1 In this application, the defendant sought both an injunction against the use of documents and information disclosed in Originating Summons No 533 of 2017 (“OS 533”) as well as an anti-suit injunction. The injunction against the use of the documents and information was granted as the plaintiff’s use of these in English proceedings would be an abuse of process and breached the implied undertaking that was the quid pro quo for the order for disclosure. The anti-suit injunction was refused, even after further arguments were made.

2 The plaintiff appeals against my decision enjoining it from using in English proceedings documents and information disclosed by the defendants in Singapore. The defendant appeals in turn against my decision refusing an anti-suit injunction against the plaintiff.

3 The plaintiff is a company registered in England. It is a global brokerage and financial services business with headquarters in England and offices in Dubai, Hong Kong, Switzerland and the US. ¹ It claimed that it was the victim of fraud committed by two Hong Kong companies, Come Harvest Holdings Ltd and Mega Wealth International Trading Ltd (“the Hong Kong Companies”). That fraud was supposed to have involved forged warehouse receipts issued by a Singapore warehouse company and delivered to the plaintiff under nickel repurchase agreements entered into between the plaintiff and the Hong Kong Companies. The warehouse receipts were endorsed by the defendant to the Hong Kong Companies. ²

4 The plaintiff initially sought information and documents from the defendant on a consensual basis, but eventually made an application in OS 533 for pre-action discovery and interrogatories against the defendant pursuant to O 24 r 6 and O 26A r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”). ³

5 In respect of that application, Ms He Yuzhen Sherraine (“He”), the Senior Vice President of the defendant, filed an affidavit affirmed on 27 June 2017 (“He’s 1st affidavit”) deposing information and exhibiting documents concerning the dealings the defendant had with the Hong Kong Companies. A number of other proceedings were also commenced. Eventually, the application for pre-action disclosure in OS 533 was dismissed by the Assistant Registrar. The plaintiff’s appeal against the decision in Registrar’s Appeal No 215 of 2018 (“RA 215”) was withdrawn.

6 In the meantime, the plaintiff commenced an action in England in December 2017 against the Hong Kong Companies, on the basis of English governing law and an exclusive jurisdiction clause in their contracts. ⁴ The defence filed by the Hong Kong Companies on 28 June 2018 alleged that they believed that the warehouse receipts which they received from the defendant were genuine, and contradicted the allegations in He’s 1st affidavit that only scanned copies of the warehouse receipts had been sent to the Hong Kong Companies. ⁵ In September 2018, the plaintiff joined various additional parties, including the defendant, to the English action, and brought claims of unlawful means conspiracy, liability to account as constructive trustee and knowing receipt against the defendant. ⁶

7 The defendant applied for an injunction restraining the plaintiff from using the documents and information that it disclosed in OS 533 in any foreign proceedings commenced by the plaintiff against the defendant. It argued that the plaintiff had made two representations by its commencement and pursuit of the proceedings in OS 533: first, that it would commence substantive proceedings in this regard against the defendant in Singapore; second, that the defendant’s disclosures in OS 533 would only be used in Singapore proceedings. ⁷

8 In the alternative, the defendant submitted that its disclosures fell within the principle articulated in Riddick v Thames Board Mills Ltd [1977] QB 881 (“Riddick”), which protects disclosures of documents and information made under compulsion of court process from collateral use. ⁸

9 The defendant also applied for interim and permanent anti-suit injunctions against the plaintiff to restrain it from continuing with the English proceedings against the defendant. The defendant submitted that the requirements for the grant of an anti-suit injunction were met. Singapore was the natural forum for the dispute between the parties. ⁹ The plaintiff’s conduct in OS 533 had also misled the defendant and the court that the plaintiff intended to commence substantive proceedings in Singapore, and its conduct was vexatious and oppressive in its totality. ¹⁰ Finally, there had also been no undue delay on the defendant’s part that precluded the grant of anti-suit relief. ¹¹

10 The plaintiff submitted that the defendant had not shown that Singapore was the more appropriate forum ¹² and had not addressed the significant factors connecting the parties’ dispute to England, including the exclusive jurisdiction clauses in the plaintiff’s contracts with the Hong Kong Companies. ¹³ Furthermore, its conduct had not been vexatious, oppressive or an abuse of the Singapore court process. It had not commenced OS 533 for a collateral purpose; it genuinely sought to investigate the circumstances of the fraud and maintained the provisional view that proceedings might be commenced in Singapore. ¹⁴ As regards any abuse of process arguments, it was the defendant that had unduly delayed seeking an anti-suit injunction. ¹⁵

