United Overseas Bank v Lippo Marina Collection: Discovery, Litigation & Without Prejudice Privilege

In United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd, the Singapore High Court addressed a dispute over the discovery of an affidavit in a case involving claims of unlawful means conspiracy and deceit. The plaintiff, United Overseas Bank Limited, entered into a settlement agreement with the second and third defendants, Goh Buck Lim and Aurellia Adrianus Ho, which referenced an affidavit relating to the first defendant's involvement. The first defendant, Lippo Marina Collection Pte Ltd, sought discovery of the affidavit, but the plaintiff resisted on grounds of litigation and without prejudice privilege. The court dismissed the appeal, finding that litigation privilege subsisted and was not waived.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Appeal dismissed; litigation privilege in the Affidavit subsists and was not waived.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court case regarding discovery of documents and the application of litigation and without prejudice privilege in multi-party litigation.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
United Overseas Bank LimitedPlaintiffCorporationAppeal dismissedLost
Lippo Marina Collection Pte LtdDefendantCorporationApplication to discover Affidavit dismissedWon
Goh Buck LimDefendantIndividualClaims regulated per Settlement AgreementSettled
Aurellia Adrianus Ho also known as Filly HoDefendantIndividualClaims regulated per Settlement AgreementSettled
Goh Han Rong ClarkeDefendantIndividualClaims discontinuedWithdrawn
Goh Yu Wei EwisDefendantIndividualClaims discontinuedWithdrawn
Jennifer JanethDefendantIndividualClaims discontinuedWithdrawn
Erfan Syah PutraDefendantIndividualClaims discontinuedWithdrawn
Theodora Budi HalimundjajaDefendantIndividualClaims discontinuedWithdrawn

3. Judges

Judge NameTitleDelivered Judgment
Aedit AbdullahJudicial CommissionerYes

4. Counsels

Counsel NameOrganization
Alcina ChewTan Kok Quan Partnership
Eddee NgTan Kok Quan Partnership
Lau QiuyuTan Kok Quan Partnership
Sherlene GohTan Kok Quan Partnership
See Chern YangPremier Law LLC
Teng Po YewPremier Law LLC

4. Facts

  1. Plaintiff bank granted housing loans to 38 purchasers of units in the Marina Collection.
  2. The first defendant, the developer, offered significant undisclosed furniture rebates to the purchasers.
  3. Plaintiff alleged the rebates were a deliberate effort to mislead the bank into granting loans based on inflated prices.
  4. Plaintiff commenced suit against defendants for unlawful means conspiracy and deceit.
  5. Plaintiff entered into a Settlement Agreement with the second and third defendants.
  6. The Settlement Agreement referenced an affidavit affirmed by the second defendant regarding the first defendant's involvement.
  7. The first defendant sought specific discovery of the Affidavit, which was resisted by the plaintiff.

5. Formal Citations

  1. United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and others, Suit No 1250 of 2014 (Registrar’s Appeal No 33 of 2017), [2017] SGHC 140
  2. United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and others, , [2017] SGHCR 1

6. Timeline

DateEvent
First defendant sold 38 units in the Marina Collection to 38 purchasers.
First defendant sold 38 units in the Marina Collection to 38 purchasers.
Plaintiff commenced suit with claims in the tort of unlawful means conspiracy and the tort of deceit.
Plaintiff entered into Settlement Agreement with the second and third defendants.
Plaintiff withdrew action against the fourth to eighth defendants.
Plaintiff filed a Supplementary List of Documents which disclosed the existence of the Settlement Agreement.
First defendant's solicitors requested various documents, including the Affidavit.
Plaintiff's solicitors replied stating that the plaintiff would not be providing discovery of the Affidavit.
First defendant's solicitors wrote to the second and third defendants' then-solicitors making a similar request for the Affidavit.
Request for Affidavit denied in a reply letter.
First defendant filed Summons No 4966 of 2016 seeking specific discovery of several documents, including the Affidavit.
First defendant filed an appeal against the AR’s decision.
Hearing date.
Judgment date.

