct personal wrong for purposes of the “injury” questions given the circumstances of his dismissal and exclusion from management of Fearless Legends, as well as the Diversion Scheme. For instance, the Applicant may (after obtaining the requisite documents and information) be able to make out a claim that the Represented Respondents’ (or, indeed, another person’s or entity’s) actions were contrary to his legitimate expectations concerning the management of Fearless Legends’ assets, or a case of systemic abuse resulting in commercial unfairness to him.

(b) In relation to the twin questions concerning “remedy”, in Ho Yew Kong, the aggrieved shareholder had prayed for either a winding up of the company or a buyout of its shares in the company. The Court of Appeal found that these remedies were only available in an action under s 216 of the Companies Act. As such, a minority oppression action offered the only way for the aggrieved shareholder to exit the joint venture with as little loss as possible, thus meaningfully vindicating the injury suffered (Ho Yew Kong at [128]). In like vein, Applicant’s counsel submitted at the hearing that if the Applicant successfully proves the Diversion Scheme, an appropriate remedy would be a buyout based on the previous valuation of Fearless Legends. The fact that Fearless Legends is presently in liquidation would not prevent a buyout based on its previous valuation (see Wei Fengpin).

The Minority Oppression Claim also presents parallels with the following four cases cited by Applicant’s counsel. The salient features are highlighted here:

(a) Leong Chee Kin v Ideal Design Studio Pte Ltd and ors [2018] 4 SLR 331 (“Leong Chee Kin”) – This was a decision after a trial of a minority oppression claim. The court held that the defendant-shareholders had devalued the aggrieved shareholder’s shareholding by diverting commercial opportunities from the company to five companies in which the defendant-shareholders alone had an interest (Leong Chee Kin at [76]). Such diversion was “grossly commercially unfair” to the aggrieved shareholder, thus defeating the aggrieved shareholder’s legitimate expectation as a shareholder (ibid at [77]). The court thus found the defendant-shareholders guilty of oppressive conduct under s 216 of the Companies Act.

(b) Cheong Hong Meng David v Sim Irene and anor [2022] SGHC 72 (“Cheong Hong Meng David”) – This was a decision after a trial of a minority oppression claim. In gist, a shareholder/director took certain actions to benefit herself and other entities, to deplete the company’s assets and finances (including the value of the aggrieved shareholder’s shareholding), and to reduce the returns that the aggrieved shareholder would obtain from his investment in the company. This was found to be “commercially unfair” to the aggrieved shareholder, and “contrary to [the] legitimate expectation that [the director/shareholder] would act in [the company’s] best interest and not use [the company] to further her interest or the interest of other parties” (ibid at [140]). The court therefore found that the minority oppression claim was made out.

(c) Kroll Daniel v Cyberdyne Tech Exchange Pte Ltd [2022] SGHC 231 (“Kroll Daniel”) – This was a decision on an application to strike out a minority oppression claim at the interlocutory stage. The aggrieved shareholder claimed that a director and an alleged shadow director of the company had run the company in an “opaque manner”, substantially depleting the company’s funds with “costly ‘questionable’ transactions”, sought to “pressure” the aggrieved shareholder to exit the company at a “low price” by telling him that the company was “insolvent” and that new funds would be injected only if the aggrieved shareholder left, and eventually took steps to dilute the aggrieved shareholder’s shares. Against this backdrop, the court found that the aggrieved shareholder had pleaded a distinct injury to himself qua shareholder, rather than merely disclosing a corporate wrong (ibid at [165] and [167]). The court further found that the aggrieved shareholder may be entitled to the remedy of a buyout of his shares or a winding up, and therefore declined to strike out his minority oppression claim on the ground of unsustainability (ibid at [167]).

(d) Ang Xing Yao Lionel and anor v Lew Mun Hung Joseph and ors [2022] SGHC 277 (“Ang Xing Yao Lionel”) – This was a decision after a trial of a minority oppression claim. The court opined that conduct involving stripping a company of assets in favour of another business in which the majority (but not the minority) shareholders had an interest would potentially found relief under s 216 of the Companies Act, even if the majority was “justifiably unhappy with the minority” (Ang Xing Yao Lionel at [75]). On the facts, however, the evidence did not establish that there was any stripping of assets.