11 The plaintiff rejected the application of the Riddick principle in this case. The Riddick principle applies only to documents disclosed under compulsion, but the documents in question had been disclosed voluntarily by the defendant. ¹⁶ The Riddick principle also does not apply to documents used in open court, and the disclosed documents here had been used in open court and formed an integral part of the Assistant Registrar’s decision in OS 533. ¹⁷

12 The injunction against the use of information and documents disclosed by the defendant in OS 533 was granted to prevent their use in proceedings outside Singapore. Any orders that might have been made in the OS 533 application for pre-action discovery and interrogatories (both constituting what I will refer to as “pre-action disclosure”) and the disclosures made in those proceedings were meant for use only in Singapore proceedings. This conclusion applied both on a statutory analysis and under the Riddick principle. While an exception to the Riddick principle would arise where documents were disclosed voluntarily, I did not find that that was the case here: the “voluntary” disclosure that the plaintiff relied upon referred to the defendant’s disclosure of documents and information in its attempt to resist pre-action disclosure. That could not amount to voluntary use notwithstanding the defendant’s own statements that it had volunteered these documents; ¹⁸ such statements must be taken against the context of the OS 533 application.

13 The plaintiff also invoked the open court use of the documents, citing the open justice principle articulated in Foo Jong Long Dennis v Ang Yee Lim and another [2015] 2 SLR 578 (“Dennis Foo”). But that case needs to be read in its factual context: the documents in Dennis Foo had been used in a prior trial, and given such use and consideration of the documents at trial, it is not surprising that any implied undertaking was considered spent. Different considerations would apply in the present case since the documents and information were referred to and considered only in the very application for pre-action disclosure, and expressed to be disclosed with express reservations.

14 The anti-suit injunction was declined as I was not persuaded by the defendant that Singapore was clearly the natural forum for the proceedings. There were factors relied upon by the defendant which pointed to Singapore being the natural forum; but other factors pointed instead to England. It suffices to note that given this close balance, the defendant did not make out the first requirement for the issuing of an anti-suit injunction. None of the factors relied upon by the defendant were sufficient in any event to establish vexation and oppression of the degree that would justify the issuing of an anti-suit injunction. The mischief or conduct raised could be better and specifically targeted by the injunction against the use of the documents and information disclosed.

15 An injunction is a form of relief granted to protect the legal or equitable rights of the claimant or plaintiff: it is a discretionary remedy. While injunctions are often issued in specific circumstances, there is no closed list of the types of injunctions that can be ordered as long as the plaintiff can make out a right that is infringed, or a cause of action that is to be protected.

16 The defendant argued that the Singapore court only has jurisdiction to order pre-action disclosure in aid of Singapore proceedings: Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208 (“Dorsey”) at [68] and [69]. The defendant argued that it follows that any application for pre-action disclosure for any purpose other than to aid proceedings in Singapore would be without basis, and would be liable to be dismissed. Any applicant seeking pre-action disclosure should be regarded as representing or undertaking to the court and the respondent that any substantive proceedings following from such disclosure would be commenced in Singapore, and that it would only use the documents obtained in such proceedings. At the very least, the applicant should be taken to have represented that it had a genuine provisional intention to commence proceedings in Singapore. ¹⁹ The plaintiff had previously given indications that it would indeed pursue proceedings in Singapore. Had it been otherwise, its application would have been dismissed out of hand. ²⁰

17  The plaintiff responded that there is no undertaking in an application for pre-action disclosure that proceedings would be commenced in Singapore. All that is required is that the applicant adduce “credible evidence of a Singapore nexus”: see Dorsey at [69]; Intas Pharmaceuticals Ltd v DealStreetAsia Pte Ltd [2017] 4 SLR 684 at [52]. ²¹

18 I accepted the parties’ argument that pre-action disclosure in Singapore is governed by statute, namely, the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”). ²² I also accepted the defendant’s argument that as the language of the statute points to the courts being empowered to order pre-action disclosure for the purpose of Singapore proceedings, any use outside that purpose would amount to a disregard of a statutory objective and for that reason would amount to an abuse of the court process. ²³ An injunction should be granted to the defendant in these circumstances to prevent such abuse from continuing.

