BANK KERJASAMA RAKYAT (M) BERHAD v 1. ) DEEPAK JAIKISHAN S/O JAIKISHAN REWACHAND 2. ) RAJESH S/O JAIKISHAN BUKAN PIHAK-PIHAK REAPFIELD PROPERTIES SDN BHD

Case Significance

A careful restatement of the limits of pre-trial discovery under Order 24 of the Rules of Court 2012: documents must be directly referred to in the pleadings and genuinely necessary to a pleaded issue, and discovery cannot be used as a fishing expedition to construct an unpleaded defence.

This decision of the High Court's Commercial Division in Kuala Lumpur concerns two applications for discovery in a debt-recovery action, in which a bank sued two individuals as guarantors of a large Istisna' financing facility extended to a borrower company. The defendants brought two applications: one under Order 24 rule 11 of the Rules of Court 2012 for production and inspection of documents said to be referred to in the bank's pleadings, and a later one under Order 24 rule 3 and Order 92 rule 4 seeking documents relating to the bank's internal decision-making, in particular its refusal to grant a further extension of time under a settlement agreement. The central questions were whether the documents were properly 'referred to' in the pleadings, whether they were relevant and necessary for the fair disposal of the case, and whether the applications were procedurally competent or amounted to impermissible fishing expeditions. The court held that a document is 'referred to' only where the pleading makes a direct rather than merely inferential mention of it, and that necessity means a document must advance or contradict a specific pleaded factual proposition, not merely be useful. Measured against those standards, the requests were found to be far too wide and untethered to any pleaded case, so that the defendants were in truth searching for a defence they had not yet formulated — the classic vice of a fishing expedition, discovery being no roving licence to rebuild one's case. The later application was also brought under the wrong rule, seeking specific discovery in circumstances the Rules did not permit. The court dismissed both applications and ordered the defendants to pay the bank's costs. The judgment is a careful restatement of the limits of pre-trial discovery and of the meaning of reference, relevance and necessity under Order 24.