Asplenium Land v Lam Chye Shing: Legal Professional Privilege for In-House Counsel

In High Court Originating Summons No 952 of 2016, Asplenium Land Pte Ltd applied for orders to restrain Lam Chye Shing, Rider Levett Bucknall LLP, RLB Consultancy Pte Ltd, and CKR Contract Services Pte Ltd from disclosing certain documents which Asplenium claimed to be legally privileged. The court granted Asplenium's application, finding that legal advice privilege subsisted in the Item 3 documents and that legal advice privilege and/or litigation privilege subsisted in the Item 4 documents. The court also addressed whether the declaratory and injunctive reliefs sought by Asplenium could and should be granted.

1. Case Overview

1.1 Court

High Court of Singapore

1.2 Outcome

Application Allowed

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Asplenium Land sought to restrain the disclosure of privileged documents. The court granted the application, upholding legal professional privilege.

1.7 Decision Date

21 February 2019

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
CKR Contract Services Pte Ltd	Respondent	Corporation	Application Allowed	Lost	Vikram Nair of Rajah & Tann Singapore LLP Zhuang Wenxiong of Rajah & Tann Singapore LLP Ching Meng Hang of Rajah & Tann Singapore LLP
Asplenium Land Pte Ltd	Applicant	Corporation	Application Allowed	Won	Chuah Chee Kian Christopher of WongPartnership LLP Kua Lay Theng of WongPartnership LLP Candy Agnes Sutedja of WongPartnership LLP Liana Chek of WongPartnership LLP
Rider Levett Bucknall LLP	Respondent	Limited Liability Partnership	Application Allowed	Lost	Nicholas Beetsma of CLASIS LLC
RLB Consultancy Pte Ltd	Respondent	Corporation	Application Allowed	Lost	Nicholas Beetsma of CLASIS LLC
Lam Chye Shing	Respondent	Individual	Application Allowed	Lost	Nicholas Beetsma of CLASIS LLC

3. Judges

Judge Name	Title	Delivered Judgment
Pang Khang Chau	Judicial Commissioner	Yes

4. Counsels

Counsel Name	Organization
Vikram Nair	Rajah & Tann Singapore LLP
Zhuang Wenxiong	Rajah & Tann Singapore LLP
Ching Meng Hang	Rajah & Tann Singapore LLP
Chuah Chee Kian Christopher	WongPartnership LLP
Kua Lay Theng	WongPartnership LLP
Candy Agnes Sutedja	WongPartnership LLP
Liana Chek	WongPartnership LLP
Nicholas Beetsma	CLASIS LLC

4. Facts

Asplenium Land Pte Ltd engaged CKR Contract Services Pte Ltd as the main contractor for a construction project.
Lam Chye Shing was the designated quantity surveyor in the Contract.
Asplenium purported to terminate the Contract on 24 October 2014.
Asplenium engaged RLB to provide consultancy services for a tender process to engage a replacement contractor.
CKR claims the RLB Defendants were professionally negligent in the conduct of the Replacement Tender.
Hwang was formally employed by Nuri Holdings (S) Pte Ltd but performed legal work for Tuan Sing Holdings Ltd, the holding company of Asplenium.
Asplenium sought to restrain the disclosure of certain documents claimed to be legally privileged.

5. Formal Citations

Asplenium Land Pte Ltd v Lam Chye Shing and others, Originating Summons No 952 of 2016, [2019] SGHC 41

6. Timeline

Date	Event
2013-01-01	Contract awarded by Asplenium to CKR
2014-10-24	Asplenium purported to terminate the Contract
2014-11-01	Replacement contract awarded
2016-03-18	CKR applied for specific discovery in Suit 37
2016-08-18	CKR’s application allowed in part by an Assistant Registrar
2016-09-13	RLB Defendants filed a supplementary list of documents in Suit 37
2016-09-19	Asplenium filed application to restrain parties in Suit 37 from disclosing documents
2017-01-12	Hearing date
2017-06-08	Hearing date
2017-06-12	Hearing date
2017-07-10	Hearing date
2017-08-29	Hearing date
2019-02-22	Judgment date

7. Legal Issues

Legal Advice Privilege
- Outcome: The court held that legal advice privilege subsisted in the Item 3 and Item 4 documents.
- Category: Substantive
- Sub-Issues:
  - Scope of legal advice privilege for in-house counsel
  - Waiver of legal advice privilege
  - Communications with third parties
Litigation Privilege
- Outcome: The court held that litigation privilege subsisted in the Item 4 documents.
- Category: Substantive
- Sub-Issues:
  - Reasonable prospect of litigation
  - Dominant purpose of litigation
Implied Waiver
- Outcome: The court held that there was no implied waiver of privilege.
- Category: Substantive
- Sub-Issues:
  - Inconsistent conduct
  - Selective disclosure
Employment Relationship
- Outcome: The court found that an employment relationship existed between Hwang and Tuan Sing.
- Category: Substantive
- Sub-Issues:
  - Control test
  - Integration test

