A. Introduction

1. The law of confidence and the law of trust are often complementary: most settlors (especially wealthy patriarchs or matriarchs) who set up living or will trusts to provide for their future generations may want to keep the terms of the trust confidential so that the extent of their wealth, the identities of the people that they wish to benefit, and the manner (and possible differences in treatment as to) how they intend to benefit each beneficiary are kept secret.
2. The reason for secrecy can be internal (for example, preventing discretionary beneficiaries from finding out their entitlement until their interests have fully vested and indirectly preventing profligate beneficiaries from spending beyond their current means); or external (for example, safeguarding the family’s wealth from public scrutiny, and thus preventing criminals of kidnapping and scam syndicates from finding out and targeting beneficiaries of the trusts).
3. Notwithstanding the efforts of the settlor, the confidence of trusts may inadvertently be compromised if litigation regarding the trust arises. This may be par for the course for cases concerning breach of trusts since the discontented beneficiary is ultimately seeking to expose alleged misdeeds of the trustee in Court and in doing so, the discontented beneficiary and the respondent trustee alike must accept the risks of airing dirty laundry in public (which details will invariably have to include references to the terms of the trust and how the trust was administered). But what about less contentious applications in Court such as administration actions for private trusts and charity proceedings for charitable trusts?
4. Indeed, for such applications, a trustee may only be seeking the Court’s guidance on a specific point of law to aid its administration of the trust moving forward. If that is the case, would it not be an overkill for the trust to be exposed to uninitiated individuals or worse still, to the media and then to the public at large through the litigation?
5. In this article, we will consider how trustees can continue to protect the secrecy of the trusts in administration actions by anonymity orders.

B. Types of anonymity orders

6. Whenever a case is litigated in Court, the principle of open justice, namely that justice must not only be done but must also be seen to be done, would ordinarily be engaged.
7. The principle of open justice requires that as far as possible:

1. proceedings in Court including the delivery of the judgment in the proceedings, should be conducted in public - as statutorily mandated by section 8(1) of the Supreme Court of Judicature Act 1969 for proceedings in the Supreme Court of Singapore and section 7(1) of the State Courts Act 1970 for proceedings in the State Courts of Singapore;
2. proceedings in Court should be able to be freely reported whether in the media or otherwise - following the rule in Attorney General v Leveller Magazine Ltd and others [1979] 1 AC 440; and
3. the public should be able to search for and inspect any court documents filed in the Registry without undue restrictions such as that prescribed under Order 26 rule 3(4) of the Rules of Court 2021.

8. However, it is trite law that there may be exceptional cases where the principle of open justice may be departed from, such as where the application of the principle may pervert rather than promote the administration of justice. Clear examples of exceptional cases are “voir dire” or “trial within a trial” hearings (where the concern is to avoid influencing the jury or trier of fact before the actual substantive hearing) and taxation proceedings (where the concern is to protect the secrecy of the individual’s taxation affairs).
9. To maintain confidence of such cases, the Courts have developed the following three types of anonymity orders:

1. an “in camera” order to counteract the first aspect of open justice mentioned at paragraph 7(a) above;
2. a gag order to counteract the second aspect of open justice mentioned at paragraph 7(b) above; and
3. a sealing order to counteract the third aspect of open justice mentioned at paragraph 7(c) above.

10. Each of the three orders are conceptually distinct, and it has been said that the Court will not do more than the extent it reasonably believes to be necessary to serve the ends of justice (per Lord Diplock in Attorney General v Leveller Magazine Ltd and others [1979] 1 AC 440).
11. We will first examine each of the three orders before considering how they can potentially apply to an administration action brought by a trustee.

