:aTUTOR CP WEEK 12 (COURT ANNEXED MEDIATION)

11.1.5 PRINSIP KERAHSIAAN DAN TANPA PREJUDIS

Oh Kuang Liang v. Associated Wood Industries Sdn. Bhd.

Court: High Court Johor Bahru
Tan Hing Kuang; M/s Tam Cheng Yau, Tan & Co. for the appellant.
Gan Techiong; M/s Gan & Lim for the respondent.
Summary of Facts
This is an application by the respondent to strike out the affidavit of Oh Kuang Liang, the
applicant in this originating motion. The respondents solicitors in this case, Messrs. Gan &
Lim, had written a few letters to the applicants solicitors, presumably in the course of
negotiations to settle the disputes amicably between the parties. Except for one, all the letters
bore the tag without prejudice on them.
The applicant sought to put into evidence the communication made in the said letters, and
hence affirmed an affidavit in which he inter alia deposed I enclose herewith copies of the
letters sent by my solicitors and the replies of Messrs. Gan & Lim marked as exhibit `C. The
respondent applied to strike out the affidavit on the ground that the communication in
question was privileged and therefore was not receivable in evidence. The application of the
respondent is supported by the affidavit of Tan Tu Kiah, the director of the respondents
company. Tan deposed in his affidavit that the without prejudice letters between solicitors
are inadmissible as they were said to be privileged.
Issue: The issue that arose was whether in the circumstances herein such communication was
in fact privileged and inadmissible, and if so whether the whole of the affidavit ought to be
struck out.
Appellants Arguments

Not stated

Respondents Arguments

Courts
decision
reasoning

Tan deposed in his affidavit that the without prejudice letters

between solicitors are inadmissible as they were said to be
privileged. Tan took particular objections to two letters (dated
28 January 1994 and 6 April 1994) which he singled out and
which clearly bore the "without prejudice" labels on them; he
too took exceptions to the other three letters which equally
bore the "without prejudice" tags on them. There was only one
letter dated 26 February 1994 which did not carry the without
prejudice label.
and Allowing the application
1) The without prejudice rule is founded on the time
honoured public policy of encouraging litigants to
settle their differences rather than litigate them. The
rule is applicable generally to exclude all negotiations
genuinely aimed at settlement, whether oral or in
writing, from being given in evidence. The underlying

purpose is to protect a litigant from being embarrassed

by any admission made purely in an attempt to achieve
a settlement.
2) Although without prejudice material is admissible in
evidence in certain cases, the exceptions do not whittle
down the protection given to all parties to speak freely
about all issues in the litigation, both factual and legal,
when seeking a compromise to a dispute, and who, in
the process, had admitted certain facts. It is clear that in
such circumstance, if the compromise fails, the maker
of the statement should not be held accountable and the
admission of the facts made therein ought not to be
received in evidence. Such communication being
privileged, the respondents application, in the
circumstances, must succeed.
3) Though an affidavit may be ordered off the file if a
scandalous or irrelevant material is inserted, it is not
necessary for the Court to strike out the whole affidavit.
As is explicit in O. 41 r.6 of the Rules of the High
Court 1980, suffice if the Court strikes only those parts
which are scandalous, irrelevant or otherwise
oppressive.

RUSH & TOMPKINS LTD V. GREATER LONDON COUNCIL & ANOR [1988] 3 ALL
ER 737 (HOUSE OF LORDS)
Summary of Facts
The appellants, Rush & Tompkins Ltd, entered into a building contract in December
1971 with the Greater London Council (the GLC) to build 639 dwellings.

Later, Rush & Tompkins engaged the respondents, P J Carey Plant Hire (Oval) Ltd
(Careys), as sub-contractors to carry out ground works required under the main
contract.

The completion of the contract was subject to much disruption and delay in which
Careys then put in claims for loss and expense to Rush & Tompkins.

Rush & Tompkins for their part maintained that they were entitled to be reimbursed by
the GLC in respect of these claims for loss and expense under the sub-contract. It
appears that the GLC would not agree with Careys' claim and consequently Rush &
Tompkins would not pay it.

Eventually in order to resolve the deadlock, Rush & Tompkins commenced

proceedings against the GLC as first defendant and Careys as second defendant.

However, before these proceedings came to trial Rush & Tompkins entered into a
compromise with the GLC in which Rush & Tompkins accepted the sum of
1,200,000 in settlement of all outstanding claims under the main contract. It was a
term of this settlement that Rush & Tompkins would accept direct responsibility for all
the sub-contractors' claims.

