Motorola Solutions v Uzan: Common Interest Privilege and Waiver in Enforcing Foreign Judgments

In Motorola Solutions Credit Co LLC v Kemal Uzan, the Singapore High Court addressed an application by the second to fifth and seventh defendants for a declaration that certain email chains were protected by common interest privilege. The plaintiff, Motorola Solutions Credit Co LLC, sought to enforce US and UK judgments in Singapore, arguing that the defendants had waived legal privilege over the emails, which were obtained in a related Hong Kong action. Chua Lee Ming JC held that legal privilege had not been waived, either by conduct or as a result of the waiver by another party in the Hong Kong action. The court granted the defendants' application, restraining the plaintiff from using the emails and striking out references to them in an affidavit.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Declaration granted that the Applicants were entitled to claim legal privilege over the Emails; injunction granted restraining the plaintiff from using the Emails against the Applicants in this action; order granted striking out references to the Emails in the 13th Affidavit.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court case regarding common interest privilege in email communications and whether privilege was waived in a related Hong Kong action. The court held privilege was not waived.

1.7 Decision Date

2 September 2015

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
MOTOROLA SOLUTIONS CREDIT COMPANY LLC	Plaintiff	Corporation	Application Dismissed	Lost	Chua Sui Tong of WongPartnership LLP Chan Daniel of WongPartnership LLP
KEMAL UZAN	Defendant	Individual	Application Granted	Won
CEM CENGIZ UZAN	Defendant	Individual	Application Granted	Won	Daniel Chia of Morgan Lewis Stamford LLC Stephany Aw Shu Hui of Morgan Lewis Stamford LLC
MURAT HAKAN UZAN	Defendant	Individual	Application Granted	Won	Daniel Chia of Morgan Lewis Stamford LLC Stephany Aw Shu Hui of Morgan Lewis Stamford LLC
MELAHAT UZAN	Defendant	Individual	Application Granted	Won	Daniel Chia of Morgan Lewis Stamford LLC Stephany Aw Shu Hui of Morgan Lewis Stamford LLC
AYSEGUL AKAY	Defendant	Individual	Application Granted	Won
ANTONIO LUNA BETANCOURT	Defendant	Individual	No specific outcome	Neutral
LIBANANCO HOLDINGS CO LIMITED	Defendant	Corporation	Application Granted	Won	Daniel Chia of Morgan Lewis Stamford LLC Stephany Aw Shu Hui of Morgan Lewis Stamford LLC
COLIN ALAN COOK	Defendant	Individual	No specific outcome	Neutral
HAJ CAPITAL PTE LTD	Defendant	Corporation	No specific outcome	Neutral
LEVANT ONE INVESTMENTS PTE LIMITED	Defendant	Corporation	No specific outcome	Neutral
KRONOS INVESTMENTS & TRADING SINGAPORE PTE LTD	Defendant	Corporation	No specific outcome	Neutral

3. Judges

Judge Name	Title	Delivered Judgment
Chua Lee Ming	Judicial Commissioner	Yes

4. Counsels

Counsel Name	Organization
Chua Sui Tong	WongPartnership LLP
Chan Daniel	WongPartnership LLP
Daniel Chia	Morgan Lewis Stamford LLC
Stephany Aw Shu Hui	Morgan Lewis Stamford LLC

4. Facts

The plaintiff sought to enforce US and UK judgments in Singapore.
The plaintiff obtained emails from Phyllis Kwong in a Hong Kong action.
The emails were exchanged between a director of the seventh defendant, the second defendant, Phyllis Kwong, and solicitors.
The Applicants did not inspect the documents in the plaintiff’s List initially.
The Applicants objected to the reference to the Emails in the 13th Affidavit.
The Emails were protected by common interest privilege.

5. Formal Citations

Motorola Solutions Credit Co LLC v Kemal Uzan and others, Suit No 1046 of 2013 (HC/Summons No 2356 of 2015), [2015] SGHC 228

6. Timeline

Date	Event
2003-01-01	Plaintiff obtained judgment against the first to sixth defendants in the US.
2004-01-01	English High Court entered judgment against the second and fifth defendants.
2006-01-01	Judgment was entered against the first to sixth defendants for additional punitive damages in the US.
2010-01-01	Judgment was entered against the seventh defendant in the US.
2010-01-01	English High Court entered judgment against the first and third defendants.
2015-01-22	Plaintiff disclosed the Emails in a List of Documents.
2015-02-26	Applicants requested copies of all the documents in the plaintiff’s List.
2015-03-02	Copies of documents were given to the Applicants.
2015-04-15	Plaintiff filed the application for specific discovery against the Applicants and the eleventh defendant.
2015-04-29	Applicants’ solicitors took objection to the reference to the Emails in the 13th Affidavit.
2015-05-05	Plaintiff’s solicitors replied and informed the Applicants that the Emails were obtained pursuant to court orders granted in the HK Action.
2015-05-12	Applicants’ solicitors maintained that legal privilege over the Emails continued to exist.
2015-05-15	Applicants filed the present application.
2015-09-03	Decision Date

