HT S.R.L. v Wee Shuo Woon [2016] SGHC 15

Significance: Singapore High Court holds that privileged & confidential emails obtained by a hacker and leaked onto WikiLeaks retain the protection of privilege & confidentiality. Court ordered for emails to be expunged from the defendant’s affidavits.

Summary of Facts

In this case, the plaintiff company sued the defendant ex-employee for breach of employment contract. In the course of the suit, the plaintiff’s computer systems were hacked by an unknown party. There’s no evidence that the defendant was involved in the hacking. The plaintiff’s internal data and information were uploaded on WikiLeaks. The information included emails between the plaintiff and their lawyers, Morgan Lewis Stamford LLC (the Emails). These emails contained legal advice and information regarding the suit. The emails included express statements that they contained privileged and confidential information.

The defendant then filed an application under O 18 r 19 of the Rules of Court (ROC) to strike out most of the plaintiff’s statement of claim, relying on the contents of the leaked emails. The plaintiff then filed an application under O 41 r 6 to expunge the references to the emails, and copies of them, from the defendant’s affidavit. The plaintiff also applied for an injunction to restrain the defendant from further use of the emails. The plaintiff later proceeded only on the prayer to expunge and not the injunction. At the first instance, the Assistant Registrar ordered for the emails to be expunged. The defendant appealed to the High Court judge in chambers.

The court (Judicial Commissioner Hoo Sheau Peng as coram) distilled the following issues at [12]:

(a) Was the matter governed exclusively by the Evidence Act (EA)? If the defendant’s counsel was correct that only the EA need be considered, then the bulk of the plaintiff’s counsel’s submissions, based on the common law, need not be considered.

(b) Did the common law provide the plaintiff any basis to seek the prayer to expunge? The underlying question was whether the matter should be governed by the admissibility of evidence, privilege or confidentiality, or a combination of two or all three.

(c) Did the fact that the Emails had been uploaded onto the internet and were generally accessible pose a barrier to the grant of the prayer to expunge? In considering this issue, the court examined the “public domain” arguments raised by the parties.

Whether the Evidence Act governed the matter

The court held that the EA did not even apply in this case. Section 2(1) of the EA states that it “shall apply to all judicial proceedings in or before any court, but not to affidavits presented to any court”. The present matter concerned evidence contained in affidavits, and so the EA did not apply: [16].

The common law rules on legal professional privilege apply in relation to affidavits filed in interlocutory proceedings which precede a trial: [17].

Confidentiality is a potential legal basis for relief. Unlike the notions of admissibility and privilege which form aspects of the law of evidence, the law of confidence falls outside the law of evidence, and is not affected by the EA: [18].

Whether the common law provided basis for the plaintiff’s relief to expunge the leaked Emails from the interlocutory affidavits?

First, the court distinguished the concepts of privilege from admissibility of evidence: [19].

A privilege is asserted by a person to say that he or she has “a right to resist the compulsory disclosure of information” (see B and others v Auckland District Law Society and another [2003] 3 WLR 859 at [67], per Lord Millett). The effect of a successful claim is that the disclosure of information may be withheld.

In contrast, “admissibility” describes a particular quality of evidence. It relates to the question of whether that particular piece of evidence may be received by the court as proof of certain facts. Under the common law, evidence is admissible if it is relevant to the matters in issue and the court is not concerned with how the evidence was obtained. In Black & Decker Inc v Flymo Ltd [1991] 1 WLR 753 at 755C, Hoffmann J (as he then was) said that once a “document has passed into the hands of the other party the question is no longer one of privilege but of admissibility.”

The court held that it was wrong to say that because of legal professional privilege, the leaked Emails should not enter into evidence. That confused the concept of privilege with admissibility. Privilege protects the plaintiff and his lawyer from being compelled to disclosed privileged information. But it has nothing to do with whether the Emails may be adduced as evidence, which is an issue of admissibility: [20].

Second, the court then distinguished privilege from confidentiality.

Confidentiality is a pre-requisite of privilege. Unless the communication is a confidential one, there can be no question of legal professional privilege attaching thereto (see Three Rivers District Council v Bank of England (No 6) [2004] 3 WLR 1274 at [8], [26], per Lord Scott of Foscote). However, confidence alone does not confer a right upon persons to resist compulsory disclosure: [21].

Hoo JC observed that since the 19th century, equity has intervened to prevent the unauthorised use of the confidential information contained in privileged material as evidence in court proceedings through the grant of injunctions: [22]. The line of cases began with the English Court of Appeal decision in Calcraft v Guest [1898] 1 QB 759.

The court noted that an injunction is only available before the documents have entered into evidence or otherwise have been relied upon at trial (see Goddard and another v Nationwide Building Society [1986] 3 WLR 734 at 744H–745A, per Nourse LJ). When the court considers whether to grant the injunction, it decides the matter based on the law on the breach of confidence. However, once the documents have been entered into evidence, then the matter moves to the domain of the law of evidence. Thereafter, whether the evidence may be expunged from the court’s record falls to be governed by the common law rules on admissibility and, if it goes that far, the court’s inherent discretion to exclude otherwise admissible evidence. If a plaintiff desires to seek relief, he must do so before the matter falls out of the reach of equity (and the law of confidence) and passes into the realm of the law of evidence: [30].