19 For reference, I reproduce the relevant provisions below. Section 18(2) of the SCJA provides that the High Court shall have the powers set out in the First Schedule. The Singapore High Court’s jurisdiction to order pre-action discovery and interrogatories is set out at para 12 of the First Schedule:

20 Within the SCJA, the reference to “proceedings” must, in the absence of any other words, be taken to refer to proceedings in Singapore: see Dorsey at [69]. This is supported by the language of O 24 r 6(3)(a) and O 26A r 1(3)(a) of the ROC, which require that the originating summons for pre-action discovery and interrogatories must state:

The ROC does not define “court” under O 1 r 4. However, O 1 r 3 provides that the Interpretation Act (Cap 1, 2002 Rev Ed) shall apply for the interpretation of the ROC, and s 2 of the said Act defines “court” to refer to “any court of competent jurisdiction in Singapore”. I also observed that the Court of Appeal held in Dorsey at [69] that the courts’ powers under para 12 of the First Schedule to the SCJA do not extend to the ordering of pre-action interrogatories in aid of proceedings beyond Singapore. The same principles would underlie applications for pre-action discovery: see Dorsey at [25].

21 Finally, I did not accept the plaintiff’s argument that accepting this position would mean that an applicant for pre-action disclosure is required to commit to commencing proceedings only in Singapore and nowhere else. The plaintiff argued against such a requirement on the basis that an applicant could not have known at the point of the pre-action disclosure application where proceedings would be commenced. ²⁴ But the statutory framework imposes no such positive obligation and requires no such thing: what it does require is that documents or information disclosed pre-action would only be used in Singapore proceedings. It remains open to the claimant to commence proceedings elsewhere, as long as the claimant does so without the use of the documents disclosed in Singapore pre-action proceedings. This limitation is reasonable: an intrusive, compulsive process is used to require disclosure or to summon a respondent to appear in court at the pre-action stage. The legislature has chosen to temper the compulsion used to obtain these materials with their limited and restricted use.

22 An alternative basis for the restriction on the plaintiff’s use of the documents relied on the Riddick principle. A product of the common law, the Riddick principle constrains the use of documents given on discovery to temper the compulsive effect of an order for discovery. It has been referred to in a number of local authorities: Hong Lam Marine Pte Ltd and another v Koh Chye Heng [1998] 3 SLR(R) 526 (“Hong Lam Marine”) at [14]; Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and others [2007] 2 SLR(R) 518 at [36]; BNX v BOE and another appeal [2018] 2 SLR 215 (“BNX”) at [64].

23 In Riddick, the English Court of Appeal held that the plaintiff could not use an internal memorandum disclosed in an earlier suit as the basis for a subsequent action of defamation. Lord Denning MR explained at 895–896:

24 In BNX at [64], the Court of Appeal cited Beckkett Pte Ltd v Deutsche Bank AG [2005] 3 SLR(R) 555 at [14] to explain the Riddick principle in the following terms:

25 The Riddick principle has been described as an implied undertaking not to use documents obtained on compulsion of court process for other purposes which is owed to the court: see Hong Lam Marine at [19] and [21]; BNX at [65]. I am not sure that the reasoning put forward as justifying the Riddick principle, namely, that disclosure is made in return for an undertaking not to use the documents for an ulterior purpose, reflects the actual basis for the restriction on the use of the documents. Given that the Riddick principle is meant to balance between the public interest in “discovering the truth so that justice may be done between the parties” and the public interest in protecting the privacy and confidentiality of the respondent (see Riddick at 895, reproduced above at [23]), it may be better to confront potential abuses of the court process directly and to characterise the restriction as imposed by the court to protect against the misuse of the process of discovery for purposes other than the fair and efficient disposal of the matter before the court. This avoids the artificiality of having to characterise the parties as having given an implied undertaking through their mere participation in the court process. Hobhouse J similarly observed in Prudential Assurance Co Ltd v Fountain Page Ltd and another [1991] 1 WLR 756 (“Prudential Assurance”) at 764:

Nevertheless, Hobhouse J noted that treating the obligation as having the character of an implied undertaking served a useful purpose (at 764–765):

Despite my reservations, I accept that our courts have endorsed the formulation of the Riddick principle as an undertaking imposed by court (see, eg, Microsoft Corp and others v SM Summit Holdings Ltd and another and other appeals [1999] 3 SLR(R) 465 at [23]–[24]), and I utilise the same formulation in my grounds of decision.

26 As regards the scope of the Riddick principle, it has no application to documents voluntarily disclosed in the course of legal proceedings: BNX at [66]. It also no longer applies once a document has been used in open court: Dennis Foo at [54]. I will discuss the application of these two exceptions to the Riddick principle in turn, first addressing whether the defendant’s disclosures in OS 533 were voluntary, and next if the disclosed documents and information were used in open court.

