Déjà Vu May Not Mean Disqualification by an Adversary
This article examines and evaluates the underlying circumstances where the lawyer or law firm concerned may be held to owe an equitable duty of confidence to an adversary in Singapore, when acting for different clients in successive claims against the same adversary.
“If you know the enemy and know yourself, you need not fear the result of a hundred battles.”
– Sun Tzu, The Art of War
In the February 2020 issue of the Singapore Law Gazette, this author had examined the competing policy concerns of client choice and the protection of an adversary’s confidentiality in the context of lawyer déjà vu, where the same lawyer or law firm represented different clients in successive similar claims against the same adversary (“Acting Against the Same Opponent in Similar Matters: Rebalancing Client Choice and Confidentiality”). Coincidentally, the Singapore Court of Appeal (“CA”) recently released, in early April 2020, a landmark decision, LVM Law Chambers LLC v Wan Hoe Keet and another and another matter1(2020) SGCA 29. (Wan Hoe Keet (CA)), which revisited these policy considerations.
At issue in Wan Hoe Keet (CA) was whether the law firm in question (the Firm) owed an equitable duty of confidence to the counterparties in the previous proceedings that had been settled via negotiations. As the counterparties failed to adduce adequate evidence to prove a “real and sensible possibility” of the misuse of confidential information, the CA set aside the injunction against the Firm, but imposed a condition to prohibit the Firm from disclosing the terms of the settlement agreement reached in the previous proceedings except as required or permitted by law.
This follow-up article seeks to examine and evaluate the underlying circumstances where the lawyer or law firm concerned may be held to owe an equitable duty of confidence to an adversary in Singapore (the Equitable Duty), when acting for different clients in successive claims against the same adversary.
Good Faith and Conscience
The wellspring of an equitable duty of confidence is “good faith and conscience”, as the High Court observed in Wan Hoe Keet and another v LVM Law Chambers LLC2(2019) SGHC 103. (Wan Hoe Keet (HC)). Although the CA did not discuss this rationale in Wan Hoe Keet (CA), it is well-established in Singapore case law that “an obligation of confidence may arise in equity by applying principles of good faith and conscience”, independent of any contractual obligations of confidentiality.3See e.g. Invenpro (M) Sdn Bhd v JCS Automation Pte Ltd and another (2014) SLR 1045 at (131). Historically, equity’s intervention is founded on its “traditional targeting of conscience”:4G E Dal Pont, Law of Confidentiality (Australia: LexisNexis Butterworths, 2015), at (1.25).
“A person in whom confidential information is reposed is, in equity’s view, placed in a position of trust vis-à-vis that information, and cannot in good conscience abuse that trust by disclosing or using the information for an object inconsistent with its receipt.”5Ibid. [emphasis added]
English case law indicates that the duty of “good faith” that exists between the confider and the confidant requires an examination of the confidant’s conscience as to whether such a duty has been “fulfilled or breached”.6R v Department of Health (2001) 1 QB 424 at (31). Fundamentally, “equity’s intervention is one grounded in conscience of the (alleged) confidant”.7Supra, n 4 at (8.11).
Nevertheless, the notion of good faith and conscience does not “imply some subjective standard of behavior” as “the relevant equitable obligation is one viewed from an objective perspective”.8Id, at (1.26). Neither should good faith and conscience be equated with avoiding a breach of a moral duty, as equity’s intervention is not limited to “cases of conscious wrongdoing”.9Ibid. The need for objectivity and mutuality (to be discussed below) is a recurring theme in understanding the scope of the Equitable Duty, as we will see later in this article.
While the law of confidence is commonly associated with protecting trade secrets or other commercially valuable information, it is not so limited because the obligation of confidence “is capable of encompassing all information which any party has an interest in keeping confidential”.10Vestwin Trading Pte Ltd and another v Obegi Melissa and others (2006) 3 SLR(R) 573 at (35). Hence, even confidential information belonging to a counterparty in legal proceedings can be protected by the law of confidence, although such cases occur far less often than typical actions for breach of confidence.
Recalibrating Equity’s Intervention in Adversary Cases
As Wan Hoe Keet (CA) was the first time that the CA had to consider the scope of the Equitable Duty, it was necessary for the CA to recalibrate the classical three-pronged test for breach of confidence (the Modified Test). In essence, the CA held that the party seeking the injunction against the lawyer or law firm concerned was required to prove that:11Supra, n 1 at (15).
