Gelatissimo Ventures v Singapore Flyer: Striking Out Privileged Communication in Pre-Action Discovery

In Gelatissimo Ventures (S) Pte Ltd and Others v Singapore Flyer Pte Ltd, the High Court of Singapore heard an appeal by Singapore Flyer Pte Ltd against the decision to strike out certain passages from an affidavit referencing privileged communication between Gelatissimo Ventures (S) Pte Ltd and others and their solicitor in a pre-action discovery application. The court dismissed the defendant's appeal, affirming the decision to strike out the passages and upholding the legal privilege.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Appeal Dismissed

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding striking out privileged communication in pre-action discovery. The court dismissed the appeal, upholding legal privilege.

1.7 Decision Date

20 October 2009

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Gelatissimo Ventures (S) Pte Ltd	Plaintiff	Corporation	Appeal upheld	Won	Navinder Singh, Peter Doraisamy
Sunglass Hut Southeast Asia Pte Ltd	Plaintiff	Corporation	Appeal upheld	Won	Navinder Singh, Peter Doraisamy
Select Service Partner (S) Pte Ltd	Plaintiff	Corporation	Appeal upheld	Won	Navinder Singh, Peter Doraisamy
Red Dot Collections Pte Ltd	Plaintiff	Corporation	Appeal upheld	Won	Navinder Singh, Peter Doraisamy
Virtual Flight Asia Pte Ltd	Plaintiff	Corporation	Appeal upheld	Won	Navinder Singh, Peter Doraisamy
Singapore Flyer Pte Ltd	Defendant, Appellant	Corporation	Appeal Dismissed	Lost	Lionel Tan, Sheik Umar

3. Judges

Judge Name	Title	Delivered Judgment
Lai Siu Chiu	Judge	Yes

4. Counsels

Counsel Name	Organization
Navinder Singh	Navin & Co LLP
Peter Doraisamy	Navin & Co LLP
Lionel Tan	Rajah & Tann LLP
Sheik Umar	Rajah & Tann LLP

4. Facts

The plaintiffs are tenants at the retail terminal of the Singapore Flyer.
The plaintiffs entered into tenancy agreements with the defendant between September 2007 and February 2008.
The Singapore Flyer stopped revolving on 23 December 2008 due to a technical malfunction and reopened on 26 January 2009.
The plaintiffs filed an application for pre-action discovery against the defendant.
The defendant resisted the application, claiming the plaintiffs had sufficient information and a collateral purpose.
The defendant relied on an email thread between the plaintiffs and their solicitor, obtained from another tenant, to support its argument.
The plaintiffs claimed the email thread was privileged.

5. Formal Citations

Gelatissimo Ventures (S) Pte Ltd and Others v Singapore Flyer Pte Ltd, OS 291/2009, [2009] SGHC 235

6. Timeline

Date	Event
2007-09-01	Plaintiffs entered into tenancy agreements with the defendant.
2008-02-01	Plaintiffs entered into tenancy agreements with the defendant.
2008-12-23	The Flyer stopped revolving due to a technical malfunction.
2009-01-26	The Flyer reopened.
2009-03-04	Jawahar Ali withdrew from the legal action against the defendant.
2009-03-11	Yip Gim Hock filed an affidavit on behalf of the plaintiffs.
2009-04-21	Yeo Lay Wee filed an affidavit on behalf of the defendant.
2009-04-24	Navinder Singh filed an affidavit.
2009-10-21	Court dismissed the defendant’s appeal.

7. Legal Issues

Legal Professional Privilege
- Outcome: The court held that the email thread was protected by legal advice and litigation privilege and that the privilege had not been waived. The court also declined to apply the fraud exception.
- Category: Substantive
- Sub-Issues:
  - Waiver of privilege
  - Inadvertent disclosure of privileged documents
  - Fraud exception to privilege
Pre-Action Discovery
- Outcome: The court considered whether the plaintiffs' purpose in seeking pre-action discovery was an abuse of process but ultimately did not find sufficient evidence to support this claim.
- Category: Procedural
- Sub-Issues:
  - Abuse of process
  - Collateral purpose
Fraud Exception
- Outcome: The court declined to apply the fraud exception, finding that the defendant had failed to make out a prima facie case of fraud.
- Category: Substantive
- Sub-Issues:
  - Illegal purpose
  - Crime
  - Fraud

