1 The present appeals arise from the decision of the High Court judge (the “Judge”) in Ocean Tankers (Pte) Ltd (under judicial management) v Rajah & Tann Singapore LLP and another matter [2021] SGHC 144 (the “Joinder  Judgment”), dismissing HC/SUM 4429/2020 (“SUM 4429”) and HC/SUM 4417/ 2020 (“SUM 4417”) which were the appellants’ applications to be joined as parties to certain litigation against the respondent law firm. We shall refer to SUM 4429 and SUM 4417 collectively as the “Joinder Applications”. The Judge heard the Joinder Applications together with HC/SUM 4317/2020 (“SUM 4317”) and HC/SUM 4318/ 2020 (“SUM 4318”) which were the respondent’s applications to strike out (the “Striking Out Applications”) the said litigation. The Judge allowed the Striking Out Applications. We employ as shorthand the term “Applications” to refer to both the Joinder Applications and the Striking Out Applications.

2 We heard the present appeals together with CA/CA 202/2020 (“CA 202”) and CA/CA 203/2020 (“CA 203”), which are related appeals against the Judge’s decision allowing the Striking Out Applications (see Ocean Tankers (Pte) Ltd (under judicial management) v Rajah & Tann Singapore LLP and another matter [2021] SGHC 47 (the “Striking Out Judgment”)). Our decision in respect of those appeals is Hin Leong Trading (Pte) Ltd (In Liquidation) v Rajah & Tann Singapore LLP and another appeal [2022] SGCA 28.

3 We begin with a brief overview of the parties, followed by an account of the events that eventually led to these appeals.

4 The appellants in the present appeals are: (a) Mr Lim Oon Kuin (“Mr OK Lim”); (b) Mr Evan Lim Chee Meng (“Mr CM Lim”); and (c) Ms Lim Huey Ching (“Ms HC Lim”). Mr CM Lim and Ms HC Lim are the children of Mr OK Lim, and we shall refer to the appellants collectively as the “Lims”. The Lims were the key management figures in two related companies. The first, Hin Leong Trading (Pte) Ltd (“HLT”), was an oil-trading company. The second, Ocean Tankers (Pte) Ltd (“OTPL”), was a ship management company. We shall, where appropriate, refer to HLT and OTPL together as “the Companies”.

5 The Companies were part of a group of companies that are or were owned by some or all of the Lims and were managed by the Lims. The group also included Xihe Holdings (Pte) Ltd (“Xihe Holdings”) and Xihe Capital (Pte) Ltd (“Xihe Capital”), which are investment holding companies (together with their subsidiaries, the “Xihe Group”), Universal Group Holdings (Pte) Ltd (“UGH”), another investment holding company, as well as numerous special purpose vehicles (“SPVs”) that each owned one or more vessels. We shall refer to them collectively as the “Group Companies”.

6 In or around the first quarter of 2020, HLT encountered financial difficulties and was consequently unable to meet its debt obligations. On 8 April 2020, HLT engaged the respondent law firm, Rajah & Tann Singapore LLP (“R&T”), to advise on issues arising from its insolvency. Given the interconnectedness of HLT’s and OTPL’s businesses, OTPL too engaged R&T to advise on available restructuring options. Up until 17 April 2020, the Lims were the sole directors and shareholders of the Companies. On that date, Mr OK Lim stepped down as a director amidst admissions on affidavit made in support of the Companies’ applications for interim moratoriums to be granted under s 211B of the Companies Act (Cap 50, 2006 Rev Ed) (the “Act”) for both Companies. These affidavits stated that HLT and OTPL were both in parlous financial positions, owing to, among other things, Mr OK Lim’s own conduct in having instructed that HLT’s financial statements not disclose approximately US$800m in future losses. Mr CM Lim and Ms HC Lim, however, remained directors of the Companies.

7 As stated above, on 17 April 2020, HLT and OTPL filed HC/OS 405/2020 (“OS 405”) and HC/OS 406/2020 (“OS 406”) respectively. Each company sought the grant of an interim moratorium, pending a proposed debt restructuring exercise. Both applications were filed by R&T on behalf of the Companies.

8 On 21 April 2020, HLT sought leave to withdraw OS 405. In place of that proceeding, HLT filed HC/OS 417/2020 (“OS 417”) to for it to be placed under judicial management and, pending the hearing of that prayer, for interim judicial managers (“IJMs”) to be appointed. This step was in part spurred on by significant creditor resistance to, and the absence of any relevant creditor support for, the proposed debt restructuring. On 27 April 2020, the Judge granted HLT leave to withdraw OS 405 and appointed IJMs over HLT, in the face of significant creditor resistance to a debtor-in-possession restructuring.

9 On 6 May 2020, OTPL took a similar step. It sought leave to withdraw OS 406. In its place, OTPL filed HC/OS 452/2020 (“OS 452”) for it to be placed under judicial management and, pending that event, for IJMs to be appointed. On 12 May 2020, the Judge granted OTPL leave to withdraw OS 406 and appointed IJMs over OTPL.

10 On 7 August 2020, the Judge allowed OS 417 and placed HLT under judicial management, appointing the IJMs as judicial managers (“JMs”). On the same day, the Judge allowed OS 452 and placed OTPL under judicial management, appointing the IJMs as JMs.

11 During the period that each of the Companies was under interim judicial management, R&T acted for them on the instructions of the IJMs. At the instance of the JMs, they continued to act for the Companies after 7 August 2020.

12 In the meantime, while the interim judicial management orders were still in place, Mr CM Lim and Ms HC Lim, who were still directors of the Companies, had caused legal proceedings to be commenced in the names of the Companies as follows:

(a) On 9 July 2020, OS 666 was taken out in the name of OTPL as applicant against R&T as respondent. OS 666 sought orders to restrain R&T, whether acting by their partners, officers, servants, or agents, from advising and acting for OTPL in OS 452 (OTPL’s application to be placed under judicial management), and for the IJMs and JMs of OTPL, should they be so appointed by the court subsequently. The scope of the injunction applied for included prohibitions against advising and acting for OTPL in relation to OTPL’s applications to set aside writs filed against vessels owned by the Xihe Group and SPVs that had been chartered by OTPL.

(b) On 21 July 2020, OS 704 was taken out in the name of HLT as applicant against R&T as respondent. OS 704 sought orders to restrain R&T, whether acting by their partners, officers, servants, or agents, from advising, and acting for HLT in OS 417 (HLT’s application to be placed under judicial management), and for the IJMs and JMs of HLT, should they be so appointed by the court subsequently.

