| X Pte Ltd and Another v CDE [1992] 2 SLR 996; [1992] SGHC 229 |
| Suit 2502/1991 | |
| 28 Aug 1992 | |
| High Court | |
| Judith Prakash JC | |
| Winston Chen (Winston Chen & Co) for the plaintiffs, Defendant in person |
Judgment
[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.] Judgment reserved. Judith Prakash JC: 1 The legal issue addressed in this judgment is in what circumstances an individual’s right to “kiss and tell” can be curtailed (at least on an interlocutory application). It arises from the defendant’s application for the discharge of interim injunction orders which the plaintiffs obtained against her on 5 December 1991. 2 Three injunctions were issued against the defendant. She was restrained, until further order, whether by herself, her servants or agents or otherwise howsoever: (a) from making use of or disclosing whether directly or indirectly to anyone (other than to the relevant authorities, her solicitors and this court) any information howsoever acquired by her, during her period of employment with the first plaintiffs, on the personal affairs of the second plaintiff including his amorous relationship with any woman including the defendant; (b) from making use of or disclosing whether directly or indirectly (other than to the relevant authorities and her solicitors) or delivering to any newspaper or periodical within Singapore or otherwise copies of any pleadings and affidavits filed in these proceedings or filed in any other proceedings which may be commenced by the defendant against the plaintiffs or either of them; and (c) (other than by or through the defendant’s solicitors) from communicating with the second plaintiff whether by telephone or letter or any other means of communication. 3 When the defendant’s application first came up before me on 8 June 1992, I varied the first injunction order so as to allow the defendant to consult with any of three named pastors and her psychiatrist provided that she notified them in advance of the existence of the injunction. I also decided that as the defendant was not legally represented and the first injunction involved complex questions of law, an amicus curiae should be appointed to enable the legal issues to be fully addressed at an adjourned hearing of the application. Mr Kenneth Tan kindly accepted appointment as amicus curiae. 4 First, a brief account of the facts. Factual background 5 In April 1989, the defendant was employed as a secretary by the first plaintiffs (“the company”), the Singapore incorporated subsidiary of a foreign corporation. In October 1989, she was transferred to a different division of the company as the secretary of the managing director of that division. When the second plaintiff (“AB”) was seconded to the company by its foreign parent in July 1990, the defendant became his secretary. The defendant left the company’s employ at the end of March 1991. 6 It is common ground that shortly after AB came to Singapore there was a sexual relationship between him and the defendant. This relationship ended in December 1990. The defendant’s contention is that the sexual intimacy between them arose because of harassment on the part of AB as her superior and her belief that if she did not submit to his advances she would lose the job which she enjoyed and on which she depended for her living. She further says that she was forced to resign from her job by AB. AB’s position is that there was no question of any harassment or the exertion of undue pressure on his part: both her intimacy with him and her resignation were completely voluntary actions of the defendant. 7 What happened from mid-March 1991 to December 1991 has been set out in lengthy affidavits filed by both AB and the defendant. There are numerous exhibits. To summarize: (a) Between 25 March 1991 and 14 November 1991, the defendant wrote some 20 letters and notes to AB. She also telephoned him frequently, attempted to see him on several occasions and did in fact meet with him a few times. On one occasion, in late September 1991, they spent the night together at a hotel. The letters were initially couched in affectionate terms. The defendant’s aim in writing the early letters seems to have been to get her job back. Later, when she did not receive a satisfactory response, many of the letters were explicitly threatening and written in intemperate language, although some of them simply expressed the defendant’s pain and distress at the situation she was in. She continually pressed AB for an explanation of his conduct towards her and gave him several time limits within which to respond. (b) Sometime towards the end of April 1991, the defendant lodged a report with the police, alleging that AB had raped her. Subsequently in September 1991, she made a further report that he had assaulted her indecently. (c) Between 2 May 1991 and 27 October 1991 the defendant wrote some five letters to various officers in the foreign parent of the company. In the first of these letters, dated 2 May 1991, she stated that she had been the subject of victimization and asked for a personal meeting to express her grievances. She notified the recipient of the letter that she had already lodged a report with the police and her further action, if necessary, would be to: (i) report to the president and chairman of the parent company; (ii) make known her grievances to as many people in the parent company as possible; (iii) inform its customers what type of person AB was; (iv) proceed with legal action and publicize the matter in the press. In another letter dated 5 August 1991 addressed to the chairman of the parent company, the defendant made various allegations against AB. She repeated her contention that he had abused her, gave details of AB’s relationship with another woman (“IS”), and accused him of having cheated the company in regard to expenses which he had claimed from the company. In a further letter to the same person in October 1991, the defendant complained that her letter of 5 August had been ignored. She stated that she had been left with no alternative but to turn to the public for attention and that she had given her story to the press. She said that she would follow up with legal action and she would ensure that the name of the company would be “badly shaken once this urgly (sic) news is out in the public”. (d) The defendant