Lee Chang-Rung and others v Leonard Loo LLP and another

Tan Lee Meng J:

[1] The first plaintiff, Mr Lee Chang-Rung (“LCR”), the second plaintiff, Mdm Lee Huey-Jen, the third plaintiff, Mr Lee Sung-Rong, and the fourth plaintiff, Mr Hu Yen-Cheng (“HYC”), are relatives who reside in Taiwan. The first defendant, Leonard Loo LLP, was a limited partnership of advocates and solicitors and the second defendant, Mr Loo Peng Chee Leonard (“Mr Loo”), was its managing partner. The defendants acted for the plaintiffs in Suit No 212 of 2009 (“Suit 212”), in which the plaintiffs made a claim against Standard Chartered Bank (“SCB”) with respect to alleged misrepresentations on a structured product issued by Lehman Brothers. Suit 212 was struck out pursuant to an Unless Order requiring the plaintiffs to comply with a discovery order by a specified date. The plaintiffs, who alleged that the defendants had acted negligently and in breach of contract in the handling of Suit 212, sued the latter for, inter alia, damages for loss of a chance in succeeding in that suit.

[2] The plaintiffs are quite experienced investors but they claimed to be inexperienced investors who park their funds in fixed deposits. Between 2002 and May 2008, they invested in financial products at DBS Bank Ltd (“DBS”), American Express Bank (“AEB”) and Standard Chartered Bank (“SCB”). Ms Daphne Lau (“Ms Lau”) was their relationship manager at DBS who handled their investments before she left to join AEB as a relationship manager in September 2005. When AEB became a wholly owned subsidiary of SCB in February 2008, Ms Lau became the plaintiffs’ relationship manager at SCB.

[3] In May 2008, Ms Lau arranged for the plaintiffs to purchase from SCB a structured product (the “Lehman product”), which was issued and guaranteed by Lehman Brothers (“Lehman”). The plaintiffs, who lost US$700,000 as a result of the collapse of Lehman, sued SCB for the loss on the ground that Ms Lau had induced them to invest in the Lehman product by making false representations about the said product to them. SCB denied the allegation.

[4] On 18 August 2009, SCB’s solicitors, Drew & Napier (“D & N”), wrote to Leonard Loo LLP regarding the discovery of documents concerning the plaintiffs’ investment experience (the “investment documents”). This was not surprising as Ms Lau knew that the plaintiffs were experienced investors who had purchased various products such as foreign currencies, dual currency convertibles, hedge funds and structured products through their accounts with SCB. She was also aware of the plaintiffs’ previous investments in DBS while she was their relationship manager at DBS.

[5] On 21 August 2009, Leonard Loo LLP replied that SCB was “fishing for evidence”. In view of this, SCB applied for specific discovery of the said documents by way of Summons No 5288 of 2009. On 23 October 2009, the Assistant Registrar ordered the plaintiffs to give discovery of all documents “relating to the investment experience of each of the Plaintiffs, including but not limited to all correspondence, application forms, term sheets, prospectuses, pricing statements, brochures, statements of accounts, confirmation notes and confirmation advice relating to all structured products purchased by each of the Plaintiffs during the period October 2002 to March 2008 from any bank or financial institution, whether situate in Singapore or elsewhere” (the “Order”). The deadline for complying with the Order was 13 November 2009.

[6] The plaintiffs failed to furnish the required documents to SCB by 13 November 2009. On 30 November 2009, the Assistant Registrar granted an Unless Order (the “Unless Order”), which required the plaintiffs to comply with the Order by 7 December 2009, failing which Suit 212 would be struck out.

[7] In an affidavit dated 7 December 2009, the plaintiffs confirmed that they were clients of DBS and disclosed that the 1 and 3 plaintiffs had invested in Surf Deposit 02 Tranche A (“Surf Deposit 02”) while the 2 and 4 plaintiffs had invested in Surf Deposit 28 Tranche A (“Surf Deposit 28”). The plaintiffs added that they had not invested in structured products with any other bank or financial institution, whether in Singapore or elsewhere from October 2002 to March 2008. In their supplementary list of documents, the plaintiffs disclosed the following four documents (the “disclosed documents”):

(i) a Deposit Confirmation for the 1 and 3 plaintiffs’ investment in Surf Deposit 02;

(ii) a Statement of Accounts for October 2002;

(iii) a Final Term sheet for the Surf Deposit 02; and

(iv) a Credit Advice dated 7 July 2005 for the 5 payout amount for Surf Deposit 28.