27 The Court of Appeal in Hong Lam Marine explained at [21] that the Riddick principle applies only to documents disclosed under compulsion of court process, “whether by virtue of the enforcement of the rules of the court or by a specific court order”. The basis of the voluntariness exception was articulated as follows, citing Derby & Co Ltd v Weldon (No 2) The Times (20 October 1988):

28 The Court in Hong Lam Marine at [24] also endorsed Hobhouse J’s observations in Prudential Assurance that as parties are at liberty to decide what material they wished to adduce in evidence, there was no prima facie restriction on the use of documents and information acquired in the course of litigation (Prudential Assurance at 769):

I observed also that Hobhouse J at 765 dismissed the argument that a party acts under compulsion whenever it is subjected to orders or rules of procedure which require him to do various things or take various steps in the action. Where a party is subject to a rule to deliver pleadings, for instance, the primary sanction that the court imposes for failure to do so is to strike out the claim or the defence, such that the other party’s claims or defences will prevail. Hobhouse J did not accept that the principle of compulsion applies in these scenarios, and distinguished orders, the breach of which is a contempt of court and those orders which “merely” give rise to a default. It was only in the former scenario that a party acts under such compulsion which brings the implied undertaking into force.

29 In BNX, the Court of Appeal considered the element of voluntariness. [BNX] sought to adduce certain documents (the “May 2013 Documents”) as further evidence in an appeal. The May 2013 Documents had been obtained through disclosure ordered in separate proceedings, Suit No 585 of 2017 (“Suit 585”), against [A], an architectural firm hired by [BOE]. The Court of Appeal held that the Riddick principle applied to the May 2013 Documents (at [69]) as the documents could not be said to have been disclosed voluntarily:

(a) First, the May 2013 Documents had been disclosed by [A] pursuant to an order for production made against [A] in Suit 585. [BNX] owed an implied undertaking to [A] and the court in Suit 585 not to use the May 2013 Documents and had not applied to be released from this undertaking (at [67], [69] and [71]).

(b) Second, although [BOE] included the May 2013 Documents as exhibits in its affidavits filed in connection with [BNX]’s summons to adduce further evidence, [BOE] was not party to Suit 585 and could not have consented to the release from the undertaking that [BNX] was subject to in that action. In any case, [BOE] had included the documents as exhibits to resist [BNX]’s application for these documents to be adduced as further evidence, and had expressly reserved its rights in relation to the documents (at [68]).

30 Both parties accepted that an exception exists to the Riddick principle in respect of disclosures made voluntarily. The difference between their positions lay in whether the defendant’s disclosures in OS 533 were indeed voluntary. The defendant relied on BNX to argue that its disclosures in OS 533 were not voluntary. As with [BOE] in BNX, the defendant had disclosed the documents and information to resist the plaintiff’s application for pre-action disclosure of the same documents and information. The OS 533 disclosures had also been subject to the following reservation at para 5 of He’s 1st affidavit, which was filed to resist the application for pre-action disclosure: ²⁵

31 The plaintiff contended that the disclosures in OS 533 had been voluntarily made and that the balance between competing interests is appropriately struck by limiting the Riddick principle to documents disclosed by compulsion of court. ²⁶ The plaintiff argued that the defendant had voluntarily chosen to provide some information in OS 533, just as it had chosen not to disclose its contracts with the Hong Kong Companies. The defendant had also described its disclosures as voluntary on 14 occasions, including in its submissions before the Assistant Registrar in OS 533. ²⁷

32 To my mind, the reasoning adopted by the Singaporean and English courts in the cases referred to above did not apply with full force to the present case. The respondent to a pre-action disclosure application should be treated differently: such a respondent does not “merely” face the risk of default if it chooses not to respond; failing to resist the application may lead to a serious intrusion into the privacy of a non-party. I return to the balancing exercise undergirding the court’s adoption of the Riddick principle. The procedural tools allowing for pre-action disclosure serve the public interest by allowing the court to order the discovery of documents or the administration of interrogatories “with a view to identifying possible parties to proceedings” in Singapore: see O 24 r 6(5) and O 26A r 1(5) of the ROC; Dorsey at [32] and [69]. But given the intrusive nature of such tools and the potential for their abuse, the public interest in protecting the respondent’s privacy and confidentiality features more heavily in such applications.

33 Accordingly, I was not persuaded that the defendant’s disclosures in OS 533 amounted to voluntary use: the documents and information were exhibited and deposed in order to resist the pre-action disclosure application. It can be an intricate issue to decide whether or not it is wise to include the very documents and information sought in an application, or a sample of such documents and information, in resisting disclosure. In some cases, much time and energy can be saved by including these documents and information; the court is able to see for itself what is being sought and may make its determination accordingly. Alternative mechanisms can be thought of, including holding back such documents but offering to show them only to the court if asked. Which may be preferred or thought preferable may depend on the perceptions of the lawyers concerned. But it would be unfortunate for counsel to be constrained in choosing the best course of action out of a fear that by doing so they would open the door to the unintended use of these documents thereafter.

