Swee Wan Enterprises v Yak Thye Peng: Admissibility of 'Without Prejudice' Communications
In Swee Wan Enterprises Pte Ltd v Yak Thye Peng, the Singapore High Court addressed whether certain communications were protected by 'without prejudice' privilege. Swee Wan Enterprises Pte Ltd, the plaintiff, sued Yak Thye Peng, the defendant, to recover $1,805,156.62. The defendant applied to strike out references to two documents, arguing they were privileged. The Assistant Registrar dismissed the defendant’s application, but the High Court allowed the defendant's appeal, finding the documents were part of settlement negotiations and thus protected by 'without prejudice' privilege.
1. Case Overview
1.1 Court
High Court of Singapore1.2 Outcome
Appeal Allowed
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore High Court judgment on whether certain communications were protected by 'without prejudice' privilege and thus inadmissible as evidence. The court allowed the defendant's appeal.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Swee Wan Enterprises Pte Ltd | Plaintiff | Corporation | Appeal Dismissed | Lost | Vikram Nair, Lim Tiong Garn Jason |
| Yak Thye Peng | Defendant | Individual | Appeal Allowed | Won | Tan Sia Khoon Kelvin David |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Hoo Sheau Peng | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Vikram Nair | Rajah & Tann Singapore LLP |
| Lim Tiong Garn Jason | Rajah & Tann Singapore LLP |
| Tan Sia Khoon Kelvin David | Vicki Heng Law Corporation |
4. Facts
- Plaintiff sued defendant to recover $1,805,156.62.
- Defendant was a shareholder and former director of the plaintiff.
- Between 2006 and 2009, defendant caused plaintiff to issue five cheques to himself.
- Defendant withdrew the funds without authority from the plaintiff’s bank account for his personal use.
- Ms. Yak Chau Wei discovered the issuance of the cheques around May 2014.
- Plaintiff's previous solicitors issued a letter of demand to the defendant on 27 February 2015.
- Defendant signed a document acknowledging matters stated in the 27 February 2015 Letter.
5. Formal Citations
- Swee Wan Enterprises Pte Ltd v Yak Thye Peng, Suit No 67 of 2017(Registrar’s Appeal No 230 of 2017), [2017] SGHC 313
6. Timeline
| Date | Event |
|---|---|
| Defendant caused plaintiff to issue cheques to himself between 2006 and 2009. | |
| Defendant issued plaintiff a cheque for $20,000. | |
| Last financial accounts for Swee Wan Trading Pte Ltd. | |
| Discovery of misappropriation of money from plaintiff and Swee Wan Trading Pte Ltd. | |
| Plaintiff and Swee Wan Trading Pte Ltd commenced legal proceedings against relevant parties. | |
| Ms. Yak Chau Wei discovered the issuance of the cheques. | |
| Providence Law Asia LLC issued a letter of demand to the defendant. | |
| Defendant signed a document acknowledging matters stated in the 27 February 2015 Letter. | |
| Settlement agreement dated to which Mr Yak Tiong Liew and the defendant were parties. | |
| Suit No 67 of 2017 filed. | |
| Hearing date. | |
| Hearing date. | |
| Judgment date. |
7. Legal Issues
- Admissibility of Evidence
- Outcome: The court held that the communications were protected by 'without prejudice' privilege and therefore inadmissible.
- Category: Procedural
- Sub-Issues:
- Without prejudice communications
- Without Prejudice Privilege
- Outcome: The court found that the letter and note were part of negotiations to compromise a dispute and were thus protected by 'without prejudice' privilege.
- Category: Substantive
8. Remedies Sought
- Monetary Damages
9. Cause of Actions
- Breach of Fiduciary Duty
- Debt Recovery
10. Practice Areas
- Commercial Litigation
11. Industries
- No industries specified
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 principle that 'without prejudice' privilege encourages parties to settle disputes frankly without fear of their statements being used against them. |
| Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd and another | Court of Appeal | Yes | [2006] 4 SLR(R) 807 | Singapore | Cited as authority that Section 23 of the Evidence Act is a statutory expression of the common law principle of 'without prejudice' privilege. |
| Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd | High Court | Yes | [2009] 4 SLR(R) 769 | Singapore | Cited for the principle that attaching a 'without prejudice' label to a communication does not conclusively render it privileged and that the court must objectively construe the document as a whole. |
| Quek Kheng Leong Nicky and another v Teo Beng Ngoh and others and another appeal | High Court | Yes | [2009] 4 SLR(R) 181 | Singapore | Cited for the principle that the presence of 'without prejudice' words places the burden of persuasion on the party contending they should be ignored. |
| Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd | High Court | Yes | [2007] 2 SLR(R) 433 | Singapore | Cited for the principle that the presence of 'without prejudice' words places the burden of persuasion on the party contending they should be ignored and for the principle regarding debtor admitting liability to pay a debt. |
| The Enterprise Fund II Ltd v Jong Hee Sen | High Court | Yes | [2017] 3 SLR 487 | Singapore | Cited for the principle that the court will seek to determine, on a reasonable basis, the intention of the author and how it would have been understood by a reasonable recipient. |
| Ng Chee Weng v Lim Jit Ming Bryan and another | High Court | Yes | [2012] 1 SLR 457 | Singapore | Cited for the principle that 'without prejudice' communications are admissible to prove the existence or terms of a settlement agreement. |
| Krishna Kumaran s/o K Ramakrishnan v Kuppusamy s/o Ramakrishnan | High Court | Yes | [2014] 4 SLR 232 | Singapore | Cited for the principle that waiver of 'without prejudice' privilege requires the consent of both parties. |
| Hansraj v Ao | Alberta Court of Queen's Bench | Yes | [2002] AJ No 594 | Canada | Cited in support of the proposition that the 'without prejudice' privilege should also protect correspondence that is issued as the 'first shot' in a course of negotiations that leads to settlement. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Evidence Act | Singapore |
| Evidence Act | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Without prejudice privilege
- Settlement negotiations
- Letter of demand
- Acknowledgment of debt
- Outstanding sum
- Settlement agreement
- Waiver of privilege
15.2 Keywords
- without prejudice
- admissibility of evidence
- settlement
- negotiation
- privilege
- Singapore
- High Court
16. Subjects
- Evidence Law
- Civil Litigation
- Privilege
17. Areas of Law
- Evidence
- Civil Procedure
- Contract Law