Wong Li Qi writes a case update on a recent Singapore Court of Appeal decision granting retrospective leave for lifting of the Riddick undertaking.
The Singapore Court of Appeal in Ong Jane Rebecca v Lim Lie Hoa  SGCA 63 clarified the legal framework on a Riddick undertaking and discussed the relevant considerations in whether to lift the undertaking. In light of the exceptional circumstances, the Court of Appeal had granted the appellant retrospective leave.
While this decision dealt with other facts, this case update focuses only on the key facts and issues on the Riddick undertaking.
Summary of Decision and Significance
The Riddick principle states that a party who discloses a document in an action under compulsion is entitled to the court’s protection against any use of that document otherwise than in that action.
In this case, the Appellant had commenced an examination of judgment debtor (EJD) proceedings against the sole executor of an estate. The Appellant then utilised the documents disclosed by the said executor to file a separate civil suit against him for alleged misconduct. No leave of court was obtained prior to the filing of the suit.
The Singapore Court of Appeal held that the Riddick undertaking applies to the EJD documents and that leave was required to lift the undertaking. Nonetheless, the Court granted the Appellant retrospective leave and restored the civil suit.
First, the Court of Appeal helpfully explained the distinction between situations where a disclosed document is not subject to the Riddick undertaking and situations where a document protected by the Riddick undertaking can be used in separate proceedings, with or without leave. The Court’s analysis covers the relevance of compulsion in determining whether disclosed documents are protected by a Riddick undertaking and the factors in allowing a party to utilise the protected documents without leave.
Second, the Court of Appeal adopted the multifactorial balancing approach set out in Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another  SGCA 76 (Amber Compounding) (which was previously written here) and granted the Appellant retrospective leave. The balance of interests and exceptional circumstances in the present case justified such a decision. Key factors included the lack of collateral purpose on behalf of the Appellant in commencing the EJD proceedings and that the Appellant had offered a reasonable explanation in her failure to obtain prospective leave of court.
Mdm Lim is the widow of Mr Ong Seng Keng (Mr Ong), and the couple has three sons, Ong Siauw-Tjoan (OST), Ong Siauw Ping (OSP) and Ong Keng Tong.
The Appellant, Jane Rebecca Ong, is the estranged wife of OST. Following the couple’s divorce in 1988, the Appellant obtained a maintenance order against OST. OST then assigned to the Appellant half of his entitlement in Mr Ong’s estate and conferred on the Appellant powers to recover OST’s part in Mr Ong’s estate.
In 1991, the Appellant commenced proceedings against Mdm Lim and succeeded in her claim for a share of Mr Ong’s estate. The Court then ordered an inquiry into the estate, and the Appellant was awarded the costs of the inquiry proceedings. The Appellant then filed BC 118 for taxation of her costs and obtained a costs order (Order). However, the Order was stayed due to the other ongoing litigation proceedings at that time.
In the meantime, Mdm Lim passed away in August 2009. OSP became the sole executor of her estate (Estate).
In 2019, the Appellant was allowed to proceed with the enforcement of the Order, and she commenced EJD proceedings against the Estate. OSP then filed the EJD documents in his capacity as the sole executor of the Estate. Based on the information disclosed in the EJD documents, the Appellant viewed that OSP had breached his duties as the sole executor of the Estate by, among others, misappropriating properties of the Estate.
Therefore, the Appellant filed a civil suit (Suit 47) against OSP regarding his alleged misconduct. OSP then applied to strike out Suit 47 because the Appellant had used the EJD documents in violation of the Riddick undertaking and without leave of court. Suit 47 was then struck out and the Appellant appealed.
Prior to the hearing of the appeals, the Appellant bankrupted the Estate and OSP ceased to be the executor of the Estate.
The main issues before the Court of Appeal were whether the Riddick undertaking applied to the EJD documents and if so, whether retrospective leave ought to be granted to lift the undertaking.
The Court of Appeal answered both questions in the affirmative.
Although the Appellant should have sought prospective leave of court to use the EJD documents, the exceptional circumstances in the present case weighed in favour of granting the Appellant retrospective leave. Suit 47 was restored.
