Tan Chi Min v The Royal Bank of Scotland Plc

Lee Seiu Kin J :

[1] This case raises interesting questions regarding the principle of open justice in the context of public access to documents filed in civil proceedings.

[2] On 27 December 2011, Mr Tan Chi Min (“the Plaintiff”) commenced an action (“S939/2011”) against his former employer, The Royal Bank of Scotland Plc (“the Defendant”), claiming, inter alia, wrongful dismissal and breach of his employment contract with the Defendant. According to the Plaintiff, he was wrongfully dismissed by the Defendant as he claimed he was made a “scapegoat” following the infamous scandal regarding the alleged manipulation of the London Interbank Offered Rate (“LIBOR”), in which the Defendant as one of the contributory banks under the British Bankers’ Association (“the BBA”) was implicated. Prior to his dismissal, the Plaintiff was an employee of the Defendant tasked with submitting the Defendant’s interbank interest rates to the BBA.

[3] On 22 September 2012, the Defendant filed Summons No 4812 of 2012 (“SUM4812/2012”) seeking an order for the case file in S939/2011 or, alternatively, all affidavits and/or exhibits thereto to be sealed from media or public inspection “until the earlier of (i) the resolution of the [sic] one or more of the regulatory investigations into the Defendant being conducted by the US Commodity Futures Trading Commission, the US Department of Justice (Fraud Division), the [Financial Services Authority]; or (ii) the date falling three months from [22 September 2012] (at which point the Defendant may make a further application for a similar order).”

[4] Counsel for the parties appeared before me in chambers for the hearing of SUM4812/2012 on 24 September 2012 and 24 October 2012. At the end of the hearing on 24 October 2012, I ordered that all affidavits filed in S939/2011 since 7 September 2012 be sealed from public inspection pending trial, with leave given to the Plaintiff to write in for further arguments in the event that there were additional authorities which the Plaintiff wished to raise. On 21 November 2012, the Plaintiff’s solicitors presented further arguments in writing to which the Defendant replied on 19 December 2012. The Plaintiff’s solicitors wrote in again on 25 February 2013 to inform the court that, inter alia, the investigations into the LIBOR scandal by the United States and United Kingdom regulatory authorities had concluded and, accordingly, the purpose of the application in SUM4812/2012 was spent. In a letter dated 27 February 2013, the Defendant’s solicitors informed the court that they wished to appear before me to respond substantively to the Plaintiff’s solicitors’ letter dated 25 February 2013.

[5] On 1 April 2013, counsel for both sides attended before me for a further mention on SUM4812/2012, at the end of which it was established that the grounds for the original sealing order had no longer existed. Accordingly, I indicated to parties that I was inclined to discharge the sealing order, but that would be done along with a written judgment addressing the law on access to court documents by members of the public. I now issue my written judgment together with my order discharging the sealing order.

[6] In the course of submissions in support of the sealing order under SUM4812/2012, counsel for the Defendant argued that although the public has a general right to access documents in the court files under a principle commonly referred to as the “principle of open justice” (see Scott v Scott [1913] AC 417 (“Scott v Scott”)), such right of access is never unfettered or unconditional. It was also submitted that given the early stages of the proceedings in S939/2011, it was unnecessary for the maintenance of the principle of open justice for the public to have access to affidavits which have been filed with the court registry for the purposes of interlocutory proceedings in S939/2011. In essence, the Defendant was concerned that granting the public (and in particular the media) access to court documents in the present case would, inter alia, undermine the integrity of the investigations which were then still ongoing in the United States over the LIBOR scandal. The Defendant at the same time also voiced its concern that S939/2011 was in danger of being used as an avenue for the press to access information or documents about the said investigations (to which the press would not otherwise have access whilst the investigations were still ongoing), given that the press appeared to be more interested in the allegations made by the Plaintiff with regard to the alleged LIBOR manipulation rather than in the Plaintiff’s claim for wrongful dismissal. Additionally, the Defendant took the view that it would be manifestly unjust to other individuals under the Defendant’s employment, who were not party to S939/2011 but who might be concerned in the alleged LIBOR manipulation, for the press to have access to the case file in S939/2011 and to infer wrongdoings on their part while the investigations were still ongoing when in truth they might not even be culpable at all.

