LEONG QUEE CHING KAREN v LIM SOON HUAT & 5 Ors

Facts

Leong Quee Ching Karen, a minority shareholder in Seng Lee Holdings Pte Ltd (SLH), brought Originating Claim No 158 of 2022 against SLH's majority shareholders, including her brothers Lim Soon Huat and Lim Soon Heng, alleging minority oppression. SLH had been set up by their late father, Dato Lim Kim Chong, to hold assets for one group of his children under a family deed. Under the amended deed, the other group of beneficiaries was to procure the transfer of two properties and a $9m sum to SLH. A complaint in the oppression claim was that the brothers intended the properties to go to Soon Huat and his son instead of SLH.

In an application for an interim injunction to stop the properties being transferred, the brothers filed affidavits exhibiting emails exchanged between the families' lawyers after a tense meeting on 7 August 2020, several of them marked without prejudice. They relied on a June 2022 letter from some members of the other group that referred to one of the emails. In Summons No 3376 of 2022, the claimant applied to strike out the emails and the related affidavit paragraphs. The defendants argued that she lacked standing, that the emails were not genuine settlement communications, that any privilege had been waived, and that the Muller exception or the doctrine against approbating and reprobating applied.

Issues

1. Whether the claimant had standing to assert without prejudice privilege over the emails.
2. Whether the emails were protected by without prejudice privilege.
3. Whether the claimant had waived the privilege.
4. Whether the Muller exception or the doctrine of approbation and reprobation displaced the privilege.

Holding

Goh Yihan JC allowed the application in part. All the emails except the last one, sent by Mr Wee on 9 November 2020 at 4.42pm, were held privileged and ordered expunged from the affidavits along with the related paragraphs. The defendants were to refile the affidavits within 14 days, and costs submissions were to follow if costs were not agreed.

Reasoning

On standing, a party must have taken part in the negotiations personally or through an agent. The claimant had done so because she was represented by the same law firm that acted for her group during the exchanges, which Soon Heng himself admitted.

On privilege, the judge looked at the context of the meeting. It had been called because changes to the deed transfers were proposed, both sides brought lawyers, and it ended early in tension. The emails continued those unresolved issues and included concessions, such as an offer to pay the $9m straight to the group's holding company. Many were marked without prejudice by lawyers, which put the burden on the defendants to show why the label should be ignored, and they did not discharge it. The last email from Mr Wee was different: it set out allegations, made no attempt to settle and told the other side it was free to do as it wished, so it was not privileged.

On waiver, the claimant was not a party to the June 2022 letter, and its passing reference to one email without discussing what it said was not the clear and unequivocal conduct that waiver requires.

On the exceptions, the judge held that the Muller exception, which admits without prejudice material relevant for reasons other than its truth, does not apply in Singapore. Under s 2(2) of the Evidence Act, new evidential rules must be consistent with the Act and its rationale. The exception conflicts with both the public policy and the implied agreement behind the privilege, and with the broad approach that protects settlement communications as a whole rather than dissecting them. Even if it did apply, the defendants had not identified an issue that could not fairly be decided without the emails. Approbation and reprobation did not apply because the claimant had received no benefit from an inconsistent position; she sought to strike out only the emails, not the June 2022 letter. Privileged communications also carry no duty of disclosure to the court.

From the judgment