8. Remedies Sought

Injunctive Relief
Declaratory Relief

9. Cause of Actions

Professional Negligence

10. Practice Areas

Commercial Litigation
Construction Law
Legal Professional Privilege

11. Industries

Construction

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others	High Court	Yes	[2009] 1 SLR(R) 42	Singapore	Cited for guidance on the appropriate procedure for intervening in a suit to claim legal privilege over documents.
ARX v Comptroller of Income Tax	Court of Appeal	Yes	[2016] 5 SLR 590	Singapore	Cited to confirm that legal professional privilege applies at common law to in-house legal counsel and for the principle of implied waiver.
Kosui Singapore Pte Ltd v Kamigumi Singapore Pte Ltd and another	High Court	Yes	[2012] SGHC 43	Singapore	Cited to show that a seconded employee could be regarded as an employee of the company to which he is seconded.
Stratech Systems Ltd v Nyam Chiu Shin (alias Yan Qiuxin) and others	Court of Appeal	Yes	[2005] 2 SLR(R) 579	Singapore	Cited to show that the “true and effective” employer of the particular employees in question was the company to which they were seconded.
FSBM CTech Sdn Bhd v Technitium Sdn Bhd	Unknown	Yes	[2012] 9 MLJ 281	Malaysia	Cited regarding secondment, but the court disagreed with the relevance of the case.
Raghavan Pillai and another v Indufela Co and others	Unknown	Yes	[1979–1980] SLR(R) 399	Singapore	Cited for the principle that unless the third party is vested with the entire and absolute control of such an employee by the general employer, the third party will not be regarded as his employer.
Karuppan Bhoomidas v Port of Singapore Authority	Unknown	Yes	[1977–1978] SLR(R) 204	Singapore	Cited for the principle that partial control by the hirer is not enough and that entire and absolute control is necessary in order to transfer liability from the shoulders of the employer.
Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd and other appeals	Court of Appeal	Yes	[1997] 2 SLR(R) 746	Singapore	Cited to show that the newer cases have used the test of control.
Stevenson Jordan and Harrison Ltd v Macdonald and Evans	Unknown	Yes	[1952] 1 TLR 101	England and Wales	Cited for the rationale of the integration test.
Market Investigations Ltd v Minister of Social Security	High Court	Yes	[1969] 2 QB 173	England and Wales	Cited to show that it is by no means a necessary incident of a contract of service that the servant is prohibited from serving any other employer.
Hrushka v Canada (Minister of Foreign Affairs)	Federal Court of Canada	Yes	[2009] FC 69	Canada	Cited for the principle that substantive provision will not be incorporated in a definition.
Scandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals	Court of Appeal	Yes	[2007] 2 SLR(R) 367	Singapore	Cited for the principle that if an employee is not authorised to communicate with the company’s solicitors for the purpose of obtaining legal advice, then that communication is not protected by legal advice privilege.
Three Rivers District Council and others v Governor and Company of the Bank of England (No 5)	Unknown	Yes	[2003] 1 QB 1556	England and Wales	Cited regarding instructions to seek and receive advice from external lawyers.
Re RBS (Rights Issue Litigation)	Unknown	Yes	[2017] 1 WLR 1991	England and Wales	Cited regarding instructions to seek and receive advice from external lawyers.
United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd and others	High Court	Yes	[2018] 4 SLR 391	Singapore	Cited for the principle that in a situation where the privileged document is disclosed to, presented to, or shared with another, what matters is the context and purpose for which this was done.
Mykytowych, Pamela Jane v V I P Hotel	Court of Appeal	Yes	[2016] 4 SLR 829	Singapore	Cited for the court’s equitable jurisdiction to restrain breaches of confidence.
Wee Shuo Woon v HT SRL	Court of Appeal	Yes	[2017] 2 SLR 94	Singapore	Cited for the general principle that equity imposes a duty of confidence whenever a person receives information he knows or ought to know to be fairly and reasonably regarded as confidential.
Attorney-General v Guardian Newspapers (No 2)	Unknown	Yes	[1990] 1 AC 109	England and Wales	Cited for the general principle that equity imposes a duty of confidence whenever a person receives information he knows or ought to know to be fairly and reasonably regarded as confidential.
Campbell v MGN Ltd	Unknown	Yes	[2004] 2 AC 457	England and Wales	Cited for the general principle that equity imposes a duty of confidence whenever a person receives information he knows or ought to know to be fairly and reasonably regarded as confidential.
Three Rivers District Council v Bank of England (No 6)	Unknown	Yes	[2005] 1 AC 610	England and Wales	Cited for the requirements of litigation privilege.
Hellenic Mutual War Risks Association (Bermuda) Ltd and General Contractors Importing and Services Enterprises v Harrison	Unknown	Yes	[1997] 1 Lloyd’s Rep 160	Bermuda	Cited for the requirements of litigation privilege.
Waugh v British Railways Board	Unknown	Yes	[1980] AC 521	England and Wales	Cited for the requirements of litigation privilege.
Collins v London General Omnibus Company	Unknown	Yes	(1893) 68 LT 831	England and Wales	Cited regarding the requirements of litigation privilege, but disapproved.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Evidence Act (Cap 97, 1997 Rev Ed)	Singapore
Evidence Act (Cap 97, 1997 Rev Ed) s 128A(1)	Singapore
Evidence Act (Cap 97, 1997 Rev Ed) s 131	Singapore
Evidence Act (Cap 97, 1997 Rev Ed) s 131(2)(b)	Singapore
Evidence Act (Cap 97, 1997 Rev Ed) s 3(7)	Singapore
Evidence Act (Cap 97, 1997 Rev Ed) s 128A(4)	Singapore
Companies Act (Cap 50, 2006 Rev Ed) s 6	Singapore
Companies Act (Cap 50, 2006 Rev Ed) s 5(1)	Singapore
Evidence Act (Cap 97, 1997 Rev Ed) s 133	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Legal professional privilege
In-house legal counsel
Secondment
Related corporations
Waiver
Confidentiality
Employment relationship
Quantity surveyor
Annexures
Replacement Tender

15.2 Keywords

Legal professional privilege
In-house counsel
Construction dispute
Singapore
Evidence Act
Privilege
Waiver

17. Areas of Law

Area Name	Relevance Score
Evidence Law	90
Legal Ethics and Professional Responsibility	75
Contract Law	50
Professional Negligence	40
Construction Law	30
Administrative Law	20

16. Subjects

Legal Professional Privilege
Evidence
Civil Procedure