LIN WOON FUI v DATO SERI THAI KIM SIM

Case Significance

Sets out the framework for a protective order in civil litigation — reporting restrictions, an in camera hearing and a sealing order — granted under the Courts of Judicature Act 1964 and Orders 34, 38 and 92 of the Rules of Court 2012 and the court's inherent jurisdiction, with costs in the cause.

This High Court (Kuala Lumpur) decision concerns an application by the defendant for a protective order in a civil suit. The application was brought under section 15(1) and (2) of the Courts of Judicature Act 1964, Order 34 rule 1(1)(b), Order 34 rule 7, Order 38 rule 1 and Order 92 rule 4 of the Rules of Court 2012, and the court's inherent jurisdiction. The orders sought were far-reaching: that there be no publication or reporting in the media or on social media of any details relating to the proceedings, including the identities and details of the parties and witnesses, without leave of court; that the proceedings be heard in camera to the exclusion of the media, the public and any person not directly taking part; and that recordings of the in camera proceedings be transcribed only by a transcriber bound by a strict non-disclosure and confidentiality agreement.

The application engaged the tension between the ordinary principle of open justice and the court's power to restrict publicity and access in appropriate cases through in camera hearings, reporting restrictions and sealing orders. In addressing that tension the court considered the scope of its powers under the cited provisions and its inherent jurisdiction to control its own process, and the circumstances in which the interests protected by confidentiality may justify a departure from open justice.

The court's orders provided, among other things, that there be no publication or reporting relating to the suit without leave, that the proceedings be heard in camera to the exclusion of the media and any person not directly a party, that the recording and transcript be treated as confidential and released only to the parties and their solicitors, together with a sealing order under which the cause papers, affidavits, supporting documents and notes of proceedings filed in the case management system be sealed and made inaccessible to third parties save with leave. Costs of the application were ordered to be costs in the cause. The judgment illustrates the framework for granting reporting restrictions, in camera hearings and sealing orders in civil litigation.