1. ) MOHD HAMZAVI BIN MD ZAIN 2. ) CALIPH CONSULTANCY GROUP SDN. BHD. v FWD TAKAFUL BERHAD

Case Significance

Illustrates the requirements for obtaining discovery against a non-party under Order 24 of the Rules of Court 2012 — specificity, possession or control, and relevance and necessity — and the court's refusal to allow third-party discovery that amounts to a fishing expedition.

This High Court decision at Shah Alam concerns an application for discovery of documents against a third party under Order 24 rules 7A and 12 of the Rules of Court 2012. The plaintiffs, pursuing a claim for outstanding commissions calculated by reference to figures said to be held in software operated by a non-party company, sought discovery of that company's documents to substantiate the sums claimed. The non-party was not a party to the present suit, though it was a defendant in a separate, ongoing intellectual property suit brought by the plaintiffs concerning the alleged misappropriation of confidential information about a large body of takaful agents. The court considered whether the ingredients for third-party discovery were satisfied: whether the documents sought were identified with sufficient specificity, whether they were in the possession, custody or control of the third party, and whether they were relevant and necessary either for the fair disposal of the cause or for saving costs. It found the requirements were not met. The requests were, in the court's assessment, a classic fishing expedition — an attempt to trawl through the third party's documents in the hope of turning up material to support the claim, rather than a targeted request for identified, relevant documents. The court was not satisfied that discovery was necessary for the fair disposal of the matter or for saving costs, particularly where the plaintiffs were pursuing related relief against the same non-party in the separate intellectual property suit. It accordingly dismissed the application with costs of RM5,000. The court's approach reflects the guarded attitude the law takes to compelling a stranger to litigation to open its records, which requires a focused and justified request rather than a speculative trawl. The judgment illustrates the requirements for obtaining discovery against a non-party under Order 24, and the court's refusal to permit third-party discovery that amounts to a fishing expedition.