[8] In response to D & N’s query, Leonard Loo LLP confirmed on 17 December 2009 that the disclosed documents were all the relevant documents in the plaintiffs’ possession.

[9] SCB’s Ms Lau, who helped the plaintiffs purchase many other financial products at DBS, knew that the documents disclosed by them were incomplete. Following an application by SCB, on 3 February 2010, DBS was ordered by the Assistant Registrar to disclose documents relating to the plaintiffs’ investment experience with DBS (the “DBS documents”) by 24 February 2010.

[10] On 24 February 2010 and 26 February 2010, DBS furnished the DBS documents to D & N. It was obvious from the disclosed documents that the plaintiffs had not disclosed many other documents relating to their investments in DBS. As such, on 4 March 2010, SCB took out Summons No 985 of 2010 to strike out the plaintiffs’ action on the ground that the latter had not complied with the Order and Unless Order and had wilfully and deliberately withheld disclosure of documents which were likely to be in their possession. On 16 March 2010, Suit 212 was struck out.

[11] After Suit 212 was struck out, the plaintiffs instructed JLC Advisors LLP (“JLC”) to take over the conduct of Suit 212 from the defendants on 10 August 2010.

[12] The plaintiffs’ appeal against the striking out of their claim against SCB was dismissed by Tay Yong Kwang J (“Tay J”). On 4 March 2011, their appeal to the Court of Appeal against Tay J’s decision was dismissed.

[13] Claiming that the defendants had caused them to lose a chance of succeeding in their claim against SCB in Suit 212, the plaintiffs sued the latter for negligence and breach of contract in relation to the alleged lost chance as well as other matters.

[14] The plaintiffs made a number of claims against the defendants for negligence and breach of contract in the present suit. These claims were pleaded under Parts A, B, C, and D of the Statement of Claim (“SOC”).

[15] Part A of the SOC concerned allegations of the defendants’ negligence and breach of contract in the handling of the applications in Suit 212 by SCB regarding the furnishing of Further and Better Particulars of the SOC in that case.

[16] Part B of the SOC dealt with the defendants’ handling of SCB’s application to strike out paragraph 9 of the SOC in Suit 212, the plaintiffs’ appeal against the striking out of paragraph 9 ordered by the Assistant Registrar and the botching up of the amendments to paragraph 9.

[17] Part C of the SOC related to the defendants’ handling of the discovery application by SCB in Suit 212 and the striking out of that action.

[18] In Part D of the SOC, the plaintiffs complained of miscellaneous breaches of contract and negligence on the part of the defendants in Suit 212.

[19] Summary judgment has already been entered against the defendants with respect to their claims under Parts A, B, and D. In view of this, the trial only concerned Part C of the SOC, which relates primarily to the plaintiffs’ claim for damages for loss of a chance of succeeding in their claim against SCB in Suit 212.

[20] After the plaintiffs closed their case on Part C of the SOC, the defendants submitted that they had no case to answer. The effect of such a submission is well-known. In Tan Juay Pah v Kimly Construction Pte Ltd and others [2012] 2 SLR 549, the Court of Appeal reiterated (at [37]) that a submission of “no case to answer” by a defendant succeeds if the plaintiff’s evidence, at face value, does not establish a case in law; or (b) the evidence led by the plaintiff is so unsatisfactory or unreliable that his burden of proof has not been discharged.

[21] In Smile Inc Dental Surgeons Pte Ltd v Lui Andrew Stewart [2012] 1 SLR 847, Woo Bih Li J summarised (at [34] to [35]) the position on a submission of no case to answer as follows:

[22] It is also worth noting that in Relfo Ltd (in liquidation) v Bhimji Velji Jadva Varsani [2008] 4 SLR(R) 657 (“Relfo”), Judith Prakash J explained (at [20]) that “a prima facie case is determined by assuming that the evidence led by the plaintiff is true, unless it is inherently incredible or out of all common sense or reason”.