- the information concerned has the necessary quality of confidence about it;
- that information has been received by the lawyer or law firm concerned in circumstances importing an obligation of confidence; and
- there is a real and sensible possibility of the information being misused.
The Modified Test was far more nuanced than the approach adopted in Wan Hoe Keet (HC) in three aspects. Firstly, the CA expressly endorsed the “real and sensible possibility” test applied in Australian adversary cases, while (as pointed out in the February 2020 article) it was not clear that the High Court had done so. Secondly, the CA espoused a “granular approach towards the facts and circumstances of the case”,12Id, at (22) and (29). particularly for the second and third elements of the Modified Test. In contrast, the High Court eschewed requiring details of the alleged confidential information once it was shown that “the content of the settlement had the qualities of confidentiality”.13Supra, n 2 at (7). Thirdly, the CA held that the overall legal burden of proof in establishing the Equitable Duty rested on the party seeking the injunction, whereas the High Court did not expressly address this issue.
In addition to the highly fact-dependent nature of the Modified Test, the CA observed that the Court may only impose the Equitable Duty in “limited circumstances”.14Supra, n 1 at (14). All in all, it was clear that equity’s intervention would not be lightly invoked.
The Settlement Context in the Previous Proceedings
Given the “fact-intensive”15Id, at (22). focus of the Modified Test, the settlement context in the previous proceedings naturally came under close scrutiny. The facts were straightforward. In 2016, the Firm had represented the plaintiff (Party A) in a suit against the defendants (Party B) concerning their alleged roles in a Ponzi scheme (Previous Proceedings). On the first day of trial, the Firm participated in out-of-court negotiations with Party B’s solicitors. A successful settlement was reached, but the Firm was not expressly made a party to the settlement agreement containing a confidentiality clause (Settlement Agreement).
As the Firm had not contractually agreed to be bound by the confidentiality clause, it could not be disqualified on this ground from acting for Party C in a similar suit subsequently brought against the same defendants (Party B) (Subsequent Proceedings). The key issue was therefore whether the terms of the Settlement Agreement and the wider settlement context provided sufficient evidence for the CA to impose the Equitable Duty on the Firm. Diagram 1 illustrates this issue.
Diagram 1: Summary of Key Issue in Wan Hoe Keet (CA)
In short, the CA, after applying the Modified Test to the facts, found that as the second and third elements were not satisfied, the Equitable Duty did not arise. Hence, the CA lifted the injunction against the Firm subject to the confidentiality restriction on the terms of the Settlement Agreement (as mentioned in the Introduction). The next section of this article distills five key aspects of the CA’s application of the Modified Test.
Five Essential Application Points
When Wan Hoe Keet (HC) and Wan Hoe Keet (CA) are read in tandem, it is striking how the conscience-based rationale of the Equitable Duty could have put to rest many of the contentions raised in both Courts. This section considers five essential aspects of the CA’s application of the Modified Test in light of the fundamental rationale for the Equitable Duty. The first three points relate to the second element of the Modified Test, while the final two points pertain to the third element of the Modified Test.
A. Circumstances importing an obligation of confidence
1. Mutuality required for equity’s intervention
In its judgment, the CA quickly disposed of a seemingly straightforward point by agreeing with the High Court that the Firm was obliged in equity to keep the terms of the Settlement Agreement confidential,16Id, at (29). even though the Firm was not a party to the Settlement Agreement.
The CA noted that the terms of the Settlement Agreement had been imparted to both parties in the Previous Proceedings in circumstances importing an obligation of confidence.17Id, at (17). As the CA had explained to both counsel during oral submissions, the lawyers acting for both parties were therefore bound to keep the settlement terms confidential, given their duties of confidentiality to their respective clients.18Ibid. A lawyer acting for either party “cannot even request that the client grant permission to use that information as the client cannot do so without being in breach of its confidentiality obligations”.19Ibid.
That the CA had to explain the above reasoning to both counsel suggests that the mutuality principle may not be sufficiently well understood and a conscience-based perspective may be needed to fill the gap.
Firstly, because equity’s intervention is grounded in “conscience”, “that conscience cannot be pricked in the absence of some mutual understanding as to the existence and scope of any confidentiality obligations”.20Supra, n 4 at (8.11). In this regard, the confidant (or recipient) must have actual or constructive knowledge that the information was imparted confidentially.21Id, at (8.9)-(8.13). As noted by an Australian commentator, the applicable test is an objective one.22Id, at (8.9). Circumstances importing an obligation of confidence would arise if “any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence …”.23Ibid.
