Key takeaways
- Parties to an agency agreement or employment contract may be subject to a duty of non-solicitation even if those express words are not used in a contract. Such a duty may arguably be imported by the use of more general wording, such as was used in this case (e.g., to conduct business with "integrity and honesty").
- If employers impose certain restrictive covenants on employees via their employment contracts and not others (e.g., a non-compete clause but not a non-solicitation clause), they may find it difficult to argue that the excluded covenant is, in any event, an implied term. In this case, the SGHC held that the fact that parties included non-compete obligations but not non-solicitation obligations showed that they clearly applied their minds to which restrictive covenants should apply.
- While unilateral variation clauses (i.e., clauses permitting one party to amend a contract without first obtaining the consent of the other party) are not unlawful per se, a party seeking to unilaterally vary the terms of a contract post-formation should ensure that such a right is clearly provided for in the contract. In the present case, while Prudential had expressly reserved the unilateral right to amend certain rules, regulations and instructions, the SGHC found that it could not unilaterally amend the contract itself by imposing a non-solicitation clause.
- Parties should not assume that all non-disclosure agreements (NDAs) will be upheld by default. NDAs purporting to conceal breaches of contract or fiduciary obligations will be struck down as being void and/or unenforceable.
Background
The first defendant, Peter Tan Shou Yi ("Peter") was a successful Master Group Agency Manager ("Master GAM") of the plaintiff, Prudential. As Master GAM, he ran Peter Tan Organization (PTO), which was the most successful group of agents selling Prudential's insurance products. As of 2016, there were about 500 agents in PTO, contributing about 10% of Prudential's entire agency sales.
In May and June 2016, Peter met some of his Agency Leaders (ALs) and discussed a potential move to Aviva. The ALs who attended these meetings signed NDAs with Peter.
On 1 June 2016, Peter incorporated the second defendant, PTO Management and Consultancy Pte Ltd (PTOMC). Between 15 and 17 June 2016, 195 Prudential agents gave notices of termination of their agency agreements. Peter gave notice of termination of his own agency agreement on 8 July 2016. Prudential responded by summarily terminating Peter's agency agreement, alleging breach of the same.
On 23 July 2016, Aviva, Peter and PTOMC entered into a Distribution Advisory Agreement under which PTOMC would be the exclusive provider of certain services to Aviva for a period of 10 years. PTOMC, would, in turn, engage Peter to perform these services.
By February 2017, a total of 241 agents from PTO had terminated their agency agreements with Prudential.
In proceedings before the SGHC, Prudential claimed that Peter took preparatory steps to leave Prudential and bring with him other agents in PTO to join Aviva ("Preparatory Steps"), and subsequently solicited agents in PTO to leave Prudential en masse and join Aviva ("Acts of Solicitation"). Prudential claimed that these steps breached Peter's contractual obligations and fiduciary duties owed to Prudential. Prudential also claimed against PTOMC for dishonestly assisting Peter to breach his fiduciary duties.
Peter in turn made several counterclaims against Prudential for: (a) wrongful termination of his agency agreement with Prudential; (b) wrongfully inducing the ALs who attended the meetings with him to breach their NDAs with him; (c) breach of its equitable duty of confidence to him by disclosing the confidential information obtained from the ALs; and (d) conspiring with the ALs to cause loss to Peter by unlawful means.
The decision of the Singapore High Court
Breach of contract
The SGHC found that Peter had, in fact, carried out the Preparatory Steps and Acts of Solicitation and was thus in breach of his contractual duty to Prudential to "conduct his insurance business with integrity and honesty." The SGHC held that the scope of this duty required Peter to serve Prudential with good faith and undivided interest, and that meant that he would not do anything during the currency of the agency which may harm Prudential. This included a duty not to solicit Prudential's agents to join a competitor.
Prudential had separately argued that it had the contractual right to unilaterally impose a non-solicitation obligation on Peter by issuing an "agency instruction." The SGHC held that Peter was not bound by the non-solicitation clause in one of Prudential's agency instructions even though the clause was found to be reasonable and enforceable as the clause had not been validly incorporated as part of Peter's agreements with Prudential. The agreements required Peter to comply with Prudential's instructions, but the inclusion of the non-solicitation clause was not an instruction but an attempt to unilaterally amend the contract. According to the agreements, such variations had to be in writing and signed by both parties. There was no such mutual consent in this case, and Peter had in fact objected to the non-solicitation clause.
Finally, the SGHC declined to imply a term of mutual trust and confidence into Peter's agreements with Prudential as the legal requirements for implication of a term were not satisfied. In its analysis, the SGHC noted that Prudential had pleaded that the proposed implied term would encompass an obligation not to entice or attempt to entice Prudential's agents to leave Prudential (essentially, a non-solicitation obligation). As the agreements already contained restrictive covenants (in particular, non-compete obligations) without referring to non-solicitation obligations, the SGHC held that the parties must have contemplated, but chose not to explicitly deal with the issue of non-solicitation obligations.
Fiduciary duties
The SGHC held that Peter did not owe fiduciary duties to Prudential. The evidence pointed to the fact that Peter had operated PTO as an independent business and managed the agents in PTO for his own account, subject to the terms of his agreements with Prudential. Prudential did not entrust Peter with the management and control of the agents in PTO. Consequently, the relationship between Peter and Prudential was purely commercial, and there was no relationship of mutual trust and confidence such as to give rise to fiduciary obligations.
In particular, the SGHC reiterated the Court of Appeal's cautionary words in Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others [2018] 2 SLR 655 that the courts "will, and should, be slow in imposing fiduciary obligations on parties to a purely commercial relationship because it is normally inappropriate to expect a commercial party to subordinate its own interests to those of another commercial party."
Peter's counterclaims
Peter's counterclaims were wholly dismissed. In particular, Peter's counterclaim against Prudential for inducing breaches of the NDAs was dismissed as the SGHC found that the NDAs were unenforceable since they had been entered into for an unlawful purpose, namely for the purpose of deceiving Prudential and concealing Peter's breach of his contractual obligations to Prudential. The SGHC observed that in the circumstances, allowing a claim based on the NDAs would "make a mockery of the law." As the NDAs were illegal and unenforceable, Peter's counterclaim for breach of confidence was also dismissed.
Damages
Damages for breach of contract are ordinarily assessed in terms of the claimant's expectation loss, which refers to the value of the benefit that the claimant would have obtained if not for the breach of contract.
Prudential's claim for up to S$2.5 billion in lost business value and profits was premised on the counterfactual in which Peter would have remained with Prudential until his retirement and that PTO would remain intact and continue to generate profits for Prudential. Peter disagreed, arguing that he would have left Prudential in any case after the appropriate notice period and that he would have solicited all the ALs and agents who left to join him as soon as it was legally permissible to do so.
The SGHC held that Peter's counterfactual was the appropriate one to apply in this case. The SGHC noted that Prudential's assumption that Peter would have stayed with them until retirement was too speculative, especially since the parties would have had to renegotiate and agree on terms of renewal. Similarly, it was too speculative to predict whether PTO would persist in perpetuity even in Peter's absence.
Conclusion
The Singapore High Court's ruling and observations have significant implications for individuals subject to agency agreements or employment contracts.
Financial institutions in particular should be mindful of the Singapore High Court's observations on the imposition of fiduciary duties on agents of insurer principals. In the wake of this decision, employers and employees may wish to review their agency agreements and employment contracts to ensure that the intended rights and obligations are validly incorporated into the respective agreements.
For further information and to discuss what this development might mean for you, please get in touch with your usual Baker McKenzie contact.