wrote several letters to AB’s wife who was residing in her home country and had only spent a few weeks in Singapore after AB’s posting here. In the first letter (15 March 1991), she notified Mrs AB that AB was having an affair with another woman. Subsequently, by a letter dated 20 July 1991, the defendant identified IS and gave Mrs AB further details about her. She also described her own relationship with AB as being “deep and complicated” which words, the defendant believed, would be sufficient to indicate to Mrs AB that she herself had been intimate with AB. In the letter the defendant said that from checking bills of AB and making inquiries, she had ascertained that AB had taken IS on a holiday to Phuket in February 1991; that AB had bought IS expensive gifts; that he spent a lot of money on telephoning IS every month at her foreign home; and that IS had spent time in Singapore with AB in August 1990 and February 1991. Finally, in a letter dated 12 August 1991 but sent out some weeks later, she gave Mrs AB explicit details of the liaison between herself and AB and repeated her stories regarding IS and AB. (e) On 11 May 1991, AB received an anonymous letter from a person subscribing himself as “angry friend”. In this letter AB was accused of having cheated the defendant of money, having cheated the company, having sexually harassed the defendant and having wrongly dismissed the defendant. The writer announced that if he were able to get certain documents from the defendant, he would send them to all the staff in the company and its head office to make sure that AB’s name was blackened. The letter ended with “You better call [the defendant] and check with her needs or see what can you do, or else I’ll going to give you hell. You better watch out.” (f) In October 1991, the defendant spoke to some newspaper reporters and told them her story, as a result of which an article entitled “Sex row” was published. No names were given. The article detailed the course of the relationship between the defendant and AB from the defendant’s viewpoint. The paper contacted AB but he refused to make any comment. At the end of the article, the defendant was quoted as having said: “I’m so angry, I want to get him.” (g) On 28 November 1991, AB received a second anonymous letter. This one enclosed a draft letter which was stated as being ready to be sent to thousands of people including AB’s family, his superiors, all the staff of the company and its parent, their business contacts, the Singapore Immigration, a named embassy and clubs and others. The proposed circular letter was written in the most intemperate and virulent language. It gave details of AB’s alleged mistreatment of the defendant; his relationship with IS; and his alleged cheating of the company. Also disclosed were AB’s personal addresses at home and abroad, his office address in Singapore and the address of the foreign parent company. 8 As the plaintiffs’ counsel has pointed out, some of the documents referred to above and exhibited to AB’s first affidavit in these proceedings revealed the following: (a) that the defendant had made copies of AB’s personal phone bills, of at least one of his departmental store bills and of his claim for reimbursement from the company of certain expenses; (b) that the defendant had kept a record of a holiday trip to Phuket which AB had taken with IS in February 1991; (c) that the defendant had kept a record of personal calls meant for AB in November 1990. The plaintiffs’ claim 9 On 4 December 1991, the plaintiffs responded to the various actions of the defendant by filing the suit herein and making an application for an ex parte interim injunction. By the statement of claim indorsed on the writ, the plaintiffs claimed various reliefs against the defendant, including: (a) a declaration that she was not entitled to make copies of various documents specified in the statement and an order for delivery up of these documents; (b) an injunction restraining the defendant from making use of or disclosing to anyone information acquired by her during her employ with the company on the personal affairs of AB; (c) an injunction restraining the defendant from contacting AB; (d) a quia timet injunction; (e) damages for breach of her employment agreement and/or for breach of confidence and/or for intimidation and/or for nuisance. 10 The plaintiffs assert that the causes of action on which they base their right to ask both for the above reliefs and the interlocutory relief are breach of confidence and the tort of conspiracy to injure. As Mr Tan pointed out, the court, in considering the defendant’s application for discharge, must determine whether these underlying causes of action are available to the plaintiffs. He then raised a constitutional issue. 11 Mr Tan argued that the right of free speech enshrined in art 14 of the Constitution might have the effect of overriding the common law of confidence and tort of conspiracy to injure. If this argument is accepted, then there would be no legal basis for the first and second interim injunctions and they would have to be discharged forthwith. I will therefore deal with this point first. Effect of art 14(1)(a) of the Constitution 12 In so far as is material, this article provides as follows: (1) Subject to clauses (2) and (3) — (a) every citizen of Singapore has the right to freedom of speech and expression;… (2) Parliament may by law impose — (a) on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence; 13 Mr Tan submitted that as a citizen of Singapore, the defendant has the right of freedom of expression and her claim to say what she wants to say about AB falls within this article. He pointed out that the courts of Singapore have accepted that the constitutional liberty of freedom of speech is in itself a sufficient reason to justify the denial of prior restraint where a person making defamatory remarks intends to justify the truth of his statements: see Lawrence Kwek Juan Bok v Lim Han Yong 14 Mr Tan agreed that the freedom granted by art 14(1)(a) is not absolute. Article 14(2)(a) permits Parliament to restrict a citizen’s right of free speech if Parliament deems such restriction necessary or expedient in the interest of, inter alia, public order or morality. The relevant words read: “Parliament may by law impose … such restrictions …”. The legal issue that arises is whether by reason of these words there has to be an Act of Parliament specifically restricting the freedom of expression granted in sub-art 1(a). If so, then because there is no statute on the Singapore statute book which protects confidential information or prohibits conspiracy to injure by means of disseminating information, the two causes of action on which the plaintiffs rely cannot be sustained and the defendant’s freedom to say, either alone or with others, what she wants to say about the plaintiffs is unfettered. The plaintiffs’ only remedy would, in that instance, be an action for defamation which would not succeed if the defendant is able to justify. 