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    11:28 PM Gerald Leong (Practice Trainee, Drew & Napier LLC)

    High Court Clarifies Scope of Riddick Principle in Singapore: Foo Jong Long Dennis v Ang Yee Lim [2015] 2 SLR 578

        

    If a document is disclosed during discovery, it is subject to an implied undertaking not to be used for a collateral purpose. This is known as the Riddick principle. However, does the Riddick principle still apply if the said document has been used in open court? The Singapore High Court recently had a chance to consider this for the first time in Foo Jong Long Dennis v Ang Yee Lim  [2015] 2 SLR 578.

    Facts

    The plaintiff and defendants were, at different times, directors of Raffles Town Club Pte Ltd (“RTC”) and two other companies. In 2006, RTC sued the plaintiff, the defendants and a third party for breach of directors’ duties owed to RTC (“the 2006 Suit”). As part of the discovery process in that suit, the defendants disclosed a set of meeting minutes taken in 2001 (“the 2001 Minutes”). During the trial of the 2006 Suit, parts of the English translation of the 2001 Minutes were referred to during the cross-examination of the defendants. These exchanges were recorded in verbatim transcripts of the proceedings at trial. 

    In a separate suit commenced in 2013, the plaintiff sued the defendants for misrepresentation, conspiracy, and breaches of the Memorandum and Articles of Association of the abovementioned companies and of the SGX Listing Manual (“the 2013 Suit”). One of the bases for the plaintiff’s suit was that the defendants had entered into an agreement to sell shares in RTC and the two other companies to third parties. This was allegedly in breach of the Memorandum and Articles of Association of the said companies. The plaintiffs alleged that the 2001 Minutes were evidence of the agreement to sell the said shares.

    For that reason, the plaintiff sought to introduce the 2001 Minutes in the 2013 Suit. The defendants resisted on the ground that this was in breach of the Riddick principle since the 2001 Minutes were obtained from the discovery process of the 2006 Suit. This issue was heard as a preliminary issue at the trial of the 2013 Suit. The issue was crucial to the plaintiff’s claim because the 2001 Minutes formed the main basis to establish the said agreement.

    Issue before the court

    The issue presented was whether the 2001 Minutes were still subject to the Riddick principle after they had been used in open court during the 2006 Suit. If the answer was yes, then the plaintiff would be precluded from using it in the 2013 Suit. 

    The decision

    Justice Chan Seng Onn held that the Riddick principle no longer applied once a document had been used in open court. However, the disclosing party could apply to court at the time the document is used in court for the implied undertaking to continue (at [66]).

    The Court first confirmed that the Riddick principle was applicable in Singapore. Citing its namesake decision of Riddick v Thames Board Mills Ltd [1977] QB 881, the Court observed that the discovery process requires a balance between the public interest in discovering the truth in order that justice is done and the public interest in preserving privacy and protecting confidential information. In compelling discovery, the courts have determined that the public interest in the former outweighs the latter. However, once a disclosed document has served its purpose of doing justice between the parties in an action, the parties’ right to confidentiality should be reinstated. For that reason, parties are under an implied undertaking to the courts not to use documents disclosed during discovery for “any ulterior or alien purpose”. Otherwise, parties would be reluctant to give full disclosure in discovery (at [20]).

    However, neither Riddick nor any of the Singapore cases that recognised it had ever decided the specific issue before the court. The court thus looked to the position in several foreign jurisdictions. 

    Position at common law

    The Court first turned to the common law position in England, where the House of Lords in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (Harman) had decided by a majority of 3-2 that the Riddick principle continued to apply even after a document had been used in open court. For the minority, the Riddick principle ceased to apply once a document had been used in court. The House was split on the applicability of the principle of open justice and the effect of preserving confidentiality on full and frank disclosure.

    The minority in Harman took the view that the common law principle of open justice permitted public scrutiny of judicial proceedings. This scrutiny naturally extended to documents that were used in open court. This would also ensure that documents could be used in public discussion of matters of public interest that have arisen at trial (at [29]). The majority, however, disagreed that open justice should be factored in the balancing exercise (at [31]). 

    Instead, the majority reasoned that confidentiality in documents should be preserved even after they have been used in open court so as to encourage full and frank disclosure during discovery. The minority disagreed. They saw no reason to impose a duty of confidentiality after such documents had already become public knowledge. Furthermore, litigants disclose documents in discovery knowing that they could be used in open court and re-imposing a duty of confidentiality thereafter does not diminish that risk (at [31]).

    The majority in Harman acknowledged that their holding might cause some inconsistencies when it came to transcripts of court proceedings. Transcripts were clearly not subject to confidentiality. Hence, a solicitor who discloses a court transcript that captures the entire document would not be in breach of his undertaking, but it would be a breach if he disclosed the document itself.  