C. In camera orders

12. The term “in camera” means “in private” in latin. When such an order is made, it literally means that the hearing will be in private and closed off to the public. Following the enactment of the Courts (Civil and Criminal Justice) Reform Act 2021, the term “in camera” has been replaced by the more appropriate English term “in private”.
13. At this point, it should be noted that until an “in camera” order is made, there are generally only two types of hearings namely an open court hearing and an “in chambers” hearing. Order 15 rule 1(1) of the Rules of Court 2021 prescribes that every civil proceeding commenced by a process known as an “originating application” must be heard “in chambers” whereas Order 15 rule (2) of the Rules of Court 2021 prescribes that all trials in civil proceedings commenced by another process known as an “originating claim” must be heard in open court.
14. In the case of Lee Hsien Loong v. Review Publishing Co Ltd [2007] 2 SLR(R) 453, the High Court explained that for in chambers hearings, members of the public do not have an entitlement to attend but interested parties can, at the exercise of the Court’s discretion, be permitted to do so, with such discretion to be exercised judiciously having regard to the reason and interest of the person seeking permission to attend, the interests of the litigants, and the interests of the Court in preserving and upholding its authority and dignity. In that case, the High Court did not allow a foreign lawyer (who was acting for the appellant) to attend the in chambers hearing because the foreign lawyer had a proclivity of making disrespectful and contemptuous statements against the judiciary and the appellant had admitted that its right to be heard would not be compromised by the foreign lawyer’s absence.
15. The principles expounded by the High Court in Review Publishing are now enshrined in Order 15 rules 1(5) and 1(6) of the Rules of Court 2021, and paragraph 90 of the Supreme Court Practice Directions 2021.
16. Since both an “in chambers” hearing and a hearing ordered to be “in camera” are restricted in nature, there is a degree of overlap between the two, but the main difference is the extent of the restriction: a hearing ordered to be “in camera” unlike an “in chambers” hearing is closed off to the public, including the media, entirely (see the Singapore Supreme Court’s User Guide on Court Reporting).
17. In addition, given the level of confidentiality involved in hearings ordered to be “in camera”, the Courts are more inclined to redact the names of the parties involved and delete other personal details that may identify the parties from its judgment or grounds of decision published therein to preserve the anonymity of the matter. We will elaborate more on such redaction in the gag order section below.
18. Ultimately, “in camera” orders prohibit the public and the press from exercising their ordinary right to attend the substantive hearing, so parties to the litigation can be better assured in leading the necessary evidence and making the necessary legal submissions during the hearing, without the worry that such evidence or submission may be inadvertently leaked out to unintended third parties.

D. Gag orders

19. The term “gag order” means an order prohibiting the publication of any information that might lead to the identification of the parties to the proceedings.
20. Gag orders are commonly used in criminal cases, particularly those involving sexual offences, to protect the identity of the complainants and other witnesses therein (as mandated by section 153(4) of the Women’s Charter 1961 and as recently elaborated on in the case of Chua Yi Jin Colin v Public Prosecutor [2022] 4 SLR 1133), or in cases involving minor children to protect the minor’s identity (as mandated under section 112 of the Children and Young Persons Act 1993), or in divorce cases (as mandated by section 2(b) of the Judicial Proceedings (Regulation of Reports) Act 1960).
21. But the Courts are not limited to making such orders in criminal proceedings and may make gag orders in civil proceedings in accordance with section 8(3) of the Supreme Court of Judicature Act 1969 or section 7(3) of the State Courts Act 1970.
22. As an alternative form of a gag order, the Courts can – in the appropriate case - redact its own judgments to protect the litigant’s identities such that the reader of the judgment will not be aware of who the parties to the litigation are.
23. For example, in the recent 2020 Bar examinations cheating case, the High Court had initially exercised its power to redact the names of the trainee lawyers who cheated to aid their road to rehabilitation (see Re CTA and other matters [2022] 5 SLR 598), but later rescinded the order after reconsideration (see Re Monisha Debaraj and other matters [2022] SGHC 93).
24. A gag order therefore prevents the public dissemination of crucial personal information disclosed in a litigation; so even if a member of the public somehow becomes aware of the litigation, he or she will not be able to take any step that may further reveal the litigant’s identity.