OS 666 and OS 704 (collectively, “the Injunction Applications”) were filed because the IJMs had retained the services of R&T as solicitors for the Companies after their appointment. In Mr CM Lim’s and Ms HC Lim’s own words, the Injunction Applications were “necessary to restrain R&T from acting for the JMs of [HLT and OTPL] to protect the confidential information, and documents disclosed by the [Lims] and [HLT and OTPL] to R&T”.

13 On 5 October 2020, R&T filed the Striking Out Applications. They sought to strike out the Injunction Applications on the ground, among other bases, that Mr CM Lim and Ms HC Lim no longer had the authority to start actions in the names of the Companies as the latter were already under judicial management. Whilst they contested the Striking Out Applications, the response of the Lims was to file the Joinder Applications a week later, on 12 October 2020. The purpose of the Joinder Applications was to procure the joinder of the Lims as applicants to the Injunction Applications.

14 On 4 November 2020, the Judge heard the Striking Out Applications and the Joinder Applications together. He allowed the Striking Out Applications and dismissed the Joinder Applications. On 27 and 30 November 2020, HLT and OTPL filed CA 202 and CA 203 respectively, appealing against the Judge’s decision to allow the Striking Out Applications.

15 On 9 April 2021, this court allowed the Lims’ applications for leave to appeal against the dismissal of the Joinder Applications. We considered that there was a question of general principle to be decided for the first time, as well as a question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage. The question was framed as follows:

16 On 16 April 2021, and pursuant to the grant of leave, the Lims filed the present appeals, appealing against the Judge’s decision to dismiss the Joinder Applications.

17 The basis for the Injunction Applications, according to the Lims, was that from the early 1990s onwards, R&T had acted for and/or advised the Lims and the Group Companies, including the Companies. When the Companies faced financial difficulties, R&T were engaged by the Companies and the Lims to advise on how their respective interests could be best protected and on the available restructuring options. Pursuant to the engagement, R&T was provided with confidential information and documents relating to the Lims and the Companies. The Lims claim that such information was potentially relevant to the IJMs and JMs as regards (a) any investigations they might undertake into the conduct of the Lims in the management of the Companies; and (b) any adverse position they might take against the Lims and the management of the Companies. The Injunction Applications ought accordingly to be granted to protect the confidentiality of such information and documents disclosed to R&T. Alternatively, R&T owed an equitable duty of confidence arising from the confidential nature of the information and documents that were disclosed to them, there being a “real and sensible possibility” of such information and documents being misused in breach of the duty of confidence. Further, in any event, in the interests of the proper administration of justice, the court should exercise its supervisory jurisdiction to regulate the conduct of its officers and restrain R&T from acting against the former clients about whom they had confidential information.

18 R&T’s response was that the Injunction Applications were both factually and legally unsustainable (see the Striking Out Judgment at [13]–[15]):

(a) As to factual unsustainability, there was no such global engagement of R&T by all the companies owned by the Lims for the purpose of a “group restructuring”, nor did the Lims engage R&T to protect their personal interests as alleged. Simply, R&T had only been engaged by the Companies. In this regard, R&T asserted that it had only been engaged by HLT since 1998 and that while it had advised members of the Lim family personally in 2003, 2007 and 2015, it had not acted for the Lims in 2020.

(b) As to legal unsustainability, R&T contended, among other things, that (i) the confidential information in issue belonged to the respective Companies and hence there was no basis for R&T to be restrained from sharing it with the JMs and IJMS; (ii) Mr CM Lim was unable to particularise the confidential information in issue; (iii) even assuming that R&T was jointly retained by the Lims and the Companies, the Lims were not entitled to assert that the information was confidential vis-à-vis the Companies as information disclosed pursuant to a joint retainer was not confidential as between the parties thereto; and (iv) the Companies’ interests were not adverse to the interests of their respective IJMs and JMs in any relevant sense; rather, their interests were aligned.

R&T also asserted that it had put in place effective measures to prevent the improper disclosure of confidential information, such as not acting in matters adverse to the personal rights and liabilities of the Lims, instituting a Chinese wall arrangement, and not acting or advising on any contentious matter which would put them in a position of conflict of interest.

19 In the Joinder Judgment, the Judge, proceeding on the basis that there had been a joint retainer by the Companies and the Lims, first turned to the “principal issue” as to whether there was any information disclosed pursuant to the joint retainer that was deemed confidential. In this regard, the relevant case law is found in Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 (“Bolkiah”), which states that solicitors may be restrained from acting against a former client if such a restriction is necessary to avoid a significant risk of the disclosure or misuse of confidential information belonging to the former client.

20 In this case, two categories of information were identified by the Judge. First, information that was disclosed by the Companies. In respect of this category, the Judge noted that it could not be gainsaid that information disclosed by the Companies was not confidential vis-à-vis them; it was also questionable for the Lims to assert confidentiality over information disclosed by the Companies as the Lims had no standing to do so (see the Joinder Judgment at [35]–[36]). It was also not confidential vis-à-vis the JMs who, as court appointed officers, had custody and control of “all the property to which the company is or appears to be entitled” under s 227G(1) of the Act; or the IJMs, who were entitled to exercise all the powers and entitlements of the JMs, pursuant to the orders of court under which they were appointed, read with s 227B(10)(b) of the Act (Joinder Judgment at [37]–[39]). The Judge therefore held that, in respect of this category of information, the Lims had “no basis or standing to assert confidentiality” and the JMs were fully entitled to receive such information from R&T (Joinder Judgment at [40]).

21 The second category involved information belonging to the Lims or their other companies that they had disclosed to R&T that could not be shared with the Companies. The Judge examined the English High Court decision in Winters v Mishcon de Reya [2008] EWHC 2419 (Ch) (“Winters”) in detail, considering that the case stood for “the proposition that where information is voluntarily disclosed by one party to his solicitor in circumstances where there was no reasonable expectation of confidence, eg, in respect of a matter for which the solicitor was jointly retained, there generally is no confidentiality of such information as between the other party to the joint retainer unless the party disclosing has made it clear that the information was to be regarded as confidential between him and the solicitor” [emphasis in original in italics] (see the Joinder Judgment at [44]). Applying the Winters proposition, the Judge found that there was no information that the Lims had specifically instructed R&T not to disclose to the Companies; the information in this case also related to the restructuring of the Companies, and would have been disclosed in any case (Joinder Judgment at [45]). The Judge therefore held that the arguments on the equitable duty of confidence also failed (Joinder Judgment at [46]).

22 Finally, the Judge noted that there was no basis for the court to exercise its supervisory jurisdiction to restrain R&T. Since the information was not confidential, restraining R&T was not in the interests of the proper administration of justice (see the Joinder Judgment at [47]). There was, accordingly, no need to consider the efficacy of the measures taken by R&T to prevent the disclosure of the information (Joinder Judgment at [48]).