[23] It follows that in the present case, the defendants’ submission of no case to answer will succeed if the plaintiffs did not establish a prima facie case in law or if the evidence led by them was so unsatisfactory or unreliable that their burden of proof was not discharged. Needless to say, it does not help a plaintiff’s case if he makes admissions that undermine the foundation of his own case against the defendant.

[24] The plaintiffs’ claim for loss of a chance of succeeding in Suit 212 is based on negligence as well as breach of contract.

[25] In relation to the plaintiffs’ action in tort, it is noteworthy that in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100, the Court of Appeal stated (at [21]) as follows:

[26] In the circumstances of the present case, where the defendants have submitted that they had no case to answer, the court will determine whether the plaintiffs had established a prima facie case that the breach, if any, was an effective cause of the striking out of Suit 212.

[27] Similarly, in the case of the plaintiffs’ claim in contract, the court must be satisfied that they established a prima facie case that the losses suffered were caused by the defendants’ breach of contract. In Asia Hotel Investments Ltd v Starwood Asia Pacific Management Pte Ltd and another [2005] 1 SLR(R) 661, the Court of Appeal explained (at [144]):

[28] Before applying the law to the facts in this case, the credibility of the first plaintiff, LCR, who was the plaintiffs’ main witness, must be considered. The most significant feature of the trial was his absolutely unreliable and unsatisfactory evidence, which when coupled with his rather surprising admissions, thoroughly undermined the plaintiffs’ claim against the defendants.

[29] LCR, a university graduate and a businessman who manages a sizeable business, prevaricated and contradicted himself on countless occasions. He gave far-fetched excuses for constantly changing his evidence. Among other things, he claimed that he gave totally conflicting evidence because he did not concentrate when answering earlier questions posed to him or had answered the questions negligently. He also said that his inconsistent answers were due to a slip of the tongue. For good measure, he also claimed that he could not answer probing questions or had contradicted himself because of nervousness. The more he testified, the more he undermined his own credibility as well as the dogged, and sometimes desperate, attempts of his counsel, Mr Tan Hee Joek, to shore up the plaintiffs’ case.

[30] A good example of how tedious it was to cross-examine LCR is his evidence on a letter of complaint that he sent to SCB about Ms Lau on 29 September 2008 (the “29 September letter”), which was in the following terms:

[31] When asked whether he stood by the contents of the 29 September letter, LCR was very evasive as he testified as follows:

[32] After claiming that the contents of the 29 September letter were true, LCR admitted that many false allegations were made against Ms Lau in the said letter. To begin with, he agreed that his allegation that Ms Lau had advised him to invest US$700,000 in the Lehman product was patently false. He also conceded that his allegation that “such concentrated risk was advised by my trusted banker” was not true.

[33] LCR’s assertion in the 29 September letter that he was not aware that he had purchased a Lehman product until two working days before Lehman collapsed was another barefaced lie. When he was referred to the transcript of a taped telephone conversation with Ms Lau on 13 March 2008, which revealed that he knew that he was being offered a Lehman product, LCR admitted that Ms Lau had informed him that the product in question was a Lehman product and that the relevant documents forwarded to him by Ms Lau made it clear that Lehman was the issuer and guarantor of the product.

[34] LCR tried to downplay the 29 September letter by saying that the blatant lies in the said letter were merely “serious mistakes” on his part. The defendants’ counsel, Mr Chandra Mohan, rightly retorted that the false statements in his letter to SCB had nothing to do with his mistakes, after which LCR made the following damning admission:

[35] As the trial progressed, it became very clear that LCR was prepared to lie in court in his desperate attempt to recoup from the defendants the loss of US$700,000 suffered by the plaintiffs when they invested in the Lehman product.

