CHAPTER 6: PRE TRIAL PROCEDURE: DISCOVERY, INTERROGATORIES & PRE-TRIAL CASE

MANAGEMENT

PRE-TRIAL PROCEDURE

1) The process/procedure begins after the close of pleadings and includes –

 discovery and inspection of documents – O24 ROC
 interrogatories – O26 ROC
 case management – O34 ROC
2) Pre-trial procedure enables the parties to the action to –
 ascertain all the material facts constituting the case;
 speed up the action through directions from the court.
3) The rationale behind it, is that for every party to an action is entitled to know beforehand
what case he has to meet at the trial.

DISCOVERY- O24 ROC

1) Compagnie Financiere du Pacifique v Peruvian Guano Co

 The documents to be produced are not confined to those which would be evidence
either to prove or to disprove any matter in question in the action;… It seems to me
that every document relates to the matters in question in the action, which not only
would be evidence upon any issue, but also which, it is reasonable to suppose,
contains information which may – not which must – either directly or indirectly
enable the party requiring the affidavit either to advance his own case or to damage
the case of his adversary.
2) Riddick v Thames Board Mills Ltd
 ‘[A] party who seeks discovery of documents gets it on condition that he will make
use of them only for the purposes of that action, and no other purpose.
3) GR: Discovery is only allowed against parties to the proceedings ad not against third parties-
Burchard v Macfarlane
4) Exception: The principle of Norwich Pharmacal
 Norwich Pharmacal Co v Commissioners of Customs & Excise
i. A person, albeit innocently and without incurring any personal liability,
became involved in the tortious act of others he became under duty to assist
one injured by those acts by giving him full information by way of discovery
and disclosing the identity of the wrong doers
ii. Prima facie, the respondents (strangers) were under a duty to disclose the
information sought.
iii. A party could bring a specific action by writ against a person for discovery of
the name of a potential defendant if that person has facilitated the
wrongdoing of the potential defendant and has the necessary information.
 First Malaysia Finance Bhd v Dato Mohd Fathi bin HA
i. To the general rule, there is an exception that if, through no fault of his own,
a person gets mixed up in the tortious acts of others so as to facilitate their
wrongdoing, whilst he may incur no personal liability, he is under a legal
duty to assist the person who had been wronged by giving him full
information and in making disclosure of the identity of the wrongdoers.

1
 ii. A Norwich Pharmacal order being an equitable remedy will not be granted
as of right even when the requirements are satisfied and the court has
discretion as to whether to grant or refuse it.
5) Process of Discovery
 Disclosure
i. O24 R3 ROC 2012
 inspection and taking of copies
i. O24 R9-10 ROC
 Production
i. O24 R11-14 ROC
6) Party may refused to produce the documents for inspection
 The evidence will discloses his own case
i. Patch v United Bristol Hospitals Board (1959) 1 WLR 955
o Written statements made before any claim has been made, or even
adumbrated, are privileged from discovery if they are made in
anticipation of any claim which may be made.
 Private and confidential communication between him and his legal adviser
 Public official documents-if disclose would be injurious to public-O24 R15 ROC 2012
 Denies the possession of the document
7) Privileges documents whereby discovery of these documents are not allowed:-
 Evidence Act 1950
i. Sec 121-132
 Government Proceedings Act 1956
i. Sec 36
8) What documents are subject to Discovery?
 O24 R 3 (4) ROC
 Lonrho Ltd v Shell
i. If a document is within the power of the person to produce it will also come
within this rule provided he has a presently enforceable legal right to obtain
from whoever actually holds the document for inspection of it without the
need to obtain the consent of anyone else.
 Notice to produce-O24 R10 ROC 2012
 Failure to make Discovery-O24 R16 ROC

INTERROGATORIES- O26

1) What?
 Interrogatories are written questions submitted to a party by another party.
 The party receiving the interrogatories must submit answers made on oath.
 In short, interrogatories allow one party to administer a series of question to the
other, and compel that other to answer them on oath before trial.
2) Power of Court to Order Interrogatories
 O26 R1 & Form 44
3) Application
 Normally after close of pleadings and after Discovery.
4) The questions
 O26 R 1 (3),(4) ROC
5) Discretion of the Court

2
  Pertubuhan Berita Nasional Malaysia v Stephen Kalong Ningkan
i. The court has an undoubted discretion to grant or refuse interrogatories but
in the exercise of its discretion, will give leave to such as necessary for
disposing fairly the action of for saving cost.
 Sheikh Abdullah bin Sheikh Mohamed v Kang Kock Seng
i. Pleadings have closed, no reason given for lateness-court rejected.
 Philip Hoalim v Amalgamated Theaters
i. Court has a duty to ensure oppressive documents or interrogatives or parts
thereof are struck off.
6) Admissions- O27 ROC 2012
 Through pleadings or in answer in interrogatories
 Agreement by parties
 Notice
 Facts
 Documents in notice
7) Admissions cases
 Malayan Banking Bhd v Foo See Moi
i. It is settled law that letters written without prejudice are inadmissible in
evidence of the negotiations attempted. This is in order not to fetter but to
enlarge the scope of negotiations, so that a solution acceptable to both sides
can easily be reached.
 Yeo Hiap Seng v Australian Food Corp. Pte Ltd & Anor
i. The second defendant can only succeed in her application if she could show
that she was entitled to claim the privilege. As the second defendant took
no part in the ‘without prejudice’ negotiations, either personally or through
an agent, she could not claim privilege.

BUNDLE OF AGREED DOCUMENTS – O34

1) Practice Direction requires, in addition to O34:

 An agreed bundle of documents
 Non-agreed bundle of documents
 An agreed statements of facts
2) Henry Trading Co Ltd v Harun
 Where there is an agreed bundle of documents there is no need to prove these
documents. The rule is too well established in law to be doubted.
3) Yap Choo Hoo v Tahir bin Yasin & Anor
 “I am not prepared to subscribe to the view that once a document forms part of the
agreed bundle of documents it automatically proves itself without any formal
production of the original or a copy thereof and without any witness tendering
tendering it or producing it in court. If it were not so, it would be against all concepts
of justice…”
4) Borneo Co (M) Sdn Bhd v Penang Port Commission
 Followed Henry Trading Co.

PRE-TRIAL CASE MANAGEMENT – O34

1) Preliminary cross-examination and interrogatories

 O34 ROC 2012

3
  O26 R8 ROC 2012
2) Bisi AK Jinggot v Superintendent of Lands and Surveys Kuching Division
 Endorsed preliminary cross examinations. Denied appellant counsel’s argument that
cross examination procedure by way of preliminary cross examination was not done
in accordance with established procedure. Non-issue because parties have agreed to
the mode of trial.
3) Application:-
 O34 R1 ROC
4) Attendance of parties in pre-trial Case management
 O34 R2 (See O34 R2 (2) –Directions from Court.
 O34 R3 ROC-Notice
 O34 R4 ROC – Attendance
 O34 R6-Failure to attend.