15 The foregoing issue was dealt with in two recent cases cited by Mr Tan. In the Malaysian case of Lee Kuan Yew v Chin Vui Khen 16 In that case, the plaintiff sued the defendants for defamation in connection with two articles which the defendants had published in their newspaper, the Sunday Star. In their defence, the defendants pleaded, inter alia, justification, and the protection of art 10 of the Malaysian Constitution guaranteeing freedom of expression. The plaintiffs applied, successfully, to strike out the defence based on art 10. 17 In contesting the application to strike out, the defendants’ submission had been that except for the law of criminal defamation in the Malaysian Penal Code, the Malaysian Parliament had not passed any other written law under art 10(2)(a) restricting free speech by stating or defining the law against defamation. They had further contended that the Malaysian Defamation Act, being a pre-independence statute, could not be construed as a law imposed by Parliament on the right of freedom of speech to provide against defamation. The learned judge dealt with this argument as follows [at p 502]: It is true that Parliament has not, under art 10(2)(a), enacted any law against defamation and I consider that it is not necessary for it to do so as, at Merdeka Day, there were already laws in existence against defamation. These are found in s 3(1) of the Civil Law Act 1956 that allows the courts, in the absence of any written law, to apply the common law of England relating to civil wrongs of all kinds including defamation, libel and slander, subject to such qualifications as local circumstances render necessary. In 1957, the common law of defamation was modified by the Defamation Act 1957, which came into force on 1 July 1957 and despite art 10(2)(a), that Act continues to have the force of law to this very day as Parliament has not repealed it. This is so as it is not unconstitutional, as it was enacted by the body, that is the predecessor of the Parliament that we know of today. It is also not inconsistent with any provision of the Constitution, in particular art 10(1)(a). Moreover, art 162(1), preserves all existing laws (which has been defined by art 160(2) to include both written and common law) in operation in the Federation immediately before Merdeka Day. It is clear that, read with art 162(1), art 10(2)(a) does not have the effect of eliminating the existing laws in operation prior to Merdeka Day. On the contrary, it complements art 162(1) as by its very provision, Parliament is empowered by art 10(2)(a) to make laws restricting the right to freedom of speech and expression in situations where there are no existing laws providing for such restrictions. In this respect, if one looks closely at the first few words of art 10(2)(a), what it states is that ‘Parliament may by law impose …’ (emphasis is mine) and by that very expression, the mandatory obligation to impose by enactment is absent as the need to legislate only arises when the occasion demands, ie to fill in any lacuna in the law. Thus as at Merdeka Day, there were already defamation laws in existence and in force which render the need to legislate under art 10(2)(a) redundant. 18 In the same way, it can be contended that at the time the Singapore Constitution was adopted, there were already laws in force relating to confidence and to the tort of conspiracy and therefore there was no need for any legislation to be passed under art 14(2)(a). This is because art 162 of the Constitution expressly states that “… all existing laws shall continue in force on and after the commencement of this Constitution …”, and the definitions of “existing law” and “law” under art 2 make it clear that existing law includes the common law in so far as it was in operation in Singapore at the time the Constitution was adopted. 19 The local case of Jeyaretnam Joshua Benjamin v Lee Kuan Yew This action of the plaintiff seeks to restrict the defendant’s constitutional right given to him by art 14(1)(a) of the Constitution of the Republic of Singapore and is therefore an unlawful interference of the defendant’s fundamental rights contained in the said article and for that reason not maintainable. 20 His application was dismissed and his appeal against the decision was also dismissed. In delivering the judgment of the Court of Appeal, Wee Chong Jin CJ stated that the defendant’s contention that the right of freedom of speech and expression conferred by art 14(1)(a) was unrestricted and wholly free of any restraint was clearly untenable. The Chief Justice held that such constitutional right was unarguably restricted by the laws of defamation. In enacting the Defamation Act, the legislature had clearly intended that the common law relating to defamation, as modified by the Act, should continue to apply in Singapore. He added [at p 65], and this is significant for the present purpose: Moreover, the definition of law in art 2(1) of the Constitution includes ‘the common law in so far as it is in operation in Singapore’. In our view, it is manifestly beyond argument that art 14(1)(a) is subject to the common law of defamation as modified by the Act and, accordingly, does not, in itself, afford a defence. 