Secondly, assuming that the confidant to the Settlement Agreement was only Party A, this does not mean that the Equitable Duty cannot be imposed on the Firm, a non-contracting party. Equity can extend to non-contracting third parties who know or ought to know that the information in question is the subject of a confidentiality obligation.24Id, at (14.2) and (14.4). In this case, it was clear that the Firm knew about its client’s (Party A’s) confidentiality agreement in the Settlement Agreement, given its involvement in the settlement negotiations.25Supra, n 2 at (9). As such, equity could intervene to bind the “conscience” of the Firm’s lawyers such that the Firm owed a duty to the Respondents to keep confidential the terms of the Settlement Agreement.
2. “Mere assertions or vague generalisations will not pass legal muster”
A consistent theme in Wan Hoe Keet (CA) was the need for specificity in the particulars of the allegedly confidential information that was imparted to the Firm through the settlement negotiations in the Previous Proceedings. The Respondents had contended that the Firm had obtained information outside the terms of the Settlement Agreement relating to the settlement negotiations, but offered minimal evidence. It was suggested that such information might include “the manner in which the terms of the Settlement Agreement were arrived at or the negotiating positions adopted by the parties”.26Supra, n 1 at (29).
The CA, however, took issue with the Respondents’ “vague references to negotiations and a certain degree of ‘to-ing and ‘fro-ing”.27Ibid. Presumably, such references merely described how most, if not all, negotiations were conducted in practice and did not suggest anything exceptional that required equity’s intervention.
Given the CA’s “granular approach”28Supra, n 12. and that the Respondents bore the overall legal burden of proof, it was no surprise that the Respondents failed to establish that any information obtained by the Firm in the wider settlement context pertaining to the Previous Proceedings was protected by equity. It is submitted that the CA’s approach is consistent with a conscience-based approach, as equity cannot bind the confidant’s “conscience” if, in the first place, it is unclear what confidential information was reposed in the alleged confidant or third party recipient.
A more difficult point that the CA had to grapple with was the observation made by the New Zealand Court of Appeal (“NZCA”) in Carter Holt Harvey Forests Ltd v Sunnex Logging Ltd29(2001) 3 NZLR 343. (“Carter Holt”). The NZCA’s point was, in effect, that requiring the counterparty to provide further particulars of confidential information might prejudice its confidentiality.30Id, at (27). See also Worth Recycling Pty Ltd v Waste Recycling and Processing Pty Ltd (2009) NSWCA 354 at (27). Reiterating that “mere assertions or vague generalisations will not pass legal muster”, the CA held that the NZCA’s observation “cannot be utilised as an excuse to furnish no concrete particulars at all”.31Supra, n 1 at (29).
Indeed, it is noteworthy that the CA’s view is supported by comments articulated in a subsequent New Zealand High Court case32GBR Investment Ltd v Seng Bou (Paul) Keung) (2010) NZHC 411. on the NZCA’s observation:
“ While the Sunnex case did not involve a claim of a former client against a lawyer now acting against him, the above dictum cannot be distinguished on the basis that it applies only to disclosures made in a mediation. And an over-rigorous insistence on specificity may undermine the purpose of protecting confidential information. But if the Court is to make an informed decision as to relevance, it must have adequate information before it.
 I do not understand the Court of Appeal to be saying in the Sunnex decision that the inquiry into relevance should be dispensed with. The inquiry is necessary to prevent unmeritorious disqualifications to disqualify lawyers, a matter McKay J was alive to in Black v Taylor  3 NZLR 403: “I would expect any court to be on its guard against the misuse of its process in this way.”33Id, at (37)-(38). [emphasis added]
In this connection, one wonders whether the CA should have gone further to incorporate a fourth prong in the Modified Test, as adopted by Australian authorities, that would require the counterparty “to identify with specificity, and not merely in global terms, that which is said to be the information in question”.34See e.g. Smith Kline & French Laboratories (Australia) Limited v Secretary, Department of Community Services and Health (1990) 22 FCR 73 (“Smith Kline”) at (54). Such a requirement, if reasonably implemented, would be consonant with an important policy concern that if equity can intervene in the absence of specific and adequate particulars, it would too easily undermine the right of a litigant to appoint counsel of his choice.