7. Legal Issues

Waiver of Legal Privilege
- Outcome: The court held that the Applicants had not waived legal privilege over the Emails, either by conduct or as a result of the waiver by Phyllis Kwong in the HK Action.
- Category: Substantive
- Sub-Issues:
  - Implied waiver of privilege
  - Waiver by conduct
  - Waiver by a third party in a common interest group
- Related Cases:
  - [1991] 1 WLR 660
  - [2006] EWHC 839 (Comm)
  - (1996) 39 NSWLR 601
  - (2004) 211 ALR 272
Common Interest Privilege
- Outcome: The court affirmed the concept of common interest privilege, noting that each recipient of the Emails was entitled to assert legal privilege over the Emails because of a common interest in the subject matter of the Emails.
- Category: Substantive
- Related Cases:
  - [1981] 1 QB 223
  - [2009] 2 SLR(R) 385

8. Remedies Sought

Declaration that the Emails were protected by common interest privilege
Restraining order against the plaintiff from using the Emails
Order for the Emails to be delivered to the Applicants or destroyed

9. Cause of Actions

Enforcement of Foreign Judgments

10. Practice Areas

Commercial Litigation
International Litigation

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Derby & Co Ltd and others v Weldon and others (No 10)	N/A	Yes	[1991] 1 WLR 660	England and Wales	Cited regarding the assumption of waiver of privilege when privileged documents are included in trial bundles.
Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others	N/A	Yes	[2009] 1 SLR(R) 42	Singapore	Cited regarding the point at which evidence is admitted and privilege is lost.
Buttes Gas and Oil Co and another v Hammer and another (No 3)	N/A	Yes	[1981] 1 QB 223	England and Wales	Cited for the principle that each recipient of emails is entitled to assert legal privilege over the Emails because of a common interest in the subject matter of the Emails.
The Oriental Insurance Co Ltd v Reliance National Asia Re Pte Ltd	N/A	Yes	[2009] 2 SLR(R) 385	Singapore	Cited for the acceptance of the concept of common interest privilege in Singapore.
Gelatissimo Ventures (S) Pte Ltd and others v Singapore Flyer Pte Ltd	N/A	Yes	[2010] 1 SLR 833	Singapore	Cited for the principle that waiver by one joint interest holder would not amount to waiver by the other without the latter’s agreement.
The TAG Group Litigation Winterthur Swiss Insurance Company and another v AG (Manchester) Ltd (in liquidation) and others	N/A	Yes	[2006] EWHC 839 (Comm)	England and Wales	Cited for the position in England that a common interest holder cannot waive privilege for the other common interest holders without their agreement or authority.
Farrow Mortgage Services Pty Ltd (In Liq) v Webb and others	N/A	Yes	(1996) 39 NSWLR 601	Australia	Cited for the position in Australia that if one common interest holder has waived privilege, the other common interest holders would not be entitled to assert legal privilege if it is unfair for them to do so.
Patrick v Capital Finance Corporation (Australasia) Pty Ltd	N/A	Yes	(2004) 211 ALR 272	Australia	Cited for the position in Australia that if one common interest holder has waived privilege, the other common interest holders would not be entitled to assert legal privilege if it is unfair for them to do so.
Attorney-General for the Northern Territory v Maurice and others	N/A	Yes	(1986) 161 CLR 475	Australia	Cited regarding the underlying rationale of implied waiver being one of fairness.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
No applicable statutes

15. Key Terms and Keywords

15.1 Key Terms

Common interest privilege
Waiver of privilege
Legal privilege
Enforcement of foreign judgments
Discovery
Hong Kong Action

15.2 Keywords

Common interest privilege
Waiver
Legal privilege
Enforcement
Foreign judgments
Singapore High Court

17. Areas of Law

Area Name	Relevance Score
Waiver of Privilege	90
Common Interest Privilege	80
Civil Procedure	70
Enforcement of Judgments	60
Evidence	60
Litigation	50
Commercial Disputes	40
Jurisdiction	30
Contract Law	30
Estoppel	20
Arbitration	10

16. Subjects

Civil Procedure
Evidence
Conflict of Laws
International Law