Assessing the background facts and the Applicant’s allegations against the cases cited above (ie, Ho Yew Kong, Leong Chee Kin, Cheong Hong Meng David, Kroll Daniel and Ang Xing Yao Lionel), I find that there is sufficient basis for the Minority Oppression Claim to justify an order for pre-action production. I acknowledge that Respondents’ counsel drew parallels with Venkatraman Kalyanaraman v Nithya Kalyani and others [2016] 4 SLR 1365 (“Venkatraman”), a case in which a common law derivative action was struck out on the basis that the plaintiff did not have locus standi to bring claims relating to the diversion of the company’s business and assets given that the diversion constituted corporate rather than personal loss. However, the citation of Venkatraman did not change my assessment on the viability of the Minority Oppression Claim, for three reasons.

(a) First, Venkatraman primarily concerned an application to strike out a common law derivative action. The court ordered the striking out because the plaintiff (i) failed to meet the procedural requirements for bringing a common law derivative action; (ii) failed to plead that the company had suffered losses for the wrongs committed, focusing instead only on the personal loss he suffered; and (iii) provided insufficient detail undergirding the common law derivative action (Venkatraman at [71] to [73]). These points are not applicable in the present case, which relates to an intended claim in minority oppression under s 216 of the Companies Act.

(b) Second, while the court in Venkatraman did address a possible cause of action based on minority oppression, this was with the caveat that the plaintiff had not expressly relied on such a cause of action. The court struck out the pleading which may have given rise to a minority oppression claim on the basis that insufficient detail was pleaded, and the plaintiff’s loss was, “[a]t the most”, reflective loss that merely reflected the loss suffered by the company through a fall in value of shares (Venkatraman at [75] to [77]). In contrast, in the present case, the Applicant may (if the requested documents or information provide sufficient basis) claim a breach of legitimate expectations or systemic abuse and seek a personal remedy such as a buyout of shares. Based on the cases cited in [22] and [23] above, this appears to provide the foundation for a viable claim in minority oppression.

(c) Third, caution must be exercised when relying on decisions concerning the striking out of claims (or decisions after trial) to challenge the viability of an intended claim in a pre-action production application. The latter cannot be held to the same standard as the former. After all, an intended claimant may have far less information available to him/her at the pre-action stage, and the pre-action production mechanism in fact assists an applicant in deciding whether he/she has a cause of action that would survive a striking out application (see, generally, [15] above; see also China Merchants Bank at [20], which explains that pre-action production minimizes the risk of time and costs being unnecessarily expended in the bringing of a claim that is subsequently struck out due to insufficient information). Indeed, if an intended claimant already has sufficient information to formulate a claim that will survive a striking out application, it is difficult to see how the pre-action production sought would be “material” at that stage.

In the present case, I am satisfied that while there is sufficient basis for the Minority Oppression Claim, the Applicant has insufficient knowledge concerning the basis upon which the claim may arise, given that much of the evidence is circumstantial and/or hearsay in nature. I acknowledge the Represented Respondents’ positions that there may be difficulties with the Minority Oppression Claim, as seen in the arguments outlined at [9] above. For instance, allegations have been made to the effect that Fearless Legends was already in a poor financial state in early 2022, that it was the Applicant’s alleged wrongdoing and misconduct which precipitated Fearless Legends’ demise (and the Applicant’s removal as CEO and director), and that there was little documentary evidence of the Applicant’s alleged forthcoming funding. There were also questions concerning Mr Gonske’s role, the Applicant’s alleged threat to let Fearless Legends “crash and burn”, the messages within the FINXFLO Telegram Group, and so on. However, the issues arising from these allegations are disputed between the parties and can only be properly judicially determined at trial, in the crucible of cross-examination (or, at the very least, through the rigour of the civil interlocutory process). They cannot be summarily determined at the pre-action stage.

As such, I find that the Minority Oppression Claim is sufficiently viable, at the pre-action stage, to warrant the production of documents and information. Properly scoped, such production will enable the Applicant to assess whether he had a good cause of action and, if so, to properly bring such a claim.

Viability of the Conspiracy Claim

In relation to the Conspiracy Claim, there is no need to revisit the No Locus Standi Argument, the No Diversion Argument, the No Recoverable Loss Argument and the Director’s Decision Argument. The reasons for rejecting these arguments are the same as those already canvassed in relation to the Minority Oppression Claim. The remaining two arguments (ie, the No Intention To Injure Argument and the No Unlawful Means Argument) relate to specific elements of the tort of conspiracy, and will be considered in greater detail here.

