Skandinaviska Enskilda Banken v Asia Pacific Breweries: Legal Advice & Litigation Privilege in Fraud Investigation
In Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd, the High Court of Singapore addressed applications for discovery of documents related to a fraud perpetrated by an APBS employee. Several banks, including Skandinaviska Enskilda Banken AB, Mizuho Corporate Bank Ltd, Bayerische Hypo- und Vereinsbank AG, and Sumitomo Mitsui Banking Corporation Singapore Branch, sued APBS for breach of contract and negligence, seeking disclosure of a report commissioned by APBS's directors. The court, led by Justice Belinda Ang Saw Ean, upheld APBS's claim of legal professional privilege over the report, preventing its disclosure to the banks.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Appeal Allowed
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
APBS successfully claimed legal privilege over reports commissioned after a fraud, preventing disclosure to defrauded banks in their action against APBS.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Skandinaviska Enskilda Banken AB (Publ), Singapore Branch | Plaintiff, Appellant | Corporation | Appeal Dismissed | Lost | Rebecca Chew |
| Asia Pacific Breweries (Singapore) Pte Ltd | Defendant, Respondent | Corporation | Appeal Allowed | Won | Hri Kumar, Shivani Retnam, Yarni Loi, Kabir Singh |
| Mizuho Corporate Bank Ltd | Plaintiff, Appellant | Corporation | Appeal Dismissed | Lost | Lionel Tay, Paul Ng |
| Bayerische Hypo- und Vereinsbank AG | Plaintiff, Appellant | Corporation | Appeal Dismissed | Lost | Monica Chong, Sannie Sng, Tan Hsiang Yue |
| Sumitomo Mitsui Banking Corporation Singapore Branch | Plaintiff, Appellant | Corporation | Appeal Dismissed | Lost | Siraj Omar, See Hui Hui |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Belinda Ang Saw Ean | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Rebecca Chew | Rajah & Tann |
| Lynette Koh | Rajah & Tann |
| Lionel Tay | Rajah & Tann |
| Paul Ng | Rajah & Tann |
| Monica Chong | Wong Partnership |
| Sannie Sng | Wong Partnership |
| Tan Hsiang Yue | Wong Partnership |
| Siraj Omar | Tan Kok Quan Partnership |
| See Hui Hui | Tan Kok Quan Partnership |
| Hri Kumar | Drew & Napier LLC |
| Shivani Retnam | Drew & Napier LLC |
| Yarni Loi | Drew & Napier LLC |
| Kabir Singh | Drew & Napier LLC |
4. Facts
- Chia, APBS's former finance manager, defrauded banks of US$83m and S$18m.
- APBS appointed PWC and D&N to investigate the fraud.
- PWC prepared draft reports (PWC Draft Reports) on the investigation.
- The banks sued APBS for breach of contract and negligence.
- The banks sought disclosure of the PWC Draft Reports.
- APBS claimed legal professional privilege over the PWC Draft Reports.
5. Formal Citations
- Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and Others and Other Suits, Suit 763/2004, 774/2004, 775/2004, 781/2004, RA 296/2005, 298/2005, 300/2005, 302/2005, [2006] SGHC 91
6. Timeline
| Date | Event |
|---|---|
| CAD informed APBL of Chia's fraudulent activities. | |
| Chia was arrested. | |
| APBS wrote to banks for verification of accounts. | |
| Hypo informed APBS of a term loan. | |
| Sumitomo terminated credit facility to APBS. | |
| APBS learned that Chia had been charged. | |
| Special Committee of directors appointed. | |
| D&N and PWC appointed to investigate. | |
| APBL announced completion of review by PWC. | |
| APBL announced legal defenses available to APBS. | |
| APBS filed list of documents. | |
| APBS ordered to produce PWC Draft Reports. | |
| Judgment Date |
7. Legal Issues
- Legal Advice Privilege
- Outcome: The court held that legal advice privilege applied to the PWC Draft Reports.
- Category: Substantive
- Sub-Issues:
- Confidentiality of communications
- Purpose of communication
- Role of third parties
- Litigation Privilege
- Outcome: The court held that litigation privilege also applied to the PWC Draft Reports.
- Category: Substantive
- Sub-Issues:
- Anticipation of litigation
- Dominant purpose of document creation
- Disclosure of Documents
- Outcome: The court ruled against the disclosure of the PWC Draft Reports.
- Category: Procedural
8. Remedies Sought
- Monetary Damages
- Disclosure of Documents
9. Cause of Actions
- Breach of Contract
- Negligence
- Restitution
10. Practice Areas
- Commercial Litigation
- Banking Law
- Fraud Investigation
11. Industries
- Banking
- Brewing
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Waugh v British Railways Board | N/A | No | [1980] AC 521 | England and Wales | Cited regarding internal reports prepared for railway operation and safety purposes, and whether they are subject to legal privilege. |
| Price Waterhouse v BCCI Holdings (Luxembourg) SA | N/A | No | [1992] BCLC 583 | Luxembourg | Cited regarding the purpose of reports prepared by accountants and whether they are protected by legal advice privilege. |
| Balabel v Air India | Court of Appeal | Yes | [1988] Ch 317 | England and Wales | Cited for the test to determine whether a communication is protected by legal advice privilege, focusing on the relevant legal context. |
| Three Rivers District Council v Governor and Company of the Bank of England (No 5) | Court of Appeal | No | Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] QB 1556 | England and Wales | Cited regarding the scope of legal advice privilege and whether it extends to documents prepared by employees of a bank for an inquiry. |
| Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow | N/A | Yes | [1995] 1 All ER 976 | England and Wales | Cited regarding solicitor-client communications disclosed to a third party in confidence and whether legal advice privilege still attaches. |
| Wheeler v Le Marchant | N/A | Yes | (1881) 17 Ch D 675 | England and Wales | Cited for the rationale of legal advice privilege, which is to enable legal advice to be freely sought and given in confidence. |
| Kennedy v Lyell | N/A | Yes | (1883) 23 Ch D 387 | England and Wales | Cited regarding the protection afforded to confidential communications gathered by lawyers from interviews with employees. |
| Re Sarah Getty Trust | N/A | Yes | [1985] QB 956 | England and Wales | Cited regarding whether part of privileged solicitor-client communications can be separated out and taken outside the ambit of the privilege. |
| Brink’s Inc v Singapore Airlines Ltd | Court of Appeal | Yes | [1998] 2 SLR 657 | Singapore | Cited regarding the adoption and following of Waugh v British Railways Board in Singapore. |
| The Patraikos 2 | N/A | Yes | [2001] 4 SLR 308 | Singapore | Cited regarding litigation privilege being based on common law principles. |
| Re Highgrade Traders Ltd | N/A | Yes | [1984] BCLC 151 | England and Wales | Cited regarding the definition of when litigation is anticipated or in contemplation. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Evidence Act (Cap 97, 1997 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Legal Advice Privilege
- Litigation Privilege
- PWC Draft Reports
- Special Committee
- Confidential Communication
- Dominant Purpose
- Fraud Investigation
15.2 Keywords
- legal privilege
- fraud
- disclosure
- banking
- APBS
- PWC
- investigation
16. Subjects
- Civil Procedure
- Evidence
- Banking
- Fraud
17. Areas of Law
- Civil Procedure
- Evidence Law
- Legal Professional Privilege
- Litigation Privilege