7. Legal Issues

  1. Litigation Privilege
    • Outcome: The court found that litigation privilege attached to the copy of the Affidavit in the plaintiff’s hands and that it did not need to be disclosed.
    • Category: Substantive
    • Sub-Issues:
      • Subsistence of litigation privilege in unserved affidavits
      • Waiver of litigation privilege by selective disclosure in multi-party litigation
      • Assertion of privilege without a supporting affidavit
  2. Without Prejudice Privilege
    • Outcome: The court found that although the plaintiff was entitled to independently assert without prejudice privilege over the Affidavit, such privilege did not subsist because the Affidavit was made pursuant to, and not in the course of, the settlement negotiations, and the Affidavit was not, and does not contain, an admission against the interests of its makers.
    • Category: Substantive
    • Sub-Issues:
      • Application of without prejudice privilege in multi-party litigation
      • Standing to assert without prejudice privilege
      • Whether Affidavit was made in the course of settlement negotiations
      • Whether Affidavit contains an admission

8. Remedies Sought

  1. Monetary Damages
  2. Discovery of Documents

9. Cause of Actions

  • Unlawful Means Conspiracy
  • Deceit

10. Practice Areas

  • Commercial Litigation
  • Civil Litigation

11. Industries

  • Banking
  • Real Estate

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and othersHigh CourtYes[2016] 2 SLR 597SingaporeSets out the background to the suit and concerns the application of O 14 r 12 of the Rules of Court on summary determinations of issues of law.
ARX v Comptroller of Income TaxCourt of AppealYes[2016] 5 SLR 590SingaporeCited for the principle that the court may look behind a bare assertion of privilege on affidavit to ascertain if the privilege has been rightly asserted.
Stax Claimants v Bank of Nova Scotia Channel Islands LtdN/AYes[2007] All ER (D) 215N/ACited for the proposition that, in the context of multi-party litigation, litigation privilege may subsist in respect of communications between adversaries.
Canada Safeway Ltd v Toromont Industries LtdAlberta Court of Queen’s BenchYes2004 362 AR 296CanadaCited for the proposition that, in the context of multi-party litigation, litigation privilege may subsist in respect of communications between adversaries.
Robert Hitchins Limited v International Computers LimitedN/AYes[1996] Lexis Citation 1579N/AConcerns common interest privilege rather than litigation privilege, and, in any case, was a decision involving draft witness statements rather than an affidavit intended to be used as an AEIC.
Australian Competition and Consumer Commission v Cadbury Schweppes Pty LtdFederal Court of AustraliaYes[2009] FACFC 32AustraliaCited for the proposition that finalised documents intended to be used as evidence at trial are not covered by litigation privilege.
Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte LtdCourt of AppealYes[2007] 2 SLR 367SingaporeDefines legal professional privilege and its two forms: legal advice privilege and litigation privilege.
Minister of Justice v Sheldon Blank (Attorney General of Ontario, The Advocates’ Society and Information Commissioner of Canada (Interveners))Supreme Court of CanadaYes[2006] SCC 39CanadaLitigation privilege is not restricted to communications between solicitor and client.
General Accident Fire and Life Assurance Corp Ltd and others v Tanter and others; The ZephyrEnglish High CourtYes[1984] 1 WLR 1000EnglandOpined that an affidavit is privileged until actually served or used in court.
Western Canadian Place Ltd v Con-Force Products LtdN/AYes[1997] AJ No 354N/ACited for the select quotation that “no privilege attaches to the affidavits or the transcriptions of cross-examination on affidavits in the normal course”.
Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and othersN/AYes[2009] 1 SLR(R) 42SingaporeImplied waiver may be found wherever there is a clearly evinced intention to give up confidentiality in a document.
Gelatissimo Ventures (S) Pte Ltd and others v Singapore Flyer Pte LtdN/AYes[2010] 1 SLR 833SingaporeImplied waiver may be found wherever there is a clearly evinced intention to give up confidentiality in a document.
