Singapore: Authenticity Of Internal Records

In RMD Kwikform Singapore Pte Ltd v Ehub Pte Ltd [2022] SGHC 129, the High Court had the opportunity to address, among others, the authenticity of internal records which the plaintiff relied on to quantify its claims.

Facts. The plaintiff claimed for unpaid sums allegedly owed by the defendant in relation to equipment that the plaintiff hired out to the defendant for use in five construction projects (at [1]).

The plaintiff relied on its own internal records to quantify its claims, which were documentary records extracted from "Axapta", a computer software that the plaintiff used to help keep track of equipment on hire and fees payable (at [10]). These documents or records consisted of hire return notes, delivery notes, hire tax invoices, tax invoices, credit notes, damage documents, and project movement and balances ("Axapta Records").

As part of its defence, the defendant challenged the authenticity of the Axapta Records (at [11]). The defendant had filed a notice of non-admission pursuant to O 27 r 4(2) of the Rules of Court (2014 Rev Ed) with regard to the authenticity of almost all of the Axapta Records (more than 6,500 documents) that had been disclosed in the plaintiff's List of Documents.

The defendant argued that the plaintiff failed to discharge its burden of proving the authenticity of the Axapta Records, and therefore, the Axapta Records are inadmissible, with the consequence that the plaintiff's claims (which rely heavily on the Axapta Records for quantification and proof) should not be allowed.

Test where authenticity is disputed. The High Court referred to the Court of Appeal's decision in CIMB Bank Bhd v World Fuel Services (Singapore) Pte Ltd and another appeal [2021] 1 SLR 1217 ("CIMB") at [54] for the steps that a party needs to take to prove the authenticity of disputed documents (at [18]). The High Court then set out the following framework (at [19]):

Step 1. As there is no strict requirement that a party must produce the original document to prove its authenticity, the High Court held that the more pertinent question was whether any of the exceptions in the EA applied to the case (at [20]).

The High Court cited s 67A of the EA, reproduced as follows (at [21]):

The High Court found it clear that if the authenticity of the Axapta Records was proven, they would be admissible by virtue of s 32(1)(b)(iv) of the EA, i.e., the "business records exception" to the rule against hearsay (at [22]), as the documents "... clearly form part of the records of "a trade, business, profession or other occupation that are recorded, owned or kept by any person, body or organisation carrying out the trade, business, profession or other occupation", within the meaning of s 32(1)(b)(iv) of the EA." This is because the effect of s 67A of the EA is that if a document is admissible under one of the exceptions to hearsay, the document may be proven by way of secondary evidence (at [23]):

The High Court also cited Columbia Asia Healthcare Sdn Bhd and another v Hong Hin Kit Edward and another [2016] 5 SLR 735 as an illustration of the effect of s 67A EA. In that case, the court held that s 66 EA must be read subject to s 67A EA, such that the six invoices produced by the plaintiffs were admissible even though the plaintiffs had produced only copies and not the originals.

"authenticated in a manner approved by the court". The High Court noted that there appears to be no discussion in local jurisprudence of the phrase "authenticated in a manner approved by the court" in s 67A EA. Nonetheless, the High Court was of the view that the phrase was not inconsistent with the CIMB test for proving authenticity nor should it be read as an additional hurdle to proving authenticity. (at [24])

Bearing in mind the legislative history behind s 67A EA, the court held that the phrase "... should not ... be read as imposing additional requirements, over and above the requirements in relation to proof of authenticity where no hearsay evidence is involved" (at [25]).

Application. Applying to the facts, as the Axapta Records would be admissible under s 32(1)(b)(iv) of the EA, the High Court found that the plaintiff was entitled to prove the Axapta Records by way of adducing copies of the said records, which the plaintiff did by way of the Affidavits of Evidence in Chief of two of its witnesses, Mr Wilfred Cuperus ("Mr Cuperus") and Mr Adrian De Los Santos ("Mr De Los Santos") (at [26]). The plaintiff has therefore satisfied the first step of the CIMB test.

Alternative basis. The High Court was also prepared to find, as an alternative basis, that the plaintiff was entitled to rely on s 67(1)(g) EA to prove the Axapta Records by way of secondary evidence (at [28] – [29]).

As the Axapta Records span 45 volumes in the Agreed Bundle of Documents and are well in excess of 6,000 documents, the original documents would consist of "numerous accounts or other documents which cannot conveniently be examined in court" (at [30]). Additionally:

Citing the Court of Appeal's observations in Jet Holding Ltd and others v Cooper Cameron (Singapore) Pte Ltd and another and other appeals [2006] 3 SLR(R) 769 ("Jet Holdings") that there should not be an "overly punctilious insistence" on compliance with the EA such that "a party has to rely upon thousands of documents to establish his or her case in complex litigation", the High Court was of the view that requiring the plaintiff to produce primary evidence of the Axapta Records would be putting the plaintiff through an "unnecessary procedural treadmill" (Jet Holdings at [49]) and hence was satisfied that, if necessary for the decision, the plaintiff would have been entitled to rely on s 67(1)(g) EA (at [31] – [32]).

Step 2. As for the second stage of the CIMB test, "... the party tasked with proving authenticity must adduce proof relating to the "genuineness and execution" of the document, such as proof of the handwriting, signature and execution of the document" (CIMB at [50]) (at [33]).

Citing CIMB at [57], the High Court stated that "the omission to adduce direct evidence where it is available is not necessarily fatal to proving a document's authenticity. The impact of not adducing direct evidence depends on the facts of each case. Relevant but non-exhaustive factors will include the strength of the indirect or circumstantial evidence adduced, the reasons given by the relevant party for not adducing direct evidence, and the probative value of the direct evidence if it had been adduced."

The High Court set out the plaintiff's evidence of how the Axapta Records were produced (at [35] – [36]) and found that the plaintiff had adduced sufficient circumstantial evidence to prove that the Axapta Records are what they purport to be (at [37]), especially because "the overall contents of the Axapta Records give the impression that they are genuine business records" (at [38]).

Further, the alleged irregularities identified by the defendant "... must be considered as isolated instances when viewed against the entirety of the Axapta Records" (at [40]), and there was an absence of any alternative set of documentation (as the defendant had not produced its own records) that contradicted the contents of the Axapta Records (at [41]).

The High Court therefore found that the Axapta Records are admissible and rejected the first prong of the defendant's defence (at [42]).

Significance. A fundamental aspect of any litigation is the question of proof. And when it comes to proof, documentary evidence often forms the bulk of the evidence. In such instances, it is important to bear in mind the requirements of the EA, and in particular, the questions of "Do I need to call the original maker of the document to give evidence" and "Do I need to adduce the original?"

This decision is an important reminder that it is not always necessary to adduce the originals as long as you can meet and rely on one of the exceptions under the EA. However, it is also an important reminder that if you want to challenge the authenticity of documents, it may not be as simple as alleging that the original is not produced.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.