23 Appellate relief is now pursued on substantially the same grounds as taken below. We turn first to the law of joinder.

24 We begin with the law of joinder. The relevant provision is O 15 r 6(2) of the Rules of Court (2014 Rev Ed) (the “Rules”) and in particular r 6(2)(b). The material part of this rule reads as follows:

25 The principles governing an application under O 15 r 6(2)(b) of the Rules were stated by this court in ARW v Comptroller of Income Tax and another and another appeal [2019] 1 SLR 499 (“ARW”) at [40], [41] and [46]. Joinder of a party is permitted when that party satisfies either of the two limbs of r 6(2)(b). In considering the availability of either limb, a two-part inquiry is undertaken. The first involves determining whether the requirements of the particular limb have been met. If so, the court moves on to the second step of considering whether its discretionary power to allow joinder should be exercised in favour of the applicant.

26 When the “necessity” limb in O 15 r 6(2)(b)(i) of the Rules is being considered, the first question to be determined is whether “there [is anything] to prevent the action … as originally drawn, from being effectually and completely determined” without the joinder (ARW at [41]). In this regard, it is insufficient if it is merely desirable for a third party to be added, such as where a plaintiff might wish to bring a related claim against the third party (Abdul Gaffer bin Fathil v Chua Kwang Yong [1994] 3 SLR(R) 1056 at [16]; Ernest Ferdinand Perez De La Sala v Compañia De Navegación Palomar, SA and others and other appeals [2018] 1 SLR 894 (“De La Sala”) at [203]). If this requirement is satisfied, then at the discretionary stage, the court considers “all the factors which are relevant to the balance of justice in a particular case” (ARW at [41]).

27 When the “just and convenient” limb in O 15 r 6(2)(b)(ii) has been relied on, the court must be satisfied that there exists a question or issue involving the party sought to be joined which relates to an existing question or issue between the existing parties (De La Sala at [204]). Thereafter, the court considers whether, “in the opinion of the [c]ourt”, joinder for the purpose of deciding that question or issue would be just and convenient (De La Sala at [204]).

28 The key issue in dispute in OS 666 and OS 704 as originally constituted is whether the Companies are entitled to the relief sought of restraining R&T from acting for their IJMs and JMs. As far as the entitlement of the Companies to relief is concerned, we do not think that nonjoinder of the Lims will prevent the actions from being effectually and completely determined such that the non-discretionary element under O 15 r 6(2)(b)(i) of the Rules (ie, the “necessity” limb) applies. The Lims do not assert an interest on behalf of the Companies that is necessary to the determination of OS 666 and OS 704. Nor is the presence of the Lims necessary to the issue of whether the Companies are entitled to the reliefs sought. Rather, their interest as asserted before us is in preserving the confidence of information belonging to themselves and the other Group Companies, and in invoking the supervisory jurisdiction of the court to prevent R&T from acting for the Companies henceforth. Accordingly, they do not meet the requirements of the first limb.

29 It is, on the other hand, just and convenient to add the Lims under O 15 r 6(2)(b)(ii) of the Rules (ie, the “just and convenient” limb). In our view, the questions of confidential information and the supervisory jurisdiction of the court as raised by the Lims are undoubtedly linked to the injunctive relief claimed by the Companies on the basis of a breach of confidentiality. The claims substantially arise from the same facts, ie, disclosure of information to R&T by the Lims and the Companies, which the Lims claim would not have taken place had they known R&T could subsequently act for the JMs of the Companies in a manner adverse to their interests. The Lims have disclosed some information (see below at [46]–[47]) which appear to have the necessary quality of confidence though this is subject to further investigation at trial. The question of whether R&T ought to be restrained from acting on the basis of the supervisory jurisdiction of the court is a broader concern that, as we discuss below, arises on the present facts. As for the discretionary requirements of O 15 r 6(2)(b), we consider that there are unlikely to be issues of procedural unfairness or prejudice to R&T arising from a joinder, given some overlap in the causes of action, and as the matters have not yet been fully ventilated.

30 R&T argues that O 15 r 6(2)(b)(ii) of the Rules does not apply to the present situation where the Lims “are trying to bring themselves into OS 666 and OS 704 in a wholly different capacity, to prevent the actions being struck out” when they had been started without due authority. They argue citing, inter alia, Lim Seng Wah and another v Han Meng Siew and others [2016] SGHC 177 and Lee Bee Eng (formerly trading as AFCO East Development) v Cheng William [2021] 3 SLR 968 (“Lee Bee Eng”), that such an effective substitution is only made in circumstances where there is a plainly valid cause of action and the wrong plaintiff has sued, or there is doubt as to which of two plaintiffs is the proper plaintiff. The correct or potentially correct plaintiff therefore merely steps into the shoes of the wrong plaintiff.

31 However, O 15 r 6(2)(b)(ii) of the Rules cannot be so confined. It must be remembered that O 15 r 6 is designed to “save rather than to destroy … and to ensure that the right parties are before the court so as to minimise the delay, inconvenience and expense of multiple actions” (Tan Yow Kon v Tan Swat Ping and others [2006] 3 SLR(R) 881 at [36]). As long as the Lims have a cause of action which would survive a striking out application, that is, one that is not an abuse of process nor factually or legally unsustainable or frivolous or vexatious or scandalous, at this interlocutory stage their title to sue cannot be impugned (cf, Alliance Entertainment Singapore Pte Ltd v Sim Kay Teck and another [2007] 2 SLR(R) 869, where joinder was refused as neither the plaintiff nor the party sought to be joined as co-plaintiff possessed title to sue as a statutory exclusive licensee, and the action was struck out). In our view, for the reasons we give below, the Lims do have such a cause of action on the basis of a breach of confidence or the supervisory jurisdiction of the court. Their cause of action may not succeed after all the facts have been determined at trial, but that is not a consideration at this stage. Had the Lims sought to be joined even if the Striking Out Applications were not brought, we consider that they would have been added to OS 666 and OS 704 as applicants. While we have affirmed the Judge’s decision to allow the Striking Out Applications as regards the Companies, this is no bar to permitting the Joinder Applications and so, effectively, having the Lims substituted as the suing parties. As held by Lee J in Lee Bee Eng (in the context of O 15 r 6(b)(i) of the Rules), the power of joinder may cover situations where something remains to be done between an existing party and a new third party seeking to be added to the action, and such power is not extinguished where there has been a striking out of the party sought to be replaced and its claims (at [35]). In this connection it is relevant that were joinder not allowed, there would be nothing to stop the Lims from commencing fresh injunction proceedings on their own behalf.

32 In the following sections of this judgment, we explain why we consider that the Lims cannot at this stage be shut out from pursuing their causes of action. We deal first with confidentiality and then with the supervisory jurisdiction of the court.

