CSO v CSP: Without Prejudice Privilege & Admissibility of Evidence in Settlement Negotiations
In CSO v CSP, the Singapore High Court addressed the scope of 'without prejudice' privilege in civil proceedings. The plaintiff, CSO, sought an injunction to restrain the defendant, CSP, from receiving payment on a guarantee. The dispute centered on whether certain emails exchanged during settlement negotiations were admissible as evidence. The court held that the 'without prejudice' privilege protects the entirety of such communications, not just admissions, but allowed the defendant to use portions of the emails to rebut the plaintiff's assertions under the Delay/Acquiescence Exception. The plaintiff's appeal was dismissed, with limitations on the portions of disputed emails that the first defendant could refer to.
1. Case Overview
1.1 Court
General Division of the High Court of the Republic of Singapore1.2 Outcome
Appeal dismissed, with limitations on the portions of disputed emails that the first defendant could refer to.
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore High Court judgment on without prejudice privilege, holding that the privilege protects the whole of without prejudice communications, not only admissions.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| CSO | Plaintiff, Appellant | Corporation | Appeal Dismissed in part | Partial | Wong Soon Peng Adrian, Ang Leong Hao, Wayne Yeo, Sia Bao Huei |
| CSP | Defendant, Respondent | Corporation | Judgment for Defendant | Won | Toh Chen Han, Ang Wee Jian, Glenn Sim Sze Nyuang |
| CSQ | Defendant, Respondent | Corporation | Neutral | Neutral | Tan Hong Liang, Kwek Yuan Justin, Tan Hao Ting Valerie |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Andre Maniam | Judge of the High Court | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Wong Soon Peng Adrian | Rajah & Tann Singapore LLP |
| Ang Leong Hao | Rajah & Tann Singapore LLP |
| Wayne Yeo | Rajah & Tann Singapore LLP |
| Sia Bao Huei | Rajah & Tann Singapore LLP |
| Toh Chen Han | MPillay |
| Ang Wee Jian | MPillay |
| Glenn Sim Sze Nyuang | MPillay |
| Tan Hong Liang | JWS Asia Law Corporation |
| Kwek Yuan Justin | JWS Asia Law Corporation |
| Tan Hao Ting Valerie | JWS Asia Law Corporation |
4. Facts
- The first defendant engaged the plaintiff to supply equipment for a project.
- The plaintiff provided the first defendant with a guarantee in respect of the performance of the plaintiff’s obligations.
- The first defendant procured a letter of credit in favor of the plaintiff.
- Disputes arose between the plaintiff and the first defendant regarding provisional acceptance and payments.
- The first defendant called on the guarantee, alleging the plaintiff failed to fulfill its obligations.
- The plaintiff sought an injunction to restrain payment on the guarantee.
- The first defendant referred to emails with the subject header “Settlement/Gentlemen Agreement” in its reply affidavit.
5. Formal Citations
- CSO v CSP and another, , [2023] SGHC 24
- CSO v CSP, 268 of 2022, Originating Summons No 268 of 2022
- CSO v CSP, 219 of 2022, Registrar’s Appeal No 219 of 2022
- CSO v CSP, 268/2022, HC/OS 268/2022
- CSO v CSP, 1115/2022, HC/SUM 1115/2022
- CSO v CSP, 2046/2022, HC/SUM 2046/2022
- CSO v CSP, 98/2022, AD/CA 98/2022
- CSO v CSP, 99/2022, AD/CA 99/2022
6. Timeline
| Date | Event |
|---|---|
| Plaintiff informed first defendant it would be making a claim under the Letter of Credit for the Retention Money. | |
| Plaintiff wrote to the first defendant stating that provisional acceptance under the supply contract would be achieved on 2020-02-23. | |
| First defendant replied to plaintiff's letter, disagreeing with the plaintiff. | |
| Retention money was paid to the plaintiff. | |
| First defendant called on the guarantee. | |
| Plaintiff filed HC/OS 268/2022 for an injunction. | |
| Plaintiff filed HC/SUM 1115/2022 for an interim injunction. | |
| Interim injunction was granted. | |
| Hearing date. | |
| Judgment date. |
7. Legal Issues
- Without Prejudice Privilege
- Outcome: The court held that the 'without prejudice' privilege protects the whole of such communications, not just admissions, but allowed the defendant to use portions of the emails to rebut the plaintiff's assertions under the Delay/Acquiescence Exception.