34 As for the defendant’s avowal on a number of occasions that the disclosures were voluntary, it was clear that the defendant’s references to its volunteering such documents and information were in the context of demonstrating its cooperation and compliance; it did not show that it was giving up the documents and information for all purposes and use, especially in light of the express reservation in He’s 1st affidavit (reproduced above at [30]).

35 Even if I were wrong on the application of the Riddick principle, I was satisfied that an obligation analogous to that under the Riddick principle could apply if, on a true construction of the rules of court under which He’s 1st affidavit had been made, any rights of confidentiality or privilege in the documents and information had been reserved.

36 In this regard, I considered the reasoning in Prudential Assurance, which concerned witness statements and experts’ reports that the plaintiffs had been required to serve on the defendants under O 38 r 2A and O 38 rr 36 and 37 of the Rules of the Supreme Court (UK) respectively. These documents were served pursuant to the provisions of O 38 or directions given thereunder. As parties were at liberty to decide what materials they wished to adduce in evidence in these materials, they had not been served under compulsion and the Riddick principle did not apply (at 769). Hobhouse J accepted, however, the argument that the use of such documents may still be restricted (at 770):

37 In relation to the expert reports, the relevant rules expressly stated in unqualified terms that the recipient of an expert report is entitled to use it. Hobhouse J drew the inference that the use of the experts’ reports was not subject to any restriction as to their use (at 772–773). As for the witness statements, Hobhouse J referred to the purpose of O 38 r 2A (at 774):

Hobhouse J therefore held that witness statements served pursuant to a direction given under O 38 r 2A remain privileged in the same way as a without prejudice communication remains privileged, where the witness to whose evidence that statement relates is never called to give evidence (at 774).

38 In the present case, the rules allowing for pre-action disclosure serve the policy goals of saving unnecessary costs and avoiding needless claims in relation to actual or anticipated proceedings in Singapore (see Dorsey at [32]). But just as how an applicant cannot be “on a fishing expedition” and cannot use pre-action discovery to uncover further causes of action (see Dorsey at [35] and [36], citing Bayerische Hypo- und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte [2004] 4 SLR(R) 39 at [4] and Ng Giok Oh v Sajjad Akhtar [2003] 1 SLR(R) 375 at [7]), it follows that the use of information disclosed both under an order for pre-action disclosure and to resist such disclosure should also be restricted to their use in instant proceedings in Singapore, and not in proceedings brought anywhere else.

39 The High Court in Dennis Foo introduced an exception to the Riddick principle, holding that the principle ceased to apply to a document disclosed during discovery in a prior suit once it has been used in open court (at [54]).

40 The parties in Dennis Foo were shareholders of Raffles Town Club Pte Ltd (“RTC”). In 2006, RTC instituted a suit against the plaintiff, the defendants and a third party (“the Year 2006 Suit”). Pursuant to discovery obligations in the Year 2006 Suit, the defendants furnished certain meeting minutes. These meeting minutes were used during the trial of the Year 2006 Suit, which ended with a dismissal of the claim and counterclaims. The plaintiff subsequently relied on the minutes as the main piece of evidence to commence the suit in Dennis Foo, claiming damages for, inter alia, deceit and misrepresentation.

41 In Dennis Foo, Chan Seng Onn J surveyed the positions taken in various common law jurisdictions and concluded that the Riddick principle ceased to apply to documents used in open court. Chan J accordingly held that the Riddick principle did not apply to the meeting minutes and ordered the trial to continue. Three reasons were given for recognising this exception to the Riddick principle:

(a) First, doing so gave proper deference and recognition to the principle of open justice (at [60]). The open justice principle is given statutory recognition in s 8(1) of the SCJA, which provides that (at [59]):

The principle was also discussed in Tan Chi Min v The Royal Bank of Scotland plc [2013] 4 SLR 529, where Lee Seiu Kin J observed (at [14]):

Concerns that this exception would deter parties from being forthcoming during discovery were misplaced, given that parties are compelled by the consequences of non-compliance to give discovery (at [57]). Parties may also apply to court for the implied undertaking to continue (at [58]).

(b) Second, this exception avoided difficulties with the alternative position endorsed by the majority in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (“Harman”). The majority in Harman held that the Riddick principle continued to apply to documents used in open court but not to transcripts of court proceedings that might capture the documents in question (Dennis Foo at [32]). Chan J observed that this distinction was unjustifiable (at [61]).