The tort of conspiracy has two branches, namely, unlawful means conspiracy (where the acts committed pursuant to the conspiracy are unlawful); and lawful means conspiracy (where the acts committed pursuant to the conspiracy are lawful). The elements of the tort were set out SH Cogent Logistics Pte Ltd v Singapore Agro Agricultural Pte Ltd [2014] 4 SLR 1208 (at [18]) as follows:

I am satisfied that taking the Conspiracy Claim at its highest, there is basis for the Applicant’s suggestion that Mr Mansfield and Mr Plaskocinski were conceivably involved in the alleged conspiracy, or are at least in a position to provide the necessary documents and information: the former due to this role in running Fearless Legends on a day-to-day basis and for putting together the Licensing Agreement, and the latter as the person involved in developing the relevant technology and the Source Code. While the basis for Mr Jones’ involvement in the alleged conspiracy is less clear, Mr Jones may have some of the necessary information given that he was one of the larger shareholders in Fearless Legends and had provided affidavit evidence that there were shareholder meetings concerning the management of Fearless Legends.

In relation to the No Intention To Injure Argument, I accept Applicant’s counsel’s argument that there is some basis for suggesting that there may have been an intention to injure the Applicant, particularly in view of his abrupt removal as CEO and director as well as the alleged Diversion Scheme (which are heavily disputed and cannot be summarily determined at the pre-action stage – see [25] above). It is also not unreasonable to believe that at the pre-action stage, an aggrieved party may lack direct evidence of a conspiracy, given the informational asymmetry between him/her and the alleged conspirators. Allowing pre-action production in the present case would facilitate the obtaining of documents and information which are material in assessing if the Conspiracy Claim is a viable one at this pre-action stage.

In relation to the No Unlawful Means Argument, I accept that the Applicant is presently unable to state whether any unlawful acts had taken place as part of the conspiracy. However, this is precisely the reason for the Applicant seeking pre-action production of documents and information: to see if a viable cause of action can be established, in the light of the surrounding circumstances (such as his removal as CEO and director, as well as the alleged Diversion Scheme). I therefore find the Conspiracy Claim sufficiently viable, at the pre-action stage, to warrant some production of documents and information.

Interests of Justice

Having found that both the Minority Oppression Claim and Conspiracy Claim are sufficiently viable claims at the pre-action stage, I turn to assess the Applicant’s requests holistically in the light of the interests of justice. Five of the six factors enumerated at [18] above can be concisely addressed, before I focus in greater detail on the remaining factor.

(a) First, in relation to the seriousness of the injury, loss or damage (see [18(b)] above), the loss suffered by the Applicant is potentially significant given that Fearless Legends was allegedly valued at about USD527,300,000 (of which the Applicant’s stake would be valued at about USD163,463,000) as at 31 December 2020. Even on Mr Mansfield’s case, the value of Fearless Legends would be around USD127,300,000 (of which the Applicant’s stake would be valued at about USD39,463,000).

(b) Second, in relation to confidentiality and privacy (see [18(c)] above), while I acknowledge that the Respondents should not be unnecessarily made to share their private information, no specific confidentiality arrangements have been highlighted to me which may warrant heightened circumspection in ordering pre-action production. It also appears that the Respondents will likely be involved (whether as parties, or as witnesses) in any eventuating litigation, although it is too early to draw conclusions at this stage.

(c) Third, in relation to inconveniencing, embarrassing or prejudicing non-parties (see [18(d)] above), other than the fact that the Respondents will likely be involved in any eventuating litigation, there is also presently no evidence of any embarrassment caused to the Respondents, or of any inconvenience or prejudice caused to them which cannot be compensated by costs. The issue of costs will be considered later in this judgment.

(d) Fourth, in relation to judicially administered orders for pre-action production increasing the expense of dispute resolution (see [18(e)] above), no evidence was proffered to demonstrate any disproportionate expense occasioned by judicially administered pre-action disclosure orders in the present case. Indeed, given that the Applicant’s pre-application attempts to obtain the information directly from the Respondents were unsuccessful (see [6] above), and that the post-application responses from Mr Mansfield, Mr Plaskocinski and Mr Jones (in their reply affidavits) were caveated and heavily qualified (eg, “without prejudice to my right to answer more fully” ), it is uncertain how this dispute can otherwise be resolved without judicially administered pre-action production orders. In addition, the narrowed timeframe and scope of the requests, as discussed below, would help mitigate the costs expended in pre-action production.

