Discovery, Interrogation, Affidavits

Order 24: Discovery

  • Discovery is a process that takes effect when an action has commenced, meaning there is a plaintiff and a defendant.

  • It involves the plaintiff and defendant informing each other of documents in their possession, custody, or power that relate to the matter in question.

  • This process can occur at any time during the litigation.

  • The discovery process includes:

    • Disclosure of documents

    • Inspection of documents

    • Production of documents

  • Documents subject to discovery:

    • Those currently or previously in possession, custody, or power (Longhorn v. Shell Petroleum).

    • Documents that relate to the action between the parties.

    • Includes documents that support or damage either party's case (Campania Financier due Pacific v. Peruvian Guano company).

    • Civil procedure does not allow for an element of surprise; all relevant documents must be disclosed.

  • Discovery by order of the court:

    • A party can apply to the court via notice of application for discovery of documents (Order 24 Rule 3).

    • Must make and serve a list of required documents and file an affidavit verifying the list.

    • The court determines the necessity of the discovery before issuing an order (Order 24 Rule 4).

    • The court will only grant an order for discovery if it is deemed necessary (Order 24 Rule 8).

  • Requesting a particular document (Order 24 Rule 7):

    • If a party requires a specific document after the initial list has been provided, they can apply to the court.

    • This is an interparty application, requiring notice supported by an affidavit.

    • The party must convince the court that the specific document is necessary to enhance or prove their case.

  • Inspecting Documents (Order 24 Rule 10):

    • A party can serve a notice (Form 41) on the other party to produce required documents for inspection and copying.

    • The other party must then serve a notice in Form 42 within four days.

  • Serving a list of documents:

    • A list of documents must be served in Form 38, as per Rule 2 sub-rule 1 and Rule 5.

    • Form 40 will specify the time and place for inspection.

    • Form 38 contains:

      • Schedule one: List of documents in the party's possession, not objected to for production.

      • Part two: List of documents which one party objects to being produced.

      • Schedule two: List of documents which have been, but are not now, in the possession of the parties.

  • Claiming Privilege:

    • If a party claims privilege over a document, it must be stated in the list with a sufficient explanation of the grounds for privilege (Rule 5 sub-rule 2).

    • An affidavit must verify the list of documents (Form 39).

  • Non-Compliance:

    • Failure to properly paginate the list of documents as required by Rule 5 sub-rule 4 may preclude the party from tendering the documents at trial unless they obtain leave of the court (Rule 5 sub-rule 5).

  • Incomplete List:

    • If a party believes the list is incomplete, they can request the other party to make an affidavit to verify the list on oath (Form 39).

  • Failure to Make Discovery:

    • The court has wide discretionary powers (Order 24 Rule 16) and can:

      • Dismiss the plaintiff's action if the plaintiff fails to make discovery.

      • Strike out the defendant's defense if the defendant fails to make discovery.

      • Give judgment to the plaintiff in default of discovery by the defendant.

  • Concealing Documents:

    • If a party feels the opposing party is concealing documents, they can ask the other party to verify the list in Form 39 on oath.

    • If the opposing party brings out a new document, Rule 5 sub-rule 5 can be invoked, but leave of court is required.

  • Discovery and Pretrial Case Management:

    • The discovery process can take place during pretrial case management.

Order 24 Rule 7A

  • Allows for discovery against a non-party.

  • Discovery is a process, which takes place between plaintiff and defendant but, There can be certain documents which is in possession of another party

  • Order 24 rule seven a actually is a development or an extension that has come, right, from, our common law in England where they actually, came up, right, or devised certain, exception. Right? Certain exception to the general principle

  • Common Law Exception (Norwich Pharmacol):

    • Historically, discovery was only allowed between parties to a suit.

    • The Norwich Pharmacol case established an exception: a person who voluntarily or innocently facilitated wrongdoing could be subject to discovery, even if not a party to the suit.

    • This exception was restricted to actions in tort (First Malaysian Finance v. Latul Mohamad).

  • Order 24 Rule 7A (Current Practice):

    • Provides a mechanism for discovery against a non-party.

  • Typical Scenario:

    • A patient wants to sue a hospital but needs documents to determine the cause of action.

    • A beneficiary needs documents from a trust body to ascertain why they are not receiving benefits.

  • Order 24 Rule 7A can be done before commencement of a proceeding and by a person who is not a party to a proceeding that if if, let's say, action already been commenced.

  • Mode of Application depends on whether the action has commenced:

    • Action Commenced: Notice of application supported by affidavit.

    • Action Not Commenced: Originating Summons (OS) supported by affidavit.

  • Affidavit Requirements:

    • Specify the documents sought.

    • Show the documents are relevant.

    • Identify likely parties to the proceeding.

    • Demonstrate the person against whom the order is sought likely possesses the documents.

  • Rule 8 Still Applies:

    • Order 24 Rule 7A is subject to Rule 8; the court must be convinced the document is necessary.