Principles on the Riddick undertaking – 3 categories
The Court highlighted that it is important to distinguish between situations where a disclosed document is not subject to the Riddick undertaking and situations where a document protected by the Riddick undertaking can be used in separate proceedings, with or without leave. The Court broadly divided these situations into 3 categories.
Under the first category, if the documents to be used were not disclosed under compulsion, it is not protected by the Riddick undertaking. No leave of court is required to use those documents. In determining whether a party has disclosed the documents voluntarily or under compulsion, the Court must examine the context in which the disclosure was made.
Under the second category, documents protected by the Riddick undertaking may be used without the leave of court for the purpose of related “enforcement” proceedings. There are two hurdles to be met.
First, the nature of proceedings in which the disclosure was made (original proceedings) must be one that the disclosing party would expect the information disclosed to be used to commence subsequent proceedings.
For example, a judgment debtor would expect the information disclosed in the EJD proceedings to be used to commence subsequent execution proceedings such as garnishee proceedings. This is in contrast to, for example, a specific discovery application where the disclosing party would expect the information disclosed to only be used for that specific action.
After crossing the first hurdle, the focus then shifts onto whether the nature of proceedings in which those documents are to be used (subsequent proceedings) can constitute enforcement of the original proceedings. The Court of Appeal set out three relevant factors:
- Identity of parties: whether both proceedings are against the same defendants;
- Nature of debt: whether both proceedings pursue the same subject matter, eg the same debt being pursued in the original proceedings; and
- Nature of subsequent proceedings: whether the subsequent proceedings can ordinarily be considered as “enforcement” of the original proceedings. For example, modes of execution recognised under the Singapore Rules of Court such as garnishee proceedings.
If the subsequent proceedings comply with the factors above, it is most likely that they are related enforcement proceedings. Therefore, a party does not require leave to use the protected documents to commence those proceedings.
Last but not least, the third category includes any situation beyond the scope of the two categories above. Leave of court is required to lift the Riddick undertaking and rely on the protected documents to commence or sustain separate proceedings. This would then involve a consideration of the factors set out in cases such as Amber Compounding.
Application to facts
EJD documents are protected by a Riddick undertaking
As there was no direct Singapore authority on whether EJD documents are protected, the Court of Appeal first examined the nature of EJD proceedings and held that such proceedings bear an element of compulsion.
In EJD proceedings, a judgment debtor is ordered by the court to appear and be examined before the Registrar. He is also compelled to produce relevant documents and information to reveal his financial affairs. Further, foreign authorities indicate that such proceedings contain an implied undertaking of confidentiality and that the judgment debtor should have some assurance that the evidence and documents disclosed in the EJD proceedings would not be used for any separate purposes.
The Court further drew similarities between EJD proceedings and an Anton Piller order (APO). An APO, to which a Riddick undertaking applies, is coercive in nature and functions as a form of discovery. EJD proceedings operate similarly in that it compels a judgment debtor to disclose documents and information.
Therefore, the Court of Appeal concluded that a Riddick undertaking applies to EJD documents.
Suit 47 is not a related enforcement proceeding
In applying the factors under the second category, the Court of Appeal held that Suit 47 is not a related “enforcement” proceeding because of several reasons:
- The defendants in the EJD proceedings and Suit 47 are different. The former is strictly only against the Estate whereas the latter is against OSP personally.
- The cause of action in Suit 47 is different. The Appellant was using the EJD documents to sue OSP for different reliefs and not to enforce the Order. Hence, Suit 47 is not an enforcement of judgment debt owed by the Estate.
- Suit 47, as a civil suit, does not fall within any of the modes of execution recognised under the Singapore Rules of Court. Therefore, it cannot be characterised as an enforcement of the Order. Furthermore, any judgment obtained in Suit 47 would only be enforceable against OSP and not the Estate.
Therefore, the Court of Appeal concluded that the present situation is one falling under the third category. Leave of court is required for the Appellant to use the EJD documents.
Factors weighing in favour of granting leave
The Court of Appeal emphasised that the preservation of the integrity of the court’s process is of utmost significance. This is because the Riddick undertaking is ultimately an expression of the doctrine of abuse of process. It aims to prohibit the procurement of documents motivated by a collateral or improper purpose and the subsequent usage of those documents.
