What is pre action discovery

- Discovery applications are often used by litigants to enable them to obtain documents which are relevant to their case, but
are in the possession, custody or power of their opponent.

- Can be made before filing of legal suit or after a suit has already been commenced in court

- Pre action discovery is governed by Norwich Pharmacal Co v Customs and Excise Commissioners [1973] UKHL 6, [1974] AC
133) discovery may be obtained against a third party if the information sought is necessary to identify a wrongdoer, or to
Ind/preserve evidence that may support an action against an unknown wrongdoer.
- Order 24 Rule 7A ROC allows parties to apply for pre action discovery.

- Pre-action discovery may be applied for where one party (the applicant) requires documents or information from another
party in order to:
o decide whether the applicant has a cause of action;

o identify a wrong-doer; or

o obtain necessary information and documents to properly frame or quantify a claim

- a litigant must demonstrate the following requirements if they want to be granted pre-action discovery

1) State the material facts pertaining to the intended proceedings;

2) Whether the person against whom the order is sought is likely to be a party in the subsequent proceedings

3) The documents sought are relevant to an issue arising or likely to arise out of the future claim to be made;
4) Identify the persons likely to have or had the documents in his possession

- Test of Relevancy – Ahmad Zahri Mirza v Pricewatercoopers Capital Sdn Bhd & Ors [2015] 7 CLJ 930, whereby it held that a
document would be relevant if it contained information which either directly or indirectly allows the requestor to advance
his own case or to damage the case of his adversary, or otherwise fairly lead him to a train of inquiry. In short, a document
may be deemed relevant if it would help strengthen a proposed case or negate a defence
- Additional Consideration

1) Merits of the Future Action

- A party may try to resist an application for pre-action discovery on the grounds that the applicant intends to Ile a baseless suit

- there is no such requirement for an applicant to prove that the case it intends to Ile is a good or strong case.
- Infoline Sdn Bhd Benjamin Lim Keong Hoe [2017] MLRAU 1 - the very purpose of pre-action discovery is to enable a plaintiff
to Ind out before he starts his action whether he has a good cause of action or not. The object of pre-action discovery would
be defeated if the Plaintiff must Irst demonstrate, before he saw the documents, that he has a good case.

- as an applicant can meet the legal requirements set out in Order 24 Rule 7A, pre-action discovery may be granted (subject to
the other considerations mentioned here). The applicant does not need to demonstrate the strength of their future claim, so
long as their application is also not a “Ishing expedition”
2) Confidentiality

- It is also not uncommon for a party to object to pre-action discovery on the basis that the documents sought are conIdential.
- the right to conIdentiality must also be properly balanced with the interests of the applicant in enforcing his rights

- conIdentiality is not a bar to preaction discovery since the Court may impose a condition in the discovery order that the
applicant cannot use the information disclosed for any purpose other than for the intended action

3) Equitable considerations
- if there is an alternative remedy available that must be resorted, or if an action can be Iled without pre-action discovery, that
action ought to be Iled and subsequently discovery orders should be obtained through the normal process.

Q&A Conducting litigation in Malaysia

- A party can apply for a pre-action discovery order under Order 24, rule 7A(1) of the Rules of Court 2012 before the
commencement of proceedings, for the purpose of or with a view to identifying possible parties to any proceedings.
- In a pre-action discovery application, the applicant must:
1) specify or described the documents in question;
2) show that the documents are relevant to an issue arising or likely to be made in the proceedings or the identity of
the likely parties to the proceedings or both by, where practicable, reference to any pleading served or intended to
be served in the proceedings; and

3) show that the person against whom the order is sought is likely to have or have had them in his or her possession,
custody or power.

- A plaintiff may also apply for a disclosure order against a third party bank, pursuant to Order 24, rule 7A of the Rules of Court
2012. The overriding test in a Bankers Trust application is that there must be a viable case against the wrongdoers and the
plaintiff requires discovery to facilitate his or her action.
- In Malaysia, civil proceedings are commenced either by way of a writ of summons (writ) or an originating summons.

- Where there is a substantial dispute of fact or where the plaintiff intends to seek summary judgment, a writ should begin the
proceeding.
- Where there are no or few disputes of fact and the main issues are questions of law, or involve the construction of any
document where such questions are suitable for determination without the full trial of the action, the proceeding may be
begun by originating summons.

- notified of the commencement of proceedings upon being served with a sealed copy of the writ or originating summons,

1) corporation - service is effected by leaving or sending by registered post, a copy of either the writ or originating
summons at the registered address of the company. // service is effected by handing a copy of the writ or originating
summons to the secretary or to any director or officer of the corporation

2) individual - service is effected by leaving a copy of the writ or originating summons with the defendant or by sending
the same through pre-paid advice-of-receipt registered post addressed to the defendant’s last known address.

3) Where personal service is impracticable or cannot be effected, leave may be obtained from the court for the cause
papers to be served by way of substituted service. The party applying for leave must prove that all reasonable efforts
had been taken to attempt personal service. Generally, a substituted service order will require a notice to be
published in one or two newspapers with national circulation, posted in the court premises or at the defendant’s last
known address.

