Compania De Navegacion Palomar, S.A. and others v Ernest Ferdinand Perez De La Sala

Six companies, led by Compania De Navegacion Palomar, S.A., were the plaintiffs in Suit No 178 of 2012 against Ernest Ferdinand Perez De La Sala and in HC/S 398/2018 against Isabel Brenda Koutsos, and the defendants in HC/OS 594/2018 brought by John Manners and Company Limited. In S 178 the companies alleged that Ernest had moved assets out of their bank accounts into his personal accounts with UBS Bank (Canada); the Court of Appeal found the companies were the legal owners of the assets and ordered them returned. In S 398 the High Court found that US$2.75m transferred to Isabel came from monies Ernest had misappropriated from the companies and held her liable. OS 594, an application to replace the companies as trustees, appeared to have been stayed. Ernest had died and was represented by the executrix of his estate.

On 15 October 2021 the companies sued UBS in the Ontario Superior Court of Justice over its alleged unlawful involvement in helping Ernest misappropriate and conceal the assets. They then filed three summonses (Summons No 970, 971 and 975 of 2025) seeking permission to disclose and use affidavits from the Singapore proceedings in the Canadian action, because of the Riddick principle.

1. When affidavits filed or documents disclosed in court proceedings, though not under a court order, are disclosed under compulsion so that the Riddick principle applies.
2. Whether the Riddick undertaking should be lifted so that the affidavits could be used in the Canadian proceedings.

The judge explained that the Riddick principle bars a party from using documents obtained through discovery for any purpose other than the action in which they were obtained, and that it applies only where disclosure was made under compulsion. Disclosure in court is not enough by itself, but the lack of a court order does not make disclosure voluntary either; the court must look at the context. Documents a party chooses to use for its own defence are voluntary, while affidavits in examination of judgment debtor proceedings, or disclosure made with an express reservation to resist an application, are not. The judge agreed with Sang Cheol Woo v Spackman, Charles Choi and others [2024] SGHC 299 on how to read the Court of Appeal's statements. Where a compelled affidavit is later referred to in another affidavit of the same party, the context of the later affidavit decides whether the earlier one has become voluntary.

The judge did not accept the companies' approach of seeking declarations or lifting orders by category; each affidavit must be examined for compulsion. He did not need to decide that for each of the 46 affidavits, because he would lift the undertaking in any event. The respondent in SUM 971 consented and the others took no position. The Canadian action was related and a logical continuation of the companies' efforts to recover the assets, giving a strong public interest in having all relevant evidence before that court. There was no collateral or improper purpose suggesting abuse of process.

Chua Lee Ming J granted the applications to the extent the documents were subject to the Riddick principle, giving the companies permission to disclose and use the specified affidavits in the Canadian proceedings, with liberty to apply for further orders. He made no order as to costs, as the respondents did not ask for costs.