    That being said, the minority’s position in Harman is, by way of legislative intervention, the current legal position in England. Under the UK’s Civil Procedure Rules, a document that has been read in court will cease to be covered by the Riddick principle. 

    The Court then surveyed the position in other common law jurisdictions. The favoured view appears to be that the opposing party owes no duty of confidentiality once a document has been used in court. This was the position at the federal level in Australia and in the states of New South Wales, South Australia and Western Australia. The approach was similar in Canada, Hong Kong and New Zealand.

    Position in Singapore

    In evaluating what the position should be in Singapore, the Court first observed that under the relevant provisions of the Application of English Law Act (Cap. 7A, 1994 Rev Ed), Singapore was free to adopt either the majority or minority’s approach in Harman (at [53]). 

    Chan J decided to adopt the minority’s approach, namely that the Riddick principle no longer applies to a document that has been used in open court, for three reasons.  The first reason is that such a position accords appropriate weight to the principle of open justice in the balancing exercise. The Court rejected the reasoning of the majority in Harman that parties would not be forthcoming during discovery should the Riddick principle cease to apply once a document has been used in open court. His Honour noted that discovery was not a voluntary process and the court could impose a variety of sanctions on a party that failed to comply with its discovery obligations (at [57]). A party that is concerned about confidentiality could apply to court for the undertaking of confidentiality to continue after a document has been used in court (at [58]).

    The second reason for preferring the minority’s approach is that it avoids the difficulties that the majority ran into with court transcripts. Chan J was aware that there may be difficulty in deciding when a document has become public knowledge in some cases, but reasoned that a document that has been used, read or referred to in open court would have become public knowledge (at [63]).

    The final reason that the Court preferred the minority’s approach is that it is favoured in many of the other jurisdictions in the common law world. 

    As for the 2001 Minutes, the Court held that the defendants had not made any application for the implied undertaking of confidentiality to continue after the 2006 Suit. As a result, the plaintiffs were free to use it in the 2013 Suit.  

    Discussion

    Discovery is an important obligation for litigants and takes up considerable time in the life cycle of any case. This decision should be welcomed for clarifying the scope of exposure when a party discloses documents. However, at least two questions remain unanswered by the Court.

    The first is what factors should a court take into account when a party applies to restrict the use of a disclosed document after it has been used in open court? Obviously, it would require some balancing of the public interests of discovering the truth, protect privacy and open justice.  Seeing that the default position adopted by the High Court is that a disclosed document is no longer subject to an implied undertaking of confidentiality, it seems that the public interests of discovering the truth and open justice would ordinarily prevail over the interest in preserving confidentiality. In the English decision of Lilly Icos v Pfiza Ltd (No. 2) [2002] 1 WLR 2253, the English Court of Appeal limited the subsequent use of a disclosed document on the basis that the said document was used to a very limited extent in the earlier set of legal proceedings. Thus, the prohibition on its subsequent use was but a very small dint on the principle of public scrutiny of the trial. Furthermore, the interest in preserving confidentiality was reinforced by the fact that the document contained commercially sensitive information.

    The second question is whether the application to restrict the use of a disclosed document that has been used in open court should be made at the end of the trial for the first action, or whether it should be left to when the opposing party actually seeks to use it in a subsequent action. The High Court in this case ruled that the party should apply at the conclusion of the earlier action. The defendants’ failure to apply for a restriction at the end of the 2006 Suit allowed the 2001 Minutes to be used in the 2013 Suit. This position is sensible in that a party sensitive about confidentiality would want to restrain any collateral use as early as possible. However, the court hearing such an application at the end of the first action would not know the potential value a document may have in any subsequent action. This consideration would be precluded from the balancing exercise. Perhaps the court in restricting the subsequent use of a disclosed document could frame its order such that a party seeking to use it later could be allowed to apply to vary the order.

    Conclusion

    Discovery is part and parcel of the life cycle of an action, and it is remarkable that the question of whether a disclosed document can be used in subsequent proceedings has not previously been considered by our courts. This decision is a laudable first step in clarifying the law. It remains to be seen whether the position taken by the High Court in this case would be codified in the Rules of Court or Practice Directions, as has been done in a number of common law jurisdictions. 

    * This blog entry may be cited as Gerald Leong, "High Court Clarifies Scope of Riddick Principle in Singapore:  Foo Jong Long Dennis v Ang Yee Lim [2015] 2 SLR 578", Singapore Law Blog (17 April 2015) (http://www.singaporelawblog.sg/blog/article/105)

    ** A PDF version of this entry may be downloaded here

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