(e) Fifth, in relation to a Singapore nexus for the intended claims (see [18(f)] above), it is undisputed that Fearless Legends is a Singapore incorporated company, and various acts had occurred in Singapore. As such, both the Minority Oppression Claim and Conspiracy Claim have a clear nexus to Singapore.

The remaining factor concerns the need to guard against requests of a fishing and roving nature (see [18(a)] above). This factor must be considered in greater detail.

Applicant’s counsel submitted that the requests were not overly broad but that, in any event, the court may narrow the requests as appropriate (citing Element Six Technologies Ltd v IIa Technologies Pte Ltd [2018] SGHCR 13 at [41]-[43], and Sanae Achar v Sci-Gen Ltd [2011] 3 SLR 967 at [21]). While neither of the cited cases concerned applications for pre-action production, the court certainly has the discretion to narrow the requests rather than to reject the requests in their entirety. In the interests of justice, I grant a substantially circumscribed set of requests, narrowed both in terms of the substantive scope of the documents and information sought as well as the operative timeframe.

First, I narrow the substantive scope of the requests as elaborated upon in the following paragraphs. For good order, the items allowed in their entirety are listed first, followed by the items which are allowed in part, and thereafter the denied items.

In relation to Appendix 1 (pre-action production of documents):

(a) Table A (documents requested from Fearless Legends):

(i) S/N 5, 6, and 7 are allowed in their entirety. The Registered Charge is directly relevant and material to whether there was a diversion of assets (ie, intellectual property) to OneX LLC.

(ii) S/N 2 is allowed in part, limited to S/N 2(a) and (b)(i), and with S/N 2(a) amended to read “a third party obtains an interest in the intellectual property rights owned by Fearless Legends, including the agreement entered into on 10 May 2022 between Fearless Legends and OneX LCC” (emphasis added to indicate the amendment). This is on the basis that S/N 2(a) will help to confirm or deny the Applicant’s suspicions that the relevant technology has been misused. For completeness, S/N 2(b)(ii) to (b)(x) are denied as it would not be in the interests of justice to allow such wide-ranging requests.

(iii) S/N 3 and 4 are allowed in part, with the references to “S/N 1 and 2” being replaced by a reference to “S/N 2(a) and (b)(i)”. This follows from the narrowing mentioned in [36(a)(ii)] above.

(iv) S/N 1 is denied in its entirety as the document sought is an interim document that is not the executed version of the Licensing Agreement. The Applicant has not provided good justification for why such an interim document would be relevant or material to the intended claims.

(v) S/N 8 to 15 are denied in their entirety as they do not appear material to the Applicant’s determination of whether his intended claims are viable. The Applicant’s stated intention for seeking these documents is to enable the Applicant to instruct an expert to consider whether Onex LLC and/or LiquidityOne had used Fearless Legends’ intellectual property. However, these highly technical requests appear excessive, and it would not be in the interests of justice to allow such wide-ranging requests, at least at this pre-trial stage.

(b) Table B (documents requested from Mr Mansfield):

(i) S/N 2, 3, 5 and 9 are allowed in their entirety. They are relevant and material given the Applicant’s contention that Mr Gonske is possibly the mastermind of the Diversion Scheme, and that OneX LLC is directly or indirectly related to Mr Gonske and/or the BlocTech Group.

(ii) S/N 1 is allowed in part, limited to S/N 1(a), which directly relates to the removal of the Applicant as CEO and director. For completeness, S/N 1(b) is denied given that the Applicant’s performance of his CEO and director’s duties are only tangentially relevant (if at all) to the intended claims.

(iii) S/N 8 is allowed in part, with the references to “S/N 1 and 2” being replaced by a reference to “S/N 2(a) and (b)(i)” (see [36(a)(iii)] above).

(iv) S/N 4 is denied in its entirety as it is neither relevant nor material at this stage of proceedings.

(v) S/N 6 is denied in its entirety as it encapsulates the more-targeted request in S/N 5 (which has been allowed).

(vi) S/N 7 is denied in its entirety given that the Applicant has not provided any basis for asserting that Mr Gonske is involved in the management of Fearless Legends.