4) For defendants outside Malaysia, an application must be made to the court for leave to serve out of the jurisdiction.
For leave to be granted, the plaintiff must show, among other things, that he or she has a good arguable case for the
relief claimed, that the defendant is in the particular jurisdiction outside Malaysia, and that Malaysia is the most
appropriate forum to determine the dispute.

- a civil claim can be commenced either by way of a writ or an originating summons, which are valid for six months beginning
from the date of its issue.

- Originating summons - defendant has 21 days, from the date of receipt of the sealed originating summons and the affidavit
in support, to respond by filing an affidavit in reply. Thereafter, the plaintiff will have another 14 days to respond to the
defendant’s affidavit in reply.

- Privileges
1) Legal advice privileges - relationship between a client and his or her lawyer. Legal advice privilege is codified in section
126 of the Evidence Act 1950 that provides that no advocate is permitted to disclose any communication made by
the client to the advocate. – privilege is absolute and can be waived only by the privilege holder (client)

2) Litigation privilege - communications between parties or their solicitors and third parties for the purpose of obtaining
information or advice in connection with pending or contemplated litigation. - litigation privilege to be established,
a two-fold test must be satisfied: whether litigation was pending or apprehended when the information or document
was obtained; and whether litigation was the dominant purpose for the preparation of the document
3) Without prejudice privilege - applies to communications, whether oral or written, which were made in the course of
settlement negotiations.
Gathering of Information in Internet Environment: Balancing the Right to Discovery and Right to Protect the Privacy under the
Laws

- Discovery is one of the methods to gather relevant documents or relevant information before the trial.

- is „anything in which information of any description is recorded and includes a claim, summons, application, judgment,
order, affidavit, witness statement or any other document used in a Court proceeding‟. (Order 1 rule 2)

- This method is useful when parties need to gather documents that contain information related to civil suits or cases

- The civil suits may include cases of breach of contracts, breach of duty of care or negligence, breach of trusts, copyright
infringement and trademarks

- discovery process is provided by Order 24 of Singapore Rules of Court 1996 (RC) and Order 24 of the Malaysian Rules of
Court 2012(RC),
- discovery is only ordered by the court when it is necessary and parties who applied for discovery order must first establish
that the documents requested are in the possession, custody and power of the other party.

- There are also certain court forms provided by Order 24 of RC 2012 which the parties are required to complete when using
this method. The forms are

1) Form 38 (List of Documents),

2) Form 39 (Affidavit verifying List of Documents),

3) Form 40 (Notice to Inspect Documents),

4) Form 41 (Notice to produce documents referred to in pleading or Affidavits) and

5) Form 42 (Notice where documents may be inspected)

- If the party so ordered objects to produce any documents or offers to inspect the documents at an unreasonable time or
place, the Court may on the application and affidavit of the party entitled to inspect the documents make an Order in Form
43 (Order for production of documents and inspection) against the other party

- Order 24 has not been tested on e-discovery cases and very few lawyers are aware of e-discovery.

- any party to any civil cases may apply for discovery if he thinks that there is still an incomplete information or evidence to
prepare his case
- documents which may be ordered to discover are provided by Order 24 rule 3 (4) of the RC 2012. They are as follows:

A. The documents on which the party relies or will rely; and

B. The documents which could: 1) Adversely affect his own case; 2) Adversely affect another party‟s case; or 3)
Support another party‟s case.”

- Order 24 rule 7 provides that the Court may make order for discovery of particular documents.

A. this order is made only after an application for discovery of particular documents is made by any of the parties.

B. The application must state that the documents requested are within the possession, custody and power of the
other party

C. will grant the application only after it satisfies with the grounds of the application provided by the applicant.
- Rule 8A of Order 24 further provides that the party required to give discovery under Order 24 rule 3 or 7 „shall remain
under a duty to continue to give discovery of all documents falling within the ambit of such order until the proceedings in
which the order was made are concluded‟.
- Discovery can also be made against other person before or after the commencement of the proceedings. (Order 24 rule 7A).

A. If it is made before the commencement of the proceedings then originating summons (OS) shall be used but
B. if it is made after the commencement of the proceedings a person who is not a party to the proceedings shall make
the application by using a notice of application (NA).

C. Both the OS and the NA shall be supported by an affidavit. Nevertheless, the Court may reject the application for
discovery if it is amount to fishing expedition or irrelevant request.
Discovery and Inspection of Documents under the Malaysian and English Civil Procedure: A Study on Cases against the Internet
Service Providers

- Discovery or disclosure of document is not defined in the Rules of Court 2012 (RC) or the Civil Procedure Rules 1998 (CPR).

- However, the definition can be referred to several decided cases. According to Menzies J in Mulley v Manifold [1959] 103 CLR
341 at p345,

- “Discovery is a procedure directed towards obtaining a proper examination and determination of these issues - not towards
assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable,
but it is sufficient if it would, or would lead to train of inquiry which would, either advance a party’s own case or damage that
of his adversary.”

