1. Governed by Order 24 Rule 7 of the Rules of Court 2012
Order 24 Rule 7 of the Rules of Court 2012 (“ROC 2012”) provides the following:
“(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.
(2) An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 3.
(3) An application for an order under this rule shall be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application, and that it falls within one of the following descriptions:
(a) a document on which the party relies or will rely;
(b) a document which could—
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) a document which may lead the party seeking discovery of it to a series of inquiry resulting in his obtaining information which may—
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case.
(4) An order under this rule shall not be made in any cause or matter in respect of any party before an order under rule 3 has first been obtained in respect of that party, unless, in the opinion of the Court, the order is necessary or desirable.”
2. Has to satisfy the trite test
In N2N Connect Bhd & Ors v Chua Tiong Hoong & Ors [2025] MLJU 847 (“N2N”), the Court of Appeal:
“It is trite law that the Court has a discretion to grant discovery pursuant to any of the limbs under Order 24 ROC 2102 where a party is able to, inter alia, establish the fact that the documents were in the other party’s possession, that these documents are relevant and necessary for the fair and economic disposal of the legal proceedings.”[1] (Emphasis ours)
The Court of Appeal in N2N also held that one of the guiding principles for discovery applications is that the “failure of the opposing party to disclose the documents will prejudice and harm the interest of the applicant for a fair trial.”[2]
Pursuant to Order 24 Rule 8 of the ROC 2012, discovery will be ordered only if the Court is satisfied it is necessary:
“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. The threshold is high but lower than that of pre-action discovery
This was expressly recognised by the Court of Appeal in Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 Jmb [2018] MLJU 697:
“The threshold test to satisfy the court to obtain an order for discovery is low in contrast to pre-action discovery. The threshold test for discovery by itself is high and was explained in a number of cases”[3]
4. Even if voluminous documents are sought, this is not a deterrent
In N2N, the Court of Appeal relied on the Federal Court’s decision in Faber Merlin Malaysia Bhd v Ban Guan Sdn Bhd [1981] 1 MLJ 105 in support of this proposition:
“The voluminous documents sought should not be a ground to deter the granting of an order for discovery (see Faber Merlin Malaysia Bhd v Ban Guan Sdn Bhd [1981] 1 MLJ 105).”[4]
5. Documents subject to litigation privilege ought to be protected from discovery
In Wang Han Lin & Ors v HSBC Bank Malaysia Berhad [2017] MLJU 1075, a decision of Nallini Pathmanathan JCA (now FCJ), the Court of Appeal agreed with the High Court that the confidential investigation report being sought therein could not be disclosed at it was subject to litigation privilege:
“If indeed a third party prepared a document at the behest of a solicitor or his client with litigation being reasonably in prospect, and the dominant purpose being for litigation, then litigation privilege may well come into play. However the test has to be applied narrowly, so that the ultimate purpose of litigation, namely to ascertain the truth (or approximating the truth) is upheld.
…
We have reviewed the facts of the case and concluded that the learned Judge cannot be said to have erred in principle in arriving at his decision. It was not unreasonable of him to conclude that the confidential investigation report was prepared by the plaintiff with a reasonable prospect of litigation on their minds. In point of fact it was to ascertain the identity of the parties who were responsible for the fraudulent double dealing of the subject properties that the investigation and report were commissioned by the legal department. This satisfies the first limb of the two-fold test. The dominant purpose for commissioning the report was also for litigation. Both limbs of the test are satisfied.
… That is the nub of litigation privilege and the doctrine ought not to be abrogated for so long as we practice adversarial litigation.”
[1] N2N Connect Bhd & Ors v Chua Tiong Hoong & Ors [2025] MLJU 847 (CA), at para 33
[2] N2N Connect Bhd & Ors v Chua Tiong Hoong & Ors [2025] MLJU 847 (CA), at para 38
[3] Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 Jmb [2018] MLJU 697 (CA), at para 11
[4] N2N Connect Bhd & Ors v Chua Tiong Hoong & Ors [2025] MLJU 847 (CA), at para 41(g)