33 The law of confidence has been the subject of much discussion recently, in light of this court’s decisions in LVM Law Chambers LLC v Wan Hoe Keet and another and another matter [2020] 1 SLR 1083 (“LVM Law Chambers”) and I-Admin (Singapore) Pte Ltd v Hong Ying Ting and others [2020] 1 SLR 1130 (“I-Admin”). It has been argued that LVM Law Chambers and I-Admin proffer approaches that appear at odds with each other (see Saw Cheng Lim, Chan Zheng Wen Samuel & Chai Wen Min, “Revisiting the Law of Confidence in Singapore and a Proposal for a New Tort of Misuse of Private Information” (2020) 32 SAcLJ 891). The decisions in LVM Law Chambers and I-Admin were released within days of one another, with overlapping composition in the coram, as Prof Ng-Loy Wee Loon (“Prof Ng-Loy”) points out in the Law of Intellectual Property of Singapore (Sweet & Maxwell, 3rd Ed, 2021) (“Law of Intellectual Property”) at para 41.3.12. Since a five-member coram has been empanelled in the present case, we take this opportunity to clarify the law in this regard.

34 An obligation of confidence binding a lawyer may arise either from a contractual relationship to which that lawyer is a party or from certain, limited, circumstances which impose an equitable duty of confidence on the lawyer (LVM Law Chambers at [13]–[14]). In this case, the Judge assumed that there was a joint retainer which would, obviously, have meant the existence of a contractual duty of confidence between R&T and the Companies and the Lims. The Judge found, however, that that contractual arrangement did not preclude R&T from continuing to represent the Companies alone. In any event, R&T has steadfastly denied that there was such a joint retainer involving the Lims. While the Lims assert that they and the Group Companies jointly instructed R&T to act for them in a restructuring exercise, R&T points to evidence showing that from 17 April 2020 onwards the Lims were represented by other law firms. In these circumstances, we had also to consider whether an equitable duty of confidence could have been imposed on R&T even if it was not acting directly for the Lims.

35 We begin with LVM Law Chambers. The facts of that case are quite different from those of the present appeals, but the principles established do offer some assistance. The question there was what legal principles apply when deciding whether a lawyer or law firm, which acted for a plaintiff who successfully resolved his dispute with the defendant through mediation or settlement negotiations, can represent another plaintiff against the same defendant (at [12]). The following points were decided (at [14]–[23]):

(a) First, the starting point for the test for breach of confidence was that laid down in Coco v AN Clark (Engineers) Ltd [1969] RPC 41 (“Coco v Clark”) (albeit modified slightly having regard to the precise issue in LVM Law Chambers), as follows:

(i) the information concerned must have the necessary quality of confidence about it;

(ii) that information must have been received by the lawyer (or law firm) concerned in circumstances importing an obligation of confidence; and

(iii) there is a real and sensible possibility of the information being misused.

(b) The first requirement was to be applied logically and in accordance with common sense. If the information was common or public knowledge, there cannot possibly arise a duty of confidence, equitable or otherwise.

(c) The second requirement was closely linked to the first. In the particular context of the settlement agreements, recourse must first be had to that particular agreement to determine the precise contours of the obligation of confidence. Much would also depend on the precise nature and circumstances, but there was case law suggesting that a lawyer may be restrained even if there was an unconscious or subconscious misuse of the confidential information concerned (LVM Law Chambers at [19]).

(d) As for the third requirement, the “real and sensible possibility” test was an objective one that would be satisfied in a wide range of situations. This ranged from cases where the risk of misuse was patently obvious, such as where there was clear evidence of an intention to use information contrary to the obligation of confidence; but the requirement might also be satisfied in circumstances falling short of this high threshold.

(e) Finally, the burden is on the party seeking the relevant relief to show that the information in question was confidential in nature and that the lawyer was subject to an obligation in equity to uphold the confidentiality (LVM Law Chambers at [18] and [23]). Mere or vague assertions would not suffice as an innocent third-party ought to have a solicitor of his own choice. The court, however, went further to observe (at [24]):

36 LVM Law Chambers was quickly followed by the decision of I-Admin. In I-Admin, the appellant’s source code was copied by two former employees (the first and second respondents), who later left to set up a rival company (the third respondent). In the High Court, the first two elements of the test in Coco v Clark (ie, that the information possessed the quality of confidence, and was imparted in circumstances importing an obligation of confidence) were found to have been established. This was not challenged on appeal. While the High Court found that the appellant had not discharged its burden of proving the third element (ie, that there was an unauthorised use of the information), this court disagreed, finding that the third element had been satisfied in the case. In particular, this court first observed that the equity-based action for breach of confidence protects two interests (at [46]–[53]):

(a) First, the wrongful gain interest, where the defendant made unauthorised use or disclosure of confidential information and thereby gained a benefit.

(b) Secondly, the wrongful loss interest, where the plaintiff is seeking protection for the confidentiality of the information per se, which loss is suffered so long as a defendant’s conscience has been impacted in the breach of the obligation of confidentiality.

37 Prior to I-Admin, the law did not adequately safeguard the wrongful loss interest or offer recourse where this was affected; in fact, as this court observed, the “requirement of unauthorised use and detriment has held back the development of the law by overemphasising the wrongful gain interest at the expense of the wrongful loss interest” (I-Admin at [58]). This court thus set out a modified approach as follows (at [61]):

We refer to this as the “I-Admin approach”.

38 The critical difference between the I-Admin approach and the previous framework thus lies in the shifting of the burden onto the defendant at the third stage of the inquiry. Under the I-Admin approach, it is on the defendant to prove that its conscience had not been affected because it is the defendant who is comparatively better positioned to account for suspected wrongdoing in such instances (I-Admin at [62]). This, in turn, serves to protect the plaintiff’s right to preserve the confidentiality of its information, echoing the substance of the wrongful loss interest (I-Admin at [58], drawing on the observations in Imerman v Tchenguiz and others [2011] 2 WLR 592 at [69] and Smith Kline & French Laboratories (Australia) Ltd and others v Secretary, Department of Community Services and Health (1990) 17 IPR 545 at 593).