Rush & Tompkins then discontinued the action against the GLC.

The terms of this settlement were disclosed to Careys but the settlement did not show
what valuation had been put on Careys' claim in arriving at the global settlement of
1,200,000.

Careys eventually added a counterclaim to recover their loss and expense which they
quantified at 150,583.

In their statement of claim Rush & Tompkins had pleaded that the GLC had stated in
writing that the claim of Carey did not exceed a value of approximately 10,000.

Respondents Arguments
(Careys, sub-contractor)

Careys believed that in the negotiations between Rush

& Tompkins and the GLC, documents must have come
into existence which showed the basis on which
Careys' claim was valued for the purpose of the global
settlement and they suspected that they might show that
the figure was very much larger than the sum of
10,000 which had been alleged as the value of the

claim in the statement of claim.

Appellants Arguments
(Rush & Tompkins)

Courts decision and

reasoning

They admit that there are such documents, but they maintain
that Careys are not entitled to discovery of these documents
because they came into existence for the purpose of settling the
claim with the GLC and are thus protected from discovery by
the without prejudice rule.
Lord Griffiths:
The without prejudice rule applies to exclude all
negotiations genuinely aimed at settlement whether
oral or in writing from being given in evidence.

It is clear from the surrounding circumstances that the

parties were seeking to compromise the action,
evidence of the content of those negotiations will, as a
general rule, not be admissible at the trial and cannot be
used to establish an admission or partial admission.

DUSUN DESARU SDN BHD v WANG AH YU & ORS

HC MALAYA, JOHOR BAHRU
ABDUL MALIK ISHAK J
15 MARCH 1999
Summary of Facts
In support of their application ('encl 5') to remove a private caveat lodged by the
6th defendant on two pieces of land belonging to the 1st plaintiff, the plaintiffs
filed two affidavits ('encls 3 & 4') containing a 'without prejudice' letter. In his
reply, the 6th defendant filed two affidavits ('encls 7 & 11') which contained
several 'without prejudice' letters. At the hearing of encl 5, the plaintiffs raised the
preliminary objection that encls 7 and 11 contained 'without prejudice'
communications, to which the 6th defendant replied arguing that the plaintiffs had
waived the privilege by first introducing the 'without prejudice' letter in encl 4.
Issue:
Whetherplaintiffhadwaivedprivilegefirstbyfilingaffidavitcontainingwithoutprejudiceletter.
Plaintiff Arguments

Defendant Arguments

Courts decision and

reasoning

Encl. 5 was an application by the plaintiffs to remove a private

caveat lodged by the sixth defendant on 5 September 1997 on two
pieces of lands belonging to the first plaintiff comprised in HS(M)
790 PTD 17690 Mukim Plentong, district of Johor Bahru and GM
597 Lot 17661 Mukim Plentong, district of Johor Bahru.
There was a waiver on the plaintiffs' part to object to the
introduction of the "without prejudice" letters in encls. 7 and 11
when the plaintiffs' themselves introduced from the very beginning
the "without prejudice" letter in encl. 4.
Dismissed the preliminary objection with costs:
1. Once a letter is labelled 'without prejudice', all previous and
subsequent negotiations between the parties will be protected
from disclosure. When the first letter of correspondence is
labelled 'without prejudice', the entire correspondence
thereafter is affected, unless there is a clear break in the chain
of evidence to show that the ensuing letters are open.
2. The veil of privilege is waived if both parties consent to
waiving it. However, a waiver may also be implied by conduct.
Here, the plaintiffs had waived the privilege when they first
introduced the 'without prejudice' letter in encl 4.
3. From my understanding of the law the veil of privilege may be
waived, but both parties must consent to the waiver
(Theodoropoulas v. Theodoropoulas [1964] P 311).
4. There was thus a waiver on the part of the plaintiffs of the
privilege shield when they first introduced the "without
prejudice" letter in encl. 4.
5. In my judgment, all the letters open and labelled "without
prejudice" in encls. 3, 4, 7 and 11 have been waived and only
these documents will be considered, and weighed by the court
in determining encl. 5 and no more.

