PREPARATION FOR TRIAL (Pre Trial

Procedure) & GATHERING OF EVIDENCE

DISCOVERY
INTERROGATORIES
ADMISSION
ANTON PILLER
 WHY?
• For the purpose of preparing for the trial
and obtaining a final judgment
– To know and to ascertain the nature of the case
– To support own case
– To narrow the points in issue
– To avoid proving admitted facts
 DISCOVERY
• A process whereby a party is able to obtain from
the opposite party; answers on oath to questions as
to the facts (Discovery of facts ;Interrogatories)
and to obtain information as to, and production of
the documents relevant to the dispute (Discovery
as to documents).
• In brief – process of finding out material facts and
document from an adversary
 Functions
• To provide parties with relevant
documentary materials before trial so that
the strength or weakness of your case and
the other party could be appraised.
• To provide fair disposal of the proceedings
• To eliminate the element of surprise at or
before the trial
 Discovery of Documents; O.24

• Disclosure ; a list of documents is given

• Inspection and taking of copies of documents; and
• Production of the documents
Discovery of documents involves the disclosure and
inspection by one party to another, to inspect the
documents in the possession, custody and power of
another party
 Type of Discovery
1. Discovery by order of the court
(Previosly two types; i) Mutual Discovery of
documents (Automatic Discovery) after the
close of pleadings and ii) Discovery by the court
order.
(After the amendment; must be directed by the
court and usually will be dealt with at the first
case management stage.)
 ….continued
• However the court may on the application of a party to any
cause or matter at any stage, order to make and serve on
any other party a list of documents which are or have been
in his possession, custody or power. (O.24 r.3(1))

• Not as a matter of right; in the court’s discretion

• Ordered; If it is necessary either for disposing fairly the
action or for saving of costs.
 Documents that may be ordered to
discover….
• O.24 r 3 (4)
• a) the doc that the party relies;
• b) the doc which could –
• Adversely affect his own case
• Adversely affect another party’s case, or
• Support another party’ case
 Form of list and affidavit
• O.24 r 5
– List of Doc- F.38
– Shall enumerate the doc in a convenient order and as shortly as
possible but describing each of them
– In case of bundle of doc in the same nature, each bundle,
sufficiently to enable it to be identified
– Affidavit verifying list of doc- F.39

– If a party claim that any documents are privileged from

production, the claim must be made in the list of documents.
 Form 38
Two Schedules: Schedule 1(Part 1 & 2) and 2
• Sch 1 Part 1- list documents which are in his
possession, custody and power, and willing to
produce for inspection;
• Sch 1 Part 2- list documents which are in his
possession, custody and power, but refuse
inspection by the other party.
• Sch 2 - List of documents which were once in his
possession but no longer.
 ….
• O.24 r.5 (4)
– Unless otherwise agreed by the parties, a party preparing his list of
doc shall cause to be bound and paginated all documents in Sch 1
Part 1 to be intituled “List of Documents” and shall file and serve
…
– …the doc shall be deemed to have been inspected.

– O. 24 r.5 (5)
– Non-compliance with para (4) shall preclude the party aforesaid
from tendering any such doc at the trial, save an except by the
leave of the court
 What next?
• Once disclosure in the form of list of
document has been made and served, the
next stage will be the Inspection of
documents referred to in list under O.24 r 9
 Inspection; O.24 r 9
• A party who has served a list of documents
on any other party must allow the other
party to inspect the documents referred to in
the list and to take copies thereof.
• When serving the list the party must serve
also a notice in form 40 stating a time &
place within 7 days after the service at
which the document may be inspected.
 Order for inspection – when made?
• 3 circumstances under O24 r 11
– If the party fails to serve the notice when serving the list
of documents under r 9;
– If he objects to produce any documents for inspections;
– Offers inspection but at the time which the court thinks is
unreasonable.
The court, upon application by the other party, may make
order for production for inspection. The application
must be supported with an affidavit (O.24 r 11 (3)-
specifying or describing the doc and stating the belief that they are in the
possession , custody or power of the other party and they relate to a matter
in question
 Inspection; 24 r.10
• Doc referred to in pleadings and affidavit
• may serve a notice in F.41 ;
– To produce the doc for inspection
– To permit him to take copies of that doc
The party on whose the doc was served must within 4 days
after service of the notice, serve on the party F.42 -stating
a time within 7 days when/where the doc may be
inspected
-stating which doc he object to produce and on what ground.
 Discovery of particular documents
O.24 r.7
• On application of any party, ct may require the other party
to make an affidavit stating whether the doc specified is in
his possession or if not when he parted with it and what
has become of it
• Can be made notwithstanding that he have been required
to make a list of doc under r.3
• Notice of application and affidavit
• An order shall not be made before an order under r.3,
unless in the opinion of the court it is necessary
 General Rules
• Discovery is only allowed to be made
between parties to the actions
 Issue…