[7] Against this backdrop, the key question that arose was: under what circumstances should court documents such as affidavits filed pursuant to interlocutory applications be made available for public access and inspection, given the concerns raised by the Defendant in the present case?

[8] The provision governing public access to court documents filed in the registry is O 60 r 4 read with O 60 r 2 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules of Court”):

[9] The foremost consideration in determining whether leave under O 60 r 4(2) of the Rules of Court should be granted upon a request being made is what is commonly termed as the “principle of open justice”, the roots of which can be traced to the House of Lords decision in Scott v Scott. In Dian AO v Davis Frankel & Mead (a firm) and another (OOO Alfa-Eco and another intervening) [2005] 1 WLR 2951 (“Dian AO”), Moore-Bick J referred to Scott v Scott and explained the principle of open justice in detail as follows (at [28]-[29]):

[10] In the same case, Moore-Bick J further explained that the principle of open justice should similarly apply to affidavits which were used for chamber hearings (at [50]):

[11] This was consistent with the position that chamber hearings are not confidential and that information pertaining to what had occurred in chamber hearings could be made available to the public, save where there are exceptional circumstances. In Hodgson and Others v Imperial Tobacco Ltd and Others [1998] 1 WLR 1056 (“Hodgson v Imperial Tobacco Ltd”), the English Court of Appeal held (at 1072):

[12] For completeness, I should add that in our local context, although para 13A of the Supreme Court Practice Directions provides that hearings in chambers in civil proceedings are “private in nature, and that members of the public are not entitled to attend such hearings”, it does not go further to state that chamber hearings in civil proceedings are confidential or secret. Paragraph 13A of the Supreme Court Practice Directions reads as follows:

[13] It should, however, be noted that there were occasions when the principle of open justice was held as not having been engaged at all. In Dian AO, for example, the court declined to grant permission for the inspection of affidavits and statements relating to an application for summary judgment which was disposed of without a hearing. Moore-Bick J held (at [47], [51] and [57]):

[14] In sum, the principle of open justice requires that decisions by judges (and Registrars) in court proceedings be amenable to scrutiny by members of the public through inspection of documents filed in court that were considered in the decision-making process. This serves to promote public confidence in the administration of justice. However, it does not mean that all court documents are open to inspection by members of the public the moment they are filed in court, for the principle of open justice is engaged only when a court has made a decision involving a consideration of those documents.

[15] With these in mind, I now set out guidelines pertaining to requests under O 60 r 4(2) of the Rules of Court with specific mention of some of the more common court documents involved in such requests.

[16] Court documents under this category may be divided into two broad classes: interlocutory summonses and the affidavits filed either in support of or in opposition to the interlocutory summonses (hereafter referred to as “interlocutory affidavits”).

[17] Public access to interlocutory summonses may generally be granted upon a proper request being made pursuant to O 60 r 4(2) of the Rules of Court, regardless of whether the hearing of the interlocutory summonses have been heard or concluded. It is necessary in the interest of the public and for the purposes of promoting public confidence in the administration of justice for interested members of the public to be able to follow the extent to which the progress of an action commenced at the courts have been or may be affected by any interlocutory legal skirmishes between the litigating parties pending trial or full determination of the action.

[18] With regard to affidavits filed in connection with interlocutory applications, the principle of open justice as elucidated in [8]–[14] above would apply such that access under O 60 r 4(2) of the Rules of Court should generally only be granted when the underlying interlocutory application has been fully heard and/or determined. Accordingly, the registrar is entitled to refuse leave for any request seeking access to interlocutory affidavits if the request was made prematurely (ie, before the interlocutory application in which the interlocutory affidavits are being relied upon have been fully heard and/or determined by the court). A member of the public may not expect to have his or her request pursuant to O 60 r 4(2) of the Rules of Court granted if the principle of open justice has not been engaged (see [13] above).

