AAY and others v AAZ [2010] SGHC 350

Background

Order 42 Rule 2 of the Singapore Rules of Court (“ROC”) provides that, where proceedings are heard in private (in camera), any judgment pronounced or delivered in such proceedings shall not be available for public inspection.

Section 22 of the International Arbitration Act (the “IAA”) provides that proceedings under the IAA shall, on the application of any party to the proceedings, be heard otherwise than in open court.

Section 23 of the IAA provides that, where proceedings are held otherwise than in open court, the Court may give directions as to whether any and, if so, what information relating to the proceedings may be published. The Court shall not give such a direction unless all parties to the proceedings agree that such information may be published or the Court is satisfied that the information would not reveal any matter, including the identity of any party to the proceedings, that any party to the proceedings reasonably wishes to remain confidential.

Facts

In this case, the High Court had ordered that the hearing of Suit Y of 2006 be held in camera. The Plaintiff made an application to preserve the confidentiality of matters referred to in arbitration, under Order 42 Rule 2 and sections 22/23 of the IAA.

The Defendants made an application for the order of the High Court to be amended to state that the hearing of Suit Y be held “otherwise than in open court”, rather than “in camera”.

The Defendants argued that the application proceeded under section 22 of the IAA and that section 23 applied such that a redacted version of the High Court judgment in Suit Y (“the Judgment”) could be published; therefore the Order of Court should be amended to reflect this.

The Plaintiffs submitted that the Order of Court should not be amended as the use of the wording “in camera” was not a clerical mistake or an accidental slip or omission that could be amended by the Court under Order 20 Rule 11 of the ROC. They further argued that the Court had no jurisdiction to amend its own court order, to consider the application to rehear the Order of Court or to alter it into an order of a fundamentally different nature.

The Plaintiffs argued that Order 42 Rule 2 of the ROC governs proceedings heard in camera whereas section 23 of the IAA governs proceedings heard otherwise than in open court. They argued that, as the proceedings were heard in camera, there was an absolute bar to publication of the Judgment.

The Plaintiffs further argued that publication of the Judgment would:

  • undermine the Court of Appeal’s direction that the Court of Appeal’s decision should remain confidential (as the Judgment had been appealed);
  • lead to unhelpful speculation as to which of the grounds the Court of Appeal agreed or disagreed with (since the Court of Appeal had not published its decision); and
  • defeat the general principle in Singapore’s arbitration law that arbitrations are confidential as well as private.

Decision

The High Court disagreed with the Plaintiffs, opining that there is a difference between a mistake as to the legal effect of a court order and a mistake in the use of words to express the manifest intention of a court; the wording “in camera” in the Order of Court was an accidental slip or omission.

All parties, as well as the Court, at the hearing of Summons B, and in supporting documentation, dealt with the application on the basis of sections 22 and 23 of the IAA; it was clear to the parties at the hearing of Summons B that the Court intended for Suit Y to be heard “otherwise than in open court” pursuant to sections 22 and 23 of the IAA.

The Court agreed with the Plaintiffs that a court should not be allowed to consider or vary a decision once an order has been perfected; however, in this case, the amendment would not vary the decision; rather, it would accurately reflect the decision that was actually made.

The Court, therefore, allowed the Defendant’s application to amend the Order of Court under Order 20 Rule 11 of the ROC.

In relation to each of the Plaintiff’s arguments in respect of publication of the Judgment, the Court held:

  • the Court of Appeal had not specifically directed that there should be no publication of a redacted version of the Judgment;
  • concerns about unhelpful speculation as to the Court of Appeal’s decision should not prevent publication of the Judgment; and
  • the confidentiality of the arbitration was sufficiently preserved as the redacted version of the Judgment concealed the identities of the parties and other matters which the Plaintiffs wished to remain confidential.

The Court ordered that a redacted version of the Judgment may be published.