Significant Singapore Court of Appeal decision clarifying the law of confidence:  Lim Suk Ling Priscilla v Amber Compounding Pharmacy Pte Ltd [2024] SGCA 16

Significance: Singapore Court of Appeal clarifies the law on breach of confidence, when wrongful gain and wrongful loss damages may be claimed for same or different sets of information, and pleadings for such claims.

At [32], the Court clarified that the modified approach in I-Admin (Singapore) Pte Ltd v Hong Ying Ting and others [2020] 1 SLR 1130 (“I-Admin“) was only to address the scenario where a defendant wrongfully accesses confidential information but does not use or disclose it. Only in such scenarios, the wrongful loss interest arises. In other scenarios, the wrongful gain interest is engaged.

At [33], the Court also clarified what it said at [41] of Lim Oon Kuin v Rajah & Tann Singapore [2022] 2 SLR 280, that the defendant must be an unauthorised ‘taker’. The only scenario where a person who lawfully obtains information can be liable for breach of confidence is where there is a ‘real and sensible possibility’ of misuse of confidential information. If there is no intention to improperly use or disclose it, there is no breach of confidence at all.

At [34], the Court affirmed Dedar Singh Gill J’s decision and opined that in pending claims in the same action, a claimant can claim for breach of confidence under BOTH the I-Admin approach AND the traditional Coco v A N Clark (Engineers) Ltd [1969] RPC 41 (“Coco“) approach for DIFFERENT sets of documents or information.

To be clear, the Coco approach refers to the 3 elements of a breach of confidence claim (Clearlab SG Pte Ltd v Ting Chong Chai and others [2015] 1 SLR 163 (“Clearlab”) at [64] citing Coco at 47):

(a) the information must possess the quality of confidentiality;

(b) the information must have been imparted in circumstances importing an obligation of confidence; and

(c) there must have been some unauthorised use of that information to the detriment of the party from whom the information originated.

At [45]-[48], the Court clarified that a claimant CANNOT claim under BOTH the I-Admin approach and the Coco approach for the SAME set of documents or information. Otherwise, it would result in double recovery, and conflicting burdens of proof.

Lawyers should note the Court’s comment at [49]-[50] that it is permissible for a claimant in a breach of confidence claim to plead wrongful gain and wrongful loss in the ALTERNATIVE.

But it is not permissible for a claimant to plead both wrongful gain and/or wrongful loss in GENERAL terms with respect to the same set of documents. The claimant must first identify the documents it claims wrongful gain through unauthorised use and resulting detriment, and particulars of the wrongful gain. Then, wrongful loss can be pleaded as alternative in event that the claimant fails to prove wrongful gain.

However, the converse is not permissible. A claimant cannot plead wrongful loss as primary claim and then wrongful gain as fallback, because wrongful loss is premised on the absence of unauthorised use to begin with.

Long and short of it is that counsels and litigants must plead specifically in relation to specific documents and information the alleged act (access or use/disclosure, and thus whether it’s wrongful gain or loss).


Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.