• What if a document you want is within the

custody or possession of a stranger, not a
party to the action?
 Answer

• Subpoenea as witness to give evidence and

produce the document at the trial.
 Exception;O.24 r.7A
• Allowed for the purpose of or with a view
to identifying possible parties to the
proceeding
 ….cases
The principle was laid down in Norwich
Pharmacal Co v Commissioners of Customs
& Excise (1974) AC 133 …. has been
applied by the Malaysian Supreme court in
the case of First Malaysia Finance Bhd v
Dato’ Mohd Fathi b Haji Ahmad [1993] 2
MLJ 497.
 held

• Discovery to find the identity of the wrong

doer is available against anyone whom the
plaintiff has a cause of action in relation to
the same wrong.
• Note: the order is not available if the
identity of the wrong doer is already known
 Privileged Documents
• Certain classes of doc, though they must be disclosed as
relating to matters in question are, however privileged
from production
• Under Evidence Act 1950, the docs under S.121, S.122,
S.123, S.124, S.124, S.125, S.126, S.127, S.128, S. 129,
S.130, S.131 and S.132 are classified as privileged
• S.36, Gov Proceedings Act 1956, also refers to documents
of “affairs of state” and “public interest” which are
privileged (S.123)
 …case
• B.A Rao v. Sapuran Kaur 1978,2 MLJ 146;
The issue; whether the medical report is privileged under
S.123 EA
Raja Azlan Shah (FJ,)
…the court will decide whether the doc is privileged. Not
every doc is “affairs of state”. Only certain doc such as
military secrets, international affairs, cabinet docs, or
departmental policy doc can be considered as privileged
under “affairs of state”
 Order for production to court;
O.24 r.12
• The court may order any party to produce to
the court any doc relevant to the case.
• Ct may deal with the doc in such manner as
it thinks fit
 O.24 r.13
• Order for production; only if it is necessary
• Privilege or objection on any other grounds,
ct may inspect the doc to decide whether
the objection is valid
 Effect of non-compliance
• O.24 r 16
• 1)The Court may make the following order:
– Dismiss the action upon application by the defendant if
the plaintiff fail to comply
– Strike out the defence if defendant fail to comply and
plaintiff to enter judgment in default of defence.

5) May not rely on that doc unless with the court’s leave
 Revocation and variation of
orders; O.24 r.17
• Ct may vary or revoke any order given if
sufficient cause is shown for variation or
revocation
 DISCOVERY BY
INTERROGATORIES

O.26 RHC
 Meaning of interrogatories
• Are questions in written form posed by one
party to another for the purpose of seeking
information concerning issues in the case.
• A set or series of question about the case
served by one party to the other, requiring
the other party to give answer under oath
usually by affidavit
 ..continued
• Mahon v Osborne (1939) 2 KB 14
• “Also known as Discovery of fact”
• “They are questions served by one party, with
leave of the court to the other who has to answer
under oath, usually by an affidavit and the
questions may relate to any matter which support
the interrogator’s case or to impeach his
opponent’s case.”
 How made?
• 1) With leave

• 2) Without leave
– O.26 r.2; at any time before the close of
pleadings
 With leave
• O.26 r.1;
• Application for leave ;
1)F.44;
a) to serve interrogatories
b) to require the other party To answer
the interrogatories on affidavit within
such period not less than 14 days from
the date of service of interrogatories
2)A copy of the proposed interrogatories in F.45
 …Continued
• If an order is made, it must be in F. 46 and
must be served on the other party

• Interrogatories must be answered in F.47

within the time specified in the order
When should leave be given and
interrogatories allowed?

On two basis:
1. When the court considers the interrogatories
are necessary for disposing the matter fairly; or
2. For saving costs.

-a proposed interrogatory which does not relate to

a matter in question will be disallowed
 What should the court consider?
• The court will take into account
– any offer made by the party to give particulars or
– Made any admission or
– Produced pertinent documents
-whether interrogatories without order has been
administered

(Court’s discretion; i) relevance ii) Necessity)

 Interrogatories against corporations,
partnership firm, society, etc

• O.26 r 3
• Court may make an order allowing the applicant to serve
the interrogatories on such officer or member of the body
specified in the order. For e.g;
– Corporations: service is on the secretary or director
– Partneship ; individual partner or firm
– Societies; “public officer” or any office bearer
Statement as to party required to answer

• O.26 r.4
• Where the interrogatories are to be served on two
or more parties or are required to be answered by
agent or servant of a party, a note at the end of
interrogatories shall state which of interrogatories
each party or, as the case may be, an agent or
servant is required to answer, and which agent or
servant.
 Objection to answer
• Can object on the following;
• 1) Not relevant
• 2) Not necessary
• 3) Fishing
• 4) Evidence, not facts
• 5) Oppressive , scandalous and serve no purpose
• 6)Privilege
• 7) Premature
 …continued
• O. 26 r 5
• Where a person objects to answering any
interrogatory on the ground of privilege he
may take the objection in his affidavit
 Insufficient answer
• O.26.r 6
• Ct may make an order requiring the party to make
a further answer by affidavit or oral examination
as the court may direct.
• If without leave; may ask for further and better
particulars of the answer given
 Effect of Non- compliance
• O.26 r 7
• 1) Dismissal of the action, if Pl defaults, or
• 2) Striking out defence and judgment for Pl, or
• 3) committal to prison for contempt: if the party fails to
comply with the order, or
• 4) commital of the solicitor: if the solicitor fails to inform
his client of the order for him to answer the interrogatories.
ADMISSIONS