21 Whilst Mr Chen did not go so far as to say that it is manifestly beyond argument that art 14(1)(a) is subject to the common law actions for breach of confidence and conspiracy, he did submit that, at the very least, there is a serious question to be tried on this important legal issue. I agree. This issue is not one which can disenfranchise the plaintiffs at this interlocutory stage. In at least two recent cases (viz Federal Computer Services Sdn Bhd v Ang Jee Hai Eric 22 I must now examine the two causes of action put forward by the plaintiffs in order to determine whether on the facts before me the injunctions granted should be maintained in whole or in part. In doing so, I note that the principles to be applied are those established in the well-known decision in American Cyanamid Co v Ethicon Ltd Applicability of confidence 23 A plaintiff who founds his claim on the law of confidence can do so in one of two ways: (a) He can rely on the contractual agreement between himself and the defendant whereunder a duty of confidence has been expressly or impliedly imposed; or (b) he can invoke the equitable jurisdiction of the court to protect the obligation of confidence that the defendant owes him. 24 The plaintiffs in this case take both the above courses. An examination of paras 3 to 7 of the statement of claim indicates: (a) The company is relying on the contract of employment between themselves and the defendant. This contract did not contain any express duty of confidence, so they contend that it was subject to the following implied terms: (a) that the defendant would not disclose or make public any professional or trade secret or confidential information which she learnt by reason of her employment; (b) that the defendant would not use to the detriment of the company any information which she obtained in the course of or as a result of her employment; (c) that the defendant should not use, except for the purpose of her employment, opportunities which the employment gave her of gaining information. (b) Secondly, the plaintiffs contend that the relative positions of the defendant and AB in the company, ie that he was her direct superior and she was his secretary, imposed the following obligations on the defendant: (a) not to use, except for the purpose of her employment, the opportunities which the employment gave her of gaining information; (b) not to obtain any information by dishonest means or tricks; (c) not to use information which might have come into her possession by dishonest means or tricks; (d) not to disclose any such information other than to the relevant authorities. 25 It is clear from the statement of claim itself and the affidavits filed on the plaintiffs’ behalf that the defendant has not disclosed to any third party information on the trade or business of the company. Her disclosures were related solely to the activities of AB. In these circumstances, it is not seriously arguable on behalf of the company that the defendant has breached any duty of confidentiality which she owed them under para 4 of the statement of claim. Neither can it be contended that the defendant has any intention of breaching this duty of confidentiality in the future. 26 The plaintiffs’ right to a continuance of the first two injunctions thus rests on the assertion of confidentiality contained in para 5 of the statement of claim, ie that arising from the position of the defendant and AB vis-a-vis each other. As there is no contractual relationship between AB and the defendant, this assertion relies on the equitable obligation of confidence. 27 The oft quoted case of Coco v AN Clarke (Engineers) Ltd (a) the information to be protected must have the necessary quality of confidence about it; (b) that information must have been imparted in circumstances importing an obligation of confidence; (c) there must be an unauthorized use of the information to the detriment of the party who originally communicated it. 28 In order to determine whether the plaintiffs have, at the least, a seriously arguable case that these elements (which I shall call “the confidence elements”) are present in this case, one must first examine the allegedly confidential information. Paragraphs 6 and 7 of the statement of claim reveal that the plaintiffs object to the disclosure of information on: (a) personal telephone calls made by AB in September and December 1990 and January and March 1991; (b) a personal purchase made by AB; (c) AB’s trip to Phuket in February 1991 with IS; (d) AB’s relationship with IS generally; (e) AB’s claim against the company for reimbursement of entertainment expenses in November 1990. 29 Essentially, therefore, protection is sought for two categories of information: (a) AB’s adulterous relationship with IS; and (b) his alleged cheating of the company. Each of these categories must contain the confidence elements. Adulterous relationship 30 Stephens v Avery To most people the details of their sexual lives are high on their list of those matters which they regard as confidential. The mere fact that two people know a secret does not mean that it is not confidential. If in fact information is secret, then in my judgment it is capable of being kept secret by the imposition of a duty of confidence on any person to whom it is communicated. Information only ceases to be capable of protection as confidential when it is in fact known to a substantial number of people. 31 The first confidence element is satisfied here. 32 The plaintiffs have some difficulty with the second element. In the Stephens v Avery case the plaintiff had imparted the information to the defendant under an express imposition of confidentiality. Here, AB did not tell the defendant about his relationship with IS: the defendant discovered this for herself by examining his personal phone bills and making investigations, through which she learnt AB had frequently telephoned IS, and of their trip to Phuket. The plaintiffs’ contention is that it was because of her position as AB’s secretary that the defendant had access to documents which enabled her to carry out her detective work. They submit that the information which a secretary receives about her superior’s private life and her access to his personal documents are covered by the duty of confidence, ie that such information has come to her knowledge only because of the position of confidence which she occupies and that accordingly, it should be treated as having been disclosed to her in circumstances in which the obligation to respect confidentiality is imposed. The defendant’s contention, on the other hand, is that she was not employed as a “confidential” secretary as that word does not appear anywhere in her employment contract or in the statement of claim, and thus no duty of confidence arises. Mr Tan contended that she could, additionally, argue that telephone and department store bills are not of themselves confidential documents. 