(c) Finally, the recognition of an exception for documents used in open court would bring Singapore in line with the positions taken in other common law jurisdictions (at [65]).

42 The term “open court” is open to different interpretations: it could refer to proceedings open to the public or to recorded proceedings, which would include chambers hearings. Which alternative it is matters: if the exception to the Riddick principle arises through the use of documents in proceedings open to the public, as is suggested by Chan J’s invocation of s 8(1) of the SCJA in Dennis Foo at [59], that would seem to show that its rationale is that any restriction on use is lost because the documents are essentially available to the public. On the other hand, if the exception arises when the documents are adopted and referred to in proceedings on the record, the rationale would appear to be that the restriction is lifted because of the use of the documents alone.

43 Neither rationale appears, with respect, to be sufficient to overcome the basis for the Riddick principle in the first place: that is, to mitigate the compulsion that is exercised against the respondent through the court process. As I observed above, this degree of compulsion is increased in respect of respondents who are not yet the subject to any claim: pre-action disclosure is a significant intrusion on a respondent. While the Riddick principle balances between the public interest in the “administration of justice” and that in protecting the privacy and confidentiality of the documents and information disclosed, I was concerned that the High Court in Dennis Foo interpreted the former consideration too broadly. I read the English Court of Appeal in Riddick to be focussed on the administration of justice as between the parties to the action and in discovering the truth such that justice may be done between them. The open court principle as invoked in Dennis Foo, however, engages different considerations that relate to the need for judicial decisions to be open to public scrutiny and therefore freely reported and accessible. These considerations ought properly to be weighed in a different matrix.

44 I therefore had doubts about the operation of the exception in Dennis Foo. Be that as it may, it was sufficient in the present case to find that the defendant’s disclosure fell within what I perceived to be a limited exception to the Dennis Foo exception to the Riddick principle. My reasoning above at [32] to [34] applies here as well, albeit with a slightly different tenor. The focus here was not so much on whether the disclosure was “voluntary”; rather, in so far as the basis for the Dennis Foo exception to the Riddick principle strives to strike the right balance in the balancing exercise (see Dennis Foo at [55] and [56]), applying the Dennis Foo exception in these circumstances would be unjust, as it would unduly hamper the respondent’s ability to resist an intrusion into its privacy and confidentiality prior to the commencement of the action.

45 The Court of Appeal’s guidance on the specific factors relevant to the determination of whether to grant an anti-suit injunction was laid down in John Reginald Stott Kirkham and others v Trane US Inc and others [2009] 4 SLR (R) 428 (“Kirkham”) at [28]–[29]:

(a) whether the defendants are amenable to the jurisdiction of the Singapore court;

(b) the natural forum for resolution of the dispute between the parties;

(c) the alleged vexation or oppression to the plaintiffs if the foreign proceedings are to continue;

(d) the alleged injustice to the defendants as an injunction would deprive the defendants of the advantages sought in the foreign proceedings; and

(e) whether the institution of the foreign proceedings is in breach of any agreement between the parties.

46 As the Privy Council noted in the landmark case of Société Nationale Industrielle AeroSpatiale v Lee Kui Jak and another [1987] 1 AC 871 at 893, the notions of vexation and oppression should not be restricted by definition. Citing Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 at 330, the Privy Council raised two examples of vexatious proceedings (at 893–894): where the proceedings are so utterly absurd that they cannot possibly succeed, and where the plaintiff, thinking he can gain some fanciful advantage, sues the defendant in two courts at the same time under the same jurisdiction. The Court of Appeal in Kirkham at [47] observed that the courts have held that there is vexation or oppression in situations such as the following:

47 Even though anti-suit injunctions operate in personam, they interfere with foreign proceedings. As such, comity considerations are relevant where there is delay in bringing an application for anti-suit relief. Comity requires, where possible, “the avoidance of wastage of judicial time and costs that would inevitably be occasioned by the abandonment of proceedings or when a party is precluded from relying on the judgment of the rival court”: Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd [2019] 1 SLR 732 (“Sun Travels”) at [69] and [78]. As the Court of Appeal observed in Sun Travels at [83], the longer the delay and the more advanced the foreign court proceedings become, the stronger the considerations of comity: see also Beckkett Pte Ltd v Deutsche Bank AG [2011] 2 SLR 96 at [24].

48 In the present case, the areas of dispute were: whether Singapore was the natural forum for the dispute; whether vexation and oppression were made out; and whether the defendant’s delay in seeking an anti-suit injunction precluded the grant of an anti-suit injunction.

