Hafiz Zubir, Athirah & Co.

HOW DO I SUE SOMEBODY WHEN I DON’T HAVE ENOUGH DOCUMENTS TO PROVE MY CASE! WHAT SHOULD I DO?!

Someone came to you and asked you to be his lawyer to sue a hospital for negligently causing him to now leave only one leg. However, he couldn’t bring enough evidence as he claimed all documents were in the possession of the hospital. Will you still proceed with filing Writ and Statement of Claim against the Hospital without naming the correct wrongdoer(s) or advise your client to go and find another lawyer?

Fret not as the Rules of Courts 2012 has given the answer for the above problem. Order 24 Rule 7A allows any parties to file an action called ‘pre-action discovery’ to obtain and/or gather as much as needed documents prior to commencing a suit. Not limited to that, the purpose of filing pre-action discovery is also to identify and/or to make sure that you are suing the right wrongdoer(s).

So, what are the legal requirements of pre-action discovery? In the case of Yekambaran Marimuthu v. Malayawata Steel Berhad [1994] 2 CLJ 581, the Court had laid down several requirements that must be met before filing a pre-action discovery which are:-

“The essential elements for an order for discovery 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 party against whom the order for discovery is sought.”

The same case above had explained that the word ‘relevant’ refers to and is limited to only documents which are related to the factual issues in dispute. To obtain documents that are not relevant to the factual issues in dispute will be considered as ‘fishing expedition’ which the Court would never allow application of pre-action of discovery if it is for this purpose.

If the Court allows pre-discovery application, the Court may give an order at any time to a party against the application was made, to give discovery by making and serving any other party a list of documents which are or have been in his possession, custody or power. The Court also may order him to make and file affidavit verifying such list and to serve a copy thereof to the other party. (refer to case of Tey Por Yee & Anor Protasco Bhd [2021] 1 MLJ 76). The said affidavit verifying such list can be found in Form 39 of the Rules of Court 2012.

To conclude, Order 24 Rule 7A is an amendment to ensure that parties are suing the right wrongdoer(s) in the main suit as discovery proceeding allows party who filed discovery proceeding to obtain and gather all documents that are only relevant to their main suit which will be filed in the future. Note that the word ‘only’ is emphasized strictly as Courts would never allow any parties to obtain documents that are not relevant to their case. Usually, the court will ask the party who filed pre-action discovery to list down and/or define what documents that are considered as relevant to their case. Bear in mind, that until now the court had never allowed discovery application for the purpose of ‘fishing expedition’. Even if a party put ‘…other documents’ or ‘…other relief’ in the prayers of the application, those prayers must still be within the definition of ‘relevant document’ in connection to the main suit which will be filed in future.

 

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