33 The plaintiffs also submit that, in addition to the confidence imposed by her position, the defendant can be restrained from disclosing private information acquired by dubious means. 34 In the 1913 case of Lord Ashburton v Pape The principle upon which the court of chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged. [emphasis added] 35 In that case, the judge granted an injunction to restrain the use of privileged documents acquired by deception. A similar approach was followed in the modern case of Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408; 36 In the present suit, not only did the defendant have access to certain documents and information because she was AB’s secretary but she also used such information in order to learn more about his personal activities. Whilst telephone and shop bills may not have the degree of confidentiality of a personal diary, there is no doubt that these documents are the property of AB and the defendant had no right to make use of them in any way without his authorization. 37 In my view, there is a serious question to be tried as to whether the information was gained while she was in a position of confidence and/or was private information which the defendant had obtained by surreptitious or underhanded means, thus affording it the protection of the confidentiality law. 38 The third element, that of disclosure to the detriment of the plaintiffs, is obviously fulfilled in this case in relation to AB though not in relation to the company. Whilst there may be cases where stories about an employee’s private conduct could cause damage to his employer, I do not believe that this is the case here. Cheating allegation 39 Here, again, the information was obtained because the defendant was AB’s secretary. It is, arguably, confidential information and publication thereof would harm AB, though probably not the company. Mr Tan drew my attention to a possible argument in aid of the defendant, viz the defendant may be able to assert that publication cannot be restrained because of the operation of the rule established by Wood VC in the phrase: “there is no confidence as to the disclosure of iniquity” [see Gartside v Outram (1857) 26 LJ Ch 113 at p 114]. This rule requires the court to balance the competing public interests in maintaining confidentiality and in ensuring that wrongdoing is not concealed. 40 In Initial Services Ltd v Putterill 41 The Francome case exemplified the above situation. There the defendants argued that as the tapes in their possession indicated offences on the part of Mr Francome, the iniquity rule would operate to allow them to publish the information. Their contention that such publication was in the public interest was rejected, it being held that the public interest would be equally well served if, pending the trial, the tapes were disclosed only to the police and the jockey club. 42 In this case, too, I do not see that public interest requires full-scale publication of AB’s alleged cheating. The only persons who need to know of the information at this stage are the company and the police. The company has already been informed and the first injunction order permitted the defendant to deal with the relevant authorities. In regards to the cheating allegation therefore, no objection can be made to the injunctions on the basis of public interest in disclosure. The balance of convenience 43 The plaintiffs have satisfied me that in relation to the two categories of information discussed, there is a seriously arguable case for breach of confidence. I am also satisfied that damages would not be an adequate remedy for the plaintiffs. The loss of reputation can never be adequately compensated for with cash. On the other hand, the defendant would not be harmed by her inability to disclose the information pending the trial. Finally, the balance of convenience in this case lies with the plaintiffs. If the information is confidential, it should be kept so. If it is not, the truth can come out after the trial. No harm will be done by keeping the information away from the public at large till then. Personal relationship 44 The statement of claim does not specify information on the personal relationship between AB and the defendant as being one of the items covered by the duty of confidentiality. As Mr Tan pointed out in the course of argument, it is highly questionable whether a personal relationship would be considered information which has been communicated on the basis of confidentiality. In Stephens v Avery, Sir Nicholas Browne-Wilkinson VC doubted the premise that between unmarried sexual partners there is no duty of confidentiality and both parties are free to discuss the matter with the whole world, though, for the purposes of that case, he accepted that submission to be correct. In my judgment, the submission reflects the law. Counsel for the plaintiffs was unable to cite a single case to support a duty of confidence in such a situation. That the obverse is the true position was clearly indicated as long ago as the early nineteenth century when the Duke of Wellington, the vanquisher of Napoleon, was told he could avoid being mentioned in the memoirs of the celebrated courtesan Harriet Wilson by giving her money. He declined either to be blackmailed or to make a futile application for an injunction. Instead, he robustly proclaimed: “Publish and be damned!” 45 As the plaintiffs cannot rely on the law of confidence to justify the gag on the defendant disclosing details of her relationship with AB, I must next consider whether the tort of conspiracy to injure assists them. Conspiracy to injure 46 The plaintiffs’ claim that the defendant is part of a conspiracy to injure them is set out in paras 8 and 9 of the statement of claim. These read as follows: 8 The defendant has repeatedly and with intent to injure the first plaintiff and/or the second plaintiff threatened on diverse dates in her letters to the second plaintiff and other persons to publish or cause to be published in the newspapers in Singapore and in [the second plaintiff’s home country] information obtained by her pursuant to para 6 in breach of the implied terms set out in paras 4(a) and (b) and of the obligations set out in para 5 as well as information of her personal and/or working relationship with the second plaintiff. Particulars (a) Letter to the second plaintiff’s wife dated 20 June 1991. (b) Letters to the chief executives dated 5 August 1991. (c) Letters to the chief executives dated 24 October 1991. (d) Letters to the chief executives dated 27 October 1991. (e) Letter to the second plaintiff dated 8 October 1991. (f) Letter to the second plaintiff dated 14 November 1991. 