1. WHAT? The parties using discovery method have to satisfy certain requirements for discovery particularly on the relevancy of documents or information. There shall be no fishing expedition or attempt to discover unrelated documents. A party who apply for discovery must first comply with all the conditions required. The essential elements for an order for discovery in 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 person against whom the order for discovery is sought.
1.1. 1. Documents
1.1.1. Rules of Court 2012 defines ‘document’ as ‘anything in which information of any description is recorded and includes a claim, summons, application, judgment, order, affidavit, witness statement or any other document used in a Court proceeding’. (Order 1 rule 2 of RC).
1.2. 2. Relevant & Necessary
1.2.1. Under a general order of court for discovery, a party is obliged to make discovery of all documents relevant to the matters in question in the action. What are the matters in question would depend on the pleadings. A document relates to the matter in question in the action if it contains information which may — not which must — either directly or indirectly enable the party requiring the discovery either to advance his own case or to damage the case of his adversary or which may fairly lead to a train of inquiry which may have either of those two consequences. - Manilal & Sons (Pte) Ltd v Bhupendra KJ Shan (t/a JB International) [1990] 2 MLJ 282
1.2.2. Documents relate to matters in question in the action so long as they are likely to throw light on the case. - Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
1.3. 3. In the possession, custody or power of the opposite party
1.3.1. Schedule II contains a list of documents which had been in the possession, custody or power of the applicant, but were no longer so at the date of service of the list. Another type of discovery is known as non-automatic discovery by court order (O24 R3 RHC1980). This process is not automatic because one party needs to obtain an order from the court to compel another party to make and serve the lists of documents and additionally to make, file and serve an affidavit verifying such a list documents which are or have been in the possession, custody or power of the other party relating to any matter in question in cause matter. If type of discovery is known as non-automatic discovery by court order (O24 R3 RHC1980) and the documents are or have been in the possession, custody or power of the other party relating to any matter in question in cause matter, one party needs to obtain an order from the court to compel another party to make and serve the lists of documents and additionally to make, file and serve an affidavit verifying such a list documents.
2. The discovery of documents is limited to documents that are or have been in the parties’ possession, custody or power and relating to the matters in question. Furthermore, the parties may also limit discovery of documents, or dispense with discovery all together, provided both parties agree. Order 24 rule 1(1) and rule 2 of the RHC 1980 provides that mutual discovery is only allowed between parties after the close of pleadings and shall be applicable to actions commenced by writ only. In mutual discovery four processes are involved namely : i. Agreement by both parties to list all relevant documents that are or have been in their custody, possession and power ii. Exchange of the lists of documents iii. Mutual inspection of documents stated by both parties’ lists and iv. Production of the documents during trial In other words in discovery by mutual consent, the parties have mutually agreed to exchange lists of documents which are have been in their possession, custody or power relating to the matters in question. Initially, this discovery was not allowed in cases involving accidents on apprehended collision. However, after an amendment to the RHC 1980, mutual discovery can be conducted in personal injury actions, but the parties are still subject to the court’s discretionary power not to allow discovery if it is deemed not to be necessary.
3. Effects
3.1. Legal Effect
3.1.1. Order 24 Rule 8A --> it makes the duty to make discovery a continuous duty. “after the making of any order under rule 3 or 7, the party required to give discovery under any such order shall remain under a duty to continue to give discovery of all documents falling within the ambit of such order until the proceedings in which the order was made are concluded”. If a party has been ordered to make discovery, he shall remain under a duty to continue to give discovery of all documents falling within then ambit of such order.
3.2. General Effect
3.2.1. 1. Provides litigants with information about the probable outcomes of trial. 2. No surprise element in the trial
4. Conditions
5. Types
5.1. General (All Documents)
5.1.1. Order 24 Rule 3(1): discovery by disclosure & inspection- ada 2 layers: a) Provide list first (disclosure) b) then, inspection
5.1.1.1. Order 24, Rule 3(1) • “Court may at anytime order any party to a cause or matter to give discovery to the other party….” • When one party wants to know about ALL DOCUMENTS that the other party have. • The party will make a list of documents that they think are in or have been in the other party’s possession/custody/power or a combination of both. • After that, the party that apply for discovery need to serve to the other party.
6. Issues
6.1. What if a party wants to make an inspection of documents stated in the pleadings and affidavits of the other party? Should he still apply for discovery first before making an inspection? Or can he just apply to inspect? [O.24, r.10- that party does not need to apply for discovery. He can just apply to inspect.]
6.2. What if the ordered party fails to comply with the order made by the court? [Order 26 rule 16- the court may make an order to i. Dismiss the action if the defaulting party is a plaintif ii. Strike out the defence and enter judgment accordingly if the defaulting party is a defendant.]
7. 1st step - The party who wants to get the list of documents make the application. [Order 24 Rule 3 ROC 2012]
8. 5. Mulley v Manifold (1959) 103 CLR 341- Menzies J - Discovery is a procedure directed towards obtaining a proper examination and determination of these issues- not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to train of inquiry which would, either advance a party’s own case or damage that of his adversary.
9. 3. Provide the parties with all the relevant documentary evidence in each party’s possession and to avoid trial by ambush or element of surprise.
10. When one party (plaintiff or defendant) wants to know about all documents that are relevant to the case that are in possession, custody or power of the other party, that party will make an application to the court to order the other party in that case to make a list of documents that they have with them or had with them.
10.1. Menzies J in Mulley v Manifold [1959] 103 CLR 341 at p345, “Discovery is a procedure directed towards obtaining a proper examination and determination of these issues - not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to train of inquiry which would, either advance a party’s own case or damage that of his adversary.”
10.2. Specific (Specific Documents)
10.2.1. Order 24, Rule 7(2) : a party who has been ordered to prepare a list under a general discovery may still be ordered by the court to make a discovery for specific document.
10.2.2. Order 24, Rule 7(3) : party who make an apply must state in the affidavit that they verily believe that certain documents are in possession of the other party.
10.2.3. Order 24, Rule 7(4) : a party who make an apply cannot straight away ask for specific discovery but has to apply for general discovery first.
11. Bar Council Seminar on Litigation: Discovery and Interrogatories, discovery is a compulsory process in civil proceedings by which a party can obtain, from other parties, documents that are relevant to their case but not in their possession.
12. Meaning
13. Purpose
13.1. 1.To avoid proving admitted facts that may cause delay in trial.
13.1.1. 4. To reduce costs of litigation.