[19] As far as open court civil proceedings are concerned, the two most common categories of court documents which are filed and/or used in court are the originating processes (including the pleadings) and the affidavits of evidence-in-chief (“AEICs”). In this regard, a legal provision that gives statutory expression of the principle of open justice in respect of hearings conducted in open court is s 8(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) which provides as follows:

[20] Originating processes and pleadings in open court civil proceedings constitute the official record of the matters to be litigated before and decided by the court (cf Jeffrey Pinsler SC, Principles of Civil Procedure (Academy Publishing, 2013) at para 15.001). As a matter of both principle and practice, these papers are often also the very first documents that would come to the court’s attention in civil litigation. In line with s 8 of the SCJA (see [18] above), and provided that there are no sealing orders in place, it may therefore be said that it is necessary in the public interest for these fundamental documents to be made available for inspection under O 60 r 4(2) of the Rules of Court regardless of whether the substantive hearing of any legal action commenced by such documents has begun. This is so that any interested members of the public (or the media) may properly apprise themselves in advance of the issues that litigating parties intend to put before the court for adjudication, and not be made to wait until the start of the substantive hearing before they could do so. On this basis, public inspection of originating processes and pleadings would be allowed the moment they are filed at the registry.

[21] AEICs form a unique category of court documents used in civil trials. The use of AEICs in civil trials is a relatively modern practice designed to expedite court proceedings by avoiding oral examination-in-chief of witnesses. This results in more than just the time for examination-in-chief, but with early notice of such evidence, the time required for cross-examination may be reduced. For this reason, AEICs are filed and exchanged in advance of a civil trial. However it is not until the commencement of trial proceedings that AEICs are admitted into evidence. It is a common practice in our trials to dispense with the reading out of AEICs to further save time. However this means that people in the public gallery, and court reporters, would not have access to the evidence-in-chief given in the trial. In Sharon Rodrick, “Open Justice, the Media and Avenues of Access to Documents on the Court Record” (2006) 29(3) University of New South Wales Law Journal 90 at 90, the learned author explained this concern as follows:

[22] Hence, to maintain the principle of open justice, it is important that the public, and particularly the media, have access to AEICs admitted in a trial. I am therefore of the opinion that requests by members of the public (including the media) made pursuant to O 60 r 4(2) of the Rules of Court in respect of AEICs in civil trials conducted in open court should generally be allowed from the time the AEICs in question have been admitted as evidence in a trial.

[23] However the principle of open justice does not require access to AEICs prior to their being admitted in court. As elaborated above, the principle of open justice is engaged only when such AEICs are admitted in evidence and therefore before a court whose proceedings are amenable to public scrutiny. This would address the Defendant’s concern that it would be manifestly unjust to other individuals under the Defendant’s employment who were not party to S939/2011 but who might be concerned in the alleged LIBOR manipulation, for the press to have access to the case file in S939/2011 and to infer wrongdoings on their part while the investigations were still ongoing when in truth they may not even be culpable at all (see [6] above).

[24] There is another consideration bearing on this point. Statements made in the course of judicial proceedings are absolutely privileged. In Hong Lam Marine Pte Ltd and Another v Koh Chye Heng [1998] SGHC 65, the court accepted the following statement from Philip Lewis, Gatley on Libel and Slander (Sweet & Maxwell, 8th Ed, 1981) (at [21]):

[25] This privilege was granted for the purpose of enabling the court to determine the truth in order to dispense justice. To the extent that it may contain statements that are defamatory of any person, it was a necessity for justice to be done. However this privilege has not been extended beyond the realm of court proceedings and there is no reason to do so. For a variety of reasons, an AEIC may not see the light of day in a trial. The party may decide, after filing the AEIC, not to call that witness. Or the parties may settle the suit before trial. The law does not protect publication of defamatory statements in an AEIC unless they are made in the course of judicial proceedings, which would only be the case after the AEIC is admitted as evidence in a trial. But once this is done, the publication of an AEIC would constitute a report of a judicial proceeding and come within the protection of s 11 of the Defamation Act (Cap 75, 1985 Rev Ed), which provides as follows:

As the AEIC, after it is admitted in a trial, contains the evidence given by the witness in court, a report thereon falls within the words emphasised.