9 Further or in the alternative the defendant and person or persons whose name or names are unknown to the plaintiffs on diverse dates unknown to the first plaintiff and the second plaintiff and/or on or about 28 November 1991 wrongfully and/or with the intent and/or with dominant or paramount intent to injure the first plaintiff and/or the second plaintiff conspired or agreed together to intimidate and/or publish and/or cause to be published the information which the defendant obtained pursuant to para 6 above including information on the personal relationship of the second plaintiff with IS and her personal and/or working relationship with the second plaintiff and real and substantial damage will ensue to both the plaintiffs if the defendant is not restrained by an injunction of the court. 47 The defendant prepared and filed her own defence on 13 December 1991. She did not therein deal directly with the allegation of conspiracy. Paragraphs 8 and 9 of the defence which purport to reply to this allegation simply state: “The second plaintiff has betrayed his own principles. The defendant has on several occasions considering burying the hatchet but the second plaintiff always challenge her(sic).” In her submissions at the hearing, however, the defendant stated that she had not conspired with anyone and the two anonymous letters had been written without her instigation. In her affidavit of 27 January 1992, the defendant referred to the two anonymous letters in separate paragraphs and on each occasion stated that she should not be held responsible for the actions of the other people, thus implying that she had nothing to do with such actions. 48 As stated in Clerk & Lindsell on Torts (16th Ed) at para 15-24, the tort of conspiracy to injure is one which is regarded by the English House of Lords as “a highly anomalous cause of action” but one that is “too well established to be discarded” (see Lonrho Ltd v Shell Petroleum Co Ltd (No 2) (a) a combination of two or more persons to do certain acts; (b) that the predominant or sole purpose of the combination be to injure another rather than to protect one’s own legitimate interest. 49 When these two elements are established, the victim of the conspiracy can sue for damages and/or apply for injunctive relief to prevent the conspirators from acting in pursuance of their conspiracy. 50 So far as I am aware, there are only two reported English decisions to date which deal with the plaintiff’s right to an injunction when the method by which the conspirators intend to injure the plaintiff is the dissemination of information about the plaintiff. The first of these cases, and the only one in which an injunction restraining the proposed dissemination of information was granted, is Gulf Oil (Great Britain) Ltd v Page 51 The main judgment in the appeal was delivered by Parker LJ. He noted that the defendants’ counsel had contended that if interim relief were granted in the case, it would reverse the long standing “libel principle”, ie that the court would not grant an injunction to restrain the publication of defamatory matter where the defendants alleged that the words complained of were true. The judge stressed, however, that the documents before the court gave clear evidence of a combination between the defendants to display the airborne sign over the Cheltenham race course where it could be seen, and in order that it should be seen, by the maximum number of people, the vast majority of whom would have no interest whatsoever in the supply of fuel to retail filling stations. As the appeal and cross-appeal from the judgment were then pending and the supply agreement had been terminated, his Lordship found [at pp 332–333]: The defendants had … at that time, no immediate interest of their own to protect against Gulf and no interest of their own to further as against Gulf. In these circumstances there is, in my view, a strong inference that the purpose of the display was simply to inflict upon Gulf the maximum possible damage in its business by way of revenge. There is thus not merely a serious question to be tried but a strong prima facie case in conspiracy to injure. It may be that that case will not in the event succeed, but, unless the libel principle is a complete answer to the claim for interlocutory relief, this is a plain case for the grant of such relief on the principles enunciated in [the American Cyanamid case]. Indeed, this was not seriously disputed. 52 Parker LJ then detailed the cases establishing the libel principle and referred to Fraser v Evans The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge. But a better reason is the importance in the public interest that the truth should out. As the court said in [Bonnard v Perryman (1891)] at p 284: ‘The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done.’ There is no wrong done if it is true, or if it is fair comment on a matter of public interest. The court will not prejudice the issue by granting an injunction in advance of publication. 53 He went on to establish the rationale for the grant of the injunction in the Gulf Oil case in the following words [at p 333]: It is true that there is no wrong done if what is published is true provided that it is not published in pursuance of a combination and, even if it is, there is still no wrong unless the sole or dominant purpose of the combination and publication is to injure the plaintiff. If, however, there is both combination and purpose or dominant purpose to injure, there is a wrong done. When a plaintiff sues in conspiracy there is, therefore, a potential wrong even if it is admitted, as it is in the present case, that the publication is true and thus that there is no question of a cause of action in defamation. In such a case the court can, and in my view should, proceed on the same principles as it would in the case of any other tort. 54 In agreeing that the appeal should be allowed, Ralph Gibson LJ stated that as Gulf had made out an arguable case that the aerial display had been part of a concerted plan to inflict deliberate damage upon the plaintiffs without any just cause, they were, due regard being given the principle of free speech, entitled to the limited injunction granted by the appeal court. 