The Riddick principles: Case analysis of the CA decision of GM Aero v Genting

The CA decision of GM Aero Support & 1 or. V Genting Highlands Berhad & 2 ors [CIVIL APPEAL NO: W-02(IM)(C)-1518-09/2024] is a must-read for anyone interested in committal proceedings.   

The facts 

The CA has distilled the facts excellently at paragraphs 3-43. I will simplify it as follows: 

Suit 13 

-          GM Aero obtained Planning Permission to develop its land;

-          To complete the development, GM Aero needed to use a Road;

-          Genting filed Suit 13 against GM Aero;

-          Genting alleged that the Road was its own Private Road;

-          Genting sought a permanent injunction against GM Aero.   

The application for discovery in Suit 13 

In Suit 13, GM Aero applied for discovery. The HC ordered discovery of the various Land Titles on which the Road sat. 

On 09.10.2023 and before Genting had made discovery, GM Aero filed the Kuantan OS and Kuantan JR. In gist, these proceedings were to invalidate the Land Titles (and to thereby invalidate Genting’s claim to the Road). 

On 27.10.2023, Genting made discovery of the Land Titles. GM Aero also issued a subpoena to the Director of Land and Mines, asking for further documents. These various papers were e-filed and marked (Exhibits B106 and B108) in Court.

Genting further delivered a Witness Statement to address these documents. When the Witness Statements were read in open court (and entered into evidence), there was no reservation by Genting. 

The application to transfer 

Genting applied to transfer the Kuantan OS. GM Aero objected to this. In GM Aero’s AIR, they exhibited 4 letters from Exhibit B108.

Genting also applied to stay the Kuantan JR. In Written Submissions, GM Aero made reference to the list of documents contained in Exhibit B106.

The application for committal 

Genting then filed an application for leave to commence committal proceedings against GM Aero and the deponent of its affidavit. In gist, Genting argued that by using the documents in B106 and B108 outside Suit 13, GM Aero had breached its implied undertaking not to disclose the documents (a Riddick undertaking). 

The Riddick undertaking is, in essence, an implied undertaking that one will not disclose documents obtained through a discovery order. The jurisprudential basis for this undertaking was explained by the CA (generally, to encourage open disclosure without the fear that your documents will be used against you in separate proceedings). 

The opposed ex-parte application 

The learned HCJ heard the ex-parte application on an opposed ex-parte basis (i.e., with GM Aero’s solicitors participating). The sole legal issue was whether the Riddick principle was engaged. The HCJ held that it was and granted ex-parte leave to commence committal proceedings. 

Dissatisfied, GM Aero appealed against: 

a.       The grant of ex parte leave (Appeal 1518);

b.       An Order granting Genting leave to use Exhibits B106 and 108 in separate proceedings (Appeal 1548). 

The CA’s decision 

The CA allowed both appeals and set-aside the grant of ex-parte leave. In an illuminating judgment that dealt with numerous aspects of the law, Firuz JCA observed as follows: 

a.       There was nothing barring GM Aero from appealing against the ex-parte order (paras. 46-54);

b.       When the learned HCJ made a finding of law that the Riddick Principle was engaged, the Court could not revisit that (paras. 55-60);

c.       The Appeal is not academic as there is a live issue that would impact the litigants (paras. 61-72);

d.       Delay was actually occasioned by Genting and the appeal was not premature (paras. 73-75). 

The law on implied undertakings 

The CA conducted an in-depth and thorough examination of the law at paras. 88-163. The Judgment is exhaustive in its research and substance (dealing with jurisprudence from the UK, Australia, Singapore, Hong Kong and New Zealand). In summary, the CA determined as follows: 

a.       A document that has been produced pursuant to a discovery order would contain an implied undertaking not to disclose (unless the proceedings in which disclosure takes place are related proceedings);

b.       However, once Genting e-filed Bundles B106 and B108 in Open Court and further gave evidence on the same in Open Court, the Riddick Principle would not be engaged;

c.       If Genting wished to maintain the privilege attached to the document, it (Genting) would be obligated to obtain a sealing/protective order (Kingtime v Petrofac [2020] 1 MLJ 141);

d.       Putting the document into the e-filing system would render the same a public document (though parties are not at liberty to willy-nilly disclose the same);

e.       Genting’s conduct in filing an application for leave to use Exhibits B106 and B108 indicated that those documents were relevant for the Kuantan OS and Kuantan JR;

f.        In these  circumstances, the CA allowed both appeals. The Orders of the High Court were set-aside with costs. 

Key takeaways 

The Judgment highlights numerous features of the law and interesting legal concepts.

I think that the best takeaway from this judgment would be the fact that the Courts are adopting an open-policy approach to litigation. Documents produced in discovery will not automatically be protected from disclosure in related proceedings unless the party disclosing is able to convince the Court that a sealing/protective Order is necessary. 

This places the burden on the party resisting disclosure; if the documents were produced by you, what exactly do you have to hide? 

I am of the view that the Judgment is an excellent advancement in the law and one that puts to bed unnecessary and pedantic application of principles. The only quibble that I would have with it would be the observations with regard to findings of law binding the Judge at a subsequent stage.

I am firmly of the view that a Judge’s interlocutory finding on the law may be amended at a later stage. This would be due to the fact that new facts would have been uncovered at which point, the law could very well change as well (given that the facts are different, Lim Wen Chih v Pacific Forest [2021] 4 MLJ 367 (CA); Code Brilliant v Heng Ji Keng [2013] 9 MLJ 212 (HC)).

This minor issue aside (which, arguably, the CA would have made a similar observation on had the facts been different), I fully subscribe to the observations made by the CA. It is a step in the right direction and pushes parties towards increased accountability and responsible disclosure.

GAVIN JAYAPAL

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