49 The natural forum is “that with which the action has the most real and substantial connection”: Eng Liat Kiang v Eng Bak Hern [1995] 2 SLR(R) 851 at [19]. The defendant submitted that Singapore was the natural forum for the plaintiff’s claims against the defendant, given the following: ²⁸

(a) the defendant is a Singapore incorporated company operating out of Singapore;

(b) the documents and possible key witnesses were in Singapore;

(c) the warehouse company that issued the warehouse receipts was also incorporated and based in Singapore;

(d) the claims against the defendant would be governed by Singapore law as Singapore was the lex loci delicti, ie, the place of the alleged tort (see Rickshaw Investments Ltd and another v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377 (“Rickshaw Investments”) at [53]);

(e) the defendant’s disclosures in the OS 533 proceedings had been given under Singapore law;

(f) the plaintiff represented that the proceedings would be in Singapore;

(g) Singapore’s judicial resources had been invested to hear the parties in OS 533; and

(h) the defendant invested time, costs and expense in instructing Singapore counsel.

50 The plaintiff argued that the factors did not show that Singapore was clearly the natural forum: ²⁹

(a) While proceedings were commenced and conducted in Singapore, incurring expense and the investment of time, both sides had instructed counsel in England, and the English court had invested time and judicial resources to hear the parties.

(b) The presence of witnesses in Singapore was not a determining factor: see Kirkham at [38]. In any event, the dispute between the parties involved the Hong Kong Companies and seven other defendants, all of whom had submitted to the jurisdiction of the English courts. If anything, this pointed to England being the more appropriate forum.

(c) The OS 533 disclosures made in Singapore were only limited; there remained the possibility that disclosure ordered in England would be more wide-ranging.

51 The plaintiff highlighted other significant factors connecting the parties’ dispute to England: ³⁰

(a) the contracts between the plaintiff and the Hong Kong Companies were subject to exclusive English jurisdiction;

(b) the related disputes with the other defendants would involve overlapping issues and common witnesses, and there was a risk of inconsistent findings if a separate trial was held in respect of the defendant; and

(c)  the defendant had conceded, within the context of para 3.1(3) of Practice Direction 6B supplementing Section IV of Part 6 of the Civil Procedure Rules (UK) (the “English CPR”), that the plaintiff had a good arguable case and that the defendant was a “necessary and proper party” to the plaintiff’s claims in the English proceedings. ³¹

52 I concluded that the factors that the defendant relied upon were largely neutral, and it was not shown that Singapore was clearly the natural forum.

53 First, the location of witnesses and evidence was not a significant factor pointing to Singapore as being the natural forum. As the Court of Appeal observed in Kirkham at [38], the location of witnesses is only really significant in relation to third-party witnesses who are not in the employ of the parties as it could give rise to issues of compellability. The key witnesses that the defendant alluded to were its own employees, ie, He and Mr Ang Peng Leong Jeremy, the defendant’s Chief Executive Officer. ³² While I did not have the benefit of hearing expert evidence on English law, it did not appear that the defendant would face issues in producing its own employees as witnesses. These witnesses may testify abroad given the prevalence of video-linked evidence (see Kirkham at [39]); documentary evidence may be readily presented abroad as well (see Kirkham at [40]).

54 Second, on the facts of the present case, the registration of either the defendant or the warehouse operator in Singapore did not appear to have any real impact on the determination of the natural forum. The plaintiff is an English registered company with no presence in Singapore. The Hong Kong Companies involved in the alleged fraud are based in Hong Kong. All things considered, the place of registration of the parties was a neutral factor (see Kirkham at [37]).

55 Third, even if English conflict of law rules prescribe that Singapore law governs the alleged torts or equitable wrongs, the English court would presumably hear expert evidence on Singapore law, and would be in as ready a position to make a determination as the Singapore courts would be when dealing with English law issues in our courts.

56 Fourth, the fact that proceedings in OS 533 were previously pursued in Singapore would have to be weighed against the current state of proceedings in England. The investment of time and preparation in the Singapore proceedings did not appear so significant that the balance tilted in favour of Singapore being the natural forum. Matters had not proceeded to such an advanced stage that it would be more efficient and just to require parties to proceed in Singapore instead of England.

57 On the other hand, some of the other points raised by the plaintiff such as the risk of inconsistent findings in concurrent proceedings and the concessions made by the defendant did not assist its case. While the risk of inconsistent findings could be relevant in some contexts, a finding one way in Singapore between the plaintiff and defendant would not necessarily implicate any determination between the plaintiff and the other defendants in the English proceedings. The concession made under the English CPR also did not bind the defendant one way or another.