55 The third member of the Court of Appeal, Sir Nicholas Browne-Wilkinson VC agreed with the foregoing judgments. He had his opportunity to develop the law further and analyse the effect of the Gulf Oil decision when deciding the second case on the issue, Femis-Bank (Anguilla) Ltd v Lazar 56 Browne-Wilkinson VC refused to grant the injunction. The Vice-Chancellor pointed out in his judgment that to obtain an injunction, the plaintiffs would first have to establish an arguable case that there was a conspiracy, the sole or paramount intention of which was to injure them. After considering the affidavits before him, he held that there were substantial grounds on which it could be argued that there was a major malicious motive in the conduct of the defendant, Mr Lazar. Though he had substantial doubt whether at trial the plaintiffs would be able to establish that Mr Lazar’s sole or paramount purpose was simply to injure without lawful justification, he marginally reached the view that there was an arguable case on the point. Having found that damages would be an inadequate remedy to the plaintiffs, he then turned to consider how he should exercise his discretion. It appeared to the Vice-Chancellor that the important questions in the case were questions of public interest rather than private rights. One of these, which he called “the wider public interest” related to the preservation of freedom of speech and the other, the “narrower public interest”, related to permitting allegations to be made alerting investors and regulatory authorities to the possibility of malfeasance in a financial institution. 57 Counsel for the plaintiff submitted that on the basis of the Gulf Oil case, the wider public interest was not a relevant matter for the judge to take into account where the claim was based on a conspiracy to injure. The Vice-Chancellor analysed the judgment of Parker LJ in the Gulf Oil case and rejected the plaintiff’s contention. He stated: I do not see any ground for suggesting that the Gulf Oil case [1987] decided that the public interest in freedom of speech was irrelevant in exercising the discretion to grant an injunction … . Even if the case is brought in conspiracy, the question remains: ‘should the injunction be granted as a matter of discretion?’ and in exercising that discretion the fact that the injunction will interfere with freedom of speech was an important factor to be taken into account. I would expect that only in the very clearest cases such as existed in the Gulf Oil case would the interference with that public interest be justified by the grant of an injunction. 58 He then considered the narrower public interest and stated: “If the allegations were wholly unsupported by collaborative material and it was manifest that what was being done was mere spite then it might be appropriate to grant an injunction but there is at least some support for what Mr Lazar is saying.” (Emphasis added.) And the judge concluded: “This is a case where in the exercise of the discretion, I should not preclude Mr Lazar from exercising his right of free speech, since there is an element of public interest in those factors being known, and the case, on balance, is not a very strong one against him.” 59 In my view (and I have here been assisted by Mr Chen’s able submissions), the principles established by these two authorities are: (a) Where an interlocutory injunction is sought to prevent publication of information pursuant to conspiracy to injure, the court should bear in mind that the interlocutory injunction would, if granted, interfere with the freedom of speech. Accordingly, whilst in an appropriate case an injunction can issue, the court will be very careful in delimiting the extent of the injunction. (b) Where the plaintiffs can establish a strong prima facie claim for conspiracy to injure as in Gulf Oil, then the court would grant the injunction to prevent the continuation of an actionable wrong as in such a clear case it is justifiable to interfere with the public interest in the freedom of speech. It would be noted, however, that in this case only the most flagrant publication of the information was restrained. (c) If the plaintiffs’ claim for conspiracy to injure is only arguable in that there is some doubt as to the dominant purpose being an intention to injure, the public interest in freedom of speech would prevent the issue of a “gagging” injunction. In the Femis-Bank case the plaintiffs had only an arguable case since (a) the publication was to persons who had an interest in receiving the information, thus negativing paramount intent to injure, and (b) the information published were matters of public concern as a bank was involved. 60 Mr Chen asserted that in the present case, the evidence before the court clearly establishes spite and paramount intention to injure as well as the combination. Information on AB’s personal relationships with women are not matters of public interest, although they may be interesting or titillating to the public, and the public has no legitimate interest in receiving such information. 