UOB v Lippo Marina: Discovery & Litigation Privilege in Fraud & Conspiracy Suit

In United Overseas Bank Limited v Lippo Marina Collection Pte Ltd, the High Court of Singapore addressed an application by the first defendant, Lippo Marina Collection Pte Ltd, for specific discovery of an affidavit affirmed by the second defendant, Goh Buck Lim, and made on behalf of the third defendant, Aurellia Adrianus Ho, in a suit alleging fraud and conspiracy. The plaintiff, United Overseas Bank Limited, had entered into a settlement agreement with the second and third defendants, who refused disclosure of the affidavit based on litigation privilege. The court, presided over by Assistant Registrar Bryan Fang, disallowed the discovery, finding that litigation privilege applied and had not been waived against the first defendant, even though the affidavit had been shared with the plaintiff.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Specific discovery of the Affidavit is disallowed.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

UOB sues Lippo Marina for fraud/conspiracy. Court denies discovery of an affidavit, citing litigation privilege, despite sharing with plaintiff.

1.7 Decision Date

18 January 2017

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
United Overseas Bank Limited	Plaintiff	Corporation	Specific discovery of the Affidavit is disallowed.	Lost	Lau Qiuyu of Tan Kok Quan Partnership Sherlene Goh of Tan Kok Quan Partnership Cheryl Nah of Tan Kok Quan Partnership
Lippo Marina Collection Pte Ltd	Defendant	Corporation	Application granted in part	Partial	Teng Po Yew of Premier Law LLC
Goh Buck Lim	Defendant	Individual	No specific outcome	Neutral
Aurellia Adrianus Ho also known as Filly Ho	Defendant	Individual	No specific outcome	Neutral

3. Judges

Judge Name	Title	Delivered Judgment
Bryan Fang	Assistant Registrar	Yes

4. Counsels

Counsel Name	Organization
Lau Qiuyu	Tan Kok Quan Partnership
Sherlene Goh	Tan Kok Quan Partnership
Cheryl Nah	Tan Kok Quan Partnership
Teng Po Yew	Premier Law LLC

4. Facts

UOB commenced a suit against eight defendants for alleged fraud and conspiracy.
UOB entered into settlement negotiations with the second and third defendants.
The settlement agreement included an affidavit affirmed by the second defendant.
The affidavit pertained to the first defendant’s involvement in the alleged wrongdoing.
The first defendant sought specific discovery of the affidavit.
The second and third defendants refused disclosure based on litigation privilege.
The plaintiff possessed a copy of the affidavit received under a without prejudice letter.

5. Formal Citations

United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and others, Suit No 1250 of 2014Summons No 4966 of 2016, [2017] SGHCR 1
United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and others, , [2016] 2 SLR 597

6. Timeline

Date	Event
2011-01-01	Housing loans granted to 38 purchasers between 2011 and 2013.
2013-01-01	Housing loans granted to 38 purchasers between 2011 and 2013.
2014-11-26	Suit commenced by the plaintiff.
2016-02-01	Parties exchanged their lists of documents.
2016-03-29	Settlement Agreement dated 29 March 2016 between the plaintiff and the Defendants.
2016-04-15	Plaintiff filed a notice of discontinuance against the fourth to eighth defendants.
2016-06-13	Plaintiff filed a supplementary list disclosing the Settlement Agreement.
2016-08-05	First defendant’s solicitors requested the Affidavit from the plaintiff’s solicitors.
2016-08-19	Plaintiff’s solicitors replied they would not provide discovery of the Affidavit.
2016-08-23	First defendant’s solicitors requested the Affidavit from the Defendants’ solicitors.
2016-08-30	Defendants’ solicitors declined discovery of the Affidavit.
2016-10-12	Application taken out by the first defendant.
2016-10-28	Defendants' solicitors obtained an order to discharge themselves.
2016-10-28	Defendants were unrepresented.
2016-11-09	First hearing before the Assistant Registrar.
2016-12-01	Second hearing before the Assistant Registrar.
2017-01-19	Judgment delivered.

7. Legal Issues

Litigation Privilege
- Outcome: The court held that litigation privilege applied to the Affidavit and had not been waived against the first defendant.
- Category: Substantive
- Sub-Issues:
  - Waiver of privilege
  - Scope of disclosure
  - Confidentiality
- Related Cases:
  - [2016] 5 SLR 590
  - Robert Hitchins Limited v International Computers Limited, unreported, December 10, 1996, CA
  - [2006] EWHC 2522 (Comm)
  - [2009] 254 ALR 198
  - Canada Safeway Ltd v Toromont Industries Ltd (c.o.b. Cimco Refrigeration) (2004) 362 AR 296

8. Remedies Sought

Discovery of Documents

9. Cause of Actions

Fraud
Conspiracy

10. Practice Areas

Commercial Litigation

11. Industries

Banking
Real Estate

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and others	High Court	Yes	[2016] 2 SLR 597	Singapore	Cited for the background to the suit.
ARX v Comptroller of Income Tax	Court of Appeal	Yes	[2016] 5 SLR 590	Singapore	Cited for principles on asserting legal privilege and the court's discretion to examine evidence.
Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals	N/A	Yes	[2007] 2 SLR(R) 367	Singapore	Cited for the requirements for litigation privilege to subsist.
Robert Hitchins Limited v International Computers Limited	Court of Appeal	Yes	Robert Hitchins Limited v International Computers Limited, unreported, December 10, 1996, CA	England and Wales	Cited regarding sharing privileged documents between parties with common interests.
Faraday Capital Limited (for and on behalf of Faraday Syndicate 435) v SBG Roofing Limited (in liquidation), Governors of Norbridge Primary & Nursery School, Nottingham County Council	High Court	Yes	[2006] EWHC 2522 (Comm)	England and Wales	Cited regarding disclosure of documents and confidentiality.
Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd	Federal Court	Yes	[2009] 254 ALR 198	Australia	Cited regarding litigation privilege and non-disclosure to one’s opponent.
Prudential Assurance Co Ltd v Fountain Page Ltd and another	N/A	Yes	[1991] 1 WLR 756	N/A	Cited for the principle that there is no conceptual difficulty about the reservation of rights of confidentiality or privilege notwithstanding that a document or piece of information has been communicated to another.
Gotha City v Sotheby’s and another	English Court of Appeal	Yes	[1998] 1 WLR 114	England and Wales	Cited for the principle of selective waiver of privilege.
Stax Claimants v Bank of Nova Scotia Channel Islands Ltd and others	High Court	Yes	[2007] All ER (D) 215	England and Wales	Cited for upholding litigation privilege in respect of communications between parties with adverse interests in the context of multi-party litigation.
Canada Safeway Ltd v Toromont Industries Ltd (c.o.b. Cimco Refrigeration)	Alberta Court of Queen's Bench	Yes	Canada Safeway Ltd v Toromont Industries Ltd (c.o.b. Cimco Refrigeration) (2004) 362 AR 296	Canada	Cited for the principle that litigation privilege is not automatically waived by disclosure to an opponent in multi-party litigation if the disclosure is made in confidence.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Rules of Court (Cap 322, R 5, 2014 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Litigation privilege
Settlement agreement
Affidavit
Discovery
Waiver
Confidentiality
Without prejudice
Multi-party litigation

15.2 Keywords

litigation privilege
discovery
affidavit
fraud
conspiracy
settlement
UOB
Lippo Marina

17. Areas of Law

Area Name	Relevance Score
Legal Privilege	80
Civil Practice	75
Evidence	60
Legal Ethics and Professional Responsibility	50

16. Subjects

Civil Procedure
Legal Professional Privilege