58 The defendant argued that the plaintiff’s commencement and continuation of the English proceedings were vexatious and oppressive. It was argued that the plaintiff consistently misled the defendant and the Singapore High Court that it intended to pursue proceedings in Singapore, by commencing the OS 533 proceedings without informing the court that it would pursue proceedings in England, and by maintaining its appeal in RA 215 even after filing the joinder application in England. ³³ The defendant further argued that the plaintiff had used the pre-action disclosure application in OS 533 to test the receptivity of the Singapore courts to its claims against the defendant. ³⁴ Finally, the breach of the implied undertaking on the limited use of the disclosed documents and information also constituted vexation and oppression. ³⁵

59 The plaintiff disagreed that its conduct of the proceedings was vexatious or oppressive; it had commenced OS 533 to investigate the defendant’s potential involvement in the alleged fraud against the plaintiff, with the provisional view that proceedings might be commenced in Singapore. There had also not been any “double claim” brought against the defendant in England and Singapore, as the Singapore proceedings had been terminated and the only substantive proceedings against the defendant were in England. ³⁶

60 In my judgment, some aspects of the plaintiff’s conduct in the related proceedings came close to crossing the line on sharp practice. For instance, in OS 533, the plaintiff took the position that the fact of the English proceedings against the Hong Kong Companies did not have to be disclosed to the court, and the application for pre-action disclosure had been brought even though the plaintiff already knew the identities of the putative wrongdoers, ie, the Hong Kong Companies. On balance, however, I concluded that vexation and oppression were not made out. Any prejudice suffered by the defendant through the improper use of the documents and information was sufficiently and more appropriately addressed by the issuing of an injunction against the use of said documents and information. For the reasons given above, that injunction was issued; this remedy sufficiently addressed any harm that might be caused by the plaintiff. Putting to one side the improper use of the documents and information, there was nothing else that pointed to any vexation or oppression suffered by the defendant.

61 Since the defendant failed to establish that Singapore was the natural forum or that the plaintiff’s conduct had been vexatious or oppressive, the plaintiff’s allegations that there was undue delay on the defendant’s part in applying for an anti-suit injunction did not strictly have to be considered. Nonetheless, I observed that the English proceedings against the defendant had not progressed to an advanced stage; the plaintiff submitted that the defendant’s jurisdictional challenge in the English proceedings was scheduled to be heard in June 2019. ³⁷ In these circumstances, I did not consider that there had been any undue delay on the defendant’s part in applying for anti-suit relief as it did.

62 Further arguments were heard in which the defendant attempted to persuade this court to grant an interim anti-suit injunction or an order against the plaintiff to adjourn an upcoming hearing regarding the defendant’s jurisdictional challenge to the English proceedings. The defendant argued that relief was required because of the plaintiff’s non-compliance with the injunction against the use of the documents and information granted in Summons No 1087 of 2019 (“SUM 1087”), particularly through the plaintiff’s insufficient expunging of the witness statements and pleadings in the English proceedings. ³⁸ The defendant relied on the case of Evergreen International SA v Volkswagen Group Singapore Pte Ltd and others [2004] 2 SLR (R) 457 at [53] and [54] for the proposition that the court should grant an anti-suit injunction to protect its own jurisdiction and to give effect to its orders.

63 The plaintiff raised a preliminary jurisdictional objection as the defendant’s request for further arguments pursuant to O 56 r 2 of the ROC read with s 28B of the SCJA had been made out of time: the request for further arguments was made after the order in SUM 1087 was extracted (see s 28B(1)(a) of the SCJA). The plaintiff also argued that there had been compliance with the order in SUM 1087. Any apparent reference to protected documents and information was actually gleaned from other sources and any incomplete compliance did not detract from the fact that there had been a genuine attempt at compliance. The plaintiff further argued that the defendant was simply trying to derail the English proceedings.

64 Even aside from the plaintiff’s preliminary objection, I found that there were no grounds raised to revisit my original decision. Any incomplete compliance by the plaintiff with the order in SUM 1087 was not such as to lead to the conclusion that an interim anti-suit injunction should be issued or that the plaintiff should be ordered to apply to adjourn the English proceedings. Any non-compliance may attract a contempt action against the plaintiff or may affect any eventual recognition of an English judgment, but these were matters not before the court, and would need to be considered at the appropriate time.

65 For the reasons above, I granted an injunction against the plaintiff’s use of the documents and information disclosed in OS 533 in proceedings outside of Singapore, but did not grant an anti-suit injunction to restrain the English proceedings against the defendant. No order was made as to costs.