  • Fishing Expedition Not Allowed:

    • Should not be used as a fishing expedition (Ahmad Zahri Mizra v. PricewaterhouseCoopers).

    • A mere hunch is not sufficient (On Commodities).

Privilege Documents and Evidence Act

  • Privileged documents are protected under the Evidence Act (Section 121 - 131).

    • Affairs of state.

    • Legal professional communication (Sharikat Ginseng Supermarket v. United Continental Insurance).

    • Focus on Section 123 and 126 of the Evidence Act.

Order 26: Interrogatories

  • Interrogatories are a type of discovery, specifically the discovery of facts (Mahon v. Osborne).

  • These are questions put to the other party with leave of court, which they are duty-bound to answer under oath (via affidavit).

  • Questions must relate to matters that support the questioner's case or destroy the deponent's case.

  • Distinction from Order 24:

    • Order 24 covers documents and can include information that damages one's own case.

    • Order 26 aims to strengthen one's own case and weaken the opponent's.

  • Court's Power (Order 26, Rule 1 Rule 1 Sub Rule 1A):

    • The court can grant an order for leave to serve interrogatories relating to any matter in question and require the other person to answer.

  • Application Process:

    • Application for leave of court is typically done after the close of pleadings and after discovery.

    • It involves a notice of application (Form 44) supported by an affidavit.

    • Interrogatories (questions) must be in Form 45 and served.

      • If the order is made, it will be made in form number 46, and it must be served on the other party

  • Interrogatories can be done without leave of court any time before the close of pleadings.

  • Question Guidelines:

    • Questions should be concise, precise, and clear.

  • The court exercises discretion based on relevance and necessity.

  • Relevance: (Hennessy vs Wright) The questions must relate to the matter in issue between the parties to prove the case or attack opponents' case. Even seeking admissions such as your case of Sheik Abdullah

  • Questions pertaining solely to the credit of party are not allowed. Fishing expeditions are also prohibited.

  • Necessity (Order 26, Rule 3):

    • Questions must be necessary to dispose fairly of the cause or matter or to save costs.

    • If notice to admit, under Order 27, Rule 2, has been utilized, then interrogatories will not be entertained.

  • RMC vs. RMC considerations of the court include is the question relevant, does it help either party and it help establish facts or call witnesses

  • Interrogatories against Corporations or Societies:

    • The court can order leave to serve interrogatories on a corporate body (Order 26, Rule 3).

  • Objections:

    • The other party can object on grounds of relevance, necessity, fishing expedition, seeking evidence rather than facts, privilege, or oppressiveness.

    • You can look at your case of Portobohan, Brita National Malaysia against Steven Kalong Minkan.

  • Answering Interrogatories:

    • Answers must be provided via affidavit (Form 47) within the prescribed time period via rule 1 subrule 6.

    • Answers should be concrete and provided to the best of knowledge, information, and belief.

    • A party can refuse to answer on grounds of privilege (Reference Rule 5).

  • Failure to Comply (Order 26, Rule 7) consequences such as dismissals, etc. that the court can take:

    • Same as discovery (Order 24).

    • Dismissal of the Plaintiff’s case.

    • Striking out the defence.

    • Entering judgement for the Plaintiff.

    • Contempt of Court.

Order 41: Affidavits

  • An affidavit is a sworn statement by a deponent before a commissioner of oaths, with the contents known to the deponent.

  • Exception to oral evidence, affidavit allows applications to be heard without oral evidence

  • r1 - must state the title of action deponents name, occupation. All these requirements stated in rule one

  • Hearsay:

    • Hearsay evidence can be stated if the source of the information and the grounds for belief are also stated.

    • [Dynacast v Lim] show source of information belief should be states or it becomes inadmissible

    • Faulty signature would make affidavit inadmissible.

  • What's Included:

    • Drafting out an affidavit.

    • Depositing, affirming Before and after Filing.

  • Affidavit should be confirmed through knowledgeable facts by the deponent for proving it.

  • Rule 2:

    • In affidavit is made by 2 deponents inserted in Jurat

  • Rule 3:

    • If the deponent is illiterate, blind oath state, Jurat must state, affidavit was read in presence of Commission Oath.

      [Mohan v Sepang Omnibus]

  • Rule 4:

    • Use of defective affidavit

    • required with [Utama Merchant Bank v Dato Mohd Nadzmi] they Said effects part affidavit will. Become admissible.

  • Rule 5:

    • Contents in, interlocutory proceedings, may contain statement of from agent with source stated [Dynacast v Lim] scandalous the court can order to be struck out but if there's allegation court strike can strike out

  • Rule 7:

    • Alterations

  • Rule 8:

    • Affidavit, solicitor, independent the better

  • Rule 11:

    • Exhibits used in conjunction with the affidavit must be annexed to it by Commissioner of Oaths.

  • Rules 12 through 13:

    • Language what is admissible in common wealth if it's not English.

  • Order 32:

    • Rules 13 can READ. But case lost more interesting