The Enterprise Fund II Ltd v Jong Hee Sen: Admissibility of 'Without Prejudice' Communications
In The Enterprise Fund II Ltd v Jong Hee Sen, the Singapore High Court addressed whether certain communications were protected by 'without prejudice' privilege. The Enterprise Fund II Ltd sued Jong Hee Sen for breach of a deed of undertaking. The defendant appealed against the assistant registrar's decision to dismiss his applications to strike out a portion of the statement of claim and to expunge certain portions of affidavits. Hoo Sheau Peng JC allowed the appeals, finding that the communications, except for the initial letter of demand, were protected by 'without prejudice' privilege as they formed part of settlement negotiations.
1. Case Overview
1.1 Court
High Court of the Republic of Singapore1.2 Outcome
Appeals Allowed
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore High Court case concerning the admissibility of communications under 'without prejudice' privilege. The court allowed the defendant's appeal, finding the communications were part of settlement negotiations.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| The Enterprise Fund II Ltd | Plaintiff | Corporation | Appeal Dismissed | Lost | Tan Wei Ser Venetia |
| Jong Hee Sen | Defendant, Appellant | Individual | Appeal Allowed | Won | Nandwani Manoj Prakash, Lester Lin |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Hoo Sheau Peng | Judicial Commissioner | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Tan Wei Ser Venetia | Colin Ng & Partners LLP |
| Nandwani Manoj Prakash | Gabriel Law Corporation |
| Lester Lin | Gabriel Law Corporation |
4. Facts
- The Enterprise Fund II Ltd sued Jong Hee Sen for breach of a deed of undertaking.
- The deed required Jong Hee Sen to procure the sale of shares at a specified price.
- Jong Hee Sen failed to sell the shares or purchase the remainder.
- The Enterprise Fund II Ltd sent a letter of demand requesting a proposal to resolve the claim.
- Jong Hee Sen responded with a proposal to pay a lower sum.
- No final agreement was reached, and the Enterprise Fund II Ltd commenced proceedings.
- The defendant sought to strike out parts of the statement of claim and expunge affidavits based on 'without prejudice' privilege.
5. Formal Citations
- The Enterprise Fund II Ltd v Jong Hee Sen, Suit No 72 of 2016, [2016] SGHC 259
6. Timeline
| Date | Event |
|---|---|
| Deed of undertaking signed | |
| Letter of Demand issued | |
| Reply Email sent | |
| Meeting took place | |
| Proposal sent | |
| Letter sent to the defendant | |
| Affidavit by Lim Chu Pei dated | |
| Affidavit by Tan Yang Hwee dated | |
| Hearing date | |
| Hearing date | |
| Judgment issued |
7. Legal Issues
- Admissibility of Evidence
- Outcome: The court held that the communications, except for the initial letter of demand, were protected by 'without prejudice' privilege and therefore inadmissible.
- Category: Substantive
- Sub-Issues:
- “Without prejudice” communications
8. Remedies Sought
- Monetary Damages
9. Cause of Actions
- Breach of Contract
10. Practice Areas
- Commercial Litigation
11. Industries
- Fund Management
- Healthcare
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Greenline-Onyx Envirotech Phils, Inc v Otto Systems Singapore Pte Ltd | Court of Appeal | Yes | [2007] 3 SLR(R) 40 | Singapore | Cited for the public policy of encouraging litigants to settle their differences rather than litigate them to the finish. |
| Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd and another | Court of Appeal | Yes | [2006] 4 SLR(R) 807 | Singapore | Cited for the principle that a statement made in the course of negotiations to settle a dispute is made without prejudice. |
| Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd | High Court | Yes | [2009] 4 SLR(R) 769 | Singapore | Cited for the principle that whether a communication is made in the course of negotiations to settle a dispute must be determined by objectively construing it as a whole in the context of the factual circumstances. |
| Sang Kook Suh and another v Mace (UK) Limited | England and Wales Court of Appeal (Civil Division) | Yes | [2016] EWCA Civ 4 | England and Wales | Cited for the principle that whether a communication is made in the course of negotiations to settle a dispute must be determined by objectively construing it as a whole in the context of the factual circumstances. |
| Schering Corporation v CIPLA Ltd and another | High Court of Justice (Chancery Division) | Yes | [2004] EWHC 2587 Ch | England and Wales | Cited for the principle that the court will seek to determine what, on a reasonable basis, the intention of the author was and how it would be understood by a reasonable recipient. |
| Bradford & Bingley plc v Rashid | House of Lords | Yes | [2006] 1 WLR 2066 | United Kingdom | Cited for the principle that a significant part of the context of a communication is whether it was made in response to an invitation to negotiate as to what, if anything, was due or only in response to an invitation to say how the amount due was to be repaid. |
| Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd | Court of Appeal | Yes | [2007] 2 SLR(R) 433 | Singapore | Cited for the principle that there is no legitimate policy interest to protect appeals for leniency or mercy. |
| Qingdao Bohai Construction Group Co, Ltd and others v Goh Teck Beng and another | High Court | Yes | [2016] 4 SLR 977 | Singapore | Cited for the principle that an admission must be unequivocal. |
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
- Without prejudice privilege
- Deed of undertaking
- Letter of demand
- Settlement negotiations
- Admission of liability
- Sale proceeds target
- IHCL Shares
15.2 Keywords
- without prejudice
- privilege
- evidence
- admissibility
- settlement
- negotiations
- contract
- deed
- undertaking
16. Subjects
- Evidence
- Admissibility of evidence
- Without prejudice communications
17. Areas of Law
- Evidence Law
- Civil Procedure
- Contract Law