First published on 7 September 2021.
A potential claimant may seek an order from the Singapore courts against a potential defendant or third party to produce documents in order to identify (a) if the claimant has a viable cause of action; or (b) the defendants whom the claimant could potentially sue. This is done through a court procedure known as a “pre-action discovery” application.
Once a pre-action discovery order is made, there is an implied undertaking for the potential claimant to not use the documents obtained for any collateral or ulterior purpose unless the court grants permission to do so. This is often referred to as the “Riddick Undertaking”.
What happens, however, if documents produced via a pre-action discovery application disclose a possible criminal offence?
Although the Riddick Undertaking protects the potential defendant’s and third party’s rights to privacy, a strict adherence to the undertaking could potentially stifle the wider public interest in investigating criminal offences.
In this commentary, we briefly examine how the Singapore courts have balanced these two competing interests and examine a recent decision that sheds some light on this question.
Introduction to the Riddick Undertaking
In Singapore, a potential claimant who wishes to identify who he could sue or what possible legal causes of action he has could apply to the courts to order potential defendants or third parties (such as banks) to produce documents before the commencement of a court suit. This is known as a “pre-action discovery” application.
Upon obtaining the documents, an implied undertaking is imposed to use the document only for the conduct of the intended claim any not for any other purpose. This is known as “the Riddick Undertaking”.
The Riddick Undertaking continues to apply until 2 scenarios occur:
(a) The documents are used in an open court hearing; or
(b) The court has released the potential claimant from the Riddick Undertaking.
A breach of the Riddick Undertaking is considered contempt of court, which is a criminal offence. If convicted, a person may be fined up to $100,000 or jailed for up to 3 years or both.
The applicability of the Riddick Undertaking
However, what if the documents obtained pursuant to a pre-action discovery order reveals a possible criminal offence? Could the potential claimant bring the documents to the authorities for investigation?
(1) Were the documents voluntarily disclosed?
The first issue that the courts might consider is whether those documents were disclosed voluntarily or by compulsion.
The Riddick Undertaking does not apply to voluntary disclosure.
The critical factor therefore is the element of compulsion that accompanies the discovery. In determining whether the discovery was voluntary, the court would examine the context under which the disclosure was made.
(2) Release from the Riddick Undertaking
The second and critical issue is whether the court ought to grant permission to release the Riddick Undertaking. This would be scenario (b) referred to in the ‘Introduction’ above.
Last year, the Singapore Court of Appeal in Lim Suk Ling Priscilla v Amber Compounding Pharmacy Pte Ltd [2020] 2 SLR 912 (“Priscilla”) examined when it would be appropriate to release a party from the Riddick Undertaking.
First, a party seeking to disclose information obtained under a pre-action discovery order should apply to the court for leave prior to disclosing the documents to the authorities.
Leave would be only granted “very sparingly” to affirm the disclosure of documents to the authorities before making the court application, known as ‘retrospective leave’.
As for when a party should be released from the Riddick Undertaking, the Singapore courts adopt a “balancing of interests” test.
In short, the factors in favour of granting leave are to be “balanced” against the interests sought to be protected by the Riddick Undertaking, namely the public interest in encouraging full disclosure in civil proceedings and the disclosing party’s privacy interests.
The non-exhaustive factors in favour of lifting the Riddick Undertaking are:
(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.
The factors that could militate against the lifting of the Riddick Undertaking are:
(a) injustice or prejudice to the disclosing party;
(b) improper purpose for which leave is sought; and
(c) privilege against self-incrimination.
The court would give appropriate weight to the relevant factors depending on the specific circumstances of each case.
In Priscilla, the claimants, known collectively as “Amber”, had seized more than 100,000 documents from the defendants. Amber also gave an express undertaking not to use the documents “except for the purposes of these proceedings” without leave of court.
The defendants eventually applied successfully for an order that the documents be returned to their rightful owners pursuant to a “Listing Exercise”, but before the Listing Exercise was
completed, Amber disclosed some of the seized documents to various authorities without prior leave of court. Amber also obtained various extensions of time for the Listing Exercise allegedly because of the ‘sheer number of documents’ involved, and applied for leave afterwards to release themselves from the Riddick Undertaking.
The Court of Appeal refused to release Amber from the Riddick Undertaking.
The weightiest factor against the release of the Riddick Undertaking was that the defendants had asserted their privilege against self-incrimination timely once they found out, for the first time via the leave application, that they could be incriminated by the documents disclosed by Amber to the authorities.
The court also found that Amber was motivated by an improper purpose. Amber had, for instance, breached express undertakings by reviewing the documents when there was no need to do so under the Listing Exercise. Amber also conveyed a misleading impression in obtaining extensions of time when its delays were not due solely to the magnitude of the exercise. This lengthy review of the defendants’ documents enabled Amber to identify documents which apparently disclosed the commission of potential offences. The court even noted that “it beggars belief that Amber was spurred solely by a sense of “civic duty” to undertake the extensive review of the defendants’ documents”.
The Court of Appeal also noted that the release from the Riddick Undertaking would undermine the protection of privacy and confidentiality afforded by the undertaking, and compromise the public interest in encouraging full disclosure of documents in the interests of justice.
Finally, the defendants would suffer prejudice, in being subject to criminal investigations and possible prosecution, by the release of the Riddick Undertaking. This was a relevant, albeit
not necessarily overriding, factor.
Although Amber argued that the documents were necessary for the investigation and prosecution of criminal offences, the Court of Appeal nevertheless noted that since the relevant reports had already been made, the authorities were able to invoke their own powers to seize any additional documents or information from the relevant parties. There was also little evidence of ongoing criminal investigation or prosecution of the defendants, so the merit of allowing further disclosure to the authorities was uncertain.
As such, the Court of Appeal concluded that the balance weighed overwhelmingly against the release of the Riddick Undertaking for all the documents concerned.
Concluding remarks
The Court of Appeal’s decision in Priscilla has brought much needed clarity in considering whether, and when, documents that are compulsorily disclosed under a court order can be given to the authorities.
Notably, it is not necessarily always the case that the public interest in investigating criminal offences would always be the trump factor.
The Singapore courts do appear to place considerable emphasis on an individual’s right to protection of privacy, confidentiality and right against self-incrimination, as the Priscilla case
well demonstrates.
Although Priscilla was not in the context of a pre-action discovery application, the balancing test and factors enunciated by the Court of Appeal appears to be intended as one of general application.
There is therefore scope to argue that the factors mentioned in Priscilla would also be relevant to a case where a pre-action discovery order is made. However, whether or not leave would be granted to release a party from the Riddick Undertaking would depend heavily on the specific circumstances of every case.
These are nevertheless early days as Priscilla was only decided last year. It remains to be seen as to how the Singapore courts would apply the factors mentioned in Priscilla in
different situations and balance the competing public and private interests that are inherent in such cases.
Disclaimer
The information in this article is correct as of the date of this article. The article does not constitute legal advice in any way. If you require advice in relation to the contents of this article, please approach us for further assistance.
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Authors: Lim Ming Yi, Yeo Shan Hui, Jaryl Lim, Gabriel Kwek.