39 Three critical points bear clarifying. Firstly, this court in I-Admin clearly did not set out to turn the law on breach of confidence on its head by replacing the traditional Coco v Clark approach in its entirety. As this court observed, “[t]he elements of breach of confidence set out in [Coco v Clark] explicitly protect the wrongful gain interest” [emphasis added]: I-Admin at [54]. The I-Admin approach was thus intended to specifically fill the lacuna in the law in so far as the legitimate objective of protecting the wrongful loss interest was concerned. Indeed, as Prof Ng-Loy observed (Law of Intellectual Property at para 41.3.9):

40 Secondly, in respect of the I-Admin approach itself, the burden on the defendant at the third limb of the test is a legal burden. In situations of a wrongful loss interest, once the first two limbs of the test are satisfied, the conscience of the defendant is presumed to have been impinged. Indeed, the severity of the threat to the wrongful loss interest was explained by this court (I-Admin at [55]) as follows:

An evidential burden would, in our view, be insufficient to protect the plaintiff’s interest in the confidential information.

41 Thirdly, we also take this opportunity to endorse the following observation made by Prof Ng-Loy (Law of Intellectual Property at paras 41.3.10–41.3.11):

42 While this point was not specifically argued by counsel in I-Admin, this is evident on the facts of I-Admin itself. In fact, the court observed that the appellant’s materials had been “specifically acquired to be reviewed and potentially used for the third respondent’s benefit” (at [64]). The first respondent had also “retained and abused confidential log-in credentials to surreptitiously access [one of the appellant’s platforms] on multiple occasions”, thereby downloading confidential information (at [65]).

43 As a preliminary point, we note that, in general, a claim for breach of confidence requires that the party seeking to injunct another be specific about the confidential information in question (Chiarapurk Jack and others v Haw Par Brothers International Ltd and another and another appeal [1993] 2 SLR(R) 620 at [24]; LVM Law Chambers at [18]). This is a threshold issue that R&T raises in this case. While that would, ordinarily, present a difficulty, the view taken here has to be understood in light of the fact that the current proceedings are at an interlocutory stage. As we highlighted above, in our view, all that is required at this juncture is for the Lims to put forward a claim of confidence which is not obviously factually or legally unsustainable.

44 The Lims’ primary allegation is that R&T has had a long history of representing them. R&T advised and acted for the Lims and the Group Companies from the 1990s.

45  Flowing from this relationship that R&T had with the Lims, they allege that R&T had “accumulated knowledge of the personalities in, and cultivated and built up relationships with the [Lims] and also built up knowledge of the companies in which the [Lims] had interests”. In this regard, R&T argues that these are not allegations of information, let alone confidential information, and are far too nebulous and ambiguous to constitute such. We agree with this submission in so far as it goes towards the first limb of the test, namely, the information concerned must have the necessary quality of confidence about it. Even on a prima facie basis, a party alleging a breach of confidence must at least be able to particularise the information that is alleged to be confidential. It does not suffice to point to a general class of information that cannot be specifically identified.

46 The second, and more concrete, point is that R&T was asked to advise on the restructuring of the Group Companies. The Lims point to certain documents and information, for instance:

(a) On 8 April 2020, Mr V Bala, a partner in R&T’s Shipping & International Trade department, sent an e-mail to OTPL’s in-house legal counsel at the time, Mr Nathanael Lin (“Mr Lin”), requesting “documents and information, including the list of banking facilities and any related security for each of the ‘Group Companies’, the latest management accounts for the ‘group’ and the ‘individual Group Companies’ and a write-up on the background information of each company and its financial difficulties, including why the ‘group’ (and in particular which entities) faced liquidity issues” [emphasis in original]. Mr Lin replied stating that he would “send the documents across as and when [he] receive[d] them.” It is alleged that the information and documents requested were sent to R&T, and included:

(i) A copy of the Shareholders’ Agreement between UGH, PetroChina International (Singapore) Pte Ltd, MAIF Investments Singapore Pte Ltd and Universal Terminal (S) Pte Ltd.

(ii) A Loan Agreement between Hua An Shipping Pte Ltd and DVB Bank SE Singapore Branch.

(iii) A letter dated 29 January 2020 from Standard Chartered Bank (Singapore) Limited to Xihe Holdings regarding Foreign Exchange Transactions.

(b) On 9 April 2020, Mr Lin sent R&T an excel spreadsheet with the list of vessels owned by various subsidiaries of Xihe Holdings and Xihe Capital, as well as other companies owned by the Lims.

(c) On 10 April 2020, Mr Davis Tan from R&T sent an e-mail to the other lawyers involved in the restructuring, copying Mr Lin, stating that he had received financial statements and management accounts, including the audited financial statements of OTPL, HLT, and the Xihe Group. He had also stated that “we are instructed to keep [the documents] confidential for now. The documents cannot be shared with anyone else including PwC”.

(d) On 14 April 2020, summaries of Universal Group Holdings (Pte) Ltd’s dividend declarations for the years 2016 and 2017 were also sent to R&T.

47 In our view, the items listed above are examples of information that, even on a prima facie basis, strongly possess the requisite quality of confidence. Although this information was provided in the context of the group restructuring, it cannot be said that such information would therefore necessarily belong to the Companies. Indeed, the information often related to individual companies in the Group Companies that were distinct from HLT and OTPL. It is also worth noting that, at the time all this information was provided, the interests of the Lims and those of the Companies were aligned and all parties were hoping for a solution that would leave the Companies under the control of the Lims.

48 This overlaps neatly with second limb of the test, as to whether the information had been received in circumstances importing an obligation of confidence. It is at this point that the relationship between the Lims and R&T, and any associated “accumulated knowledge” becomes relevant. Such a long-standing client-solicitor relationship must necessarily form the backdrop against which we understand the allegations of breach of confidence. In such situations, the trust reposed in each other that has been built up over the years – in this case decades – naturally leads to more open communication, and a willingness to share documents and information.

49 R&T does not dispute that such a relationship existed and was built up over the years. Instead, it emphasises the fact that from 17 April 2020 onwards, the Lims in their personal capacities were at all times represented by different law firms, indeed by a succession of firms. The Lims’ perspective was very different. They suggest that at the relevant time, when the Companies began facing financial difficulties, R&T was engaged to represent the Companies precisely because R&T was trusted to act in the best interests of the Lims. This very point was set out in the affidavit of Mr CM Lim dated 9 July 2020. We reproduce the relevant extracts in full:

50 What these extracts demonstrate is that, from the point of view of the Lims, the appointment of R&T as the solicitors for the Companies was made on the basis that R&T, in seeking to resolve the financial predicament that the Companies were in, would have regard to the interests of their longstanding clients, the Lims, as well. No doubt R&T did, as early as 13 April 2020 (as stated in para 48 of the cited affidavit), advise the Lims to obtain separate representation. But that advice may not have been read as a warning that R&T might eventually act against the Lims or that they might act for the Companies in a situation in which the Lims were no longer calling the shots. Any information, including that identified above at [46], was imparted in this specific set of circumstances – where the Lims and the Companies were considering a moratorium and a scheme; and where R&T would act in accordance with those wishes as communicated by the Lims as directors of the Companies. Having obtained the information on that basis, the Lims contend that it should not be permissible for R&T to take on the representation of the Companies when they later came under the control of third parties through the agency of the IJMs and, later, the JMs. It cannot be gainsaid that the interests of the creditors of a financially strapped company are usually irreconcilably opposed to the interests of the shareholders and officeholders of that company.