61 In my judgment, the plaintiffs have succeeded in establishing that there are serious questions to be tried in this case on the tort of conspiracy to injure. First, the anonymous letters exhibited contain a wealth of detail which could only have been disclosed to the writer(s) by the defendant herself. They threaten the plaintiffs with unpleasant repercussions should they not treat the defendant properly. The timing of the letters is also significant. They were sent at times when the defendant herself was very upset with the plaintiffs: the first letter arrived less than two weeks after the defendant’s first police report, and the second after the defendant, in her penultimate letter (dated 8 November 1991) to AB, had said: “My main objective is to bring up my grievances and to tell the whole world exactly what type of person you are. I also want our story with photographs to be published in all the newspapers.” In her submissions, the defendant admitted that the anonymous letters had been written by a third party but contended that she had not instigated their composition. Whilst at the trial the defendant may be able to establish that she did not in fact conspire with the writer(s) of these letters, at this stage the plaintiffs have satisfied me that there is a question to be tried as to the existence of a combination against them. 62 On the issue of intention, it appears from the cases cited above that where a defendant has a real interest in the disclosure of the information, then the inference of paramount intention to injure can be negatived. Mr Chen submitted that even if the defendant’s version is true and she was the victim of sexual harassment, she has no interest in disclosing the details of her relationship with AB since, as the law stands, she has no recourse against him or the company. Whilst it might be correct that the defendant cannot bring a lawsuit against the plaintiffs (though I express no decided opinion on this issue), if the defendant has been mistreated, she obviously has an interest in exposing the perpetrator of the mistreatment to public opprobrium. This, given the state of the law, might in fact be her only recourse to obtain satisfaction for any wrong that may have been done to her. There would also be a public interest in the disclosure of information on morally and socially unacceptable conduct so as to deter others from replicating such conduct. In a country such as Singapore where women make up more than a third of the labour force and there is a continuing economic need to tap the expertise and abilities of the female population, it is important that sexual harassment of women workers is actively discouraged. 63 On the other hand, it is clear from the defendant’s actions and letters that spite and a desire for revenge have played a large part in motivating her. She has disseminated information not only on AB’s personal relationship with herself, but also on his relationship with IS and his alleged cheating of the company. Additionally, the language of some of the letters indicates that the defendant, far from being the victim of harassment, was, as AB alleges, a willing participant in a love affair who was angered by the end of that affair. Whilst the defendant has an explanation for such language, at this interlocutory stage the court is neither required nor in a position to decide which version is correct. Accordingly, I conclude that there is a serious question to be tried on the issue of intention to injure. As regards the threatened disclosure to the public at large, business contacts of the plaintiffs, embassies and clubs who have no interest in the matter at all, it is clear that the element of spite dominates. 64 Here, again, damages would not be adequate recompense to the plaintiffs. On the other hand, the damage which a continuation of the injunction prohibiting the defendant from speaking about her personal relationship with AB might inflict on the defendant, can be contained by narrowing the width of the injunction. The defendant’s complaint that the original injunction harmed her in that she was banned from seeking the help and consolation both of professional advisors and family is a valid one. Further, as pointed out by Mr Tan, when the defendant talks to her close friends, counsellors and family about her personal relationship with AB, the paramount intention must be to seek comfort and assistance rather than to injure the plaintiffs. If the injunction is so worded as to allow the defendant such solace, however, the postponement of her right to tell the world what was done to her till after the trial of the action would be an inconvenience rather than anything more serious and, at the same time, the public interest in preserving freedom of speech would be catered to. 65 Having given due consideration to the various elements involved and the competing interests of the parties, it is my opinion that having due regard for freedom of speech, the defendant should not be permitted from now till the trial to publicly disseminate information about her personal relationship with AB and that therefore, the first two interim injunctions should be continued, though in a modified form. The third injunction 66 Although during the argument neither party dealt specifically with the third injunction order, ie that restraining the defendant from contacting AB, as the defendant’s application is for a total discharge of all the injunction orders made, I have also to consider whether this order should be continued. The affidavits of AB and the defendant herself made clear that she had telephoned him, written to him and tried to see him very frequently. There is obviously a serious question to be tried on the tort of nuisance. No argument can be made in favour of discharging the third injunction at this stage. Conclusion 67 For the reasons given above, I therefore order that the first and second injunction orders granted on 5 December 1991 be varied so as to provide that until trial of this action or until further order: (a) the defendant, whether by herself, her servants or agents or otherwise howsoever, be restrained from disclosing, whether directly or indirectly, to anyone (other than the relevant authorities, her solicitors and this court) any information howsoever acquired by her during her period of employment with the first plaintiffs on the personal affairs of the second plaintiff excluding his relationship with the defendant; (b) the defendant, whether by herself, her servants or agents or otherwise howsoever, be restrained and is hereby restrained from disclosing to any newspaper or periodical or other media (whether within or outside of Singapore) or to the employees of the first plaintiffs or its parent company or otherwise publishing for public dissemination (disclosure to the relevant authorities not to be regarded as public dissemination) any information on the relationship between the defendant and the second plaintiff. 68 The costs of this application are reserved to the trial judge. 69 Finally, I would like to record my thanks to Mr Kenneth Tan for his lucid and meticulous analysis of the law. Order accordingly. Reported by Kenneth Huang