DISCOVERY OF DOCUMENTS
What is it
A process whereby any party to a suit may be required to disclose all
evidence within his possession, custody or power relating to matters in
question in the action. Almost similar to APO, but less strict.
Norwich Pharmacal Co. v Customs and Excise Commissioners:
Discovery can be granted in aid of any reasonable action which the plaintiff
has brought against the defendant.
Function of discovery
Goh Hooi Yin v LimmTeong Ghee & Ors (1977):
1. To provide parties with relevant documentary material for appraisal of
strength or weakness before trial.
2. To provide basis of fair disposal of the proceedings before trial.
3. To enable parties to use relevant document to support or rebut the case
4. To eliminate the element of surprise relating to the documents
5. To reduce cost of litigation.
Documents subject to discovery:
O. 24 r. 3(4): Documents which the party relies or will rely & documents
which could badly affect his case or badly affect the opposite party’s case
or support another party’s case.
The Compagnie Financiere et Commerciale Du Pacifique v. The Peru-
Vian Guano Company: Documents which can be ‘discovered’ is those
that can advance his own case or to damage his adversary.
Types of discovery
 General discovery
O. 24 r. 3(1): Applied by one party to the court for an order requiring the
other party to give discovery by giving a list of documents [O. 24 r.5: Form
38] to the other party which are in the other party possession.
 Specific discovery
O. 24 r. 7: Order for discovery of a particular document will be given after
general discovery (O.24 r.3 (1)) is granted, subjected to court discretion.
What happen if application for discovery is unnecessary?
O. 24 r. 8: On the hearing of an application for an order of discovery, the
court may dismiss or adjourn the application if is unnecessary.
The duty to give discovery last throughout the proceeding
O. 24 r. 8A: The party required to give discovery has a duty to continue to
give discovery of all documents on that order until trial is concluded.
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What happen if you fail to comply with the order
O. 24 r. 16: Where a party fails to comply with the order, the Court may
make such order such as the action is dismissed or, an order that the
defence be struck out and judgment be entered accordingly.
Discovery against a stranger
Norwich Pharmacal Co: GR- No action for discovery can be made against
a party against whom no reasonable cause of action or mere witness can
be made, unless if got mixed up in the tortious act, he shall assist the
person by giving him the information and the identity of the wrongdoer.
Exceptions laid out under Norwich Pharmacal Co
1. Where the discovery is to facilitated the tracing
Bankers Trust Co. v Shapira & Co: The plaintiff has bank account in New
York & issued a writ against two fraudsters and a London bank sought an
order for discovery for the London bank (third party) to disclose all relevant
documents and records. CH: Application allowed in AC. But there must be
clear EVIDENCE OF FRAUD, purpose is to AID TRACING, & real
PROSPECT which lead to the preservation of property.
Stemlife Berhad v Bristol-Myers Squibb (M) Sdn Bhd: D which is an
official service provider of an online forum has control of who has access to
its website. Two users with fake names has defamed P & P sought for
order of discovery against D to identify the users. CH allowed as def, being
the 3rd party having control of the website, allowed such defamatory
material to be posted freely with no editorial editing. Thus, D has facilitated
the wrongdoing.
2. When P knows there has been wrongdoing, but only the third
party knows the names or identity of the wrongdoers
Norwich Pharmacal Co.: The appellants is the owners of a patent for a
chemical compound. The patent was infringed by importers of the chemical
manufactured abroad. App sought for discovery to obtain the names and
addresses of the importers from the Commissioners of Customs and
Excise seeking orders for the disclosure of the names of the importers.
3. Where the third party is jointly liable with the D in the wrongdoing,
P is entitled for discovery
Loose v Williamson: P intend to sue a guy who was using a boat to
remove mussels (belongs to P) at the foreshore. P applied for discovery
against the third party (owner of the boat) to provide information on who
was on the boat at the specific time. CH P entitled for discovery as 3 rd party
is not innocently mixed up, but is jointly liable.
Limitation under exception under Norwich Pharmacal Co
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First Malaysia Finance v Dato’ Mohd Fathi: The identity that were
alleged of committing the wrongful acts were known to P. Application
rejected.

O. 24 r 7A: Gives effect to the exception in Norwich
Ahmad Zahri Mirza v PricewaterhouseCoopers Capital [2015]: If
proceedings are not intended against the party on whom the discovery is
sought, it does not mean that the application for discovery must be refused
Process to apply for discovery under 7A
To defendant before commencement
(1): Before proceeding start, P can sought for discovery against D by make
him def to the summons in ORIGINATING SUMMONS
To third party after commencement of proceedings
(2): If after proceeding has commence, can be sought against third party by
NOA but must serve it to the third party and parties to the suit
 First Malaysia Finance v Dato’ Mohd Fathi: The identity that were
alleged of committing the wrongful acts were known to P.
Application rejected.

 Purpose
Infoline Sdn Bhd v Benjamin Lim Keong Hoe [2018]: 7A is allowed to
see whether there is viable claim to the potential defendant which will save
time & cost. This case discussed application of 7A in details. TC & AC
agreed that 7A is wider than Norwich exception. The question to be asked
by the court in granting order to discovery is whether the discovery is
appropriate. Here, the resp sought for discovery of the trust document. The
resp was a beneficiary of the trust deed but subsequently removed (but he
had no idea why). Therefore, he wishes to discover whether the app has
wrongly removed him from the trust deed.