“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
What is pre-trial discovery in the context of litigation?
Taking a broad-brush approach, discovery generally refers to a pre-trial process that allows access to the other side’s evidence.
This is in-line with the “cards-up” approach to modern litigation.
In general, there are FIVE (5) forms of pre-trial discovery:
a. Norwich Pharmacal Orders (Discovery against a third-party before trial);
b. Interrogatories;
c. Notice to Produce;
d. General discovery;
e. Specific discovery.
Interrogatories and Norwich Pharmacal orders (codified under O. 26 and O. 24, r. 7A ROC 2012, respectively) are separate beasts with different legal principles.
For the purposes of this article, I will consider the latter three.
I. NOTICE TO PRODUCE
Notices to produce (NTP) are provided for in O. 24, r. 10 ROC 2012. It states as follows:
Inspection of documents referred to in pleadings and affidavits (O. 24, r. 10)
10. (1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 41 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies of that document.
(2) The party on whom a notice is served under paragraph (1) must, within four days after service of the notice, serve on the party giving the notice, a notice in Form 42 stating a time within seven days after the service thereof at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice, and stating which of the documents he objects to produce and on what ground.
This is a relatively straightforward aspect of discovery. If one party makes reference to a document in his pleadings and/or affidavit, service of a NTP will entitle one to obtain a copy of the said document.
Failure to comply with a NTP
Failing to comply with a NTP will allow the applicant to move the Court for the necessary orders for discovery (O. 24, r. 11 ROC 2012).
Serving a NTP is a step in the proceedings
It must be noted that where there is an arbitration clause in an agreement between the parties, service of a NTP will constitute a step in the proceedings (thereby displacing the right to refer the matter to arbitration) (CLLS Power Systems v Sara Timur [2015] 11 MLJ 485).
II. GENERAL AND SPECIFIC DISCOVERY
Discovery may be by way of general and/or specific discovery.
In Yekambaran Marimuthu v Malayawata Steel Bhd (1993) MLJU 96, Edgar Joseph Jr J (as His Lordship was then known) outlined the seminal requirements for discovery:
The essential elements for an order for discovery are threefold; namely, first, there must be a "document", secondly, the document must be "relevant" and thirdly, the document must be or have been in the "possession, custody or power" of the party against whom the order for discovery is sought.
Refer:
Wong Kie Yik v Kathryn Ma Wai Fong [2016] MLJU 1849
Faber Merlin v Ban Guan [1981] 1 MLJ 105, FC
Discovery may also include recordings (Mouammar v Bruner [1977] 17 OR (2d) 526)
A. GENERAL DISCOVERY
O. 24, r. 3 ROC 2012 requires a party to give general discovery by:
a. Making and serving a list of documents in its posession, power and custody;
b. Filing an affidavit verifying such list.
O. 24, r. 5(1) ROC 2012 further specifies the manner in which the list of documents is to be prepared (Form 38).
O. 24, r. 5(3) ROC 2012 mandates that the affidavit verifying the list of documents is to be prepared in accordance with Form 39.
In Chin Mun Fong v Standard Chartered Bank [2012] 4 SLR 185, the Singaporean Court of Appeal considered O. 24 of the Singaporean Rules of Court (which is almost identical to Malaysia’s ROC 2012) and stated as follows:
Order 24 provides for both pre-trial and the normal post commencement of action discovery. If the object of pre-action discovery also encompasses the object of obtaining evidence to boost one's case, then it would, as pointed out in Pinsler (see [26] above), effectively render otiose the provisions for the normal discovery following the commencement of action – r 1 for general discovery following the commencement of action and r 5 for the discovery of specific documents.
Refer:
Ahmad Zahri Mirza v PricewaterhouseCoopers Capital [2015] MLJU 878
Wu Siying & 75 Ors v Malaysian Airline System [2016] 11 MLJ 549
Sri Devi A/P Kanan v Malaysia Airline Systems [2017] 7 MLJ 305
Tiow Weng Theong v Melawangi [2015] MLJU 368
B. SPECIFIC DISCOVERY
Specific discovery is governed by O. 24, r. 7 ROC 2012. As a general rule, specific discovery will not be given unless an order for general discovery has been given (O. 24, r. 7(4) ROC 2012)
O. 24, r. 7(1) ROC 2012 specifies that the Court may make an order requiring any party to:
i. Make an affidavit stating whether any document specified or described in the application has at any time been in his possession, custody or power;
ii. If the said documents are no longer in his possession, custody or power, to state when he parted with it and what has become of it.
Refer:
Zen Courts v Bukit Jalil Development [2018] 8 MLJ 216
THE LIST OF DOCUMENTS AND AFFIDAVIT VERIFYING THE LIST
The list of documents and the affidavit verifying the same are very important documents to any discovery application.
In Scott v Hopkins (No. 1) [1918] NZLR 573, the Supreme Court of New Zealand underscored the importance of the affidavit in discovery:
When preparing his affidavit of documents he would no doubt act under the advice of his solicitor, who would decide for him what material was relevant and what was not. If the defendant has deliberately omitted to mention documents and papers relating to matters in question in the action then he has sworn falsely, and is liable to certain well-known consequences.
Likewise, the English Court of Appeal in The Peruvian Guano Company (1882) 11 QBD 55 outlined opined that “The party swearing the affidavit is bound to set out all documents in his possession or under his control relating to any matters in question in the action.”
Refer:
Sterling v Winthrop [1967] IR 97
Go2capeverde Ltd v Paradise Beach Aldemento Turistico Algodoeiro [2014] IEHC 531
Failing to put forth all documents during discovery or withholding the same is a condemnable practice. In Cheung Wei Man Vivien v Centaline Property Agency [2006] HKCU 2085, the Hong Kong Court of First Instance stated as follows:
[28] The Plaintiffs had attempted to explain the late discovery as a tactical move to expose what they perceived to be the lies of the Defendants. It was a deliberate decision and regrettably a solicitor was said to be involved. In my judgment, this is not an acceptable excuse. Concealment of documents would not assist the court in making a fair assessment of a witness. A party is entitled to conduct litigation on the basis that his opponent gives proper discovery as required by the rules. All litigants and those advising them should familiarize themselves with the duty relating to discovery. Any forensic manoeuvre that smacks of ambush has no place in modern litigation and this court will not hesitate in voicing a strong disapproval for such conduct. A witness should have the chance to consider the relevant documents before he reduces his evidence into witness statement. The duty of discovery requires full discovery being given and withholding materials with a view to gain some forensic advantage in terms of trapping the opponents is an abuse of process. This court must take a firm stance to discourage such improper conduct of litigation.
CONCLUSION
Discovery is an integral process in any trial and should be utilised from the get-go. This holds especially true for high-value contentious disputes where serious issues are at stake.
Failing to apply for discovery is akin to failing to prepare for war; it results in a Pyrrhic victory at best and litigious hara-kiri at worst.
GAVIN JAYAPAL
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