Chapter 28 - Discovery Flashcards
DISCOVERY
Overview
1) General principles on discovery
2) General discovery
3) Specific discovery
4) Pre-action discovery against a person
5) Action discovery against a non-party
6) Discovery for the purpose of discovering identity
7) Inspection of documents referred to in pleadings
GENERAL PRINCIPLES ON DISCOVERY
Overview
1) Stages of discovery
2) Meaning of documents in possession, custody or power
3) Relevant documents to be discovered under common law
4) Relevant documents to be discovered under ROC
5) Power of court
6) Public official privilege
7) Failure to allow inspection
GENERAL PRINCIPLES ON DISCOVERY
Stages of discovery
1) Application, when necessary.
2) Disclosure.
3) Inspection of the documents.
4) Production if inspection fails.
GENERAL PRINCIPLES ON DISCOVERY
Meaning of documents in possession, custody or power
Lonrho Ltd v Shell:
- The phrase looks to the present and the past, not to the future;
- they must be or have at one time been available to be looked at by the person upon whom the duty lies to provide the list.
- Such is the case when they are or have been in the possession or custody of that person;
- The expression “power” must mean a presently enforceable legal right to obtain from whoever actually holds the document or inspection of it without the need to obtain the consent of anyone else.
- in the absence of a presently enforceable right, there is nothing in O.24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future.
GENERAL PRINCIPLES ON DISCOVERY
Relevant documents to be discovered at common law
The Compagnie Financiere Et Commerciale Du Pacificque v The Peruvian Guano Company:
- Relevant documents are every document relates to the matters in question in the action;
- It consists of documents which not only would be evidence upon any issue;
- Also which is reasonable to suppose, contains information which may either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.
GENERAL PRINCIPLES ON DISCOVERY
Relevant documents to be discovered under ROC
O.24
- r.3(4):
- r.7(3):
- r.12(1):
GENERAL PRINCIPLES ON DISCOVERY
Power of court
Faber Merlin M’sia v Ban Guan Sdn Bhd:
- court may order for an issue as to whether a document is relevant to be determined first before deciding on the extent on the discovery.
- Even where it is clearly relevant, the court will go on and consider whether the order for discovery is necessary at this stage of proceedings.
- The complexity and the immensity of the task should not be a deterrent.
GENERAL PRINCIPLES ON DISCOVERY
Public official privilege
1) The law:
- O.24, r.15
2) Scope - Suruhanjaya Sekuriti v Datuk Ishak Ismail:
- r.3 must be read subject to r.15;
- the court would have first to determine whether the communication had been made to public officer in official confidence.
- If the answer is in the negative, then the s.134 statements will have to be disclosed.
- If the answer is in the affirmative, then it is for the officer concern to decide whether the statements should be disclosed or not;
- The next question for determination is whether the public interest would suffer by the disclosure of the S.134 statements & it is for the officer to determine whether public interests would suffer by the disclosure of the S.134 statements.
GENERAL PRINCIPLES ON DISCOVERY
Failure to allow inspection
1) Order for production:
O.24, r.11:
2) Order for dismissal of the action or judgment against D:
O.24, r.16:
3) Order for committal:
- r.16(2)
GENERAL PRINCIPLES ON DISCOVERY
Requirement of prior unless order
Ong Boon Hua v Menteri Hal Ehwal Dalam Negeri:
- If any party fails to discover or produce or allow inspection of documents as provided by any of the foregoing rules, or as ordered, the court has power under rule 16(1) to make any order it thinks just.
- This includes the power to order that an action be dismissed, or that a defence be struck out with judgment to be entered accordingly.
- Normally court is reluctant to exercise such power and will only do so when a party has at least once disobeyed a peremptory order insisting, for example, that he make discovery within a time specified in the order.
- A party who fails to comply with an order for discovery or production is also liable to committal [rule 16(2)].
- These are highly penal provisions and will only be enforced in the last resort, where it seems clear that the party in default really intends not to comply with an order of the court.
GENERAL DISCOVERY
Overview
1) The law
2) Requirements
3) Procedures
4) Failure to comply
GENERAL DISCOVERY
The law
O.24, r.3
GENERAL DISCOVERY
Requirements
1) Application:
- No application needed, court will automatically order for discovery during case management.
2) Relevant documents to be discovered:
Meaning of relevant documents:
- The Compagnie Financiere v Peruvian Guano Co
- O.24, r.3(4), r.7(3), r.12(1):
3) Public official privilege:
- O.24, r.15:
- Suruhanjaya Sekuriti v Datuk Ishak Ismail:
GENERAL DISCOVERY
Procedures
1) Disclosure:
- Court order for discovery - O.24, r.3(1):
2) Test for order - O.24, r.8:
3) Inspection - O.24, r.9:
4) Production - O.24, r.11:
GENERAL DISCOVERY
Failure to comply
1) The law:
- O.24, r.16
2) Scope - Ong Boon Hua v Menteri Hal Ehwal Dalam Negeri:
- Dismissal subjected to unless order.