O.27 RHC
 ADMISSIONS?
• Admissions are statement in pleadings or otherwise in
writing which admit the truth of the whole or part of the
action.
• Admission save costs and time as the facts which are
admitted need not be proved. (S.58 Evidence Act 1950)
• The admission made must be clear, unambigious, and
voluntary
• If the admission is made subject to a condition, then it
must be accepted subject to that condition (S.23 Evidence
Act 1950)
 Admission – How made?
• O.27 r 2
• A party may, not later than 14 days after the action is set
down for trial, issue a notice in Form 48 asking the other
party to admit the facts specified in the notice
• The admission can be used for that action only
• The other party may then admit the facts in Form 49. If he
does not admit he will bear the cost of proving the facts.
• The court may at any time, allow any party to amend or
withdraw any admission made if it is just
 Judgment on admission of fact
• O.27 r 3
• After obtaining admission, the party may apply to
the court by notice of application for judgment for
the claims that have been admitted without
waiting for the determination of any other
question between parties,
• If the court think just, may give the judgment,
 Admission and production of
documents – O.27 r 4
• This Order refers to the admission of
documents listed under the discovery
process.
• The rules says that any documents described
as original document in the list are deemed
to be admitted as original documents and
any documents described as copy is deemed
to be a true copy unless otherwise ordered
by the court.
 What is the authenticity of the
document is denied?
• Order 27 rule 4 (2) –
If he challenge the authenticity of the
documents, then within 14 days from the
receipt of the list , he must serve a notice that
he does not admit it and requires it to be
proved at the trial.
(note that the admission of the documents is on
the authenticity of the documents and not the
truth of the contents)
 Notices to admit authenticity of
documents - O. 27 r 5
• You want the other party to admit the
authenticity of the documents you specify in a
notice.
• When conducted?
14 days after case has been set down for trial.
• How?
By serving the other party with Form 50 –
Notice to admit (authenticity of document)
 Failure to admit?
• If the other party refused to admit or wants
to challenge the authenticity of documents
you specify in Form 50, he must serve on
you a notice of non-admission in Form 51.
• Failure to do so, the document will be
deemed to be admitted.
 Notice to produce document –
o.27 r 5
• A party may be required by notice to
produce, at the trial or hearing , any
document which has not been admitted.
- -Serve him with Form 52 –
notice to produce document.
Gathering Evidence

Anton Piller Order

 When Apply/ Purpose?

• When there is a grave danger that the

defendant will dispose of or destroy all
incriminating evidence (documents, article
or other materials) in his possession
and
• the existence of the evidence is importance
for proving the plaintiff’s case
 How Apply?
• Ex parte Notice of Application
• Supported by an Affidavit
 Pre-requisite Conditions
• There must be an extremely strong prima facie
case;
• The damage, whether potential or actual, must be
very serious for the applicant;
• There must be clear evidence that the defendants
have in their possession, incriminating evidence
and;
• That there is real possibility that they may destroy
the materials before any inter parte application
could be made.
 What is the Gist of the Order?
• Order to compel the defendants to permit the
plaintiff to enter the defendants’ premises to
search for and seize certain documents or
property.
• It is a mandatory order granted by the court but to
grant such order the court has been cautioned by
Ormrod LJ in the Anton Piller KG v
Manufacturing Processes Lted & Ors [1976] Ch
55:
 Ormrod LJ stated:

“The proposed order is at the extremity of

this court’s power. Such powers, therefore,
will rarely be made, and only when there is
no alternative way of ensuring that justice is
done to the applicant”
Lian Keow Sdn Bhd v C Paramjothy
[1982] 1 MLJ 217
• Yusof Abdul Rashid J:
“..in most exceptional circumstance, the court has
jurisdiction to order a defendant to permit the
plaintiff’s representative to enter he defendant’s
premises to inspect, remove vital material which
the defendant might destroy or dispose of so as to
defeat the ends of justice before an inter partes
application of an injunction could be made .”
Gathering of Evidence

Organization of Evidence
 Methods
• Discovery
• Interrogatories
• Admission
• Anton Piller Order
 Evidence Gathered
• Documentary
• Tangible Property basis
• Identification & admission of facts
• Disputed and non admission facts
• etc
 Organisation of the Evidence
• Facts agreed by both parties
- Statement of agreed facts
• Agreed Document
- Agreed Bundle
• Non Agreed Document
- Non Agreed Bundle