[36] The plaintiffs’ primary claim in Part C of their SOC is that they lost a chance to succeed in Suit 212 because of the defendants’ actions. At the outset, it must be stressed that it is not the loss of any chance that entitles a plaintiff to damages. In Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 WLR 1602 (“Allied Maples”), where the loss suffered by a plaintiff as a result of the defendant’s negligence was dependent on the hypothetical action of a third party, the English Court of Appeal held that in such a case, the plaintiff is entitled to damages if he can prove that there was a “real or substantial” chance and not merely a speculative chance of that action being taken. In Bank of Commerce and Credit International SA (in liquidation) v Ali and Others (No 2) [2002] 3 All ER 750 (“BCCI v Ali”), which concerned the loss of a chance of employment, the English Court of Appeal reiterated this principle and held that a claimant must prove on a balance of probabilities that he had lost a real or substantial chance rather than a speculative one.

[37] Had Suit 212 not been struck off, a judge would have had to decide whether or not the plaintiffs’ claim against SCB had any merit. As the defendants in the present proceedings submitted that they had no case to answer, the court must be satisfied that the plaintiffs had established a prima facie case that they had lost a real or substantial chance in succeeding in Suit 212 when that suit was struck out before the question of assessment of damages arises. This is clear from Allied Maples, where Stuart-Smith LJ stated (at p 1614):

[38] Stuart-Smith LJ’s view that a plaintiff must “prove as a matter of causation that he has lost a real or substantial chance” before the question of assessment of damages arises was endorsed by Robert Walker LJ in BCCI v Ali (at p 771).

[39] Whether the plaintiffs had suffered a real and substantial loss of a chance in succeeding in Suit 212 depends on the strength of their case in that suit. The plaintiffs made no effort whatsoever to establish that they had a real and substantial chance of succeeding in Suit 212. Instead, they demolished their own case in the present proceedings when their main witness, LCR, astoundingly conceded that the plaintiffs’ case in Suit 212 was founded on a blatant lie that Ms Lau had misrepresented the Lehman product to them. Equally astonishing was his admission that the plaintiffs had a “hopeless” case against SCB in Suit 212.

[40] As mentioned, in Suit 212, the plaintiffs portrayed themselves as inexperienced investors who invested primarily in fixed deposits. This was obviously untrue. When the defendants’ counsel, Mr Chandra Mohan, questioned LCR on his involvement in various sophisticated financial products on a regular basis, he admitted as follows:

[41] The nub of the plaintiffs’ case in Suit 212 was pleaded in paragraphs 3, 9 and 10 of the SOC in Suit 212 as follows:

[42] For a start, the allegation in paragraph 3 of the SOC in Suit 212 that Ms Lau had wrongly advised the plaintiffs to invest US$700,000 in the Lehman product was totally false. As mentioned earlier when the 29 September letter was discussed, LCR admitted that it was not true that Ms Lau had advised him to invest US$700,000 in the Lehman product. In view of this, the plaintiffs’ allegation in paragraph 8 of the SOC in Suit 212 that SCB had breached s 27 of the Financial Advisors Act (Cap 110, Rev Ed 2007) by recommending the Lehman product to them without having a reasonable basis for making the recommendation was absolutely untrue.

[43] Similarly, the allegations against SCB in paragraphs 9 and 10 of the SOC in Suit 212 rested on a pack of lies. The transcript of the telephone conversation between LCR and Ms Lau on 13 March 2008 revealed that none of the misrepresentations alleged in paragraph 9 of the SOC had been made by her.

[44] The first allegation in paragraph 9 of the SOC in Suit 212 was that Ms Lau had misrepresented to the plaintiffs that the Lehman product was a “safe” investment. LCR totally undermined this allegation when he testified as follows:

[45] LCR next conceded that the allegation in paragraph 9 of the SOC in Suit 212 that Ms Lau had misrepresented the position on principal protection, lack of risk and guaranteed returns was also false as he testified as follows:

[46] Apart from conceding that none of the allegations of misrepresentation by Ms Lau in paragraph 9 of the SOC in Suit 212 were true, LCR also admitted that the allegation in paragraph 10 of the said SOC that the plaintiffs were induced by Ms Lau’s misrepresentations to invest US$700,000 in the Lehman product was also untrue. For a case of misrepresentation to succeed, the misled party must have been induced by the misrepresentation in question to enter into the contract: see, for instance, Horsfall v Thomas (1862) 1 H & N 90. As LCR agreed with the defendants’ counsel that the plaintiffs had made a false allegation that Ms Lau’s misrepresentations had induced them to buy the Lehman product, it followed that the plaintiffs’ case on misrepresentation in Suit 212 had no leg to stand on.

