CIFG v Polimet: Legal Professional Privilege & Joint Retainer in Contractual Disputes
In CIFG Special Assets Capital I Ltd v Polimet Pte Ltd, the Singapore High Court heard an appeal regarding the disclosure of documents between CIFG and its solicitors, RWY, concerning an unsigned agreement. The defendants sought these documents, arguing RWY acted for both parties, thus waiving legal professional privilege. The High Court allowed CIFG's appeal, finding RWY solely represented CIFG. The court determined the documents were privileged and did not need to be disclosed, reversing the Assistant Registrar's decision. The case involved a breach of contract claim and a defense alleging mistake and misrepresentation.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Appeal Allowed
1.3 Case Type
Civil
1.4 Judgment Type
Written Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore High Court case concerning legal professional privilege and joint retainer in a dispute over convertible bond subscription agreements.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| CIFG Special Assets Capital I Ltd (formerly known as Diamond Kendall Limited) | Plaintiff, Appellant | Corporation | Appeal Allowed | Won | |
| Ong Puay Koon | Defendant, Respondent | Individual | Appeal Dismissed | Lost | |
| Lee Sin Peng | Defendant, Respondent | Individual | Appeal Dismissed | Lost | |
| Andy Ho | Defendant, Respondent | Individual | Appeal Dismissed | Lost | |
| Yap Tien Sung | Defendant, Respondent | Individual | Appeal Dismissed | Lost | |
| Chris Chia Woon Liat | Other | Individual | |||
| Yeo Kar Peng | Other | Individual | |||
| Polimet Pte Ltd | Defendant, Respondent | Corporation | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| George Wei | Judge | Yes |
4. Counsels
4. Facts
- CIFG (formerly Diamond Kendall Ltd) entered into Convertible Bond Subscription Agreements (CBSAs) with Polimet and its shareholders.
- The CBSAs contained a general indemnity clause where the defendants agreed to indemnify CIFG against losses from any breach.
- Lee Sin Peng and Andy Ho executed personal guarantees for 50% of Polimet’s obligations under the CBSAs.
- Polimet requested a moratorium on its obligations, leading to discussions about a Proposed Agreement.
- The Proposed Agreement was never concluded.
- The defendants claimed an oral agreement limited their liability to the loss of their initial shareholding.
- The defendants alleged a common or unilateral mistake regarding the General Indemnity Clause.
5. Formal Citations
- CIFG Special Assets Capital I Ltd (formerly known as Diamond Kendall Ltd) v Polimet Pte Ltd and others, Suit No 758 of 2013 (Registrar's Appeal No 232 of 2015), [2015] SGHC 325
6. Timeline
| Date | Event |
|---|---|
| Parties entered into a Convertible Bond Subscription Agreement (2007 CBSA). | |
| Chris Chia Woon Liat and Yeo Kar Peng became directors of Polimet. | |
| Parties entered into another CBSA (2008 CBSA) and a Supplemental Bond Subscription Agreement. | |
| Parties entered into a Supplemental CBSA (Supplemental 2009 CBSA). | |
| Parties discussed implementing a moratorium of Polimet’s obligations under the CBSAs (Proposed Agreement). | |
| Yeo Kar Peng ceased to be a director of Polimet. | |
| Chris Chia Woon Liat ceased to be a director of Polimet. | |
| Suit commenced by the plaintiff claiming outstanding sums due under the CBSAs. | |
| Assistant Registrar ordered the plaintiff to disclose documents. | |
| Judgment reserved. | |
| High Court allowed the plaintiff’s appeal. |
7. Legal Issues
- Legal Professional Privilege
- Outcome: The court held that the documents were protected by legal professional privilege because the law firm acted solely for the plaintiff and there was no joint retainer.
- Category: Substantive
- Sub-Issues:
- Joint Retainer
- Implied Retainer
- Waiver of Privilege
- Discovery
- Outcome: The court found that the category of documents sought was overly broad and gave the overall impression of a fishing expedition.
- Category: Procedural
- Sub-Issues:
- Relevance
- Necessity
- Fishing Expedition
- Choice of Law
- Outcome: The court determined that the issue of legal professional privilege is governed by Singapore law (lex fori).
