Case: Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd [2020] SGCA 76 – multifactorial balancing for lifting Riddick principle; guidance on search orders (Anton Piller)

Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd [2020] SGCA 76

Significance: Singapore Court of Appeal held that a multifactorial balancing exercise is to be adopted in determining whether a party ought to be released from its Riddick undertaking not to use documents ordered to be disclosed in civil proceedings for collateral purposes. The previous two-step test in Beckkett Pte Ltd v Deutsche Bank AG [2005] 3 SLR(R) 555, viz. inter alia prejudice as overriding factor, is not to be applied.

Search orders (or Anton Piller orders) should be targeted and specific in their reach; the breadth of search orders should be carefully calibrated to meet the needs of the discovering party only, and no further.

Multifactorial Balancing for Lifting Riddick Undertaking

The well-established Riddick principle provides that documents ordered to be disclosed in discovery in civil proceedings were to be used only for the purposes of the proceedings from which the disclosure was made, and not for any collateral purpose unless with express leave of court.

Under the multi-factor balancing exercise, leave would be granted if, in the circumstances of the case, the interests advanced for the extraneous use of the disclosed documents outweighed the interests that were protected by the Riddick undertaking.

Factors favouring lifting the Riddick undertaking included:

(a) countervailing legislative policy;

(b) support of related proceedings;

(c) investigation and prosecution of criminal offence(s);

(d) public safety concerns; and

(e) international comity: at [71].

Factors disfavouring lifting the Riddick undertaking included:

(a) the public interest in encouraging full disclosure;

(b) the disclosing party’s privacy interests;

(c) injustice or prejudice to the disclosing party;

(d) improper purpose for which leave was sought; and

(e) the timeous assertion of the privilege against self-incrimination by the disclosing party: at [72]

Prejudice to the disclosing party is not an overriding factor but just one factor with appropriate weight given to it depending on the facts of the case: at [60], [68].

Guidance on Search Orders: at [123]

(a) A search order is an exceptional order which allows the party seeking discovery to infringe upon the privacy of the other party without first giving a right of response to the respondent. To protect the interests of the putative respondent, four strict requirements must thus be met before a search order will be granted (Asian Corporate Services (SEA) Pte Ltd v Eastwest Management Ltd (Singapore Branch) [2006] 1 SLR(R) 901 at [14]):

(i) the applicant must have an extremely strong prima facie case against the respondent;

(ii) the damage that the applicant would suffer would be very serious;

(iii) there is a real possibility that the respondent would destroy the relevant documents; and

(iv) the effect of the search order would not be out of proportion to the legitimate object of the order (“the proportionality requirement”).

(b) The applicant is also bound by the duty of full and frank disclosure. This duty requires the applicant to be extremely careful to avoid misleading the court, either by act or omission, and to disclose all important facts, regardless of whether they are harmful or helpful to the application (Bengawan Solo Pte Ltd and another v Season Confectionary Co (Pte) Ltd [1994] 1 SLR(R) 448 at [12]; The “Vasiliy Golovnin” [2008] 4 SLR(R) 994 at [91] [95]). Failure to abide by this duty would render the search order liable to be set aside (BP Singapore Pte Ltd v Quek Chin Thean and others [2011] 2 SLR 541 at [22]). To further safeguard the interests of the respondent, the applicant is also bound by the various undertakings to the court; being undertakings to the court, they can only be varied or modified by the court, and are not to be disregarded at whim (see GD at [18]–[19]). Breaches of undertakings to the court can, in the appropriate case, amount to contemptuous conduct (Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1 at [108], citing Weirs v Weirs [2012] FMCAfam 247 at [70]).

(c) Given the proportionality requirement, in applying for a search order, the applicant should also be clear as to what categories of documents and items are required. This entails a careful consideration of the precise documents that are necessary to support the applicant’s case, and whether such information or documents will be held in different formats (eg, in hard copy and/or electronically). Where the envisaged documents are likely to be stored electronically, search terms should be proposed to ensure that the documents reaped from the respondent’s devices will not be unduly broad. A proposed plan to the court to limit the scope of otherwise expansive searches would also be useful in the determination of whether the breadth of the search order is proportionate to its object.

(d) Once the application for a search order and the supporting affidavit(s) are placed before the judge, the judge must be satisfied that the strict legal requirements necessary for granting a search order have been met. Consistent with the proportionality requirement, attention must be had to the proper remit of the search order – in this regard, after ascertaining the precise purpose for which the search order is sought, the judge should ensure that the scope of the search order is carefully calibrated to cater to the specific purpose for which the order is sought, and no further. For example, in Nikkomann Co Pte Ltd and others v Yulean Trading Pte Ltd [1992] 2 SLR(R) 328), where the allegation was that the appellants had conspired to defraud the respondent of its entitlement to the proceeds of certain timber goods, the search orders were restricted to determining the whereabouts of the alleged timber goods and their sale proceeds, if any. Additionally, where search orders are not intended to apply to any specific class of documents that belong to the respondent, the search orders should expressly prohibit the seizure of such documents. Finally, if the documents sought are in electronic form, judges ought to assess the adequacy of the search terms and/or the proposed plan in limiting the scope of documents, and the assistance of an independent computer expert (see [126] below) could be helpful in circumscribing the breadth of the search terms.

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