SPECIFIC DISCOVERY
Overview
1) The law
2) Requirements
3) Procedures
4) Failure to comply
SPECIFIC DISCOVERY
The law
O.24, r.7
SPECIFIC DISCOVERY
Requirements
1) Application: O.24, r.7(1)
- O.24, r.7(1):
Must be made.
Must specify the documents. - O.24, r.7(3):
Affidavit. - O.24, r.7(4):
Order under r.3 should be obtained prior making an application.
2) Relevant documents to be discovered:
Meaning of relevant documents:
- The Compagnie Financiere v Peruvian Guano Co
- O.24, r.3(4), r.7(3), r.12(1):
3) Public official privilege:
- O.24, r.15:
- Suruhanjaya Sekuriti v Datuk Ishak Ismail:
SPECIFIC DISCOVERY
Procedures
1) Disclosure:
O.24, r.7(1):
2) Court order for discovery.
O.24, r.8: Test - only if it is necessary.
3) Inspection - O.24, r.9:
4) Production - O.24, r.11:
SPECIFIC DISCOVERY
Failure to comply
1) The law:
- O.24, r.16
2) Scope - Ong Boon Hua v Menteri Hal Ehwal Dalam Negeri:
- Dismissal subjected to unless order.
PRE-ACTION DISCOVERY AGAINST A PERSON
Overview
1) The law
2) Purpose
3) Meaning of viable
4) General requirements
5) Specific requirements
6) Procedural requirements
7) Procedures
8) Failure to comply
PRE-ACTION DISCOVERY AGAINST A PERSON
The law
O.24, r.7A(1):
- before commencement of proceedings;
- for discovery of documents;
- sought from a person who is a potential defendant.
PRE-ACTION DISCOVERY AGAINST A PERSON
Purpose
1) Infoline Sdn Bhd v Benjamin Lim Keong Hoe:
- to assist a prospective litigant plaintiff to determine whether he has a viable claim against the intended defendant;
- to determine whether there is a viable cause of action for the plaintiff.
2) Ching Mung Fong v Standard Chartered Bank:
- Pre-action discovery serves a somewhat more modest purpose than discovery under r.3 & r.7;
- It is merely to allow the plaintiff who suspects he has a case to obtain the necessary information to allow him to commence proceedings
PRE-ACTION DISCOVERY AGAINST A PERSON
Meaning of viable
Ching Mung Fong v Standard Chartered Bank:
- The word “viable” must NOT be understood to mean that the plaintiff is entitled to pre-action discovery for the purposes of augmenting his case or to “complete his entire picture of the case”.
PRE-ACTION DISCOVERY AGAINST A PERSON
General requirements
Infoline Sdn Bhd v Benjamin Lim Keong Hoe:
1) EXPLANATION:
- Applicant needs to provide an explanation as to why pre-action discovery and not discovery in the course of action or proceedings is necessary.
2) MATERIAL FACTS:
- The applicant must provide the material facts pertaining to the intended proceedings or the substance of the potential claim;
3) DESCRIPTION OF SPECIFIC DOCUMENTS:
- the documents sought must be specified or sufficiently described.
4) RELEVANT DOCUMENTS:
- the documents sought must relevant to an issue arising or likely to arise in the intended proceedings.
5) IDENTITY OF THE PERSON:
- applicant has to identify the person having possession, custody or power over the documents sought although this averment may, in appropriate cases, be the same person who is a potential defendant.
PRE-ACTION DISCOVERY AGAINST A PERSON
Specific requirements
Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd:
- No discovery for the purpose of fishing expedition;
- “fishing expedition” refers to the aimless trawling of an unlimited sea; where the party concerned knows a specific and identifiable spot into which he wishes to drop a line (or two), it is NOT a “ fishing expedition”.
- if subsequently no relevant information was found in the documents disclosed, that does not in itself, mean that it was a fishing expedition.
PRE-ACTION DISCOVERY AGAINST A PERSON
Procedural requirements
1) Application - O.24, r.7A(1):
- Mode: Originating Summons
2) Service - O.24, r.7A(4):
3) Affidavit - O.24, r.7A(3)(a) & (b):
4) Necessities - O.24, r.8:
PRE-ACTION DISCOVERY AGAINST A PERSON
Procedures
1) Application:
Must be made - O.24, r.7A(1):
Affidavit- O.24, r.7A(3):
Service - O.24, r.7A(4):
2) Disclosure:
Test for order - O.24, r.8:
3) Inspection - O.24, r.9:
4) Production - O.24, r.11:
PRE-ACTION DISCOVERY AGAINST A PERSON
Failure to comply
1) The law:
- O.24, r.16
2) Scope - Ong Boon Hua v Menteri Hal Ehwal Dalam Negeri:
- Dismissal subjected to unless order.
PRE-ACTION DISCOVERY AGAINST A PERSON
When discovery shall not be ordered
O.24, r.7A(7)
ACTION DISCOVERY AGAINST A NON-PARTY
Overview
1) The law
2) Requirements
3) Procedures
4) When discovery shall not be ordered
ACTION DISCOVERY AGAINST A NON-PARTY
The law
O.24, r.7A(2):
- Discovery after the commencement of proceedings;
- For discovery of documents;
- Sought from a person who is NOT the party to the proceedings.