- Category: Jurisdictional
- Sub-Issues:
- Lex Fori
- Substance vs. Procedure
8. Remedies Sought
- Monetary Damages
9. Cause of Actions
- Breach of Contract
- Breach of Guarantee
- Indemnity
10. Practice Areas
- Commercial Litigation
- Discovery
- Contract Disputes
11. Industries
- Finance
- Legal Services
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Bayerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd and other applications | High Court of Singapore | Yes | [2004] 4 SLR(R) 39 | Singapore | Cited for the principle that relevance alone is insufficient to justify an order of discovery; necessity must also be established. |
| Star City Pty Ltd (formerly known as Sydney Harbour Casino Pty Ltd) v Tan Hong Woon | High Court of Singapore | Yes | [2002] 1 SLR(R) 306 | Singapore | Cited for the principle that Singapore law follows the traditional approach in distinguishing between substance and procedure in choice of law analysis. |
| Goh Suan Hee v Teo Cher Teck | High Court of Singapore | Yes | [2010] 1 SLR 367 | Singapore | Cited to show that the stricter functional test for distinguishing substance from procedure has not been decided upon by the Court of Appeal in Singapore. |
| Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission | High Court of Australia | Yes | [2002] HCA 49 | Australia | Cited for the principle that legal professional privilege is a rule of substantive law. |
| Stewart v Australian Crime Commission | Federal Court of Australia | Yes | [2012] FCAFC 151 | Australia | Cited for the principle that the governing law for legal professional privilege is the lex fori. |
| R v Derby Magistrates' Court, Ex p B | House of Lords | Yes | [1996] AC 487 | England and Wales | Cited for the principle that legal professional privilege is a fundamental condition on which the administration of justice rests. |
| R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax | House of Lords | Yes | [2003] 1 AC 563 | England and Wales | Cited for the principle that legal professional privilege is a fundamental human right long established in the common law. |
| Re Duncan, Decd. Garfield v Fay | High Court of Justice | Yes | [1968] P 306 | England and Wales | Cited for the principle that privilege is a matter to be decided by the lex fori. |
| Bourns Inc v Raychem Corporation and Anor | Court of Appeal | Yes | [1999] 3 All ER 154 | England and Wales | Cited for the principle that legal professional privilege falls to be governed by the lex fori. |
| Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals | Court of Appeal of Singapore | Yes | [2007] 2 SLR(R) 367 | Singapore | Cited for the principle that legal professional privilege serves the secure and effective administration of justice according to law. |
| Anwar Patrick Adrian and another v Ng Chong & Hue LLC and another | Court of Appeal of Singapore | Yes | [2014] 3 SLR 761 | Singapore | Cited for the principle that a retainer may be implied where, on an objective consideration of all the circumstances, an intention to enter into such a contractual relationship ought fairly and properly to be imputed to all the parties. |
| Royal Bank of Scotland v Etridge (No 2) | House of Lords | Yes | [2001] 3 WLR 1021 | England and Wales | Cited for the principle that a solicitor-client relationship may come about by an express retainer or a retainer that is implied by conduct. |
| The Law Society of Singapore v Ahmad Khalis bin Abdul Ghani | Court of Three Judges | Yes | [2006] 4 SLR(R) 308 | Singapore | Cited for the principle that the existence of an implied retainer depends very much on the precise factual matrix concerned. |
| The Law Society of Singapore v Uthayasurian Sidambaram | Court of Three Judges | Yes | [2009] 4 SLR(R) 674 | Singapore | Cited for the principle that an implied retainer had clearly arisen between the parties and the respondent. |
| Burkle Holding v David Eric Laing | High Court of Justice | Yes | [2005] EWHC 638 | England and Wales | Cited for the principle that the test of whether or not Mr Laing and Mr Kelly were in a solicitor-client relationship at the relevant time requires answering the question of whether Mr Kelly gave Mr Laing advice relating to his rights, obligations or remedies under private law. |
| Minister of Justice v Sheldon Blank (Attorney General of Ontario, The Advocates’ Society and Information Commissioner of Canada (Interveners)) | Supreme Court of Canada | Yes | [2006] SCC 39 | Canada | Cited for the principle that legal advice privilege recognizes that the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. |
| International Business Machines Corp and another v Phoenix International (Computers) Ltd | High Court of Justice | Yes | [1995] 1 All ER 413 | England and Wales | Cited for the principle that legal advice privilege will apply to advice received from foreign lawyers. |