51 Our observations in this regard are, in fact, bolstered by the role Mr Lin played in all of these moves. Mr Lin was OTPL’s in-house legal counsel during the period leading up to the appointment of the JMs. It appears that he played an active role throughout the entire course of events. Mr CM Lim said as much in his affidavit:

52 It appears to us that Mr Lin had, at all times, played a material role in the transmission of information and documents from the Lims and/or the Companies to R&T. Yet, as we understand it, after leaving the employ of OTPL, Mr Lin is now a partner at R&T, in the Shipping and International Trade department – the very same department that had consistently acted for the Lims before this. This state of affairs points to the distinct possibility of a breach of confidence, for no Chinese wall arrangement can conceivably be useful where it is the very same lawyer who acts for both sides.

53 These considerations also tie in with the third and final limb. The information imparted related to the overall organisational structure of the entire network of the Group Companies. It also involved in-depth details of the workings of each of the Group Companies, all of which were connected to the Lims. Further, the information was transmitted at a time when the interests of the Lims were aligned with those of the Companies, with respect to the potential restructuring of the Group Companies. In the circumstances, that very same information could potentially be utilised against the Lims by the JMs who were appointed thereafter. It remains open for the Lims to adopt either the I-Admin approach or the LVM Law Chambers approach. In any case, we consider that prima facie the circumstances in which the information was imparted imposed an obligation of confidence in relation to the Lims even if there was no joint retainer. No doubt much of the information related to the Companies alone and belonged to them, a point that resonated with the Judge. However, even then there might have been details which the Lims would not have disclosed, had they anticipated the same being made available to third parties with interests adverse to theirs.

54 In so far as it may be found that there was a joint retainer, we note the  proposition in Winters as stated by the Judge. As restated by Rix J in The “Sagheera” [1997] 1 Lloyd’s Rep 160, “[p]arties who grant a joint retainer to solicitors … retain no confidence as against one another: if they subsequently fall out and sue one another, they cannot claim privilege” (at 165; similarly in Winters at [81]). Such privilege would relate to documents and communications generated in respect of the joint retainer (Phipson on Evidence (Hodge M Malek gen ed) (Sweet & Maxwell, 19th Ed, 2018) at para 24-01; The Law of Privilege (Bankim Thanki ed) (Oxford University Press, 3rd Ed, 2018) at para 6.02). However, the situation here has the special feature that although legally the Companies remain the same persons they were previously, they are now controlled for the benefit of persons whose interests are substantially adverse to those of their previous controllers, namely, the Lims. The Winters proposition may be found, upon further consideration, to be inapplicable in this situation. It has also been recognised that this rule does not cover communications that are made by one party to the solicitor in his exclusive capacity (Re Konigsberg (A Bankrupt) [1989] 1 WLR 1257 at 1265–1266; Re Doran Constructions Pty Ltd (in liq) (2002) 194 ALR 101 (“Re Doran”) at [64], citing John Huxley Buzzard, Richard May & M N Howard, Phipson on Evidence (Sweet & Maxwell, 13th Ed, 1982) at para 15-11). Further, whether there is a communication made to a solicitor in his joint capacity is determined by objective evidence about whether the communication was an occasion where the solicitor was “being asked to advance the purpose for which he or she was jointly consulted”; in other words, whether the communication was “fairly referable to the relationship” (Re Doran at [72]).

55 To the extent that the Lims provided information and documents relating to companies distinct from OTPL and HLT, we think it arguable that such information was provided apart from the purposes of the joint retainer (if any), involving a restructuring of the Companies. We of course leave open the point of whether R&T ought ultimately to be restrained on this basis, but consider that the proposition in Winters does not necessarily preclude claims of confidence on the part of the Lims.

56 As noted above, the second basis on which it is asserted that R&T should be restrained from acting for the JMs is the invocation of the supervisory jurisdiction of the court to ensure the proper administration of justice. The Lims argue that this separate basis for restraining a law firm or lawyers from acting was recognised in Harsha Rajkumar Mirpuri (Mrs) née Subita Shewakram Samtani v Shanti Shewakram Samtani Mrs Shanti Haresh Chugani [2018] 5 SLR 894 (“Harsha Mirpuri”) at [73].

57 The Lims argue that as R&T continued to act for the IJMs, JMs and liquidators of the Companies although it previously acted for the Lims and the Group Companies, it had breached rr 5, 6, 20 and 21 of the Legal Profession (Professional Conduct) Rules 2015 (2010 Rev Ed) (“PCR”) relating to confidentiality and conflicts of interest. Such breaches of the PCR have been held to be a possible “analytical tool” in deciding whether the court should exercise its supervisory jurisdiction to restrain a lawyer from acting, in order to prevent confidence in the administration of justice from being undermined (Harsha Mirpuri at [78] and [81]). For example, r 20(1) of the PCR provides that a legal practitioner owes duties of loyalty and confidentiality to each of his clients and must act prudently to avoid any compromise of the lawyer-client relationship by reason of a conflict or potential conflict between the interests of two or more of his clients. These duties are, equally, owed by a law practice. Furthermore, rr 20(2) to 20(4) of the PCR provide that where a legal practitioner or law practice intends to act for two or more different parties to a matter or transaction and a diversity of interests exists or may reasonably be expected to exist between them, the legal practitioner or law practice has certain obligations to communicate with the parties on how their interests might diverge, and advise them to obtain independent legal advice before accepting any instructions.

58 The Lims submit that R&T should have, among other things, disclosed to them the possibility that their interests might diverge from those of the Group Companies, when they approached R&T to act for them and the Group Companies in restructuring the latter. They argue that R&T ought to have advised them to obtain independent legal advice. If this was done, the Lims would not have disclosed or caused the Group Companies to disclose confidential information to R&T. But R&T had failed to do so. R&T had also failed to evaluate the conflicts of interest or potential conflicts of interest and inform them of the same where it came to preparing a statement for Mr OK Lim on the Lims’ assets which Mr CM Lim read to the creditors of HLT on 14 April 2020, and the affidavits filed in the Companies’ moratorium applications under s 211B of the Act, which had contained inculpatory statements. Nor had the Lims provided informed consent in writing for R&T to continue to act for the IJMs and JMs of the Companies. The Lims argue that the court should exercise its supervisory jurisdiction to restrain R&T from acting in light of these breaches of the PCR.