[47] In view of LCR’s startling admissions, it was not surprising that he testified during the first tranche of the trial that Suit 212 was a “hopeless” claim against SCB. The relevant part of the proceedings is as follows:

[48] When the second tranche of the trial commenced on 18 April 2012, LCR contradicted his earlier evidence regarding the hopelessness of his claim against SCB in Suit 212 and claimed that the chance of the plaintiffs’ succeeding in Suit 212 was “not big”. When asked to explain why he had confirmed in the first tranche of the trial that his case in Suit 212 was a hopeless case, LCR rambled on for a very long time without giving a proper explanation for his change of position.

[49] Significantly, LCR testified that he had understood Mr Chandra Mohan’s questions about the hopelessness of the plaintiffs’ case against SCB in Suit 212 during the first tranche of the trial. He also confirmed that his earlier evidence on the hopelessness of his claim against SCB was “true”. The relevant part of the proceedings is as follows:

[50] When questioned on why he had changed his mind when his earlier testimony that the plaintiffs’ case in Suit 212 was hopeless was true, LCR testified that he had changed his evidence on the hopelessness of the claim in Suit 212 because he had important evidence that Mr Loo did not obtain for him. He did not elaborate on what he meant and the court was left absolutely in the dark as to what he was talking about.

[51] In view of LCR’s damning admissions in the present proceedings that the plaintiffs’ allegations of misrepresentation and inducement in their SOC in Suit 212 were patently false, I agree with his earlier evidence that the plaintiffs’ claim in Suit 212 was hopeless and doomed to fail. As the plaintiffs would, on their own evidence in the present case, have failed in their claim for damages from SCB in Suit 212, they did not establish a prima facie case that they had suffered the loss of a real or substantial chance of succeeding against SCB in Suit 212. In view of this, their claim for damages under Part C of the SOC in the present suit for the loss of a chance is dismissed.

[52] For the sake of completeness, reference must be made to the position of the fourth defendant, Mr Hu Yen-Cheng (“HYC”), who had a separate cause of action against SCB in Suit 212 as he signed separate contracts with SCB. HYC said that LCR did not tell him about the latter’s conversation with Ms Lau and when cross-examined, he admitted that he did not rely on Ms Lau’s telephone conversation with LCR on 13 March 2008. That being the case, he had no chance of succeeding against SCB as the alleged misrepresentations by Ms Lau that were pleaded in Suit 212 were, on his own evidence, never made to him.

[53] Although the plaintiffs’ case may be dismissed on the ground that they did not establish a prima facie case that they had a real or substantial chance of succeeding in Suit 212, I will, for the sake of completeness, consider whether their evidence, in the face of a submission of no case to answer by the defendants, established a prima facie case that the defendants had caused Suit 212 to be struck out.

[54] Suit 212 was struck out for the sole reason that the plaintiffs failed to disclose the DBS documents. As such, the relevant question was whether or not there was prima facie evidence of a causal connection between the defendants’ alleged negligence or breach of contract and the plaintiffs’ failure to fully disclose their investment experience in DBS.

[55] In their closing submissions, the plaintiffs asserted at paragraph 279 as follows:

[56] Mr Loo’s advice on the plaintiffs’ discovery obligations was first set out in an email on 11 August 2009, in which he informed LCR that he was preparing for discovery and explained as follows what the discovery of documents entails:

[57] The Chinese words in the said e-mail, as translated, were as follows:

[58] The plaintiffs contended that Mr Loo’s advice on 11 August 2009 was insufficient to impress upon laymen unfamiliar with the process of discovery in the Singapore courts what their discovery obligations entailed. They also contended that they were not sure about their discovery obligations because in a telephone conversation on 11 November 2009, which was taped, Mr Loo stated as follows:

[59] Mr Loo’s statement that the defendants had to decide how much to disclose to the other party was clearly off the mark. However, that statement must be read in the context of the entire conversation, during which Mr Loo told LCR that he “must be frank and honest to the court” as well as the numerous occasions in which Mr Loo emailed and spoke to the plaintiffs on what they had to do in relation to disclosure of the DBS documents. Furthermore, Mr Loo had told the plaintiffs to be frank and honest in complying with court orders. LCR testified that he understood what being “frank and honest” to the court meant. The relevant part of the proceedings is as follows:

[60] The plaintiffs asserted in their closing submissions at paragraph 46 that the defendants should have advised his clients to accede to SCB’s request for discovery since it was an issue in Suit 212 whether or not they were experienced investors. In his telephone conversation with LCR on 11 November 2009, which was taped, Mr Loo did this as he said as follows:

[61] Although the plaintiffs insisted that they were unsure of their discovery obligations, they were aware that they had to disclose all the DBS documents because SCB knew that they had invested in products akin to the Lehman product while Ms Lau was their relationship manager at DBS. That the plaintiffs knew that they had to furnish the records of their investments in DBS was conceded in paragraph 87 of the plaintiffs’ closing submissions, which was as follows:

[62] I agree that Mr Loo’s advice that the DBS documents had to be disclosed because of Ms Lau’s knowledge is off the mark and that the duty to disclose documents has nothing to do with what the other party knows. However, for the wrong reason, Mr Loo had made it plain that the DBS documents had to be disclosed by the plaintiffs. Despite this, the plaintiffs chose not to disclose all the documents relating to their investment experience in DBS to Mr Loo or to SCB.

[63] In his e-mail to LCR on 3 November 2009, Mr Loo furnished a detailed list of what must be disclosed to SCB as follows:

[64] LCR admitted that he “basically understood” the 3 November 2009 email with the exception of the words “commodities and credit swaps”. After sending this e-mail, Mr Loo telephoned LCR on 11 November 2009 and asked whether there was anything that the latter did not understand in the said e-mail. LCR did not seek any clarification of his discovery obligations. The relevant part of the transcript of the telephone conversation, in which Mr Loo asked LCR to be “frank and honest” with the court, was as follows:

[65] LCR testified that he understood that Mr Loo had asked him in the telephone conversation on 11 November 2009 for a list of all structured products that the plaintiffs purchased between 2002 and 2008 and that the plaintiffs had failed to provide the said list to Mr Loo. The relevant part of the proceedings is as follows:

[66] LCR also testified that Mr Loo had advised him on the consequences of failing to comply with the Unless Order and he accepted that it was the plaintiffs’ responsibility to furnish the documents required under the Order and Unless Order. More importantly, LCR admitted that he could have obtained the requisite documents from DBS to discharge his discovery obligations in relation to his investments with that bank. The relevant part of the proceedings is as follows:

[67] The fourth defendant, HYC, also admitted that he could have asked DBS for the relevant documents but he did not do so.

[68] Evidently, LCR did not take his discovery obligations seriously despite having been advised by Mr Loo of the consequences of non-compliance with the Unless Order. The same may be said of HYC. The truth was that the plaintiffs were unwilling to disclose all the DBS documents. LCR admitted that he was “quite worried” that if his investment experience was revealed to the court, his case against SCB in Suit 212 would not be believed. This explained why his testimony was peppered with admissions that he was unwilling to reveal his entire investment experience. From the plaintiffs’ own evidence, it was evident that their assertion that they did not know what to disclose in relation to the Order and Unless Order cannot be countenanced.

[69] Apart from failing to furnish the DBS documents themselves, it was clear from the plaintiffs’ own evidence that LCR frustrated Mr Loo’s frantic attempts to obtain the DBS documents directly from DBS so as to comply with the Unless Order.

[70] After SCB obtained the Unless Order, Mr Loo sent a letter dated 2 December 2009 to DBS, in which he explained that he represented the plaintiffs in Suit 212, enclosed a copy of the Unless Order, requested the bank to forward the DBS documents to him on the plaintiffs’ behalf within three days and undertook to pay the photocopying charges for the requested documents.