(c) Table C (documents requested from Mr Plaskocinski): S/N 1, 2, 3, 4 and 5 are allowed in their entirety. These requests are directly related to the possible diversion of assets and employees, the removal of the Applicant as CEO and director, as well as the possible interests that Mr Plaskocinski may have in OneX LLC.

(d) Table D (documents requested from Mr Jones):

(i) S/N 1, 2, 3, 10 and 11 are allowed in their entirety. These requests are directly related to the possible diversion of assets and employees, the removal of the Applicant as CEO and director, as well as the possible interests that Mr Jones may have in OneX LLC.

(ii) S/N 8 is allowed in part, with the references to “S/N 1 and 2” being replaced by a reference to “S/N 2(a) and (b)(i)” (see [36(a)(iii)] above).

(iii) S/N 4 is denied in its entirety given that the Applicant’s performance of his CEO and director’s duties are only tangentially relevant (if at all) to the intended claims (see [36(b)(ii)] above).

(iv) S/N 5, 6 and 7 are denied in their entirety as the Applicant has not provided any clear basis for why Mr Jones (who is not involved in the day-to-day operations or management of Fearless Legends) would be in a position to provide such information. Mr Mansfield appears better placed to address the issues in S/N 5 and 6 and has, indeed, been ordered to provide the relevant documents (see [36(b)(i)] above). In relation to S/N 7, this seems to be a roving request for information from Mr Jones, when the Applicant has not provided basis for asserting that Mr Jones is still involved in the management of Fearless Legends.

(v) S/N 9 is denied in its entirety as it is neither relevant nor material at this stage of proceedings.

In relation to Appendix 2 (pre-action production of information):

(a) Table A (information requested from Fearless Legends):

(i) S/N 2 is allowed in part, with the words “to OneX LLC and/or LiquidityOne” appended to the first paragraph, and S/N 2(b) and (e) deleted. The appending of the words and the denial of S/N 2(b) effectively confine the request to information relating to the entry into contracts or deeds with OneX LLC and/or LiquidityOne, rather than a roving request for all contracts and deeds entered into with any other entity. S/N 2(e) is denied as the Applicant has not demonstrated how the commercial reasons for entering contracts or deeds are relevant or material to the intended claims.

(ii) S/N 3 is allowed in part, with the deletion of everything after the phrase “please provide a list of such accounts that were transferred”. The deletion confines the request to the list of customer accounts that were transferred to OneX LLC and/or Liquidity One. The Applicant has not demonstrated how the various details sought in the sub-paragraphs are relevant or material to the intended claims.

(iii) S/N 1 is denied in its entirety for the reasons stated in [36(a)(iv)] above.

(iv) S/N 4 is denied in its entirety. This request is presumably intended to buttress aspects relating to customer diversion, but the request as framed does not achieve this end.

(v) S/N 5 is denied in its entirety given that it appears entirely speculative. It is unclear what conclusions can be drawn based on the identity of the entity that was funding Fearless Legends’ legal fees (see [7(g)] above).

(b) Table B (information requested from Mr Mansfield):

(i) S/N 6 is allowed in its entirety as it is directly relevant and material to the diversion of employees, as well as the allegation that there may be systemic abuse which benefitted one group of shareholders at the expense of the others.

(ii) S/N 1 is allowed in part, with the deletion of S/N 1(b). S/N 1(b) is denied as the Applicant has not demonstrated how the mode of instructions or communications is relevant and material to the intended claims.

(iii) S/N 3 is allowed in part, with the words “to OneX LLC and/or LiquidityOne” appended to the first paragraph, and S/N 3(b) and (e) deleted, for the reasons stated in [37(a)(i)] above.

(iv) S/N 4 and 5 are allowed in part, with everything after the first paragraph deleted. The Applicant has not demonstrated the relevance and materiality of information relating to how Mr Mansfield was made aware of the approaches to divert employees or customers, or whether (and how) Fearless Legend’s board of directors responded to the approaches.

(v) S/N 2 is denied in its entirety, as whether Mr Gonske was aware or informed of the removal of Mr Gillingham as CEO and director prior to Mr Gillingham’s removal is neither relevant nor material at this stage of proceedings.