59 The Lims additionally point to the fact that R&T had interacted with them since the 1990s and had therefore gained “crucial knowledge about [them] personally”. They argue that R&T is thus in a position of “unfair superiority” as it may use such information in acting against them for the IJMs and JMs of HLT and OTPL (Black v Taylor [1993] 3 NZLR 403 (“Taylor”) at 406).

60 In response to this ground, R&T argues that the Lims’ case as originally pleaded was on the basis of confidentiality asserted over information disclosed for the purposes of the restructuring of the Group Companies, pursuant to an alleged joint retainer. Any information acquired in the course of an alleged long history between R&T and the Lims was not part of their case. Rather, their claim for relief was based on the same facts and circumstances as their claim in confidence. They had also not identified any risks to the administration of justice, apart from the alleged risk of R&T’s improper disclosure of confidential information. As their claim in confidence could not succeed by virtue of the proposition in Winters, their claim based on the supervisory jurisdiction of the court must fail.

61 R&T further submits that, in any event, the Lims’ allegations of a conflict of interest cannot succeed. R&T had suggested to the Lims that they obtain their own legal representation. As a result, from about 17 April 2020, the Lims had engaged JLex LLC, Kenneth Tan Partnership and Tan Rajah & Cheah to represent them. R&T also did not unacceptably “change sides” by acting for the JMs of the Companies. It continued to act for the Companies, the only change being that control was no longer vested in the Lims as directors by virtue of the judicial management regime. The JMs were, at law, fully entitled to HLT’s and OTPL’s information. The Lims had been informed in advance that R&T had been asked by the creditors and the potential IJMs to act for the Companies’ IJMs, and the Lims did not object. They were also advised by R&T on the effect of interim judicial management.

62 The exercise of the court’s supervisory jurisdiction to restrain a law firm or lawyer from acting, such power being exercised in aid of the administration of justice, is a separate basis from its jurisdiction arising from the law on breach of confidence, on which a law firm or lawyer may be restrained (Harsha Mirpuri at [73] and [75]). The power of the court to restrain a lawyer from acting arising from the inherent jurisdiction of the court over its officers has been recognised in England (see, eg, Davies v Clough (1837) 8 Sim 262), Australia (see, eg, Spincode Pty Ltd v Look Software Pty Ltd and others (2001) 4 VR 501), New Zealand (see, eg, Taylor) and Canada (see, eg, Everingham v Ontario (1992) 88 DLR (4th) 755 (“Everingham”)).

63 Harsha Mirpuri and Then Khek Khoon and another v Arjun Permanand Samtani and another [2012] 2 SLR 451 (“Then Khek Khoon”) are the local authorities on the point. In Then Khek Khoon, Loh J (as he then was) expressed the view that there could be “special or exceptional circumstances where the nature of the complaint is such that on an objective view, a reasonable, fair minded observer would think that a fair trial would not be possible without the court’s intervention and restraint of the advocate or solicitor from continuing to act” (at [22]). There, an injunction had been sought to restrain a law firm from acting on the basis of alleged breaches of the PCR concerning, inter alia, conflicts of interest between the advocate and solicitor and client. However, Loh J opined that the proper forum for investigating and determining the breaches ought to be the Law Society, in the absence of any apparent concurrent breach of legal obligations owed by the counsel to the court or the client at common law. The case was therefore not one which demonstrated a clear need for the invocation of the court’s inherent jurisdiction under O 92 r 4 of the Rules of Court (2006 Rev Ed).

64 In Harsha Mirpuri, an injunction was sought on the basis that a law firm was allegedly in breach of its obligation under r 21 of the PCR not to act against a former client. Thean J noted that this jurisdiction had been contemplated in Then Khek Khoon, the test being “whether there is an actual or reasonably perceived risk that the proper administration of justice would be prejudiced unless the lawyer in question is removed” (at [78] and [81]). In her view, while the standards set out in the PCR could be analytically relevant in deciding whether the court should exercise this power, it was imperative that the court did not express any final opinion on whether any particular rule had been breached, as the proper forum for such a determination is the Law Society (at [83]). At the same time, she cautioned against an expansive view of the supervisory jurisdiction of the court as: (a) such applications to restrain a lawyer from acting could be used for “purely tactical reasons” and inevitably cause a delay in proceedings; and (b) there is an interest in respecting the freedom of lawyers to obtain instructions from any member of the public and vice versa (at [82]). There, it was fatal to the plaintiff’s case on supervisory jurisdiction that its claim in confidence failed, as the factual allegation supporting both arguments were similar and there was no suggestion that the proper administration of justice would otherwise be prejudiced (at [84]).

65 The test to determine whether the supervisory jurisdiction of the court ought to be invoked is accordingly an objective one. It is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be restrained from acting, in the interests of the protection of the integrity of the judicial process including the appearance of justice. This test is broadly similar across the other jurisdictions previously mentioned. Yet, the cases have also emphasised the exceptional nature of this jurisdiction. Due weight must be given to the public interest that a litigant should not be deprived of the solicitor of his choice without due cause (Grimwade v Meagher and others [1995] 1 VR 446 at 452; Re Recover Ltd (in liquidation) [2003] 2 BCLC 186 at [15]; Geelong School Supplies Pty Ltd and another v Dean and others (2006) 237 ALR 612 at [35]). We note that this jurisdiction is also distinct from that based on a breach of a lawyer’s fiduciary duty of loyalty, which may also lead to a court to restrain a lawyer from acting. That duty is not in play here, as it is generally accepted that such duty comes to an end with the termination of the retainer (Bolkiah at 235).

66 Several cases where the lawyers in question may be perceived to have “changed sides”, in seeking to act against a former client, are relevant. In Cleveland Investments Global Ltd v Evans [2010] NSWSC 567 (“Cleveland Investments”), where a solicitor had previously acted for a company and received instructions from its sole director who was later removed from that company, it was held that an injunction should be granted to prevent the solicitor from acting for the former director in respect of that same claim. This was although the plaintiff company was unable to identify particular information which had previously passed between the former director and the solicitor to which the obligation of confidence attached. As observed by Ward J in the Supreme Court of New South Wales, citing D & J Constructions Pty Ltd v Head and others (trading as Clayton Utz) (1987) 9 NSWLR 118 (“D & J”), “the readiness with which [the lawyer] has changed sides on the very same claim in the very same proceedings is something very subversive of the appearance to a reasonable and fair-minded observer that justice is being done” (at [8]; D & J at 123).