E. Sealing orders

25. Finally, a “sealing order” is an order that requires all court documents to be sealed, with access by third parties to these documents and records to be withheld.
26. Once a case is filed in Court, a third party has the right under Order 26 rule 3(4) of the Rules of Court 2021 to apply for an inspection of the case file and ask for disclosure of the documents filed therein. If the inspection is allowed, the third party may gain access to important documents such as the pleadings (comprising of the Statement of Claim and the Defence) and the affidavits filed in support of the application. These important documents may in turn contain the respective parties’ confidential information. A sealing order is meant to prevent this from happening.
27. The leading case on sealing orders is BBW v BBX and others [2016] 5 SLR 755 where the plaintiff applied to seal the case file of a suit commenced to enforce an indemnity agreement for liability, loss, or damage incurred in respect of an international arbitration then ongoing at the Singapore International Arbitration Centre. The High Court held that in deciding whether to grant a sealing order, the principle of open justice must be weighed against the need to preserve confidentiality. The High Court granted the sealing order in that case as it considered the suit to be closely connected to the underlying international arbitration which by virtue of the International Arbitration Act had to be kept confidential.
28. However, in the recent case of Re Tay Quan Li Leon [2022] 5 SLR 896, the High Court stressed that a sealing order, being a departure from the principle of open justice, is an exception and not the norm. Correspondingly, the applicant would need to show cogent reasons demonstrating why the sealing order is necessary to achieve justice. Some of the acceptable reasons include the need to protect a trade secret, to protect unpublished price-sensitive information, to safeguard a vulnerable individual, or to safeguard national security.

F. Application of anonymity orders to administration actions

29. In the context of administration actions, it should be noted that after the enactment of the Family Justice Act in 2014, administration actions can be commenced either in the State Courts or the Supreme Court under Order 32 rule 2 of the Rules of Court 2021 or in the Family Justice Courts under rule 786 of the Family Justice Rules 2014 (subject of course to the jurisdictional requirements prescribed under section 22 of the Family Justice Act 2014 being met and in the case of the Family Division of the High Court, the additional jurisdictional requirements prescribed in Family Justice (Family Proceedings before Family Division of High Court) Order 2014 being met).
30. If confidentiality is important in respect of the trust in question, we suggest the trustee to seriously consider commencing the proceeding in the family courts (either in the Family Justice Courts or in the Family Division of the High Court) instead of the civil courts (comprising of the State Courts and the General Division of the High Court) because two of the three types of anonymity orders mentioned above would by default be granted in proceedings commenced in the family courts as opposed to proceedings commenced in the civil courts:

1. For proceedings commenced in the civil courts (such as the General Division of the High Court), administration actions would typically be commenced by way of an originating application, which means that such actions should by default already be heard in chambers, thus providing some form of restriction over who can attend the hearing.
2. But to obtain an “in camera” order, the litigant must put forward sufficient and compelling reasons explaining why such an “in camera” order is necessary. In this regard, we caution that discharging such burden may not be easy as seen in the case of Jocelyn Rita d/o Lawrence Stanley v Tan Gark Chong [2019] SGHC 125, where the High Court held that “the mere fact that the action concerned a dispute between family members was unexceptional and did not per se justify a hearing in camera, even if the same parties were embroiled in a pending matrimonial case. That the witnesses were professionals or family members did not mean that they should be afforded privacy from open court proceedings. Many civil proceedings involve disputes between family members, in which family members are called as witnesses”.
3. In contrast, for proceedings commenced in the family courts, the starting point is manifestly different: section 10(1) of the Family Justice Act 2016 prescribes that all proceedings commenced in the Family Justice Courts (which includes the Family Division of the High Court) are to be heard in private.
4. In other words, there is no need for the litigant in the family courts to explain why an “in camera” order is necessary. Instead, an “in camera” order is made as a matter of course in family proceedings. A default “in camera” order theoretically means that confidentiality will be better preserved from the start in proceedings commenced in the family courts than that commenced in the civil courts.
5. The distinction between proceedings commenced in the family courts and the civil courts is not limited to the difference in treatment of “in camera” orders. There is also a difference as to the extent of the Court’s discretion to grant a redaction order.
6. For proceedings commenced in the civil courts, once the Court makes an “in camera” order for the proceedings, it generally becomes easier for the litigant to then persuade the Court to make a consequential redaction order.
7. For instance, in BOK v BOL and another [2017] SGHC 316, Justice Valerie Thean first ordered proceedings commenced by a husband against his wife and infant son to set aside a declaration of trust in favour of the son, to be heard in camera because the suit was intertwined with an ongoing divorce suit involving the husband and wife that was already held in camera. Justice Thean then ordered, pursuant to Order 42 rule 2 of the Rules of Court 2014 (the then equivalent of Order 17 rule 4 of the Rules of Court 2021), that the judgment be published on terms that the parties’ names and details were to be redacted.
8. Similarly, in BLL v BLM and another [2020] 4 SLR 494, Justice Valerie Thean also first ordered a suit commenced by deputies of a mentally incapacitated plaintiff for breach of fiduciary duties and undue influence to be heard in camera because the suit was related to earlier proceedings setting aside the trust for lack of capacity that was already held in camera. Justice Thean then consequently ordered, pursuant to Order 42 rule 2 of the Rules of Court 2014, that the parties’ names and other details that can identify the parties to be redacted from her judgment.
9. However, it should be noted that while the Court may be more inclined to direct a redaction of a judgment of proceedings ordered to be held “in camera”, it does not do so as a matter of course. In a recent case Enjin Pte Ltd v Pritchard Lilia [2022] SGHC 201, Justice Philip Jeyaretnam reasoned that the power under Order 42 rule 2 of the Rules of Court 2014 was ultimately discretionary. Justice Jeyaretnam held that the purpose of the “in camera” order he made in the Prichard Lilia case was to protect certain “highly commercial sensitive information” which was eventually not led in evidence. Since the purpose of the “in camera” order had been spent, there was no reason for the judgment to then be redacted or anonymised. He thus declined to grant the redaction order.
10. In contrast, for proceedings including administration actions commenced in the family courts, the default position is again different: by virtue of Rule 671 of the Family Justice Rules 2014, the reports of all judgments delivered for in camera proceedings are required to be redacted first before it can be published.
11. In other words, the principle recently stated in Pritchard Lilia that there is a discretion on the Court to redact the judgment does not apply to family proceedings, thereby reinforcing the conclusion that the confidence of a case is theoretically better preserved in the family courts than in the civil courts.