The English High Court has summarised the legal position as such: “once a privileged document comes into the hands of an opposing party, the law in relation to breach of confidence comes into play and the Court may intervene in its equitable jurisdiction to prevent an actual or threatened breach of confidence” (see Harry George Kousouros v Richard O’Halloran and another [2014] EWHC 2294 (Ch) at [65]): [32].

The court considered 2 Singapore cases: Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others [2009] 1 SLR(R) 42 (HC) and Gelatissimo Ventures (S) Pte Ltd and others v Singapore Flyer Pte Ltd [2010] 1 SLR 833 (HC).

In Tentat, the court followed Goddard and held that the critical question was whether the privileged and confidential information in question had been used in any court proceedings or had otherwise been released into the public domain. On the facts, while certain disclosed privileged and confidential emails had been exhibited in an affidavit filed in respect of the application for summary judgment, the hearing for summary judgment had yet to take place. Thus, the emails had not formally been admitted into evidence and the offending portions of the affidavit could still be expunged and an order could be made to restrain the defendants from future use of the same: [36].

In Gelatissimo, the court followed the principles in Tentat and similarly held that because the privileged information in question had not been used in any court proceedings or released into the public domain, the court could restrain the defendant from using them.

Hoo JC then distilled the following key principles at [40]:

First, the fact that a document is privileged is not a barrier to the admissibility of copies of the same into evidence.

Second, the court may, in the exercise of its equitable jurisdiction to restrain breach of confidence, restrict the disclosure and use of privileged documents which have been disclosed to third parties to protect its confidential character.

Third, the court may restrain the use of the privileged documents by way of an order to expunge offending portions of pleadings or affidavits. The court is not limited to an order for delivery up or the grant of an injunction.

Fourth, such an application must be filed before the privileged documents have been formally admitted into evidence. After the privileged documents have entered into evidence, their exclusion would then fall to be governed by the common law rules on evidence.

Whether the Emails have entered into the “public domain” and have therefore lost the nature of confidentiality

The court first distinguished two senses of the term “public domain”: [44].

In the narrow sense, to say that documents have entered into the “public domain” merely means that the documents have entered into evidence (ie, entered the court’s record), putting them beyond the reach of equity and the law of confidence. On the facts, the leaked Emails have only been referred to and exhibited in the defendant’s affidavit filed in support of the striking out application, which has yet to be heard. Thus, the Emails have not yet entered into evidence and the court still had the jurisdiction to order to expunge them on the basis of the law of confidentiality: [44].

In the broad sense, to say that the documents have entered into the “public domain” is to say that they have become “public property and public knowledge” (see Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47): [45].

The court cited Attorney-General v Observer Ltd and others and other appeals [1990] 1 AC 109 (the “Spycatcher” case) that the scope of the duty of confidentiality is subject to the limiting principle that confidentiality only applies to the extent that the information is confidential. Hoo JC quoted Lord Goff at 282C:

In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it.

The court held that the touchstone regarding the public domain is whether the degree of accessibility to the information is such that, in all the circumstances, it would not be just to require the party against whom a duty of confidentiality is alleged to treat the information as confidential” (citing R G Toulson and C M Phipps, Confidentiality (Sweet & Maxwell, 3rd Ed, 2012) (“Confidentiality”) at para 3-110). The fact that the documents are publicly accessible (even on the internet) would not on its own necessarily stifle an action in confidence: [47].

The reason why the law of confidence would not cover documents in the public domain is because generally, there is no purpose to grant an injunction when the material is already publicly known and accessible. This requires a court to examine if there is any value to the party claiming confidentiality against the other party and is essentially a question of fact: [48]-[49].

On the facts, the plaintiff had a compelling interest in restraining the use of the Emails. This was his desire to avoid having the contents of his discussions with his lawyer over the conduct of the suit, which were full, free, frank, and told in an atmosphere of confidence, used against him: [51]. Further, the plaintiff was the victim of a cybercrime, and the defendant was aware of this fact: [52].

Thus, the court held that an obligation of confidentiality could still be justly and reasonably imposed on the Defendant in respect of the Emails: [54].

Whether the court had a discretion to refuse relief

The court further considered at [57] the issue of whether it had any discretion in the matter and, if so, what the extent of this discretion was.

The nub of the issue was whether the court may balance the public interest in having the maximum relevant material available to the court (which militates against the grant of relief) and the public interest in the maintenance of confidentiality (which leans in favour of the grant of an injunction): [58].

The court held that where it concerns legal professional privilege, this protection is absolute and therefore the court does not have the discretion to refuse relief on the ground that it would increase the amount of relevant material information available to the court: [60].