Business Software Alliance v SM Summit: Discovery, Implied Undertaking & Defamation

The Court of Appeal of Singapore heard appeals by Business Software Alliance, Microsoft Corporation, Adobe Systems Incorporated, Autodesk Inc, Stuart Ong, Lee Cross and Ronald T Eckstrom (defendants) against SM Summit Holdings Ltd and Summit CD Manufacture Pte Ltd (plaintiffs) regarding discovery of documents in a libel action. The libel action arose from a press release following a raid on the plaintiffs' premises. The court held that an implied undertaking did not bar discovery of information obtained independently of the raid, but the initial discovery requests were too broad. The applications were remitted for reconsideration.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Appeals allowed in part; applications remitted for reconsideration of discovery requests.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding discovery of documents in a libel action. Court held implied undertaking doesn't bar discovery of independently obtained info.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
SM Summit Holdings LtdRespondent, PlaintiffCorporationApplications for striking out dismissedDismissed
Summit CD Manufacture Pte LtdRespondent, PlaintiffCorporationApplications for striking out dismissedDismissed
Microsoft CorporationDefendantCorporationAppeal allowed in partPartial
Autodesk IncDefendantCorporationAppeal allowed in partPartial
Business Software AllianceAppellant, DefendantAssociationAppeal allowed in partPartial
Stuart OngDefendantIndividualAppeal allowed in partPartial
Lee CrossDefendantIndividualAppeal allowed in partPartial
Adobe Systems IncorporatedDefendantCorporationAppeal allowed in partPartial
Ronald T EckstromDefendantIndividualAppeal allowed in partPartial

3. Judges

Judge NameTitleDelivered Judgment
Chao Hick TinJustice of AppealYes
L P TheanJustice of AppealNo

4. Counsels

Counsel NameOrganization
Engelin TehEngelin Teh & Partners
Manjit SinghManjit Samuel & Partners
Thomas SimEngelin Teh & Partners
Govin MenonManjit Samuel & Partners
Lionel TanRajah & Tann
V K RajahRajah & Tann
Simon CheongRajah & Tann
Tan Chee MengHarry Elias Partnership
Michael PalmerHarry Elias Partnership
Andy LemHarry Elias Partnership
Harry EliasHarry Elias Partnership
Valerie TanHarry Elias Partnership

4. Facts

  1. Defendants conducted a raid on plaintiffs' premises on 12 August 1997.
  2. The raid was carried out pursuant to search warrants obtained by the defendants.
  3. Defendants seized a large number of documents and other items during the raid.
  4. Defendants held a press conference on 13 August 1997 and published a press release.
  5. Plaintiffs claimed damages against the defendants for libel contained in the press release.
  6. Defendants sought discovery of documents from the plaintiffs to support their plea of justification.
  7. The plaintiffs applied to strike out the defendants’ applications for discovery.

5. Formal Citations

  1. Business Software Alliance and Others v SM Summit Holdings Ltd and another and other appeals, CA 176/1999, 177/1999, 178/1999, 179/1999, [2000] SGCA 23

6. Timeline

DateEvent
Defendants conducted a raid on plaintiffs' premises.
Defendants held a press conference and published a press release.
Chief Justice quashed the third search warrant.
Suit 1323/98, the libel action, was taken out by SM Summit Holdings Ltd.
Judge affirmed the assistant registrar's decision and dismissed all three appeals.
Defendants filed two applications for discovery of documents.
Plaintiffs filed two applications seeking to strike out the defendants' applications for discovery.
Assistant registrar allowed the defendants' applications for discovery and dismissed the plaintiffs' applications for striking out.
The Court of Appeal heard the three appeals.
Court of Appeal handed down its judgment.
Defendants filed applications to expunge portions of cause papers.
Applications for discovery and striking out were restored for hearing before the judge.
Applications to expunge various portions of the cause papers, affidavits, documents and submissions which had been filed in court were allowed.
Defendants' applications for a variation of the Chief Justice's order and for a release or variation of the implied undertaking were heard before the Chief Justice.
Defendants' appeals were dismissed by this court.
Decision Date