31. For sealing orders, there does not appear to be any distinction between proceedings commenced in the family courts or in the civil courts. Indeed, we have not come across a reported trust dispute where the Court made a sealing order possibly because an “in camera” order and the accompanying redaction of the judgment may be sufficient on their own to allay fears of any information leak.
32. But assuming there are good reasons why a sealing order should be made, for example, when sensitive documents such as the settlor’s letter of wishes are to be exhibited in an affidavit, and the trustee and/or the beneficiary may suffer prejudice if the trust documents are then subject to disclosure through an inspection of the case file, we suggest that it may be appropriate in such a case for the trustee to seek a sealing order to protect the affidavit and its contents from surfacing in public.

G. Concluding remarks and key takeaways

33. Drawing the threads together, it is suggested that trustees consider the following questions in turn before commencing administration actions:

1. Is privacy important to the trust in question?
2. If the answer to paragraph 33(a) is “yes”, then the trustee should consider whether the administration action can be commenced in the Family Justice Courts (or the Family Division of the High Court) instead of the State Courts or the General Division of the High Court. If the matter can be commenced in the Family Justice Courts, then the trustee may want to do so to better preserve the confidence of the case from the start.
3. If the answer to paragraph 33(a) is “yes” but for some reason (whether jurisdictional or otherwise) the trustee needs to commence the administration action in the State Courts or the General Division of the High Court, then for the purposes of maintaining privacy over the proceedings, the trustee should consider applying for at least an “in camera” order and an accompanying redaction order.
4. Finally, the trustee should consider whether there are any confidential documents in the supporting affidavit which should not be the subject of public inspection. If there are such confidential documents, then the trustee should also consider applying for a sealing order at the outset by explaining why there are vulnerable and/or sensitive facts in that particular case.

34. The above is a general guide on how to maintain privacy in Court proceedings, particularly administration actions. At the end of the day, trustees should remind themselves that they are fiduciaries, duty-bound to act in the best interests of the trust and in this regard, if privacy is important to the trust, the trustee should take the necessary steps including applying for the necessary anonymity orders to maintain that privacy. If the trustee is ever in doubt, the trustees may wish to seek professional legal advice on the best course of action available to them.