Ser Kim Koi v Fulton William Merrell: Discovery of Documents & Litigation Privilege

In Ser Kim Koi and Ser Song Cheh v Fulton William Merrell, Anurag Mathur, Stephen King Chang-Min, Thio Shen Yi, and Metalform Asia Pte Ltd, the Singapore High Court addressed issues related to the discovery of documents. The plaintiffs, directors of Metalform Asia Pte Ltd, sought inspection of documents listed by the first and fifth defendants. The defendants applied to amend their lists, claiming privilege or irrelevance. Prakash J. allowed amendments for privileged documents but required further review for irrelevant ones, ordering item 442 to be disclosed and upholding privilege for 16 other documents. The court's decision hinged on whether the documents were created for litigation purposes or general operational needs.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

The court allowed the defendants to amend their supplementary lists of documents to delete certain privileged documents. The court ordered item 442 to be disclosed.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

High Court case regarding discovery of documents. The court considered whether parties could amend lists to delete items and whether documents were protected by litigation privilege.

1.7 Decision Date

12 February 2008

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Ser Kim Koi	Plaintiff	Individual	Appeal dismissed in part	Partial	Ajinderpal Singh of Rodyk & Davidson LLP Philip Jeyaretnam of Rodyk & Davidson LLP Jay Lee of Rodyk & Davidson LLP
Metalform Asia Pte Ltd	Defendant	Corporation	Appeal allowed in part	Partial	Yeo Boon Tat of Tan Rajah & Cheah Moiz Sithawalla of Tan Rajah & Cheah
Ser Song Cheh	Plaintiff	Individual	Appeal dismissed in part	Partial	Ajinderpal Singh of Rodyk & Davidson LLP Philip Jeyaretnam of Rodyk & Davidson LLP Jay Lee of Rodyk & Davidson LLP
Anurag Mathur	Defendant	Individual	Unknown	Neutral	Chua Sui Tong of WongPartnership LLP Janice Goh of WongPartnership LLP
Stephen King Chang-Min	Defendant	Individual	Unknown	Neutral	Chua Sui Tong of WongPartnership LLP Janice Goh of WongPartnership LLP
Thio Shen Yi	Defendant	Individual	Unknown	Neutral	Chua Sui Tong of WongPartnership LLP Janice Goh of WongPartnership LLP
Fulton William Merrell	Defendant	Individual	Appeal allowed in part	Partial	Khoo Boo Jin of Wee Swee Teow & Co Tan Hsuan Boon of Wee Swee Teow & Co

3. Judges

Judge Name	Title	Delivered Judgment
Judith Prakash	Judge	Yes

4. Counsels

Counsel Name	Organization
Ajinderpal Singh	Rodyk & Davidson LLP
Philip Jeyaretnam	Rodyk & Davidson LLP
Jay Lee	Rodyk & Davidson LLP
Yeo Boon Tat	Tan Rajah & Cheah
Moiz Sithawalla	Tan Rajah & Cheah
Chua Sui Tong	WongPartnership LLP
Janice Goh	WongPartnership LLP
Khoo Boo Jin	Wee Swee Teow & Co
Tan Hsuan Boon	Wee Swee Teow & Co

4. Facts

The plaintiffs, directors of Metalform Asia Pte Ltd, sought inspection of documents listed by the first and fifth defendants.
The first defendant, CEO of the fifth defendant, refused to provide copies of documents, claiming they were inadvertently included and not discoverable.
The defendants applied to amend their supplementary lists by deleting documents they considered privileged or irrelevant.
The Assistant Registrar allowed some amendments, leading to appeals by both plaintiffs and defendants.
The court had to determine whether the documents should be produced for inspection based on their relevance and privilege.

5. Formal Citations

Ser Kim Koi and Another v Fulton William Merrell and Others, Suit 427/2006, RA 306/2007, 319/2007, 320/2007, 321/2007, 322/2007, 323/2007, 324/2007, [2008] SGHC 23

6. Timeline

Date	Event
2006-01-18	Plaintiffs sent an e-mail to other directors stating the fifth defendant is insolvent.
2006-01-19	First defendant sent an e-mail to the directors of the fifth defendant.
2006-01-19	Second plaintiff replied to the first defendant's e-mail.
2006-01-19	Second defendant sent an e-mail to the other directors of the fifth defendant.
2006-03-03	Email sent from the fifth defendant's Chief Financial Officer Rainer Gumpert to the second defendant's solicitor.
2006-07-07	Plaintiffs' Statement of Claim filed.
2007-08-08	First defendant and fifth defendant filed supplementary lists of documents.
2007-08-28	Plaintiffs filed an application to compel inspection and production of documents.
2007-10-15	Assistant Registrar allowed the defendants’ application to amend their supplementary lists by deleting certain documents.
2007-10-11	Second defendant's affidavit.
2007-11-01	Hearing before Judith Prakash J.
2008-02-13	Decision Date

7. Legal Issues

Discovery of Documents
- Outcome: The court held that it has the power to allow the amendment of a list of documents under O 20 r 8(1) and that that power is usually exercised when the applicant has by mistake entered privileged documents in part 1 of Schedule 1 of the list when such documents should have been disclosed in part 2 of Schedule 1.
- Category: Procedural
- Sub-Issues:
  - Amendment of list of documents
  - Inspection of documents
  - Production of documents
Litigation Privilege
- Outcome: The court determined that certain documents were privileged as they were created for the dominant purpose of collating evidence to support a claim for breach of warranty.
- Category: Substantive
- Sub-Issues:
  - Documents created in contemplation of litigation
  - Dominant purpose of document creation

8. Remedies Sought

Order to compel inspection and production of documents
Leave to amend supplementary lists of documents

9. Cause of Actions

Dispute over discovery of documents

10. Practice Areas

Commercial Litigation

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Guinness Peat Properties Ltd v Fitzroy Robinson Partnership	English Court of Appeal	Yes	[1987] 1 W.L.R. 1027	England and Wales	Cited as the main authority on what can be done when a document has been disclosed by mistake, specifically regarding privileged documents.
C.H. Beazer (Commercial & Industrial) Ltd. v R.M. Smith Ltd	High Court	Yes	[1984] 1 Const LJ 196	England and Wales	Cited for the principle that a party may amend their list of documents to exclude certain documents, particularly privileged ones, due to a genuine mistake.
Re Briamore Manufacturing Ltd (In Liquidation)	High Court	Yes	[1986] 1 W.L.R. 1429	England and Wales	Cited for the proposition that until inspection has taken place, there must be a right to correct the list, even if only by notifying the other side that there are documents which the litigant objects to produce.
Balabel v Air India	Unknown	Yes	[1988] Ch 317	England and Wales	Cited for the test to determine whether legal professional privilege extends to communications between solicitor and client.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Order 20 r 8(1) Rules of Court	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Discovery of documents
Litigation privilege
Amendment of list of documents
Inspection of documents
Relevance
Privileged documents

15.2 Keywords

Discovery
Privilege
Documents
Singapore
Civil Procedure

17. Areas of Law

Area Name	Relevance Score
Litigation Privilege	90
Discovery of documents	85
Civil Practice	75
Evidence	60
Company Law	40
Arbitration	30

16. Subjects

Civil Procedure
Discovery
Privilege