3. No automatic exclusion for confidential settlement platforms outside of mediation
In applying the Modified Test, another factor that the CA briefly considered was that foreign cases generally took a strict view that an obligation of confidence had arisen in a mediation context.35Supra, n 1 at (18). In Wan Hoe Keet (HC), the Firm had asserted that the Equitable Duty should not arise given that the settlement negotiations between the parties in the Previous Proceedings had occurred “in an informal setting”, and not in formal mediation.36Supra, n 2 at (8).
The CA, however, did not place much weight on this factor as it recognised that settlement negotiations might occur on platforms similar to mediation, which the parties could treat as confidential. Instead, it preferred to examine each case on its own facts.37Supra, n 1 at (28).
The CA’s approach may be justified by the underlying policy concern that parties would be far less candid if information that they disclosed in a confidential setting (be it mediation or other alternative dispute resolution platforms) was not capable of protection by the law of confidence.38See e.g. Carter Holt, supra, n 28 at (24).
More fundamentally, it is contrary to the conscience-based rationale for the scope of the Equitable Duty to be differentiated based purely on the type of settlement platform in which an adversary’s confidential information is disclosed. Unless there is clear evidence that such information was disclosed in non-confidential circumstances where mutuality (as discussed above) is absent (e.g. if the counterparty had gratuitously supplied the confidential information),39Supra, n 4 at (8.15). the Court should be slow to hold that equity cannot intervene.
B. Real and sensible possibility of misuse
4. Potential conscious, unconscious or subconscious misuse sufficient (if proven)
Turning to the third element of the Modified Test, the CA made an important preliminary observation which brings to the fore the conscience-based rationale again:
“[o]nce it is shown that a lawyer possesses information impressed with an obligation of confidence from the previous set of proceedings, … the court might prevent the lawyer concerned from acting for the party in the subsequent proceedings on the basis that there might even be (depending, of course, on the precise facts and circumstances) an unconscious or subconscious misuse of the confidential information concerned…”40Supra, n 1 at (19). [emphasis in original]
The reference to an unconscious or subconscious misuse of confidential information may appear odd, because an ordinary understanding of the term “conscience” suggests a “mental or fault” element, which should naturally exclude involuntary acts.41Supra, n 4 at (13.26). Should not any potential misuse of the confidential information be limited to “conscious” intent? This was in fact the position taken by the Firm in Wan Hoe Keet (HC), namely, that the Firm should not be prohibited from acting for its client (Party C) in the Subsequent Proceedings as it would not consciously disclose confidential information relating to the Settlement Agreement to Party C, or even think about the settlement in the Previous Proceedings.42Supra, n 2 at (10).
The High Court, however, rejected this proposition as it noted that a future breach may occur “accidentally or unconsciously”.43Ibid. The CA endorsed the High Court’s view with a lengthy citation of a number of supporting English and Australian cases.
Australian academic commentary further reinforces the CA’s view, by suggesting that no mental element is required beyond the confidant’s constructive knowledge (which, if established, gives rise to mutuality as discussed above):
“But if the evidence dictates that a reasonable person would have appreciated that the information had been sourced, imparted or received in confidential circumstances, inquiry into mental element is otiose. There is, in the context, an existing confidentiality obligation recognised by equity, which cannot be displaced merely by evidence that the breach was unintentional or subconscious.”44Supra, n 4 at (13.26). [emphasis added]
The same principle would apply to a third party recipient of confidential information.45Id, at (13.27). This principle is also consistent with the view stated at the beginning of this article that “conscience” should not be equated with avoiding a moral breach.
Hence, insofar as the evidential burden shifts to the lawyer or law firm concerned,46Supra, n 1 at (24). it would be no defence to argue that only the “real and sensible possibility” of information being misused consciously should be taken into account. Of course, it would still be a question of fact as to whether the party seeking the injunction can prove potential unconscious or subconscious misuse. At the same time, it would seem to be in the interests of the lawyer or law firm bearing the evidential burden to adduce some evidence, if any, to show that there is no “real and sensible possibility” of information being misused unconsciously or subconsciously.
This brings us to the concluding point.
5. Does a tactical advantage need to be shown?
The final plank in the Respondents’ case on appeal was that the Firm “could gain a tactical advantage (whether consciously, unconsciously or subconsciously) by applying knowledge gleaned from the settlement negotiations” in the Previous Proceedings.47Id, at (30). As a result, this would constitute a real and sensible possibility of the alleged confidential information being misused.
