MALAYSIA Law and Practice Contributed by: Dhinesh Bhaskaran, Rabindra Nathan, Shanti Mogan and Lai Wai Fong, Shearn Delamore & Co
5.6 Rules Disallowing Disclosure of a Document A party against whom a discovery order is sought can claim that a document ought not to be disclosed on the ground that it would be injurious to public interest, in the event there is any written law which authorises or requires the withholding of the document. See Order 24 Rule 15 of the Rules of Court 2012. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief Injunctive relief may be awarded as either interim or final relief. An interim prohibitory injunction may generally be granted where there is a bona fide serious issue to be tried, where the balance of justice lies in favour of granting the injunction, and where the applicant is in a financial position to meet their undertaking as to damages. See Keet Ger- ald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193. The types of injunctions available include the following: • a Fortuna injunction to restrain a party from presenting a winding-up petition – see Mobikom v Inmiss Communications Sdn Bhd [2007] 3 MLJ 316; • a Mareva injunction to restrain a defendant from parting with their assets, including a worldwide Mareva injunction – see The Cus- toms And Tax Administration Of The Kingdom Of Denmark v Saling Capital Ltd & Ors And Other Appeals [2021] 7 CLJ 857; • an Anton Piller order to allow the plaintiff’s representatives to enter a defendant’s prem- ises to inspect and remove material – see
of a party or their opponent, or lead a party to a train of inquiry which achieves either of these outcomes. See Order 24 Rule 7 of the Rules of Court 2012. 5.4 Alternatives to Discovery Mechanisms The matter is not applicable in this jurisdiction. 5.5 Legal Privilege Malaysia recognises the concept of legal privi- lege. Order 24 Rule 13(2) of the Rules of Court 2012 allows a party to object to the production of a document on the ground that it is privileged. The court may inspect the document to decide whether the objection is valid. Further, Section 126 of the Evidence Act 1950 protects from disclosure communication between a client and their lawyer, documents given by a client to their lawyer and legal advice given by a lawyer to their client. With regard to giving and receiving legal advice, it does not matter whether or not litigation was pending or contemplated at that point in time. With regard to communication between a client and their lawyer, all communication for the pur- pose of existing or contemplated legal proceed- ings are protected. Privilege may be expressly or impliedly waived by a client or abrogated by statute, and it does not apply to communications in furtherance of an illegal purpose. Communications between an in-house counsel and their organisation are not protected by privi- lege.
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