In more detail

Background

In Amber Compounding Pharmacy Pte Ltd and another v. Lim Suk Ling Priscilla and others [2023] SGHC 241 ("High Court Decision"), the appellants entered into a consent judgment in an action for breach of confidence with respect to numerous documents containing confidential information that were improperly obtained during the first appellant's employment with the respondents.

In the High Court Decision below on the assessment of damages, the Judge decided that the respondents were entitled to make a claim for both wrongful gain interest (under the principles in Coco v. A N Clark (Engineers) Ltd [1969] RPC 41 ("Coco")) and wrongful loss interest (under the principles laid down in I-Admin (Singapore) Pte Ltd v. Hong Ying Ting and others [2020] 1 SLR 1130 ("I-Admin")) in the same action. However, the Judge also clarified that the parties had not argued before him as to whether the respondents were entitled to make such a claim for the same document.

For more details on the High Court Decision, you may refer to our previous client alert here.

No concurrent claims for wrongful gain and wrongful loss interest in respect of the same set of documents or information

The appellants submitted that a plaintiff must elect to claim damages either on the basis of wrongful gain interest under Coco or equitable damages on the basis of wrongful loss interest under I-Admin. The respondents submitted that a plaintiff should be able to plead and claim in respect of both interests, and could have both interests infringed by the use of the same document or the same set of documents.

The Court of Appeal found that the terms and effect of the consent judgment and its consequential impact on the application were overlooked in the High Court Decision. It found that the respondents' case was predicated solely on the unauthorised use of confidential information and thus, rested entirely on the wrongful gain interest. The only damages that respondents were entitled to claim were traditional damages for wrongful gain interest under the principles in Coco. The appeal was allowed on this basis.

Although this meant that the issue of whether a claim for both wrongful gain interest and wrongful loss interest could be made concurrently was rendered moot, the Court of Appeal took the opportunity to address the issue.

The Court of Appeal held that, in relation to pending claims in the same action, it is possible to claim for breach of confidence under the I-Admin approach in relation to one set of documents or information, and under the Coco approach for another set of documents or information. It further clarified that claims for the vindication of wrongful gain interest are mutually exclusive with claims relating to wrongful loss interest in respect of the same document or piece of information. This is because the modified approach in I-Admin was intended to fill a specific gap in the law where no remedy was available under the Coco test, and allowing a plaintiff to concurrently claim under both the Coco (i.e., wrongful gain) and I-Admin (i.e., wrongful loss) approaches may lead to double recovery and give rise to conflicting burdens of proof.

Nonetheless, a claimant can plead wrongful loss interest in the alternative if they fail to prove wrongful gain. However, the converse is not true as this would lead to an abuse of process of the I-Admin approach's gap-filling purpose.

Key takeaways

This decision provides guidance and clarifies the law of damages protecting a claimant's wrongful gain interest and wrongful loss interest. It also highlights the importance of carefully strategising and drafting pleadings for breach of confidence claims. Claimants should ensure to plead with specificity as to whether they are proceeding on the basis of wrongful loss or wrongful gain interest, including any pleadings made in the alternative.

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