In Wan Hoe Keet (HC), the High Court had accepted this argument, holding that because of the “prior similar action” and that the Subsequent Proceedings could also involve negotiation, the Respondents would be “disadvantaged” by the Firm’s knowledge through having participated in the settlement negotiations for the Previous Proceedings.48Supra, n 2 at (11). At the same time, the plaintiff in the Subsequent Proceedings (Party C) would “gain an advantage of inside knowledge he would otherwise not have”, as he would “know at which point the [Respondents] became malleable and at points they are at their strongest”.49Ibid.
In assessing how the “real and sensible possibility” test may be satisfied, the CA observed that a holistic, fact-sensitive approach should be adopted, viewed objectively from the perspective of “a fair-minded reasonably informed member of the public”.50Supra, n 1 at (21)-(22). Two particular factors were highlighted in this regard: (a) the degree of similarity between the previous and subsequent proceedings; and (b) whether the client in the subsequent proceedings “deliberately retained the lawyer due to his involvement” in the previous proceedings.51Id, at (22). On the facts, however, the CA did not need to delve into these or other factors because it found that there was no proof, in the first place, that the alleged information “was in fact subject to an obligation of confidence” (as earlier assessed by the CA in applying the second element of the Modified Test).52Supra, n 1 at (30). There appears to be a typographical error in the following sentence at (30): “In so far as …, the difficulty with this argument was that the Appellants failed to prove that such information was in fact subject to an obligation of confidence (see (29) above)”. The italicized words should refer to the “Respondents”.
Be that as it may, it is unclear whether the CA had impliedly accepted that the Respondents had to prove that any potential misuse of confidential information could result in a tactical advantage for the Firm (and conversely, a tactical disadvantage for the Respondents).
If this was indeed the case, this point may need to be re-examined because the Modified Test does not expressly refer to any requirement to prove “detriment”. Unlike the classical test for breach of confidence which requires “an unauthorised use of the information to the detriment of the party who originally communicated it”, the Modified Test only refers to “a real and sensible possibility of the information being misused”.
Even assuming that the word “misused” connotes a type of detriment, a conscience-based rationale suggests that proving detriment is not strictly necessary as “[t]he obligation of conscience is to respect the confidence, not merely to refrain from causing detriment to the plaintiff”. This position is taken in some Australian authorities.53See e.g. Smith Kline, supra, n 33 at (134). See also Law of Confidentiality, supra, n 4 at (13.21). If detriment must nevertheless be proved, it may be even more onerous for the counterparty to prove its case.
A Final Observation on the “Real and Sensible Possibility” Test
It remains for this author to point out a puzzling point on the CA’s formulation of the “real and sensible possibility” test. The CA sought to distinguish the “real and sensible possibility” test from one where the risk was “remote or merely fanciful”.54Supra, n 1 at (21). It suggested that the “real and sensible possibility” test should be more difficult for the counterparty to satisfy, as compared to the applicable test (“any risk of misuse of confidential information”) in a case where a former client sought an injunction in a fiduciary context (the Bolkiah test).55Id, at (20). In principle, it is correct that in the absence of a fiduciary relationship, the lawyer or law firm concerned should be held to a lower standard than that applied in a fiduciary context.
It is, however, well-established that the Bolkiah test also requires a “real” risk that is “not merely fanciful or theoretical”, although it “need not be substantial”.56Prince Jefri Bolkiah v KPMG (1999) 2 AC 222 at 237A. This aspect of the Bolkiah test has been approved and applied in English cases such as Georgian American Alloys Inc and others v White and Case LLP and another (2014) EWHC 94 (Comm) at (74) and (83) and Western Avenue Properties Limited and another v Sadhana Soni and another (2017) EWHC 2650 (QB) at (20)-(21). While there is some support for the view that the “real and sensible possibility” test is stricter than the “real risk” test,57See e.g. Russell McVeagh McKenzie Bartleet & Co v Tower Corporation (1998) NZCA 158. the distinction may be merely a matter of degree given that both tests do not take into account remote risks.