[26] The same considerations apply to an affidavit filed in support of interlocutory applications. Access may only be granted after the affidavit has been admitted in the hearing of the application. However pleadings and interlocutory applications, once filed, are part of court proceedings so that any statements therein would be made in the course of judicial proceedings.

[27] There is one further point. Under s 79 of the SCJA, immunity from civil liability is conferred on the Registrar, Deputy Registrar, Assistant Registrars (hereafter collectively referred to as “registrars”) and officers of the Supreme Court under certain specific circumstances. Section 79 of the SCJA provides as follows:

[28] In relation to the registrars’ powers in respect of requests seeking case file inspection and/or the taking of copies of court documents, O 60 r 4(2) of the Rules of Court provides as follows:

[29] The first question is therefore whether immunity under s 79(1) of the SCJA applies when a registrar exercises his or her power under O 60 r 4(2) of the Rules of Court. I have no difficulty in answering that in the affirmative. As can be seen from the wordings of s 79(1) of the SCJA, immunity applies when the registrar does any act “in the discharge of his judicial duty”. That O 60 r 4(2) of the Rules of Court requires that “leave” of a registrar must be obtained before a person may be allowed to inspect and take copies of court documents filed at the registry indicates that the process being invoked by a request made pursuant to O 60 r 4(2) of the Rules of Court is a judicial as opposed to an administrative one.

[30] Indeed, this conclusion is supported by an English case authority where the registrar’s powers under the Rules of the Supreme Court (“RSC”) Ord 63 r 4 (ie, a close English equivalent of our O 60 r 4 of the Rules of Court) was held to be of a judicial nature and not merely an administrative one. In Dobson and another v Hastings and others [1992] 1 Ch 394 (“Dobson”), a journalist, intending to write an article about a proceeding before the court, went to the court offices to inspect the originating summons in that proceeding. She was informed that she would need leave from the registrar to inspect the court file. After filling out a form, a court clerk handed the journalist several folders containing court documents and instructed her to take them to the registrar, but she was not told she could not look inside them. While she was waiting to see the registrar (who eventually refused leave for inspection of the court file), she read an official receiver’s report, which was among the papers, and openly made notes from it. Two news articles were later published which contained information obtained from the court file. A motion for committal proceeding was commenced against, inter alia, the journalist. Although the motion was ultimately dismissed, Sir Donald Nicholls VC observed that pursuant to RSC Ord 63 r 4, inspection of court files was permissible only with leave of court, and that anyone who inspected the documents in the custody of the court without such leave when he knew he needed leave for that purpose would have committed contempt of court (see Dobson at 394, 401). More pertinently, the court did not accept the journalist’s evidence that she understood that the entire process of seeking leave from the registrar was an “administrative procedure” and that the registrar was an “administrative official” (see Dobson at 407). RSC Ord 63 r 4 was cited in Dobson at 399–400 which is reproduced as follows:

[31] In summary, the registrar’s power under O 60 r 4(2) of the Rules of Court is of a judicial nature. Accordingly, s 79(1) of the SCJA would apply to confer immunity on any registrar granting or refusing “leave” for case file inspection and/or the taking of copies of court documents as that amounts to an act done “in the discharge of his judicial duty”.

[32] It would therefore follow that any officer at the registry who executes a registrar’s order granting leave for access to court documents under O 60 r 4(2) of the Rules of Court would similarly be immune from civil liability under s 79(2) of the SCJA, as the officer executing the order would qualify as an “officer of the Supreme Court charged with the duty of executing any writ, summons, warrant, order, notice or other mandatory process of the court” [emphasis added] who “shall [not] be liable to be sued in any court exercising civil jurisdiction” (see [24] above).

[33] The sealing order made on 24 October 2012 is discharged herewith. However access to AEICs and other affidavits filed in court in this suit would be available to the public only after they have been admitted as evidence in the trial or interlocutory hearing.