8. Remedies Sought

Pre-Action Discovery
Striking out of affidavit passages

9. Cause of Actions

Breach of Contract
Abuse of Process

10. Practice Areas

Commercial Litigation
Discovery
Appeals

11. Industries

Tourism
Retail

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Calcraft v Guest	Queen's Bench Division	Yes	[1898] 1 QB 759	England and Wales	Cited by the defendant to contend that privilege in a document is lost once it has been disclosed; however, the court did not agree with the principles cited in this case.
Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and Other Appeals	Court of Appeal	Yes	[2007] 2 SLR 367	Singapore	Cited for the definition of litigation privilege and the policy considerations behind legal advice privilege and litigation privilege.
Re Konigsberg (A Bankrupt)	N/A	Yes	[1989] 1 WLR 1257	N/A	Cited for the principle that privilege is owned jointly by the parties and can only be waived if all agree.
The Sagheera	N/A	Yes	[1997] 1 Lloyd’s Rep. 160	N/A	Cited for the principle that privilege is owned jointly by the parties and can only be waived if all agree.
Webster v James Chapman & Co (a firm)	N/A	Yes	[1989] 3 All ER 939	N/A	Cited by the defendant to support his argument that even if the information contained in the email thread was privileged, secondary evidence of that communication could be produced in evidence; however, the court did not agree with the principles cited in this case.
Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and Others	High Court	Yes	[2009] 1 SLR 42	Singapore	Cited as accurately representing the law relating to the inadvertent disclosure of privileged documents in Singapore.
Goddard And Another v Nationwide Building Society	N/A	Yes	[1987] QB 670	N/A	Cited for the principles laid down in the case.
Baker v Campbell	High Court of Australia	Yes	49 ALR 385	Australia	Cited as the Australian High Court refused to apply Calcraft.
R v Uljee	New Zealand Court of Appeal	Yes	[1982] 1 NZLR 561	New Zealand	Cited as the New Zealand Court of Appeal stated clearly that it did not regard Calcraft as standing for the proposition that secondary evidence of privileged documents was admissible.
Kuwait Airways Corporation v. Iraqi Airways Company	English Court of Appeal	Yes	[2005] 1 WLR 2734	England and Wales	Cited for confirming that the common law of litigation privilege had always been subject to the fraud exception.
In the Matter of ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd)	Federal Court of Australia	Yes	[2008] FCA 964	Australia	Cited as an Australian case that has always treated litigation privilege and legal advice privilege as part of the general category of legal professional privilege that is subject to the fraud exception.
Blank v. Canada (Minister of Justice)	Supreme Court of Canada	Yes	[2006] 2 S.C.R. 319	Canada	Cited as a Canadian case that has always treated litigation privilege and legal advice privilege as part of the general category of legal professional privilege that is subject to the fraud exception.
R v Cox and Railton	N/A	Yes	(1884) 14 QB 153	N/A	Cited for the principle that the fraud exception is applicable to criminal fraud.
Williams v Quebrada Railway, Land and Copper Company	N/A	Yes	(1895) 2 Ch 751	N/A	Cited for the principle that the fraud exception is applicable to civil fraud.
O’Rourke v Darbishire	N/A	Yes	[1920] AC 581	N/A	Cited for the principle that the fraud exception is applicable to civil fraud.
Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd	N/A	Yes	[1972] Ch 553	N/A	Cited for the principle that the exception covered all forms of dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances.
Gamlen Chemical Co. (U.K.) Ltd. v. Rochem Ltd And Others	N/A	Yes	[1983] RPC 1	N/A	Cited for emphasizing the exceptional nature of the exception.
Barclays Bank plc and Others v Eustice and Others	N/A	Yes	[1995] 1 WLR 1238	N/A	Cited for suggesting that the fraud exception was capable of covering iniquitous conduct falling short of dishonesty.
R v Derby Magistrates’ Court, Ex p B	N/A	Yes	[1996] 1 AC 487	N/A	Cited for reiterate the absolute nature of legal privilege.
Balabel v Air India	N/A	Yes	[1988] Ch 317	N/A	Cited for the principle that advice given to further a fraudulent or criminal purpose did not become privileged at all because it does not fall within the ordinary scope of professional employment.
Attorney-General (N.T.) v Kearney	Australian High Court	Yes	(1985) 158 CLR 500	Australia	Cited for the principle that the exceptions to legal privilege were not merely confined to crime or fraud, and could be extended to other situations where there was an attempt to frustrate the processes of the law.
Gartner v Carter	Federal Court of Australia	Yes	[2004] FCA 258	Australia	Cited for the idea of expanding the definition of fraud to include anything that amounts to a “fraud on justice”.
AWB Ltd v Cole (No 5)	Federal Court of Australia	Yes	[2006] FCA 1234	Australia	Cited for the idea of expanding the definition of fraud to include anything that amounts to a “fraud on justice”.
Smith v. Jones	N/A	Yes	169 D.L.R. (4th) 385	N/A	Cited for the principle that the question of legal privilege and its exceptions should be determined by weighing the competing public policy considerations in individual cases.
Stansfield Business International Pte Ltd and Another v VCS Vardan	Court of Appeal	Yes	[1998] 1 SLR 641	Singapore	Cited for the principle that an application for pre-action discovery that is made for other collateral and improper purposes amounts to an abuse of process.
Riddick v Thames Board Mills Ltd	N/A	Yes	[1977] 3 AER 677	N/A	Cited for the rule that prevented any documents obtained during discovery from being used other than in the trial itself.
Hong Lam Marine Pte Ltd and Another v Koh Chye Heng	Court of Appeal	Yes	[1998] 3 SLR 833	Singapore	Cited for the principle that an application for pre-action discovery that is made for other collateral and improper purposes amounts to an abuse of process.
Derby & Co Ltd v Weldon (No.7)	N/A	Yes	[1990] 1 WLR 1156	N/A	Cited for the principle that every case must be judged on its own facts.
Regina v Snaresbrook Crown Court, Ex parte Director of Public Prosecutions	N/A	Yes	[1988] QB 532	N/A	Cited for the principle that statements made by parties in a trial should rarely be regarded as part of a fraudulent purpose that justified the stripping of legal privilege.

13. Applicable Rules

Rule Name
Rules of Court (Cap 322, R 5, 2006 Rev Ed) Order 24 Rule 6(1)

14. Applicable Statutes

Statute Name	Jurisdiction
Evidence Act (Cap 97, 1997 Rev Ed)	Singapore
Evidence Act (Cap 97, 1997 Rev Ed) s 128	Singapore
Evidence Act (Cap 97, 1997 Rev Ed) s 131	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Legal professional privilege
Pre-action discovery
Fraud exception
Waiver of privilege
Inadvertent disclosure
Abuse of process
Collateral purpose
Confidentiality
Email thread

15.2 Keywords

Legal privilege
Pre-action discovery
Singapore Flyer
Striking out
Affidavit
Email
Fraud exception

16. Subjects

Civil Procedure
Evidence
Legal Professional Privilege

17. Areas of Law

Civil Procedure
Evidence
Legal Professional Privilege
Fraud Exception