Cases

CIVIL PROCEDURE
Foo Ko Hing v Foo Chee Heng [2002] 2 SLR 361

High Court - Suit No 792 of 2001 (Registrar's Appeal No 49 of 2002)
Tay Yong Kwang JC
20 March, 11 April 2002

Interrogatories - Application for leave to serve on former solicitor - Whether relevant to issues in dispute - Whether necessary as former solicitor had consented to give oral testimony at trial - Rules of Court O 26A rr 1(3)(b), 1(5) & 2

Interrogatories - Costs - Costs of non-party against whom order to administer interrogatories sought - Whether non-party should bear applicant's costs - Rules of Court O 26A r 5

Tongel Yeo (T-G Yeo & Tan) for the plaintiff.
Valerie Tan (Allen & Gledhill) for the defendant.
P Padman (KS Chia Gurdeep & Param) for Rey Foo Jong Han.

The plaintiff and the defendant entered into a sale and purchase agreement to buy 90 million shares in Lee Kim Tah Holdings Ltd. Both of them were represented by the same solicitor, Rey Foo Jong Han. Under the agreement, the plaintiff and the defendant were named as joint purchasers. However, the defendant claimed that there was a 'Precedent Agreement' between him, the plaintiff and one Mr Ong Puay Koon wherein they would each purchase one third of the 90 million shares. The plaintiff denied the existence of such a 'Precedent Agreement' and claimed for half of the purchase price of the first tranche of shares under the agreement.

The plaintiff's present solicitors sought the co-operation of Rey Foo but he declined to reveal any information about the 'Precedent Agreement' unless the defendant waived solicitor and client privilege. However, the defendant was not willing to do so. The plaintiff then applied to the court for leave to serve written interrogatories on Rey Foo. The application was dismissed by the assistant registrar and the plaintiff appealed.

Held, allowing the appeal:
Leave to serve the written interrogatories on Rey Foo should be granted because his answers to them would clearly be crucial for and relevant to an important issue in the proceedings - the existence of the precedent agreement and, if there was one, the circumstances in which it came about. Rey Foo's evidence may also assist the plaintiff in deciding whether to add him or his firm as a party to the proceedings. These fell within the purposes allowed under O 26A r 1(3)(b) and O 26A r 1(5) Rules of Court respectively.

If Rey Foo were to proffer his evidence before the trial, this would obviate the necessity of asking the trial judge for time to take further instructions during the trial itself. Not only would the interrogatories prevent either party from being taken by surprise by the solicitor's evidence, it would also allow both parties to prepare the case they have to meet thereby resulting in a fair, expeditious and economical disposal of the action.

Both the plaintiff and the defendant were former clients of Rey Foo in respect of the same sale and purchase agreement. While s 128 Evidence Act (Cap 97, 1997 Ed) prohibits Rey Foo from disclosing any communication made by one or both of them in the course of his employment as their solicitor to anyone not within the solicitor-client relationship without their express consent, it does not prohibit the disclosure of any such communication to either of them. It will be highly artificial, and indeed an impossible task, for the solicitor to have to distinguish between communication with client A and with client B in respect of the same matter. The solicitor-client privilege is hence no bar to granting leave to serve the written interrogatories on Rey Foo.

The crux of Rey Foo's difficulty was that he was caught in a dispute between two erstwhile clients and was concerned about breaching his obligation owed to them. It would not be proper to order him to pay for the costs of the application or the plaintiff's costs, rather the proper order was that the plaintiff would pay Rey Foo costs on an indemnity basis pursuant to O 26A r 5, such costs to be agreed between themselves, and that such costs and the costs of the application and of the appeal be costs in the cause.

LEGAL PROFESSION
Foo Ko Hing v Foo Chee Heng [2002] 2 SLR 361

High Court - Suit No 792 of 2001 (Registrar's Appeal No 49 of 2002)
Tay Yong Kwang JC
20 March, 11 April 2002

Professional privilege - Communication between solicitor and client - Solicitor acting on behalf of two clients in respect of same transaction - Whether solicitor-client privilege barred disclosure by solicitor in dispute between former clients - Evidence Act (Cap 97, 1997 Ed) s 128