ACTION DISCOVERY AGAINST A NON-PARTY
Requirements
Billion Prima Sdn Bhd v Nutech Company Limited:
1) AFFIDAVIT - r.7A(3)(b):
- specify or describe the sought documents;
show that the documents are relevant.
2) RELEVANCY - r.7A(3)(b):
- the documents must be “relevant to an issue arising or likely to arise out of the claim made”.
- This relevancy requirement is not as stringent as that provided by r3(4).
3) POSSESSION, CUSTODY OR POWER:
- person against whom the order is sought is likely to have or have had [the documents] in his possession, custody or power.
includes third parties who are “likely” to have or have had the documents in their possession, custody or power.
4) NECESSITY:
- Applicant bears the legal onus to satisfy the court that the application is necessary, either:
(i) to fairly dispose of the pending suit; or
(ii) to save costs. - It suffices if either one of these two matters is satisfied.
5) NON-PRIVILEGED:
- the documents are not privileged and the non-party can be compelled by an order under r.7A(5) to produce them.
6) SERVICE:
- must be served in accordance with r.7A(2) and (4).
7) DISCRETION:
court nevertheless retains a discretion as to whether to allow the application.
ACTION DISCOVERY AGAINST A NON-PARTY
Procedures
1) Application:
Must be made - O.24, r.7A(2): Notice of application
Affidavit- O.24, r.7A(3):
Service - O.24, r.7A(4):
2) Disclosure:
Test for order - O.24, r.8:
3) Inspection - O.24, r.9:
4) Production - O.24, r.11:
ACTION DISCOVERY AGAINST A NON-PARTY
Failure to comply
1) The law:
- O.24, r.16
2) Scope - Ong Boon Hua v Menteri Hal Ehwal Dalam Negeri:
- Dismissal subjected to unless order.
ACTION DISCOVERY AGAINST A NON-PARTY
When order shall not be made
O.24, r.7A(7)
DISCOVERY FOR THE PURPOSE OF FINDING POTENTIAL DEFENDANT
Overview
1) Origin & conditions
2) The law & scope in Malaysia
3) Applicability of Norwich Pharmacal Order in Malaysia
DISCOVERY FOR THE PURPOSE OF FINDING POTENTIAL DEFENDANT
Origin & conditions
1) Origins - Norwich Pharmacal v Commissioners of Customs:
- Party could bring a specific action by writ against a person for discovery of the name of a potential defendant;
- This specially so if that person has facilitated the wrongdoing of a potential defendant & has the necessary information.
- He is under a legal duty to assist the person who has been wronged by giving him full information and in making disclosure of the identity of the wrongdoers.
2) What is NPO - Norwich Pharmacal v Commissioners of Customs:
- made by an applicant in order to force a third-party respondent to disclose information or certain documents to the applicant.
- These orders are quite often used to obtain the identity of a potential defendant to a proceeding.
3) Conditions for issuance - Mitsui and Co Limited v Nexen Petroleum UK Ltd:
- A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer.
- There must be a need for the information in order to bring some form of action against the wrongdoer.
- The respondent to the application (in most cases an innocent third party), must be ‘mixed-up’ in the wrongdoing in any way which distinguishes themselves from being a mere witness.
- This need for involvement is a justification for the intrusion on the respondent.
DISCOVERY FOR THE PURPOSE OF FINDING POTENTIAL DEFENDANT
Law & scope in Malaysia
1) The law:
- O.24, r.7A(5)
2) Scope of r.7A(5):
- allows discovery for the purpose of finding a potential defendant;
- either against potential D himself - 7A(1); or
- against a third party - 7A(2).
DISCOVERY FOR THE PURPOSE OF FINDING POTENTIAL DEFENDANT
Applicability of Norwich Pharmacal Order in Malaysia
First Malaysia Finance Bhd v Dato’ Mohd Fathi:
- Discovery to find the identity of the wrongdoer is available against anyone whom the P has a cause of action in relation to the same wrong.
- Norwich Pharmacal order is an equitable remedy & will not be granted as of right even when the requirements for it are satisfied;
- The court has a discretion as to whether to grant or refuse it.
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INSPECTION OF DOCUMENTS REFERRED TO IN PLEADINGS
Overview
1) The law
2) Meaning of documents referred to in pleadings
3) Procedures
INSPECTION OF DOCUMENTS REFERRED TO IN PLEADINGS
The law
O.24, r.10
INSPECTION OF DOCUMENTS REFERRED TO IN PLEADINGS
Meaning of documents referred to in pleadings
1) Documents which are being referred - Smith v Harris:
- The pleading need not describe the documents in details;
- It only needs to refer to that document.
2) Documents that become part of pleadings - Day v William Hill:
- If a document is referred to in a pleading, it becomes part of the pleading and ought to be open to inspection.
INSPECTION OF DOCUMENTS REFERRED TO IN PLEADINGS
Procedures
1) Service of notice: O.24, r.10(1)
- Form 41
2) Inspection: O.24, r.10(1) & (2)
3) Production: O.24, r.11(1)