7. Legal Issues

  1. Discovery of Documents
    • Outcome: The court held that the defendants were entitled to apply for discovery of documents based on information acquired independently of the Summit raid, but the initial requests were too broad.
    • Category: Procedural
    • Sub-Issues:
      • Scope of order for discovery
      • Test of relevancy
    • Related Cases:
      • [1982] AC 529
      • [1985] 1 Ch 299
      • [1882-83] 11 QBD 55
      • [1995] 3 All ER 616
  2. Implied Undertaking
    • Outcome: The court held that the implied undertaking did not bar discovery of information obtained independently of the Summit raid.
    • Category: Procedural
    • Sub-Issues:
      • Scope of implied undertaking
    • Related Cases:
      • [1999] 4 SLR 529
  3. Striking Out
    • Outcome: The court held that the applications for striking out were unnecessary and misconceived.
    • Category: Procedural
    • Related Cases:
      • [1889] 14 App Cas 665

8. Remedies Sought

  1. Damages

9. Cause of Actions

  • Defamation

10. Practice Areas

  • Commercial Litigation

11. Industries

  • Software

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
SM Summit Holdings Ltd & Anor v PPHigh CourtYes[1997] 3 SLR 922SingaporeCited regarding the quashing of the third search warrant and the order for the return of seized documents.
Microsoft Corp & Ors v SM Summit Holdings Ltd & Anor and other appealsCourt of AppealYes[1999] 4 SLR 529SingaporeCited for establishing the implied undertaking regarding the use of documents obtained during the raid and the scope of the Chief Justice's order.
Sony Corp v Time ElectronicsN/AYes[1981] 3 All ER 376N/ACited to support the argument that the implied undertaking should not affect the defendants' rights to discovery based on independently obtained information.
Microsoft Corp & Ors v SM Summit Holdings Ltd & AnorHigh CourtYes[2000] 1 SLR 343SingaporeCited regarding the Chief Justice's clarification that his order does not prohibit alluding to the existence of information and items observed during the raid.
Microsoft Corp & Ors v SM Summit Holdings Ltd & AnorCourt of AppealYes[2000] 2 SLR 137SingaporeCited to show that there was no appeal against such an order of the High Court and this court had no jurisdiction to hear the appeals
Reichel v MagrathN/AYes[1889] 14 App Cas 665N/ACited for the proposition that where an issue has been fully litigated in a case, whether civil or criminal, it is an abuse of process to attempt to reopen it in subsequent litigation.
Hunter v Chief Constable of the West Midlands PoliceN/AYes[1982] AC 529N/ACited for the proposition that where an issue has been fully litigated in a case, whether civil or criminal, it is an abuse of process to attempt to reopen it in subsequent litigation.
Wright Norman & Anor v Oversea-Chinese Banking Corp Ltd & AnorCourt of AppealYes[1992] 2 SLR 710SingaporeCited to show that to allow Wright discovery of the documents sought in the 1988 action would circumvent the order of court made by Chao Hick Tin JC in the 1987 action, and that was not permissible.
Summit Holdings Ltd & Anor v Business Software AllianceHigh CourtYes[1999] 3 SLR 197SingaporeCited regarding the purpose of the Chief Justice's order to remedy the improper seizure of documents.
Sybron Corp & Anor v Barclays Bank plcN/AYes[1985] 1 Ch 299N/ACited to support the argument that the implied undertaking applies to information derived from discovered documents, not just the documents themselves.
Taylor & Anor v Director of the Serious Fraud OfficeN/AYes[1998] 4 All ER 801N/ACited to illustrate the fact that the implied undertaking affects the defendants' right to use the documents (and copies) and information, which they had obtained in or as a result of the Summit raid for the purposes of the present proceedings.
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano CoN/AYes[1882-83] 11 QBD 55N/ACited for the test of relevancy in discovery, stating that documents are relevant if they may directly or indirectly enable a party to advance their case or damage the case of their adversary.
McDonald`s Corp & Anor v Steel & AnorCourt of AppealYes[1995] 3 All ER 616United KingdomCited regarding the requirements for pleading justification in a libel action.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
No applicable statutes

15. Key Terms and Keywords

15.1 Key Terms

  • Discovery
  • Implied Undertaking
  • Summit Raid
  • Justification
  • Search Warrant
  • Libel
  • Relevancy
  • Striking Out

15.2 Keywords

  • Discovery
  • Implied Undertaking
  • Defamation
  • Singapore
  • Civil Procedure

17. Areas of Law

Area NameRelevance Score
Libel, Slander and Defamation80
Civil Practice75
Copyrights65
Evidence60
Cannabis Law30

16. Subjects

  • Civil Procedure
  • Defamation
  • Discovery