MALAYSIA Law and Practice Contributed by: Dhinesh Bhaskaran, Rabindra Nathan, Shanti Mogan and Lai Wai Fong, Shearn Delamore & Co
An applicant may request that the application be dealt with urgently by filing a certificate of urgency with the application, setting out the grounds for the urgency. The court may fix an early hearing date for the application, depending on the urgency.
and requiring the other party to answer the inter- rogatories on affidavit within a specific period. The court will grant leave for interrogatories it considers necessary for disposing fairly of the suit or for saving costs. 5.2 Discovery and Third Parties It is possible to obtain discovery from a third par- ty who is not party to a suit, or is not intended to be named as a party to a prospective suit, under Order 24 Rule 7A of the Rules of Court 2012. In an application filed after the commencement of a suit, the applicant has to specify or describe the documents in respect of which the order is sought, show that the documents are relevant to an issue arising or likely to arise out of the claim made, show that the person against whom the order is sought is likely to have or have had the documents in their possession, custody or power, and show that the application is neces- sary either to fairly dispose of the suit or to save costs. The application has to be served on the third party and on every party to the suit. See Billion Prima Sdn Bhd & Anor v Nutech Company Ltd & Anor [2017] 1 CLJ 179. In a pre-action discovery application, similar requirements must be satisfied by the applicant but, in addition, the applicant must state the material facts pertaining to the intended pro- ceedings, and whether the third party is likely to be a party to the subsequent proceedings. 5.3 Discovery in This Jurisdiction The general approach to discovery in Malaysia is that it is intended only for relevant documents to prevent trial by ambush, and not as a fishing expedition. Discoverable documents are generally those which could support or adversely affect the case
5. Discovery 5.1 Discovery and Civil Cases
Discovery of documents is available in civil cas- es and is administered by the litigants with leave of the court. A party may apply for an order for discovery under Order 24 of the Rules of Court 2012. The applicant will have to show that there is a docu- ment which is relevant and is or has been in the possession, custody or power of the person against whom the order for discovery is sought. Further, the court may at any time order a party to give discovery by making and serving on any other party a list of the documents which are or have been in their possession, custody or power and may at the same time or subsequently also order them to make and file an affidavit verifying such a list and to serve a copy thereof on the other party. The documents in question are the documents on which the party relies or will rely, and the documents which could either adversely affect their own or another party’s case, or sup- port another party’s case. See Order 24 Rule 3. The overriding test for discovery is whether it is necessary for disposing fairly of the suit or for saving costs. See Order 24 Rule 8. A party may apply under Order 26 for an order giving them leave to serve on any other party interrogatories relating to any matter in question,
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