(c) Table C (information requested from Mr Plaskocinski):

(i) S/N 1, 5 and 6 are allowed in their entirety as they are directly relevant and material to the diversion of employees, the removal of the Applicant as CEO and director, as well as the allegation that there may be systemic abuse which benefitted one group of shareholders at the expense of the others.

(ii) S/N 2 is allowed in part, with the deletion of S/N 2(b). S/N 2(b) is denied as the Applicant has not demonstrated how the mode of instructions or communications is relevant and material to the intended claims.

(iii) S/N 4 is allowed in part, appending the words “to OneX LLC and/or LiquidityOne” to the first paragraph, and deleting everything after the first paragraph, ie, from the phrase “If so, please state…”. The appending of the words is to achieve a similar confining effect as that discussed at [37(a)(i)] above, while the deletion is ordered on the basis that the ensuing sub-paragraphs are roving in scope and do not appear material at this pre-action stage.

(iv) S/N 3 is denied in its entirety. The Applicant has not demonstrated how Mr Plaskocinski’s current access to Fearless Legend’s intellectual property is directly relevant and material to the intended claims.

(d) Table D (information requested from Mr Jones):

(i) S/N 2 and 7 are allowed in their entirety, as they are directly relevant and material to the removal of the Applicant as CEO and director, as well as the allegation that there may be systemic abuse which benefitted one group of shareholders at the expense of the others.

(ii) S/N 1 is allowed in part, with the deletion of S/N 1(b). S/N 1(b) is denied as the Applicant has not demonstrated how the mode of communications is relevant and material to the intended claims.

(iii) S/N 3 is allowed in part, with the words “to OneX LLC and/or LiquidityOne” appended to the first paragraph, and S/N 3(b) and (e) deleted, for the reasons stated in [37(a)(i)] above.

(iv) S/N 4, 5 and 6 are denied in their entirety as the Applicant has not provided any clear basis for why Mr Jones (who is not involved in the day-to-day operations or management of Fearless Legends) would be in a position to provide such information. Mr Mansfield appears better placed to address the issues in S/N 4 and 6 and has, indeed, been so ordered to provide the relevant information (see [37(b)(iv)] above). As for S/N 5, this appears to be a roving request for information from Mr Jones; it is unclear why such a request, which concerns other shareholders of Fearless Legends (rather than Mr Jones himself, or any shareholder with a specific relation to Mr Jones), is targeted at Mr Jones.

In addition to narrowing the substantive scope of the requests, I also order a narrowing of the operative timeframe for the requests.

(a) In relation to the start date for the requests, Applicant’s counsel suggested limiting this to documents and information from March or April 2021 onward (ie, about one year prior to the Applicant’s dismissal). In my assessment, a timeframe commencing six months (ie from October 2021) prior to the Applicant’s dismissal suffices at this pre-action stage. If the Applicant’s intended claims are viable, there will likely have been major adjustments and developments within this period.

(b) In relation to the end date for the requests, I order that all requests relating to the removal of the Applicant as CEO and director shall be limited to an end date of 12 April 2022 (being the date that the shareholders were informed of the Applicant’s removal ), given that any reasons for wrongful removal will likely have crystallised by that date. All other requests will be limited to the end-date of 27 January 2023 (being the date that Fearless Legends was wound up). The narrowed timeframes will provide sufficient information for the Applicant to determine whether and against whom to bring the intended claims.

The granted narrowed requests are what, in my assessment, are relevant, material and ought to be disclosed in the interests of justice at this time. The Applicant is not precluded from subsequently seeking the production of documents or information relating to the denied items or falling within a broader operative timeframe, should he be able to meet the required thresholds at that time (see the discussion on temporality at [19] above).

Costs

The predecessor provision – O 24 r 6(9) of ROC 2014 – reads as follows:

Applicant’s counsel contended that the understanding of “non-party” in O 11 r 11(3) of ROC 2021 is limited to a “non-party” in the context of commenced proceedings. She pointed out that the heading to O 11 r 11 of ROC 2021 reads “Production before action or against non-parties” (emphasis added), and that O 11 r 11(1) of ROC 2021 refers to the production of documents either “before the commencement of proceedings or “against a non-party” (emphasis added). The disjunctive “or”, in her contention, meant that the reference to “non-party” was intended to refer only to a situation after the commencement of proceedings; it did not encompass a respondent to a pre-action production application. She further pointed out that such an interpretation is supported by the fact that O 11 r 11(3) of ROC 2021 is phrased differently from its predecessor provision O 24 r 6(9) of ROC 2014, which refers to a “person against whom the order is sought” rather than a “non-party”.

