LVM Law Chambers LLC V Wan Hoe Keet [2020] SGCA 29: Can a firm represent clients on two separate occasions against the same defendant? (Photo credits: NullTx)

INTRODUCTION

In LVM Law Chambers LLC v Wan Hoe Keet [2020] SGCA 29, the Court of Appeal (“CA”) was faced with what it described as a “deceptively simple” but “not always straightforward” issue which it framed as follows:

Is a law firm which acted for a party (A) against another party (B) in previous proceedings permitted to act for another party (C) against that same party (B) in subsequent proceedings and, if so, under what circumstances is it permitted to act?

This case was unique in that the party applying to stop the law firm from acting was not a former client of the firm but an adversary of the firm’s client in the earlier proceeding.

The CA concluded that on the facts of the case before it, the law firm was not precluded from acting in the subsequent proceedings and it thus discharged the injunction granted by the High Court Judge restraining the law firm from acting (“the Injunction”).

CASE SUMMARY

As is evident from the title to the action, our firm was the subject-matter of the Injunction. The circumstances under which the Injunction was granted were as follows.

In 2016, we acted for the plaintiff (“A” in the issue framed by the CA) against 2 defendants (“B”) in a legal action (“the 1st Action”). A claimed that he had been induced by misrepresentations made by B to invest in a scheme which he later discovered to be a Ponzi scheme (“the Scheme”). On the opening day of the trial of the 1st Action in 2017, following out-of-court discussions, A and B entered into a written settlement agreement (“the SA”) the terms of which imposed a duty of confidentiality on A. Our firm was involved in the discussions that led to the SA but was not a signatory to it.

In 2018, we acted for another plaintiff (“C”) in another action (“the 2nd Action”) against B. Like A, C too had invested in the Scheme. The cause of action pleaded in the 2nd Action bore certain similarities with the 1st Action in that it was also based on misrepresentations made by B. B applied for an injunction to restrain us from continuing to act for C on the ground that we were privy to the discussions that led to the SA in the 1st Action. It therefore argued that we owed B obligations of confidence and there was a real risk that we would misuse or disclose confidential information if not restrained from continuing to act in the 2nd Action. The High Court Judge granted the Injunction. In so doing, His Honour followed the reasoning of 2 decided cases, 1 from New Zealand and the other from Australia, in which injunctions were granted in similar (though not identical) situations. As there is hitherto no local jurisprudence on this area of the law (which has potential significant ramifications for the legal community), we were of the view that the legal community would benefit from a pronouncement by the CA on the governing legal principles. We thus appealed the decision of the High Court Judge.

THE CA’S DECISION

In allowing our appeal and discharging the Injunction, the CA laid down certain legal principles which are of invaluable guidance to other law firms that may be caught in a similar situation.

(1) An equitable obligation of confidence may arise even in the absence of a contractual duty

Notwithstanding that the law firm in question did not contractually agree to be bound by confidentiality, an equitable duty of confidence may be imposed if the applicant for the injunction can establish the following conditions: (a) the information concerned must have the necessary quality of confidence about it; (b) that information must have been received by the lawyer (or law firm) concerned in circumstances importing an obligation of confidence; and (c) there is a real and sensible possibility of the information being misused.

As to the second limb, depending on the precise contours of the terms of confidentiality undertaken by the firm’s client in the agreement, the firm itself may be impressed with confidential obligations even though it was not a signatory to the agreement. An example given by the CA is “where it is shown that the terms of the settlement are considered by both parties in the previous proceedings to be confidential as between them.”

(2) The information that is considered confidential is, depending on the precise factual matrix, not necessarily confined to the terms of the settlement agreement

As to the details of the settlement that are confidential, the CA made clear that there “might be cases where it might be inferred from the surrounding context that information outside the terms of the settlement agreement is nevertheless subject to an obligation of confidence.” For example, in an appropriate case, this may extend to “the knowledge of the process of arriving at those terms, and the stance taken by the counterparty from the start to the end of negotiations.” Whether this is the position in any given case is a fact-centric question but the terms of the settlement agreement are not of themselves dispositive of the matter.   

(3) A high threshold of a “real and sensible possibility” of the misuse of confidential information must be shown to justify the grant of an injunction

Where (as here), the applicant for the injunction is an adverse party who is not a former client, there must be evidence that there is a “real and sensible” possibility (as opposed to a “remote and merely fanciful” one) of the information concerned being misused in the subsequent proceedings. In determining if the “real and sensibility” threshold is crossed (and putting aside cases where the risk of misuse is patently obvious), the CA gave 2 non-exhaustive factors to be considered:

  • The degree of similarity between the previous set of proceedings which were settled and the subsequent proceedings, such as by having similar issues and/or evidence. If the issues in the 2 proceedings bear few similarities, an injunction will not ensue. On this, a granular but objective approach must be undertaken by the court.
  • Where the firm’s client in the subsequent proceedings “deliberately retained the lawyer due to his involvement in the previous set of proceedings” which had brought a “happy” resolution for the first client, this would be a factor in favour of granting the injunction.

Ultimately, however, no one factor is determinative and the court must adopt a holistic approach. 

(4) The legal burden of proof is on the applicant for the injunction

The legal burden of proof lies on the party seeking the injunction. The reason for this principle is that it is a serious matter to prevent a litigant from exercising his “important right”, namely, his right to insist on counsel of his choice. As such, “the occasion for its exercise [of its power to grant the injunction] must necessarily be very rare indeed and subject to strict proof”.

As to the nature of the evidence required to discharge the burden, the CA emphasized that “mere or vague assertions of confidentiality and/or evidence that do not demonstrate a real and sensible possibility of misuse of the information (even if otherwise confidential) would be insufficient to discharge this burden of proof”.

Application of Principles

The CA was of the view that given the circumstances under which the SA was made, we owed a duty of confidence to the plaintiff in the 2nd Action. This despite the fact that the SA was not made in a mediation setting.

That was however not the end of the enquiry. In allowing our appeal, the CA concluded that, apart from the express terms of the SA, the plaintiff had failed to discharge its burden of showing that any other matters relating to the settlement negotiations in the 1st Action (such as the manner in which the terms of the SA were arrived at or the negotiating positions adopted by the parties) were confidential. In this regard, the CA noted that the plaintiff’s case consisted of “vague references to negotiations and a certain degree of “to-ing and fro-ing”. This same unsatisfactory approach meant that the plaintiff had failed to discharge its burden of establishing that there was a “real and sensible” possibility of us misusing confidential information gleaned from the 1st Action to the advantage of our client in the 2nd Action. 

In the final analysis, the CA concluded that the only confidential information that needed protection was the express terms of the SA. As such, it was of the view that an order refraining us from disclosing the terms of the SA was sufficient instead of the blanket injunction granted by the High Court Judge preventing our participation in the 2nd Action. Our appeal was thus allowed.

CONCLUDING REMARKS

As mentioned at the outset, this area of the law was uncharted territory in the local context prior to this decision. The CA’s comprehensive analysis has provided illuminating guidance to legal practitioners on this area of practical importance.

To read the High Court’s judgment, click here.
To read the Court of Appeal’s judgment, click here.