In the present case, the balance of interests favoured lifting the Riddick undertaking and the grant of retrospective leave.
First, the Appellant did not commence the EJD proceedings with a collateral purpose to obtain the EJD documents, hence there was no abuse of the court’s process. This was highly significant in the Court’s decision to lift the undertaking.
The Appellant had commenced the EJD proceedings simply to recover an outstanding legitimate judgment debt. Only after reviewing the EJD documents and learning of OSP’s potential wrongdoings, the Appellant chose to commence Suit 47. The EJD proceedings were not used as a fishing exercise.
This is in contrast to cases where the Court had found the presence of collateral motive and declined to lift the Riddick undertaking.
For example, in ED&F Man Capital Markets Limited v Straits (Singapore) Pte Ltd  2 SLR 695 (ED&F), a party had commenced pre-action disclosure proceedings in Singapore in an attempt to obtain information to assist its proceedings in the UK. This was held to be an abuse of the court’s process.
Second, the lifting of the Riddick undertaking would help to support related proceedings, i.e. Suit 47 where there is an arguable case that OSP had been dissipating the Estate’s assets to the detriment of the Estate and its creditors.
In addition, the unique circumstances of the present case warranted a lifting of the Riddick undertaking.
- There is a serious question to be tried regarding OSP’s potential wrongdoings in the handling of the affairs of the Estate and his breach of duties to the Estate;
- Only the executor of the Estate can commence proceedings for the benefit of the Estate. It was unlikely for OSP as the sole executor to commence proceedings against himself;
- Although Suit 47 is not an “enforcement” proceeding of BC 118, these two matters are intertwined. The Appellant’s success in Suit 47 would determine her recovery in BC 118;
- Suit 47 is a means to pursue a legitimate interest in BC 118. The EJD documents were not used to pursue a frivolous or entirely unrelated action to further the Appellant’s personal interests; and
- The bankruptcy of the Estate increased the risk of non-recovery in BC 118. If the allegations of misappropriation by OSP were true, the liquidated value of those misappropriated properties would have been more than sufficient to repay the judgment debt owing to the Appellant.
Third, there were no countervailing considerations that militate against the lifting of the undertaking:
- OSP did not expressly preserve his privilege against self-incrimination in the EJD documents. Such privilege was only belatedly inserted into his defence in Suit 47. Unlike in Amber Compounding, the Appellant also did not make any express undertaking not to use the EJD documents;
- In any event, OSP is obliged to be honest and candid in carrying out the affairs of the Estate as the sole executor. His personal right to privacy should not trump the interests of the Estate and all its creditors; and
- Prejudice is not an overriding factor but a neutral one at best. OSP would no doubt be prejudiced by the use of the EJD documents in Suit 47. Nonetheless, the Court held that: “If undue weight were placed on prejudice resulting to a defendant, it would be difficult for any proceedings to be commenced based on information protected by the Riddick Put another way, it is not desirable for the Riddick principle to be employed (or abused) as a shield against all forms of civil and criminal liability.”
Next, on the question of retrospective leave, the Court of Appeal noted that a court ought to scrutinise the reasons as to why a party had failed to obtain prospective leave in the first place. The absence of any sensible explanation may weigh against the grant of retrospective leave. Nonetheless, the Court of Appeal held that the Appellant had offered a plausible explanation for her decision not to seek prospective leave.
As Suit 47 is based on allegations that OSP was dissipating the Estate’s assets, the Appellant was concerned that OSP would delay any application for prospective leave and continue to dissipate the Estate’s assets. Such concerns were reasonable and the Appellant had acted consistently in filing the urgent suit against OSP.
Therefore, considering all the factors above, the Court of Appeal held that the exceptional circumstances of the present case justified the grant of retrospective leave. Nonetheless, the failure to obtain prospective leave was reflected in the adverse costs orders made against the Appellant in the appeal proceedings.
Wong Li Qi is an incoming pupil with Lim Chee Wee Partnership. She graduated from the University of Bristol and has completed her Bar Professional Training Course.