- The need to fulfill principles for discovery is also mentioned in Yekambaran Marimuthu v Malayawata Steel Berhad [1994] 2
CLJ 581 at 585

- essential elements for an order for discovery in Order 24 RHC 1980 (previous court rules) 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 person against whom the order for discovery is sought
- parties must ensure that documents listed in the List of Documents (Form 38 of the RC) are in the other parties’ possession,
custody or power and they are not privileged documents. These are the requirements for discovery process
- The purpose of discovery is to provide the parties with all the relevant documentary evidence in each party’s possession and
to avoid trial by ambush or element of surprise.

- section 25 (2) and Para 14 of the Courts of Judicature Act 1964 (CJA). Para 14 expressly requires that these powers are to be
exercised in accordance with any written law or rules of court relating to the same. According to Order 24 rule 3 of the RC
2012, discovery of document is only allowed upon application by any party to the case and after the court making discovery
order.

- The plaintiff or any party who wants to use discovery method must be able to provide a proper list of discoverable and non-
discoverable documents.
A. Discoverable documents refer to documents, which do not contain any confidential information or privileged
information, which are available for production and inspection. These documents should be mentioned in Schedule
1, Part 2 of the List of Documents (see Form 38 of the RC). For documents, which are not in the possession, custody
or power of the party in question they should be mentioned in Schedule 2 of Form 38

- Effect of non compliance with discovery order

- When the court order for discovery of information or document as prescribed under Order 24 rule 12 of the RC 2012, the
party receiving the court order is expected to comply with it.

- If the party fails to comply with it the court may make order that ‘the action be dismissed or order the defence be struck out
and judgment be entered accordingly.’ (Order 24 rule 16 (1)).
- Nevertheless, this court order is subjected to any written law or any rule of law, which allows the party so ordered to withhold
the documents on the ground that the disclosure or production of those documents would be injurious to the public interest.
(Order 24 rule 15)
- The party who receives the court order for discovery is expected to comply with that order. The court may order for action to
be dismissed, or defence be struck out and judgment be entered accordingly if there is a failure to comply with any
requirements for discovery (Order 24 rule16).
 Discovery Basics-Module 1 of 6

- The process of discovery allows the parties to discover information about the facts and allegations involved in litigation. It
enables the parties to narrow and more clearly define the issues that are in dispute and that must be determined by the court.

- Before parties can begin discovery, they must have a discovery conference

- the discovery conference must be held “as soon as practicable” after a case is filed, and its purpose is for the parties to develop
a discovery plan

- The discovery plan must outline when initial disclosures are due, the subjects on which discovery is needed, when discovery
must be completed and whether it should be limited to particular issues.

- There are three types of disclosures that are required

A. Parties must make initial disclosures within 14 days after the discovery conference. Because the parties may not
have had time to fully investigate at this point, they must make the disclosures based upon the information that is
reasonably available to them at that time. If new information comes to light later, the parties must correct the
information with supplemental disclosures.
▪ The names and contact information of each person that the party knows is likely to have discoverable
information about the case and who the party may use to support its claims or defenses, as well as the
subjects of the information that such parties may have;

▪ A copy or description of all documents and tangible things that the party has in its possession, control or
custody that the party may use to support its claims or defenses; and
▪ A computation of each type of damages that the party is claiming, along with access to the documents and
information upon which those calculations are based.
B. Expert Testimony Disclosures - Must disclose identity of expert witness the party use at trial

▪ If paid - must also submit a written report, prepared and signed by the expert witness. This report must
contain six things

• (1) a statement of all the opinions the witness will express and the basis for them; (2) the data and
facts that the expert considered in forming his or her opinion; (3) the exhibits that the expert will
use, if any, to support or summarize his or her opinions at trial; (4) the expert’s qualifications,
including all the expert’s publications within the past 10 years; (5) a list of the cases that the expert
has testified in as an expert witness within the past 4 years; and (6) how much the expert will be
paid for his or her work related to the litigation

▪ If unpaid - expert witness may not have to be disclosed and is not required to produce a written report

C. Pretrial disclosure
▪ the last disclosures to be filed and generally must be filed at least 30 days before trial is set to begin.[18]

▪ These disclosures serve to give the parties an idea of what witnesses are expected to testify, what witnesses
may testify if necessary, witnesses whose testimony a party will seek to submit by deposition, exhibits the
parties expect to use and a list of exhibits the party may use if necessary.[19] Clearly, there is not much of
a trial that is left to surprise in these matters.
▪ Instead, the parties generally know what information, witnesses, and exhibits the opposition will use to
support their case.
▪ After the parties have filed pretrial disclosures, the opposing party has 14 days to file objections to the
presentation of testimony or exhibits that the opposition intends to use at trial. If these objections are not
made, they are waived, unless failure to object is excused by the court for good cause.[20] As Pretrial
disclosures must be made in writing, signed, and served upon the other parties to the litigation
- limitation on discovery
A. only parties to the litigation can seek discovery. Parties can inquire into “any matter not privileged, that is relevant
to the subject matter of the action

B. discovery must be reasonable, court will apply burden benefit analysis - , does the burden on the party from which
the information is being sought outweigh the benefit to the process that the information will provide