67 Similarly, in Re IPM Group Pty Ltd [2015] NSWSC 240, where a law firm had represented at various times, among several related parties, a company as well as its two directors and shareholders, Black J in the Supreme Court of New South Wales accepted that it could potentially be inconsistent with the administration of justice for the law firm to continue to act for one of the camps against the other. A solicitor from the law firm who had previously assisted the latter in a family law dispute was also now acting for the former camp. Black J stated that although he was not satisfied as to a real and sensible possibility of misuse of information provided by the latter, there was force in the submission that a fair-minded, reasonably informed member of the public might well conclude that the proper administration of justice required that the lawyers be restrained and could well see their continuing to act as “inherently unfair” (at [56]). However, the application was ultimately refused as it had been sought late in the day after substantive evidence had been filed in the proceedings, and the lawyers had given undertakings directed to preserving the claimed confidentiality of certain documents.

68 Furthermore, in the context of liquidation, an injunction was granted in Williamson and another v Nilant [2002] WASC 225 to restrain solicitors from further acting for the liquidator of a company, where its three shareholders were divided into two camps, and one of those persons was also a client of the same solicitors. The liquidation had been brought by the latter person on the basis of, inter alia, oppression. McKechnie J in the Supreme Court of Western Australia was of the view that the “conflict which may arise between the interests of [the latter person], which the solicitor must legitimately advance, and the necessity to give impartial advice and representation to the liquidator of [the company] is such that the interests of justice require the solicitor be restrained from acting for the liquidator” (at [26]). Although the case concerned a conflict of interests between existing clients, it illustrates the possibility for interests to diverge in a situation such as the present, where the Companies had been placed under judicial management with a view to achieving the survival of the whole or part of the Companies, or a scheme of arrangement under which they could continue to trade. That being the case, the interests of the JMs could well be adverse to those of the Lims. Even if certain information that the Lims had caused the Group Companies to provide to R&T may not in the final analysis be found to be confidential, a fair-minded and reasonably informed observer could potentially apprehend that R&T would be in a position to use such information for the benefit of the Companies against the Lims.

69 We acknowledge, in fairness to the Judge, that the Lims’ case for joinder at the proceedings below focused on purported breaches of confidence. In this regard, they had confirmed in the course of the hearing of the Striking Out Applications that their position was that R&T was jointly retained by the Companies and the Lims, and that this was for the purpose of the restructuring of the Companies arising from their insolvency. They also stated that the information disclosed to R&T in respect of which they asserted confidence was for the purpose of the joint retainer. It was on that footing that Winters was found to apply, so as to preclude any action for an injunction on the basis of a breach of confidence.

70 Yet, while the Lims may have made certain concessions before the Judge that would appear to have confined their cause of action to one based in confidence, there was nevertheless, arguably, a broader case engaging the supervisory jurisdiction of the court, which was supported by affidavits filed by the Lims. As set out in the affidavit of Mr CM Lim and reproduced above, the Lims had sought advice from R&T on “the steps that [the Lims] should take to protect [their] and the Group Companies’ interests.” It was envisioned that such advice would include, amongst other things, the restructuring options and type of applications that were available “to the [Lims] and the Group Companies” and the risks and implications thereof. Mr CM Lim further deposed that after the Lims agreed to appoint R&T in connection with the group restructuring, R&T had requested, and the Lims had provided to it, information and documents relating to the Group Companies, in the belief that “they would use that information and documents to advise and protect the [Lims] and the Group Companies”. It was only on 12 May 2020, after the OTPL IJMs were appointed, that R&T informed the Lims that they would not be able to continue acting for other Group Companies whereupon, according to Mr CM Lim and Ms HC Lim:

71 R&T’s position as stated earlier is that it was not engaged in relation to any such group restructuring and that it had never advised or acted for any of the Lims in their personal capacities in relation to the financial distress of HLT, OTPL or any of the Group Companies. The truth of that assertion will have to be established at a trial during which the amount of confidential information disclosed about individual Group Companies other than HLT and OTPL can be assessed. The point to note for the time being is that if any receipt by R&T of such information is proven, that may be sufficient of itself to give rise to the apprehension by a fair-minded and reasonably informed observer that R&T would be in a position to make use of it for the benefit of the JMs of the Companies. The spectacle that they may have “change[d] sides” in the course of the restructuring of the Companies and potentially advise the Companies on claims against its directors may indeed be “subversive of the appearance … that justice is being done” (Cleveland Investments at [8]; D & J at 123).

72 Likewise, the long history between R&T and the Lims may also be relevant in assessing whether an injunction should be granted. The appellants rely on Taylor where, in a claim by the plaintiff against the estate of his late uncle, the Court of Appeal of New Zealand held that the solicitor would be restrained from acting as counsel for the estate in the proceeding. This was as he had acted for decades as solicitor, counsel or both, for members of the Taylor family, including the plaintiff and his late uncle. The court found relevant the lower court’s findings that, inter alia, a considerable quantity of information covering most aspects of the family affairs would have been given by the Taylor family as a whole to the solicitor over the years, and that he would have gotten to know their personalities over time. As such, the court was of the view that “reasonable members of the public knowing of [the solicitor’s] association with [the plaintiff] would consider that justice would not be seen to be done if, when dissension developed within the Taylor family, [the solicitor] acting as counsel took sides and acted against [the plaintiff]” (at 412).

73 The Lims likewise claim that R&T had advised and acted for them and the Group Companies since the 1990s, thereby accumulating knowledge about them as well as the companies in which they had interests. Although such information may not possess the necessary quality of confidence, it may be relevant in an assessment of an exercise of the court’s supervisory jurisdiction. Such knowledge of the Lims’ activities or financial circumstances acquired by virtue of their close relationship with R&T may be considered in deciding whether the supervisory jurisdiction of the court ought to be invoked to “ensure that in the justice system there is an unqualified perception of fairness in the eyes of the public” (Jasper Johannes Raats and another v Gascoigne Wicks [2006] NZHC 598 at [27] and [29]; Taylor at 406).

74 Accordingly, we consider that the question of the court’s supervisory jurisdiction is one that is relevant to OS 666 and OS 704. For the avoidance of doubt, we are not holding that the court’s supervisory jurisdiction should be invoked in this case but only that the circumstances disclosed thus far indicate that the Lims’ ground to invoke this jurisdiction is not wholly unsustainable or devoid of basis.

75 For the reasons set out above, we allow the appeals. Having regard to the parties’ respective costs submissions, in respect of these appeals, we award the Lims the total sum of $40,000, inclusive of disbursements, payable by R&T to the Lims. The usual consequential orders shall apply.

76 As for the costs below, the Judge made an order in favour of the respondent in all the Applications. We set aside that order in so far as it relates to the Joinder Applications. We direct the parties to file their submission on what costs’ order should be made in respect of the hearing below (including as to quantum). The submissions shall be filed within ten days of the date of this judgment and shall be limited to six pages.