| Kennedy v Wallace | Federal Court of Australia | Yes | (2004) 213 ALR 108 | Australia | Cited for the principle that the common law position which extends privilege to communications passing between a client and his foreign legal adviser applies in Singapore as there is no inconsistency between the common law position and the statutory provisions. |
| Hellenic Mutual War Risks Association (Bermuda) Ltd And General Contractors Importing and Services Enterprises v Harrison (The Sagherra) | High Court of Justice | Yes | [1997] 1 Lloyd’s Rep 160 | England and Wales | Cited for the principle that parties who grant a joint retainer to solicitors retain no confidence as against one another: if they subsequently fall out and sue one another, they cannot claim privilege. |
| Foo Ko Hing v Foo Chee Heng | High Court of Singapore | Yes | [2001] 1 SLR(R) 664 | Singapore | Cited for the principle that where a vendor and purchaser retain the same solicitor, a distinction must be made between communication to the solicitor in the character of one party’s own legal advisor and communication to him in the adverse character or legal advisor for the other party. |
| Letchemy Arumugan v N Annamalay | High Court of Malaysia | Yes | [1982] 2 MLJ 198 | Malaysia | Cited for the principle that where a party, especially an ignorant or illiterate one, is unrepresented by an advocate and solicitor in a transaction and the opposite party is represented by one, it is the duty of the advocate and solicitor to explain the terms and conditions of the contract and the legal consequences thereof fully and frankly to the unrepresented party and ensure that this unrepresented party understands the terms and conditions and legal consequences fully, so that neither of the contracting parties has any unfair advantage over the other. |
| Loh Bee Tuan v Shing Yin Construction (Kota Kinabalu) Sdn Bhd & Ors | High Court of Malaysia | Yes | [2002] 2 MLJ 532 | Malaysia | Cited for the principle that Letchemy Arumugan remains good law in Malaysia. |
| The Law Society of Singapore v Ong Teck Ghee | Disciplinary Tribunal of Singapore | Yes | [2014] SGDT 7 | Singapore | Cited for the principle that an advocate and solicitor shall not take unfair advantage of any person or act towards anyone in a way which is fraudulent, deceitful or otherwise contrary to his position as advocate and solicitor or officer of the Court. |
| The Law Society of Singapore v Surinder Singh Dhillon | Disciplinary Tribunal of Singapore | Yes | [2010] SGDT 8 | Singapore | Cited for the principle that the word “advice” cannot be given its entire natural and ordinary meaning in the context of r 30. |
| Nationwide Building Society v Various Solicitors | High Court of Justice | Yes | [1999] PNLR 52 | England and Wales | Cited for the principle that a solicitor who acts for both borrower and lender in a transaction owes separate duties of confidence to each client. |
| Doran Constructions Pty Limited (in Liquidation) | Supreme Court of New South Wales | Yes | [2002] NSWSC 215 | Australia | Cited as a case that is distinguishable on the basis that it concerned a joint meeting where all the relevant parties were present. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court (Cap 322, R 5, 2006 Rev Ed) Order 24 r 5 |
| Singapore Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) r 12 |
| Singapore Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) r 30 |
| Singapore Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) r 53A |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Evidence Act (Cap 97, 1997 Rev Ed) | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) s 3(7) | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) s 2(2) | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) ss 128 | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) ss 131 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Convertible Bond Subscription Agreement
- Legal Professional Privilege
- Joint Retainer
- Implied Retainer
- General Indemnity Clause
- Personal Guarantee
- Proposed Agreement
- Lex Fori
- Discovery
- Moratorium
15.2 Keywords
- Legal Professional Privilege
- Joint Retainer
- Discovery
- Contract Law
- Singapore High Court
- Convertible Bond
- Privilege
- Solicitor-Client Relationship
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Legal Advice Privilege | 80 |
| Privilege | 70 |
| Legal Privilege | 70 |
| Contract Law | 60 |
| Evidence Law | 50 |
| Guarantees and indemnities | 50 |
| Civil Litigation | 40 |
| Legal Professional Privilege | 40 |
| Corporate Finance | 30 |
| Company Law | 30 |
16. Subjects
- Civil Litigation
- Contract Law
- Legal Ethics
- Discovery