- Category: Substantive
- Sub-Issues:
- Admissibility of communications made during settlement negotiations
- Scope of protection under without prejudice privilege
- Exceptions to without prejudice privilege (Delay/Acquiescence Exception)
8. Remedies Sought
- Injunction to restrain the second defendant bank from paying on the guarantee
- Injunction to restrain the first defendant from receiving payment on the guarantee
9. Cause of Actions
- Injunction to restrain payment on a guarantee
10. Practice Areas
- Commercial Litigation
- Dispute Resolution
11. Industries
- Construction
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Quek Kheng Leong Nicky and another v Teo Beng Ngoh and others and another appeal | Court of Appeal | Yes | [2009] 4 SLR(R) 181 | Singapore | Cited for the general principle that communications made on a ‘without prejudice’ basis in settlement negotiations are not admissible. |
| 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 policy of encouraging settlements as a basis for the common law principle relating to the admissibility of without prejudice communications. |
| Cutts v Head | Chancery Division | Yes | [1984] Ch 290 | England and Wales | Cited for the policy of encouraging parties to settle disputes without resort to litigation. |
| Rush & Tompkins Ltd v Greater London Council | House of Lords | Yes | [1989] AC 1280 | United Kingdom | Cited for affirming the policy of encouraging settlements. |
| Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Ltd | High Court | Yes | [2007] 2 SLR(R) 433 | Singapore | Cited for affirming the policy of encouraging settlements. |
| Unilever Plc v Procter & Gamble Co | Court of Appeal | Yes | [2000] 1 WLR 2436 | England and Wales | Cited for the Broad Approach to without prejudice privilege and the Delay/Acquiescence Exception. |
| Walker v Wilsher | Queen's Bench Division | No | (1889) 23 QBD 335 | England and Wales | Cited regarding the Delay/Acquiescence Exception. |
| Soon Peng Yam and another (trustees of the Chinese Swimming Club) v Maimon bte Ahmad | High Court | No | [1995] 1 SLR(R) 279 | Singapore | Cited to suggest that Singapore law only recognises the Delay/Acquiescence Exception in its narrow form. |
| McFadden v Snow | Supreme Court of New South Wales | Yes | (1952) 69 WN (NSW) 8 | Australia | Cited as a similar case regarding the Delay/Acquiescence Exception. |
| Muller v Linsley & Mortimer | Court of Appeal | Yes | [1996] PNLR 74 | England and Wales | Cited regarding exceptions to without prejudice privilege. |
| Ernest Ferdinand Perez De La Sala v Compañia De Navegación Palomar, SA and others and other appeals | Court of Appeal | Yes | [2018] 1 SLR 894 | Singapore | Cited for the requirements for without prejudice privilege to apply. |
| Yokogawa Australia Pty Ltd and Others v Alstom Power Ltd | Supreme Court of South Australia | Yes | [2009] SASC 377 | Australia | Cited for accepting the Broad Approach. |
| Poon Loi Tak (the administrator of the late Poon Nuen, deceased) v Poon Loi Cheung Desmond | High Court | Yes | [2020] 1 HKLRD 511 | Hong Kong | Cited for accepting the Broad Approach. |
| Phoa Estate v Ley | Court of Queen's Bench of Alberta | Yes | [2020] AJ No 555 | Canada | Cited for accepting the Broad Approach. |
| Krishna Kumaran s/o K Ramakrishnan v Kuppusamy s/o Ramakrishnan | High Court | Yes | [2014] 4 SLR 232 | Singapore | Cited for applying the common law without prejudice principle to a communication made to a messenger or informal mediator. |
| Schering Corporation v CIPLA Ltd | High Court of Justice | Yes | [2004] EWHC 2587 (Ch) | England and Wales | Cited for applying the Broad Approach. |
| Greenline-Onyx Envirotech Phils, Inc v Otto Systems Singapore Pte Ltd | Court of Appeal | No | [2007] 3 SLR(R) 40 | Singapore | Cited regarding communications of facts unconnected to settlement negotiations. |
| Bradford & Bingley plc v Rashid | House of Lords | No | [2006] 1 WLR 2066 | United Kingdom | Cited regarding communications of facts unconnected to settlement negotiations. |
| Field v Commissioner for Railways for NSW | High Court of Australia | No | (1957) 99 CLR 285 | Australia | Cited as an example of a statement of fact not fairly incidental to the purpose of settling a dispute. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Evidence Act 1893 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Without prejudice privilege
- Settlement negotiations
- Admissions
- Delay/Acquiescence Exception
- Letter of Credit
- Guarantee
- Provisional acceptance
- Retention money
15.2 Keywords
- without prejudice
- privilege
- evidence
- settlement
- negotiations
- admissibility
- injunction
- letter of credit
- guarantee
16. Subjects
- Evidence
- Civil Procedure
- Contract Law
17. Areas of Law
- Civil Procedure
- Evidence Law
- Privileges
- Without Prejudice Privilege