[71] Mr Loo emailed the plaintiffs on 3 December 2009 to inform them that he had written to DBS to request that the documents required to comply with the Unless Order be sent to him. The said email to the plaintiffs, which referred to the type of documents required, was as follows:

[72] Despite the urgency of the matter, LCR did not contact DBS to instruct his relationship manager to co-operate with Mr Loo. When his DBS relationship manager, Ms Louise, contacted him after Mr Loo spoke to her about the DBS documents, LCR had a golden opportunity to instruct her to hand over the DBS documents to enable the plaintiffs to comply with the Unless Order. LCR said that Ms Louise called him three times on 3 or 4 December 2008 and that she left him a message to return her call but his phone was switched off because he was busy entertaining a guest. He added that he returned Ms Louise’s call during lunch time. Strangely, he did not instruct Ms Louise to hand over the DBS documents to Mr Loo to meet the deadline in the Unless Order. Shockingly, he even feigned ignorance as to what Mr Loo had wanted from DBS and testified as follows about what he told Ms Louise:

[73] I do not believe that LCR did not know what documents Mr Loo wanted from DBS as he knew all along that the DBS documents were required to comply with the Unless Order. It is crucial to note that LCR testified that if he had asked Ms Louise to hand over the DBS documents to Mr Loo at the material time, she would have done so. The relevant part of the proceedings is as follows:

[74] Why LCR thought that entertaining his guests was more important than complying with the Unless Order cannot be fathomed. Subsequently, he added more excuses for his failure to instruct Ms Louise to hand over the DBS documents to Mr Loo. He even said that as he had been negligent, Mr Loo should have reminded him to comply with the Unless Order. Finally, in desperation, it was even asserted that Mr Loo should have warned them that he had a duty under Rules 56 and 58 of the Legal Profession (Professional Conduct) Rules to cease to act for them if LCR refused to disclose documents showing his investments in structured banks other than DBS. They added in paragraph 101 of their closing submissions that if the defendants “had given such a stern warning and advice, it would be very clear to [them] that their obligation to provide discovery was a serious obligation and not to be trifled with”. In the face of an Unless Order, the effect of which had been explained to them, it is surprising that the plaintiffs ran such an argument.

[75] Notably, when SCB applied to strike out the plaintiffs’ claim in Suit 212 following the disclosure by DBS of the DBS documents, LCR continued to perpetuate the lie in his affidavit opposing the application that the plaintiffs were of the view that they only invested in fixed deposits in DBS and that they thought that Surf Deposits were fixed deposits. This argument did not impress the Assistant Registrar, who struck out Suit 212. As mentioned, neither Tay J, who dismissed the appeal against the Assistant Registrar’s decision, nor the Court of Appeal, which affirmed Tay J’s decision, were sympathetic to the plaintiffs’ case against the striking out of Suit 212 by the Assistant Registrar.

[76] Suit 212 was struck out because of the plaintiffs’ failure to produce the DBS documents. Whether or not Mr Loo had, as alleged by the plaintiffs, given them the impression that they could choose what documents to furnish to the other party, there was no doubt that the plaintiffs knew that such a choice did not extend to the DBS documents because SCB’s Ms Lau had arranged for them to buy structured products from DBS on many occasions when she was their former relationship manager at that bank.

[77] Contrary to what the plaintiffs asserted, Mr Loo’s inadequate or wrong advice had nothing to do with the non-disclosure of the DBS documents. The emails sent by Mr Loo to LCR regarding the discovery of the DBS documents were unequivocal as to what had to be disclosed to SCB. LCR claimed that he could only find a couple of the DBS documents in the plaintiffs’ possession. That may have been so but he conceded that he could have obtained the rest of the DBS documents from DBS. The same concession was made by HYC. Mr Loo did his part by writing to DBS for the DBS documents and he spoke to LCR’s DBS relationship manager to try and get the said documents. Had LCR instructed Ms Louise to do so in his telephone conversation with her on 3 or 4 December 2008, the plaintiffs’ claim in Suit 212 would not have been struck out. If he thought that entertaining his guest was more important than reading frantic emails from his lawyer or complying with an Unless Order, he must accept the consequences of his actions.

[78] I find that the evidence led by the plaintiffs on the effective cause of the striking out of Suit 212 was so unsatisfactory and unreliable that I was not persuaded that there was a prima facie case that the defendants had caused their loss of a chance of success in Suit 212. That being the case, this is yet another reason for dismissing their claim for damages for loss of a chance of succeeding in Suit 212.