TAWARAN UNTUK SELESAI

[2004] 3 SLR 365

SBS TRANSIT LTD (FORMERLY KNOWN AS SINGAPORE BUS SERVICES LIMITED) V
KOH SWEE ANN
COURT OF APPEAL
The original action in the Magistrates Court arose out of a traffic
accident between a bus driven by an employee of the appellant (A) and
the respondents (R) car. The appellant offered to settle the
respondents potential claim for damages through a Calderbank letter.
However, the R rejected the offer and commenced proceedings against
the A. The A then served on the respondent a formal offer to settle
Facts of

(OTS) pursuant to O 22A r 1 of the Rules of Court which is withdrew by

case

respondent. Again, the OTS was served for the second time and wasnt
accepted by respondent.
This matter went to trial and the judge held that the appellant is 80%
liable thus ordered him to pay the damages to R and costs. The A who
dissatisfied with the decision, applied to the Mgt Court for leave to
appeal against it and district judge refused to grant. Then the A applied
to the High Court against the order made by Mgt Court, however the
Mgt Courts decision was affirmed by the HC.
The appellant appeal against HC and filed a summons in chambers for
leave to appeal to the COA. This is the case from COA.

Appellant

That the respondent was not entitled to costs, given that the judgment

sum awarded in her favour was lower than the amount it had offered

argumen

her in the Calderbank letter. Appellant offered to settle the

ts

respondents claim for a sum of $6, 322 but the respondent rejected
the OTS (offer to settle)

Responden
ts
Arguments

N/A

Court

Dismissing the appeal

Decision
1) The Court of Appeal had no jurisdiction to hear the appeal. It
has been a rule of the common law that wherever power was given to a
legal authority to grant or refuse to leave the appeal, the decision of
Ground of
judgment

that authority was, from the nature of thing, final and conclusive.
2) Since S21(1) of Supreme Court of Judicature Act (Cap 322,
1999 Rev Ed) read with O55D r 4(3) of the Rules appointed that the HC
as the authority with the final jurisdiction to grant or refuse leave to
appeal againts a Mgts decision & there could be no further recourse
after the HC
3) The OTS (Calderbank letter) issued is not a valid OTS
required by statutory under O22A. Order 22A r 1 is precise on the
form that an OTS must take shall be in form 38A and the required
form is obligatory.

Sie Choon Poh (trading as Image Galaxy) v Amara Hotel Properties Pte Ltd [2008] SGHC 24
High Court , Andrew Ang J

Summary of Facts
This was an appeal against the assistant registrars (the AR) assessment of damages payable
to the plaintiff arising from the spillage of waste water into the plaintiffs shop premises from
a burst waste-water pipe in the defendant landlords building of which the premises let to the
plaintiff formed part.
At the assessment of damages before the AR, the plaintiff was awarded $5,000 for loss of
goodwill and $11,046.76 for loss of profits. Notably, the AR declined to make any award of
damages in respect of mental distress or damage to machines and equipment. Neither was an
indemnity ordered. What came across very clearly from the ARs grounds of decision (the
GD) was that the plaintiff had failed to discharge burden of proof, there being a glaring lack
of documentary evidence and witness testimony to support the claims he was making of the
GD). Moreover, the AR also formed the view that the Plaintiffs own responses during crossexamination were equivocal at best, evasive at worst
The plaintiff had five heads of claim:
(a) estimated loss resulting from damage to photocopying machines
(b) damages for loss of earnings
(c) an indemnity for all sums due and owing to Hitachi Leasing Pte Ltd and Canon
Singapore as a result of the return of machinery
(d) damages for loss of goodwill; and
(e) damages for distress and disappointment
Issue: Whether offer to settle can be taken into account eventhough not in prescribed
form
Plaintiffs Arguments
NIL
Defendants Arguments
Courts
decision
reasoning

NIL

and (1) The plaintiff provided insufficient evidence to quantify his

claims before the AR and did not seek to introduce any further
evidence in the appeal. The court found no reason to disturb
the ARs assessment on all five heads of claim.
(2) In regard to the order as to the costs below, there was a
disagreement between the parties as to what the AR intended
when she ordered costs to be taxed but failed to specify whom
it was in favour of. (The ARs award of damages was less than
what the defendant had earlier offered the plaintiff.) The court
determined the question afresh, taking account of the fact that

the defendants offer to settle had been made more than two
years before the assessment of damages was disposed of by the
AR. Although the offer to settle was not in the form prescribed
by O 22A r 1 of the Rules of the court was of the view that it
was not precluded from taking it into account and ordered that
there be no order as to costs below.