1. ) CALIPH CONSULTANCY GROUP SDN. BHD. 2. ) MOHD HAMZAVI BIN MD ZAIN v 1. ) ONE TWO ONE ADVISOR SDN. BHD. 2. ) QAIZER CONSULTANCY SDN. BHD.

Case Significance

Illustrates the distinction between confidentiality and protective orders in commercial litigation and the requirement that any restriction on the use of documents be no wider than necessary and justified by the nature of the material and the interests of those affected.

This High Court decision from the Commercial Division at Kuala Lumpur concerns an application in an intellectual property suit for an order protecting certain documents and information from wider disclosure, and it turns on the distinction between a confidentiality order and a protective order. The plaintiffs, a corporation and its shareholder-director, were former takaful agents appointed under a series of agency, agency leader and agency leader corporation agreements with the fourth defendant, and their action arose out of disputes connected with that agency relationship and the movement of agents. The information the plaintiffs sought to protect had been exhibited in the affidavit supporting their injunction application, and they asked the court to order that it be treated in a restricted manner. The central questions were whether the protection sought was properly a confidentiality order or a protective order, whether the scope of the application to protect the documents was too wide, and whether protection was necessary given the nature of the documents. The court analysed the character and scope of the material, noting that some of it concerned the defendants and the transferred agents and was used to facilitate the payment of their commissions, so that shielding it would deprive those persons of access to information that concerned them. Weighing the breadth of the protection sought against the nature of the information, the court held that the protection was neither necessary nor justified and that the orders sought would prejudice the defendants and the transferred agents. Accordingly, the court dismissed the plaintiffs' application with costs. The judgment is a useful illustration of the principled distinction between confidentiality and protective orders in commercial litigation, and of the requirement that any restriction on the ordinary use of documents be no wider than necessary and justified by the nature of the material and the interests of those affected.