The CA’s decision in Wan Hoe Keet (CA) has provided much needed clarity on the scope of the Equitable Duty in Singapore. The Modified Test provides a sound framework to determine the existence of the Equitable Duty, especially because it takes into account the policy consideration of client choice in allocating the burden of proof. Nevertheless, it may well be enhanced by adding a fourth prong to require the counterparty to identify the alleged confidential information with specificity. Moreover, the question of whether detriment needs to be proved is still uncertain. Adopting a conscience-based approach can address many of the misconceptions on when and why equity should intervene in adversary cases, and it will be interesting to consider how “conscience” can guide the application of the “real and sensible possibility” test in future.
Endnotes [ + ]
|1.||↑||(2020) SGCA 29.|
|2.||↑||(2019) SGHC 103.|
|3.||↑||See e.g. Invenpro (M) Sdn Bhd v JCS Automation Pte Ltd and another (2014) SLR 1045 at (131).|
|4.||↑||G E Dal Pont, Law of Confidentiality (Australia: LexisNexis Butterworths, 2015), at (1.25).|
|6.||↑||R v Department of Health (2001) 1 QB 424 at (31).|
|7.||↑||Supra, n 4 at (8.11).|
|8.||↑||Id, at (1.26).|
|10.||↑||Vestwin Trading Pte Ltd and another v Obegi Melissa and others (2006) 3 SLR(R) 573 at (35).|
|11.||↑||Supra, n 1 at (15).|
|12.||↑||Id, at (22) and (29).|
|13.||↑||Supra, n 2 at (7).|
|14.||↑||Supra, n 1 at (14).|
|15.||↑||Id, at (22).|
|16.||↑||Id, at (29).|
|17.||↑||Id, at (17).|
|20.||↑||Supra, n 4 at (8.11).|
|21.||↑||Id, at (8.9)-(8.13).|
|22.||↑||Id, at (8.9).|
|24.||↑||Id, at (14.2) and (14.4).|
|25.||↑||Supra, n 2 at (9).|
|26.||↑||Supra, n 1 at (29).|
|28.||↑||Supra, n 12.|
|29.||↑||(2001) 3 NZLR 343.|
|30.||↑||Id, at (27). See also Worth Recycling Pty Ltd v Waste Recycling and Processing Pty Ltd (2009) NSWCA 354 at (27).|
|31.||↑||Supra, n 1 at (29).|
|32.||↑||GBR Investment Ltd v Seng Bou (Paul) Keung) (2010) NZHC 411.|
|33.||↑||Id, at (37)-(38).|
|34.||↑||See e.g. Smith Kline & French Laboratories (Australia) Limited v Secretary, Department of Community Services and Health (1990) 22 FCR 73 (“Smith Kline”) at (54).|
|35.||↑||Supra, n 1 at (18).|
|36.||↑||Supra, n 2 at (8).|
|37.||↑||Supra, n 1 at (28).|
|38.||↑||See e.g. Carter Holt, supra, n 28 at (24).|
|39.||↑||Supra, n 4 at (8.15).|
|40.||↑||Supra, n 1 at (19).|
|41.||↑||Supra, n 4 at (13.26).|
|42.||↑||Supra, n 2 at (10).|
|44.||↑||Supra, n 4 at (13.26).|
|45.||↑||Id, at (13.27).|
|46.||↑||Supra, n 1 at (24).|
|47.||↑||Id, at (30).|
|48.||↑||Supra, n 2 at (11).|
|50.||↑||Supra, n 1 at (21)-(22).|
|51.||↑||Id, at (22).|
|52.||↑||Supra, n 1 at (30). There appears to be a typographical error in the following sentence at (30): “In so far as …, the difficulty with this argument was that the Appellants failed to prove that such information was in fact subject to an obligation of confidence (see (29) above)”. The italicized words should refer to the “Respondents”.|
|53.||↑||See e.g. Smith Kline, supra, n 33 at (134). See also Law of Confidentiality, supra, n 4 at (13.21).|
|54.||↑||Supra, n 1 at (21).|
|55.||↑||Id, at (20).|
|56.||↑||Prince Jefri Bolkiah v KPMG (1999) 2 AC 222 at 237A. This aspect of the Bolkiah test has been approved and applied in English cases such as Georgian American Alloys Inc and others v White and Case LLP and another (2014) EWHC 94 (Comm) at (74) and (83) and Western Avenue Properties Limited and another v Sadhana Soni and another (2017) EWHC 2650 (QB) at (20)-(21).|
|57.||↑||See e.g. Russell McVeagh McKenzie Bartleet & Co v Tower Corporation (1998) NZCA 158.|