Neither Applicant’s nor Respondents’ counsel addressed the definition of “non-party” in O 1 r 3(1) of ROC 2021. That definition provides:

To be sure, this definition cannot be literally interpreted in the context of an application under O 11 r 11 of ROC 2021. This is because the respondent to any such application (whether in a pre-action context, or in the context of an action that has already commenced) is necessarily a party to the production application. It will therefore be necessary to invoke the reference to “unless the context otherwise requires” in the chapeau of O 1 r 3(1) of ROC 2021 and read the references to “party in the action” or “action” as references to the eventuating action or application (as the case may be). Even so, however, the definition of “non-party” in O 1 r 3(1) of ROC 2021 does not conclusively answer the question: does the term “non-party” in O 11 r 11(3) of ROC 2021 refer exclusively to a non-party in the context of a commenced proceeding, to the exclusion of a respondent to a pre-action production application? In my view, this question admits of a negative answer, for three reasons:

(a) First, I accept that the definition of “non-party” in O 1 r 3 of ROC 2021, as well as the disjunctive phrasing in the heading to O 11 r 11 of ROC 2021 and in O 11 r 11(1) of ROC 2021, may be interpreted to distinguish a “non-party” on the one hand, from a respondent to a pre-action production application on the other. However, on a plain reading of O 11 r 11(3) of ROC 2021, there is no express suggestion that the term “non-party” refers only to a “non-party” in the context of commenced proceedings. Indeed, the term “non-party”, read on its own, is arguably wide enough to encompass a person from whom production is sought at the pre-action stage, given that such a person would not be a party to any proceedings at the time of the application (given that proceedings have yet to, and indeed may never, commence). This broader understanding of “non-party” also finds resonance in O 11 r 4 of ROC 2021, which is the general provision stating the court’s power to order production generally. The reference to “non-party” in this general provision cannot be limited to a “non-party” in the context of commenced proceedings, given that O 11 r 11 of ROC 2021 clearly contemplates the court ordering production in a pre-action context. The use of the term “non-party” in O 11 r 4 of ROC 2021 therefore supports the understanding that the term “non-party” may not have as circumscribed a meaning in O 11 r 11(3) of ROC 2021 as Applicant’s counsel suggests.

(b) Second, there is no known basis for thinking that O 11 r 11(3) of ROC 2021 was intended to create a substantial difference in terms of the entitlement to costs vis-à-vis the position in O 24 r 6(9) of ROC 2014; rather, the real difference concerns the scale of costs allowed, with the scale being altered from “indemnity” costs to “reasonable” costs. As a matter of principle, there does not appear to be any reason why a respondent to a pre-action production application should be denied entitlement to costs. Under O 24 r 6(9) of ROC 2014, the rationale for the entitlement to costs is that a person should be compensated for his/her efforts in complying with a production order (whether in a pre-action situation, or as a non-party to commenced proceedings) when he/she is being compelled to do so despite the absence of any interest in any proceedings. While the wording in O 11 r 11(3) of ROC 2021 differs from O 24 r 6(9) of ROC 2014, the same rationale continues to apply (see, eg, Singapore Civil Practice at para 30-158, observing that the “rationale of this right to costs is that the respondent’s involvement is compelled despite not having any interest in the proceedings nor bearing any responsibility for them”). The general position of a respondent being entitled to costs also reflects the general principle in the Australian and UK cases, as seen in Horwood, Riley and SES Contracting (although the wording of O 11 r 11(3) of ROC 2021 does differ from the relevant rules in Australia and the UK). I further note that in Singapore Civil Practice at para 30-158, the learned author cited O 11 r 11(3) of ROC 2021 and observed that a respondent to a pre-action production application is entitled to the reasonable costs arising out of such an application.

(c) Third, Applicant’s counsel’s position is premised on a strict literal interpretation. Adopting a purposive interpretation as is required by O 3 r 1(1) of ROC 2021, for the reasons in [47(a)] and [47(b)] above, the reference to “non-party” in O 11 r 11(3) of ROC 2021 should be interpreted to include a respondent to a pre-action production application.

Security for Costs

Conclusion

My orders are as follows:

Annex