1. Governed by Order 24 Rule 7A of the Rules of Court 2012
Order 24 Rule 7A of the Rules of Court 2012 (“ROC 2012”) provides the following:
“(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons.
(2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by a notice of application, which shall be served on that person personally and on every party to the proceedings.
(3) An originating summons under paragraph (1) or a notice of application under paragraph (2) shall be supported by an affidavit which shall—
(a) in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and
(b) in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.
(4) A copy of the supporting affidavit shall be served with the originating summons or the notice of application on every person on whom the originating summons or the notice of application is required to be served.
(5) An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order, and on such terms as it thinks just.
(6) An order for the discovery of documents may—
(a) be made conditional on the applicant giving security for the costs of the person against whom it is made or on such other terms, if any, as the Court thinks just; and
(b) require the person against whom the order is made to make an affidavit stating whether the documents specified or described in the order are, or at any time have been, in his possession, custody or power and, if not then in his possession, custody or power, when he parted with them and what has become of them.
(7) A person shall not be compelled by such an order to produce any document which he could not be compelled to produce—
(a) in the case of an originating summons under paragraph (1), if the subsequent proceedings had already been commenced; or
(b) in the case of a notice of application under paragraph (2), if he had been served with a subpoena to produce documents at the trial.
(8) For the purposes of rules 10 and 11, an application for an order under this rule shall be treated as a cause or matter between the applicant and the person against whom the order is sought.
(9) Unless the Court orders otherwise, where an application is made in accordance with this rule for an order, the person against whom the order is sought shall be entitled to his costs of the application, and of complying with any order made thereon on an indemnity basis.”
2. Discovery will be ordered only if the Court is satisfied it is necessary
This is provided for under Order 24 Rule 8 of the ROC 2012:
“On the hearing of an application for an order under rule 3, 7 or 7A, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or adjourn the application and shall in any case refuse to make such an order if and so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.”
3. Whole intent is saving of costs, resources, time
Mary Lim JCA (later FCJ) expressed this in Infoline Sdn Bhd (sued as trustee of Tee Keong Family Trust) v Benjamin Lim Keong Hoe [2017] 6 MLJ 363 (“Infoline”):
“… we are of the view that the whole intent behind O 24 r 7A is the saving of costs, resources and time if early discovery is ordered, in fact ordered even before proceedings are commenced. If discovery reveals that the applicant’s concerns are unfounded, that in this case the respondent’s termination or cessation as a beneficiary is proper and in accord with the terms of the trust deed, litigation can largely be avoided. This obviously means saving of both time and costs. We further agree with the observations of the Court of Appeal in Dorsey James Michael that even if litigation is unavoidable, there may still be savings of time and costs if the exercise helps in identifying the real issues, whether existing or anticipated.
…
And, if the information revealed from that discovery can determine or assist in reaching an answer to that predicament, then the order ought to be made. Such an approach is not only fair but sensible and practical as it can obviously avoid unnecessary litigation thus saving costs and preventing wastage of time and resources which is what pre-action discovery seeks to achieve.”[1] (Emphasis ours)
4. The documents sought must be specified or sufficiently described
This was recognised by the Court of Appeal in Infoline, wherein the applicant sought for the discovery of a trust deed and other trust documents related to the Tee Keong Family Trust[2]:
“… the documents must be specified or sufficiently described. All this is for practical purposes so that the order is capable of response and compliance from and by the defendant who is the appellant before us.”[3]
5. Three counter-constraints must be considered
These counter-constraints were laid out by the Court of Appeal in Infoline:
“We also agree with the Court of Appeal [in Dorsey James Michael] that in determining whether an application ought to be allowed, three counter-constraints must be considered: the problem of ‘fishing’; non-parties’ reasonable explanation in maintaining confidentiality and privacy; and the danger that judicially administered orders for pre-action discovery can have the untoward effect of increasing the costs of dispute resolution as courts should not be seen as encouraging satellite litigation on claims that have not and/or may not be commence.”[4] (Emphasis ours)
With regard to the second counter-constraint, Mary Lim JCA (later FCJ) held in Infoline that “safeguards and limited or redacted disclosures may … be imposed.”[5]
[1] Infoline Sdn Bhd (sued as trustee of Tee Keong Family Trust) v Benjamin Lim Keong Hoe [2017] 6 MLJ 363 (CA), at paras 36 & 42
[2] Infoline Sdn Bhd (sued as trustee of Tee Keong Family Trust) v Benjamin Lim Keong Hoe [2017] 6 MLJ 363 (CA), at para 49
[3] Infoline Sdn Bhd (sued as trustee of Tee Keong Family Trust) v Benjamin Lim Keong Hoe [2017] 6 MLJ 363 (CA), at para 38
[4] Infoline Sdn Bhd (sued as trustee of Tee Keong Family Trust) v Benjamin Lim Keong Hoe [2017] 6 MLJ 363 (CA), at para 36
[5] Infoline Sdn Bhd (sued as trustee of Tee Keong Family Trust) v Benjamin Lim Keong Hoe [2017] 6 MLJ 363 (CA), at para 43