Faraday Capital Limited v SBG Roofing Limited (in liquidation), Governors of Norbridge Primary & Nursery School, Nottingham County CouncilEnglish High CourtYes[2006] EWHC 2522 (Comm)EnglandThere was no basis for privilege as there was no requisite confidentiality in respect of statements disclosed by one opposing party to another.
Buttes Gas and Oil Co v Hammer (No 3)N/AYes[1980] 3 All ER 475N/AIf the original document is privileged… so also is any copy made by the solicitor. But if the original is not privileged, a copy of it also is not privileged, even though it was made by a solicitor for the purpose of litigation…
Coles v Elders Finance & Investment Co LtdN/AYes[1993] 2 VR 356N/AIf the original document is privileged… so also is any copy made by the solicitor. But if the original is not privileged, a copy of it also is not privileged, even though it was made by a solicitor for the purpose of litigation…
Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd and anotherCourt of AppealYes[2006] 4 SLR 807Singapores 23(1) is “a statutory enactment of the common law principle relating to the admissibility of ‘without prejudice’ communications based on the policy of encouraging settlements”
Rush & Tompkins v Greater London CouncilHouse of LordsYes[1988] 3 All ER 737EnglandGiven our interpretation that the rationale of the s 23 privilege is to encourage settlements, I can see no inconsistency between that section and Rush & Tompkins
Le Foe v Le Foe and Woolwich PlcN/AYes[2001] 2 FLR 970N/AWhat is protected is the discussion between the disputants; allowing any one of them to unilaterally use or disclose the documents would defeat the aim of protecting the safe haven of confidentiality under the privilege
Walker v WilsherN/AYes(1889) 23 QBD 335N/AWhat is protected is the discussion between the disputants; allowing any one of them to unilaterally use or disclose the documents would defeat the aim of protecting the safe haven of confidentiality under the privilege
Muller v Linsley and MortimerN/AYes[1996] PNLR 74N/AThis head of privilege has two justifications, either or both of which may apply in a given case: first, the public policy of encouraging out of court settlement negotiations, and secondly, an implied agreement arising out of what is commonly understood to be the consequences of offering or agreeing to negotiate without prejudice
Sin Lian Heng Construction Pte Ltd v SingTelN/AYes[2007] 2 SLR(R) 433SingaporeAt common law, without prejudice privilege also applies only to admissions against the maker’s interest
Krishna Kumaran s/o K Ramakrishnan v Kuppusamy s/o RamakrishnanN/AYes[2014] 4 SLR 232SingaporeAt common law, without prejudice privilege also applies only to admissions against the maker’s interest
Motorola Solutions Credit Co LLC v Kemal Uzan and othersHigh CourtYes[2015] SGHC 228SingaporeFirst, it can be used to enable party B to shield behind the privilege of party A and prevent party C from obtaining or using documents from B which were disclosed pursuant to the common interest between A and B in the subject matter of the communications
The Oriental Insurance Co Ltd v Reliance National Asia Re Pte LtdN/AYes[2009] 2 SLR(R) 385SingaporeSecond, it can also be used to enable A to obtain from B documents which B can withhold on the ground of privilege against the rest of the world, on the basis that it is inconsistent with their common interest for B to claim privilege against A in relation to these documents

13. Applicable Rules

Rule Name
O 14 r 12 of the Rules of Court
O 24 r 5 of the Rules of Court
O 24 r 7 of the Rules of Court

14. Applicable Statutes

Statute NameJurisdiction
Rules of Court (Cap 322, R 5, 2014 Rev Ed)Singapore
Evidence Act (Cap 97, 1997 Rev Ed)Singapore
Evidence Act s 23(1)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Litigation Privilege
  • Without Prejudice Privilege
  • Affidavit
  • Discovery
  • Settlement Agreement
  • Multi-Party Litigation
  • Confidentiality
  • Waiver
  • AEIC
  • Selective Disclosure

15.2 Keywords

  • discovery
  • litigation privilege
  • without prejudice privilege
  • affidavit
  • settlement
  • Singapore
  • High Court

17. Areas of Law

Area NameRelevance Score
Civil Practice75
Evidence Law60
Contract Law25
Company Law20
Arbitration15

16. Subjects

  • Civil Procedure
  • Evidence
  • Privilege
  • Discovery